Federal Judicial Center 

International Litigation Guide 

International Commercial Arbitration: 

A Guide for U.S. Judges 

2012
This page is left blank intentionally to facilitate printing of this document 

double-sided. 
Federal Judicial Center 

International Litigation Guide 

International Commercial Arbitration: 

A Guide for U.S. Judges 

S.I. Strong

Federal Judicial Center 

2012 

This Federal Judicial Center publication was undertaken in furtherance of the Center’s 

statutory mission to develop and conduct education programs for the judicial branch. 

While the Center regards the content as responsible and valuable, it does not reflect 

policy or recommendations of the Board of the Federal Judicial Center.
first printing
v 

Contents

Acknowledgments, vii

I. Introduction, 1 

II. Differences Between International Commercial Arbitration and Other

Forms of Arbitration, 2

A. Distinguishing International Commercial Arbitration from

International Investment Arbitration, 3

B. Comparing International Commercial Arbitration with Other Forms

of Dispute Resolution, 4 

1. International commercial arbitration and domestic arbitration, 4

2. International commercial arbitration and international litigation,

5 

III. Fundamental Concepts in International Commercial Arbitration, 7

A. Institutional Arbitration Versus Ad Hoc Procedures, 7

B. Sources of Legal Authority, 9

1. Substantive law, 10

2. Procedural law, 12

C. U.S. Statutory Regime, 24

D. Overview of an International Commercial Arbitration, 31

1. Drafting stage, 31

2. Prior to or at the initiation of the arbitration, 31

3. During the arbitration, 32

4. After the arbitration, 32

E. Jurisdictional Competence, 33

1. Primary and secondary jurisdiction as a choice of forum issue,

33

2. Primary and secondary jurisdiction as a choice of law issue, 36

IV. Role of U.S. Federal Courts in International Commercial Arbitration, 37

A. Role of the Court Prior to or at the Initiation of Arbitral Proceedings,

37

1. Motions to compel arbitration, 37

2. Motions to stay litigation, 41

3. Motions seeking an anti-suit injunction, 42

4. Motions seeking an anti-arbitration injunction, 44

5. Motions for assistance in the naming of an arbitrator, 45

6. Motions for provisional orders in aid of arbitration, 47
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B. Role of the Court During Arbitral Proceedings, 49

1. Motions for disclosure or discovery in aid of an international

arbitral proceeding, 49

2. Challenges to arbitrators during proceedings, 60

3. Motions in aid of arbitration, 61

4. Motions to enforce interim awards and provisional measures, 62

C. Role of the Court After Arbitral Proceedings Have Concluded, 63

1. Motions to vacate an arbitral award, 63

2. Motions to confirm an arbitral award rendered by a U.S.-seated

panel, 70

3. Motions to enforce a foreign arbitral award, 71

4. Preclusive effects of an arbitral award, 85

V. Special Issues Regarding Parties to International Commercial Arbitration, 

87

A. Non-signatories, 87

B. Multiparty Arbitration, 89

C. State Actors, 90

VI. Conclusion, 92

Further Reading, 95

Glossary, 97

Appendix 1: Summary of Legal Authorioties and Their Uses, 101

Appendix 2: Jurisdictional Checklist, 105

Appendix 3: The United Nations Convention on the Recognition and 

Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2518 

(New York Convention), 109

Appendix 4: Inter-American Convention on International Commercial 

Arbitration of 1975, Jan. 30, 1975, O.A.S.T.S. No. 42, 14 I.L.M. 336 

(1975), 115

Appendix 5: Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–307, 119

Table of Authorities, 131
vii

Acknowledgments

The author would like to thank Gary B. Born, Christopher R. Drahozal, Emmanuel Gaillard, Margaret Moses, William W. Park, and Lucy 

Reed for comments on earlier drafts of this guide. All errors, of course, 

remain the author’s own. 
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1 

I. Introduction

International commercial arbitration has become a widely popular 

means of resolving international disputes, and U.S. courts are being 

asked to resolve matters relating to international arbitration with increasing frequency.1 This is a particularly complex area of law, not only because of the interaction between domestic and international law, 

but also because of the jurisdictional interplay between U.S. courts, 

foreign courts, and the arbitral tribunal. 

 The biggest challenge for U.S. federal judges adjudicating international arbitral issues is understanding how the dispute at bar fits into 

the context of the dispute resolution process as a whole. U.S. courts 

will not have jurisdiction over the entire dispute, but will be called 

upon to resolve discrete legal issues. It is helpful for judges to be familiar with the international arbitral regime as a whole as well as the 

relevant issues in U.S. law.

Rather than providing a comprehensive discussion of international 

commercial arbitration, this guide offers a practical overview of issues 

related to international commercial arbitration that commonly arise in 

a U.S. federal court. Limitations of space mean that a great deal has 

been left out of this discussion. Quite often the guide skips over basic 

propositions of U.S. law on arbitration in order to focus more heavily

on elements that are unique to the international realm. The purpose is

to identify a useful framework for analysis. 

 The unique nature of the subject matter requires a somewhat different textual approach than is typically used in this sort of publication. Because international arbitration is modeled on code-based legal 

systems as much as it is on common-law-based traditions, this guide

includes a more detailed treatment of treaty provisions and international law, and places less emphasis on U.S. case law than normally is

the case.

Part II sets the discussion in context by describing the differences 

between international commercial arbitration and other dispute resolution mechanisms, including domestic arbitration. Part III describes a 

1. See S.I. Strong, Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration, 2012 J. Disp. Resol. 1, 2–3 (2012) (citing statistics) 

[hereinafter Strong, Border Skirmishes].
International Commercial Arbitration

2 

number of fundamental concepts that are critical to understanding 

how an individual motion or ancillary dispute relates to the rest of the 

process. This part also gives a basic outline of the U.S. statutory approach to international commercial arbitration.

Part IV addresses the various procedural motions that are associated with international commercial arbitration. The discussion is arranged chronologically, beginning with issues that arise in court prior 

to or at the initiation of the arbitration before moving on to issues that 

arise during and after the arbitration. Part V discusses a few special 

issues related to who may be a party in an international commercial 

arbitration. These issues, which encompass non-signatories, multiparty proceedings, and state parties, can arise at any time.

Part VI offers some closing observations. Following this discussion 

are suggestions for further reading, a glossary, and five appendices. 

Three of the appendices contain legislative materials that are frequently referenced in the text, and two of the appendices summarize in 

graphic form key information regarding international commercial arbitration.

The guide is structured to provide readers with a basic understanding of the fundamental principles of international commercial 

arbitration before addressing specific matters that arise on a motionby-motion basis. While it may be tempting to flip straight to the section that addresses the dispute at issue, the primary challenge for 

judges in this area of law is understanding how a particular dispute fits 

within the larger dispute resolution process. Unlike litigation, which 

involves a single judge from beginning to end, or domestic arbitration, 

which involves only a single court, international commercial arbitration can involve multiple courts in addition to the arbitral tribunal.

Therefore, it may be helpful for judges to review Parts II and III before 

moving on to one of the sections in Part IV, thereby taking advantage 

of the numerous cross-references to help provide context. Judges can 

read Part V when one of the special issues noted therein arises. 

II. Differences Between International Commercial

Arbitration and Other Forms of Arbitration

Arbitration is not a one-size-fits-all proposition. Different types of disputes give rise to distinct variations in both policy and procedure. It 

therefore is important to differentiate between the various types of 
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3 

proceedings so as to avoid any misconceptions about the nature of international commercial arbitration. 

A. Distinguishing International Commercial Arbitration from 

International Investment Arbitration 

Although both international commercial arbitration and international 

investment (alternatively called “investor-state” or “treaty”) arbitration

are international, they derive their authority from two fundamentally 

different sources and therefore reflect a number of basic dissimilarities.

 International commercial arbitration is a private dispute resolution 

mechanism that relies heavily on the agreement of the parties, both as 

a means of demonstrating consent to arbitration and with respect to 

the structure of the proceedings. In contrast, international investment 

arbitration is a treaty-based procedure that is rooted in public international law. Consent to international investment arbitration is demonstrated by states rather than private parties, at least in the first instance, and must be found in each particular proceeding through 

reliance on one of the hundreds of bilateral investment treaties (BITs), 

multilateral investment treaties (MITs), or investment protection 

agreements (IPAs) that are currently in place worldwide. The most 

well-known instrument on international investment arbitration is the 

Convention on the Settlement of Investment Disputes Between States 

and Nationals of Other States,

2 more commonly known as the ICSID 

Convention or the Washington Convention. Procedures in each individual dispute are dictated by the terms of the governing investment 

treaty.

3

Because treaty-based arbitration is a public law mechanism, it 

gives rise to practical and jurisprudential issues that do not exist in the 

private law world of international commercial arbitration. This guide 

addresses only international commercial arbitration, not investment 

arbitration under the ICSID Convention or any applicable BIT, MIT, 

or IPA. 

2. See Convention on the Settlement of Investment Disputes Between States and

Nationals of Other States, Mar. 18, 1965, 17 U.S.T. 1720, 575 U.N.T.S. 159.

3. See Campbell McLachlan et al., International Investment Arbitration: Substantive Principles (2008); Christoph H. Schreuer, The ICSID Convention: A Commentary 

(2001).
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4 

B. Comparing International Commercial Arbitration with Other 

Forms of Dispute Resolution 

International commercial arbitration also differs from domestic arbitration and litigation. 

1. International commercial arbitration and domestic arbitration

The U.S. courts have recognized this country’s robust pro-arbitration 

policy.4 The U.S. Supreme Court has indicated that international commercial arbitration is to be treated even more favorably than domestic 

arbitration, stating that

[the] concerns of international comity, respect for the capacities of 

foreign and transnational tribunals, and sensitivity to the need of the 

international commercial system for predictability in the resolution 

of disputes require that we enforce the parties’ agreement, even assuming that a contrary result would be forthcoming in a domestic 

context.5

There are several differences between international and domestic 

arbitration at the procedural level. For example, international commercial arbitration typically involves

• sophisticated, specialized counsel for both parties (as opposed

to domestic consumer, employment, and securities arbitration, 

which may proceed without counsel for one or both of the 

parties);

• highly qualified arbitrators with years of experience in international law and practice (as opposed to securities arbitration, 

which uses “public” arbitrators who lack any insider knowledge of the securities industry, or other forms of arbitration, 

which may not necessarily use lawyers as arbitrators);

• strict policies requiring arbitrators to disclose conflicts of interest, including previous contacts with the parties or with 

counsel (as opposed to labor and employment arbitration, 

which can experience difficulties arising from perceptions regarding arbitrator bias concerning “repeat players”);

4. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24

(1983).

5. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627

(1985) (emphasis added).
International Commercial Arbitration

5 

• arbitration agreements negotiated by sophisticated players at

arm’s length (as opposed to consumer or employment arbitration, which can involve contracts of adhesion signed by laypersons with no real understanding of arbitration or its alternatives);

• highly formal procedures, often dictated by detailed institutional rules of procedure and requiring extensive pre- and

post-hearing written submissions, and involving days, if not

weeks, of hearings (as opposed to consumer, labor, and employment arbitration, which use very little in the way of written submissions and evidence, and which emphasize short and

informal hearings);

• complex legal claims involving large sums of money, often

ranging in the millions or billions of dollars (as opposed to

consumer, labor, and employment arbitration, which often involve simple legal issues and small amounts in dispute); and

• extensive reliance on statutes, judicial precedents, international treaties, and other legal authorities (as opposed to consumer, labor, and employment arbitration, which often involve less

complex questions of substantive and procedural law).

2. International commercial arbitration and international litigation

International commercial arbitration also reflects certain distinct qualities when compared with international litigation. For example, international commercial arbitration provides

• an effective and reliable means of enforcing foreign arbitral

awards through use of various international treaties (as opposed to international litigation, which requires U.S. parties to 

rely primarily on unpredictable principles of international 

comity, since the United States is not a party to any multilateral agreements on the enforcement of civil judgments);

• a faster route to the final determination of the matter as a result of limited judicial review (as opposed to international litigation, which can involve multiple appeals and the possible 

need for enforcement in various jurisdictions through the 

comity-based procedure noted above);

• a single forum in which to resolve disputes (as opposed to international litigation, which can involve multiple proceedings 
International Commercial Arbitration

6 

in different jurisdictions, particularly in cases in which there is 

no enforceable choice of forum clause); 

• neutral decision makers free from national or political prejudices (as opposed to international litigation, which can subject

parties to bias (or perceived bias) from national courts that favor their own citizens); 

• adjudication by persons with extensive experience in international law and commerce (as opposed to international litigation, which may not involve decision makers who are expert 

in complex commercial matters or international trade); and

• a purposeful and time-tested blend of common law and civil

law procedures (as opposed to international litigation, which 

typically gives one party a home-court advantage in terms of 

procedure). 

Some in the legal community find international litigation in national courts so problematic that arbitration no longer is considered an 

“alternative” means of resolving disputes in the international commercial realm. Instead, arbitration has become the only realistic method of 

resolving disputes arising out of cross-border transactions. 

The cornerstone of the international arbitral regime is the 1958

United Nations Convention on the Recognition and Enforcement of 

Foreign Arbitral Awards,6 more commonly known as the New York 

Convention. With 147 state parties, the New York Convention revolutionized global commerce by creating a neutral, reputable, and effective means of resolving international legal disputes. Although several 

other international treaties on arbitration exist, the only other one that 

U.S. courts will regularly encounter is the Inter-American Convention 

on International Commercial Arbitration of 1975,7 more commonly 

known as the Panama Convention.

Both the New York and Panama Conventions have been incorporated into domestic U.S. law through the Federal Arbitration Act 

6. See United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2518 [hereinafter New York Convention].

7. See Inter-American Convention on International Commercial Arbitration of

1975, Pub. L. No. 101-369, 104 Stat. 448 (1990) [hereinafter Panama Convention].
International Commercial Arbitration

7 

(FAA).8 The two treaties, which are similar in many ways, are to be 

applied uniformly.9 For this reason, much of the discussion in this 

guide refers only to the New York Convention, although the principles 

typically apply equally to the Panama Convention.

Given its vast geographic scope, the New York Convention arises 

more frequently in U.S. practice than the Panama Convention does. 

However, when both treaties apply, the Panama Convention takes 

precedence if a majority of the parties to the arbitration agreement are 

from countries that have ratified or acceded to the Panama Convention and also are members of the Organization of American States.10 

III. Fundamental Concepts in International Commercial

Arbitration

Although this guide focuses on matters that arise in U.S. federal 

courts, it is necessary to provide some general background information about arbitral procedure to demonstrate how and why certain 

disputes end up in court in the first place. Putting judicial disputes in 

context can illustrate why international law requires national courts to 

adopt certain standards or procedures. This part provides a brief introduction to the fundamental concepts in international commercial 

arbitration, laying the groundwork for later discussion. 

A. Institutional Arbitration Versus Ad Hoc Procedures 

Although there is no requirement that an international commercial 

arbitration be administered by an arbitral institution, parties often find 

it useful to seek the assistance of one of the many organizations specializing in the resolution of international disputes. These organizations, which may be based in the United States or elsewhere, typically 

provide two different services. 

First, arbitral institutions administer arbitrations, providing a variety of types of practical assistance to the parties. For example, an arbitral institution can help with the selection of the arbitral tribunal, con8. See 9 U.S.C. § 201 (2012) (the New York Convention); see also id.§ 301 (the

Panama Convention).

9. See House Report No. 501, 101st Cong., 2d Sess. 4 (1990), reprinted in 1990

U.S.C.C.A.N. 675, 678; DRC, Inc. v. Republic of Honduras, 774 F. Supp. 2d 66, 71 

(D.D.C. 2011); Gary B. Born, International Commercial Arbitration 104 n.615 (2009).

10. See 9 U.S.C. § 308.
International Commercial Arbitration

8 

sider challenges to individual arbitrators, and facilitate communications between the parties and the tribunal. Second, arbitral institutions 

publish procedural rules for use in individual arbitrations. These rules 

offer a number of benefits, including neutrality, consistency, and predictability. Published rules typically allow for a great deal of flexibility 

and discretion on the part of the arbitral tribunal while also providing 

time-tested solutions to problems that routinely arise in international 

disputes. 

Arbitrations that are not administered by an institutional body 

proceed ad hoc. Some ad hoc arbitrations are truly independent of institutional influence, with all procedures determined by the parties 

and/or arbitrators themselves. However, it can be both risky and timeconsuming for parties to design a complete set of individualized procedures. Therefore, parties can decide to adopt procedural rules published by an arbitral institution, without having the institution administer the proceeding. These arbitrations still are referred to as ad hoc

proceedings, even though they are governed by published procedural 

rules.

Parties in international commercial arbitration are free to adopt 

virtually any type of rule set that they like. Procedural rules need not 

be specifically designed for use in an international dispute, nor must

any institution that administers the proceeding be based in a country 

that has a connection to the parties, the arbitration, or the dispute. 

As the use of international commercial arbitration has grown, so, 

too, has the number of procedural rules available to parties. While 

some of these rules are of recent origin, others have been in place for 

decades. Some of the more well-established and well-respected arbitral 

rule sets include those published by

• the International Chamber of Commerce (ICC);

• the London Court of International Arbitration (LCIA);

• the Swiss Chambers of Commerce; and

• the Stockholm Chamber of Commerce (SCC).

More recent arrivals on the international scene include rules published by

• the China International Economic and Trade Arbitration Center (CIETAC); and 
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9 

• the International Centre for Dispute Resolution (ICDR), which

is associated with the American Arbitration Association

(AAA).

Each of these organizations’ arbitration rules can be obtained from 

their websites. 

Not every set of arbitral rules is associated with an arbitral institution. For example, the United Nations Commission on International 

Trade Law (UNCITRAL) promulgated its own set of arbitral rules in 

1976 (amended in 2010) even though UNCITRAL does not administer 

arbitrations.

11 

The UNCITRAL Arbitration Rules were developed specifically for 

use in ad hoc proceedings and were instrumental in helping standardize international arbitral procedures worldwide. The rules were also

innovative, particularly with respect to provisions regarding situations 

in which the parties were having difficulties in selecting or challenging 

an arbitrator. According to both the new and amended rules, the Secretary General of the Permanent Court of Arbitration at The Hague 

may designate an appointing authority to assist with the selection or 

challenge of arbitrators in cases in which the parties cannot agree on 

an appropriate procedure themselves. This approach eliminates the 

need for judicial assistance in the area of arbitrator challenges and selection. 

B. Sources of Legal Authority 

International commercial arbitration draws upon a diverse mix of legal 

authorities. Some of these authorities are promulgated by various state 

entities and are thus “public,” while other authorities arise from the 

agreement of the parties and are thus “private.” Both forms of authority are central to the arbitration process and must be taken into consideration by both judges and arbitrators. However, not every type of authority is relevant to every issue. 

11. See UNCITRAL Arbitration Rules, G.A. Res. 31/98, UNCITRAL, 31st Sess.,

Supp. No. 17 at 34, U.N. Doc. A/31/17 (Apr. 28, 1976), available at http://www. 

uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf; UNCITRAL Arbitration Rules, G.A. Res. 65/22, U.N. Doc. A/RES/65/22 (as revised in 2010), available at

http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rulesrevised-2010-e.pdf. 
International Commercial Arbitration

10

 International commercial arbitration also involves a number of 

legal authorities that are not used in litigation. Some materials that are 

familiar from litigation may be used differently in proceedings related 

to international arbitration. This unique approach to legal authorities 

arises not only because of the high degree of party autonomy in arbitration, but also because of the specific way in which international 

commercial arbitration melds practices and procedures found in both 

the common and civil law. 

The following subsections provide a brief summary of how legal

materials are used in international commercial arbitration. The discussion also provides insights into some of the fundamental principles of 

international commercial arbitration. 

1. Substantive law

Arbitration and litigation address the substance of legal disputes in 

very similar ways. Arbitral tribunals use the law or legal principle that 

is chosen by the parties or, in the absence of party agreement, the law 

or legal principle that the tribunal determines to be appropriate, typically through the application of standard choice of law (i.e., conflict of 

law) analyses. In this respect, tribunals’ actions are very similar to 

those of courts.12 

However, international commercial arbitration differs from other 

forms of adjudication in that international commercial arbitration allows the parties or the arbitrators to decide that the substance of the 

dispute is not to be governed by the law of a particular country but 

instead by reference to general principles of law, such as those found 

in the lex mercatoria or encompassed in the International Institute for 

the Unification of Private Law (UNIDROIT) Principles of International 

Commercial Contracts.

13 Substantive disputes also may be governed 

by the United Nations Convention on Contracts for the International 

Sale of Goods (sometimes known as the Vienna Convention for the 

12. See Gibson Guitar Corp. v. MEC Imp. Handelsgesellschaft GmbH, 198 F.3d

245 (table), No. 98-6046, 1999 WL 1073651, at *3 (6th Cir. Nov. 17, 1999) (noting 

that the arbitration agreement gave the arbitrator the power to make choice of law 

determinations).

13. See UNIDROIT Principles of International Commercial Contracts, art. 1.6(2),

UNIDROIT Principles 2004, available at http://www.unidroit.org/english/principles/

contracts/principles2004/integralversionprinciples2004-e.pdf.
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11

International Sale of Goods, but more commonly referred to as the 

CISG), which is a self-executing treaty under U.S. law that applies automatically to transactions involving the international sale of goods 

between parties who reside in contracting states.

14 

Although parties can opt out of the CISG, some do not. This can 

lead to surprises, since the CISG differs in several key regards from 

Article 2 of the Uniform Commercial Code (UCC), the provision that 

governs domestic sales of goods and that is often (erroneously) assumed to apply in international matters.15

Because parties usually want their disputes to be determined in 

accordance with international commercial practices and principles, it 

is not uncommon for one of these internationally oriented legal regimes (i.e., the UNIDROIT Principles or the CISG) to apply. In such 

cases, courts have very limited ability to review the arbitrators’ determinations regarding the choice of substantive law, since matters involving choice of law are for the arbitral tribunal to decide.16 

Applying general or transnational principles of law should not be 

confused with deciding a matter primarily by reference to certain equitable principles. Most arbitral rules and statutes now forbid arbitrators 

to decide a dispute on this basis except with the express permission of 

the parties. Absent this express authority, arbitral tribunals follow the 

governing legal principles, although those principles may, of course, 

involve equitable considerations. 

 Different substantive laws may apply to different aspects of an arbitral proceeding. For example, the law that governs the issue of the

validity of an arbitration agreement might be different from the law 

that governs the merits of the dispute. It is therefore important to distinguish between the different legal issues under discussion and apply 

the law that is appropriate to each of those issues. 

14. See United Nations Convention on Contracts for the International Sale of

Goods, Apr. 11, 1980, S. Treaty Doc. No. 98-9 (1984), 1489 U.N.T.S. 3, available at 

http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html; Christopher C. Kokoruda, The U.N. Convention on Contracts for the International Sale of 

Goods—It’s Not Your Father’s Uniform Commercial Code, 85 Fla. B.J. 103, 103 (June 

2011).

15. See U.C.C., art. 2 (2011); Kokoruda, supra note 14, at 103.

16. See Zurich Ins. Co. v. Ennia Gen. Ins. Co., 882 F. Supp. 1438, 1440 (S.D.N.Y.

1995).
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12

2. Procedural law

Identifying and applying the appropriate procedural law is a much 

more difficult task in international commercial arbitration than it is in 

international litigation. There is a wide variety of legal authorities 

from which to choose, and it can be difficult to determine which authority governs which procedural issue.

The process is further complicated by the fact that there are some 

procedures that are entirely internal to the arbitration itself and some 

procedures that involve interactions between the arbitral tribunal and 

the court. No single law governs all of these issues, nor can a single 

interpretive rule be followed in all instances. Instead, it is often best to 

consider procedural disputes on a motion-by-motion basis.

17

Courts and arbitrators rely on seven different types of authority to 

determine procedural issues in international commercial arbitration, 

namely:

• international conventions and treaties;

• national statutes on arbitration; 

• case law; 

• arbitral rules;

• agreements between the parties; 

• arbitral awards; and 

• scholarly works (treatises, monographs, and articles).

The following discussion defines each of these authorities in international commercial arbitration and describes how they are used.

a. International conventions and treaties

The United States has ratified two treaties concerning international 

commercial arbitration: the New York Convention and the Panama 

Convention.

18 Both instruments address the recognition and enforcement of foreign arbitral awards, which means that these treaties are 

cited regularly in international enforcement proceedings in U.S. 

courts. The two conventions apply not only to arbitrations seated outside of the United States but also to certain arbitrations seated within 

the United States.

19

 

17. See infra notes 109–361 and accompanying text.

18. See New York Convention, supra note 6; Panama Convention, supra note 7. 

19. See infra notes 50–82 and accompanying text.
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13

Although the primary purpose of the New York and Panama Conventions is to outline the means of enforcing certain types of arbitral 

awards, these treaties apply in other proceedings as well. Parties seeking to compel arbitration often rely on language found in Article II(1) 

of the New York Convention indicating that a court “shall” refer a dispute to arbitration if the dispute falls within the scope of the convention. 

The New York and Panama Conventions have been incorporated 

into domestic U.S. law through Chapters 2 and 3 of the FAA, respectively.20 As such, the two conventions not only constitute binding federal law but also reflect the international treaty obligations of the 

United States.

21 This dual role is important to remember, for there is a 

“very specific interest of the federal government in ensuring that its 

treaty obligation to enforce arbitration agreements covered by the 

Convention finds reliable, consistent interpretation in our nation’s 

courts.”22 

When construing the New York and Panama Conventions, U.S. 

courts must look beyond domestic policies and practices, and take international norms into consideration. This approach is necessary because the primary purpose of the two conventions is to “encourage the 

recognition and enforcement of commercial arbitration agreements in 

international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the 

signatory countries.”23

There is one important difference between the New York and Panama Conventions. Article 3 of the Panama Convention states that the 

20. See 9 U.S.C. §§ 201, 301.

21. See Medellin v. Texas, 552 U.S. 491, 504–05 (2008).

22. Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co., 500 F.3d 571,

579 (7th Cir. 2007).

23. Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974) (discussing New

York Convention); see also House Report No. 501, 101st Cong., 2d Sess. 4 (1990), 

reprinted in 1990 U.S.C.C.A.N. 675, 678 (requiring New York and Panama Conventions to be construed in a similar manner). The International Council for Commercial 

Arbitration (ICCA) has compiled a judge’s guide to the interpretation of the New York 

Convention. See International Council for Commercial Arbitration, ICCA’s Guide to 

the Interpretation of the 1958 New York Convention (created with the assistance of 

the Permanent Court of Arbitration at the Peace Palace, The Hague), available at 

http://www.arbitration-icca.org/publications/NYC_Guide.html. 
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14

arbitrators shall adopt the procedural rules of the Inter-American 

Commercial Arbitration Commission in any case in which the parties 

have not made an express agreement regarding the governing procedural rules.24 Thus, in cases involving the Panama Convention, a U.S. 

court could be required to consult the Panama Convention to determine or confirm the appropriate procedure. The New York Convention has no analogue.

b. National statutes on arbitration

As important as international treaties on arbitration are, they concern

a very limited number of issues. More extensive guidance can be 

found in national statutes on arbitration. The United States’ national 

statute on arbitration is the Federal Arbitration Act (FAA).25 However, 

U.S. judges may need to consider the arbitration laws of other nations 

on occasion.26 Questions regarding the circumstances in which foreign 

law applies are best handled on a motion-by-motion basis and are discussed in infra Part IV. 

 National laws on arbitration address a broader range of subjects 

than international treaties do, but most are nevertheless limited in 

scope. These statutes focus primarily on the relationship between the 

court and the arbitration, rather than on the procedures to be used 

during the arbitration itself. National statutes cannot be considered 

analogous to codes of evidence or civil procedure, since laws on arbitration typically do not address many of the procedures internal to 

arbitration. Instead, these statutes constitute the primary source of 

authority for questions regarding whether and to what extent a court 

is competent to undertake certain actions relating to an international 

commercial arbitration. 

Sometimes the national arbitration law resolves an issue independently, without requiring the court to have recourse to any other 

source of law. Other times, national arbitration provisions may need to 

24. See Panama Convention, supra note 7, art. 3; Inter-American Commercial

Arbitration Commission Rules of Procedure, as amended April 1, 2002, 22 C.F.R. pt. 

194, app. A.

25. See 9 U.S.C. §§ 1–307.

26. See, e.g., Mediterranean Shipping Co. S.A. Geneva v. POL-Atlantic, 229 F.3d

397, 406 (2d Cir. 2000) (considering scope of arbitral powers under the English Arbitration Act).
International Commercial Arbitration

15

be construed in tandem with another legal authority. For example, 

motions to enforce an arbitral award typically fall under one of the 

international treaties on arbitration, but treaty provisions may in some 

jurisdictions be supplemented by the national statute on arbitration.

Article III of the New York Convention contemplates this possibility 

specifically, stating that “[e]ach Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules 

of procedure of the territory where the award is relied upon, under the 

conditions laid down in the following articles.” As a result, courts 

need to consider the requirements of both the New York Convention 

and U.S. law. 

U.S. federal courts sometimes have to consider whether and to 

what extent an issue is governed by the arbitration statute of an individual U.S. state. This analysis may give rise to questions about 

whether the FAA has preempted that particular state provision.27 For 

example, it appears that parties may agree to have U.S. state arbitration 

law govern their arbitration agreement so that they can contract for 

expanded judicial review, which is prohibited under the FAA.28

U.S. courts regularly rely on the FAA to identify the scope of judicial authority concerning a variety of matters, including the court’s 

ability to compel or aid arbitration; stay litigation; set aside, confirm, 

or enforce arbitral awards; appoint arbitrators; remove a dispute from 

state court; and appeal certain orders relating to arbitration. The FAA 

also establishes federal jurisdiction in matters involving international 

arbitration arising under the New York and Panama Conventions and 

gives domestic effect to the two treaties. The FAA itself is outlined in 

infra Part III.C. 

 It is beyond the scope of this guide to consider in detail the content of any statute other than the FAA, although brief reference should 

be made to the UNCITRAL Model Law on International Commercial 

Arbitration (commonly referred to as the Model Arbitration Law or

27. See Volt Info. Sciences v. Board of Trustees of Leland Stanford Junior Univ.,

489 U.S. 468, 477–78 (1989).

28. See Hall Street Assoc. LLC v. Mattel, Inc., 552 U.S. 576, 590 (2008); Nafta

Traders, Inc. v. Quinn, 339 S.W.3d 84, 96–97 (Tex.), cert. denied, 132 S. Ct. 455 

(2011).
International Commercial Arbitration

16

MAL).29 The MAL, which was drafted in 1985 and amended in 2006, 

was intended to act as a template for nations that wanted to reform 

their statutory approach to international commercial arbitration. The 

MAL has been adopted in whole or in part by sixty-five countries and 

seven U.S. states, and has been instrumental in helping to harmonize 

the law relating to international arbitration. 

The MAL contains a number of distinctive elements that will be 

discussed throughout this guide. However, it should be noted that although most national statutes on arbitration do not include provisions 

regarding arbitral procedure, some jurisdictions are modifying their 

approach as a result of the MAL. The MAL supplements the usual

statutory provisions concerning the relationship between the court 

and the arbitral tribunal with certain default rules addressing arbitral 

procedure, found in Chapter V of the MAL, although the parties may 

agree to use alternative procedures. 

 The United States has not adopted the MAL at the federal level, 

but U.S. courts may be asked to address matters governed by foreign 

law based on the MAL. In such cases, judges should not be surprised 

to see parties introducing comparative legal research to show how a 

particular provision of the MAL has been interpreted in other jurisdictions, including the nation whose law governs the issue. UNCITRAL 

has specifically stated that the MAL was intended to be applied consistently across national borders, which means that parties may refer 

to international consensus on some matters. 

c. Case law

Although case law plays a central role in U.S. litigation, international 

commercial arbitration often involves issues that are not governed by 

U.S. law. These matters may not be determined or determinable by 

case law in the same way that domestic issues are. 

