scholarly journals U.S. Supreme Court Holds that the New York Convention Does Not Displace Domestic Doctrines Permitting Nonsignatories to Enforce Arbitration Agreements

2020 ◽  
Vol 114 (4) ◽  
pp. 757-761
Keyword(s):  
New York ◽  
Supreme Court ◽  
Executive Branch ◽  
The Supreme Court ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
Domestic Law

On June 1, 2020, the Supreme Court unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention) does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. The Court interpreted the text of the Convention as being silent on the issue of enforcement by nonsignatories and thus leaving this issue to domestic law. The Court noted that some postratification practice (including the recommendation of a UN commission) and the views of the executive branch were consistent with its conclusion, but it did not determine how much weight should be accorded to these sources.

scholarly journals Dallah: the death knell for deference?

2021 ◽  
Author(s):  
◽  
Anastasia Lee Fraser
Keyword(s):  
New York ◽  
United Kingdom ◽  
Supreme Court ◽  
De Novo ◽  
Commercial Arbitration ◽  
English Court ◽  
Arbitral Award ◽  
The United Kingdom ◽  
Recognition And Enforcement ◽  
New York Convention

<p>This paper examines the decision of the United Kingdom Supreme Court in Dallah Real Estate and Tourism Holding Company v The Minister of Religious Affairs, Government of Pakistan, a rare case where an English court refused enforcement of an international arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).  Although in Dallah the United Kingdom Supreme Court acknowledged the trend to limit reconsideration of the findings of arbitral tribunals in fact and in law, the Court considered it was bound to decide the question of validity de novo. Contrary to the tribunal, the Court held the arbitration agreement was not valid under the law to which it was subject and refused enforcement of the arbitral award.  This paper analyses how the English Supreme Court decided the legal issues before it. It concludes the English court could have reached the same decision on a more convincing basis. Even where the issue is initial consent, holding the court at the place of enforcement is always bound to decide a matter de novo neither serves the objectives of international commercial arbitration nor is necessary to promote the fundamental integrity of arbitral proceedings.</p>

Foreign Arbitral Awards and Foreign Judgments Based upon Such Awards

2018 ◽  
pp. 126-143
Author(s):  
V.C. Govindaraj
Keyword(s):  
New York ◽  
Supreme Court ◽  
Domestic Court ◽  
Applicable Law ◽  
Arbitral Award ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
New York Convention

The New York Convention on foreign arbitration, by Article V (1) (e) lays down a procedural norm that an arbitral award, duly rendered, attains finality if, and only if, a domestic court endorses it. This procedural norm was endorsed by the Supreme Court of India in two leading cases. The ratio that the Supreme Court employed in the above-mentioned cases is in accordance with Section 17 of the Indian Arbitration Act, 1940. Such an endorsement by a local court of the forum that was required under Article V (1) (e) of the New York Convention was done away with by the Arbitration and Conciliation Act, 1996 under Section 35. The forum for the conduct of arbitration in the country of the applicable law also is not indispensable; and it is for the court exercising jurisdiction to determine, on the basis of balance of convenience, the place for the conduct of arbitration, taking into consideration the local status of the parties, such as that one of the parties cannot afford to go to the country of the applicable law, coupled with the availability of evidence, oral and documentary, at the place where the court is exercising jurisdiction.

8 The Annulment and Enforcement of the Award

2015 ◽  
Author(s):  
Kaufmann-Kohler Gabrielle ◽  
Rigozzi Antonio
Keyword(s):  
New York ◽  
Supreme Court ◽  
Final Section ◽  
Cost Allocation ◽  
Recognition And Enforcement ◽  
New York Convention

Contrary to judgments, arbitral awards are final in the sense that they are not subject to appeals. This chapter examines the very limited remedy of annulment or setting aside of the award in accordance with Article 190(2) PILA, emphasizing that the annulment grounds in that provision are essentially concerned with the manner in which justice was rendered, as opposed to the content of the decision. The chapter also covers all aspects of the annulment procedure before the Swiss Supreme Court, from the admissibility of the action to cost allocation. In that context, it addresses the possibility for parties not seated in Switzerland to waive their right to seek the annulment of the award (Article 192(1) PILA). The chapter further discusses the revision of the award, and, in its final section, the recognition and enforcement of foreign arbitral awards by the Swiss courts in accordance with the New York Convention.

GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC (U.S. Sup. Ct.)

2020 ◽  
Vol 59 (6) ◽  
pp. 911-921
Author(s):  
Steven Skulnik
Keyword(s):  
New York ◽  
Supreme Court ◽  
Power Conversion ◽  
International Arbitration ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
The U.S

On June 1, 2020, the U.S. Supreme Court decided GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC. The decision is significant for its holding that nothing in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention or the New York Convention) or the Federal Arbitration Act (the FAA) prohibits courts from deciding that non-signatories may be bound by or enforce international arbitration agreements based on contract, agency, equity, or related principles.

scholarly journals Problems in Recognition and Enforcement of Foreign Arbitral Awards in Turkey

2013 ◽  
Author(s):  
Adnan Deynekli
Keyword(s):  
Public Policy ◽  
New York ◽  
Necessary Conditions ◽  
Arbitral Tribunal ◽  
Arbitral Award ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
Domestic Law

