Originally from American Review of International Arbitration - ARIA

Preview Page

I. INTRODUCTION
As recently as July 2012, a U.S. federal court reiterated that Chapters One and
Two of the Federal Arbitration Act (“FAA”)1 provide “overlapping coverage”
over non-domestic arbitral awards rendered in the United States, to the extent the
two chapters do not conflict.2 Some courts interpreting this “overlapping
coverage” have taken it to mean that Chapter One is a gap-filler for Chapter Two,
providing technical provisions for residual application.3 But a different
interpretation of “overlapping coverage” is that the two chapters of the FAA
create two separate regimes for the confirmation of non-domestic arbitral awards
rendered in the U.S. and that, between these two regimes, the prevailing party to
the arbitral award “may [choose] the most advantageous.”4 This view, introduced
by the Second Circuit’s seminal case, Bergesen v. Muller,5 and further elaborated
by the Second and Seventh Circuits,6 calls for “overlapping coverage” beyond
simply using 9 U.S.C. § 208 to fill in gaps in Chapter Two by drawing from
Chapter One. Instead, this interpretation takes the two regimes as parallel
entitlements. The prevailing party in arbitration may choose between the two
procedures at the outset of an action to convert the award into a court judgment
(i.e., to confirm the award).