Originally from American Review of International Arbitration - ARIA

Preview Page

A decade and a half ago one commentator thought it “striking” that more than
a quarter century of life after American accession, “there is still no real
consensus” on “just when the New York Convention is supposed to be applied by
American courts.”1 It is now 40 years since the United States became a party to
the Convention,2 and there is still an absence of consensus on the application of
the Convention. Indeed, intervening developments in the law since Professor Rau
offered his accurate observation have only served to deepen the confusion and
complexity that confounds international commercial arbitration in the United
States. This is not so much a problem for the prevailing party in an arbitration
conducted abroad seeking to enforce the award in the United States; in that case
the command of the Convention and Chapter 2 of the Federal Arbitration Act,
enacted to implement American accession to the Convention,3 have largely
cleared the path.4 For an award rendered in an international arbitration conducted
in the United States, however, serious difficulties persist, for reasons that reflect
history, less than pellucid legislative draftsmanship, and judicial reluctance. The
result is not compelled or preordained. We have in existing statutory and
decisional law the materials necessary to extricate ourselves from this unhappy
state of affairs. It is long since time that we did so.
These difficulties have become an issue of special current importance because
of the initiative of the American Law Institute to undertake the preparation of a
Restatement of the international commercial arbitration law of the United States.