Lack of Jurisdiction and Forum Non Conveniens as Defenses to the Enforcement of Foreign Arbitral Awards – Vol. 15 No. 3-4

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Author: The International Commercial Disputes Committee of the Association of the Bar of the City of New York

Published: June 2006

Enforcement of Arbitral Awards
New York Convention

Description: Federal and state courts have generally been highly receptive to the enforcement of both foreign arbitral awards and foreign judgments. However, there is recent case law, including court decisions in New York, which has created some uncertainty in this area, particularly as regards foreign arbitral awards. The uncertainty concerns the availability of lack of jurisdiction of the enforcing court over the debtor or his property and the doctrine of forum non conveniens as grounds for refusing recognition and enforcement.

The central purpose of the New York Convention is to liberalize procedures for enforcing foreign arbitral awards. The Convention does so principally by limiting the grounds on which an arbitral award may be denied recognition or enforcement. The Federal Arbitration Act (“FAA”) itself expressly states: “The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the Convention.” Accordingly, the specified grounds, set forth in the Convention’s Article V, have been held to be exclusive. The specified grounds do not include lack of jurisdiction of the enforcing court or forum non conveniens. Nevertheless, courts have declined to enforce Convention awards on both these grounds.

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