Published: July 1995
Agreement to Arbitrate
Enforceability of Agreements to Arbitrate
Description: In 1970 the United States acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”) and enacted Chapter 2 of the Federal Arbitration Act in order to implement the Convention. Since this country’s accession to the Convention, the courts of the United States have been obliged to recognize and enforce international arbitral agreements and awards in accordance with standards set forth in the Convention.
This Article analyzes enforcement of arbitral agreements under the Convention, and in particular addresses the issue of what law governs enforcement of arbitral agreements subject to the Convention.
The Convention, which deals mostly with the enforcement of arbitral awards, contains only one article on the subject of arbitral agreements: Article II. Article II’s text is brief compared to the articles dealing with the enforcement of awards. Unlike Article V, which includes detailed choice-of-law rules with respect to the enforcement of arbitral awards, Article II contains no explicit choice-of-law directives with respect to the enforcement of arbitral agreements.
*The authors are partners at the international law firm of Coudert Brothers and specialise in international commercial arbitration. The authors wish to thank C. Allen Garrett, an associate at Coudert Brothers, and Erika George, a student at Harvard Law School, for their assistance in preparing this article.