If the arbitral award which requested to recognition and enforcement given in the country is a party to New York Convention dated 1958, primarily the provisions of this Convention shall be applied. The recognition and enforcement of domestic law and regulations duly implemented. Whether judgment fees should be fixed or proportional are discussion. The demand for recognition and enforcement of foreign arbitral tribunal shall not review the basis of the decision of the referee. The necessary conditions for enforcement of foreign arbitral decisions and must be moved. The existence of the arbitration agreement against the enforcement of the arbitration requested by referee assignments, and to be aware of the dispute to arbitration and enforcement required to be favorable verdict must not be contrary to public policy.

scholarly journals Uniformity and Diversity in the Enforcement of Arbitration Clauses in Canada

2020 ◽  
pp. 111-121
Author(s):  
Geneviève Saumier
Keyword(s):  
New York ◽  
Supreme Court ◽  
Access To Justice ◽  
Supreme Court Of Canada ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Consumer Contracts ◽  
Local Courts ◽  
Model Law ◽  
New York Convention

Arbitration is well established in Canada. All jurisdictions have implemented the 1958 New York Convention, the UNCITRAL Model Law on Arbitration and equivalent legislation for domestic arbitration. This generally supportive legal landscape for arbitration is often at odds with access to justice for consumers. As a result, several jurisdictions in Canada have adopted legislation to guarantee consumers’ access to local courts, including through class actions, notwithstanding the inclusion of arbitration clauses in their contracts. The constitutional division of powers in Canada entitles each province to adopt its own policy, leading to diversity across the country with regard to the enforceability of arbitration clauses in consumer contracts. In this paper, the author examines the tension between general support for arbitration and differentiated treatment of consumer arbitration in Canada. To that end, the author examines relevant legislation in several provinces (including Quebec and Ontario) as well as recent jurisprudence from the Supreme Court of Canada (Dell Computer (2007), Telus (2011) and Wellman (2019)). The 2020 decision from the Supreme Court of Canada in Uber may signal a new openness toward extending protection to other vulnerable contracting parties such as employees.

Binding non-signatories to arbitrate—the United States approach

2021 ◽  
Author(s):  
Andrijana Mišović
Keyword(s):  
New York ◽  
Supreme Court ◽  
Case Law ◽  
The United States ◽  
Arbitration Clause ◽  
Foreign State ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
New York Convention

Abstract Parties’ consent to the arbitration is the basis for tribunal’s authority to decide the case and, as such, is of fundamental importance in any arbitration proceedings. Commercial reality, however, often requires from the so called ‘non-signatories’ of the contract containing an arbitration clause to participate in performance of such contract. Being sensitive to such commercial concerns, the US courts have developed different domestic theories for binding the non-signatories. Recent ruling of the US Supreme Court holds that such domestic theories are also applicable in cases governed by Chapter 2 of the Federal Arbitration Act (incorporating New York Convention). However, the Supreme Court did not resolve the question which law should be applied to the issue of binding the non-signatories. Although US courts might be more inclined to apply federal principles to this issue, this is not the only possible solution based on the current SCOTUS case-law. The US court could also resort to the choice of law analysis and apply appropriate (foreign) state principles for binding the non-signatories. However, different states clearly have different views of the issue of binding the non-signatories, as this article briefly outlines. Thus, the same factual pattern might lead to completely different results.

scholarly journals Dallah: the death knell for deference?

2021 ◽  
Author(s):  
◽  
Anastasia Lee Fraser
Keyword(s):  
New York ◽  
United Kingdom ◽  
Supreme Court ◽  
De Novo ◽  
Commercial Arbitration ◽  
English Court ◽  
Arbitral Award ◽  
The United Kingdom ◽  
Recognition And Enforcement ◽  
New York Convention

<p>This paper examines the decision of the United Kingdom Supreme Court in Dallah Real Estate and Tourism Holding Company v The Minister of Religious Affairs, Government of Pakistan, a rare case where an English court refused enforcement of an international arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).  Although in Dallah the United Kingdom Supreme Court acknowledged the trend to limit reconsideration of the findings of arbitral tribunals in fact and in law, the Court considered it was bound to decide the question of validity de novo. Contrary to the tribunal, the Court held the arbitration agreement was not valid under the law to which it was subject and refused enforcement of the arbitral award.  This paper analyses how the English Supreme Court decided the legal issues before it. It concludes the English court could have reached the same decision on a more convincing basis. Even where the issue is initial consent, holding the court at the place of enforcement is always bound to decide a matter de novo neither serves the objectives of international commercial arbitration nor is necessary to promote the fundamental integrity of arbitral proceedings.</p>

scholarly journals Presidential Signing Statements and Dialogic Constitutionalism

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 51-56 ◽  
Author(s):  
Catherine Powell
Keyword(s):  
New York ◽  
Supreme Court ◽  
New York Times ◽  
Executive Branch ◽  
Executive Power ◽  
The New York Times ◽  
Signing Statements ◽  
Imperial Presidency ◽  
The Supreme Court

When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotofsky v. Kerry (Zivotofsky II), Jack Goldsmith hailed the decision as a “vindication” of presidential signing statements and executive power. Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the “constitutionally ludicrous” work of an overreaching, “imperial presidency.”

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