Originally from American Review of International Arbitration - ARIA

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One would have thought that we would have a pretty firm grasp by now on the question of just when the New York Convention1 is supposed to be applied by American courts. After all, we have been living under the Convention for more than a quarter of a century. Yet for a matter of such importance, it is striking that after all this time there is still no real consensus on the issue. In fact, with respect to both American and "foreign" arbitrations we still regularly encounter an extravagant amount of confusion and misunderstanding. What has impelled me to write this essay is the reading of a number of recent federal decisions that seem to miss the point in a quite spectacular manner. Indeed I hesitated before beginning to write, fearing that errors of this magnitude were so blatant, so clearly identifiable, that any reader would already be abundantly familiar with whatever I might have to say on the subject. (In addition, a number of these errors are as we speak being corrected by wiser heads on appeal.)2 Perhaps after working through these pages one may well conclude that I should have taken these initial scruples more seriously.

Nevertheless the cases I am referring to have still been recurring regularly. Some of them may be explained in the same straightforward way that Dr. Johnson accounted for his own erroneous definition, in his great dictionary, of the word "pastern" as the "knee" of a horse.3 In others, the question of jurisdiction under the Convention is apparently serving as a surrogate for other issues that lie beneath the surface. For example, a case may raise concerns with respect to the enforceability of an arbitration clause in a contract of adhesion; a court may be willing to skew the entire regime of the Convention in an attempt to accomodate such concern without having to address them directly, in terms of a particular fact pattern. Whether actually disingenuous or simply unconscious, this is rarely good judicial technique.