Author: Richard W. Hulbert*
Published: April 2009
New York Convention
Description: The American Review of International Arbitration deserves warm thanks for publishing the Official Report of the United States Delegation to the United Nations Conference on International Commercial Arbitration, held in New York under U.N. auspices in May and June of 1958, that gave birth to the international arbitration treaty commonly known as the New York Convention. The Report, with its contemporary summary of the conference proceedings, the positions of the various delegations, and the provisions of the proposed Convention, is now for the first time made accessible to those interested in the development of American arbitration law over the past half century.
In light of the accepted and important role that the New York Convention has played in the nearly 40 years since American accession to it in 1971, it will no doubt come as a shock to many to note that the conclusion to which the Delegation came was that it “recommends strongly that the United States not sign or adhere to the convention. In its view there are compelling legal and policy objections to such adherence . . . .” Even more surprising to many may be the nature of the four objections to American adherence:
1. The convention, if accepted on a basis that avoids conflict with State laws and judicial procedures, will confer no meaningful advantages on the United States.
2. The convention, if accepted on a basis that assures such advantages, will override the arbitration laws of a substantial number of States and entail changes in State and possibly Federal court procedures.
3. The United States lacks a sufficient domestic legal basis for acceptance of an advanced international convention on this subject matter.
4. The convention embodies principles of arbitration law which it would not be desirable for the United States to endorse.
*Senior Counsel to Cleary Gottlieb Steen & Hamilton LLP, Adjunct Professor at New York University School of Law, and a former Vice Chairman of the ICC International Court of Arbitration.