To understand how case law is treated in international commercial 

arbitration, it is necessary to understand how judicial opinions are 

29. See UNCITRAL Model Law on International Commercial Arbitration,

UNCITRAL, 18th Sess., Annex 1, U.N. Doc. A/40/17 (June 21, 1985), revised by Revised Articles of the UNCITRAL Model Law on International Commercial Arbitration, 

UNCITRAL, 39th Sess., Annex 1, U.N. Doc. A/61/17 (July 7, 2006), available at

http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.

html. 
International Commercial Arbitration

17

used in both the common law and civil law traditions. Common law 

lawyers tend to rely heavily on judicial opinions as a primary source of 

authority. Although statutes are important, subsequent judicial interpretations of statutory provisions are often equally, if not more, persuasive to common law decision makers. Scholarly commentary is relied on rarely.

The situation is different in civil law countries. There, statutes are 

the primary source of authority, and the first task of a judge is to identify which of several competing statutory provisions governs the issue 

in question. Then the judge applies the law to the facts of the dispute.

However, civil law codes can be difficult to apply. At this point, 

judges look to see how other authorities have handled issues similar to 

the one at bar. Here the common law and civil law diverge, for although judges in both traditions look to previously published judicial 

opinions, civil law judges are as likely to turn to scholarly treatises to 

determine how the matter ought to be decided.30 Therefore, it is something of a misperception to say that the civil law does not follow precedent, for civil law courts do aim to provide consistent judgments over 

time. However, the extent to which civil law judges rely on precedent 

may vary from jurisdiction to jurisdiction and issue to issue.

31

Even those civil law judges who do rely on precedent do not do so 

in quite the same way or for quite the same purposes as common law 

judges. This interpretive distinction is rooted in the way judicial opinions are reasoned and written in the two legal traditions. 

Judicial opinions written by civil law judges are much shorter and 

more conclusory than those written by common law judges. Because 

there is so little explicit judicial reasoning in a published civil law 

opinion, case law provides courts with little guidance on how to address similar disputes in the future. Although the courts know the 

outcome of the earlier dispute, a judge will not necessarily be able to 

glean the reasoning behind the decision. Scholarly works fill this gap 

 

30. See Empresa Colombiana de Vías Férreas (Ferrovías) v. Drummond Ltd., 24 

Oct. 2003—Consejo de Estado, Sala de lo Contencioso Administrativo, Seccion Tercera [Council of State, Administrative Chamber, Third Section], No. 25.25, ¶ 8, aff’d, 

22 Apr. 2004, No. 24.261, ¶ 25, in Albert Jan van den Berg (ed.), XXIX Y.B. Comm. 

Arb. 643 (2004) (demonstrating Colombian court’s reliance on both judicial precedent and scholarly authorities).

31. See Born, supra note 9, at 2957–59.
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18

by providing in-depth analysis of the various statutory texts and considering the issues holistically, rather than on a limited case-by-case 

basis. Together, these factors lead civil law judges to give significant 

weight to scholarly commentary as a supplement to judicial precedent. 

 This distinction is important to understand for two reasons. First, 

a federal court dealing with a matter involving international commercial arbitration may be asked to consider a point governed by foreign 

law. To decide that issue, the court must determine what was required 

under that foreign law and therefore must understand the relative importance of the various types of authority in that jurisdiction. 

Second, federal courts may be asked to review certain issues decided by the arbitral tribunal, which could raise questions about the 

legal authorities relied upon by the arbitrators. While it is generally 

inappropriate for courts to review arbitrators’ decisions as to the 

weight of various authorities,

32 judges who understand how legal resources are used in different legal systems are less likely to question an 

arbitrator’s reasoning simply as a result of a common-law-based conception about what constitutes a “proper” form of legal authority. 

d. Arbitral rules

Parties to an international commercial arbitration often agree to adopt 

any one of a wide variety of procedural rules, regardless of whether the 

arbitration is administered or ad hoc. There are virtually no restrictions on the type of rules that can be used in an international arbitral 

proceeding. Most arbitral rules indicate that their provisions apply unless the parties agree otherwise. However, some rule sets include provisions from which the parties cannot derogate. For example, parties 

to an ICC arbitration may not contract around provisions regarding 

the scrutiny of the draft award by the International Court of Arbitration of the ICC.33 

Arbitral rules focus primarily on matters of internal procedure and 

are therefore most relevant to the arbitral tribunal. However, many 

rule sets also include some provisions outlining the relationship be32. See Zurich Ins. Co. v. Ennia Gen. Ins. Co., 882 F. Supp. 1438, 1440 (S.D.N.Y.

1995). 

33. See International Chamber of Commerce (ICC) Rules of Arbitration, effective

Jan. 1, 2012, art. 27, available at http://www.iccwbo.org/court/arbitration/id4199/

index.html. 
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19

tween the tribunal and the court and therefore may be relevant to certain jurisdictional questions.

34 As a general rule, judges defer to arbitral tribunals on matters of procedure, since most arbitration agreements, national statutes on arbitration, and procedural rules give the 

arbitrators a great deal of discretion in such matters.35 However, arbitral discretion is not unbounded; indeed, the use of published procedural rules is one of the key methods by which the parties agree to 

limit and define the power of the arbitral tribunal. 

Therefore, courts occasionally need to determine whether the procedure used by the tribunal was consistent with the parties’ agreement 

and fundamental notions of due process.36 When construing the terms 

of the parties’ agreement—including with respect to the interpretation 

of any relevant rules—courts must consider what legal authorities are 

relevant to the determination of the issue at bar.

 Arbitral rules are not U.S. laws. Instead, these rules of procedure 

have been promulgated by specialized arbitral bodies such as the ICC, 

the ICDR, the LCIA, or UNCITRAL, and adopted by the agreement of 

the parties. At the time the rules were adopted—which was in all likelihood at the time the underlying transaction was concluded, typically 

years before the dispute in question arose—there may not have been 

any indication that some aspect of arbitral procedure would be heard 

in a U.S. court.

 It is commonly accepted that parties choose arbitral rules based on 

an international understanding of how the rules would be interpreted 

and applied rather than on the perspective of a particular nation. This 

international understanding is reflected in a variety of sources, including not only U.S. case law but also published arbitral awards construing the relevant language, scholarly commentary, and judicial opinions from other jurisdictions. These sources contribute to and reflect

the international understanding of the procedural rules in question 

34. See id. art. 28; International Centre for Dispute Resolution (ICDR) International Arbitration Rules, effective June 1, 2009, arts. 21(3), 37(8), available at http://

www.adr.org; London Court of International Arbitration (LCIA) Arbitration Rules, 

effective Jan. 1, 1998, arts. 22.2, 23.4, 25.3, 26.9, available at http://www.lcia.org/

Dispute_Resolution_Services/LCIA_Arbitration_Rules.aspx#. 

35. See Indus. Risk Ins. v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434,

1443–44 (11th Cir. 1998); Telenor Mobile Commc’ns AS v. Storm LLC, 524 F. Supp. 

2d 332, 359, 361 (S.D.N.Y. 2007), aff’d, 584 F.3d 396 (2d Cir. 2009).

36. See 9 U.S.C. § 10 (2012); New York Convention, supra note 6, art. V.
International Commercial Arbitration

20

and are therefore relevant to what these particular parties intended 

and expected when they adopted the provisions. Accordingly, U.S. 

courts will need to consult a variety of sources when construing matters involving arbitral rules.

Most arbitral rules address a relatively standard set of issues that 

are sufficient for most purposes. However, there are a few potentially 

contentious matters that are not included in the normal procedural 

rules. These issues are covered in supplemental provisions that can be 

adopted as necessary by arbitrators and parties. The two most important rule sets were promulgated by the International Bar Association (IBA) and consist of the IBA Rules on the Taking of Evidence in 

International Arbitration (published in 1999 and amended in 2010)

and the IBA Guidelines on Conflicts of Interest in International Arbitration (published in 2004).

37 These supplemental rules have been 

growing steadily in importance over the years and have been deemed 

highly persuasive indications of international procedural norms by a 

growing number of arbitrators and courts.38 

e. Agreements between the parties

International commercial arbitration is based on the concept of party 

autonomy, which means that the intent of the parties controls the 

question whether the dispute is to be arbitrated as well as what procedure is to be used to resolve that dispute.39 Parties are allowed to adopt 

a wide variety of procedures in international arbitration, even those 

(such as documents-only or fast-track proceedings) that are not available in litigation. When it comes to procedural issues, the arbitral tribunal, rather than the court, determines the terms of the parties’ 

agreement.

40 

37. See IBA, Guides, Rules and Other Free Materials, available at http://www.

ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx.

38. See New Regency Prod. Inc. v. Nippon Herald Films, Inc., 501 F.3d 1101,

1110 (9th Cir. 2007) (citing IBA Guidelines); In re Caratube Int’l Oil Co., LLP, 730 F. 

Supp. 2d 101, 107 (D.D.C. 2010) (citing IBA Rules).

39. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002); Volt Info.

Sciences v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 

(1989).

40. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452–53 (2003) (plurality

opinion).
International Commercial Arbitration

21

f. Arbitral awards

Of the various types of legal authority available in international commercial arbitration, arbitral awards are perhaps the most misunderstood. Even though they constitute a private (i.e., non-stategenerated), rather than public, source of authority, arbitral awards

from international proceedings have long been available in collected 

series and yearbooks that are similar to case reporters. Many of these 

awards are also available on specialized subscription databases, such as 

kluwerarbitration.com. A growing number are appearing on Westlaw 

and LexisNexis as well.

While publishers remove various pieces of identifying information, 

such as the parties’ names, so as to respect the strictures of confidentiality, published awards often contain a considerable amount of information about the arbitrators’ procedural and substantive decisions, 

similar to what would be seen in a judicial opinion rendered by a 

common law or civil law court. Parties and arbitrators therefore can 

and do review previously rendered awards to determine whether and 

to what extent international consensus exists on a particular point of 

law or procedure. This is similar to what occurs in other areas of arbitration, including employment and labor arbitration and maritime arbitration, where the frequent and consistent use of arbitration leads to 

the creation of something akin to arbitral precedent.

41

Reliance on arbitral awards makes a great deal of sense, given the 

great need for consistency and predictability in international commercial arbitration. Indeed, as one ICC award has noted, “[t]he decisions 

of these tribunals progressively create caselaw which should be taken 

into account, because it draws conclusions from economic reality and 

conforms to the needs of international commerce, to which rules specific to international arbitration, themselves successively elaborated

should respond.”42

41. See Fournelle v. NLRB, 670 F.2d 331, 343–44 (D.C. Cir. 1982); In re Andros

Compania Maritima, S.A. (Marc Rich & Co., A.G.), 579 F.2d 691, 696 (2d Cir. 1978) 

(noting review of 1,200 published awards of Society of Maritime Arbitrators); State 

Farm Mut. Auto. Ins. Co. v. Mallela, Civ. No. CV-00-4923, 2002 WL 31946762, at 

*12 (E.D.N.Y. Nov. 21, 2002), question certified by 372 F.3d 500 (2d Cir. 2004), certified question answered by 4 N.Y.3d 313 (N.Y. 2005). 

42. Interim Award in ICC Case No. 4131, IX Y.B. Com. Arb. 131, 135 (1984).
International Commercial Arbitration

22

Treatment of arbitral awards can vary. Some arbitral awards, referred to as “reasoned” or “fully reasoned awards,” contain detailed

descriptions of the tribunal’s legal and factual analyses. Other awards, 

known as “unreasoned awards,” simply indicate who the prevailing 

party is and what sort of relief is due.

The FAA does not require arbitral awards to be reasoned, and U.S. 

courts have generally held that unreasoned awards are valid and enforceable so long as the parties’ agreement or governing rules did not 

require the arbitral tribunal to provide its reasoning.43 This is equally 

true in the international context.44 Most awards arising out of international commercial arbitration are fully reasoned, pursuant to requirements found in individual arbitration agreements and institutional 

rules.45

The persuasive value of previously published awards will depend 

on the issue in question. For example, arbitral awards often do not 

have a great deal of influence on matters of substantive law, since 

there are other, more authoritative materials available (i.e., “public” or 

state-sponsored sources of law). However, awards carry a great deal of 

weight in other areas of arbitration law and practice, particularly procedural matters such as the interpretation of arbitral rules or the provision of interim relief. These are issues that reside firmly within the 

realm of arbitrator discretion, and arbitral awards are the best source 

of information about how these principles are construed in practice by 

expert international arbitrators. However, courts may be asked to rule 

on these issues as well. The parties may present the court with previously published awards as a form of relevant authority.

Reliance on arbitral awards may be particularly appropriate in the 

international realm for two reasons. First, the kinds of procedural matters discussed in arbitral awards typically are not issues of national

law, and the dispute thus would not be governed by existing judicial 

precedent in any case. Second, these are matters that the parties expected to be resolved in accordance with international commercial and 

 

43. See Stark v. Sandberg, Phoenix & von Gontard, P.C., 381 F.3d 793, 803 (8th 

Cir. 2004); Born, supra note 9, at 2456.

44. See In re Arbitration Between Trans Chem. Ltd. and China Nat’l Mach. Imp. 

& Exp. Corp., 978 F. Supp. 266, 308 (S.D. Tex. 1997), aff’d, 161 F.3d 314 (5th Cir. 

1998).

45. See Born, supra note 9, at 2457.
International Commercial Arbitration

23

legal norms rather than by reference to a single national legal framework. Accordingly, U.S. courts may cite arbitral awards when discussing the relevant international standards.

g. Scholarly works (treatises, monographs, and articles)

U.S. judges are accustomed to scholarly works being used as persuasive authority in litigation. However, scholarly works play a larger role 

in international commercial arbitration than they do in domestic arbitration or litigation. To some extent these works are used more often

because international commercial arbitration reflects an intentional

blend of civil and common law traditions, and the civil law has always 

relied heavily on scholarly works as a source of legal authority.

46 However, academic commentary is also given heightened respect in international commercial arbitration because arbitration is a private form of 

dispute resolution, and much of what goes on during the decisionmaking process is hidden from public view. As a result, there are few 

public records of procedural decisions.

Arbitral awards provide some insights into the conduct of an international arbitration, but the issues discussed there are often tailored 

to the dispute at hand. Arbitral awards provide only a snapshot of certain contested matters rather than an overview of the entire process.

Uncontested issues and routine practices are not discussed in arbitral 

awards.

The lack of information on underlying issues may seem troubling 

to those who are used to the transparency of open courtrooms. However, arbitral procedure is not as secretive or as discretionary as it may 

initially appear. For years, the international arbitral community has 

relied on scholarly commentary, often written by top arbitrators and 

practitioners with years of experience in the field, to describe what 

goes on behind the closed doors of the hearing room. This information 

is not publicly available because arbitral awards may be (1) unpublished and/or (2) unreasoned. Treatises and other scholarly works

provide comprehensive analyses of a wide variety of procedural and 

practical matters that may seem subject to arbitral discretion but are in 

fact largely guided by international consensus and customary practice.

Parties and practitioners rely heavily on these materials at all stages of 

 

46. See supra notes 30–32 and accompanying text.
International Commercial Arbitration

24

the arbitral process: when drafting arbitration agreements, selecting 

arbitral rules, identifying the seat of arbitration, choosing arbitrators,

and deciding what tactical steps to take with respect to judicial relief.

This shared understanding of arbitration results in a highly predictable 

dispute resolution regime, which is precisely what the parties contracted for when they signed their arbitration agreements.47

Although the universe of scholarly works concerning international 

commercial arbitration is expanding rapidly, several works stand out 

as particularly authoritative.

48 These authorities have been recognized 

by various federal courts as persuasive authority.

49

C. U.S. Statutory Regime 

Many judges are familiar with the Federal Arbitration Act (FAA)

through their work on domestic disputes. However, application of the 

legislation in international matters can present complications. 

Structurally, the FAA is relatively simple. Chapters 2 and 3 are 

known as the “international” chapters, since they give domestic effect 

to the New York Convention and the Panama Convention, respectively.50 However, the FAA does not simply incorporate the two conventions into domestic law verbatim and leave it at that, as some foreign 

statutory regimes do. Chapters 2 and 3 include additional provisions 

regarding the application of the two treaties in U.S. courts. As will be 

shown throughout this guide, this approach has created significant 

difficulties at times.

 

47. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 

627 (1985).

48. Born, supra note 9 (substantially revising an earlier edition entitled International Commercial Arbitration in the United States); W. Laurence Craig et al., International Chamber of Commerce Arbitration (2001); Emmanuel Gaillard & John Savage, 

Fouchard, Gaillard, Goldman on International Commercial Arbitration (1999); Julian 

D.M. Lew et al., Comparative International Commercial Arbitration (2003); Nigel 

Blackaby et al., Redfern and Hunter on International Arbitration (2009) (substantially 

revising an earlier edition entitled Law and Practice of International Commercial Arbitration).

49. See Mitsubishi Motors, 473 U.S. at 634 (citing Craig et al.); Polimaster Ltd. v. 

RAE Sys., Inc., 623 F.3d 832, 838–39 (9th Cir. 2010) (citing Born, Gaillard & Savage, 

and Blackaby et al.).

50. See 9 U.S.C. §§ 201, 301 (2012).
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25

Chapter 1 is commonly considered the FAA’s “domestic” chapter.

Nevertheless, it has residual application to international disputes to 

the extent that it “is not in conflict with” Chapters 2 or 3.51 This statutory scheme has led to debates about the breath of Chapter 1’s applicability to disputes arising under either the New York Convention 

or the Panama Convention.

Questions also exist regarding the extent to which the FAA preempts state law. This issue is still under consideration in both the domestic and international realms.

52 Several recent decisions held that 

the New York Convention preempts any provision of domestic law 

that limits the enforceability of arbitration agreements.53 Because Congress has indicated that the New York and Panama Conventions are to 

be construed harmoniously and consistently, these holdings apply

equally to the Panama Convention.54

Although the basic structure of the FAA can be easily described in 

the abstract, difficulties arise in the application of its language. For 

example, it is not always clear whether a dispute falls under Chapter 1

(the “domestic” chapter) or under Chapter 2 or 3 (the “international” 

chapters).

Chapter 1, which was originally enacted in 1925, indicates that it 

applies to both domestic arbitrations and arbitrations involving interstate and foreign commerce.55 These arbitrations must arise out of 

written agreements involving maritime or commercial transactions.56

Chapter 2, enacted in 1970, limits Chapter 1’s broad applicability. For 

example, section 202 states that “[a]n arbitration agreement or arbitral 

award arising out of a legal relationship, whether contractual or not, 

 

51. Id. §§ 208, 307.

52. See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1753 (2011); Preston v. Ferrer, 552 U.S. 346, 349–50 (2008).

53. See Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, London, 543 

F.3d 744, 755 (5th Cir. 2008), reh’g en banc, 587 F.3d 714 (5th Cir. 2009), cert. denied 

sub nom. Louisiana Safety Ass’n of Timbermen–Self Insurers Fund v. Certain Underwriters at Lloyd’s, London, 131 S. Ct. 65 (2010); Rogers v. Royal Caribbean Cruise 

Line, 547 F.3d 1148, 1155 (9th Cir. 2008).

54. See House Report No. 501, 101st Cong., 2d Sess. 4 (1990), reprinted in 1990 

U.S.C.C.A.N. 675, 678; DRC, Inc. v. Republic of Honduras, 774 F. Supp. 2d 66, 71 

(D.D.C. 2011). 

55. See 9 U.S.C. § 1.

56. See id. § 2.
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26

which is considered as commercial, including a transaction, contract, 

or agreement described in section 2 of this title, falls under the [New 

York] Convention.”57 At first, this appears to bring all disputes listed 

in section 2 under Chapter 2, leaving nothing to the exclusive jurisdiction of Chapter 1. However, section 202 then goes on to limit the 

types of disputes to which Chapter 2 applies, stating that “[a]n agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under 

the Convention.”58 This clause returns a subset of disputes to the exclusive jurisdiction of Chapter 1.

Section 202 includes one more provision that brings some disputes that arise out of a relationship between citizens of the United 

States back within the scope of Chapter 2. This occurs when

that relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation 

with one or more foreign states. For the purpose of this section a 

corporation is a citizen of the United States if it is incorporated or 

has its principal place of business in the United States.59

The end result is that Chapter 2 of the FAA applies to

• agreements or awards arising out of an arbitration between a 

U.S. party and a foreign party;

• agreements or awards arising out of an arbitration entirely between foreign parties; and

• agreements or awards arising out of an arbitration entirely between U.S. citizens, but only if there is some sort of international nexus (i.e., “property located abroad, . . . performance 

or enforcement abroad, or . . . some other reasonable relation 

with one or more foreign states”60).

Any agreement or award that falls under Chapter 2 is subject not 

only to the statutory requirements set forth in that chapter, but also to 

the requirements of the New York Convention.

61 Chapter 1 of the FAA 

also has residual application to agreements and awards falling under 

 

57. Id. § 202.

58. Id.

59. Id.

60. Id.

61. See id. § 201.
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27

Chapter 2, to the extent that no inconsistencies between Chapter 1 

and either Chapter 2 or the New York Convention arise.62

Chapter 2 of the FAA does not impose any kind of territorial limitations on arbitrations arising under its provisions. Therefore, Chapter 

2 applies to an arbitration located anywhere in the world, including 

the United States, so long as the definitional test described in section 

202 is met, subject to restrictions on reciprocity and commerciality.

63

Chapter 3, enacted in 1990, incorporates much of Chapter 2 by 

reference. For example, Chapter 3 states that section 202 “shall apply 

to this chapter as if specifically set forth herein, except that for the 

purposes of this chapter ‘the Convention’ shall mean the InterAmerican Convention.”64 However, Chapter 3 also indicates that when 

the requirements of both the New York and Panama Conventions are 

met, the Panama Convention (and thus Chapter 3) shall apply if a majority of the parties are citizens of states that have ratified the Panama 

Convention and that are members of the Organization of American 

States.65

Chapters 2 and 3 are the means by which the New York and Panama Conventions are given domestic effect. Unfortunately, the terms 

used in the FAA do not mirror those used in the New York Convention, which creates significant difficulties for courts attempting to construe the various provisions. Disputes involving the Panama Convention are somewhat less complicated, since the Panama Convention 

simply refers to “[a]n agreement in which the parties undertake to 

submit to arbitral decision any differences that may arise or have arisen between them with respect to a commercial transaction” rather 

than adopting the more complex definitional aspects of Article II of 

the New York Convention.66

The New York Convention governs two types of arbitral awards—

“foreign” and “non-domestic”—rather than “international” awards.

This distinction is found in the Convention itself, which states that it

 

62. See id. § 208.

63. See supra notes 57–60 and accompanying text.

64. 9 U.S.C. § 302.

65. See id. § 305.

66. Panama Convention, supra note 7, art. 1; see also New York Convention, supra note 6, art. II. 
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28

shall apply to the recognition and enforcement of arbitral awards 

made in the territory of a State other than the State where the recognition and enforcement of such awards are sought [i.e., “foreign”

awards], and arising out of differences between persons, whether 

physical or legal. It shall also apply to arbitral awards not considered 

as domestic awards in the State where their recognition and enforcement are sought [i.e., “non-domestic” awards].

67

From the perspective of a U.S. court, a foreign award arises out of 

an arbitration held outside the United States. A non-domestic award 

arises out of an arbitration that is held in the United States but that 

meets one of the three criteria described in section 202 of the FAA:

that is, involves a U.S. party and a foreign party; involves only foreign 

parties; or involves only U.S. citizens but includes some sort of international nexus (i.e., “property located abroad, . . . performance or enforcement abroad, or . . . some other reasonable relation with one or 

more foreign states”).

68

Although Article I(1) refers only to the recognition of awards, the 

New York Convention also applies to motions to compel arbitration by 

virtue of Article II, which indicates that “[e]ach Contracting State shall 

recognize an agreement in writing under which the parties undertake 

to submit to arbitration” certain relevant disputes.69 Therefore, the 

New York Convention governs arbitration agreements as well as arbitral awards.

U.S. courts consider issues arising with respect to both foreign and 

non-domestic agreements and awards. Although foreign awards clearly 

fall within the scope of the New York Convention based on geographic 

criteria, questions occasionally arise regarding the applicability of the 

Convention to arbitrations that are seated outside the United States 

but that are between U.S. citizens and do not involve “property located 

abroad” or “performance or enforcement abroad.”70 Although these are 

clearly “foreign” arbitrations under the New York Convention, U.S. 

courts have occasionally held that Chapter 2 of the FAA does not apply to these types of disputes.71 However, it may be that seating an ar-

 

67. New York Convention, supra note 6, art. I(1).

68. 9 U.S.C. § 202.

69. New York Convention, supra note 6, art. II(1).

70. 9 U.S.C. § 202.

71. See Wilson v. Lignotock U.S.A. Inc., 709 F. Supp. 797, 799 (E.D. Mich. 

1989).
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29

bitration outside the United States creates a reasonable relationship 

with a foreign state sufficient to bring the arbitration within the scope 

of section 202 of the FAA, “at least where this was not an effort to circumvent local regulatory protections.”72 

The New York Convention also applies to “non-domestic” agreements and awards, that is, awards and agreements relating to arbitrations held in the United States, so long as the arbitration involves a 

foreign party or has the requisite international nexus.

73 Nevertheless, it 

remains unclear whether the Convention is applicable to U.S.-seated 

arbitrations in certain situations, most particularly those involving

motions to vacate an award.

74

Courts considering the relevance of the New York Convention to a 

particular dispute must take two additional factors into account. According to the terms of the treaty, contracting states may make two

declarations limiting the applicability of the Convention. These declarations allow a state party to apply the New York Convention only to 

“differences arising out of legal relationships . . . which are considered 

as commercial under the national law of the State making such declaration” and only “on the basis of reciprocity,” meaning that the state 

making the declaration “will apply the Convention to the recognition 

and enforcement of awards made only in the territory of another Contracting State.”75 

 The United States has made both declarations, but U.S. courts 

have construed the term “commercial” so broadly as to include not 

only the prototypical commercial relationships exemplified by the 

purchase and sale of goods between two corporations but also disputes 

involving employers and employees, consumers, shareholders, foreign 

state actors, antitrust issues, foreign regulatory authorities, insurers 

and reinsurers, and maritime matters.76 In addition, courts have concluded that the New York Convention applies to relationships (such as 

those involving contracts regarding the employment of seamen) that 

72. Born, supra note 9, at 293–94 (citing analogies to section 1-105 of the Uniform Commercial Code).

73. See Lander Co. v. MMP Inv., Inc., 107 F.3d 476, 482 (7th Cir. 1997) (holding

that the New York Convention applied to an arbitration that was between two U.S. 

parties and seated in the United States but whose performance was to occur abroad).

74. See infra notes 233–63 and accompanying text.

75. New York Convention, supra note 6, art. I(3).

76. See Born, supra note 9, at 262.
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30

are excluded from the scope of Chapter 1 of the FAA.77 Doubts as to 

whether a contract involves a commercial dispute (and falls under the 

New York Convention) are resolved in favor of the arbitrability of the 

dispute under the Convention.78 

The U.S. declaration regarding reciprocity also has little effect in 

practice. Very few countries have not signed the New York Convention.

79 As a result, a U.S. court seldom will be asked to deny enforcement of an arbitral award based on a lack of reciprocity. Notably, reciprocity under Article I(3) relates only to the place where the award 

was rendered (i.e., whether the arbitral seat is a contracting state) and

not to the nationalities of the parties. 

Confusion sometimes arises as a result of a second provision in the 

New York Convention that mentions reciprocity: “A Contracting State 

shall not be entitled to avail itself of the present Convention against 

other Contracting States except to the extent that it is itself bound to 

apply the Convention.”80 This language is rarely invoked during litigation and has been applied only in cases in which a country is routinely 

behaving in an improperly restrictive manner with respect to its obligations under the Convention.81 This is a very high burden to meet.

 Foreign awards that are rendered in nations that are not parties to 

the New York Convention or Panama Convention are nevertheless 

enforceable in the United States.82 However, the vast majority of proceedings fall under one of the two conventions. 

77. See Rogers v. Royal Caribbean Cruise Line, 547 F.3d 1148, 1155 (9th Cir.

2008).

78. See Francisco v. Stolt Achievement MT, 293 F.3d 270, 274–75 (5th Cir.

2002).

79. See United Nations, Status—1958 Convention on the Recognition and Enforcement of Foreign Arbitration Awards, available at http://www.uncitral.org/ 

uncitral/en/uncitral_texts/arbitration/NYConvention_status.html (listing 147 state 

parties).

80. New York Convention, supra note 6, art. XIV.

81. See Fertilizer Corp. of India v. IDI Mgmt. Inc., 517 F. Supp. 948, 953 (S.D.

Ohio 1981) (refusing to apply Article XIV).

82. See Weizmann Inst. of Sci. v. Neschis, 421 F. Supp. 2d 654, 674 (S.D.N.Y.

2005).
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D. Overview of an International Commercial Arbitration

This section provides a brief overview of the arbitral process, placing 

different judicial proceedings in context and introducing topics that 

will be discussed in more detail in infra Part IV.

1. Drafting stage

Decisions made during the drafting stage can have a significant impact 

on where and when a party may seek judicial assistance as well as the 

shape of the arbitral proceedings. Although parties may alter the terms 

of their arbitration agreement at any time, even after the arbitration 

has begun, the likelihood of reaching a new agreement on a procedural matter is often low once a claim has formally been made. Parties to 

an international transaction may also make their initial agreement to 

arbitrate after the dispute has arisen (known internationally as a compromis), although this does not happen frequently.

2. Prior to or at the initiation of the arbitration

The initiation of a legal claim is a busy time. Many disputes proceed 

straight into arbitration without the need for any judicial intervention, 

but sometimes the parties need the court to resolve preliminary legal 

issues.

Parties may disagree about whether the dispute is to be heard in 

court or arbitration. This can lead to motions being brought in U.S. or 

other national courts regarding the validity of the arbitration agreement and whether arbitration can properly be compelled.

83 Parties 

may seek to initiate parallel proceedings, thus leading to motions for 

an anti-suit injunction.

84

Even parties who agree that their dispute should be heard in arbitration may need the court’s assistance on a particular procedural matter. For example, a court may be asked to help select the arbitral tribunal or issue a preliminary injunction to preserve the status quo.

85

 

83. See infra notes 109–32 and accompanying text.

84. See infra notes 140–49 and accompanying text.

85. See infra notes 154–73 and accompanying text.
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3. During the arbitration

Once the arbitration has begun, most concerns are referred to the arbitral tribunal. However, courts and tribunals share jurisdictional competency over certain matters. This can lead to debates not only over 

the resolution of the dispute itself, but also over the question of who 

should properly hear the matter. Among the issues that can arise in 

court while an arbitration is proceeding are disputes regarding the 

production of evidence or witnesses,

86 the availability of injunctive 

relief, including anti-suit injunctions,

87 and challenges to one of the 

arbitrators.

88

Some countries take the view that judges should not be involved 

in a dispute between the parties while an arbitration is proceeding and 

thus prohibit recourse to the courts until the arbitration has concluded. While the United States does not have such a prohibition, U.S. 

courts generally exercise restraint when asked to assist with an ongoing arbitration so as not to upset the parties’ contractual expectation 

that the dispute will be resolved through arbitral means.89

4. After the arbitration

Most parties in international commercial arbitration voluntarily comply with the terms of the arbitral award.90 Nevertheless, in some cases, 

judicial assistance is needed after the completion of the arbitration. A 

party may seek to have an award vacated or confirmed at the place 

where it was made.

91 Alternatively, a court may be asked to enforce an 

award made in another jurisdiction.

92 Although these proceedings 

seem similar to what occurs in domestic disputes, actions to enforce a 

foreign arbitral award may be brought simultaneously in any number 

of national courts. Parallel proceedings may be filed at this point in the 

process and are considered entirely proper as a matter of international 

law and practice.

