Understanding and Misunderstanding Primary Jurisdiction

Electronic copy available at: http://ssrn.
com/abstract=1633555
T
U
TheCent
Understa
terforG
TheU
anding(
GlobalEn
Env
Universit
Resear
(andMis
A
nergy,In
vironmen
tyofTex

rchPape
sunderst
AlanScot
nternatio
ntalLaw
xasScho
erNo.06
tanding)
ttRau
onalArb
w
oolofLa
610
)Primary
bitration
aw
yJurisdi
n,and
iction
Electronic copy available at: http://ssrn.com/abstract=1633555

Working Draft
Comments Solicited

Understanding (and Misunderstanding) Primary Jurisdiction

Alan Scott Rau
*

I. The Seat.................................2

a. Setting the Arbitration in Motion.........5
b. Monitoring the Process..........7
c. In which, or under the law of which. . . ...........16

II. Annulment at the Seat...................30

III. Enjoining Arbitrations...........................56

a. Injunctions and Consent..........56
b. Injunctions by States of Secondary Jurisdiction...70
i. The Solidere case.......75
ii. Subject matter jurisdiction...78
iii. All things are lawful; but not all things are expedient..89

IV. Collateral Attacks........107

V. Conclusion118

There is always disputed territory. It is the interaction within this substantial administration that determines
the random walk of the world: everything interesting happens at the borders between domains of power.
1

Any private mechanism of dispute resolution--- wherever it falls on the spectrum
running from consensual settlement all the way through binding arbitration---depends in
the last resort on public sanctions and the public monopoly of force. It is in this sense at
the very least that we can speak of a hierarchical, or vertical, relationship between
courts and arbitral tribunals. At the same time, though, in our world of comparative
advantage, of global ventures, and connected markets, transactions---and disputes---

*
Burg Family Professor of Law, the University of Texas at Austin
This paper was originally prepared for the Symposium, Arbitration and National Courts: Conflict
and Cooperation, held in Houston on May 13-14, 2010, and co-sponsored by the University of Texas
School of Law Center for Global Energy, International Arbitration, and Environmental Law; the Permanent
Court of Arbitration; and the Houston International Arbitration Club.
1
David Eagleman, Sum: Forty Tales from the Afterlives 77 (2009).
Electronic copy available at: http://ssrn.com/abstract=1633555
Thursday, July 01, 2010
Page 2 of 118

will routinely flow over national boundaries; they will inescapably involve parties of
different nationalities--- distant from each other not only geographically but culturally
and politically
2
---and will implicate different sovereign interests. And here---when we
add a horizontal dimension---is where things truly become interesting: In this
Westphalian world, conflict and competition between national jurisdictions, with
overlapping and yet plausible claims to supervise the process, become inevitable; here
is where the demands of tolerance become strained. And where our powers of
systematization are truly put to the test.

Because arbitrators do not at least for the moment have armed marshals at their
personal disposition, we must at some point look to those that do---that is, to a state
court charged with assessing whether to lend, or to withhold, its support to the
arbitration process (or, if need be, to interpose itself between private individuals and
mere officious interlopers with no plausible claim to power over them). We may (at least
some of us may) cherish the vision of a mechanism for mercantile self-government that
is entirely self-contained---even autarkic, one independent of local peculiarities, and with
a claim to universal recognition. But (thank goodness) for the moment such an ideal
lacks any organized, permanent, hierarchical structure, any supranational standing
bureaucracy, that could make it a concrete reality.
3

I. The Seat

The dichotomy between states of primary jurisdiction and states of secondary
jurisdiction in the architecture of the Convention [is] purely an American invention.
4

We are I think obligated to enter into this subject through the gate of the well
known and generally accepted---to start off together on ground that seems common and
familiar enough, and only slowly head towards contested territory. At the outset then I
will (changing metaphors) be painting with a pretty broad brush, trying as best I can to

2
See generally Christopher R. Drahozal, Private Ordering and International Commercial Arbitration, 113
Penn. St. L. Rev. 1031, 1042 (2009).
3
See W. Michael Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown
and Repair 4-7,108 (1992)(where an effective and distinct institutional framework does not exist and
cannot be created, the designers of control systems have little choice but to seek to adapt and channel
what is available: national judicial systems).
4
Jan Paulsson, Note [on TermoRio v. Electrificadoria Dela Atlantico], [2007] Rev. de lArb. 559, 561.
Now the distinction between the state where an arbitration is situated, and other states where
an award might possibly be enforced, is (as I rehearse below at tedious length) universal and
commonplace and often critical. Doubtless, though, the objection is to the tendentious nature of the
phrasing---just as the Mensheviks undoubtedly resented Lenins rhetorical coup which after some
favorable vote at an obscure Congress allowed his faction henceforth to be known as the majority
(Bolshevik): For arguably, if anything, the primary jurisdiction should be the one where the economic or
other consequences of an award are sought, Jan Paulsson, Enforcing Arbitral Awards Notwithstanding
A Local Standard Annulment, in 9 ICC Intl Ct. Arb. Bull. 14, 27 (May 1998).
Page 3 of 118

spare you a tedious pointillist reconstruction of received wisdom and traditional
learning.
5

We have to begin, at least provisionally, somewhere---and the conventional
starting point has been the supervisory role of the state on whose territory the
arbitration was conducted, and where the award was made. (This formula invoking
the territorial jurisdiction of the state where the arbitration took place is canonical, but
I am aware that it can readily mislead---Id ask, though, that you defer the inevitable
objections until, say, a few pages have passed).

The seat of the arbitration has been the fulcrum around which the entire arbitral
enterprise pivots; in any discussion the fault line has been the supposed dichotomy
between this state---where the arbitration finds its juridical home, and whose
jurisdiction over the process is therefore primary---and all other states whose
jurisdiction must therefore be deemed only secondary.
6
What after all does a modern
arbitration statute amount to, other than a delegation of a states power to private
parties permitting them to create legal consequences---final and binding settlement---for
themselves? (If this be positivism
7
---as opposed, say, to simple tautology---why then
make the most of it). It may well be (to turn Rousseau on his head) that arbitration as a
social practice, arbitration as a system of private ordering, aspires to be unbound and
free
8
----but first we must understand that it is born, everywhere, in chains---that it
enters life as the creature of a given legal system whose legislation first gives it
legitimacy.

