Post-Hearing Issues In International Arbitration - Chapter 10 Enforcement by U.S. Courts of International Arbitration Interim Orders and Awards under the New York Convention: Publicis Communication v. True North Communications Inc.
Robert H. Smit is a Partner at Simpson Thacher & Bartlett LLP, in the Firm's Litigation Department, where he Co-Chairs the Firm's International Arbitration and Dispute Resolution Practice. Mr. Smit is also Adjunct Professor of International Arbitration at Columbia Law School; Co-Editorin-Chief of the American Review of International Arbitration; Member of the ICC Commission on Arbitration; and Adviser to the American Law Institute’s Restatement (Third) of the U.S. Law of International Arbitration. He is also former U.S. Member of the ICC International Court of Arbitration; Chair of the New York City Bar Association's International Commercial Disputes Committee; Chair of the CPR Arbitration Committee; and Vice-Chair of the IBA's International Arbitration and ADR Committee.
Emma Lindsay is a Senior Associate in Simpson Thacher & Bartlett LLP's Litigation Department, where she concentrates her practice on international litigation and arbitration. She acts as counsel in arbitrations conducted under all of the major international commercial arbitration rules and has significant experience in investment treaty arbitration under bilateral and multilateral investment treaties. As part of her international practice, Ms. Lindsay advises on public international law matters including treaty negotiation, territorial and maritime boundary disputes, and international human rights and humanitarian law. Ms. Lindsay is Adjunct Professor of Public International Law at the New School University. She is a former Law Clerk at the International Court of Justice to then President of the Court Judge Shi Jiuyong of China and to Judge Pieter H. Kooijmans of the Netherlands.
Enforcement of interim arbitral orders and awards is an issue of considerable practical importance in international arbitration. Interim arbitral rulings may encompass a wide range of substantive and procedural issues in the arbitration; they may, for example, resolve discrete claims or issues in the arbitration, provide for provisional or conservatory measures pending the final award, or order the production of evidence or discovery for use in the arbitration. Because arbitrators lack the enforcement power themselves to compel compliance with their interim orders and awards, resort to the courts may be necessary for enforcement. Yet neither the U.S. Federal Arbitration Act (“FAA”) nor the New York Convention of 1958 that the FAA implements in its second chapter addresses judicial enforcement of interim arbitral orders and awards. As a result, the regime for judicial enforcement of those arbitral rulings in the United States has been determined through the developing case law in U.S. courts. While U.S. courts have struggled with the issue, often reaching inconsistent (and sometimes irrational) results, they increasingly appear willing to enforce interim arbitral rulings, provided those rulings finally and definitively resolve selfcontained issues in the case and regardless of whether the interim rulings take the form of an “order” or “award.”
I. The Facts and Holding of the Publicis Case
II. Analysis and Implications of the Publicis Case
III. Is It an "Order" or "Award"?
IV. Is it "Interim" or "Final"?
V. Is It Remandable?
VI. Conclusion: Is It Enforceable?