The Due Process Defense to Recognition and Enforcement of Foreign Arbitral Awards in United States Federal Courts: A Proposal for a Standard* – Vol. 11 No. 1-2

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AuthorOsamu Inoue**

Published: February 2000

United States
Enforceability of Arbitration Agreements
Basic Standards of Due Process
New York Convention

Description: Under Article V(1)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), recognition and enforcement of an arbitration award may be denied if the opposing party can prove that s/he was “not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his/her case.” This so-called due process defense has been interpreted to “essentially sanction[] the application of the forum state’s standards of due process.” Other U.S. courts have adopted this theory. Consequently, the U.S. courts generally interpret the standard under which they will consider challenges to enforcement of an arbitral award under Article V(1)(b) to be that of “due process rights under American law.” There are, however, no clear guidelines as to how to apply American standards of due process to foreign arbitral awards.

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*Notes & Comments
**Osamu Inoue is a partner at Ushijim & Associates, Tokyo, Japan. LL.M. 2000, M.C.J. 1998, New York University School of Law; 1991, The Legal Training and Research Institute of the Supreme Court of Japan; LL.B. 1986, Hokkaido University. The author wishes to thank Professor Toni M. Fine for her helpful comments and guidance on an earlier draft of the article. The views expressed are solely those of the author.