Author: Harout Jack Samra*
Published: October 2010
Law Applicable to the Merits
Law Applicable to Procedure
New York Convention
Over the last decade, arbitration, and its international strain in particular, has provided ample fodder for mystifying Supreme Court rulings and rampant divisions among the circuit courts. These divisions, some seemingly irreconcilable, are deeply troublesome as they lead to the sort of venue or choiceof-law gamesmanship that plagues litigation. From the viability of the doctrine of manifest disregard of the law in light of the Supreme Court’s command in Hall Street v. Mattel, to the more fundamental question of whether the grounds for vacatur enumerated in the Federal Arbitration Act (the “FAA” or the “Act”) are available at all, selecting the locus of an arbitration has acquired even greater, more far-reaching significance than it previously possessed, as that selection may bear directly on which defenses against an adverse award are available. These factors are particularly true in the context of international arbitration, which is also directed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). This article will address this last concern in particular.
In international arbitration, several circuit courts have diverged rather drastically as to what bases are available for vacating arbitration awards. This confusion, largely rooted in the challenge of reconciling the New York Convention and the FAA, strikes at the core of the essential balance that must be maintained in order for arbitration to remain a viable tool for dispute resolution: the balance between the finality of the award and the procedural safeguards provided to parties who, quite literally, get less than what they bargained for.
*Harout Jack Samra, an attorney at Squire Sanders & Dempsey, L.L.P., focuses his practice on international litigation and arbitration matters. He earned a J.D., magna cum laude, from the University of Miami School of Law; an M.B.A. from the University of Miami School of Business Administration; and a B.A. in economics, cum laude, also from University of Miami.