Author: Report of the International Arbitration Club of New York
Published: May 2013
The international business community relies largely upon international commercial arbitration for the resolution of disputes arising from transactions across national borders. The choice of arbitration over litigation in national courts is motivated substantially by the multilateral conventions on the recognition and enforcement of arbitral awards. The New York and Panama Conventions are designed to secure the global portability of awards made in the territories of Contracting States. In an age in which assets can be moved from one jurisdiction to another in an instant, an award creditor must have the ability to enforce a Convention award in multiple States. Some of those States may have no connection to the underlying transaction or dispute except that assets of the award debtor are found or eventually might be found there.
What should be the role, in regard to enforcement of Convention awards, of the judicial resource-conserving doctrine of forum non conveniens, which permits a U.S. court to decline jurisdiction as a matter of discretion when a case has attenuated connections to the United States and an adequate alternative forum is available? In approaching this question it is apt to keep in mind that an action for recognition and enforcement of an arbitration award is not a “case” in the usual sense. It is a “summary proceeding,” which according to the Federal Arbitration Act should follow the procedure for a motion. Barring unusual circumstances, the confirmation proceeding, including any cross-motion to vacate if the arbitration award was made in the United States, should be fully submitted for decision in a few weeks. There should ordinarily be no discovery, and no oral testimony, and there is no right to trial by jury. Accordingly, even before one considers the implications for international relations and international commerce of applying a doctrine of discretionary abstention to recognition of foreign arbitration awards, it should be recognized that forum non conveniens is grounded in a set of assumptions about the procedural arc of a plenary case that generally do not apply to a summary proceeding to confirm an arbitration award.