 

86. See infra notes 174–221 and accompanying text.

87. See infra notes 224–25 and accompanying text.

88. See infra notes 222–23 and accompanying text.

89. See infra notes 163–73 and accompanying text.

90. See Blackaby et al., supra note 48, ¶ 11.02.

91. See infra notes 233–69 and accompanying text.

92. See infra notes 270–348 and accompanying text.
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E. Jurisdictional Competence

Courts may become involved in an international commercial arbitration in many different ways. Parties may also seek judicial assistance 

from several different national courts, including courts at the seat of 

the arbitration (i.e., the place where the arbitration is legally located, 

which is often named in the arbitration agreement), in the countries in 

which the parties reside, at the location where the injury was suffered,

or at the place where assets are located.

Sometimes—as in the case of enforcement proceedings—parties 

may bring actions in one or all of these venues, at the same time or 

sequentially. Other times, parallel proceedings are neither encouraged 

nor permitted. A party may seek judicial intervention at a proper time 

and regarding a proper issue, but from a court that does not have 

proper jurisdiction over the dispute. When this happens, the issue is 

not one of domestic law, since the judge overseeing the dispute will

ensure that the requirements of national law are met. Instead, the jurisdictional objection arises as a matter of international law and practice. This is different from what happens in domestic arbitration, 

where jurisdictional disputes focus on whether the court or the arbitral tribunal should hear a particular issue. In international proceedings, two jurisdictional issues may be implicated: (1) may the dispute

be heard by a court, and (2) if so, by which court or courts. To answer 

the second question, the U.S. arbitral community has developed the 

concept of “primary” and “secondary jurisdiction.”93

1. Primary and secondary jurisdiction as a choice of forum issue

The concept of primary and secondary jurisdiction is based on language in the New York Convention indicating that a court may refuse 

to enforce an award rendered in another state if the award “has been 

set aside or suspended by a competent authority of the country in 

which, or under the law of which, that award was made.”94 This language has been read as giving some courts (i.e., those with primary 

jurisdiction) preferential status over other courts (i.e., those with secondary jurisdiction).

 

93. See Born, supra note 9, at 1286.

94. New York Convention, supra note 6, art. V(1)(e).
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34

Primary jurisdiction is vested either in the place where the award 

was made (i.e., the arbitral seat) or in the place under whose law the 

award was made. In U.S. practice, this usually turns out to be the same 

place. Secondary jurisdiction exists in any court in the world other 

than that with primary jurisdiction. 

Courts with primary jurisdiction receive preferential treatment 

with respect to certain well-defined issues. Two of the most important 

involve the right to set aside an award95 and the right to address certain procedural matters relating to the internal workings of the arbitration, such as appointment of or challenge to arbitrators or assistance 

in the taking of evidence.

96

Although the language of the New York Convention suggests that

primary jurisdiction could lie with the courts of two different countries (i.e., the place where the arbitration was located and the place

under the law of which the award was made), under U.S. law, the 

place where the arbitration is seated is considered to be the only place 

with primary jurisdiction. The reference to “the law of which[ ] that

award was made” means the procedural law governing the arbitration 

that led to the award.97

In the vast majority of cases, the procedural law of the arbitration 

is that of the arbitral seat. If the parties attempt to choose the law of a 

state other than the seat as the procedural law of the arbitration, the 

arbitral seat retains competence over “external” matters (i.e., the relationship between the courts and the arbitration), while the law that 

has been chosen to control procedural issues governs any “internal” 

matters.98

Numerous difficulties arise when the procedural law is not that of 

the arbitral seat, with regard to both the choice of the court to hear the 

 

95. See infra notes 233–63 and accompanying text.

96. See infra notes 154–62 and 174–221 and accompanying text.

97. New York Convention, supra note 6, art. V(1)(e); see also Steel Corp. of Philippines v. Int’l Steel Servs., Inc., 354 Fed. App’x 689, 692–94 (3d Cir. 2009); Int’l 

Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, 745 F. Supp. 172, 176–77 

(S.D.N.Y. 1990) (noting this phrase does not refer to the law governing the substance 

of the dispute).

98. See Union of India v. McDonnell Douglas Corp. [1993] 2 Lloyd’s Rep. 

(Queens Bench Division (Commercial Court), England) 48, 50–51; Born, supra note 

9, at 1330–31. 
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35

motion and the choice of applicable law.

99 As a result, U.S. courts have

adopted a strong presumption that parties intend the procedural law 

of the arbitration to be that of the arbitral seat. As the Fifth Circuit has 

noted:

Under the New York Convention, an agreement specifying the place 

of the arbitration creates a presumption that the procedural law of 

that place applies to the arbitration. Authorities on international arbitration describe an agreement providing that one country will be 

the site of the arbitration but the proceedings will be held under the 

arbitration law of another country by terms such as “exceptional”; 

“almost unknown”; a “purely academic invention”; “almost never 

used in practice”; a possibility “more theoretical than real”; and a 

“once-in-a-blue-moon set of circumstances.” Commentators note 

that such an agreement would be complex, inconvenient, and inconsistent with the selection of a neutral forum as the arbitral forum.100

Any deviation from this principle must be both clear and explicit. 

Choice of law provisions in the underlying contract usually are not 

considered to include matters of procedure but instead are interpreted 

as referring only to matters of substance.

101 

U.S. courts must establish jurisdiction as a matter of international 

law and domestic law. This requirement gives rise to a few interesting 

issues.

 Federal subject matter jurisdiction is relatively straightforward. 

The FAA clearly states that “[a]n action or proceeding falling under 

the Convention shall be deemed to arise under the laws and treaties of 

the United States” and that district courts have “original jurisdiction 

. . . regardless of the amount in controversy.”102 Venue is found in “the 

place designated in the agreement as the place of arbitration if such 

place is within the United States” or “any court in which save for the 

arbitration agreement an action or proceeding with respect to the controversy between the parties could be brought.”103 

Questions regarding personal jurisdiction are more complicated.

Private parties—whether foreign or domestic—are entitled to the due 

99. See supra notes 93–108 and accompanying text.

100. Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas 

Bumi Negara, 364 F.3d 274, 291 (5th Cir. 2004) (citations omitted).

101. See infra notes 284–95 and accompanying text.

102. 9 U.S.C. §§ 203, 302 (2012).

103. Id. §§ 204, 302.
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process protections found in the U.S. Constitution, and all of the necessary constitutional tests regarding personal jurisdiction must be met 

with respect to private parties.

However, recent decisions have held that foreign states are not 

“persons” under the U.S. Constitution and are therefore not entitled to 

the protection of the Due Process Clauses.104 For example, in Frontera 

Resource Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic,

105 an 

oil company based in the Cayman Islands brought a motion to enforce 

an arbitral award rendered by a Swedish arbitral tribunal against the 

State Oil Company of the Azerbaijan Republic. Although earlier precedent had suggested that foreign states were entitled to the protection 

of the Due Process Clauses of the U.S. Constitution, the court here

determined that a foreign state could not be treated more favorably 

than an individual U.S. state, which was not a constitutional “person” 

under South Carolina v. Katzenbach.106 However, the court in Frontera 

did not determine whether and to what extent this principle extends 

to other state-affiliated entities, such as a state-owned foreign corporation.107 Issues relating to foreign states and state agencies are discussed 

below.

108

2. Primary and secondary jurisdiction as a choice of law issue

The concept of primary and secondary jurisdiction also is relevant to 

choice of law issues. As a matter of U.S. practice, the national arbitration law of the country with primary jurisdiction applies to various 

procedural matters unless the parties have decided otherwise. This 

means that U.S. courts may have to apply foreign law, using the national arbitration law of the place of arbitration on matters relating to 

arbitral procedure. These default mechanisms involving the choice of 

the national arbitration law of the arbitral seat apply only to certain 

matters of arbitral procedure, not the substantive law that applies to 

the merits of the dispute.

 

104. See Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 

582 F.3d 393, 400 (2d Cir. 2009).

105. Id.

106. 383 U.S. 301, 323–24 (1966).

107. See Frontera, 582 F.3d at 401.

108. See infra notes 377–85 and accompanying text.
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IV. Role of U.S. Federal Courts in International

Commercial Arbitration

A. Role of the Court Prior to or at the Initiation of Arbitral 

Proceedings 

U.S. courts may be asked to resolve a number of issues prior to or at 

the initiation of an international commercial arbitration. Several of the 

more common types of motions are discussed below. 

1. Motions to compel arbitration

The first and perhaps most common motion that might be made at 

this preliminary stage involves a request to compel an international 

commercial arbitration. Under Chapters 2 and 3 of the FAA, a motion 

to compel can be made in the United States regardless of where the 

arbitration is supposed to take place.

109 The technical requirements for 

a motion to compel arbitration appear in Chapter 1 of the FAA, which 

applies to international proceedings by virtue of the residual application provisions of Chapters 2 and 3.110

When considering motions to compel, U.S. federal courts must 

take into account the strong federal policy in favor of international 

commercial arbitration.111 The policy is based on two statutory provisions. First, the FAA mandates that if an arbitration agreement exists 

and “there is a default in proceeding thereunder, the court shall make 

an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.”112 Second, the New York 

Convention requires that

[t]he court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within 

the meaning of this Article, shall, at the request of one of the parties, 

109. See 9 U.S.C. §§ 206, 303 (2012) (stating that “[a] court having jurisdiction 

under this chapter may direct that arbitration be held in accordance with the agreement at any place therein provided for, whether that place is within or without the 

United States”).

110. See id. §§ 4, 208, 307. 

111. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 

627 (1985) (noting arbitration agreements should be enforced in the international 

realm, “even assuming that a contrary result would be forthcoming in a domestic context”).

112. 9 U.S.C. § 4.
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38

refer the parties to arbitration, unless it finds that the said agreement 

is null and void, inoperative or incapable of being performed.113

 This pro-arbitration policy is predicated on the existence of a valid 

arbitration agreement between the parties.114 However, the FAA does 

not specify who should decide questions regarding the validity or existence of an arbitration agreement: the court or the arbitral tribunal. 

Courts must look to other sources of authority to resolve this issue. 

Analysis of the question of “who decides” involves two separate 

but related concepts: separability and competence-competence (or Kompetenz-Kompetenz), known in the United States as the arbitrators’ jurisdiction to determine their own jurisdiction. Separability refers to 

the idea that the existence, validity, and legality of the underlying contract does not necessarily affect the existence, validity, or legality of 

the arbitration agreement.

115 “[U]nless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by 

the arbitrator in the first instance.”116 

 Questions about the validity of the arbitration agreement itself (as 

opposed to the contract in which the arbitration agreement is found) 

raise “gateway” issues. Gateway determinations distinguish between 

those matters that are properly within the jurisdiction of the arbitrator 

and those that are properly within the jurisdiction of the court.117

There is considerable jurisprudence regarding gateway issues in the 

context of domestic arbitration that appears equally applicable to international arbitration.118 

Although domestic case law in this area can give rise to some confusion when applied to international cases, this is primarily a linguistic 

issue rather than a conceptual issue. Gateway issues often involve discussion of “arbitrability,” which is used in the United States to refer to 

“[t]he question whether the parties have submitted a particular dis113. New York Convention, supra note 6, art. II(3).

114. See id.; 9 U.S.C. §§ 2, 4.

115. See Buckeye Check Cashing Inc. v. Cardegna, 546 U.S. 440, 445–46 (2006); 

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 400, 402–04 (1967).

116. Buckeye Check Cashing, 546 U.S. at 445.

117. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83–84 (2002); First 

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995).

118. See Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 155 (3d Cir. 2001) (applying 

First Options in an international dispute).
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39

pute to arbitration.”119 According to this definition, arbitrability is a 

private concern that goes to the scope of the parties’ agreement. 

“Arbitrability” is not defined the same way in other countries, 

where it refers to a public law concern as to whether a country will 

permit a particular subject matter to be resolved through arbitration.

120

This type of arbitrability is not considered very often in U.S. courts 

because the United States has few restrictions on the types of issues 

that can be heard in arbitration.121 

Other countries have declared some types of claims off-limits for 

arbitration.

122 This practice is specifically allowed under the New York 

Convention.

123 

Although the New York Convention allows countries to impose 

some restrictions on arbitrability, those restrictions must be narrowly 

construed. The restrictions also should not be interpreted by reference 

to the national law of a single state, but instead “must be made on an 

international scale, with reference to the laws of the countries party to 

the Convention.”124 

 Both types of arbitrability can be raised in U.S. courts. The domestic understanding of arbitrability (have the parties consented to arbitration) can be considered a gateway issue. The international understanding is implicated in situations in which a U.S. court is asked to 

determine whether an issue can be made subject to arbitration.

125

Courts need to distinguish between the two types of arbitrability, depending on the question at hand.

119. Howsam, 537 U.S. at 84 (citations omitted).

120. See Gaillard & Savage, supra note 48, ¶¶ 532–33 (1999). 

121. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 

636–37 (1985).

122. See European Council Regulation 44/2001 of 22 Dec. 2000 on Jurisdiction 

and the Recognition of Enforcement of Judgments in Civil and Commercial Matters, 

2001 O.J. (L 12) 1, art. 22(4) (giving courts exclusive jurisdiction over “proceedings 

concerned with the registration or validity of patents, trade marks, designs, or similar 

rights required to be deposited or registered”).

123. See New York Convention, supra note 6, art. II(1) (noting applicability of 

the Convention only to arbitration agreements “concerning a subject matter capable of 

settlement by arbitration”).

124. Meadows Indem. Co. v. Baccala & Shoop Ins. Servs., Inc., 760 F. Supp. 

1036, 1042 (E.D.N.Y. 1991); see also New York Convention, supra note 6, art. II(1).

125. See New York Convention, supra note 6, art. V(1)(a).
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40

 Returning to the question of “who decides,” U.S. courts need to 

consider more than just separability and arbitrability (in the U.S. 

sense). Judges also need to take into account the concept of competence-competence, or the arbitral tribunal’s ability to decide its own jurisdiction.

126 The principle of competence-competence allows an arbitral 

tribunal to rule on its own jurisdiction even if the tribunal ultimately 

decides that no valid arbitration agreement exists. Competencecompetence deters parties from challenging arbitral agreements as a 

delay or obstruction tactic.

127 

Although the FAA is silent on the subject, the U.S. Supreme Court 

has indicated that arbitral tribunals are competent to decide matters 

relating to their own jurisdiction.

128 However, this issue is subject to 

party agreement. If the parties agreed to submit the question of jurisdiction to arbitration, the matter will be determined through arbitration. If the parties reserved that issue for judicial determination, it will

be determined through litigation.129 

U.S. courts’ power over arbitrations seated outside the United 

States is not as extensive as their power over arbitrations seated in the 

United States. There are also times when domestic law may give U.S. 

courts the authority to act, but principles of international comity suggest restraint.

U.S. courts have the power to compel arbitration wherever that 

proceeding is to be seated (i.e., located).

130 Indeed, this is a mandatory 

duty. As the First Circuit has noted, 

[s]o long as the parties are bound to arbitrate and the district court 

has personal jurisdiction over them, the court is under an unflagging, nondiscretionary duty to grant a timely motion to compel arbitration and thereby enforce the New York Convention as provided in 

126. See William W. Park, Determining an Arbitrator’s Jurisdiction: Timing and 

Finality in American Law, 8 Nev. L.J. 135, 139–42 (2007) (noting this question involves several constituent issues).

127. See Gaillard & Savage, supra note 48, ¶¶ 680–682. 

128. See Rent-a-Center, West, Inc. v. Jackson, 130 S. Ct. 2772, 2777–79 (2010); 

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83–84 (2002); First Options of 

Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995).

129. See First Options, 514 U.S. at 943.

130. See 9 U.S.C. §§ 4, 206, 303 (2012).
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41

Chapter 2 of the FAA, even though the agreement requires arbitration in a distant forum.

131 

However, any order directing the parties to arbitration must not 

attempt to specify the procedures that are to be used in the arbitration, 

since that could run afoul of governing laws as well as important principles regarding party autonomy, arbitrator discretion, and the supervisory competence of courts at the arbitral seat (i.e., the primary jurisdiction).

132 

2. Motions to stay litigation

Courts also may be asked to stay a litigation proceeding in front of 

them. A motion to stay litigation is the mirror image of a motion to 

compel and merits the same level of respect under the New York Convention, even though the Convention only explicitly mentions the 

court’s duty to refer parties to arbitration.

133 

The FAA states expressly that

[i]f any suit or proceeding be brought in any of the courts of the 

United States upon any issue referable to arbitration under an 

agreement in writing for such arbitration, the court in which such 

suit is pending, upon being satisfied that the issue involved in such 

suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the 

action until such arbitration has been had in accordance with the 

terms of the agreement, providing the applicant for the stay is not in 

default in proceeding with such arbitration.134

This provision is made applicable to international disputes through 

the residual application clauses of Chapters 2 and 3.

135 

Sometimes a party files an action that involves both arbitrable and 

non-arbitrable claims. In that situation, a court may compel the arbi131. InterGen NV v. Grina, 344 F.3d 134, 142 (1st Cir. 2003).

132. See Rhone Mediterranee Compagnia Francese Di Assicurazioni E Riassicurazoni v. Achille Lauro, 712 F.2d 50, 54–55 (3d Cir. 1983).

133. See New York Convention, supra note 6, art. II(3); Born, supra note 9, at 

1020–28.

134. 9 U.S.C. § 3.

135. See id. §§ 208, 307; Energy Transp., Ltd. v. M.V. San Sebastian, 348 F. Supp. 

2d 186, 201 (S.D.N.Y. 2004).
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tration of some disputes and stay litigation of the remaining issues 

pending the outcome of the arbitration.136 

A similar outcome occurs when a plaintiff attempts to bring claims 

against multiple parties but only some of the defendants are subject to 

an arbitration agreement. In that situation, a court may compel the 

arbitration of some disputes while staying the remaining claims.137 In 

rare cases, a court may decide that the FAA does not preempt a state 

law that allows for a stay of arbitration pending the outcome of litigation.138

3. Motions seeking an anti-suit injunction

U.S. courts may also be faced with requests for anti-suit injunctions. 

Recently, courts have considered a related form of relief, the anti-antisuit injunction.139 Although anti-suit injunctions are discussed here in 

the context of preliminary proceedings, they may be sought during an 

arbitration as well.

140 

Because anti-suit and anti-anti-suit injunctions have their roots in 

common law jurisdictions, U.S. courts are often prime candidates for 

receiving motions of this type.

141 The United States has become an 

even more attractive jurisdiction for anti-suit injunctions ever since 

the Court of Justice of the European Communities curtailed English 

136. See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217, 221 (1985) (recognizing the possibility of “‘piecemeal’ litigation” and “the possibly inefficient maintenance of separate proceedings in different forums”); Kwasney Co. v. AcryliCon Int’l 

Ltd., No. 09-13357, 2010 WL 2474788, at *3 (E.D. Mich. June 11, 2010).

137. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 20–21 

(1983) (stating that “federal law requires piecemeal resolution when necessary to give 

effect to an arbitration agreement” and noting that the agreement must be enforced 

“notwithstanding the presence of other persons who are parties to the underlying 

dispute but not to the arbitration agreement”); AgGrow Oils, LLC v. Nat’l Union Fire 

Ins. Co., 242 F.3d 777, 783 (8th Cir. 2001); Marubeni Corp. v. Mobile Bay Blue Chip 

Ctr., No. 02-0914-PL, 2003 WL 22466215, at *17–18 (S.D. Ala. June 16, 2003).

138. See Volt Info. Sciences v. Board of Trustees of Leland Stanford Junior Univ., 

489 U.S. 468, 471, 479 (1989).

139. See Teck Metals, Ltd. v. Certain Underwriters at Lloyd’s, London, No. 05-

411, 2010 WL 252804, at *1 (E.D. Wash. Jan. 19, 2010).

140. See infra notes 224–25 and accompanying text.

141. See Born, supra note 9, at 1042.
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courts’ ability to issue such injunctions in cases involving proceedings 

brought in other Member States of the European Union.142

To obtain an anti-suit injunction from a U.S. court, a movant must 

demonstrate that 

• the parties in the foreign litigation are the same as those who

are bound by the agreement to arbitrate;

• the foreign litigation involves the same issues as would be resolved under the arbitration agreement;

• irreparable injury or grave hardship would occur absent the

injunction; and

• the public policy of the U.S. forum warrants a grant of injunctive relief.143

 It is also necessary to weigh matters of international comity 

against “the need to ‘prevent vexatious or oppressive litigation’ and to 

‘protect the court’s jurisdiction.’”144 Although “‘it is well settled that 

American courts have the power’ to issue foreign antisuit injunctions, 

‘[c]omity dictates that [these injunctions] be issued sparingly and only 

in the rarest of cases.’”145 

U.S. courts must consider requests for anti-suit injunctions in light 

of U.S. obligations under the New York Convention. There is no consistent approach among courts or commentators. One international 

commentator has taken the position that anti-suit injunctions “are not 

inconsistent with the New York Convention (because they enforce, 

rather than breach, international arbitration agreements).”146 Others 

have argued that “anti-suit injunctions negate the very basis of arbitration, that is, the parties’ consent to submit their disputes to arbitra142. See Case C-185/07, West Tankers Inc. v. Allianz SpA (formerly RAS Riunione Adriatica diSciurtà SpA), [2009] 1 A.C. 1138, 1153 ¶ 74 (Court of Justice of the 

European Communities).

143. See LAIF X SPRL v. Axtel, SA de CV, 390 F.3d 194, 199–200 (2d Cir. 2004); 

Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Tech., Inc., 369 

F.3d 645, 652–53 (2d Cir. 2004); Empresa Generadora de Electricidad ITABO, SA v. 

Corporación Dominicana de Empresas Eléctricas Estatales, No. 05 CIV 5004 RMB, 

2005 WL 1705080, at *5–6, 8–9 (S.D.N.Y. July 18, 2005). 

144. Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas 

Bumi Negara, 335 F.3d 357, 366 (5th Cir. 2003).

145. Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 

459, 471 (6th Cir. 2009) (citations omitted).

146. Born, supra note 9, at 1044.
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44

tion,” even when anti-suit injunctions are issued with the intent to 

support international arbitration.147 Still others believe that it is the 

timing of the request that is critical.148 Another factor may be whether 

the U.S. court has primary or secondary jurisdiction over the arbitration.149 This is a developing area of law that will require attention in 

the coming years.

4. Motions seeking an anti-arbitration injunction

Courts may also be faced with a motion for an anti-arbitration injunction, which is a type of anti-suit injunction meant to stop the initiation 

or continuation of an arbitration.150 Anti-arbitration orders can be directed to a party to the arbitration or to the members of the arbitral 

tribunal. Because these actions challenge the validity or existence of an 

arbitration agreement, they must be considered in light of the principle of competence-competence, or the arbitral tribunal’s power to rule 

on its own jurisdiction.

151

Anti-arbitration orders are justified on the grounds that allowing 

an arbitral proceeding to go forward when no valid arbitration agreement exists injures the innocent party. However, anti-arbitration injunctions can be seen as encroaching on the proper jurisdiction of the 

arbitral tribunal and interfering with the parties’ consent to arbitrate 

their disputes.152 There is not a great deal of case law on this issue, and 

questions arise as to whether U.S. courts may issue such an injunction 

in cases in which the arbitration is seated outside the United States.

153

147. Emmanuel Gaillard, Reflections on the Use of Anti-Suit Injunctions in International Arbitration, in Pervasive Problems in International Arbitration 203 ¶ 10-10 

(Loukas A. Mistelis & Julian D.M. Lew eds., 2008).

148. See Strong, Border Skirmishes, supra note 1, at 12–17.

149. See W. Michael Reisman & Heide Iravani, The Changing Relation of National 

Courts and International Commercial Arbitration, 21 Am. Rev. Int’l Arb. 5, 12–17 

(2010).

150. See Certain Underwriters at Lloyd’s v. Bristol-Myers Squibb Co., 51 F. Supp. 

2d 756, 758 (E.D. Tex. 1999).

151. See supra notes 109–32 and accompanying text.

152. See Gaillard, supra note 147, ¶ 10-19 to 10-21.

153. See Farrell v. Subway Int’l, B.V., No. 11 Civ. 08(JFK), 2011 WL 1085017, at 

*2 (S.D.N.Y. Mar. 23, 2011); URS Corp. v. Lebanese Co. for Dev. & Reconstr. of Beirut Cent. Dist. SAL, 512 F. Supp. 2d 199, 208 (D. Del. 2007); Certain Underwriters at 

Lloyd’s, 51 F. Supp. 2d at 761. 
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45

5. Motions for assistance in the naming of an arbitrator

Not all motions made at the preliminary stage of an international

commercial arbitration relate to the desire to compel or stay a particular type of proceeding. Sometimes the parties agree that the dispute 

should be heard in arbitration, but experience difficulties appointing 

the arbitral tribunal, either because they did not agree in advance to 

the method of selecting the arbitrator or arbitrators or because one 

party may be unable or unwilling to exercise its power to appoint an 

arbitrator. Alternatively, an appointing agency may fail to act in an 

expeditious manner. 

Quite often, the solution to these problems can be found in the 

arbitration agreement itself or in the arbitral rules that the parties have 

selected to apply to their proceedings; those rules reflect the parties’ 

implicit agreement regarding procedural matters. In both situations, 

the FAA empowers U.S. courts to “appoint arbitrators in accordance 

with the provisions of the agreement.”154 

Sometimes, the agreement is silent regarding the selection of the 

arbitral tribunal. In these cases, the court must look to Chapter 1 of 

the FAA for guidance, since Chapters 2 and 3 of the FAA only address 

situations in which the parties have made provision for the appointment of arbitrators. Section 5, made applicable to international disputes through the residual application provisions of Chapters 2 and 3, 

states that if the arbitration agreement makes no provision for the 

naming of the arbitrators, then

the court shall designate and appoint an arbitrator or arbitrators or 

umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement 

the arbitration shall be by a single arbitrator.155

The FAA’s approach to the appointment of arbitrators is consistent 

with that taken by other countries, so there is no danger of the United 

States being out of step with foreign jurisdictions. Nevertheless, care 

must be taken with motions of this type, because parties could seek 

similar relief from multiple courts, including those at their places of 

residence, the place of performance of the contract, or the place of ar154. 9 U.S.C. §§ 206, 303(a) (2012).

155. Id. §§ 5, 208, 307.
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bitration. Successful motions in all these locations would result in an 

excessive number of arbitrators. 

The international arbitral community has taken the view that motions to appoint an arbitrator should be made only in the court with 

primary jurisdiction. This position is based on treaty language indicating that a party may object to the enforcement of the arbitral award if 

“[t]he composition of the arbitral authority . . . was not in accordance 

with the agreement of the parties, or, failing such agreement, was not 

in accordance with the law of the country where the arbitration took 

place.”156 Because the law governing the selection of arbitrators is that 

of the seat of arbitration, it is logical to give the seat jurisdiction over 

appointment-related issues. Indeed, “[i]t is only in the rarest cases that 

national arbitration legislation should be interpreted as permitting appointment of arbitrators in an arbitration that does not have its seat in 

the appointing court’s state.”157 

Federal courts have enforced agreements regarding the selection of 

arbitrators according to the terms of the agreement in a U.S.-seated 

arbitration.158 U.S. courts also have held that they have the ability to 

name arbitrators in cases in which the parties have not agreed to the 

place of arbitration, but “only where the second party has expressly 

consented to a United States forum or has contacts with that forum 

sufficient to meet the requirements of personal jurisdiction.”159 

In addition, U.S. courts have recognized their power to appoint 

arbitrators in international arbitrations seated in the United States

when the parties have not agreed to a particular procedure.

160 This is 

true even if the agreement between the parties indicates that the arbitration may be seated either in the United States or elsewhere, so long 

as the U.S. alternative is chosen.161 

156. New York Convention, supra note 6, art. V(1)(d); see also Panama Convention, supra note 7, art. 5(1)(d).

157. Born, supra note 9, at 1433.

158. See 9 U.S.C. §§ 206, 303(a); Farrell v. Subway Int’l, B.V., No. 11 Civ. 

08(JFK), 2011 WL 1086017, at *5 (S.D.N.Y. Mar. 23, 2011).

159. See Jain v. de Mere, 51 F.3d 686, 692 (7th Cir. 1995).

160. See 9 U.S.C. §§ 5, 208, 307; Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co., 500 F.3d 571, 578–79 (7th Cir. 2007), affirming 444 F. Supp. 2d 909, 

921–22 (N.D. Ill. 2006).

161. See Cargill Rice, Inc. v. Empresa Nicaraguense Dealimentos Basicos, 25 F.3d 

223, 224–25 (4th Cir. 1994).
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47

The more difficult question arises when the seat of the arbitration 

is outside the United States. The FAA’s appointment mechanisms do 

not differentiate between arbitrations seated in the United States and 

those seated elsewhere. Few U.S. courts have addressed this issue, although one older decision suggests in dicta that the court might have 

had the ability to name arbitrators in a proceeding seated in Switzerland.

162 However, such an action on the part of a U.S. court would be 

problematic as a matter of international law and practice for the reasons discussed above, and could conflict with orders made by the 

court at the arbitral seat regarding the appointment of arbitrators. 

6. Motions for provisional orders in aid of arbitration

Parties also may come to a U.S. judge to seek assistance with the freezing of assets, protection of property, or other forms of preliminary injunctive relief. Although the FAA is silent on the issue of provisional 

measures in arbitration other than those in a narrow range of maritime 

disputes,163 in domestic arbitration, absent an agreement between the 

parties to grant exclusive jurisdiction on this issue to one body or another, both the arbitral tribunal and the court are empowered to provide such relief.

164 

 In international arbitration, it is clear that the arbitral tribunal itself may provide such provisional relief.

165 However, there is some debate regarding the ability of U.S. courts to order provisional relief in 

international disputes given mandatory language in the New York 

Convention indicating that a court “shall . . . refer the parties to arbitration.”166 Two different approaches are reflected in the case law. 

 The Second Circuit has held that “entertaining an application for a 

preliminary injunction in aid of arbitration is consistent with the 

court’s powers” under section 206 of the FAA and thus the New York 

Convention.167 This is true even if the arbitration is seated outside the 

162. See Creative Tile Mktg., Inc. v. SICIS Int’l, S.r.L., 922 F. Supp. 1534, 1540 

(S.D. Fla. 1996).

163. See 9 U.S.C. § 8.

164. See Am. Express Fin. Advisors v. Thorley, 147 F.3d 229, 231 (2d Cir. 1998).

165. See Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 

255, 262–63 (2d Cir. 2003); Born, supra note 9, at 1955–56, 2045–46.

166. New York Convention, supra note 6, art. II(3).

167. Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 826 (2d Cir. 1990); see 

also 9 U.S.C. § 206. 
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United States.168 This approach has been applied to both preliminary 

relief and prejudgment remedies.169

In contrast, the Third and Ninth Circuits do not permit courts to 

provide provisional relief in international commercial arbitration, either because the relief requested is available from the arbitral tribunal 

(a factor that may be particularly important in disputes arising after 

the tribunal has been constituted or where an arbitral mechanism for 

urgent preliminary relief exists) or because the New York Convention 

forbids such actions by requiring courts to refer parties to arbitration 

as a mandatory matter.

170

Of the two approaches, the first seems to be the more prevalent, 

both because of the large number of international disputes seated in 

the Second Circuit and because it is more consistent with international 

standards. Indeed, the weight of U.S. authority “rejects the view that 

Article II(3) of the [New York] Convention precludes court-ordered 

provisional measures in aid of arbitration,” consistent with “almost all 

non-U.S. decisions and academic commentary.”171 As a practical matter, allowing courts to order provisional relief makes sense, particularly in the early stages of a dispute, when the tribunal has not yet been

constituted. 