Here is what really amounts to another way of saying the same thing: Any
arbitration legislation will create a regime intended to set in motionto facilitate---and
to regulate---local proceedings. This abundantly obvious fact is usually made quite
explicit in the text of the statute itself---although it is also necessarily implicit in the very

5
In an ideal form, rather hard for me to achieve here, this is invoked by the Chinese phrase, zou ma guan
hua, glimpsing flowers from horseback.
6
The locus classicus for this formulation is Reisman, supra n.3 at 113.
7
See, e.g., Emmanuel Gaillard, Aspects philosophiques du droit de larbitrage international 341-42
(Academie de droit international de la Haye 2008)(as throughout, my translation).
8
See Jan Paulsson, Arbitration Unbound: Award Detached from the Law of its Country of Origin, 30 Intl
& Comp. L.Q. 358 (April 1981); Jan Paulsson, Arbitration Unbound in Belgium, 2 Arb. Intl 68 (1986). See
also Thomas Clay, Note [to Socit PT Putrabali Adyamulia v. Socit Rena Holding (Cour de Cassation,
June 29, 2007], [2007] J. Droit Intl (Clunet) 1240, 1246 (French case law aims at emancipating,
liberating, international arbitration from all the restrictions aimed at preventing it from achieving its true
fulfillment).
Metaphors are invariably tendentious, which makes them extremely dangerous unless handled
with care: Alternative---and more pejorative---tropes remain available: The anational school of
arbitration may nicely be caricatured, the door opened wide to ridicule, merely by suggesting that where
the link of the process to the seat is weakened, the resulting award took off and disappeared into the
firmament. See Roy Goode, The Role of the Lex Loci Arbitri in International Commercial Arbitration, 17
Arb. Intl 19, 21 (2001).
Page 4 of 118

enterprise of law-making.
9
Creation of a legal regime for English arbitrations is after all
the raison dtre of the English Arbitration Act; this is the justification for the states
exercise of its legislative jurisdiction and may at the same time be close to its
permissible boundaries.
10
And as part of the bargain extended to them, contracting
parties are expected to submit to the oversight of this states own courts:
11
Here is at
least a first cut at an allocation of competence among co-archical
12
national
jurisdictions.

Thus the UNCITRAL Model Law as a general rule confines the statutes
application to cases where the place of arbitration is in the territory of [the enacting]
state.
13
Exceptions are unintrusive and relatively uncontroversial and themselves speak
volumes; they recognize that even a state which has not been selected as the seat of
the arbitration may nevertheless be expected to orient its behavior precisely in order to
give effect to the parties preference to arbitrate elsewhere.
14

9
See the discussion in W. Laurence Craig, Some Trends and Developments in the Laws and Practice of
International Commercial Arbitration, 30 Tex. Intl L.J. 1, 36 (1995)(UNCITRAL Model Law).
10
Gary Born distinguishes between the external and the internal issues regulated by a states
arbitration legislation---
(a) the former encompassing the relationship between the international arbitral proceeding and
national courts, including the resolution of jurisdictional questions, judicial assistance to the
proceedings, and judicial review of awards;
(b) the latter encompassing various procedural issues that arise internally in the arbitral
proceedings, such as the conduct of hearings, including the opportunity to be heard, the
discovery powers of the arbitrators, and their remedial powers, including the power to issue
provisional relief.
1 Gary B. Born, International Commercial Arbitration 1240-42 (2009).
This is a familiar bit of taxonomy and may serve as a convenient checklist. Perhaps we shouldnt
exaggerate its explanatory power, for after all, any internal issue is in itself of little or no consequence,
unless and until some order of a national court later sanctions what has happened in the arbitral forum.
(Sanctioned here being an antagonym capable of indicating either to ratify or confirm, or to
penalize.). Still the dichotomy does perhaps capture one significant distinction: The arbitration
legislation of the seat will invariably tell us what the courts of the enacting state may do in relation to the
arbitral process---for example, which courts in particular are empowered by legislation to rule on requests
to set the proceeding in motion, or to annul awards? (This is (a)). With (b) the emphasis shifts slightly:
Consideration of internal issues calls for an inquiry into the requisites of a legitimate arbitral proceeding-
--what, for example, are the respective roles of arbitrators and contracting parties, and what the
permissible scope of arbitral autonomy? This, as we will see, is an inquiry that can be carried out by any
national court in any state---once, of course, it has sorted out the lex arbitri, that is, the applicable
governing law that it is bound to respect.
11
See Minmetals Germany GmbH v. Ferco Steel Ltd., [1999] C.L.C. 647 (Q.B.D. (Comm.))(a party who
contracts into an agreement to arbitrate in a foreign jurisdiction is bound not only by the local arbitration
procedure but also by the supervisory jurisdiction of the courts of the seat of the arbitration).
12
Reisman, supra n.3 at 112.
13
UNCITRAL Model Law on International Commercial Arbitration art. 1(2).
14
Thus art. I(2) expressly relaxes this territorial limitation when it comes to
staying domestic litigation in a matter which is the subject of an arbitration agreement;
granting interim measures of protection in the interest of an ongoing arbitration---for example, in
order to conserve the subject matter of the dispute, to preserve evidence, or to secure an
eventual award;
Page 5 of 118

a. Setting the Arbitration in Motion

Along with most other legislation, then, the Model Law envisages an exclusive role
for the state of the seat in setting the process in motion---for example, by appointing the
arbitrators.
15
In this respect the general scheme of the Law is clear enough, (although
the usual intriguing questions occasionally pop up in the interstices: What if an inept
draftsman has failed to specify any seat at all?
16
What of the truly aberrant case where

