Originally from Iura Novit Curia in International Arbitration

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I. INTRODUCTION

“Under the New York Convention, we examine whether the award exceeds the scope” of the arbitrators’ power, “not whether the award exceeds the scope of the parties’ pleadings.”  So says Iran v. Gould, the leading U.S. case on whether arbitrators may assess the content of law for themselves. Gould is not the leading case on point because of the force of its reasoning, but simply because so few U.S. courts have addressed the question of when arbitrators have the right or duty to assess the content of the applicable law for themselves. U.S. federal and state statutory arbitration law is similarly silent. So, Gould’s admonition that courts should examine power, not pleadings is, for the moment, the guiding principle of the U.S. approach.

Nonetheless, if experience is any guide: Hand an award debtor a weapon, and it will be used. Perhaps not successfully—but the resistant debtor may nonetheless value the ability to “throw sand on the tracks” to slow or to raise the costs of eventual enforcement. As the concept of jura novit arbiter—the right or duty of arbitrators to assess the content of law for themselves—has garnered more attention and currency, one can expect that it will be deployed, particularly as a supposed obstacle to confirmation or to recognition and enforcement awards. In the United States, several avenues are open to assert such challenges—even if the obstacles are steep.

II. JURA NOVIT CURIA AND U.S. COURTS

The powers and obligations of U.S courts may be an odd place to begin as jura novit curia is of dubious relevance to the issue of jura novit arbiter.  However, national courts deal differently their power or obligation to independently assess the content of law, “and the background of the arbitrator and/or the reviewing court may affect how the issue is addressed in arbitration.”