Treaty Obligations and National Law: Emerging Conflicts in International Arbitration

Invoking either forum non conveniens or the absence of personal jurisdiction, several federal courts have refused to enforce foreign arbitral awards. The authors explore the impact of these cases, suggesting that the decisions may put the United States in breach of duties under the New York Arbitration Convention. The resulting damage to reliability in cross-border dispute resolution will inhibit the type of international economic cooperation that benefits both the United States and the larger world community. With a view to reconciling domestic law and treaty obligations, the Article suggests that enforcement of foreign awards should include a two-step process. Pursuant to a confirmation hearing, an initial award registration would be available in a centralized forum. Later, enforcement proceedings could be brought at otherwise appropriate venues. The proposal aims to encourage award recognition within a reasonable time, without permitting the type of gamesmanship that sometimes penalizes prevailing litigants under existing practice