The Limitations of Tradition: How Modern Choice of Law Doctrine Can Help Courts Resolve Conflicts within the New York Convention and the Federal Arbitration Act

Share on facebook
Share on twitter
Share on linkedin
Share on email
Share on print

The difficulties faced by parties trying to enforce rights secured through international arbitration stem from the fact that countries have enacted different barriers to the enforcement of international arbitral awards. These cross‐national differences in barriers persist today, despite the fact that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“New York Convention” or “Convention”) attempted to eliminate such differences. Through the New York Convention, the international community sought to limit and standardize the grounds on which countries could refuse to enforce arbitral awards.

The lack of international uniformity does not arise because countries that have ratified the New York Convention are intentionally violating the treaty; rather, the problem lies within the treaty itself—the New York Convention contains a choice of law problem. It establishes that two sets of laws will govern actions to enforce international arbitration awards: its own provisions and the national laws of state‐parties. National courts have adopted traditional choice of law methods in order to choose whether they will use their own national laws or the treaty provisions to decide a particular issue. However, this divergence has brought to enforcement actions the same two problems it has brought to other more conventional civil litigations—absurd and nonuniform outcomes. The lack of uniformity is particularly vexing, as the New York Convention’s very purpose was to ensure the uniform treatment of a given arbitration award across countries.

This Comment proposes that just as courts have abandoned the traditional choice of law approach in conventional litigation, they should also abandon it in arbitral enforcement litigation. Courts should instead use modern choice of law doctrine. Employing modern choice of law doctrine to enforcement actions would produce sensible results and bring uniformity to the enforcement of international arbitral awards. This Comment focuses on the United States and the Federal Arbitration Act as a case study. It suggests that applying modern American choice of law doctrine to the Federal Arbitration Act, mainly by limiting the application of the statute of limitations contained in section 207 of the Act, would help the United States better implement the New York Convention.

(Visited 8 times, 1 visits today)
Close