Originally from American Review of International Arbitration - ARIA

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TWO TO TANGO:
DOMESTIC GROUNDS FOR VACATUR
UNDER THE NEW YORK CONVENTION
Harout Jack Samra*
 

 I. INTRODUCTION

Over the last decade, arbitration, and its international strain in particular, has
provided ample fodder for mystifying Supreme Court rulings and rampant
divisions among the circuit courts. These divisions, some seemingly
irreconcilable, are deeply troublesome as they lead to the sort of venue or choiceof-
law gamesmanship that plagues litigation. From the viability of the doctrine of
manifest disregard of the law in light of the Supreme Court’s command in Hall
Street v. Mattel, to the more fundamental question of whether the grounds for
vacatur enumerated in the Federal Arbitration Act (the "FAA" or the "Act") are
available at all, selecting the locus of an arbitration has acquired even greater,
more far-reaching significance than it previously possessed, as that selection may
bear directly on which defenses against an adverse award are available. These
factors are particularly true in the context of international arbitration, which is also
directed by the United Nations Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the "New York Convention"). This article will
address this last concern in particular.

In international arbitration, several circuit courts have diverged rather
drastically as to what bases are available for vacating arbitration awards. This
confusion, largely rooted in the challenge of reconciling the New York
Convention and the FAA, strikes at the core of the essential balance that must be
maintained in order for arbitration to remain a viable tool for dispute resolution:
the balance between the finality of the award and the procedural safeguards
provided to parties who, quite literally, get less than what they bargained for.