Originally from American Review of International Arbitration - ARIA

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Hans Smit combined the worlds of arbitration and litigation: at Columbia Law
School, he taught civil procedure and served as the Director of the Law School’s
Project on International Procedure; and he was known world-wide for his
expertise as an international arbitrator. In his scholarship and in his practice – as
both arbitrator and litigator – he exhibited a command of both subjects and of their
relationship to each other. Recent developments affecting the enforcement of both
arbitration awards and foreign judgments have highlighted the impact of basic
concepts of civil procedure on arbitration, and Hans had his own distinct views
about that interrelationship. I examine two of those issues in this tribute to him.
One question that has arisen is whether an independent basis of adjudicatory
jurisdiction over the defendant is necessary in order to enforce a foreign arbitral
award. At least in the United States, the answer to that question has been “yes.”
Although Article V of the New York Convention does not identify the lack of a
jurisdictional nexus with the award debtor as a defense to enforcement of a
foreign arbitral award, almost every court in the United States that has considered
the issue has held that an enforcing court must have either personal jurisdiction
over the award debtor or quasi-in-rem jurisdiction over the property. The leading
case, Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co.,1 involved a
Netherlands corporation (Glencore Grain) that sought enforcement of a London
arbitration award rendered against an Indian rice exporter for breach of contract.
Rejecting Glencore’s argument that neither the New York Convention nor its
implementing legislation required personal jurisdiction over the defendant and
that lack of personal jurisdiction was not among the New York Convention’s
defenses to recognition and enforcement, the Court of Appeals for the Ninth
Circuit affirmed the district court’s dismissal for lack of jurisdiction. The court
found that the requirement of jurisdiction did not emanate from what the
Convention and Chapter 2 of the Federal Arbitration failed to say, but flowed
from the affirmative command of the Due Process Clause of the U.S. Constitution,
which the Convention could not abrogate.2 The Court of Appeals for the Second
Circuit reached the same conclusion in Frontera Resources Azerbaijan Corp. v.
State Oil Company of the Azerbaijan Republic,3 holding that either personal