enforcing interim measures of protection ordered by the arbitral tribunal itself, and to
recognizing and enforcing foreign awards.
Id. arts. 8, 9, 17H, 17I, 17J, 35 and 36; see Howard M. Holtzmann & Joseph E. Neuhaus, A Guide to the
UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary 35,
332-33 (1989)(the exceptions to art. I(2) all direct the courts of the enacting state to provide assistance to
arbitrations taking place elsewhere). Cf. Prema Birkdale Horticulture (Macau) Ltd. v. Venetian Orient
Ltd., [2009] HKCU 1163 (H.K. Ct. First Instance)(court may grant an interim injunction in relation to
arbitration proceedings commenced outside Hong Kong if they are capable of giving rise to an award
enforceable in Hong Kong; however the court in the exercise of [its] discretion declined to grant relief
since in the case of irrevocable obligations under on demand bonds an injunction should only be
granted in exceptional cases).
There is no exception in the Model Law in favor of art. 27, dealing with court assistance in taking
evidence---which as a consequence applies only to arbitrations in the enacting state: However, other
legislation in some jurisdictions may empower local courts to take such measures in aid of foreign
arbitrations. See Alan Scott Rau, Evidence and Discovery in American Arbitration: The Problem of Third
Parties, 19 Amer. Rev. Intl Arb. 1, 28-38 (2008)(28 U.S.C. 1782); cf. id. at 33-34 n.98
(characterization of a measure as a form of interim relief for emergency purposes of preservation of
evidence---rather than as disclosure or discovery---is a useful frame calculated to allow a litigant to
bypass otherwise applicable limits on production).
15
See UNCITRAL Model Law, art. 11 (failing an agreement by the parties on a procedure for appointing
the arbitrator or arbitrators, the appointment shall be made, upon request of a party, by the court of the
enacting state).
16
Where the parties themselves have not designated the seat it is best to presume that they would have
wanted the arbitrators---as their agents---to do so; this is the sense of the Model Law in art. 20 (1).
Allowing the seat to be selected by arbitrators named, not directly by the parties, but instead by a
contractually-designated arbitral institution, requires no special principle; such a surrogate for party choice
merely operates at one further remove. See Anysys, Inc. v. LMS Intl, 2007 WL 1231830 *3, *4, amended,
2007 WL 1202998 (W.D. Pa.). Here, after much ill-informed bumbling [when the ICC Rules say that the
Court shall name an arbitrator, is that really a grant of power to the federal court for the Western District
of Pennsylvania?], the court ultimately ordered that arbitration be instituted by the filing of a request for
arbitration with the ICC. See also In United States Lines, Inc. v. Liverpool & London Steamship
Protection & Indemnity Assn, Ltd., 833 F. Supp. 350 (S.D.N.Y. 1993)(arbitration was required under the
Rules of the Liverpool and London Steamship Protection and Indemnity Association, but the seat of the
arbitration was not designated; held, the issue of venue is itself a proper issue for resolution by
arbitrators named by the Association); NCR Corp. v. Korala Assoc. Ltd., 2006 WL 2640219 (S.D. Ohio),
affd in relevant part, 512 F.3d 807 (6
th
Cir. 2008)(in the absence of party agreement the arbitrator was to
be chosen by the President of the Law Society; the parties were ordered to proceed to arbitration and,
if necessary, submit the issue of the venue of the arbitration to the arbitrator).
All of these cases conclude, quite correctly, that it is unnecessary to read FAA 206 as requiring
that the parties have specified a particular geographic location with precise map coordinates; it is
perfectly consistent with the language (directing arbitration in accordance with the agreement at any
place therein provided for) to defer to an institutional determination: What would be more natural, after
Page 6 of 118

there has been a failure of agreement, not only with respect to the seat but also with
respect to any mechanism for the selection of arbitrators?)
17

By contrast, the plain meaning of the FAA does seem to allow American courts to
appoint arbitrators even in foreign arbitral proceedings
18
: It seems very far from obvious

all, than to treat the implementing legislation for the Convention as being congruent with both the
expectations of the parties and international practice?.
17
If this really, inescapably, is what happened, then there may be no single and obvious candidate---
although some court with at least an arguable claim, if not a clear mandate, can be expected to step in to
try to salvage the process. See, e.g., National Iranian Oil Co. v. Israel, [2002] Rev. Arb. 427 (Cour
dAppel de Paris 2001). Here an agreement for an ad hoc, tripartite arbitration did not designate a seat---
saying only that in the absence of party agreement, the president of the tribunal was to be named by the
ICC. The claimant (the National Iranian Oil Co.) named its arbitrator, but the respondent (the state of
Israel) refused to do so, and the French courts affirmed their power to name the second arbitrator on its
behalf---even though French legislation permitted the French courts to aid in setting up a tribunal only for
an arbitration which takes place in France or which the parties have agreed shall be governed by French
procedural law, CPC art. 1493---neither of which was the case. But the claim that the implications of
NIOC are far-reaching---that it reflects the internationalist doctrines that apply in jurisdictions that are
hospitable to global commerce, and [expresses] the unfailing allegiance of the French judiciary to
contract freedom in global commerce and dispute resolution---seems far too sweeping, and far too
orotund, to be particularly helpful; cf. Thomas E. Carbonneau, Arguments in Favor of the Triumph of
Arbitration, 10 Cardozo J. Conflict Resol. 395, 421 (2009). The French court itself noted, more modestly
and sensibly, that it simply happened to be the least badly placed (le moins mal plac) to name an
arbitrator so as to allow the claimant access to the agreed arbitral forum. The natural alternative of
applying to the home courts of the respondent could not in these particular circumstances have been
reasonably expected to lead to a way out of the impasse---at least not until Iran changes its attitude
towards Israel! See Note, [2002] Rev. de lArb. 442, 448 (Philippe Fouchard). Cf. Holtzmann & Neuhaus,
supra n.14 at 131-32 (difficulty of finding a single acceptable connecting factor).
But that one mans hospitable internationalism can readily become anothers officious
usurpation, is suggested by the ever-irrepressible Indian jurisprudence; see, e.g., Citation Infowares Ltd.
v. Equinox Corp. (Sup. Ct. India, April 20, 2009)(one clause in an outsourcing agreement between Indian
and U.S. corporation provided that the agreement shall be governed by . . . the laws of California and
that any disputes shall be referred for arbitration to a mutually agreed Arbitrator; the Indian Supreme
Court appointed a former Chief Justice of the Court as the sole arbitrator).
We can confidently expect that the Indian judge named by the Indian court in Citation will make
this an Indian arbitration. American and English courts, in similar circumstances, may be said to have
gone even further---being willing to fix the seat themselves while bypassing the arbitrators altogether. The
American decisions are perhaps constrained by the happenstance of legislative drafting; where FAA
206 is unavailable---because the parties have named neither a seat nor a mechanism for selecting one---
then there is apparently no statutory alternative, if arbitration is to be compelled at all, to directing it to
proceed under 4 in the district where the motion to compel is filed. E.g., Jain v. de Mere, 51 F.3d 686
(7
th
Cir. 1995)(agreement between citizens of India and France provided that any dispute may only be
presented to an arbitrary commission applying French laws); Bauhinia Corp. v. China Natl Machinery &
Equipment Import & Export Corp., 819 F.2d 247 (9
th
Cir. 1987)(where contract was fatally ambiguous
with respect to the intended forum, the trial court took the only action within his power by ordering
arbitration before the AAA in California). The English cases are perhaps more familiar and coherent to
the extent they claim to deduce some contractual intention with respect to the seat from conflict-of-law
rules governing the overall agreement, see Tonicstar Ltd. v. American Home Assurance Co., [2004]
EWHC 1234 (QBD (Comm.)); cf. Dubai Islamic Bank PJSC, infra n.20.
18
See 9 U.S.C. 206, 303 (in a case falling under the New York or Panama Convention, a court may
direct that arbitration be held in accordance with the agreement at any place therein provided for, whether
Page 7 of 118

what can possibly be made of such a surprising and unqualified grant of power---and as
usual, considerable skepticism is warranted.
19

b. Monitoring the Process

And above all, it is clear that that an exclusive role is reserved for the courts of the
seat in monitoring compliance with the agreement---for example, by annulling or
vacating the resulting award. So, with the inevitable qualifications:

These are, for all practical purposes, the only national courts with the power to
annul an award
20
(although by legislation, of course, the state where the
arbitration is held may surrender any right to do so).
21

that place is within or without the United States, and may also appoint arbitrators in accordance with the
provisions of the agreement).
19
Thankfully 206 and 303 have never been carried anywhere near this far. Cf. 1 Born, supra n.10 at
1433 fn.424. See the cases discussed in n.16 supra; see also Euro-Mec Import, Inc. v. Pantrem & C.,
S.p.A., 1992 WL 350211 (E.D.Pa.)(agreement called for arbitration in Geneva but provided no method at
all for the selection of arbitrators; the court refer[red] the parties to arbitration in Geneva with the
warning that if they should be unable to reach a mutual agreement, the Court will order the location and
terms [sic] of the arbitration.
In none of the cases, then, did an American court go so far as to appoint arbitrators to sit in a
proceeding whose seat was understood to be in a foreign state. Should they be asked to do so they can
be counted on to deploy their good sense and discretion in order to narrow appropriately the
unconsidered language of the statute. Some of the same respect for party autonomy that would lead a
court to defer to an institutional mechanism for arbitrator selection, should lead it to defer to the courts of
the seat---at least until it is convinced that the national courts of the seat are themselves unable to act.
Note that in any event, any power to appoint arbitrators rests on the necessary predicate that a court will
have first satisfied itself that there is an enforceable agreement to arbitrate---and that it is thus willing to
grant a motion to compel. This is as it should be (and is suggested by both the structure of 206, and
cases like Jain, supra n.17). Granted, courts have sometimes opined that a somewhat less stringent
standard governs the courts decision to appoint an arbitrator as opposed to its decision to compel
arbitration---with the result that before proceeding with the appointment of an arbitrator, the court is not
required to grant a party a hearing on the question of the existence or validity of an arbitration
agreement. ACEquip Ltd. v. American Engineering Corp., 315 F.3d 151, 156-57 (2
nd
Cir. 2003). But as I
have written, this is hard to take very seriously, since if the question of validity is to be deferred, the
entire exercise may well be futile. In ACEquip itself, there was in fact little doubt that the respondent was
obligated to arbitrate with someone. See the discussion at Alan Scott Rau, Arbitral Jurisdiction and the
Dimensions of Consent, 24 Arb. Intl 199, 248-49 fn. 170 (2008).
20
See, e.g., Karaha Bodas Co., L.L.C . v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,
364 F.3d 274 (5
th
Cir. 2004)(only the courts of Switzerland, designated the site of the arbitration, had
primary jurisdiction to decide to annual the Award); 1 Born, supra n.10 at 1260 (arbitral seat as
exclusive annulment forum). See also C. v. D., [2008] 1 Lloyds L. Rep. 239 30 (C.A. 2007)(arbitrators
had issued in England a partial award on liability, but defendant intimated its intention to apply to a
Federal Court applying US Federal Arbitration law to order vacatur; held, anti-suit injunction ordered
preventing the defendant from initiating proceedings on the Partial Award in New York).
Compare Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193 (2000). An award is
rendered in Alabama in a dispute arising out of a construction project. A unanimous Supreme Court holds
that the respondent may move to vacate the award in federal court in Mississippi--where the project was
located. In other words, the venue provisions of 10 of the FAA--allowing an award to be vacated by a
Page 8 of 118

The national courts of the seat may exercise this power to annul awards, on
the basis of whatever grounds for vacatur the local arbitration legislation
provides---in the case of the U.S., then, FAA 10---unfettered by international
conventions.
22
(The troubling prospect of idiosyncratic local grounds is of course

federal court "in and for the district wherein the award was made"--are now to be understood as
"permissive" and not mandatory. So, is it possible to deduce from this simple holding that under the FAA,
awards rendered in London may now be vacated in Boston? See William W. Park, Amending the Federal
Arbitration Act, 13 Am. Rev. Int'l Arb. 75, 114, 125- 26 (2002) (given such possibilities, "reform [of the
FAA] is warranted" in this area to "significantly improve the climate for international arbitration in the
United States"); William W. Park, The Specificity of International Arbitration: The Case for FAA Reform,
36 Vand. J. Transnat'l L. 1241, 1276, 1286-87 (2003).
But "well, naturally we couldn't have meant that"---the universal solvent of the common law---
seems in these circumstances, as it so often is, a perfectly adequate response. This is not a matter of
"venue" at all, but of power (or perhaps even of jurisdiction). When post-Cortez cases reiterate that
under the New York Convention, the courts of only one state---presumptively, the courts of the seat---can
possibly purport to annul an award, it has never occurred to anyone that such a conclusion could in the
slightest degree be affected by the Cortez case itself. Cf. Catherine A. Giambastiani, Lex Loci Arbitri and
Annulment of Foreign Arbitral Awards in U.S. Courts, 20 Am. U. Int'l L. Rev. 1101 (2005) (missing the
point; "it is unclear whether the U.S. Supreme Court would agree with [the Karaha Bodas] line of
reasoning").
In all cases, then, a court must satisfy itself before it presumes to set aside an award that it is
indeed sitting at the arbitral seat. See, e.g., Dubai Islamic Bank PJSC v Paymentech Merchant Services
Inc., [2001] 1 Lloyds L. Rep. 65 (QBD (Comm.)). In this case involving a disputed chargeback on a VISA
transaction, the arbitration procedure before VISAs International Arbitration Committee had been
conducted entirely on paper. The request for arbitration had been filed with VISA in California and
documentation sent there (the VISA worldwide payment card scheme has its headquarters in California);
however, an appeal from the initial award was heard and decided at a VISA International board of
directors meeting held in London. The English court held that, considering all the relevant
circumstances, the seat should be deemed to have been in California, so that it lacked jurisdiction to
hear any challenge to the award.
21
The leading examples are Switzerland and Belgium: Where neither of the parties are local residents or
has a local business establishment, they are permitted to make an agreement expressly excluding any
possibility that the award may be set aside in the local courts; see Elliott Geisinger & Vivienne Frossard,
Challenge and Revision of the Award, in Gabrielle Kaufmann-Kohler & Blaise Stucki (eds.),
International Arbitration in Switzerland: A Handbook for Practitioners 135, 153 (2004); Judicial Code art.
1717 (Belg.); Bernard Hanotiau & Guy Block, La loi du 19 mai 1998 modifiant la lgislation belge relative
larbitrage,, [1998] Bull. ASA. 528, 532 (le systme Suisse de lopting-out).
22
This is at least the conventional wisdom. See, e.g., Craig, supra n.9 at 11 (the Convention provides
no restraint whatsoever on the control functions of local courts at the seat of arbitration); William
Laurence Craig, Uses and Abuses of Appeal from Awards, 4 Arb. Intl 174 (1988)(no international
agreements control how national courts supervise arbitrations taking place on their own territory, with
the result that each state is free to apply whatever measures of judicial control it wishes to international
arbitration taking place within its own jurisdiction).
There is obviously some tension between this received learning and the mandate of the
Conventions art.II: Could the courts of the seat, for example, take the extreme position that arbitration
awards are inherently non-binding---that they may routinely be vacated and re-examined de novo by local
tribunals? Could they do this, that is, consistently with their obligation under art. II to recognize an
agreement in writing under which the parties undertake to submit to arbitration all or any differences . . .
which may arise between them? If a Contracting State violates its obligations with regard to recognition
of arbitration agreements, through its treatment of arbitral awards, that is still a breach of Article II of the
Page 9 of 118