Although this issue can arise at any stage of the arbitration,

172

courts follow the same procedure regardless of when the application 

for assistance is made. Judges consider whether and to what extent the 

parties have agreed, implicitly or explicitly, to a particular mode of 

provisional relief (i.e., whether they have required recourse to a court 

or a tribunal or permitted access to both). Courts also consider other 

relevant factors, looking at whether the party seeking the assistance 

has previously demonstrated support for the arbitral proceeding (such 

168. See Bahrain Telecomm. Co. v. Discoverytel, Inc. 476 F. Supp. 2d 176, 180–

81 (D. Conn. 2007).

169. Id. at 182.

170. See Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999) (noting 

preliminary relief was available under arbitral rules); McCreary Tire & Rubber Co. v. 

CEAT, 501 F.2d 1032, 1038 (3d Cir. 1974) (citing Article II(3) of the New York Convention).

171. Born, supra note 9, at 2031, 2039.

172. See supra notes 154–62 and infra notes 224–25 and accompanying text.
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49

as by moving to compel arbitration) and whether the moving party is 

seeking any relief other than provisional measures.

173 

B. Role of the Court During Arbitral Proceedings 

Judicial assistance may also be sought while the arbitration is ongoing.

Courts in the United States and elsewhere agree that in these circumstances, restraint is necessary to give effect to the principle of judicial 

noninterference in an ongoing arbitral proceeding.174 

1. Motions for disclosure or discovery in aid of an international

arbitral proceeding

Perhaps the most controversial type of motion that can be brought 

during an international commercial arbitration involves requests for 

judicial aid in the disclosure or discovery process. This is a particularly complicated and contentious area of law, given the vast conceptual 

and practical differences between discovery in U.S. litigation on the 

one hand and the production of evidence in other countries and in 

other forms of private dispute resolution on the other. Before discussing the various issues that can arise in connection with international 

commercial arbitration, it is necessary to describe certain fundamental 

principles regarding the exchange of information outside U.S. courts. 

a. Discovery versus disclosure

Procedures relating to the discovery or disclosure of information vary. 

Not only does each country have its own approach to the exchange 

and presentation of evidence, but international commercial arbitration 

has also developed its own unique method of taking and presenting 

evidence, blending elements of both common law and civil law in a 

process known as “disclosure” rather than “discovery.” 

The U.S. approach to discovery in litigation is by far the broadest 

in the world, even among common law nations. The situation is very 

different in other jurisdictions, particularly those that follow the civil 

law tradition. Not only must plaintiffs in a civil law dispute attach all 

173. See Bahrain Telecomm., 476 F. Supp. 2d at 181–82; Born, supra note 9, at 

2040–42.

174. See Gary Born, The Principle of Judicial Non-Interference in International Arbitral Proceedings, 30 U. Pa. J. Int’l L. 999 (2009) (discussing obligation of noninterference under national and international law).
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50

relevant documentation to their moving papers, but defendants have a 

concordant obligation to attach their own documents to responsive 

pleadings. Parties then have several other opportunities to supplement 

their evidentiary positions, either through formal rebuttal papers or in 

response to particular matters that arise during a series of interim 

hearings. Requests to compel the production of documents or other 

information from another party are virtually unknown. The civil law 

approach to discovery differs significantly from the common law 

method of presenting documents at a single time and in a single hearing at the end of extensive discovery. The civil law’s more iterative 

process allows judges and parties to focus on precise issues that are 

actually raised rather than trying to anticipate, in the abstract, all possible arguments. 

International commercial arbitration intentionally reflects elements of both the civil law and the common law. Civil law influences 

are evident in the early submission of materials to the tribunal, while 

common law practices are reflected in the exchange of documents. 

This process closely resembles English litigation practice and is much 

more limited in its scope than U.S.-style discovery.

175 

To the extent that disclosure occurs in international arbitration, it 

does so entirely within the arbitral context, under the control of the 

tribunal and only involving actual parties to the arbitration rather than 

third parties.176 As a rule, arbitrators in international proceedings “are 

often reluctant to order disclosure as readily, or to the same extent, as 

in many common law litigations,” often refusing “to grant expansive, 

fishing-expedition discovery requests.”177 

 Parties in arbitration may not be formally compelled to produce 

documents as part of the disclosure process. However, arbitral tribunals may limit self-serving non-disclosure by making adverse inferences about issues discussed in documents that are believed to exist 

but that are not produced. 

175. See Civil Procedure Rules (Engl.), Part 31, available at http://www. 

justice.gov.uk/courts/procedure-rules/civil/rules/part31; Practice Direction 31A—

Disclosure and Inspection (Engl.), available at http://www.justice.gov.uk/courts/ 

procedure-rules/civil/rules/pd_part31a. 

176. See Born, supra note 9, at 1877.

177. Id. at 1907.
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51

Prehearing depositions are virtually unheard of in international 

commercial arbitration, as are orders to compel the production of 

documents from non-parties prior to the hearing. However, witnesses, 

including non-parties, may be compelled to attend a hearing and bring 

documents with them. Both fact and expert witnesses may be asked to 

produce and exchange extensive written statements in advance of the 

hearing. 

 Procedures relating to disclosure are addressed in various institutional rules on arbitration, but the provisions are often sparse. Arbitral 

tribunals use their discretionary powers to create suitable means for 

the taking and presentation of evidence tailored to individual disputes. 

In the last ten years, parties and arbitrators also have come to rely 

heavily on the International Bar Association (IBA) Rules on the Taking 

of Evidence, which provide detailed guidance on numerous issues and 

reflect the international arbitral community’s consensus on how disclosure should ideally progress.178 

b. Arbitrators’ powers to order disclosure

U.S. federal courts may become involved in a disclosure dispute in 

cases in which the parties do not comply with the arbitrator’s orders.

Most arbitral rules provide arbitrators with the ability to order disclosure, and a similar grant of power is found in section 7 of the FAA, 

which applies to international arbitrations through the residual application provisions of Chapters 2 and 3.

179 The arbitrators’ power is discretionary, in that the arbitrators simply “may summon in writing any 

person to attend before them or any of them as a witness and in a 

proper case to bring with him or them any book, record, document, or 

paper which may be deemed material as evidence in the case.”180 

If a person so summoned does not appear, the U.S. court at the 

seat of arbitration “may compel the attendance” of the summoned person or persons “or punish said person or persons for contempt in the 

same manner provided by law for securing the attendance of witnesses 

178. See IBA Rules on the Taking of Evidence in International Commercial Arbitration, art. 3(3), adopted May 29, 2010, available at http://www.ibanet.org/ 

Publications/publications_IBA_guides_and_free_materials.aspx. 

179. See 9 U.S.C. §§ 7, 208, 307 (2012).

180. Id. § 7.
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52

or their punishment for neglect or refusal to attend in the courts of the 

United States.”181 

Federal courts also can become involved in disputes regarding the 

extent to which international arbitral tribunals may order depositions 

or disclosure from third parties in advance of the arbitral hearing.

Precedents in this area are split.

182 The “emerging rule” among federal 

courts is that the arbitral tribunal does not have the power to compel 

prehearing disclosures from a non-party.

183 This approach is based on 

the language of section 7 of the FAA as well as the view that arbitrators who feel the need to see certain documents in advance of the final 

hearing “‘have the power to compel a third-party witness to appear 

with documents before a single arbitrator, who can then adjourn the 

proceedings.’ Section 7’s presence requirement, however, forces the 

party seeking the non-party discovery—and the arbitrators authorizing 

it—to consider whether production is truly necessary.”184 This technique is consistent with party expectations regarding both the limited 

scope of disclosure in international commercial arbitration and the 

blending of civil law and common law procedures.

A second issue that courts occasionally address involves the territorial scope of an arbitrator-issued summons. According to the FAA, 

an arbitrator-issued summons “shall be served in the same manner as 

subpoenas to appear and testify before the court.”185 Because the Federal Rules of Civil Procedure impose geographic limitations on the 

service of a summons, problems can arise if arbitrators attempt to issue summonses to witnesses residing beyond those territorial boundaries.186 The question arises whether it is possible for arbitrators to extend their jurisdictional reach through reliance on the Hague Conven181. Id.

182. See Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 

210, 215–17 (2d Cir. 2008) (discussing positions held by various circuits).

183. See id. at 216–17; Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 188 

(2d Cir. 1999).

184. Life Receivables Trust, 549 F.3d at 218 (citations omitted).

185. 9 U.S.C. § 7.

186. See Fed. R. Civ. P. 45(b)(2)–(3); Dynergy Midstream Serv., LP v. Trammochem, 451 F.3d 89, 96 (2d Cir. 2006).
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53

tion on the Taking of Evidence Abroad in Civil or Commercial Matters

(the Hague Evidence Convention).

187 

On its face, this question is difficult to answer, given the Hague 

Evidence Convention’s language restricting use of the Convention to 

situations in which evidence is sought “for use in judicial proceedings.”188 However, one commentator has suggested that it is “plausible 

that a tribunal could apply to a national court in the arbitral seat and 

request that it issue a letter of request, which could be executed pursuant to the Hague Evidence Convention.”189 The Hague Conference 

on Private International Law has also suggested that, in proper circumstances, the Hague Evidence Convention may be used in arbitration.

190 U.S. courts have not yet considered this issue. 

c. Courts’ powers to order disclosure in a U.S.-seated arbitration

U.S. courts may also be asked to order disclosure directly. Numerous 

states allow arbitral tribunals, or parties with the approval of an arbitral tribunal, to seek the assistance of a court in the taking of evidence 

in an international commercial arbitration.191 When acting in this 

manner, U.S. courts are in accordance with international norms. However, the United States is very much of an outlier to the extent that

U.S. courts have held that parties themselves may seek disclosure orders from courts even when the arbitral tribunal has not expressly 

consented to such actions. 

 This is not to say that U.S. courts grant these motions routinely.

Orders of this type, considered implicitly authorized by section 7 of 

187. See Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 

7444.

188. Id. art. I.

189. Born, supra note 9, at 1939.

190. See Hague Conference on Private International Law: Special Commission 

Report on the Operation of the Hague Service Convention and the Hague Evidence 

Convention, 28 I.L.M. 1556, 1566–67 (1989).

191. See United Nations Commission on International Trade Law (UNCITRAL) 

Model Law on International Commercial Arbitration, UNCITRAL, 18th Sess., Annex 

1, U.N. Doc. A/40/17 (June 21, 1985), revised by Revised Articles of the UNCITRAL 

Model Law on International Commercial Arbitration, UNCITRAL, 39th Sess., Annex 

1, art. 27, U.N. Doc. A/61/17 (July 7, 2006) [hereinafter UNCITRAL MAL]; Born,

supra note 9, at 1923.
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54

the FAA, are made applicable to international disputes through the 

residual application provisions of Chapters 2 and 3, and are only 

available in exceptional circumstances.192 Most courts that have considered this issue have required parties to demonstrate that there is a 

fairly strong need for the requested material (such as when the evidence may become unavailable) as well as a showing that the arbitral 

tribunal is unable to take or safeguard the evidence itself (as might 

occur if the tribunal has not yet been constituted).193 Particular care 

must be taken in cases in which a party claims the discovery is necessary for a litigation that has been stayed pending an ongoing arbitration, since such a tactic could be used to circumvent the arbitration.194 

 Allowing courts to grant disclosure at the parties’ direct request 

may “run[ ] counter to the parties’ agreement to resolve their disputes 

exclusively by arbitration.”195 Various U.S. courts have recognized that 

the only time such relief is justifiable as being consistent with the parties’ agreement is when the disclosure is necessary to prevent imminent, irreparable harm, which means that such relief should usually 

only be granted prior to the constitution of the arbitral tribunal.

196 Indeed, as one circuit court judge has noted, judicial intervention in the 

arbitral disclosure process

would create practical difficulties. . . . Since the judge will not be involved in the development of the issues as the case proceeds through 

the arbitration process, he will lack a basis upon which to make informed rulings on discovery matters. His only options would be to 

have the parties brief the development of the issues in arbitration or 

to discuss the current state of the dispute with the arbitrator. Such a 

192. See 9 U.S.C. §§ 7, 208, 307 (2012); Born, supra note 9, at 1930.

193. See Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876, 880 (E.D. Pa. 1976), 

dismissed by 549 F.2d 795 (3d Cir. 1977); Vespe Contracting Co. v. Anvan Corp., 399 

F. Supp. 516, 522 (E.D. Pa. 1976) (involving evidence that was disappearing as a result of construction work).

194. See Harry F. Ortlip Co. v. George Hyman Constr. Co., 126 F.R.D. 494, 497 

(E.D. Pa. 1989).

195. Born, supra note 9, at 1931.

196. See Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 187 (2d Cir. 

1999); Suarez-Valdez v. Shearson Lehman/Am. Express, Inc., 858 F.2d 648, 649 (11th 

Cir. 1988).
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litigation model is obviously both inefficient and a waste of judicial 

resources.197

d. Courts’ powers to order discovery in a foreign-seated arbitration

Because disclosure is a procedural matter, questions relating to its 

availability are typically governed by the parties’ agreement, the governing arbitral rules (if any), and the arbitration law at the arbitral 

seat. Thus, U.S. laws seem to have no bearing on an international commercial arbitration seated outside the United States. 

The relative insignificance of U.S. law to questions of this nature

was uncontroverted for many years, leaving U.S. courts with little or 

no role to play in disclosure disputes involving foreign-seated arbitrations. However, this position may be changing, owing to a new reading of 28 U.S.C. § 1782, which describes the kind of assistance that 

U.S. courts may provide to foreign and international tribunals and to 

litigants before such tribunals. 

The aim of the statute is clear. The text states that “[t]he district 

court of the district in which a person resides or is found may order 

him to give his testimony or statement or to produce a document or 

other thing for use in a proceeding in a foreign or international tribunal.”198 

The language is equally straightforward with respect to the procedure to be followed, indicating that 

[t]he order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or 

statement be given, or the document or other thing be produced, before a person appointed by the court. . . . The order may prescribe 

the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe 

otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules 

of Civil Procedure.

197. Suarez-Valdez, 858 F.2d at 650 (Tjoflat, C.J., concurring).

198. 28 U.S.C. § 1782 (2012).
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56

A person may not be compelled to give his testimony or statement or 

to produce a document or other thing in violation of any legally applicable privilege.199

Section 1782 originally was invoked only in cases involving foreign litigation. Recently, however, parties have begun to make applications for assistance relating to international commercial arbitrations 

seated outside the United States. Federal courts have split on this use 

of the statute.

i. Arbitration as involving “foreign or international tribunals”

U.S. courts are divided as to whether the statutory reference to “foreign or international tribunals” includes international commercial arbitrations. Most courts have taken the view that “the fact that the term 

‘foreign or international tribunals’ is broad enough to include both 

state-sponsored and private tribunals fails to mandate a conclusion 

that the term, as used in § 1782, does include both.”200

Although the 2004 decision of the U.S. Supreme Court in Intel 

Corp. v. Advanced Micro Devices, Inc. did not involve international 

commercial arbitration, it may have opened the door to the use of section 1782 in arbitration cases.

201 Intel involved a request for information made in the context of competition law investigations by the 

European Commission. Although the Commission is not normally 

considered a tribunal, it was acting in this instance as the taker of 

proof for two judicial bodies (i.e., the Court of First Instance and the 

European Court of Justice). The courts themselves did not accept evidence in matters of this type, and the U.S. Supreme Court decided that 

the Commission was acting as a “foreign or international tribunal” 

within the meaning of section 1782.202

One of Intel’s key holdings was its explicit recognition that section 

1782 is a discretionary device that does not require a court to order 

discovery in response to a party’s request.203 Several issues are relevant 

 

199. Id.

200. Nat’l Broad. Co., 165 F.3d at 188.

201. See 28 U.S.C. § 1782; Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 

241, 258 (2004).

202. 28 U.S.C. § 1782; see also Intel, 542 U.S. at 257–58.

203. See Intel, 542 U.S. at 264.
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to the decision whether to grant the request for disclosure. For example,

when the person from whom discovery is sought is a participant in 

the foreign proceeding . . ., the need for § 1782(a) aid generally is 

not as apparent as it ordinarily is when evidence is sought from a 

nonparticipant in the matter arising abroad. A foreign tribunal has 

jurisdiction over those appearing before it, and can itself order them 

to produce evidence. . . . In contrast, nonparticipants in the foreign 

proceeding may be outside the foreign tribunal’s jurisdictional reach; 

hence, their evidence, available in the United States, may be unobtainable absent § 1782(a) aid.204

Other criteria also must be considered. “[A] court presented with a 

§ 1782(a) request may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to 

U.S. federal-court judicial assistance.”205 Furthermore, a court “could 

consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.”206 Many of these factors refer to

public-law-oriented concerns, which could be interpreted as meaning 

that section 1782 was not intended to apply to arbitration. However, 

other criteria, such as the possibility of circumventing restrictions on 

proof-gathering, could be seen as applying by analogy to private forms 

of dispute resolution, which could weigh in favor of a more expansive 

reading of section 1782.207

Intel has created a considerable amount of confusion as to whether 

section 1782 applies to international arbitral proceedings.208 One district court, having analyzed the purpose and history of section 1782 as 

well as the decision in Intel, concluded that

after applying a functional analysis of the ICC Panel, the Court finds 

that it is not a foreign or international tribunal under § 1782. The 

 

204. Id. (citations omitted).

205. Id. 

206. Id. at 264–65.

207. See Kenneth Beale et al., Solving the § 1782 Puzzle: Bringing Certainty to the 

Debate Over 28 U.S.C. § 1782’s Application to International Arbitration, 47 Stan. J. Int’l 

L. 51, 96–108 (2011).

208. See Ex rel. Application of Winning (HK) Int’l Shipping Co., No. 09-22659-

MC, 2010 WL 1796579, at *6–7 (S.D. Fla. Apr. 30, 2010) (noting split of opinion).
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58

decisions of the ICC Panel are not judicially reviewable under the 

criteria established by Intel. The ICC Court is itself a creature of contract and may only modify the form of the ICC Panel’s award, not its 

substance. In addition, the ICC Panel is the product of the parties’ 

contractual agreement and its authority to issue binding decisions 

arises from that contract. The Court finds that § 1782 does not authorize discovery relief in a proceeding such as the ICC Panel, which 

functions as a contractual alternative to state-sponsored courts, administrative agencies, arbitral tribunals, and quasi-judicial bodies. 

Thus, the Court is without authority to provide discovery assistance 

under § 1782.

209

One of the few appellate opinions to discuss the matter comes out 

of the Fifth Circuit. The decision here is particularly useful because it 

describes the effects that a broad interpretation of section 1782 would 

have, noting

that § 1782 authorizes broader discovery than what is authorized for 

domestic arbitrations by Federal Arbitration Act § 7. If § 1782 were 

to apply to private international arbitrations, “the differences in 

available discovery could ‘create an entirely new category of disputes 

concerning the appointment of arbitrators and the characterization 

of arbitration disputes as domestic, foreign, or international.’” . . . 

[E]mpowering parties in international arbitrations to seek ancillary 

discovery through federal courts could destroy arbitration’s principal 

advantage as “a speedy, economical, and effective means of dispute 

resolution” if the parties “succumb to fighting over burdensome discovery requests far from the place of arbitration.” Neither private arbitration nor these questions were at issue in Intel.210

The application of section 1782 to international commercial arbitration is an important issue that will no doubt develop over time.

211

209. In re Operadora DB Mexica, S.A. de C.V., No. 6:09-cv-383-Orl-22GJK, 2009 

WL 2423138, at *12 (M.D. Fla. Aug. 4, 2009).

210. El Paso Corp. v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, 341 

Fed. App’x 31, 34 (5th Cir. 2009) (citations omitted); see also In re Caratube Int’l Oil 

Co., LLP, 730 F. Supp. 2d 101, 107 (D.D.C. 2010) (concluding that reliance on section 1782 constitutes “an attempt to circumvent the Tribunal’s control over the arbitration’s procedures, and this factor thus weighs against granting the petition”).

211. A number of federal court opinions on use of section 1782 arose in the context of a complex series of disputes involving Chevron and the Republic of Ecuador. 

Those cases are not discussed here because the section 1782 requests were made in 

support of several ongoing matters, including those proceeding in both arbitration and 
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59

Courts need to consider a variety of factors when determining whether 

and to what extent section 1782 applies to international commercial 

arbitration. This determination will involve analysis of the language of 

the statute as well as the effect the various interpretations will have on 

the international arbitral regime. Questions include whether an expansive interpretation of section 1782 would contravene U.S. treaty obligations under the New York and Panama Conventions and whether 

application of section 1782 to international commercial arbitration 

would promote the kind of “respect for the capacities of foreign and 

transnational tribunals, and sensitivity to the need of the international 

commercial system for predictability in the resolution of disputes” that 

is required by the U.S. Supreme Court.

212 Courts evaluating the applicability of section 1782 may find it useful to consider the significant 

practical differences between international litigation and international 

arbitration, particularly with respect to the distinction between discovery and disclosure, as a matter of both party expectation and international practice.

213

ii. “Interested persons” in arbitration

Although most analysis focuses on whether international commercial 

arbitration involves “foreign or international tribunals” under section

1782, questions also arise as to who constitutes an “interested person” 

under the statute.214 The statutory language states that applications 

may be made by tribunals or “any interested person.”215 However, allowing parties to submit discovery applications directly to the court in 

a section 1782 proceeding without the approval of the arbitral tribunal 

runs afoul of the same issues that arise in the context of U.S.-seated 

arbitration,

216 namely that the parties have agreed to have the arbitral 

 

litigation, and therefore do not address the specific issues relating to use of section 

1782 in international commercial arbitration. 

212. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627 

(1985).

213. See supra notes 175–78 and accompanying text. 

214. 28 U.S.C. § 1782 (2012).

215. Id.; see also Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 257 

(2004) (discussing scope of term); In re Caratube, 730 F. Supp. 2d at 104 (concluding, 

without analysis, that a party to an international arbitration was an “interested person”).

216. See supra notes 191–97 and accompanying text.
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60

tribunal, and not the court, decide matters of procedure, including 

disclosure. Although U.S. courts have in some cases granted discovery 

under section 1782 on the application of a party, there is very little 

case law on this particular issue.

217

As this area of law develops courts will consider the various factors the Supreme Court identified in Intel concerning the exercise of 

judicial discretion in an action under section 1782.218 The most relevant of these may be “whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.”219 Certainly it has been 

suggested that party-initiated requests for judicial assistance in U.S.-

seated arbitrations may be an illegitimate means of avoiding the arbitral process.220 This concern would likely hold equal if not greater 

weight in arbitrations seated outside the United States. Judges may 

also want to consider the effect that broad use of section 1782 would 

have on international commercial arbitration generally.

221

2. Challenges to arbitrators during proceedings

Challenges to sitting arbitrators can be triggered by a variety of circumstances, both inside and outside the arbitral proceedings. A comment made by a panelist during a hearing may suggest a lack of impartiality. An arbitrator’s recent purchase of stock in one of the parties to 

the proceeding may call that arbitrator’s independence into question.

A failure by the arbitrator to reveal a personal relationship with a party 

can create concerns about both impartiality and independence.

When considering a challenge to an arbitrator, a court must first 

determine the relevant standard and procedure. The court will look at 

the parties’ agreement, the governing arbitral rules (if any), and the 

governing law, which in the case of a U.S.-seated arbitration will be 

U.S. law.

 

217. See In re Roz Trading Ltd., 469 F. Supp. 2d 1221, 1223 (N.D. Ga. 2006); 

Ukrnafta v. Carpatsky Petroleum Corp., No. 3:09 MC 265(JBA), 2009 WL 2877156, at 

*2 (D. Conn. Aug. 27, 2009).

218. See Intel, 542 U.S. at 264–65.

219. Id. 

220. See In re Caratube, 730 F. Supp. 2d at 107.

221. See El Paso Corp. v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, 

341 Fed. App’x 31, 34 (5th Cir. 2009).
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If the parties have addressed the challenge procedure explicitly in 

their arbitration agreement or implicitly by choosing a rule set that 

covers this issue, then the U.S. court will apply those provisions. Otherwise, the challenge is governed by U.S. law. However, the FAA is 

somewhat unusual in that it does not contemplate the possibility of a 

party challenging an arbitrator during the proceedings. This has led 

federal courts to limit parties’ ability to bring an interim challenge to 

an arbitrator. For example, the Second Circuit has held that “it is well 

established that a district court cannot entertain an attack upon the 

qualifications or partiality of arbitrators until after the conclusion of 

the arbitration and the rendition of the award.”222 There are a few exceptions to this general rule, where a court has allowed removal of an 

arbitrator prior to the rendering of the final award. “For example, preaward removal of an arbitrator is justified ‘when the court concludes 

that one party has deceived the other, that unforeseen intervening 

events have frustrated the intent of the parties, or that the unmistakable partiality of the arbitrator will render the arbitration a mere prelude to subsequent litigation.’”223

3. Motions in aid of arbitration

Part IV.A above discusses a number of motions that commonly are 

made prior to or at the initiation of an international commercial arbitration. Several of these motions—for example, those requesting an 

anti-suit injunction or seeking prejudgment attachment—also can be 

brought while the arbitration is ongoing. For the most part, courts 

consider these motions using the same criteria that are used during the 

pre-arbitration phase.

224

The one potential difference involves provisional relief. Although 

courts and tribunals share concurrent jurisdiction over the granting of 

provisional relief by virtue of the applicable national law or arbitral 

rules, there often is less need for the parties to seek recourse from a 

court once an arbitration has begun. As noted above, the circuits are

 

222. Aviall, Inc. v. Ryder Sys., 110 F.3d 892, 895 (2d Cir. 1997) (citation omitted).

223. Fleming Co. v. FS Kids, L.L.C., No. 02-CV-0059E(F), 2003 WL 21382895, 

at *4, 6 (W.D.N.Y. May 14, 2003) (citations omitted) (relying on section 2 of the 

FAA).

224. See supra notes 163–73 and accompanying text.
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split as to whether a U.S. court is permitted to order provisional relief 

in cases involving the New York Convention.

225 There may be less 

need for judicial intervention in cases in which the arbitral tribunal is 

already in place.

4. Motions to enforce interim awards and provisional measures

The final type of interlocutory judicial proceeding to consider involves 

requests for immediate enforcement of an interim award or provisional 

measure ordered by the arbitral tribunal. Although the law regarding 

the enforcement of final arbitral awards is well developed,

226 it is less 

clear whether and to what extent interim awards, and provisional 

measures are immediately enforceable by a court.

The difficulty arises because the New York Convention has been 

interpreted as being applicable only to the enforcement of final 

awards, meaning an “award that disposes of either all the parties’ 

claims or all the parties’ remaining claims in the arbitration.”227 However, the enforceability of other types of arbitral awards and procedural orders (including arbitral decisions regarding stays, disclosure, and 

provisional measures) is much less clear.

Most of the debate focuses on the distinction between “partial final 

awards” (sometimes called “partial awards”), which finally dispose of 

some portion of the parties’ claims in arbitration, and interim awards 

(sometimes called “interlocutory awards”), which decide a particular 

issue that is relevant to the final disposition of a claim (such as a determination involving the choice of law) but do not finally dispose of 

the claim or any part of the claim. Partial final awards are usually immediately enforceable. Interim awards are less likely to be immediately 

enforceable, even when they provide for provisional relief that appears 

to finally dispose of the request for such relief, since they do not finally decide an issue relevant to the final disposition of the claim.

The FAA provides little guidance on this issue, since it, like the 

New York Convention, fails to distinguish among the various types of 

awards. Thus, Chapter 2 only refers to “an award falling under the 

Convention” while Chapter 3 discusses “[a]rbitral decisions or awards 

 

225. See supra notes 163–73 and accompanying text.

226. See infra notes 270–348 and accompanying text. 

227. Born, supra note 9, at 2429–30; see also New York Convention, supra note 6, 

art. V.
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made in the territory of a foreign state.”228 Chapter 1, which is applicable to international disputes by virtue of the provisions on residual 

application, is slightly broader and states that an appeal may be immediately taken from an order “confirming or denying confirmation of an 

award or partial award.”229

U.S. courts have adopted the position, consistent with that of 

courts from other jurisdictions, that provisional or interim measures 

ordered by an arbitral tribunal may be judicially enforced to the extent 

that the measure in question constitutes a final disposition of the matter requested.230 “[A]lthough the Federal Arbitration Act uses the word 

award in conjunction with finality, courts go beyond a document’s 

heading and delve into its substance and impact to determine whether 

the decision is final.”231

C. Role of the Court After Arbitral Proceedings Have Concluded

The conclusion of the arbitration does not necessarily put all issues 

between the parties to rest, and courts in the United States and elsewhere may be asked to address several different types of matters even 

after the final arbitral award has been rendered, since this is a time 

period in which judicial assistance may be sought in several jurisdictions simultaneously.232

1. Motions to vacate an arbitral award 

Although U.S. courts often adjudicate motions to vacate in the domestic context, international disputes give rise to several unique issues.

 

228. 9 U.S.C. §§ 207, 304 (2012).

229. Id. §§ 16(a)(1)(D), 208, 307.

230. See Arrowhead Global Solutions, Inc. v. Datapath, Inc., 166 Fed. App’x 39, 

41 (4th Cir. 2006).

231. Publicis Comm. v. True North Comm., Inc., 206 F.3d 725, 729 (7th Cir. 

2000).

232. See Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas 

Bumi Negara, 335 F.3d 357, 368 (5th Cir. 2003) (noting “multiple judicial proceedings on the same legal issues are characteristic of the confirmation and enforcement of 

international arbitral awards under the Convention”).
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a. Forum

Some questions may arise as to whether a U.S. court is the appropriate 

forum to hear a motion to vacate an arbitral award. The only time that 

a U.S. court may hear a motion to vacate an arbitral award is when the 

underlying arbitration is seated in the United States, since an award 

may only be set aside (i.e., vacated) in the place of arbitration or the 

country under whose laws the award was made (which will in most 

cases be the arbitral seat).233 This is a classic example of primary jurisdiction at work.

234 If the arbitration is seated elsewhere, the U.S. court 

only has jurisdiction to consider whether to recognize or enforce the 

award, since the U.S. court would only have secondary jurisdiction.

However, in those circumstances, the U.S. court would be able to hear 

a motion to enforce the award and any objections thereto. The distinction between setting aside an award and recognizing and enforcing an 

award is critical because different standards and procedures may apply 

to the two actions. The two procedures also yield different effects.

235

Just because the arbitration is seated in the United States does not 

mean all parties reside here. As a result, it may be necessary to serve 

notice of a motion to vacate an award on a foreign party. The question

whether the Hague Convention on the Service Abroad of ExtraJudicial and Judicial Documents (the Hague Service Convention) is 

applicable in these circumstances has not been resolved.

236

One potential issue involves the time periods associated with the 

service of process under the Hague Service Convention, since the 

three-month deadline for service of process under the FAA is the minimum amount of time recommended for service of process under the 

Hague Service Convention.

237 However, concerns about timing may 

not exist in all cases, such as those in which service by mail is permit-

 

233. See New York Convention, supra note 6, art. V(I)(e).

234. See supra notes 93–108 and accompanying text.

235. See infra notes 234–63 and 270–348 and accompanying text.

236. See Hague Convention on the Service Abroad of Extra-Judicial and Judicial 

Documents, opened for signature Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638; Argentine Republic v. Nat’l Grid PLC, 637 F.3d 365, 366–67 (D.C. Cir. 2011).

237. See 9 U.S.C. §§ 12, 208, 307 (2012); Republic of Argentina v. BG Group 

PLC, 715 F. Supp. 2d 108, 120 n.10 (D.D.C. 2010).
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ted under the Hague Service Convention.

