Interpreting the New York Convention: When should an Interlocutory Arbitral "Order" be treated as an "Award"? Chapter 13 - AAA/ICDR Handbook on International Arbitration and ADR - 2nd Edition

Marc J. Goldstein is a partner at the New York City office of Hodgson Russ L.L.P. as of January 2005. He holds a J.D. from the University of Virginia Law School and a B.A. from the University of Pennsylvania. Mr. Goldstein was named as a leading practitioner in international commercial litigation in Chambers USA Guide to America’s Leading Business for the fourth consecutive year in 2004.

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In Publicis Communication v. True North Communications Inc.,1 the U.S. Court of Appeals for the Seventh Circuit issued a ruling on an important issue in international arbitration. The decision properly elevated substance over form but applied a questionable approach to interpreting the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (often referred to as the New York Convention). This article examines the shortcomings of the court’s approach.

II. Background
More than 120 countries including the United States are parties to the New York Convention. In principle, it is the foundation of a transnational dispute resolution system that imposes on the national courts of member states common standards for recognizing and enforcing awards made in the territory of other member states. In practice, however, the desired uniformity or consistency is not always achieved, since member states sometimes take very different approaches to even the most fundamental issues arising under the Convention.