increasingly marginalized by the fact that most modern statutes, like the Model
Law, provide only one means of recourse, available during a fairly short period
of time, and for a limited number of reasons.)
23

And so even an international award falling under the New York Convention
may be annulled under the domestic standards of the FAA as long as the award
was rendered within the United States.
24
This quite uncontroversial proposition

Convention, 2 Born, supra n.10 at 2559. For a game attempt to reconcile this tension---by asserting that
art. II should be interpreted at the very least to require that any judicial review of international arbitral
awards in an annulment action not compromise the parties basic agreement to submit to arbitration---
see id. at 2556 (implied limits imposed by New York Convention on Grounds to Annul Awards). I am, I
confess, quite skeptical about any such claim:
For one thing, it seems to assume that a contracting state has an international obligation to
honor, as required by the Convention, agreements calling for international arbitrations to take
place within its own territory. While the text of the Convention is hardly crystalline, I find this most
dubious. Article I clearly leaves it within the discretion of each state to choose if, and to what
extent, awards rendered within its own territory are to be accorded Convention status, and the
obligations of the Convention should be read as congruent for both agreements and awards; by
analogy to Article I, the Convention can be read as requiring the enforcement only of agreements
that would in turn lead to foreign or non-domestic awards that themselves come within the
scope of the treaty. See Alan Scott Rau, The New York Convention in American Courts, 7 Amer.
Rev. Intl Arb. 213, 233-34 (1996). The U.S. is in fact rather unusual in having elected to make
anything at all of the non-domestic category in art. I, whether for agreements or awards;
compare Australia International Arbitration Act 1974 3(1), 7(1)(a court shall stay proceedings
subject to an arbitration agreement where the procedure in relation to arbitration . . . is
governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a
Convention country---and the term Convention country is defined to mean a country (other
than Australia) that has ratified the Convention).
In any event, whether it is wise to go any distance down this path---indulging in some sort of
reverse-Erie inquiry, weighing in particular cases the strength of parochial local interests against
some overriding transnational substantive policy---seems doubtful. Cf. Alan Scott Rau, Federal
Common Law and Arbitral Power, 8 Nev. L.J. 169, 193 (2007)(the respective roles of state and
federal law, requiring an inquiry into the federal interest in particular outcomes, and what
obstacles may be thrown up in the way of the federal scheme by the organization of a states
judiciary). A states refusal to countenance any arbitration administered by the ICC, for example-
--however scandalous in the eyes of the international arbitration establishment---is unlikely to
amount to a repudiation of that states solemn treaty obligation. Compare 2 Born, supra n.10 at
2558 (annulment decisions that . . . denied effect to ad hoc (or institutional) arbitration
agreements would be contrary to the New York Convention), with Termorio S.A. v. Electrantra
S.P., 487 F.3d 928 (D.C. Cir. 2007)(deferring to lawful Columbian annulment, where Columbian
law did not expressly permit the use of ICC procedural rules in arbitration).
23
Seventh Secretariat Note, Analytical Commentary on Draft Text, A/CN.9/264 (25 March 1985), in
Holtzmann & Neuhaus, supra n.14 at 964.
24
See, e.g., Jacada (Europe) Ltd. v. Intl Marketing Strategies, Inc ., 401 F.3d 701, 709 (6
th
Cir.
2005)(contract envisaged performance exclusively overseas, but because this award was made in the
United States, we can apply domestic law, found in the FAA, to vacate the award); Saipem America, Inc.
v. Wellington Underwriting Agencies, Ltd., 2008 WL 2276210 (S.D Tex.)(ICC arbitration with seat in
Houston; the Convention does not restrict the grounds on which primary jurisdiction courts may annul an
award, so that a court in the country under whose law the arbitration was conducted may apply
domestic arbitral law, such as the FAA, to a motion to set aside or vacate that award); Apache Bohai
Page 10 of 118

is obliquely confirmed by the structure of the New York Convention: An award is
generally understood to be made at the seat,
25
and foreign states are relieved
of any obligation under the Convention to enforce an award which has been set
aside or suspended by a court of the state in which it was made;
26
one can---
if this helps---conceive of an American court that (under 10 of the FAA)
vacates an award, and then (under the Convention) refuses to enforce the award
it has just vacated, as being two separate courts with the judges wearing two
different hats.
27
Any contrary view would have the apparent consequence that
no motion to vacate the award might be available anywhere---creating true a-
national awards, challengeable only where, and when, the successful party
himself chose to seek enforcement.
28