238 This is a developing area 

of law that will require further attention in the future.

b. Standards

The second major matter to consider involves the standards to be used 

to vacate an arbitral award in an international arbitration. There is a 

growing international trend toward having the grounds for setting 

aside an arbitral award in the place where it was rendered mirror the 

grounds for non-enforcement of a foreign award under the New York 

Convention.239 Nevertheless, some countries still allow vacatur on 

grounds additional to or different from those relating to nonenforcement of an award under the New York Convention. In the view 

of at least one commentator, the practice “produces anomalous results 

which are very difficult to justify in light of the Convention’s overall 

structure and purposes.”240

U.S. courts are split on how to handle this issue. The Seventh and 

Eleventh Circuits have held that parties may only rely on the grounds 

for non-enforcement under Article V of the New York Convention, 

even in actions to vacate an award arising out of an arbitration seated 

in the United States.241 The rationale is that the New York Convention 

applies to both “foreign” awards (i.e., those seated outside the United 

States) and “non-domestic” awards (i.e., those seated within the United States but falling within the scope of the Convention by virtue of 

section 202 of the FAA) through the express language of Article

I(1).

242 This appears to be the approach taken in the draft Restatement 

on the U.S. Law of International Commercial Arbitration, although the 

reporters have cautioned that drafts are to be considered tentative un-

 

238. See Int’l Transactions, Ltd. v. Embotelladora Agral Regionmontana SA de 

CV, 277 F. Supp. 2d 654, 662 (N.D. Tex. 2004). 

239. See New York Convention, supra note 6, art. V; UNCITRAL MAL, supra note 

191, art. 34; Born, supra note 9, at 2553.

240. Born, supra note 9, at 2555–56.

241. See Indus. Risk Ins. v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 

1140–41, 1445 (11th Cir. 1998); Lander Co. v. MMP Inv., Inc., 107 F.3d 476, 481–82 

(7th Cir. 1997).

242. See New York Convention, supra note 6, art. I(1); 9 U.S.C. § 202 (2012); see 

also supra notes 50–82 and accompanying text.
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til the entire project is complete, since revisions, some significant, are 

entirely likely.243 

 The Second Circuit takes a different view, holding that the New 

York Convention does not impose any limits on the grounds upon 

which vacatur is allowed.

244 Courts adopting this approach allow parties seeking to set aside an arbitral award rendered in the United States 

to rely on domestic principles of law. In this analysis, courts would 

look to section 10 of the FAA for the appropriate criteria for vacatur, 

which is deemed applicable to international arbitrations by virtue of 

the residual application provisions of Chapters 2 and 3.

245 Section 

10(a) states: 

In any of the following cases the United States court in and for the 

district wherein the award was made may make an order vacating the 

award upon the application of any party to the arbitration— 

(1) where the award was procured by corruption, fraud, or 

undue means; 

(2) where there was evident partiality or corruption in the 

arbitrators, or either of them; 

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause 

shown, or in refusing to hear evidence pertinent and 

material to the controversy; or of any other misbehavior 

by which the rights of any party have been prejudiced; 

or 

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not 

made.246 

243. See American Law Institute, Publications Catalog, Restatement on the U.S. 

Law of International Commercial Arbitration, available at http://www.ali.org/index. 

cfm?fuseaction=publications.ppage&node_id=130. 

244. See Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 

15, 22–23 (2d Cir. 1997). But see Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 

200, 221–22 (2d Cir. 2002) (calling Toys “R” Us into question regarding reliance on 

section 10 of the FAA).

245. See 9 U.S.C. §§ 10, 208, 307.

246. Id. § 10(a).
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c. Partiality of arbitrators

Notably, the provisions of section 10 of the FAA are broadly similar to 

the standards for non-enforcement described in the New York Convention.247 Consequently, there at first appears to be little conflict between the international arbitral regime and the U.S. statutory scheme.

For the most part, the criteria listed in section 10 are construed the 

same way in international and domestic disputes, at least in those circuits in which section 10 is relied upon in motions to vacate an award. 

One exception to this general interpretive rule may arise in cases 

in which the non-prevailing party claims that the arbitrator acted with 

“evident partiality.”248 The international arbitral regime requires arbitrators to be impartial, independent, and neutral. However, the United 

States initially embraced a very different approach, based on domestic 

principles of law, concluding that party-appointed arbitrators did not 

have to be neutral unless the parties agreed otherwise. 

The U.S. position became problematic as international commercial 

arbitration grew more popular, increasing the importance of predictable and consistent standards. This led to several initiatives from the 

international legal community. International organizations like the 

IBA made the expectation of arbitrator neutrality clear, as a matter of 

international practice.249 Several U.S.-based arbitral institutions 

amended their rules and codes of conduct to make their default positions reflect international expectations.250 Parties to international disputes also became increasingly vocal about their expectations regarding arbitrator conduct, not only including explicit provisions regarding neutrality in their arbitration agreements, but also demanding 

247. See New York Convention, supra note 6, art. V; 9 U.S.C. § 10.

248. 9 U.S.C. § 10(a)(2).

249. IBA Guidelines on Conflicts of Interest in International Arbitration, adopted 

May 29, 2010, available at http://www.ibanet.org/Publications/publications_IBA_

guides_and_free_materials.aspx [hereinafter IBA Guidelines], Gen. Std. 1.

250. See Int’l Centre for Dispute Resolution (ICDR) International Arbitration 

Rules, effective June 1, 1999, art. 7, available at http://www.adr.org; AAA Commercial 

Arbitration Rules, effective June 1, 2009, R-12, R-17, available at http://www.adr.org; 

AAA Code of Ethics for Arbitrators in Commercial Disputes, effective Mar. 1, 2004, 

Canons IX–X, available at http://www.adr.org/aaa/ShowProperty?nodeId=%2FUCM%

2FADRSTG_003867&revision=latestreleased; Born, supra note 9, at 1496–99.
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acknowledgement of the neutrality of the arbitrators at the appointment stage.251 

As a result, most U.S. courts now tend to embrace the expectation 

that party-appointed arbitrators in international disputes will adhere 

to international standards regarding independence, impartiality, and 

neutrality.252 However, this approach has not yet been universally 

adopted.

253 

Although it is easy to describe the relevant standard of behavior in 

the abstract, it is much harder to establish precisely how the concepts 

of independence, impartiality, and neutrality are to be applied in practice. The IBA Guidelines on Conflicts of Interest in International Arbitration offer some assistance.

254 The Guidelines are considered persuasive rather than binding, but their provisions are widely relied upon 

by arbitrators and practitioners in the field. Several U.S. courts have 

also invoked the Guidelines.255 Two older documents—the IBA Rules 

of Ethics for International Arbitrators and the AAA Code of Ethics for 

Arbitrators in Commercial Disputes—also discuss relevant standards 

of behavior, although these instruments’ influence has waned in the 

wake of the IBA Guidelines, which are much more detailed and practically oriented.256 

d. Common law grounds

Section 10 of the FAA itself poses few problems in the context of international arbitration, to the extent that the statute is considered to 

apply to international arbitral proceedings. However, there is signifi251. See Employers Ins. Co. of Wausau v. Certain Underwriters at Lloyd’s of 

London, No. 09-cv-201-bbc, 2009 WL 3245562, at *3–5 (W.D. Wis. Sept. 29, 2009).

252. See Scandinavian Reins. Co. v. St. Paul Fire & Marine Ins. Co., 732 F. Supp. 

2d 293, 309 (S.D.N.Y. 2010) (concluding that a party-appointed arbitrator acted with 

“evident partiality”).

253. See Sphere Drake Ins. Ltd. v. All Am. Life Ins. Co., 307 F.3d 617, 620, 623 

(7th Cir. 2002).

254. See IBA Guidelines, supra note 249.

255. See New Regency Prod. Inc. v. Nippon Herald Films, Inc., 501 F.3d 1101, 

1110 (9th Cir. 2007); Applied Indus. Materials Corp. v. Ovalar Makine Ticaret Ve 

Sanayi, A.S., 492 F.3d 132, 136 (2d Cir. 2007).

256. See IBA Guidelines, supra note 249; see also AAA Code of Ethics, supra note

250; IBA Rules of Ethics for International Arbitrators, available at http://www. 

ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx#ethics. 
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cant debate about whether certain common law bases for the setting 

aside of an arbitral award apply to international disputes, even in those 

circuits in which section 10 is considered an appropriate standard for 

vacatur.

Two of these non-statutory grounds for vacatur—public policy 

and non-arbitrability—also are found in the New York Convention

and therefore pose few problems, although the standards applicable to 

international disputes may differ slightly from those applicable to domestic cases.257

It is the third common law ground for vacatur—manifest disregard 

of law—that causes difficulties. The status of manifest disregard as a 

matter of domestic U.S. law is unclear, despite several recent U.S. Supreme Court pronouncements on the subject.258 “[E]xamples of manifest disregard . . . tend to be extreme, such as ‘explicitly reject[ing] 

controlling precedent’ or otherwise reaching a decision that ‘strains 

credulity’ or lacks even a ‘barely colorable’ justification.”259 Even if 

manifest disregard still exists, the doctrine only applies in a very narrow range of cases in which the arbitrators were cognizant of controlling legal authority and deliberately disregarded it, and claims of manifest disregard of law very seldom result in the setting aside of an 

award.260 Use of manifest disregard of law is particularly problematic 

in international disputes that are governed by something other than 

U.S. law, since U.S. judges are not well placed to determine whether, 

in those instances, there is a “clearly defined governing legal principle” that has been ignored.261

e. Enforcement after vacatur

The final issue to consider involves the effect of a decision to vacate an 

arbitral award arising out of an international dispute seated in the 

United States. In a domestic dispute, the decision to vacate an arbitral 

 

257. See New York Convention, supra note 6, art. V(2); Born, supra note 9, at 

2622 (noting the content of international public policy), 2637.

258. See Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1768 n.3 

(2010); Hall St. Ass’n, LLC v. Mattel, Inc., 552 U.S. 576, 590 (2008).

259. Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 407 (2d Cir. 

2009) (citations omitted).

260. See id.

261. Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 389 

(2d Cir. 2003); see also Born, supra note 9, at 2644.
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award forecloses all future opportunities to recover on the award. In 

international commercial arbitration, however, a decision to vacate an 

award bars recovery on the award in the jurisdiction where the court 

is seated, but does not necessarily preclude enforcement of the award 

in other (i.e., secondary) jurisdictions. The New York Convention

states explicitly that a court sitting in a secondary jurisdiction still may 

enforce an award even if that award has been set aside in the primary 

jurisdiction.

262 At the same time, a court in a secondary jurisdiction 

can take the fact that the award has been set aside into account during 

an enforcement proceeding.

263

2. Motions to confirm an arbitral award rendered by a U.S.-seated 

panel

Another action that can be brought in a U.S. court after the conclusion 

of an arbitration seated in the United States is a motion to confirm the 

award. There is no need to confirm an award to trigger the obligation 

of the non-prevailing party to comply with the terms of the award, 

since an arbitral award has legal effect immediately upon being rendered.

264 Nevertheless, a prevailing party might bring a confirmation 

proceeding to transform the award into a civil judgment and facilitate 

enforcement of the award domestically.

Confirmation of arbitral awards in the United States is a straightforward process.265 A party may object to confirmation of the award 

only on grounds used for non-enforcement of a foreign arbitral award 

under the New York or Panama Convention.266 Parties to an award 

that falls under the New York or Panama Convention have three years 

in which to bring a motion to confirm the award, which is considerably longer than the one-year period for confirming a domestic 

award.

267

U.S. courts are split as to whether the parties’ underlying arbitration agreement must include language to the effect that “judgment 

upon the award may be entered by a Court having jurisdiction hereof” 

 

262. See New York Convention, supra note 6, art. V(1)(e).

263. See infra notes 314–30 and accompanying text.

264. See infra notes 349–61 and accompanying text.

265. See 9 U.S.C. §§ 207, 302 (2012).

266. See id.

267. See id. §§ 9, 207, 302.
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for the award to be confirmable.

268 Numerous U.S. courts have therefore held that the requirement of section 9 has been met by implication.

269

3. Motions to enforce a foreign arbitral award

The most common action to be brought in a U.S. court after the conclusion of an international commercial arbitration is a motion to enforce a foreign arbitral award. Virtually all enforcement proceedings 

brought in a U.S. court will fall under either the New York Convention or the Panama Convention. Parties may enforce arbitral awards 

outside the treaty framework, but this guide focuses exclusively on

treaty mechanisms for reasons of space.

Before beginning this discussion, it is helpful to distinguish between the “recognition” and “enforcement” of a foreign arbitral award

under the New York and Panama Conventions. “Recognition” of an 

award gives the award the status of a national court judgment in that 

state. An award may also be “recognized” at the arbitral seat, although 

that process is usually referred to in the United States as “confirmation.” An award is “enforced” when parties ask a court to use its coercive power to give effect to the terms of the award. Because the procedures for recognition and enforcement are the same, the following 

discussion simply uses the term “enforcement” to refer to both types 

of action.

The New York Convention reflects a strong presumption in favor 

of the enforcement of foreign arbitral awards through mandatory language: “Each Contracting State shall recognize arbitral awards as binding and enforce them.”270 A party may object to the enforcement of a 

particular award, but only on the grounds listed in Article V of the 

 

268. See id. § 9; Oklahoma City Assoc. v. Wal-Mart Stores, Inc., 923 F.2d 791, 

794–95 (10th Cir. 1991) (concerning domestic arbitration); Splosna Plovba of Piran v. 

Agrelak SS Corp., 381 F. Supp. 1368, 1371 (S.D.N.Y. 1974) (concerning international 

arbitration).

269. See 9 U.S.C. § 9; Daihatsu Motor Co. v. Terrain Vehicles, Inc., 13 F.3d 196, 

199–203 (7th Cir. 1993). 

270. New York Convention, supra note 6, art. III; see also Czarina, L.L.C. v. W.F. 

Poe Syndicate, 358 F.3d 1286, 1292 n.3 (11th Cir. 2004).
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Convention, which are to be construed narrowly.

271 Other possible 

reasons for non-enforcement, such as rationales based on section 10 of 

the FAA or developed through the common law, are inapplicable in an 

action to enforce a foreign arbitral award.

272

Procedurally, the New York Convention imposes few requirements

other than the production of an original or duly certified copy of both 

the award and the underlying arbitration agreement as well as certified 

translations, if necessary.273 Other than that, contracting states are free 

to adopt their own procedural mechanisms for enforcing arbitral 

awards, although “[t]here shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies.”274 The 

FAA’s enforcement provisions are relatively straightforward and have 

caused few difficulties in practice.

275 

Whenever a motion is brought to enforce an award, the nonprevailing party may object to enforcement on one or more of the 

grounds listed in the seven subsections of Article V of the New York 

Convention, which are discussed below. Preliminarily, it is important 

to keep in mind that the New York Convention specifically states that 

non-enforcement is discretionary rather than mandatory.276 U.S. courts 

are not obliged to refuse enforcement just because the criteria contained in one of the provisions of Article V technically have been 

met.277 Instead, judges are free to give effect to the general proenforcement policy underlying the New York Convention as a whole

and enforce the award as a matter of discretion.

278 

271. See New York Convention, supra note 6, art. V; Parsons & Whittemore 

Overseas Co. v. Societe Generale De L’Industrie Du Papier (RATKA), 508 F.2d 969, 

974 (2d Cir. 1974).

272. See Encyclopaedia Universalis SA v. Encyclopaedia Britannica, Inc., 403 F.3d 

85, 90, 92 (2d Cir. 2005).

273. See New York Convention, supra note 6, art. IV.

274. Id., art. III.

275. See 9 U.S.C. §§ 204 (regarding venue), 207 (regarding enforcement procedures).

276. See New York Convention, supra note 6, art. V (noting enforcement “may be 

refused”).

277. See Rhone Mediterranee Compagnia Francese Di Assicurazioni E Riassicurazoni v. Achille Lauro, 712 F.2d 50, 54 (3d Cir. 1983).

278. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15. (1974).
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Article V is reproduced in its entirety in Appendix 3, along with 

the rest of the New York Convention, but it is useful to note at the 

outset that Article V has two major subsections. Objections under Article V(1) may be made only by a party, whereas objections under Article V(2) may be raised sua sponte by the enforcing court.279 This distinction arises because Article (V)(2) addresses two issues that are of 

particular significance to states: whether the subject matter of the dispute is capable of settlement by arbitration under the national law of 

the enforcing country (i.e., arbitrability in the international sense) and 

whether enforcement of the award is contrary to the public policy of 

the enforcing country.280

Article V also contains several provisions regarding the law that is 

to apply to any particular issue. Objections arising under Article V(1)

are considered largely pursuant to the law that has been chosen by the 

parties, either explicitly in their agreement or implicitly through the 

choice of the arbitral seat.

281 This means that the law relevant to inquiries under Article V(1) may be different than that of the enforcing 

court.282 However, objections under Article V(2) are explicitly made 

subject to the law of the enforcing court.

283

a. Article V(1)(a)—incapacity of the parties or invalidity of the 

agreement

The first ground for objection to enforcement of a foreign arbitral 

award under the New York Convention involves the incapacity of the 

parties or the invalidity of the agreement.284 Either or both of these 

issues may have been raised earlier in the proceeding. The matter may 

have been determined in a U.S. or other court, or it may have been 

considered by the arbitral tribunal, depending on how questions regarding competence-competence and gateway issues developed.

285

Although the parties are free to raise this issue again at the time of 

enforcement, a U.S. judge may conclude that an earlier judicial deter-

 

279. See New York Convention, supra note 6, art. V.

280. See id. art. V(2).

281. See id. art. V(1).

282. See id.

283. See id. art. V(2).

284. See id., art. V(1)(a).

285. See supra notes 109–32 and accompanying text.
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mination on this issue, by a U.S. or other court, precludes a similar

objection in an enforcement proceeding.286 The enforcing court may 

also choose to defer to the arbitral tribunal on this issue, although the 

amount of deference given to the arbitrators’ decision may depend on 

whether the parties agreed to have matters such as these determined 

by the arbitrators.287 

The most difficult issue arising under Article V(1)(a) involves the

determination of the applicable law. Parties very seldom designate the 

law under which the arbitration agreement is to be construed, although they often include a general choice of law provision elsewhere 

in the contract.

288 The question therefore becomes whether a general 

choice of law provision should be construed to govern issues relating 

to incapacity or invalidity in an Article V(1)(a) analysis. 

U.S. courts have responded to this question in a variety of ways. 

Some judges apply the law designated in the general choice of law 

provision to questions arising under Article V(1)(a), while others apply federal common law in an attempt to ensure uniformity of treatment across the nation.

289 

Some U.S. federal courts have identified a number of problems 

with both approaches. First, courts using the law designated in the 

general choice of law provision fail to take heed of the principle of 

separability.

290 Indeed, the U.S. Supreme Court has stated in a similar 

context that “the choice-of-law provision covers the rights and duties 

of the parties, while the arbitration clause covers arbitration; neither 

sentence intrudes upon the other.”291 The Supreme Court appears to 

286. See Four Seasons Hotel & Resorts, B.V. v. Consorcio Barr, S.A., 377 F.3d 

1164, 1171–72 (11th Cir. 2004).

287. See Sarhank Group v. Oracle Corp., 404 F.3d 657, 661–62 (2d Cir. 2005); 

Czarina, L.L.C. v. W.F. Poe Syndicate, 358 F.3d 1286, 1293 (11th Cir. 2004); Telenor 

Mobile Commc’ns AS v. Storm LLC, 524 F. Supp. 2d 332, 335–52 (S.D.N.Y. 2007), 

aff’d, 584 F.3d 396 (2d Cir. 2009); Born, supra note 9, at 2790–91.

288. See Born, supra note 9, at 444–45; Gaillard & Savage, supra note 48, ¶ 425. 

289. See Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co., 500 F.3d 

571, 577–78 (7th Cir. 2007) (addressing contract with no choice of law provision); 

Motorola Credit Corp. v. Uzan, 388 F.3d 39, 50–51 (2d Cir. 2004) (applying law 

named in general choice of law provision); Westbrook Int’l, LLC v. Westbrook Tech., 

Inc., 17 F. Supp. 2d 681, 683–85 (E.D. Mich. 1998) (not applying law named in general choice of law provision); Born, supra note 9, at 449–50.

290. See supra notes 109–32 and accompanying text.

291. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63–64 (1995).
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be suggesting that general choice of law provisions should be construed to apply only to substantive issues, absent the parties’ agreement to the contrary.

Second, it is difficult to justify the application of federal common

law to the question of validity and incapacity simply because the motion to enforce the arbitral award is before a U.S. court.292 Indeed, to 

do so ignores the express language of Article V(1)(a), which states that 

issues of invalidity and incapacity should be determined by the law of 

the arbitral seat when the parties have not agreed on an applicable law 

to address those concerns.

293 Since the arbitral seat is different from

the place of enforcement, U.S. law cannot apply to these issues.

A number of U.S. courts have adopted a third approach, which is 

to follow the express language of Article V(1)(a) and apply the law of 

the arbitral seat to questions involving incapacity and invalidity, unless the parties have clearly designated another law to address those 

matters.

294 U.S. courts have also recognized that they have the discretion to enforce the award, even if the objecting party has met the technical requirements of Article V(1)(a).295

b. Article V(1)(b)—notice and presentation of one party’s case

The second ground for objection under Article V of the New York 

Convention raises core due process concerns: notice and the opportunity to present one’s case.296 Unlike Article V(1)(a), Article V(1)(b) 

does not indicate the country whose law is to control this issue.297

Commentators have taken the position that “Article V(1)(b) is best 

 

292. See Rhone Mediterranee Compagnia Francese Di Assicurazioni E Riassicurazoni v. Achille Lauro, 712 F.2d 50, 52–54 (3d Cir. 1983) (discussing interplay of 

choice of law issues under Articles II and V of the Convention).

293. See New York Convention, supra note 6, art. V(1)(a) (referring to “the law 

to which the parties have subjected [the issue] or, failing any indication thereon, under the law of the country where the award was made”); Born, supra note 9, at 453.

294. See AO Techsnabexport v. Globe Nuclear Serv. & Supply, Ltd., 656 F. Supp. 

2d 550, 558 (D. Md. 2009), aff’d, 404 Fed. App’x 793 (4th Cir. 2010) (applying Swedish law to validity questions relating to arbitration seated in Sweden); Spier v. Calzaturificio Tecnica, SpA, 71 F. Supp. 2d 279, 283 (S.D.N.Y. 1999) (applying Italian law 

to validity questions relating to arbitration seated in Italy).

295. See Four Seasons Hotel & Resorts, B.V. v. Consorcio Barr, S.A., 533 F.3d 

1349, 1352 n.5 (11th Cir. 2008).

296. See New York Convention, supra note 6, art. V(1)(b).

297. See id. art. V(1)(a)–(b).
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viewed as providing the basis for uniform international standards of 

procedural fairness,” which is to be “applied in light of the Convention’s general pro-enforcement objectives.”298 

U.S. courts have indicated that the character of the arbitration as 

an international proceeding must be considered, even when domestic 

legal principles are invoked.

299 Therefore, it is enough if the broad 

principles of due process and procedural fairness are met, even if the 

precise means by which these objectives are fulfilled differ from procedures used in U.S. courts.300 

c. Article V(1)(c)—difference not contemplated by or within the terms of

the submission of arbitration or beyond the scope of the submission to

arbitration

The third ground for objection to the enforcement of foreign arbitral 

awards under the New York Convention focuses on whether the tribunal has in some way exceeded or abused its jurisdiction, either by 

going beyond or failing to address the matters that were submitted to 

arbitration.

301 

Most U.S. courts construe the language of Article V(1)(c) narrowly, since arbitral tribunals are presumed to have acted within the scope 

of their duties.

302 One source of potential confusion involves challenges to awards “based on objections to the arbitrators’ substantive 

contract interpretations or legal conclusions, or to the arbitrators’ procedural rulings.”303 Neither allegation can be properly made under Article V(1)(c) because substantive objections to the award may not be 

raised under Article V and arguments about the fairness of the arbitral 

procedure should fall under Article V(1)(b) or V(1)(d).304 

298. Born, supra note 9, at 2738; see also Lew et al., supra note 48, ¶ 26–81.

299. See Employers Ins. of Wausau v. Banco de Seguros del Estado, 199 F.3d 937, 

943–44 (7th Cir. 1999).

300. See id.

301. See New York Convention, supra note 6, art. V(1)(c).

302. See Mgmt. & Tech. Consultants S.A. v. Parsons-Jurden Int’l Corp., 820 F.2d 

1531, 1534 (9th Cir. 1987); Parsons & Whittemore Overseas Co. v. Societe Generale 

De L’Industrie Du Papier (RATKA), 508 F.2d 969, 976 (2d Cir. 1974). 

303. Born, supra note 9, at 2800.

304. See New York Convention, supra note 6, art. V.
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d. Article V(1)(d)—composition of the tribunal or arbitral procedure 

Challenges to the composition of the tribunal and the arbitral procedure are the most commonly raised objections to enforcement of a foreign arbitral award under the New York Convention.305 Application of 

Article V(1)(d) is relatively straightforward in cases in which the parties have agreed to have their arbitration governed by a set of institutional rules. The relevant standards regarding arbitral procedure and 

the composition of the arbitral tribunal usually are stated in the rules.

When considering whether and to what extent the underlying arbitration complied with the designated rules, U.S. courts look not only to 

the language of the rules themselves but also to previously published

arbitral awards (particularly those construing the rules in question, 

although analogies can be drawn from similar provisions from other 

arbitral institutions) and scholarly commentary. These sources provide 

important insights into how arbitral tribunals and institutions—the 

entities who are entrusted by the parties to make these procedural decisions and who are most familiar with the rules—view the issues 

raised.

306

The situation is slightly more complicated when the parties have 

neither agreed to abide by any particular set of arbitral rules nor explicitly addressed the disputed issue in their arbitration agreement.307

In these cases, questions regarding the arbitral procedure and composition of the arbitral tribunal are governed by the law of the arbitral 

seat.

308 This means U.S. courts should look to the arbitration law of 

the seat of arbitration, not that country’s national rules of civil procedure, which are not applicable in arbitration absent a very clear party 

 

305. See id., art. V(1)(d).

306. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002) (noting 

arbitrators are “comparatively better able to interpret and to apply” the rules of their 

arbitral institution than are courts); China Minmetals Materials Imp. & Exp. Co. v. 

Chi Mei Corp., 334 F.3d 274, 288–89 n.14 (2d Cir. 2003) (considering similarities 

between different rule sets).

307. See Encyclopaedia Universalis SA v. Encyclopaedia Britannica, Inc., 403 F.3d 

85, 91 (2d Cir. 2005) 91 (upholding parties’ agreement in case in which no institutional rules applied).

308. See New York Convention, supra note 6, art. V(1)(d); Pactrans Air & Sea, 

Inc. v. China Nat’l Chartering Corp., No. 3:06-cv-369/RS-EMT, 2010 WL 1332085, at 

*1–2 (N.D. Fla. Mar. 29, 2010).
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agreement.

309 U.S. law is irrelevant to the determination of these issues.

To be actionable, a procedural irregularity must be relatively egregious. Some U.S. courts faced with objections to enforcement of an 

arbitral award under Article V(1)(d) have stated that “because of the 

clear ‘pro-enforcement bias’ of the New York Convention, it is appropriate to ‘set aside an award based on a procedural violation only if 

such violation worked substantial prejudice to the complaining party.’”310 U.S. courts also give a high degree of deference to the decisions 

of the arbitrators.

311

However, awards will be refused enforcement if the procedure fails 

to comply with the parties’ agreement. For example, the arbitration 

agreement in Encylopaedia Universalis S.A. v. Encylopaedia Britannica, 

Inc., indicated that the parties were each to appoint an arbitrator, and, 

“[i]n the event of disagreement between these two arbitrators, they 

shall choose a third arbitrator who will constitute with them the Board 

of Arbitration. Upon the failure of the two arbitrators to reach agreement upon the choice of a third arbitrator,” one of the two partyappointed arbitrators could make a request to the President of the Tribunal of Commerce of the Seine to appoint the third arbitrator.312 Following some initial discussions between the two party-appointed arbitrators regarding the scope of the dispute and basic procedural issues, 

one arbitrator contacted the President of the Tribunal of Commerce of 

the Seine to appoint a chair, even though the two party-appointed arbitrators had not discussed either the merits of the case or the identity 

of a third arbitrator. A third arbitrator was eventually selected by an 

 

309. See In re Arbitration Between InterCarbon Bermuda, Ltd. and Caltex Trading 

& Transp. Corp., 146 F.R.D. 64, 72 (S.D.N.Y. 1993).

310. Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas 

Bumi Negara, 190 F. Supp. 2d 936, 945 (S.D. Tex. 2001) (quoting Compagnie des 

Bauxites de Guinee v. Hammermills, Inc., No. 90-0169, 1992 WL 122712 (D.D.C. 

May 29, 1992)).

311. See Lagstein v. Certain Underwriters at Lloyd’s, London, 607 F.3d 634, 643–

44 (9th Cir.) cert. denied, 131 S. Ct. 832 (2010); Compagnie des Bauxites de Guinee, No. 

90-0169, 1992 WL 122712, at *5 (stating that “[t]he Court does not believe that section 1(d) of Article V was intended, as CBG argues, to permit reviewing courts to police every procedural ruling made by the Arbitrator and to set aside the award if any

violation of ICC procedures is found”).

312. Encyclopaedia Universalis, 403 F.3d at 87 n.1.
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appointing institution, despite the fact that the two party-appointed 

arbitrators had never conferred regarding the identity of the third panelist.

The parties were ordered to proceed with the arbitration over the 

objection of the party whose arbitrator had not initiated the request 

for the third panelist, and an award was rendered against the objecting 

party despite the non-attendance of the objecting party and the party’s 

appointed arbitrator. When the award was brought to be enforced in 

the United States, the motion was denied on the grounds that the parties’ appointment procedure had not been followed, since the partyappointed arbitrators had not had a chance to confer regarding the

appointment of the third panelist before the letter was sent to the neutral appointing entity.313

e. Article V(1)(e)—award not yet binding or set aside by a competent 

authority

The final ground for objection under Article V(1) of the New York 

Convention involves an award that is not yet binding or that has been 

set aside by a competent authority.314 An award is considered “‘binding’ for the purposes of the Convention if no further recourse may be 

had to another arbitral tribunal (that is, an appeals tribunal). The fact 

that recourse may be had to a court of law does not prevent the award 

from being ‘binding.’”315

Concerns about awards being “not yet binding” can also arise in 

the context of motions to enforce partial or interim awards.316 The 

analysis in these cases focuses on whether immediate enforcement is 

necessary to protect the final award or whether the parties have expressed an interest in immediate resolution of this particular issue.317

In determining whether an award should be considered final, courts

 

313. See New York Convention, supra note 6, art. V(1)(d); Encyclopaedia Universalis, 403 F.3d at 90–91.

314. See New York Convention, supra note 6, art. V(1)(e).

315. Fertilizer Corp. of India v. IDI Mgmt. Inc., 517 F. Supp. 948, 958 (S.D. Ohio 

1981) (citation omitted).

316. See Hall Steel Co. v. Metalloyd Ltd., 492 F. Supp. 2d 715, 717–18 (E.D. 

Mich. 2007).

317. See id. at 719–20.
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typically look past the nomenclature of “partial” or “interim” awards 

and focus on the substance of the award.318

The second element of Article V(1)(e) addresses whether the 

award “has been set aside or suspended by a competent authority of 

the country in which, or under the law of which, that award was 

made.”319 This language is the genesis for the U.S. distinction between 

courts with primary jurisdiction and those with secondary jurisdiction, and for the conclusion that only courts of primary jurisdiction 

are considered capable of setting aside an arbitral award.

320 Decisions 

rendered by courts with secondary jurisdiction have no effect elsewhere in the world, and enforcing courts should not consider those 

decisions as part of the enforcement analysis.321

Questions arise as to the criteria that should be used to determine 

whether an award that has been set aside in the primary jurisdiction 

nevertheless should be enforced in the United States. These criteria 

also may influence whether a U.S. court considers it proper to stay 

enforcement proceedings pending a decision by a court with primary 

jurisdiction on a motion to vacate.322

The New York Convention provides no guidance on these issues,

and no consensus exists internationally as to how enforcing courts

should treat an award that has been set aside by a competent court.

