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The Due Process Defense to Recognition and Enforment of Foreign Arbitral Awards in United States Federal Courts: A Proposal for a Standard - ARIA Vol. 11 No. 1 - 2 2000

Author(s): 
Osamu Inoue
Page Count: 
39 pages
Media Description: 
1 PDF from "The American Review of International Arbitration (ARIA)"
Published: 
February, 2000
Jurisdictions: 
United States
Practice Areas: 
Enforceability of Arbitration Agreements,
Basic Standards of Due Process,
New York Convention
Author Detail: 

 Osamu Inoue - Osamu Inoue is a partner at Ushijima & Associates, Tokyo, Japan. LL.M. 2000, M.C.J. 1998, New York University School of Law; 1991, The Legal Training and Research Institute of the Supreme Court of Japan; LL.B. 1986, Hokkaido University. The author wishes to thank Professor Toni M. Fine for her helpful comments and guidance on an earlier draft of the article. The views expressed are solely those of the author.

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Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

Under Article V(1)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards[1] (the “New York Convention”), recognition and enforcement of an arbitration award may be denied if the opposing party can prove that s/he was “not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his/her case.”[2] This so-called due process defense has been interpreted to “essentially sanction[] the application of the forum state’s standards of due process.”[3] Other U.S. courts have adopted this theory.[4] Consequently, the U.S. courts generally interpret the standard under which they will consider challenges to enforcement of an arbitral award under Article V(1)(b) to be that of “due process rights under American law.”[5] There are, however, no clear guidelines as to how to apply American standards of due process to foreign arbitral awards.