Corp, LDC v. Texaco China B.V., 2005 WL 6112664 (S.D. Tex.)(Houston arbitration under AAA
International Arbitration Rules; this court has primary jurisdiction over the award and may entertain a
motion to vacate the award on any of several grounds identified in the [FAA] and case law). An
elaborately-reasoned and still leading case is Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys R Us,
Inc., 126 F.3d 15 (2nd Cir. 1997)(as the award can be set aside in the country of origin on all grounds
contained in the arbitration law of that country, including the public policy of that country, the grounds for
refusal of enforcement under the Convention may indirectly be extended to include all kinds of
particularities of the arbitration law of the country of origin).
This dominant authority has now bypassed commentary to the contrary, which---being largely a
priori anyway---should not be followed. See, e.g., Lawrence F. Ebb, Developing Views on What
Constitutes a "Foreign Arbitration Agreement" and a "Foreign Award" Under the New York Convention, 1
AM. REV. INT'L ARB. 364, 370-71 (1991)("[f]rom a theoretical viewpoint," an American court would treat
the Convention as precluding an action for setting aside [a non-domestic American award] under any
inconsistent list of objections" appearing in the "domestic" FAA); Craig, supra note 9 at 35 n.185 ("[i]n
theory," "manifest disregard" of the law "should not be available as a ground for resisting enforcement of,
or for vacating, a nondomestic award rendered in the United States between foreign parties, which is
considered covered by the Convention"). Cf. n.28 infra.
25
See 2 Born, supra n.10 at 2368-71 (with the exception of some older, idiosyncratic and
misconceived decisions); see also Restatement of the Law Third, The U.S. Law of International
Commercial Arbitration, Tentative Draft No. 1 (March 29, 2010) [hereinafter, Restatement], 1-1 cmt. r
(made is a term used by statutes and treaties to signify the coming-into-existence of an award, and for
this purpose the seat is conclusive); UNCITRAL Arbitration Rules, R.16(4)(the award shall be made at
the place of arbitration).
26
New York Convention, art. V(1)(e).
27
Rau, The New York Convention in American Courts, supra n.22 at 240 (quoting Hiscox v. Outhwaite,
[1991] 3 All E.R. 641, 649 (H.L.)). But all this of course is unnecessary conceptualism: Combining the
two functions retains the supervisory functions of the forum state, while still giving the broadest possible
currency international arbitration agreements and awards. Id.
28
I suppose one might (just possibly) take the position that since 207 does not on its face distinguish
between foreign awards and non-domestic Convention awards rendered in the U.S., then---even in the
latter case---confirmation may be resisted only on the grounds for refusal or deferral of recognition or
enforcement . . . specified in the said Convention. This at least seems to be the assumption, largely a
priori and unexamined, in the Eleventh Circuit, see Industrial Risk Insurers v. M.A.N. Gutehoffnungshtte
Gmbh, 141 F.3d 1434, 1446 (11
th
Cir. 1998)(the Convention does not include a defense against
enforcement on the ground that the award was arbitrary and capricious, and the omission is decisive;
the Conventions enumeration of defenses is exclusive).
Now to begin with, invocation of the Conventions enumeration of defenses must then---
presumably and embarrassinglypass over art. V(1)(e) in silence. OK: In addition, though, neither the
Convention nor Chapter 2 of the FAA say anything about actual annulment. Could one then go further,
Page 11 of 118

Now suppose that an award is brought to a state other than the state in which it
was rendered---a state that was not the seat, that is, a so-called state of secondary
jurisdiction: Here too the losing party will ask the courts to refuse to enforce or
recognize the award; if he is successful in this, then the practical effect --at least within
that state---will be the functional equivalent of an actual annulment. It is true that while
local annulment at the seat is largely unrestricted by international agreement, a states
freedom of appreciation with respect to foreign awards is, by contrast, limited by the
New York Convention---in which the grounds for refusal of recognition or enforcement
are carefully circumscribed by art. V.
29
But in most states with modern legislation---in
the U.S., in particular---this will be an empty and thus profoundly uninteresting
distinction: As a practical matter, after all, it seems highly unlikely--to put it mildly--that
actual results in concrete cases will tend to diverge significantly depending on whether
an award is scrutinized under Article V of the Convention or under 10 of the FAA: I
think it is reasonably safe to assume that in operation the standards of the Convention
and the FAA will be identical.
30

and argue that by drafting as broadly as it did in 202, the U.S. retained the power to vacate U.S.
awards under 10, but limited this power to grounds equivalent or analogous to those grounds contained
in art. V(1)(a)-V(1)(d)? It would follow, then, that a U.S. court could always refuse to enforce an award
vacated in Dubai for idiosyncratic Dubai-esque grounds, but could neither vacate nor refuse to enforce an
award rendered in the U.S. on idiosyncratic American grounds. I am quite unable even to begin to trace
out the interpretative path that has to be followed to reach such a conclusion. By contrast the French
legislation---unlike 207---makes no mention of and does not rely on the Convention at all.
29
So, for example, the arbitration legislation of a given state may not permit
ad hoc arbitrations; or
arbitrations conducted under the ICC Rules; or
arbitrations presided over by foreign nationals; or
arbitrations in which the witnesses did not swear to an oath in a prescribed form before making
their statements.
Cf. Gaillard, supra n. 7 at 103-04 (China); Termorio S.A, supra n.22 (Columbia); Int'l Bechtel Co. Ltd. v.
Dept. of Civil Aviation of the Govt. of Dubai, 300 F.Supp.2d 112 (D. D.C. 2004); Direction gnrale de
l'aviation civile de l'Emirat de Dubai v. Socit international Bechtel, 2006 REV. ARB. 695 (Cour d'Appel
de Paris, Sept. 29, 2005)(Dubai) ; 1 Born, supra n.10 at 1442-43 (Saudi Arabia). This fact alone might
justify annulment of awards rendered locally in such arbitrations---but would presumably not in itself justify
a refusal to enforce an award rendered in such arbitrations in another contracting state.
30
See generally Rau, The New York Convention in American Courts,, supra n.22 at 236; see also id. at
237 fn. 97 (the vagueness and almost infinitely manipulable character of many of the grounds for
challenge). Of course the particular verbal formulations differ----but then, they differ across various
jurisdictions within this country in "domestic" FAA cases, without altering our recognition that "[h] owever
nattily wrapped, the packages are fungible." Advest, Inc. v. McCarthy, 914 F.2d 6, 9 (1st Cir. 1990). The
underlying purpose in every case is to alert the court on review that something has gone seriously wrong
in the conduct of the arbitration, whether in the form of arbitral overreaching or the denial of a fair hearing,
and simply to prevent an award from being enforced when some injustice in the proceedings taints its
validity, Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2
nd
Cir. 1984). See, generally Management &
Technical Consultants S.A. v. Parsons-Jurden Int'l Corp., 820 F.2d 1531, 1534 (9th Cir. 1987)("in
interpreting the grounds specified [for overturning awards], it is generally recognized that the Convention
tracks the [FAA]"); Amoco Overseas Oil Co. v. Astir Navigation Co., Ltd., 490 F. Supp. 32, 36 (S.D.N.Y.
1979)("standards for vacating [sic] the award under Article V of the Convention are equivalent in this case
to the corresponding standards under 9 and 10 of the [FAA]").
Page 12 of 118

Sometimes, as every academic knows, the most trivial hypotheticals can be the
most challenging---if one is really intent on taking the time to brood about them: What,
for example, should be done with the non-Convention award---an award rendered
abroad but, perhaps, made in a state like Liechtenstein that is not a party to the
Convention?
31
(That just about exhausts the category of the non-Convention
award.).
32
It is unclear whether such awards can even be confirmed in the U.S.,