U.S. courts demonstrate some consistency in this area, although a few 

outlying opinions exist. The first U.S. case to deal with this issue was 

Chromalloy Gas Turbine Corp. v. Arab Republic of Egypt, which ultimately enforced an Egyptian arbitral award notwithstanding the fact 

that an Egyptian court had nullified the award on the grounds that the

arbitral tribunal had misapplied Egyptian law.323 The U.S. judge pointed to several aspects of the Egyptian judicial process that raised con-

 

318. See Publicis Comm. v. True North Comm., Inc., 206 F.3d 725, 729 (7th Cir. 

2000).

319. New York Convention, supra note 6, art. V(1)(e).

320. See supra notes 93–108 and accompanying text.

321. See Nicor Int’l Corp. v. El Paso Corp., 292 F. Supp. 2d 1357, 1375 (S.D. Fla. 

2003).

322. See New York Convention, supra note 6, art. VI (stating an enforcing court 

“may, if it considers it proper, adjourn the decision on the enforcement of the award” 

pending a decision on a motion made to a competent authority to set aside or suspend 

an award).

323. 939 F. Supp. 907, 911 (D.D.C. 1996).
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cerns about the legitimacy of the order nullifying the award. For example, the Egyptian decision appeared to espouse a “suspicious view 

of arbitration” that reflected “precisely the type of technical argument 

that U.S. courts are not to entertain when reviewing an arbitral 

award.”324 Furthermore, the Egyptian court’s decision was made in 

spite of a contractual provision stating that Egypt would not seek review of the award. This suggested that non-enforcement of the award 

by the U.S. court “would not only allow the respondent to repudiate 

its solemn promise but would, as well, reflect a parochial concept that 

all disputes must be resolved under” the laws and courts of the arbitral 

seat.325

Because the Egyptian court acted in a manner contrary to both a

fundamental U.S. public policy prohibiting substantive judicial review 

of arbitral awards and the parties’ express agreement waiving any such 

review, the court in Chromalloy held that the decision to set aside the 

award at the place where it was rendered was not sufficient reason to 

block enforcement of the award in the United States. Instead, the U.S. 

court exercised its discretionary power and allowed enforcement of 

the award, despite the fact that the objection technically met the criteria for non-enforcement outlined in Article V(1)(e).326

Chromalloy emphasized the fact that a court faced with an objection under Article V(1)(e) of the Convention has the discretion to enforce or not to enforce the award. Other U.S. courts have also recognized this discretionary power, which is made explicit in Article

V(1)(e).

327

 

324. See id.

325. Id.

326. See New York Convention, supra note 6, art. V(1)(e); Chromalloy, 939 F. 

Supp. at 912.

327. See New York Convention, supra note 6, art. V(1)(e) (finding enforcement 

“may be refused”); Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak 

Dan Gas Bumi Negara, 335 F.3d 357, 367 (5th Cir. 2003); Baker Marine Ltd. v. Chevron Ltd., 191 F.3d 194, 197 n.3 (2d Cir. 1999). One U.S. court took the unusual position that there is a mandatory duty to deny enforcement of an award that has been set 

aside at the arbitral seat. See Termorio S.A. E.S.P. v. Eltranta S.P., 487 F.3d 928, 936 

(D.C. Cir. 2007). However, this case contravenes the express provisions of the New 

York Convention and the weight of U.S. authority. See New York Convention, supra

note 6, art. V(2)(a) (noting that the power of non-enforcement is discretionary).
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U.S. courts have identified several criteria that may be relevant in 

determining whether a U.S. court should enforce an award that has 

been set aside at the seat. Chromalloy suggests that judges reviewing 

this issue examine the grounds on which the set-aside was founded.

328

If the reason for the set-aside is included in Article V of the New York 

Convention, then it may be appropriate to deny enforcement in the 

United States as well.

329 On the other hand, annulments that appear to 

be based on “parochial” or self-protective rationales might not be considered sufficient grounds for non-enforcement elsewhere.330 

f. Article V(2)(a)—subject matter not capable of settlement by

arbitration

The second set of objections to enforcement involves those that fall 

under Article V(2). These provisions may be raised by a party or by 

the court. As noted earlier, the court’s power to deny enforcement of a 

foreign arbitral award under Article V(2) is discretionary, not mandatory.331 

The first of the two grounds for non-enforcement found in Article

V(2) deals with arbitrability in the international sense, that is, whether 

a particular country permits certain types of disputes to be resolved in 

arbitration.

332 Article V(2)(a) therefore allows non-enforcement of an 

award in cases in which “the subject matter of the difference is not 

capable of settlement by arbitration” under the law of the enforcing 

state.333 

This language resembles that of Article II(1), which describes a

contracting state’s affirmative obligation to recognize arbitration 

agreements “concerning a subject matter capable of settlement by arbitration.”334 The similarity of language used in these two provisions

suggests that questions of arbitrability should be addressed in a paral328. See Chromalloy, 939 F. Supp. at 911–12.

329. See Spier v. Calzaturificio Tecnica, SpA, 71 F. Supp. 2d 279, 287 (S.D.N.Y. 

1999) (denying enforcement where the underlying award was determined to be in 

excess of jurisdiction).

330. See Chromalloy, 939 F. Supp. at 911–12.

331. See New York Convention, supra note 6, art. V(2) (stating enforcement “may 

. . . be refused”).

332. See id. art. V(2)(a).

333. Id. 

334. Id. art. II(1).
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lel manner. In other words, if the subject matter of an arbitration 

agreement cannot support a motion to compel arbitration, it cannot 

support a motion to enforce an award arising out of an arbitration 

based on that agreement, and vice versa.

335

Like other grounds for objection to enforcement under the New 

York Convention, this provision is to be construed narrowly.

336 Furthermore, “it is essential . . . to distinguish between matters which are 

non-arbitrable in a domestic context and those which are nonarbitrable in an international context. In many jurisdictions, nonarbitrability rules are broader in domestic than in international matters.”337 The U.S. Supreme Court has recognized that there are times 

when it is “necessary for national courts to subordinate domestic notions of arbitrability to the international policy favoring commercial 

arbitration.”338

The FAA is silent on what matters are to be considered arbitrable, 

which means that federal judges must look to case law, policy, and

substantive statutes to assess arbitrability.339 Case law demonstrates a 

clear and consistent approach to arbitrability, such that all claims are

deemed arbitrable unless Congress “expressly directed” a contrary result.340 Enforcement of arbitration agreements and awards may be appropriate in the international realm “even assuming that a contrary 

result would be forthcoming in a domestic context.”341 To be nonarbitrable under Article V(2)(a), matters must reflect a “special national interest vested in their resolution.”342

These and other precedents illustrate that a vast array of types of 

disputes are considered arbitrable in the United States. Indeed, the 

 

335. See Born, supra note 9, at 2863.

336. See Saudi Iron & Steel Co. v. Stemcor USA Inc., No. 97 CIV 5976(DLC), 

1997 WL 642566, at *3 (S.D.N.Y. Oct. 17, 1997).

337. Born, supra note 9, at 775.

338. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 639 

(1985).

339. See Born, supra note 9, at 781.

340. See Mitsubishi Motors, 473 U.S. at 639–40 n.21.

341. Id. at 627.

342. Parsons & Whittemore Overseas Co. v. Societe Generale De L’Industrie Du 

Papier (RATKA), 508 F.2d 969, 975 (2d Cir. 1974); see New York Convention, supra

note 6, art. V(2)(a).
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United States is known to have one of the broadest approaches to arbitrability in the world.

343

g. Article V(2)(b)—public policy

The final ground for non-enforcement of a foreign arbitral award under the New York Convention is one of the most cited as well as one 

of the least successful. Article V(2)(b) allows (but does not require) 

courts to refuse recognition and enforcement of foreign arbitral awards 

on the basis of public policy of the state in which enforcement is 

sought. The public policy exception is construed narrowly.

344 Even 

though the Convention refers clearly to the public policy of the enforcing state,

it has been a consistent theme of recognition decisions under Article

V(2)(b) to interpret national public policies in a manner that is consistent, insofar as possible, with the objectives of the Convention and 

the public policies and interests of other Contracting States. This approach has manifested itself in two principal ways: (a) the application of “international” public policies, rather than domestic public 

policies, under Article V(2)(b), and (b) the exercise of a substantial 

degree of restraint and moderation in the application of public policies under Article V(2)(b).345

Thus, U.S. courts have noted that

[t]o read the public policy defense as a parochial device protective of 

national political interests would seriously undermine the Convention’s utility. This provision was not meant to enshrine the vagaries 

of international politics under the rubric of “public policy.” Rather, a 

circumscribed public policy doctrine was contemplated by the Convention’s framers and every indication is that the United States, in 

acceding to the Convention, meant to subscribe to this supranational 

emphasis.346

Other U.S. courts have limited application of Article V(2)(b) to 

“only those circumstances ‘where enforcement would violate our most 

 

343. See supra notes 109–32 and accompanying text.

344. See Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas 

Bumi Negara, 364 F.3d 274, 306 (5th Cir. 2004). 

345. Born, supra note 9, at 2833.

346. Parsons & Whittemore, 508 F.2d at 974 (emphasis added).
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85

basic notions of morality and justice.’”347 Article V(2)(b) does not 

permit non-enforcement based on “erroneous legal reasoning or misapplication of law,” two theories that are reminiscent of the highly 

controversial principle of “manifest disregard of law” seen in some 

vacatur cases.348 

4. Preclusive effects of an arbitral award

Parties to arbitration have raised the preclusive effects of an international arbitration, invoking either the doctrine of res judicata (claim 

preclusion) or issue preclusion. These concepts typically affect only

the original parties to the suit. Res judicata forbids the relitigation of a 

particular claim between the parties, and issue preclusion prevents the 

relitigation of a particular issue of law or fact. Issue preclusion may 

also be asserted, offensively or defensively, in disputes involving a 

non-party to an arbitration. 

 Principles of preclusion clearly operate in international commercial arbitration, though there is no consensus on the precise rules that 

apply. The New York Convention and the FAA are silent on this issue, 

although under the Convention, contracting states are to “enforce” 

arbitral awards and recognize such awards as “binding.”349 

Although there is not a great deal of case law on this issue, analogies are often made to preclusive principles developed in litigation.

“Under [the doctrine of] issue preclusion, also known as collateral 

estoppel, ‘once a court has decided an issue of fact or law necessary to 

its judgment, that decision may preclude relitigation of the issue in a 

suit on a different cause of action involving a party to the first case.’”350

This proposition applies equally in the arbitral realm, since “an arbitrator generally has the power to determine whether a prior award is 

to be given preclusive effect.”351 

347. Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 411 (2d Cir. 

2009) (citation omitted).

348. See supra notes 257–61 and accompanying text; Karaha Bodas Co., 364 F.3d 

at 306.

349. New York Convention, supra note 6, art. III.

350. Air Line Pilots Ass’n Int’l v. Trans States Airlines, LLC, 638 F.3d 572, 579 

(8th Cir. 2011) (citations omitted).

351. Id. (citation omitted).
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In proper circumstances, an arbitral award may have preclusive 

effect over a non-party.352 There is no requirement that the award be 

confirmed or that the tribunal have resolved every outstanding issue.

353 Even if an award does not have preclusive power, it may still be 

persuasive in a later dispute.354

Issue preclusion is not the only type of preclusion that can arise in 

the arbitral realm. Arbitral awards are regularly considered to have res 

judicata effect as to all claims heard by the arbitrator, an approach that 

logically follows the principle that arbitration constitutes a final and 

binding dispute resolution mechanism.

355 However, recognition of the 

principle of res judicata status does not mean that a party may not object to the enforcement of that award under the New York Convention.

356

Claim preclusion does not operate in precisely the same way in 

arbitration as it does in litigation because arbitration is a contractual 

construct that can limit the claims brought in a particular proceeding.357 Nevertheless, courts have applied the concept of claim preclusion in the arbitral context. For example, a claimant who had “brought 

an action against the same party, complaining of the same wrongful 

discharge based on pursuit of worker’s compensation benefits, which 

resulted in a final arbitration decision on the matter,” was barred from 

bringing a subsequent action for retaliatory discharge, based on the 

existence of the arbitral award.358

There is some debate as to whether an arbitral award has preclusive effect immediately after it is rendered or whether some judicial 

action must first take place. In the United States, an award has preclusive effect after being confirmed under the FAA because the award 

 

352. See Universal Am. Barge Corp. v. J-Chem., Inc., 946 F.2d 1131, 1139, 1142 

(5th Cir. 1991) (involving a party who had allegedly been “vouched” into the arbitration); In re Kaiser Group Int’l, Inc., 375 B.R. 120, 128–29 (Bankr. D. Del. 2007) (involving alleged privity between a corporate parent and a subsidiary).

353. See Asahi Glass Co. v. Toledo Eng’g Co., 505 F. Supp. 2d 423, 430–31 & n.2 

(N.D. Ohio 2007).

354. See Acosta v. Master Maint. & Constr. Inc., 452 F.3d 373, 377–78 n.7 (5th 

Cir. 2006).

355. See FleetBoston Fin. Corp. v. Alt, 638 F.3d 70, 79 (1st Cir. 2011).

356. See Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141, 145 (2d Cir. 1992).

357. See Wolf v. Gruntal & Co., 45 F.3d 524, 528 (1st Cir. 1995).

358. Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1147–48 (10th Cir. 2007).
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then holds the status of a civil judgment as well as an arbitral award.

359

At one time, courts appeared hostile to granting res judicata value to 

anything other than a confirmed award.360 However, U.S. courts have

granted preclusive effect to arbitral awards immediately after they are

rendered.361

V. Special Issues Regarding Parties to International 

Commercial Arbitration

The following discussion addresses issues that are not related to specific procedural motions: actions involving non-signatories, multiparty 

arbitrations, and state actors. 

A. Non-signatories 

Only parties who have signed an arbitration agreement are bound by

its terms. However, international proceedings involving non-signatories give rise to a few issues that do not exist in domestic matters. 

Disputes involving non-signatories often focus on whether the alleged non-signatory has signed the relevant document or documents. 

Under the New York Convention, an arbitration agreement is only enforceable if it involves an “agreement in writing,” which includes “an 

arbitral clause in a contract or an arbitration agreement, signed by the 

parties or contained in an exchange of letters or telegrams.”362 

U.S. courts are divided on their analysis of the writing requirement 

in international commercial arbitration.363 For example, courts take 

different approaches to the question whether the relevant document or 

documents need to be signed by both parties.

364 There also is no con359. See 9 U.S.C. §§ 207, 302 (2012).

360. See Jacobson v. Fireman’s Fund Ins. Co., 111 F.3d 261, 267 (2d Cir. 1997).

361. See id. at 267–68; Asahi Glass Co. v. Toledo Eng’g Co., 505 F. Supp. 2d 423, 

430–31 & n.2 (N.D. Ohio 2007).

362. New York Convention, supra note 6, art. II.

363. See S.I. Strong, What Constitutes an “Agreement in Writing” in International 

Commercial Arbitration? Conflicts Between the New York Convention and the Federal 

Arbitration Act, 48 Stan. J. Int’l L. 47 (2012).

364. Compare Kahn Lucas Lancaster, Inc. v. Lark Int’l, Ltd., 186 F.3d 210, 218 

(2d Cir. 1999), partially abrogated on other grounds, Sarhank Group, 404 F.3d at 660 

n.2, with Sphere Drake Ins. PLC v. Marine Towing, Inc., 16 F.3d 666, 696 (5th Cir.

1994); see also Smith/Enron Cogeneration Ltd. P’ship, Inc. v. Smith Cogeneration Int’l, 

Inc., 198 F.3d 88, 92 (2d Cir. 1999).
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sensus as to whether and to what extent parties can rely on the definition of a written agreement that is reflected in Chapter 2 of the FAA 

rather than the definition contained in Article II(2) of the New York 

Convention.

365

The United States is not the only country to struggle with these 

issues. Given the great need for predictability in this area, the international arbitral community has attempted to clarify the writing requirement through a formal recommendation issued by UNCITRAL in 

2006.

366 This document recognizes that the drafters of the New York 

Convention hoped that “greater uniformity of national laws on arbitration would further the effectiveness of arbitration in the settlement of 

private law disputes.”367 The UNCITRAL Recommendation therefore 

suggests that “the circumstances described” in Article II(2) regarding 

the definition of an “agreement in writing” not be considered “exhaustive,” thus making it easier for courts to find that an arbitration 

agreement exists.368

If a party is unable to meet the definition of an “agreement in writing,” that party may nevertheless be brought into an arbitration proceeding under one of the many theories used for this purpose. These 

theories include “agency (actual and apparent), alter ego, implied consent, ‘group of companies,’ estoppel, third-party beneficiary, guarantor, subrogation, legal succession and ratification of assumption.”369 A 

number of these concepts have been used in international disputes as 

well.370

 

365. See New York Convention, supra note 6, art. II(2); 9 U.S.C. §§ 2, 202; Sourcing Unlimited, Inc. v. Asimco Int’l, Inc., 526 F.3d 38, 45 (1st Cir. 2008).

366. See UNCITRAL, Recommendation Regarding the Interpretation of Article II, 

Paragraph 2, and Article VII, Paragraph 1, of the Convention on the Recognition and 

Enforcement of Foreign Arbitral Awards, U.N. Doc. A/6/17 (July 7, 2006) [hereinafter 

UNCITRAL Recommendation].

367. Id.

368. Id.; see also Coutinho Caro & Co. U.S.A. v. Marcus Trading, Inc., No. 

3:95CV2362, 2000 WL 435566, at *11 (D. Conn. Mar. 14, 2000) (noting Article II(2) 

should be read broadly to effectuate the purpose of the Convention).

369. Thomson-CSF, SA v. Am. Arbitration Ass’n, 64 F.3d 773, 776 (2d Cir. 

1995).

370. See Invista S.A.R.L. v. Rhodia, Ltd., 625 F.3d 75, 85 (3rd Cir. 2010); InterGen NV v. Grina, 344 F.3d 134, 145–50 (1st Cir. 2003). 
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When considering the standards that should apply to nonsignatories in international commercial arbitration,

[t]he touchstone should be whether the parties intended that a nonsignatory be bound by and benefit from the arbitration clause. Answering that question cannot be achieved through abstract generalizations, but requires focused consideration of the arbitration clause’s 

language and the relations and dealings among the parties in a specific factual setting.371

B. Multiparty Arbitration

Multiparty arbitration proceedings are being used with increasing frequency. A significant proportion of the caseload of several international arbitral institutions involves multiparty proceedings.372 Multiparty 

proceedings arise in a variety of contexts, including consolidation of 

proceedings, joinder and intervention of parties, and class or collective 

arbitration.

Multiparty disputes often include debates about non-signatories;

the party who is to be brought into an existing bilateral arbitration

may not have signed the same arbitration agreement as the other parties. Multiparty arbitrations can also arise in situations in which all the 

parties have signed the same arbitration agreement. Accordingly, the 

multiparty analysis must be conducted separately from the nonsignatory analysis, even if both issues arise in a particular dispute and 

even if certain legal theories—such as that involving groups of companies—are used to justify both the inclusion of a non-signatory and 

the use of a multiparty procedure.

Neither the New York Convention nor the Panama Convention 

expressly addresses multiparty arbitration, although these conventions 

have been held to apply to multiparty proceedings.373 Similarly, 

though the FAA is also silent on the issue of multiparty arbitration,

 

371. Born, supra note 9, at 1206.

372. See Lew et al., supra note 48, ¶ 16-1 (noting that the percentage of multiparty arbitrations administered by the ICC rose from 20% to 30% during the period 1995 

to 2001); Martin Platte, When Should an Arbitrator Join Cases? 18 Arb. Int’l 67, 67 

(2002) (noting that more than 50% of LCIA arbitrations reportedly involve more than 

two parties).

373. See Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas 

Bumi Negara, 190 F. Supp. 2d 936, 946 (S.D. Tex. 2001); Born, supra note 9, at 2073–

74 (citing Articles II(1) and II(3) of the New York Convention).
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numerous U.S. courts have upheld multiparty proceedings. The arbitrator usually decides whether multiparty treatment is appropriate under the parties’ agreement unless the parties have agreed otherwise.

374 

 Multiparty arbitration may be based on implied consent, as 

demonstrated by the language contained in the agreement between the 

parties as well as the governing law and arbitral rules, so that a court 

may determine whether the parties have demonstrated the requisite 

consent to multiparty arbitration.

375 This approach is consistent with 

international practice.

376 

C. State Actors 

U.S. courts may also face situations involving international arbitral 

proceedings brought by or against states or state-affiliated entities. 

These are not treaty-based arbitrations, such as those discussed 

above,

377 nor are they state-to-state proceedings. Instead, these disputes involve states and state agencies or instrumentalities behaving as 

private commercial actors. 

Disputes involving public actors give rise to the same kinds of issues and problems that arise in purely private disputes, with one additional element: foreign states, agencies, and instrumentalities may object to the jurisdiction of a U.S. court on the grounds of sovereign 

immunity.

378 Such objections usually implicate a specific exception to 

immunity under the Foreign Sovereign Immunities Act (FSIA), which 

states: 

(a) A foreign state shall not be immune from the jurisdiction of 

courts of the United States or of the States in any case— 

374. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003) (plurality opinion); Certain Underwriters at Lloyd’s London v. Westchester Fire Ins. Co., 489 F.3d 

580, 586–87 (3d Cir. 2007); Safra Nat’l Bank of New York v. Penfold Inv. Trading, 

Ltd., No. 10 Civ. 8255(RWS), 2011 WL 1672467, at *3–5 (S.D.N.Y. Apr. 20, 2011).

375. See Anwar v. Fairfield Greenwich Ltd., 728 F. Supp. 2d 462, 477–78 

(S.D.N.Y. 2010) (noting an agreement to allow multiparty proceedings can be implied, 

based on, among other things, contractual provisions and structure); Lew et al., supra 

note 48, ¶ 16-8.

376. See S.I. Strong, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual 

Silence or Ambiguity? 30 Mich. J. Int’l L. 1017, 1059–83 (2009).

377. See supra notes 2–3 and accompanying text.

378. See 28 U.S.C. § 1603 (2012).
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. . . .

(6) in which the action is brought, either to enforce an agreement 

made by the foreign state with or for the benefit of a private party to 

submit to arbitration all or any differences which have arisen or 

which may arise between the parties with respect to a defined legal 

relationship, whether contractual or not, concerning a subject matter

capable of settlement by arbitration under the laws of the United 

States, or to confirm an award made pursuant to such an agreement 

to arbitrate, if (A) the arbitration takes place or is intended to take 

place in the United States, (B) the agreement or award is or may be 

governed by a treaty or other international agreement in force for the 

United States calling for the recognition and enforcement of arbitral 

awards, (C) the underlying claim, save for the agreement to arbitrate, 

could have been brought in a United States court under this section 

or section 1607, or (D) paragraph (1) of this subsection is otherwise 

applicable.379

Alternatively, states that are parties to arbitration agreements may be 

said to have waived their immunity implicitly or explicitly.

380

Because the statute only mentions motions to compel arbitration 

and motions to enforce arbitral awards, this raises the question whether a U.S. court has jurisdiction over a foreign state or state agency in a 

proceeding involving a motion for provisional relief. There is little authority on this issue, although courts have accepted jurisdiction over a 

foreign state in cases involving enforcement of an interim order regarding prejudgment security.381 Attempting to stay an improperly initiated arbitration will not necessarily result in loss of sovereign immunity.382

For the most part, international commercial arbitration treats state 

actors the same as non-public parties. A state entity can be brought 

into an arbitration as a non-signatory.

383

 

379. Id. § 1605(a)(6).

380. See id. § 1605(a)(1).

381. See Banco de Seguros del Estado v. Mut. Marine Offices, Inc., 230 F. Supp. 

2d 362, 367–72 (S.D.N.Y. 2002), aff’d, 344 F. 3d 255 (2d Cir. 2003).

382. See Republic of Ecuador v. Chevron Texaco Corp., 376 F. Supp. 2d 334, 

371–72 (S.D.N.Y. 2005).

383. See U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 

146 (2d Cir. 2001); Born, supra note 9, at 1203.
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One exception to this general rule is that foreign states and state 

agencies are distinguishable from private parties in that “foreign states 

are not ‘persons’ entitled to rights under the Due Process Clause” of 

the U.S. Constitution.384 Thus, parties bringing a motion to compel 

arbitration or enforce an arbitral award against a foreign state do not 

have to demonstrate that a U.S. court has personal jurisdiction over 

the foreign state in the constitutional sense (i.e., that the minimum 

contacts test has been met). U.S. courts have not yet addressed whether and to what extent this principle extends to other state-affiliated 

entities, such as state-owned foreign corporations.

385

VI. Conclusion

International commercial arbitration is a complicated area of law requiring detailed knowledge not only of domestic legal principles but 

also of international law and practice. The U.S. Supreme Court has 

recognized the unique position that international commercial arbitration holds in the world of dispute resolution and has instructed lower 

federal courts to show great deference to international norms in order 

to ensure the consistency and predictability that is vital to the effective 

functioning of the global economy.

386

Although many of the legal principles applicable to domestic arbitration appear similar to those used in international disputes, the two 

mechanisms are not identical. Some procedures, practices, and policies 

are entirely unique to international commercial arbitration. Courts 

also must rely on a variety of legal authorities that are not commonly 

considered in domestic disputes, including foreign statutes and judicial opinions, arbitral rules and awards, and scholarly treatises and 

commentary. Furthermore, courts must be cognizant of U.S. treaty 

obligations. All of these issues can make litigation involving international commercial arbitration particularly challenging.

Perhaps the most challenging concern facing U.S. courts involves 

understanding the way that U.S. law interacts with international law.

 

384. See Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 

582 F.3d 393, 400 (2d Cir. 2009).

385. Id. at 401.

386. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 

627 (1985).
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This inquiry not only involves a textual analysis of both the FAA and 

the relevant international instrument (typically the New York Convention but also possibly the Panama Convention) but also requires an 

understanding of how the issue facing the court affects proceedings in 

foreign courts and the arbitration itself. The task is further complicated by the fact that the New York and Panama Conventions are intended to be interpreted consistently across national borders; courts must

consider international consensus on how treaty provisions are to be 

judicially interpreted and applied. As a result, courts can expect to see 

parties provide an increasing number of references to foreign law and 

international commentary, two principal sources of international consensus.

International commercial arbitration already is the preferred 

means of resolving cross-border business disputes. As cross-border 

business opportunities for and with U.S. citizens and companies continue to expand, this trend will most likely continue. U.S. federal 

courts will doubtless be asked to provide assistance in many of these 

proceedings, primarily through motions to enforce an arbitration 

agreement or award but also through requests for related types of judicial relief. These judicial proceedings will not be limited to regions 

of the country that have traditionally been associated with international law and commerce.
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Further Reading

International commercial arbitration is a rapidly growing field, and it 

is impossible to include a comprehensive list of relevant materials 

here. However, an extensive bibliography of recent monographs, treatises, specialty journals, and arbitral reporters on international commercial arbitration can be found in S.I. Strong, Research and Practice in 

International Commercial Arbitration: Sources and Strategies (2009). A

more condensed version is available in S.I. Strong, Research in International Commercial Arbitration: Special Skills, Special Sources, 20 Am. 

Rev. Int’l Arb. 119 (2009).

 Treatises are considered highly persuasive in this area of law, since 

international commercial arbitration is strongly influenced by international consensus, which is reflected in international commentary. 

Some well-respected authorities are the following: 

• Emmanuel Gaillard & John Savage, Fouchard Gaillard Goldman on International Commercial Arbitration (1999); 

• Gary B. Born, International Commercial Arbitration (2009);

• Julian D.M. Lew et al., Comparative International Commercial

Arbitration (2003);

• Margaret Moses, The Principles and Practice of International

Commercial Arbitration (2008);

• Nigel Blackaby et al., Redfern and Hunter on International Arbitration (2009);

• W. Laurence Craig et al., International Chamber of Commerce

Arbitration (2001); and

• International Council for Commercial Arbitration, ICCA’s

Guide to the Interpretation of the 1958 New York Convention

(created with the assistance of the Permanent Court of Arbitration at the Peace Palace, The Hague), available at http://www.

arbitration-icca.org/publications/NYC_Guide.html.

Scholarly articles also hold a place of prominence in this field, although not all are found in U.S. law reviews. Authoritative sources 

from outside the United States include Arbitration International, ASA 

Bulletin, the Journal of International Arbitration, and the Yearbook of 

Commercial Arbitration.
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Glossary

AAA—the American Arbitration Association, an arbitral institution

based in the United States.

amiable compositeur—an arbitrator who is permitted to disregard or 

alter legal rules when the strict application of those rules would violate 

equity.

arbitrability (domestic sense)—the private law question relating to

whether the parties have submitted a particular dispute to arbitration.

arbitrability (international sense)—the public law question relating 

to whether a country will permit a particular subject matter to be resolved through arbitration.

arbitral seat (also “seat”)—the legal location of the arbitration and 

place from which the award is “made” (i.e., rendered or issued); not 

necessarily the place where hearings are conducted.

CIETAC—the China International Economic and Trade Arbitration 

Center, an arbitral institution based in China.

competence-competence (also Kompetenz-Kompetenz)—the principle 

that an arbitral tribunal has jurisdiction to decide its own jurisdiction.

disclosure—the process of exchanging documents and information 

prior to an arbitral hearing.

double exequatur—a system, now abolished by the New York and Panama Conventions, wherein a court at the arbitral seat had to confirm 

an arbitral award before it could be taken to another jurisdiction to be 

enforced.

ex aequo et bono—a process whereby an arbitrator is permitted to rely 

primarily on equitable principles to decide an issue or dispute in justice, fairness, and equity.

exequatur—the process by which a court officially certifies or confirms an arbitral award.

FSIA—the Foreign Sovereign Immunities Act.

functus officio—Latin for “the task is completed.”

ICC—the International Chamber of Commerce, an arbitral institution

based in France.
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ICDR—the International Centre for Dispute Resolution, the international arm of the American Arbitration Association, an arbitral institution based in the United States.

ICSID Convention (also “Washington Convention”)—the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States.

Kompetenz-Kompetenz (also competence-competence)—the principle 

that an arbitral tribunal has jurisdiction to decide its own jurisdiction.

LCIA—the London Court of International Arbitration, an arbitral institution based in the United Kingdom.

lex arbitri—the procedural law of the arbitration.

lex mercatoria—the customary international law merchant.

Model Arbitration Law (also “MAL”)—the UNCITRAL Model Law on 

International Commercial Arbitration.

New York Convention—the 1958 United Nations Convention on the 

Recognition and Enforcement of Foreign Arbitral Awards.

Panama Convention—the Inter-American Convention on International Commercial Arbitration of 1975.

primary jurisdiction—the place where the arbitral award was rendered (i.e., the arbitral seat) or the place under whose law the award 

was rendered.

SCC—the Stockholm Chamber of Commerce, an arbitral institution

based in Sweden.

seat (also “arbitral seat”)—the legal location of the arbitration and 

place from which the award is “made” (i.e., rendered or issued); not 

necessarily the place where hearings are conducted.

secondary jurisdiction—any place without primary jurisdiction.

separability—the idea that the existence, validity, and legality of the 

underlying contract does not necessarily affect the existence, validity,

or legality of the arbitration agreement.

state—in international circles, a nation state, not an individual U.S. 

state.

UNCITRAL—the United Nations Commission on International Trade 

Law.
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UNIDROIT—the International Institute for the Unification of Private 

Law (Institut International Pour l’Unification du Droit Prive), an international organization based in Italy whose purpose is to study the 

needs and methods of harmonizing and modernizing commercial law.

