Enforcement by U.S. Courts of International Arbitration Interim Orders and Awards under the New York Convention: Publicis Communication v. True North Communications Inc. - (SAR) 2001 - 1
Robert H. Smit
1 PDF Version from "Stockholm Arbitration Reporter"
Robert H. Smit & Alan Turner, Simpson Thacher & Bartlett
Click to view:
Preview Page SAR 2001 - 1
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 self-contained issues in the case and regardless of whether the
interim rulings take the form of an “order” or “award.”
A recent decision of the U.S. Court of Appeals for the Seventh Circuit
reflects that trend. In an opinion that is as entertaining as it is interesting,
the Seventh Circuit held in Publicis Communication v. True North Communications
Inc., 206 F.3d 725 (7th Cir. 2000), that an arbitral decision
taking the form of an “order” was final and therefore amenable to judicial
confirmation and enforcement under the New York Convention. While
Publicis suggested in argument that the ruling “will cause the international
arbitration earth to quake and mountains to crumble,” and the Seventh
Circuit charily responded that the case only concerned “whether or not