I readily admit that in cases where it seems that foreign courts may have some role to play,
waving the banner of "international comity" can often be a useful way of intimidating a judge into being
more than usually circumspect in review. Conversely, Laurie Craig has suggested (with particular
reference to the Mitsubishi problem) that when reviewing a U.S. award rendered in an international
arbitration, "[i]t is by no means clear" that an American court "would use exactly the same judicial review
standards" it would use with respect to enforcement of a foreign award, since "[i]t would perhaps be
entitled to take an even closer second look. Craig, Uses and Abuses of Appeal from Awards, supra n.22
at 216. This is intriguing but seems to me to have limited predictive value: Could any look be more
perfunctory, for example, than the passing glance bestowed by the Seventh Circuit in Baxter Int'l, Inc. v.
Abbott Laboratories, 315 F.3d 829 (7
th
Cir. 2003)("whether the tribunal's construction of [the license] has
[the effect of commanding the parties to violate rules of positive law] was a question put to, and resolved
by, the arbitrators," and as between the parties "their answer is conclusive"). Although Judge Easterbrook
at no point even alludes to this fact in his opinion in Baxter, the arbitral tribunal, consisting of a U.S.
attorney, a Spanish attorney, and a Japanese law professor, had rendered its award in Chicago. See
generally Alan Scott Rau, The Arbitrator and Mandatory Rules of Law, 18 Amer. Rev. Intl Arb. 51, 74-
79 (2007)(mandatory provisions that are thought to govern arbitration proceedings and that are thought
sufficiently critical to justify vacatur of an award where the tribunal does not honor them; at least outside
the ghetto of consumer affairs . . . this will remain, if not exactly a null set, then at least a concept rapidly
being drained of content).
One common concern with permitting annulment of international awards under Chapter One of
the FAA is that it seems to open the door to review on the ground of manifest disregard of the law---a
much-fraught doctrinal construct, clearly unavailable when a party resists enforcement under the
Convention of a foreign award. See, e.g., William W. Park, Amending the Federal Arbitration Act, 13
Amer. Rev. Intl Arb. 75, 88-89 (2002)(a ground for challenge as vague as manifest disregard hangs
over international arbitration like a sword of Damocles, to be grasped by litigators and judges alike;
[s]uch temptations should be placed out of reach through a new chapter in the FAA, expressly
foreclosing back door judicial interference with the merits of international cases). I agree of course that it
is always wise parenting to keep dangerous toys out of the hands of children. But if one peers closely at
the whole notion of manifest disregard, it is hard to avoid the impression that really, at bottom, there just
isnt anything there. I have tried to demonstrate this at some length in Alan Scott Rau, The Culture of
American Arbitration and the Lessons of ADR, 40 Tex. Intl L.J. 449, 509-533 (2005)(the red herring of
manifest disregard; when one accounts for possible alternative analytical constructs, the doctrine is
left with no subsisting function whatever); and in Alan Scott Rau, Fear of Freedom, 17 Amer. Rev. Intl
Arb. 469, 496-502 (2006)(essentially irrelevant).
31
There is also Taiwan---and among several others, prominent arbitration venues such as North Korea,
Suriname, Chad, Angola, Myanmar, Somalia, Yemen, Eritrea, Bhutan, and Sudan. Awards from these
states are outside Chapter Two of the FAA by virtue of our reservation of reciprocity.
32
Awards arising out of non-commercial legal relationships are excluded from Convention coverage---
although not from the domestic FAA. (But for the particularly narrow meaning given to the non-
commercial exception in U.S. law, see Emmanuel Gaillard & John Savage, Fouchard, Gaillard, Goldman
on International Commercial Arbitration 39 (1999)). U.S. courts also hold that where an agreement is
between two American citizens, with no foreign connection other than that the contemplated place of
arbitration is London, the relation with a foreign state . . . required to invoke the Convention is lacking---
with the apparent implication that a federal court has no jurisdiction under the Convention either to
compel arbitration in London, nor to confirm an award rendered there. These cases are grotesquely,
Page 13 of 118

although I believe that this should be possible.
33
But if confirmation (unavailable by
definition under the Convention) remains open under 9 of the domestic FAA, then

inexplicably, mistaken; see Rau, The New York Convention in American Courts, supra n.22 at 242-57.
Unfortunately the error now seems to be ineradicable; see Matabang v. Carnival Corp., 630 F.Supp.2d
1361(S.D. Fla. 2009)(motion to remand granted and motion to compel denied; the law is clear).
Thats about it, though. I do not believe it is sensible to say that where an agreement fails to
satisfy the rather antiquated writing requirement of art. II(2) of the Convention---which may insist on an
agreement being signed by the parties or contained in an exchange of letters or telegrams--- then the
resulting award must also be relegated to the status of a non- Convention award. Cf. Restatement,
supra n.25 at 1-1 cmt. t. (an award that does not arise out of an agreement in writing also is not a
Convention award), 5-1 cmt. c (the arbitration agreement a party submits to the court when seeking
recognition or enforcement of an international arbitral award must be an agreement in writing as defined
in the applicable Convention).
It is a familiar proposition that the Convention formula bears little connection to commercial
reality; the paradigmatic counter-example is a contract formed by a written offer, accepted orally, or
tacitly, or by performance. So it seems far preferable to interpret the Convention as obligating states to
take certain minimum steps to enforce arbitral agreements---but not imposing a ceiling on what they may
do---so that the Convention could still be satisfied if an arbitration agreement would be deemed
enforceable under the jurisdictions general arbitration statute, or under ordinary domestic contract law
standards. Is it sensible that where one party adopts a written proposal by beginning performance, he
should be able to sue for breach of the substantive terms of the contract---but that at the same time,
thanks to the notion of separability, he is able to wash his hands of the arbitration clause contained in it?
Can it really be that a state which now chooses---in its eagerness to conform to international standards---
to track in its arbitration legislation the recent modernized version of art. 7 of the UNCITRAL Model Law,
is thereby systematically taking itself out of the Convention for the agreements it enforces?
There are indeed American cases suggesting that a court may enforce an arbitration clause only if it
satisfies the Conventions more stringent [writing] requirement, because the Convention controls in case
of any conflict with the FAA, e.g., Sen-Mar, Inc. v. Tiger Petroleum Corp., 774 F.Supp. 879 (S.D.N.Y.
1991). But these decisions can easily be explained away on simpler and more satisfactory grounds; see
Rau, Federal Common Law and Arbitral Power, supra n.22 at 184 fn.50. See generally Zambia Steel &
Bldg. Supplies Ltd v. James Clark & Easton Ltd., [1986] 2 Lloyds L. Rep. 225 (C.A.)(oral assent to sales
note containing arbitration clause is sufficient under English legislation intended to implement the
Convention; the holding that this constitutes an agreement in writing cannot constit[ute] departure by
this country from any obligation assumed under the Convention). To say that an agreement formed by
an oral or tacit acceptance should nevertheless be treated as within the Convention, means that any
recourse to art. VII---and the apparent need for an independent source of federal jurisdiction---is simply
unnecessary. The fact that a given state makes this choice, in the interest of ensuring congruence with
its domestic law of agreement, does not of course prevent any other state from withholding recognition
of the award under arts. IV and V
33
See Restatement, supra n.25 at 5-3(d) & 5-3 cmt. f (Applying Chapter One of the FAA to non-
Convention awards would result in their receiving treatment similar to the treatment accorded to domestic
awards in interstate commerce).
The conclusion is buttressed by dicta in Cortez Byrd Chips, Inc., supra n.20. The Supreme Court
held there that the venue provisions of 10 of the FAA (and by implication, those of 9; the venue
sections of the FAA are best analyzed together, 529 U.S. at 198), were permissive and not mandatory.
Apparently a contrary holding would create anomalous results: For while the New York Convention
"provide[s] a liberal choice of venue for actions to confirm" Convention awards, a reading of 9 and 10
as mandatory "would preclude any action under the FAA in courts of the United States, to confirm, modify
or vacate awards rendered in foreign arbitrations not covered by" the Convention. 529 U.S. at 202-203.
(It would be charitable to pass over in silence the words or vacate---this must be the familiar
phenomenon of the fatally superfluous word heedlessly thrown out in the full flow of rhetoric.) But cf. Int'l
Bechtel Co. v. Dept. of Civil Aviation of Dubai, 360 F. Supp. 2d 136 (D.D.C. 2005), which trivializes Cortez
Page 14 of 118