Washington Convention (also “ICSID Convention”)—the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States.
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Appendix 1: Summary of Legal Authorities and Their Uses

International commercial arbitration involves a wide variety of legal 

authorities. Not all of these materials are relevant to every type of motion that may be brought in a U.S. court. The following table identifies 

seven categories of sources that may be used in a judicial proceeding 

related to an international arbitration and lists the primary uses of 

each of the various sources. 

Some of these authorities differ from those that are typically relied 

upon in litigation. Other authorities are commonly found in litigation 

but are used slightly differently in arbitration-related proceedings.

These differences relate to the way in which international commercial 

arbitration blends common law and civil law procedures and the emphasis international commercial arbitration places on international 

consensus and procedural predictability. 

This table is intended only as a guide. Courts may of course consider any type of legal authority that they believe is relevant to a particular issue. Further discussion of these and related matters can be 

found in this guide at the pages listed in the table below. More extensive discussion of legal authorities in international commercial arbitration can be found in S.I. Strong, Research in International Commercial 

Arbitration: Special Skills, Special Sources, 20 Am. Rev. Int’l Arb. 119 

(2009), and S.I. Strong, Research and Practice in International Commercial Arbitration: Sources and Strategies (2009).

Source Pages Primary Use Further Information

International 

conventions and 

treaties

12–14 Enforcement proceedings; some relevance to motions to 

compel arbitration

The most important treaty is 

the 1958 United Nations Convention on the Recognition 

and Enforcement of Foreign 

Arbitral Awards (New York 

Convention).
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Source Pages Primary Use Further Information

National statutes on arbitration (including, 

among others, 

the Federal 

Arbitration Act)

14–16 Issues concerning 

the relationship between the court and 

the arbitration

The most important statute in 

the U.S. is the Federal Arbitration Act, and most issues relating to internationally oriented 

disputes fall under Chapter 2 

or 3. However, foreign arbitration laws (including those 

based on the UNCITRAL 

Model Arbitration Law) may 

govern certain ancillary matters that arise during U.S. 

proceedings.

Arbitration 

agreement and 

other agreements between 

the parties

20 Motions to compel; 

enforcement 

proceedings

The terms and existence of the 

arbitration agreement are often 

central to a motion to compel. 

If the agreement addresses the 

procedures to be used during 

the arbitration, those elements 

may be relevant during enforcement proceedings.

Case law (U.S. 

and foreign)

16–18 Various procedural 

issues before, during,

and after the arbitration

Parties may cite to both U.S. 

and foreign case law, either to 

define an issue governed by 

that state’s law or to demonstrate international consensus 

on a particular point. Some 

caution may need to be exercised, however, since case law 

does not play the same role in 

other countries that it does in 

the U.S., and U.S. law does not 

govern every issue raised in a 

U.S. court.
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Source Pages Primary Use Further Information

Arbitral rules 18–20 Enforcement proceedings; some relevance to other motions to the extent 

the rules indicate the 

parties’ agreement as 

to the jurisdictional 

responsibilities of 

the court and the 

arbitral tribunal

Arbitral rules primarily relate 

to the internal ordering of the 

arbitration and are therefore 

largely irrelevant to judicial 

proceedings. However, arbitral 

rules can be introduced during 

enforcement proceedings or to 

identify the relative jurisdiction of the court and the arbitral tribunal.

Arbitral awards 

other than that 

between the 

parties

21–23 Enforcement proceedings; some interim motionsPublished arbitral awards constitute persuasive authority on 

a variety of issues by identifying areas of international consensus. This perspective is 

most important in questions 

relating to the construction of 

arbitral rules, although there 

are other issues on which international consensus is important.

Scholarly 

works, including treatises, 

monographs, 

and law review 

articles

23–24 Various procedural 

issues before, during,

and after the arbitration.

Scholarly works are an important means of identifying 

international consensus, 

which is a central element of 

international commercial arbitration. Scholarly works also 

play a role in civil law jurisdictions that is similar to that of 

case law in common law jurisdictions.
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double-sided. 
105

Appendix 2: Jurisdictional Checklist 

Jurisdictional matters relating to international arbitration can become 

quite complicated. Not only do U.S. courts have to consider whether a 

particular issue should be heard by the arbitral tribunal, they also have 

to consider whether an issue should be adjudicated by a foreign court.

Jurisdictional determinations differ according to the type of motion and the location of the arbitration. Furthermore, there are times 

when courts should consider whether to decline jurisdiction, even if it 

technically exists, given the context of an international arbitration dispute. 

Although each matter must be considered on its own merits, the 

following checklist provides a framework to illustrate the diverse nature of jurisdictional analyses.

Prior to or at the Initiation of Arbitral Proceedings

Motion to compel arbitration (see pages 37–41)

Arbitration in the U.S.—

jurisdiction exists

Arbitration outside the U.S.—

jurisdiction technically exists, 

but should be exercised with 

caution so as to avoid infringing 

on arbitral discretion regarding 

procedural issues

Motion to stay litigation (see pages 41–42)

Litigation in the U.S.—

jurisdiction exists 

(place of arbitration is 

irrelevant)

Litigation outside the U.S.—

no jurisdiction exists, although 

an anti-suit injunction may be 

available, as discussed 

below (place of arbitration is 

irrelevant)
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Motion seeking an anti-arbitration injunction (see page 44)

Arbitration outside the U.S.—

jurisdiction may exist, but 

should be exercised with 

caution

Arbitration in the U.S.—

jurisdiction may exist, but 

should be exercised with 

caution

Motion for assistance in the naming of an arbitrator (see pages 45–47)

Arbitration outside the U.S.—

jurisdiction is questionable as a 

matter of law and policy 

Arbitration in the U.S.—

jurisdiction exists

Motion for provisional order in aid of arbitration (see pages 47–49)

Arbitration outside the U.S.—

circuits are split on 

jurisdictional issues

Arbitration in the U.S.—

jurisdiction exists, subject 

to party agreement

Motion seeking an anti-suit injunction (see pages 42–44)

Arbitration outside the U.S.—

jurisdiction may exist, but 

should be exercised with 

caution

Arbitration in the U.S.—

jurisdiction may exist, but 

should be exercised with 

caution
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During Arbitral Proceedings

Motion for disclosure or discovery in aid of an international 

arbitral proceeding (see pages 49–60)

Arbitration in the U.S.

• Motion for disclosure upon 

request or with permission 

of arbitral tribunal—

jurisdiction exists

• Motion for disclosure upon 

party motion—jurisdiction 

exists, but should be 

exercised with caution

• Motion for discovery—

jurisdiction does not exist

Arbitration outside the U.S. 

• Motion for disclosure upon 

request or with permission 

of arbitral tribunal—

jurisdiction does not exist

• Motion for disclosure upon 

party motion—jurisdiction 

does not exist

• Motion for discovery—it is 

unclear whether jurisdiction 

exists 

Arbitration outside the U.S.—

no jurisdiction

Motion to challenge an arbitrator (see pages 60–61)

Arbitration in the U.S.—

limited jurisdiction

Arbitration outside the U.S.—

jurisdiction exists to the same 

extent as in pre-arbitral 

scenarios (see pages 47–49), 

although increased deference 

should probably be shown to

the arbitral tribunal

Motion for provisional order in aid of arbitration (see pages 61–62)

Arbitration in the U.S.—

jurisdiction exists to the 

same extent as in pre-arbitral 

scenarios (see pages 47–49), 

although increased deference 

should probably be shown to 

the arbitral tribunal
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Arbitration outside the U.S.—

jurisdiction exists to the same 

extent as with final awards (see 

pages 71–85), to the extent the 

award is immediately enforceable

Motion to enforce interim awards and provisional measures 

(see pages 62–63)

Arbitration in the U.S.—

jurisdiction exists to the same 

extent as with final awards (see 

pages 71–85), to the extent the 

award is immediately enforceable

After Arbitral Proceedings Have Concluded

Motion to vacate an arbitral award (see pages 63–70)

Arbitration in the U.S.—

jurisdiction exists, although 

circuits are split regarding the 

legal basis

Arbitration outside the U.S.—

jurisdiction does not exist

Motion to confirm an arbitral award (see pages 70–71)

Arbitration in the U.S.—

jurisdiction exists 

Arbitration outside the U.S.—

jurisdiction does not exist 

Motion to enforce an arbitral award (see pages 71–85)

Arbitration in the U.S.—

jurisdiction exists if the award is 

determined to be “non-domestic” 

Arbitration outside the U.S.—

jurisdiction exists
109

Appendix 3: The United Nations Convention on the 

Recognition and Enforcement of Foreign Arbitral Awards,

June 10, 1958, 21 U.S.T. 2518 (New York Convention)

Article I

1. This Convention shall apply to the recognition and enforcement of 

arbitral awards made in the territory of a State other than the State 

where the recognition and enforcement of such awards are sought, 

and arising out of differences between persons, whether physical or 

legal. It shall also apply to arbitral awards not considered as domestic 

awards in the State where their recognition and enforcement are 

sought.

2. The term “arbitral awards” shall include not only awards made by 

arbitrators appointed for each case but also those made by permanent 

arbitral bodies to which the parties have submitted.

3. When signing, ratifying or acceding to this Convention, or notifying 

extension under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition 

and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention 

only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national 

law of the State making such declaration.

Article II

1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.

2. The term “agreement in writing” shall include an arbitral clause in a 

contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.

3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the 

meaning of this article, shall, at the request of one of the parties, refer 
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the parties to arbitration, unless it finds that the said agreement is null 

and void, inoperative or incapable of being performed.

Article III

Each Contracting State shall recognize arbitral awards as binding and 

enforce them in accordance with the rules of procedure of the territory 

where the award is relied upon, under the conditions laid down in the 

following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are 

imposed on the recognition or enforcement of domestic arbitral 

awards.

Article IV

1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement 

shall, at the time of the application, supply:

(a) The duly authenticated original award or a duly certified copy 

thereof;

(b) The original agreement referred to in article II or a duly certified 

copy thereof.

2. If the said award or agreement is not made in an official language of 

the country in which the award is relied upon, the party applying for 

recognition and enforcement of the award shall produce a translation 

of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular 

agent.

Article V

1. Recognition and enforcement of the award may be refused, at the 

request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:

(a) The parties to the agreement referred to in article II were, under 

the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it 

or, failing any indication thereon, under the law of the country where 

the award was made; or
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(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or

(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains 

decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration 

can be separated from those not so submitted, that part of the award 

which contains decisions on matters submitted to arbitration may be 

recognized and enforced; or

(d) The composition of the arbitral authority or the arbitral procedure 

was not in accordance with the agreement of the parties, or, failing 

such agreement, was not in accordance with the law of the country 

where the arbitration took place; or

(e) The award has not yet become binding on the parties, or has been 

set aside or suspended by a competent authority of the country in 

which, or under the law of which, that award was made.

2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and 

enforcement is sought finds that:

(a) The subject matter of the difference is not capable of settlement by 

arbitration under the law of that country; or

(b) The recognition or enforcement of the award would be contrary to 

the public policy of that country.

Article VI

If an application for the setting aside or suspension of the award has 

been made to a competent authority referred to in article V(1)(e), the 

authority before which the award is sought to be relied upon may, if it 

considers it proper, adjourn the decision on the enforcement of the 

award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

Article VII

1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition 

and enforcement of arbitral awards entered into by the Contracting 

States nor deprive any interested party of any right he may have to 
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avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is 

sought to be relied upon.

2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 

shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Convention.

Article VIII

1. This Convention shall be open until 31 December 1958 for signature on behalf of any Member of the United Nations and also on behalf 

of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or 

any other State to which an invitation has been addressed by the General Assembly of the United Nations.

2. This Convention shall be ratified and the instrument of ratification 

shall be deposited with the Secretary-General of the United Nations.

Article IX

1. This Convention shall be open for accession to all States referred to 

in article VIII.

2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article X

1. Any State may, at the time of signature, ratification or accession, 

declare that this Convention shall extend to all or any of the territories 

for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the 

State concerned.

2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and 

shall take effect as from the ninetieth day after the day of receipt by 

the Secretary-General of the United Nations of this notification, or as 

from the date of entry into force of the Convention for the State concerned, whichever is the later.
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3. With respect to those territories to which this Convention is not

extended at the time of signature, ratification or accession, each State 

concerned shall consider the possibility of taking the necessary steps 

in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories.

Article XI

In the case of a federal or non-unitary State, the following provisions 

shall apply:

(a) With respect to those articles of this Convention that come within 

the legislative jurisdiction of the federal authority, the obligations of 

the federal Government shall to this extent be the same as those of 

Contracting States which are not federal States;

(b) With respect to those articles of this Convention that come within 

the legislative jurisdiction of constituent states or provinces which are 

not, under the constitutional system of the federation, bound to take 

legislative action, the federal Government shall bring such articles 

with a favourable recommendation to the notice of the appropriate 

authorities of constituent states or provinces at the earliest possible 

moment;

(c) A federal State Party to this Convention shall, at the request of any 

other Contracting State transmitted through the Secretary-General of 

the United Nations, supply a statement of the law and practice of the 

federation and its constituent units in regard to any particular provision of this Convention, showing the extent to which effect has been 

given to that provision by legislative or other action.

Article XII

1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession.

2. For each State ratifying or acceding to this Convention after the deposit of the third instrument of ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by such 

State of its instrument of ratification or accession.
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Article XIII

1. Any Contracting State may denounce this Convention by a written

notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

2. Any State which has made a declaration or notification under article

X may, at any time thereafter, by notification to the Secretary-General 

of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of 

the notification by the Secretary-General.

3. This Convention shall continue to be applicable to arbitral awards

in respect of which recognition or enforcement proceedings have been 

instituted before the denunciation takes effect.

Article XIV

A Contracting State shall not be entitled to avail itself of the present 

Convention against other Contracting States except to the extent that 

it is itself bound to apply the Convention.

Article XV

The Secretary-General of the United Nations shall notify the States 

contemplated in article VIII of the following:

(a) Signatures and ratifications in accordance with article VIII;

(b) Accessions in accordance with article IX;

(c) Declarations and notifications under articles I, X and XI;

(d) The date upon which this Convention enters into force in accordance with article XII;

(e) Denunciations and notifications in accordance with article XIII.

Article XVI

1. This Convention, of which the Chinese, English, French, Russian

and Spanish texts shall be equally authentic, shall be deposited in the 

archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in article VIII.
115

Appendix 4: Inter-American Convention on International 

Commercial Arbitration of 1975, Pub. L. No. 101-369, 104 

Stat. 448 (1990) (Panama Convention) 

The Governments of the Member States of the Organization of American States, desirous of concluding a convention on international commercial arbitration, have agreed as follows: 

Article 1 

An agreement in which the parties undertake to submit to arbitral decision any differences that may arise or have arisen between them with 

respect to a commercial transaction is valid. The agreement shall be 

set forth in an instrument signed by the parties, or in the form of an 

exchange of letters, telegrams, or telex communications. 

Article 2 

Arbitrators shall be appointed in the manner agreed upon by the parties. Their appointment may be delegated to a third party, whether a 

natural or juridical person. Arbitrators may be nationals or foreigners. 

Article 3 

In the absence of an express agreement between the parties, the arbitration shall be conducted in accordance with the rules of procedure 

of the Inter-American Commercial Arbitration Commission. 

Article 4 

An arbitral decision or award that is not appealable under the applicable law or procedural rules shall have the force of a final judicial 

judgment. Its execution or recognition may be ordered in the same 

manner as that of decisions handed down by national or foreign ordinary courts, in accordance with the procedural laws of the country 

where it is to be executed and the provisions of international treaties. 

Article 5 

1. The recognition and execution of the decision may be refused, at

the request of the party against which it is made, only if such party is 
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116

able to prove to the competent authority of the State in which recognition and execution are requested: 

(a) That the parties to the agreement were subject to some incapacity under the applicable law or that the agreement is not valid 

under the law to which the parties have submitted it, or, if such 

law is not specified, under the law of the State in which the decision was made; 

(b) That the party against which the arbitral decision has been 

made was not duly notified of the appointment of the arbitrator or 

of the arbitration procedure to be followed, or was unable, for any 

other reason, to present his defense; or 

(c) That the decision concerns a dispute not envisaged in the 

agreement between the parties to submit to arbitration; nevertheless, if the provisions of the decision that refer to issues submitted 

to arbitration can be separated from those not submitted to arbitration, the former may be recognized and executed; or 

(d) That the constitution of the arbitral tribunal or the arbitration 

procedure has not been carried out in accordance with the terms 

of the agreement signed by the parties or, in the absence of such 

agreement, that the constitution of the arbitral tribunal or the arbitration procedure has not been carried out in accordance with the 

law of the State where the arbitration took place; or 

(e) That the decision is not yet binding on the parties or has been 

annulled or suspended by a competent authority of the State in 

which, or according to the law of which, the decision has been 

made. 

2. The recognition and execution of an arbitral decision may also be 

refused if the competent authority of the State in which the recognition and execution is requested finds: 

(a) That the subject of the dispute cannot be settled by arbitration 

under the law of that State; or 

(b) That the recognition or execution of the decision would be 

contrary to the public policy (“order public”) of that State. 

Article 6 

If the competent authority mentioned in Article 5.1(e) has been requested to annul or suspend the arbitral decision, the authority before 

which such decision is invoked may, if it deems it appropriate, post-
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pone a decision on the execution of the arbitral decision and, at the 

request of the party requesting execution, may also instruct the other 

party to provide appropriate guaranties. 

Article 7 

This Convention shall be open for signature by the Member States of 

the Organization of American States. 

Article 8 

This Convention is subject to ratification. The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States. 

Article 9 

This Convention shall remain open for accession by any other State. 

The instruments of accession shall be deposited with the General Secretariat of the Organization of American States. 

Article 10 

This Convention shall enter into force on the 30th day following the 

date of deposit of the second instrument of ratification. For each State 

ratifying or acceding to the Convention after the deposit of the second 

instrument of ratification, the Convention shall enter into force on the 

30th day after deposit by such State of its instrument of ratification or 

accession. 

Article 11 

If a State Party has two or more territorial units in which different systems of law apply in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification or accession, declare 

that this Convention shall extend to all its territorial units or only to 

one or more of them. Such declaration may be modified by subsequent 

declarations, which shall expressly indicate the territorial unit or units 

to which the Convention applies. Such subsequent declarations shall 

be transmitted to the General Secretariat of the Organization of American States, and shall become effective 30 days after the date of their 

receipt. 
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Article 12 

This Convention shall remain in force indefinitely, but any of the 

States Parties may denounce it. The instrument of denunciation shall 

be deposited with the General Secretariat of the Organization of American States. After one year from the date of deposit of the instrument 

of denunciation, the Convention shall no longer be in effect for the 

denouncing State, but shall remain in effect for the other States Parties. 

Article 13 

The original instrument of this Convention, the English, French, Portuguese and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American 

States. The Secretariat shall notify the Member States of the Organization of American States and the States that have acceded to the Convention of the signatures, deposits of instruments of ratification, accession, and denunciation as well as of reservations, if any. It shall also 

transmit the declarations referred to in Article 11 of this Convention. 

IN WITNESS WHEREOF the undersigned Plenipotentiaries, being 

duly authorized thereto by their respective Governments, have signed 

this Convention. 

DONE AT PANAMA CITY, Republic of Panama, this thirtieth day of 

January one thousand nine hundred and seventy-five. 
119

Appendix 5: Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–307

Chapter 1. General Provisions

Section 1. “Maritime transactions” and “commerce” defined; exceptions to operation of title

“Maritime transactions”, as herein defined, means charter parties, bills 

of lading of water carriers, agreements relating to wharfage, supplies 

furnished vessels or repairs to vessels, collisions, or any other matters 

in foreign commerce which, if the subject of controversy, would be 

embraced within admiralty jurisdiction; “commerce”, as herein defined, means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any 

such Territory and any State or foreign nation, or between the District 

of Columbia and any State or Territory or foreign nation, but nothing 

herein contained shall apply to contracts of employment of seamen, 

railroad employees, or any other class of workers engaged in foreign or 

interstate commerce.

Section 2. Validity, irrevocability, and enforcement of agreements to 

arbitrate

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in 

writing to submit to arbitration an existing controversy arising out of 

such a contract, transaction, or refusal, shall be valid, irrevocable, and 

enforceable, save upon such grounds as exist at law or in equity for 

the revocation of any contract.

Section 3. Stay of proceedings where issue therein referable to arbitration

If any suit or proceeding be brought in any of the courts of the United 

States upon any issue referable to arbitration under an agreement in 

writing for such arbitration, the court in which such suit is pending, 

upon being satisfied that the issue involved in such suit or proceeding 

is referable to arbitration under such an agreement, shall on applica-
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tion of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, 

providing the applicant for the stay is not in default in proceeding 

with such arbitration.

Section 4. Failure to arbitrate under agreement; petition to United 

States court having jurisdiction for order to compel arbitration; notice and service thereof; hearing and determination

A party aggrieved by the alleged failure, neglect, or refusal of another 

to arbitrate under a written agreement for arbitration may petition any 

United States district court which, save for such agreement, would 

have jurisdiction under Title 28, in a civil action or in admiralty of the 

subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner 

provided for in such agreement. Five days’ notice in writing of such 

application shall be served upon the party in default. Service thereof 

shall be made in the manner provided by the Federal Rules of Civil 

Procedure. The court shall hear the parties, and upon being satisfied 

that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing 

the parties to proceed to arbitration in accordance with the terms of 

the agreement. The hearing and proceedings, under such agreement, 

shall be within the district in which the petition for an order directing 

such arbitration is filed. If the making of the arbitration agreement or 

the failure, neglect, or refusal to perform the same be in issue, the 

court shall proceed summarily to the trial thereof. If no jury trial be 

demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be 

in default may, except in cases of admiralty, on or before the return 

day of the notice of application, demand a jury trial of such issue, and 

upon such demand the court shall make an order referring the issue or 

issues to a jury in the manner provided by the Federal Rules of Civil 

Procedure, or may specially call a jury for that purpose. If the jury find 

that no agreement in writing for arbitration was made or that there is 

no default in proceeding thereunder, the proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in 

writing and that there is a default in proceeding thereunder, the court 
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shall make an order summarily directing the parties to proceed with 

the arbitration in accordance with the terms thereof.

Section 5. Appointment of arbitrators or umpire

If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall 

be followed; but if no method be provided therein, or if a method be 

provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an 

arbitrator or arbitrators or umpire, or in filling a vacancy, then upon 

the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case 

may require, who shall act under the said agreement with the same 

force and effect as if he or they had been specifically named therein; 

and unless otherwise provided in the agreement the arbitration shall 

be by a single arbitrator.

Section 6. Application heard as motion

Any application to the court hereunder shall be made and heard in the 

manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.

Section 7. Witnesses before arbitrators; fees; compelling attendance

The arbitrators selected either as prescribed in this title or otherwise, 

or a majority of them, may summon in writing any person to attend 

before them or any of them as a witness and in a proper case to bring 

with him or them any book, record, document, or paper which may be 

deemed material as evidence in the case. The fees for such attendance 

shall be the same as the fees of witnesses before masters of the United 

States courts. Said summons shall issue in the name of the arbitrator 

or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person 

and shall be served in the same manner as subpoenas to appear and 

testify before the court; if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the 

United States district court for the district in which such arbitrators, or 

a majority of them, are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said per-
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son or persons for contempt in the same manner provided by law for 

securing the attendance of witnesses or their punishment for neglect 

or refusal to attend in the courts of the United States.

Section 8. Proceedings begun by libel in admiralty and seizure of 

vessel or property

If the basis of jurisdiction be a cause of action otherwise justiciable in 

admiralty, then, notwithstanding anything herein to the contrary, the 

party claiming to be aggrieved may begin his proceeding hereunder by 

libel and seizure of the vessel or other property of the other party according to the usual course of admiralty proceedings, and the court 

shall then have jurisdiction to direct the parties to proceed with the 

arbitration and shall retain jurisdiction to enter its decree upon the 

award.

Section 9. Award of arbitrators; confirmation; jurisdiction; procedure

If the parties in their agreement have agreed that a judgment of the 

court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after 

the award is made any party to the arbitration may apply to the court 

so specified for an order confirming the award, and thereupon the 

court must grant such an order unless the award is vacated, modified, 

or corrected as prescribed in sections 10 and 11 of this title. If no 

court is specified in the agreement of the parties, then such application 

may be made to the United States court in and for the district within 

which such award was made. Notice of the application shall be served 

upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. If the adverse party is a resident of the district within which the 

award was made, such service shall be made upon the adverse party or 

his attorney as prescribed by law for service of notice of motion in an 

action in the same court. If the adverse party shall be a nonresident, 

then the notice of the application shall be served by the marshal of any 

district within which the adverse party may be found in like manner as 

other process of the court.
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Section 10. Same; vacation; grounds; rehearing

(a) In any of the following cases the United States court in and for the 

district wherein the award was made may make an order vacating the 

award upon the application of any party to the arbitration—

(1) where the award was procured by corruption, fraud, or undue 

means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to 

postpone the hearing, upon sufficient cause shown, or in refusing 

to hear evidence pertinent and material to the controversy; or of 

any other misbehavior by which the rights of any party have been 

prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly 

executed them that a mutual, final, and definite award upon the 

subject matter submitted was not made.

(b) If an award is vacated and the time within which the agreement 

required the award to be made has not expired, the court may, in its 

discretion, direct a rehearing by the arbitrators.

(c) The United States district court for the district wherein an award 

was made that was issued pursuant to section 580 of title 5 may make 

an order vacating the award upon the application of a person, other 

than a party to the arbitration, who is adversely affected or aggrieved 

by the award, if the use of arbitration or the award is clearly inconsistent with the factors set forth in section 572 of title 5.

Section 11. Same; modification or correction; grounds; order

In either of the following cases the United States court in and for the 

district wherein the award was made may make an order modifying or 

correcting the award upon the application of any party to the arbitration—

(a) Where there was an evident material miscalculation of figures or 

an evident material mistake in the description of any person, thing, or 

property referred to in the award.

(b) Where the arbitrators have awarded upon a matter not submitted 

to them, unless it is a matter not affecting the merits of the decision 

upon the matter submitted.
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124

(c) Where the award is imperfect in matter of form not affecting the 

merits of the controversy.

The order may modify and correct the award, so as to effect the intent 

thereof and promote justice between the parties.

Section 12. Notice of motions to vacate or modify; service; stay of 

proceedings

Notice of a motion to vacate, modify, or correct an award must be 

served upon the adverse party or his attorney within three months after the award is filed or delivered. If the adverse party is a resident of 

the district within which the award was made, such service shall be 

made upon the adverse party or his attorney as prescribed by law for 

service of notice of motion in an action in the same court. If the adverse party shall be a nonresident then the notice of the application 

shall be served by the marshal of any district within which the adverse 

party may be found in like manner as other process of the court. For 

the purposes of the motion any judge who might make an order to 

stay the proceedings in an action brought in the same court may make 

an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.

Section 13. Papers filed with order on motions; judgment; docketing; force and effect; enforcement

The party moving for an order confirming, modifying, or correcting an 

award shall, at the time such order is filed with the clerk for the entry 

of judgment thereon, also file the following papers with the clerk:

(a) The agreement; the selection or appointment, if any, of an additional arbitrator or umpire; and each written extension of the time, if 

any, within which to make the award.

(b) The award.

(c) Each notice, affidavit, or other paper used upon an application to 

confirm, modify, or correct the award, and a copy of each order of the 

court upon such an application.

The judgment shall be docketed as if it was rendered in an action.

The judgment so entered shall have the same force and effect, in all 

respects, as, and be subject to all the provisions of law relating to, a 

judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it is entered.
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Section 14. Contracts not affected

This title shall not apply to contracts made prior to January 1, 1926.

Section 15. Inapplicability of the Act of State doctrine

Enforcement of arbitral agreements, confirmation of arbitral awards, 

and execution upon judgments based on orders confirming such 

awards shall not be refused on the basis of the Act of State doctrine.

Section 16. Appeals

(a) An appeal may be taken from—

(1) an order—

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

(C) denying an application under section 206 of this title to 

compel arbitration,

(D) confirming or denying confirmation of an award or partial 

award, or

(E) modifying, correcting, or vacating an award;

(2) an interlocutory order granting, continuing, or modifying an 

injunction against an arbitration that is subject to this title; or

(3) a final decision with respect to an arbitration that is subject to 

this title.

(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order—

(1) granting a stay of any action under section 3 of this title;

(2) directing arbitration to proceed under section 4 of this title;

(3) compelling arbitration under section 206 of this title; or

(4) refusing to enjoin an arbitration that is subject to this title.

Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Section 201. Enforcement of Convention

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United States courts 

in accordance with this chapter.
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126

Section 202. Agreement or award falling under the Convention

An arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls under the Convention. An agreement or award 

arising out of such a relationship which is entirely between citizens of 

the United States shall be deemed not to fall under the Convention 

unless that relationship involves property located abroad, envisages 

performance or enforcement abroad, or has some other reasonable relation with one or more foreign states. For the purpose of this section 

a corporation is a citizen of the United States if it is incorporated or 

has its principal place of business in the United States.

Section 203. Jurisdiction; amount in controversy

An action or proceeding falling under the Convention shall be deemed 

to arise under the laws and treaties of the United States. The district 

courts of the United States (including the courts enumerated in section 460 of title 28) shall have original jurisdiction over such an action 

or proceeding, regardless of the amount in controversy.

Section 204. Venue

An action or proceeding over which the district courts have jurisdiction pursuant to section 203 of this title may be brought in any such 

court in which save for the arbitration agreement an action or proceeding with respect to the controversy between the parties could be 

brought, or in such court for the district and division which embraces 

the place designated in the agreement as the place of arbitration if 

such place is within the United States.

Section 205. Removal of cases from State courts

Where the subject matter of an action or proceeding pending in a State 

court relates to an arbitration agreement or award falling under the 

Convention, the defendant or the defendants may, at any time before 

the trial thereof, remove such action or proceeding to the district court 

of the United States for the district and division embracing the place 

where the action or proceeding is pending. The procedure for removal 

of causes otherwise provided by law shall apply, except that the 

ground for removal provided in this section need not appear on the 
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127

face of the complaint but may be shown in the petition for removal. 

For the purposes of Chapter 1 of this title any action or proceeding 

removed under this section shall be deemed to have been brought in 

the district court to which it is removed.

Section 206. Order to compel arbitration; appointment of arbitrators

A court having jurisdiction under this chapter may direct that arbitration be held in accordance with the agreement at any place therein 

provided for, whether that place is within or without the United 

States. Such court may also appoint arbitrators in accordance with the 

provisions of the agreement.

Section 207. Award of arbitrators; confirmation; jurisdiction; proceeding

Within three years after an arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award 

as against any other party to the arbitration. 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 said Convention.

Section 208. Chapter 1; residual application

Chapter 1 applies to actions and proceedings brought under this chapter to the extent that chapter is not in conflict with this chapter or the 

Convention as ratified by the United States.

Chapter 3. Inter-American Convention on International Commercial 

Arbitration

Section 301. Enforcement of Convention

The Inter-American Convention on International Commercial Arbitration of January 30, 1975, shall be enforced in United States courts in 

accordance with this chapter.

Section 302. Incorporation by reference

Sections 202, 203, 204, 205, and 207 of this title shall apply to this 

chapter as if specifically set forth herein, except that for the purposes 
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128

of this chapter “the Convention" shall mean the Inter-American Convention.

Section 303. Order to compel arbitration; appointment of arbitrators; locale

(a) A court having jurisdiction under this chapter may direct that arbitration be held in accordance with the agreement at any place therein 

provided for, whether that place is within or without the United 

States. The court may also appoint arbitrators in accordance with the 

provisions of the agreement.

(b) In the event the agreement does not make provision for the place 

of arbitration or the appointment of arbitrators, the court shall direct 

that the arbitration shall be held and the arbitrators be appointed in 

accordance with Article 3 of the Inter-American Convention.

