Author: Suyash Paliwal*
Published: December 2012
As recently as July 2012, a U.S. federal court reiterated that Chapters One and Two of the Federal Arbitration Act (“FAA”) provide “overlapping coverage” over non-domestic arbitral awards rendered in the United States, to the extent the two chapters do not conflict. Some courts interpreting this “overlapping coverage” have taken it to mean that Chapter One is a gap-filler for Chapter Two, providing technical provisions for residual application. But a different interpretation of “overlapping coverage” is that the two chapters of the FAA create two separate regimes for the confirmation of non-domestic arbitral awards rendered in the U.S. and that, between these two regimes, the prevailing party to the arbitral award “may [choose] the most advantageous.” This view, introduced by the Second Circuit’s seminal case, Bergesen v. Muller, and further elaborated by the Second and Seventh Circuits, calls for “overlapping coverage” beyond simply using 9 U.S.C. § 208 to fill in gaps in Chapter Two by drawing from Chapter One. Instead, this interpretation takes the two regimes as parallel entitlements. The prevailing party in arbitration may choose between the two procedures at the outset of an action to convert the award into a court judgment (i.e., to confirm the award).
*Associate, International Arbitration, Allen & Overy LLP. J.D. 2010, Columbia Law School; M.B.A. 2002, The Wharton School; B.S. (Economics) 2002, University of Pennsylvania. The author served as Research Assistance to Professor George A. Bermann, Reporter for the Restatement Third, The U.S. Law of International Commercial Arbitration. I wish to express my deepest gratitude to Professor Bermann for his instruction, guidance and continued mentorship. Special thanks to Kathleen Scanlon and Benno Kimmelman for their helpful feedback on this article. I would also like to thank Bryan Adkins, friend and colleague; the two of us together developed many of the positions elaborated in this article. The positions described in this article do not necessarily represent the views of Professor Bermann, or the Restatement, nor do they necessarily reflect the views of Allen & Overy LLP or any of its clients. All errors herein are my own.