The Clash Between the New York Convention and the U.S. Constitution - Part 1 Chapter 35 - Practice of International Litigation - 2nd Edition
Lawrence W. Newman
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Lawrence W. Newman has been a Partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of four works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Under the U.S. Constitution, a plaintiff must demonstrate that due process requirements are satisfied in order for a court to have personal jurisdiction over a person against whom a lawsuit is brought. But the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) sets forth the exclusive grounds for challenging an international arbitration award; lack of personal jurisdiction by the enforcing court over the judgment debtor is not one of the enumerated grounds.
A recent U.S. Court of Appeals for the Fifth Circuit decision reaffirmed what other federal courts have held—that the Convention must yield to the Constitution and that a court may not entertain an action to confirm a foreign arbitral award if the court lacks personal jurisdiction over the judgment debtor. Under New York jurisprudence, however, there is a basis for contending that the constitutional roadblock may not be applicable.