Section 304. Recognition and enforcement of foreign arbitral decisions and awards; reciprocity

Arbitral decisions or awards made in the territory of a foreign State 

shall, on the basis of reciprocity, be recognized and enforced under 

this chapter only if that State has ratified or acceded to the InterAmerican Convention.

Section 305. Relationship between the Inter-American Convention 

and the Convention on the Recognition and Enforcement of Foreign 

Arbitral Awards of June 10, 1958

When the requirements for application of both the Inter-American 

Convention and the Convention on the Recognition and Enforcement 

of Foreign Arbitral Awards of June 10, 1958, are met, determination as 

to which Convention applies shall, unless otherwise expressly agreed, 

be made as follows:

(1) If a majority of the parties to the arbitration agreement are citizens 

of a State or States that have ratified or acceded to the Inter-American 

Convention and are member States of the Organization of American 

States, the Inter-American Convention shall apply.

(2) In all other cases the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall apply.
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129

Section 306. Applicable rules of Inter-American Commercial Arbitration Commission

(a) For the purposes of this chapter the rules of procedure of the InterAmerican Commercial Arbitration Commission referred to in Article 3 

of the Inter-American Convention shall, subject to subsection (b) of 

this section, be those rules as promulgated by the Commission on July 

1, 1988.

(b) In the event the rules of procedure of the Inter-American Commercial Arbitration Commission are modified or amended in accordance with the procedures for amendment of the rules of that Commission, the Secretary of State, by regulation in accordance with section 

553 of title 5, consistent with the aims and purposes of this Convention, may prescribe that such modifications or amendments shall be 

effective for purposes of this chapter.

Section 307. Chapter 1; residual application

Chapter 1 applies to actions and proceedings brought under this chapter to the extent chapter 1 is not in conflict with this chapter or the 

Inter-American Convention as ratified by the United States.
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131

Table of Authorities

U.S. Supreme Court Cases

AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), 25

Buckeye Check Cashing Inc. v. Cardegna, 546 U.S. 440 (2006), 38

Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985), 42

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), 38, 40

Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003) (plurality opinion), 20, 

90

Hall St. Ass’n, LLC v. Mattel, Inc., 552 U.S. 576 (2008), 69

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002), 20, 38, 39, 40, 77

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), 56–58, 59, 

60

Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995), 74

Medellin v. Texas, 552 U.S. 491 (2008), 13

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 

(1985), 4, 24, 37, 39, 59, 83, 92

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Co., 460 U.S. 1 (1983), 4, 42

Preston v. Ferrer, 552 U.S. 346 (2008), 25

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), 38

Rent-a-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010), 40

Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974), 13, 72

South Carolina v. Katzenbach, 383 U.S. 301 (1966), 36

Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010), 69

Volt Info. Sciences v. Board of Trustees of Leland Stanford Junior Univ., 489 

U.S. 468 (1989), 15, 20, 42

U.S. Circuit Court Cases

Acosta v. Master Maint. & Constr. Inc., 452 F.3d 373 (5th Cir. 2006), 86

AgGrow Oils, LLC v. Nat’l Union Fire Ins. Co., 242 F.3d 777 (8th Cir. 2001), 

42

Air Line Pilots Ass’n Int’l v. Trans States Airlines, LLC, 638 F.3d 572 (8th Cir. 

2011), 85

Am. Express Fin. Advisors v. Thorley, 147 F.3d 229 (2d Cir. 1998), 47

Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459 

(6th Cir. 2009), 43
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132

Applied Indus. Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S., 492 

F.3d 132 (2d Cir. 2007), 68

Argentine Republic v. Nat’l Grid PLC, 637 F.3d 365 (D.C. Cir. 2011), 64

Arrowhead Global Solutions, Inc. v. Datapath, Inc., 166 Fed. App’x 39 (4th 

Cir. 2006), 63

Aviall, Inc. v. Ryder Sys., 110 F.3d 892 (2d Cir. 1997), 61

Baker Marine Ltd. v. Chevron Ltd., 191 F.3d 194 (2d Cir. 1999), 81

Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255 (2d 

Cir. 2003), 47

Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822 (2d Cir. 1990), 47

Cargill Rice, Inc. v. Empresa Nicaraguense Dealimentos Basicos, 25 F.3d 223 

(4th Cir. 1994), 46

Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co., 500 F.3d 571 

(7th Cir. 2007), affirming 444 F. Supp. 2d 909 (N.D. Ill. 2006), 13, 46, 

74

Certain Underwriters at Lloyd’s London v. Westchester Fire Ins. Co., 489 

F.3d 580 (3d Cir. 2007), 90

China Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274 

(2d Cir. 2003), 77

Czarina, L.L.C. v. W.F. Poe Syndicate, 358 F.3d 1286 (11th Cir. 2004), 71, 

74

Daihatsu Motor Co. v. Terrain Vehicles, Inc., 13 F.3d 196 (7th Cir. 1993), 71

Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383 (2d 

Cir. 2003), 69

Dynergy Midstream Serv., LP v. Trammochem, 451 F.3d 89 (2d Cir. 2006), 

52

El Paso Corp. v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, 341 

Fed. App’x 31 (5th Cir. 2009), 58, 60

Employers Ins. of Wausau v. Banco de Seguros del Estado, 199 F.3d 937 (7th 

Cir. 1999), 76

Encyclopaedia Universalis SA v. Encyclopaedia Britannica, Inc., 403 F.3d 85 

(2d Cir. 2005), 72, 77, 78, 79

FleetBoston Fin. Corp. v. Alt, 638 F.3d 70 (1st Cir. 2011), 86

Fournelle v. NLRB, 670 F.2d 331 (D.C. Cir. 1982), 21

Four Seasons Hotel & Resorts, B.V. v. Consorcio Barr, S.A., 377 F.3d 1164 

(11th Cir. 2004), 74

Four Seasons Hotel & Resorts, B.V. v. Consorcio Barr, S.A., 533 F.3d 1349 

(11th Cir. 2008), 75
International Commercial Arbitration

133

Francisco v. Stolt Achievement MT, 293 F.3d 270 (5th Cir. 2002), 30

Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 

F.3d 393 (2d Cir. 2009), 36, 92

Gen. Elec. Co. v. Deutz AG, 270 F.3d 144 (3d Cir. 2001), 38

Gibson Guitar Corp. v. MEC Imp. Handelsgesellschaft GmbH, 198 F.3d 245 

(table), No. 98-6046, 1999 WL 1073651 (6th Cir. Nov. 17, 1999), 10

Indus. Risk Ins. v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434 (11th 

Cir. 1998), 19, 65

In re Andros Compania Maritima, S.A. (Marc Rich & Co., A.G.), 579 F.2d 

691 (2d Cir. 1978), 21

InterGen NV v. Grina, 344 F.3d 134 (1st Cir. 2003), 41, 88

Invista S.A.R.L. v. Rhodia, Ltd., 625 F.3d 75 (3d Cir. 2010), 88

Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141 (2d Cir. 1992), 86

Jacobson v. Fireman’s Fund Ins. Co., 111 F.3d 261 (2d Cir. 1997), 87

Jain v. de Mere, 51 F.3d 686 (7th Cir. 1995), 46

Kahn Lucas Lancaster, Inc. v. Lark Int’l, Ltd., 186 F.3d 210 (2d Cir. 1999), 

partially abrogated on other grounds, Sarhank Group v. Oracle Corp., 404 

F.3d 657 (2d Cir. 2005), 87

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi 

Negara, 335 F.3d 357 (5th Cir. 2003), 43, 63, 81

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi 

Negara, 364 F.3d 274 (5th Cir. 2004), 35, 84, 85

Lagstein v. Certain Underwriters at Lloyd’s, London, 607 F.3d 634 (9th Cir.), 

cert. denied, 131 S. Ct. 832 (2010), 78

LAIF X SPRL v. Axtel, SA de CV, 390 F.3d 194 (2d Cir. 2004), 43

Lander Co. v. MMP Inv., Inc., 107 F.3d 476 (7th Cir. 1997), 29, 65

Lewis v. Circuit City Stores, Inc., 500 F.3d 1140 (10th Cir. 2007), 86

Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210 

(2d Cir. 2008), 52

Mgmt. & Tech. Consultants S.A. v. Parsons-Jurden Int’l Corp., 820 F.2d 1531 

(9th Cir. 1987), 76

McCreary Tire & Rubber Co. v. CEAT, 501 F.2d 1032 (3d Cir. 1974), 48

Mediterranean Shipping Co. S.A. Geneva v. POL-Atlantic, 229 F.3d 397 (2d 

Cir. 2000), 14

Motorola Credit Corp. v. Uzan, 388 F.3d 39 (2d Cir. 2004), 74

Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999), 52, 54, 

56
International Commercial Arbitration

134

New Regency Prod. Inc. v. Nippon Herald Films, Inc., 501 F.3d 1101 (9th 

Cir. 2007), 20, 68

Oklahoma City Assoc. v. Wal-Mart Stores, Inc., 923 F.2d 791 (10th Cir. 

1991), 71

Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Tech., 

Inc., 369 F.3d 645 (2d Cir. 2004), 43

Parsons & Whittemore Overseas Co. v. Societe Generale De L’Industrie Du 

Papier (RATKA), 508 F.2d 969 (2d Cir. 1974), 72, 76, 83, 84

Polimaster Ltd. v. RAE Sys., Inc., 623 F.3d 832 (9th Cir. 2010), 24

Publicis Comm. v. True North Comm., Inc., 206 F.3d 725 (7th Cir. 2000), 

63, 80

Rhone Mediterranee Compagnia Francese Di Assicurazioni E Riassicurazoni 

v. Achille Lauro, 712 F.2d 50 (3d Cir. 1983), 41, 72, 75

Rogers v. Royal Caribbean Cruise Line, 547 F.3d 1148 (9th Cir. 2008), 25, 30

Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, London, 543 F.3d 

744 (5th Cir. 2008), reh’g en banc 587 F.3d 714 (5th Cir. 2009), cert. denied sub nom. Louisiana Safety Ass’n of Timbermen–Self Insurers Fund v. 

Certain Underwriters at Lloyd’s, London, 131 S. Ct. 65 (2010), 25

Sarhank Group v. Oracle Corp., 404 F.3d 657 (2d Cir. 2005), 74, 87

Simula, Inc. v. Autoliv, Inc., 175 F.3d 716 (9th Cir. 1999), 48

Smith/Enron Cogeneration Ltd. P’ship, Inc. v. Smith Cogeneration Int’l, Inc., 

198 F.3d 88 (2d Cir. 1999), 87

Sourcing Unlimited, Inc. v. Asimco Int’l, Inc., 526 F.3d 38 (1st Cir. 2008), 88

Sphere Drake Ins. Ltd. v. All Am. Life Ins. Co., 307 F.3d 617 (7th Cir. 2002), 

68

Sphere Drake Ins. PLC v. Marine Towing, Inc., 16 F.3d 666 (5th Cir. 1994), 

87

Stark v. Sandberg, Phoenix & von Gontard, P.C., 381 F.3d 793 (8th Cir. 

2004), 22

Steel Corp. of Philippines v. Int’l Steel Servs., Inc., 354 Fed. App’x 689 (3d 

Cir. 2009), 34

Suarez-Valdez v. Shearson Lehman/American Express, Inc., 858 F.2d 648 

(11th Cir. 1988), 54, 55

Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396 (2d Cir. 2009), 19, 

69, 74, 85

Termorio S.A. E.S.P. v. Eltranta S.P., 487 F.3d 928 (D.C. Cir. 2007), 81

Thomson-CSF, SA v. Am. Arbitration Ass’n, 64 F.3d 773 (2d Cir. 1995), 88
International Commercial Arbitration

135

Universal Am. Barge Corp. v. J-Chem., Inc., 946 F.2d 1131 (5th Cir. 1991), 

86

U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135 (2d Cir. 

2001), 91

Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200 (2d Cir. 2002), 66

Wolf v. Gruntal & Co., 45 F.3d 524 (1st Cir. 1995), 86

Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15 (2d 

Cir. 1997), 66

U.S. District Court Cases

Anwar v. Fairfield Greenwich Ltd., 728 F. Supp. 2d 462 (S.D.N.Y. 2010), 90

AO Techsnabexport v. Globe Nuclear Serv. & Supply, Ltd., 656 F. Supp. 2d 

550 (D. Md. 2009), aff’d, 404 Fed. App’x 793 (4th Cir. 2010), 75

Asahi Glass Co. v. Toledo Eng’g Co., 505 F. Supp. 2d 423 (N.D. Ohio 2007), 

86, 87

Bahrain Telecomm. Co. v. Discoverytel, Inc. 476 F. Supp. 2d 176 (D. Conn. 

2007), 48, 49

Banco de Seguros del Estado v. Mut. Marine Offices, Inc., 230 F. Supp. 2d

362 (S.D.N.Y. 2002), aff’d, 344 F.3d 255 (2d Cir. 2003), 47, 91

Certain Underwriters at Lloyd’s v. Bristol-Myers Squibb Co., 51 F. Supp. 2d

756, 758 (E.D. Tex. 1999), 44

Certain Underwriters at Lloyd’s, London v. Argonaut, Ins. Co., 444 F. Supp. 

2d 909 (N.D. Ill. 2006), aff’d, 500 F.3d 571 (7th Cir. 2007), 46

Chromalloy Gas Turbine Corp. v. Arab Republic of Egypt, 939 F. Supp. 907 

(D.D.C. 1996), 80, 81, 82

Compagnie des Bauxites de Guinee v. Hammermills, Inc., No. 90-0169, 1992 

WL 122712 (D.D.C. May 29, 1992), 78

Coutinho Caro & Co. U.S.A. v. Marcus Trading, Inc., No. 3:95CV2362, 2000 

WL 435566 (D. Conn. Mar. 14, 2000), 88

Creative Tile Mktg., Inc. v. SICIS Int’l, S.r.L., 922 F. Supp. 1534 (S.D. Fla. 

1996), 47

DRC, Inc. v. Republic of Honduras, 774 F. Supp. 2d 66 (D.D.C. 2011), 7, 25

Employers Ins. Co. of Wausau v. Certain Underwriters at Lloyd’s of London, 

No. 09-cv-201-bbc, 2009 WL 3245562 (W.D. Wis. Sept. 29, 2009), 68

Empresa Generadora de Electricidad ITABO, SA v. Corporación Dominicana 

de Empresas Eléctricas Estatales, No. 05 CIV 5004 RMB, 2005 WL 

1705080 (S.D.N.Y. July 18, 2005), 43
International Commercial Arbitration

136

Energy Transp., Ltd. v. M.V. San Sebastian, 348 F. Supp. 2d 186 (S.D.N.Y. 

2004), 41

Ex rel. Application of Winning (HK) Int’l Shipping Co., No. 09-22659-MC, 

2010 WL 1796579 (S.D. Fla. Apr. 30, 2010), 57

Farrell v. Subway Int’l, B.V., No. 11 Civ. 08(JFK), 2011 WL 1086017

(S.D.N.Y. Mar. 23, 2011), 44, 46

Fertilizer Corp. of India v. IDI Mgmt. Inc., 517 F. Supp. 948 (S.D. Ohio 

1981), 30, 79

Fleming Co. v. FS Kids, L.L.C., No. 02-CV-0059E(F), 2003 WL 21382895

(W.D.N.Y. May 14, 2003), 61

Hall Steel Co. v. Metalloyd Ltd., 492 F. Supp. 2d 715 (E.D. Mich. 2007), 79

Harry F. Ortlip Co. v. George Hyman Constr. Co., 126 F.R.D. 494 (E.D. Pa. 

1989), 54

In re Arbitration Between InterCarbon Bermuda, Ltd. and Caltex Trading &

Transport Corp., 146 F.R.D. 64 (S.D.N.Y. 1993), 78

In re Arbitration Between Trans Chem. Ltd. and China Nat’l Mach. Imp. & 

Exp. Corp., 978 F. Supp. 266 (S.D. Tex. 1997), aff’d, 161 F.3d 314 (5th

Cir. 1998), 22

In re Caratube Int’l Oil Co., LLP, 730 F. Supp. 2d 101 (D.D.C. 2010), 20, 58, 

59, 60

In re Kaiser Group Int’l, Inc., 375 B.R. 120 (Bankr. D. Del. 2007), 86

In re Operadora DB Mexica, S.A. de C.V., No. 6:09-cv-383-Orl-22GJK, 2009 

WL 2423138 (M.D. Fla. Aug. 4, 2009), 58

In re Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga. 2006), 60

Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, 745 F. Supp. 

172 (S.D.N.Y. 1990), 34

Int’l Transactions, Ltd. v. Embotelladora Agral Regionmontana SA de CV, 277 

F. Supp. 2d 654 (N.D. Tex. 2004), 65

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi 

Negara, 190 F. Supp. 2d 936 (S.D. Tex. 2001), 78, 89

Kwasney Co. v. AcryliCon Int’l Ltd., No. 09-13357, 2010 WL 2474788 (E.D. 

Mich. June 11, 2010), 42

Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876 (E.D. Pa. 1976), dismissed 

by 549 F.2d 795 (3d Cir. 1977), 54

Marubeni Corp. v. Mobile Bay Blue Chip Ctr., No. 02-0914-PL, 2003 WL 

22466215 (S.D. Ala. June 16, 2003), 42

Meadows Indem. Co. v. Baccala & Shoop Ins. Servs., Inc., 760 F. Supp. 1036

(E.D.N.Y. 1991), 39
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137

Nicor Int’l Corp. v. El Paso Corp., 292 F. Supp. 2d 1357 (S.D. Fla. 2003), 80

Pactrans Air & Sea, Inc. v. China Nat’l Chartering Corp., No. 3:06-cv-369/RSEMT, 2010 WL 1332085 (N.D. Fla. Mar. 29, 2010), 77

Republic of Argentina v. BG Group PLC, 715 F. Supp. 2d 108 (D.D.C. 2010), 

64

Republic of Ecuador v. Chevron Texaco Corp., 376 F. Supp. 2d 334 (S.D.N.Y. 

2005), 91

Safra Nat’l Bank of New York v. Penfold Inv. Trading, Ltd., No. 10 Civ. 

8255(RWS), 2011 WL 1672467 (S.D.N.Y. Apr. 20, 2011), 90

Saudi Iron & Steel Co. v. Stemcor USA Inc., No. 97 CIV 5976(DLC), 1997 

WL 642566 (S.D.N.Y. Oct. 17, 1997), 83

Scandinavian Reins. Co. v. St. Paul Fire & Marine Ins. Co., 732 F. Supp. 2d 

293 (S.D.N.Y. 2010), 68

Spier v. Calzaturificio Tecnica, SpA, 71 F. Supp. 2d 279 (S.D.N.Y. 1999), 75, 

82

Splosna Plovba of Piran v. Agrelak SS Corp., 381 F. Supp. 1368 (S.D.N.Y. 

1974), 71

State Farm Mut. Auto. Ins. Co. v. Mallela, Civ. No. CV-00-4923, 2002 WL 

31946762 (E.D.N.Y. Nov. 21, 2002), question certified by 372 F.3d 500 

(2d Cir. 2004), certified question answered by 4 N.Y.3d 313 (N.Y. 2005), 

21

Teck Metals, Ltd. v. Certain Underwriters at Lloyd’s, London, No. 05-411, 

2010 WL 252804 (E.D. Wash. Jan. 19, 2010), 42

Telenor Mobile Commc’ns AS v. Storm LLC, 524 F. Supp. 2d 332 (S.D.N.Y. 

2007), aff’d, 584 F.3d 396 (2d Cir. 2009), 19, 74

Ukrnafta v. Carpatsky Petroleum Corp., No. 3:09 MC 265(JBA), 2009 WL 

2877156 (D. Conn. Aug. 27, 2009), 60

URS Corp. v. Lebanese Co. for Dev. & Reconstr. of Beirut Cent. Dist. SAL, 

512 F. Supp. 2d 199 (D. Del. 2007), 44

Vespe Contracting Co. v. Anvan Corp., 399 F. Supp. 516 (E.D. Pa. 1976), 54

Weizmann Inst. of Sci. v. Neschis, 421 F. Supp. 2d 654 (S.D.N.Y. 2005), 30

Westbrook Int’l, LLC v. Westbrook Tech., Inc., 17 F. Supp. 2d 681 (E.D. 

Mich. 1998), 74

Wilson v. Lignotock U.S.A. Inc., 709 F. Supp. 797 (E.D. Mich. 1989), 28

Zurich Ins. Co. v. Ennia Gen. Ins. Co., 882 F. Supp. 1438 (S.D.N.Y. 1995), 

11, 18
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U.S. State Cases 

Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84 (Tex.), cert. denied, 132 S. Ct.

455 (2011), 15

Non-U.S. Cases

Empresa Colombiana de Vías Férreas (Ferrovías) v. Drummond Ltd., 24 Oct. 

2003—Consejo de Estado, Sala de lo Contencioso Administrativo, Seccion Tercera [Council of State, Administrative Chamber, Third Section], 

No. 25.25, aff’d 22 Apr. 2004, No. 24.261, in Albert Jan van den Berg 

(ed.), XXIX Y.B. Com. Arb. 643 (2004), 17

Union of India v. McDonnell Douglas Corp. [1993] 2 Lloyd’s Rep. 48

(Queen’s Bench Division (Commercial Court), England), 34

Case C-185/07, West Tankers Inc. v. Allianz SpA (formerly RAS Riunione 

Adriatica diSciurtà SpA), [2009] 1 A.C. 1138 (Court of Justice of the European Communities), 43

Arbitral Awards

Interim Award in ICC Case No. 4131, IX Y.B. Com. Arb. 131, 135 (1984), 21

U.S. Legislative Materials

9 U.S.C. §§ 1–307 (Federal Arbitration Act (FAA)), 24–27, 28, 29, 35, 37, 38, 

40, 41, 45, 47, 51, 52, 62–63, 64, 66, 68, 83, 86, 88, 89–90, 93

9 U.S.C. § 1, 14, 25

9 U.S.C. § 2, 25, 38, 88

9 U.S.C. § 3, 41

9 U.S.C. § 4, 37, 38, 40

9 U.S.C. § 5, 45, 46

9 U.S.C. § 7, 51, 52, 54

9 U.S.C. § 8, 47

9 U.S.C. § 9, 71

9 U.S.C. § 10, 19, 66, 67

9 U.S.C. § 12, 64

9 U.S.C. § 16, 63

9 U.S.C. § 201, 7, 13, 24, 26

9 U.S.C. § 202, 26, 28, 65, 88

9 U.S.C. § 203, 35

9 U.S.C. § 204, 35, 72
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9 U.S.C. § 206, 37, 40, 45, 46, 48

9 U.S.C. § 207, 63, 70, 72, 87

9 U.S.C. § 208, 25, 27, 37, 41, 45, 46, 51, 54, 63, 64, 66

9 U.S.C. § 301, 13, 24

9 U.S.C. § 302, 27, 35, 70, 87

9 U.S.C. § 303, 37, 40, 45, 46

9 U.S.C. § 304, 63

9 U.S.C. § 305, 27

9 U.S.C. § 307, 14, 25, 37, 41, 45, 46, 51, 54, 63, 64, 66

9 U.S.C. § 308, 7

28 U.S.C. § 1603, 90

28 U.S.C. § 1605, 91

28 U.S.C. § 1782, 55–60

Fed. R. Civ. P. 45(b)(2)–(3), 52

House Report No. 501, 101st Cong., 2d Sess. 4 (1990), reprinted in 1990 

U.S.C.C.A.N. 675, 7, 13, 25

Uniform Commercial Code, art. 2, 11

Non-U.S. Legislation and Rules

Civil Procedure Rules (Engl.), Part 31, available at http://www.justice.

gov.uk/courts/procedure-rules/civil/rules/part31, 50

European Council Regulation 44/2001 of 22 Dec. 2000 on Jurisdiction and 

the Recognition of Enforcement of Judgments in Civil and Commercial 

Matters, 2001 O.J. (L 12) 1, art. 22(4), 39

Practice Direction 31A—Disclosure and Inspection (Engl. and Wales), available at http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_

part31a, 50

International Sources 

Convention on the Settlement of Investment Disputes Between States and 

Nationals of Other States, Mar. 18, 1965, 17 U.S.T. 1720, 575 U.N.T.S. 

159 (ICSID Convention), 3

Hague Conference on Private International Law: Special Commission Report 

on the Operation of the Hague Service Convention and the Hague Evidence Convention, 28 I.L.M. 1556 (1989), 53 

Hague Convention on the Service Abroad of Extra-Judicial and Judicial Documents, opened for signature Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 

6638, 64–65
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140

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial 

Matters, opened for signature Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 

7444, 53

Inter-American Commercial Arbitration Commission Rules of Procedure, as 

amended April 1, 2002, 22 C.F.R. pt. 194, app. A, 14

Inter-American Convention on International Commercial Arbitration of 

1975, Pub. L. No. 101-369, 104 Stat. 448 (1990) (Panama Convention), 

6, 7, 12, 13, 14, 15, 24, 25, 27, 30, 46, 59, 70, 71, 89, 93

International Institute for the Unification of Private Law (UNIDROIT) Principles of International Commercial Contracts, art. 1.6(2), UNIDROIT 

Principles 2004, available at http://www.unidroit.org/english/principles/

contracts/principles2004/integralversionprinciples2004-e.pdf, 10

United Nations Commission on International Trade Law (UNCITRAL), Recommendation Regarding the Interpretation of Article II, Paragraph 2, and 

Article VII, Paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, U.N. Doc. A/6/17 (July 7, 2006), 

88 

United Nations Convention on Contracts for the International Sale of Goods

(CISG), Apr. 11, 1980, S. Treaty Doc. No. 98-9 (1984), 1489 U.N.T.S. 3, 

available at http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/

1980CISG.html, 11

United Nations Convention on the Recognition and Enforcement of Foreign 

Arbitral Awards, June 10, 1958, 21 U.S.T. 2518 (New York Convention), 

6, 7, 12, 13, 14, 15, 19, 26, 27, 28, 29, 30, 33, 34, 37–38, 39, 41, 46, 47–

48, 62, 64, 65, 66, 67, 69, 70, 71–85, 86, 87, 88, 89, 93

United Nations, Status—1958 Convention on the Recognition and Enforcement of Foreign Arbitration Awards, available at http://www.uncitral.

org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html, 30 

Arbitral Rules and Guidelines

American Arbitration Association (AAA) Code of Ethics for Arbitrators in 

Commercial Disputes, effective Mar. 1, 2004, available at http://

www.adr.org/aaa/ShowProperty?nodeId=%2FUCM%2FADRSTG_003867

&revision=latestreleased, 67, 68

American Arbitration Association (AAA) Commercial Arbitration Rules, effective June 1, 2009, available at http://www.adr.org, 67 

American Law Institute, Publications Catalog, Restatement on the U.S. Law of 

International Commercial Arbitration, available at http://www.ali.

org/index.cfm?fuseaction=publications.ppage&node_id=130, 66
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International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration, approved May 22, 2004, available at http://www.

ibanet.org/Publications/publications_IBA_guides_and_free_materials.

aspx, 20, 67, 68

International Bar Association (IBA) Rules of Ethics for International Arbitrators, available at http://www.ibanet.org/Publications/publications_IBA_

guides_and_free_materials.aspx#ethics, 68

International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration, adopted May 29, 2010, available at http://www.

ibanet.org/Publications/publications_IBA_guides_and_free_materials.

aspx, 20, 51 

International Centre for Dispute Resolution (ICDR) International Arbitration 

Rules, effective June 1, 2009, available at http://www.adr.org, 19, 67

International Chamber of Commerce (ICC) Rules of Arbitration, effective 

Jan. 1, 2012, available at http://www.iccwbo.org/court/arbitration/id4199/

index.html, 18, 19

London Court of International Arbitration (LCIA) Arbitration Rules, effective 

Jan. 1, 1998, available at http://www.lcia.org/Dispute_Resolution_

Services/LCIA_Arbitration_Rules.aspx, 19

United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, G.A. Res. 31/98, UNCITRAL, 31st Sess., Supp. No. 17 at 

34, U.N. Doc. A/31/17 (Apr. 28, 1976), available at http://www.

uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf, 9 

United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, G.A. Res. 65/22, U.N. Doc. A/RES/65/22 (as revised in 

2010), available at http://www.uncitral.org/pdf/english/texts/arbitration/

arb-rules-revised/arb-rules-revised-2010-e.pdf, 9 

United Nations Commission on International Trade Law (UNCITRAL) Model 

Law on International Commercial Arbitration, UNCITRAL, 18th Sess., 

Annex 1, U.N. Doc. A/40/17 (June 21, 1985), revised by Revised Articles 

of the UNCITRAL Model Law on International Commercial Arbitration, 

UNCITRAL, 39th Sess., Annex 1, U.N. Doc. A/61/17 (July 7, 2006), 

available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/

1985Model_arbitration.html, 15–16, 53
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Books

Nigel Blackaby et al., Redfern and Hunter on International Arbitration

(2009), 24, 32, 95

Gary B. Born, International Commercial Arbitration (2009), 7, 17, 22, 24, 29, 

33, 34, 41, 42, 43, 46, 47, 48, 49, 50, 53, 54, 62, 65, 67, 69, 74, 75, 76, 

83, 84, 89, 91, 95

W. Laurence Craig et al., International Chamber of Commerce Arbitration 

(2001), 24 

Emmanuel Gaillard & John Savage, Fouchard Gaillard Goldman on International Commercial Arbitration (1999), 24, 39, 40, 74, 95 

International Council for Commercial Arbitration, ICCA’s Guide to the Interpretation of the 1958 New York Convention (created with the assistance 

of the Permanent Court of Arbitration at the Peace Palace, The Hague), 

available at http://www.arbitration-icca.org/publications/NYC_Guide. 

html, 13 

Julian D.M. Lew et al., Comparative International Commercial Arbitration

(2003), 24, 89, 90, 95

Campbell McLachlan et al., International Investment Arbitration: Substantive 

Principles (2008), 3

Christoph H. Schreuer, The ICSID Convention: A Commentary (2001), 3

S.I. Strong, Research and Practice in International Commercial Arbitration:

Sources and Strategies (2009), 95, 101

Articles

Kenneth Beale et al., Solving the § 1782 Puzzle: Bringing Certainty to the Debate Over 28 U.S.C. § 1782’s Application to International Arbitration, 47 

Stan. J. Int’l L. 51 (2011), 57 

Gary Born, The Principle of Judicial Non-Interference in International Arbitral 

Proceedings, 30 U. Pa. J. Int’l L. 999 (2009), 49

Emmanuel Gaillard, Reflections on the Use of Anti-Suit Injunctions in International Arbitration, in Pervasive Problems in International Arbitration 203

(Loukas A. Mistelis & Julian D.M. Lew eds., 2008), 44

Christopher C. Kokoruda, The U.N. Convention on Contracts for the International Sale of Goods—It’s Not Your Father’s Uniform Commercial Code, 85 

Fla. B.J. 103 (June 2011), 11 

William W. Park, Determining an Arbitrator’s Jurisdiction: Timing and Finality 

in American Law, 8 Nev. L.J. 135 (2007), 40

Martin Platte, When Should an Arbitrator Join Cases?, 18 Arb. Int’l 67 (2002), 

89
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W. Michael Reisman & Heide Iravani, The Changing Relation of National 

Courts and International Commercial Arbitration, 21 Am. Rev. Int’l Arb. 5 

(2010), 44

S.I Strong, Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration, 2012 J. Disp. Resol. 1 (2012), 1, 44 

S.I. Strong, Research in International Commercial Arbitration: Special Skills, 

Special Sources, 20 Am. Rev. Int’l Arb. 119 (2009), 95, 101 

S.I. Strong, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally 

Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity? 30 Mich. J. Int’l L. 1017 (2009), 90

S.I. Strong, What Constitutes an “Agreement in Writing” in International Commercial Arbitration? Conflicts Between the New York Convention and the 

Federal Arbitration Act, 48 Stan. J. Int’l L. 47 (2012), 87
The Federal Judicial Center 

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