obviously the losing party has to have some means of resisting a flawed award: And this
can be provided, by analogy, by 10: That 10 requires an order vacating the award
can obviously not be taken literally here---for the U.S. is not the seat of the arbitration,
and no order of annulment can claim international recognition--- but nevertheless 10
provides a useful formula for the refusal of recognition and enforcement.
34

The preceding discussion does serve to remind us that in at least one respect the
distinction between the annulment of local awards, and the non-recognition of foreign
awards, may be critical: While (as I have just noted) the effect is pretty much the same
within the forum state itself, still, a decision to vacate a local award may have
pretensions to international legitimacy to the extent other jurisdictions can be expected
to defer to it. Thus a perfectly banal English award, otherwise clearly entitled to
recognition and enforcement in the United States under the Convention, might still be
denied recognition if it had been reviewed and vacated under English law for a mistake
of law. For an American (or Italian) court might conclude that the award, vacated at the
seat, no longer exists.
35
In the absence of an English annulment , however, the U.S.,

as a case dealing only with the venue appropriate for a suit otherwise properly brought within the FAA---
and which dismissed the plaintiffs claim for confirmation of a non-Convention award for failure to state a
claim upon which relief can be granted, since the contract between the parties did not expressly provide
that judgment could be entered on the award in a U.S. court as required by 9.
34
See Restatement, supra n.25 at 5-3 Reporters Notes note f (the Section 10 grounds for vacating
awards should be construed as grounds for denying enforcement, operating the same way as the
[Conventions] grounds for denying enforcement).
The argument to this point does not address the question of the effect to be given to a
Liechtenstein annulment---perhaps, most troublingly, one rendered on idiosyncratic grounds with no
domestic statutory counterpart. Section 10 of course would have no reason to address foreign orders of
vacatur, and so there is no domestic counterpart to art. V(1)(e) of the Convention, which makes a vacated
award presumptively unenforceable elsewhere. Perhaps a U.S. court could retreat to the prophylactic
position that, after annulment, the award simply does not exist so that there is no longer anything left to
enforce; cf. Termorio S.A., supra n.22 at 936 (calling this a principal precept of the New York
Convention). Surely the New York Convention does not incorporate a policy that extends to states, as a
particular benefit of ratification, the universal recognition of their local annulments. At the same time a
U.S. court would presumably assess a Liechtenstein decision of annulment in light of its usual
restrictions on the recognition of foreign judgments; cf. Intl Bechtel Co. Ltd. v. Department of Civil
Aviation of the Gov. of Dubai, 300 F.Supp.2d 112 (D.D.C. 2004)(Dubai courts annulment on the ground
that witness oaths were not properly administered registers at the hypertechnical fringe of what
Americans would call justice, but whether this is repugnant to fundamental notions of what is decent and
just . . . remains to be seen). See generally text accompanying nn. 157-166 infra.
35
See Termorio S.A., supra n.22 and n.32 supra.
Contractual agreement with respect to the arbitral seat may imply submission to the supervision
and oversight of the local courts. But it hardly follows from this that an aggrieved party must--- before
challenging an award in a state of secondary jurisdiction---first exhaust his remedies by seeking
annulment where the award was rendered: Even on the assumption that we would defer to an actual
local annulment [see text accompanying nn. 84-99 infra], or to an actual local judgment of confirmation,
[see text accompanying n.172 & n.172 infra], such a requirement could not be justified---as it would be
both
anachronistic, see Dallah Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Gov. of
Pakistan, [2009] C.L.C. 84 (CA) 19 (the effect of such a requirement would be to reinstate in
all but name the double exequatur rule which the Convention displaced), and
Page 15 of 118

as a state of secondary jurisdiction, might still find conventional Convention grounds to
refuse recognition---although any other state of secondary jurisdiction might well
conclude otherwise.

This is a distinction that is commonplace here (and just about everywhere else).
It is, by contrast, totally insignificant in states like France where art V(1)(e) of the
Convention forms no part of local law---with the result that local law requires courts to
pay no attention whatever to a foreign annulment. This is often said to rest on an
underlying philosophical premise, to the effect that an international arbitral award is
not attached to any national legal order at all
36
---that it simply has no nationality
37
(or
even, in a related point, that the very agreement to arbitrate has no need of any
national law in order to exist.).
38
Instead the international award forms a part of an
autonomous arbitral legal system, occupying a juridical universe of its own just like the
decision of some permanent adjudicative body formed by international agreement.
39
It is
a poignant irony that despite such rhetorical flourishes, French law does not go on to
draw the conclusion that an award rendered in France, too, is unattached to the
French legal order:
40
No, on the contrary: Such awards---however little contact the
parties, or the underlying transaction, or the governing law, may have with France, and
even in the absence of any actual attempt at enforcement in Francemay also be set
aside by the courts of the seat.
41

burdensome (cf. Convention art. VI; if an application for vacatur has been made to the courts of
the seat, a putative enforcement court may adjourn the decision and may also, on the application
of the party claiming enforcement of the award, order the other party to give suitable security).
Further on the practical drawbacks of such a view, see Gaillard, supra n.7 at 203-05; see also id. at 206.
(Apparently, and conveniently, one arrives at precisely the same result---relieving the losing party of any
obligation to first seek annulment at the seat--- whether one takes the antiquated Westphalian view of
international arbitration, or adheres instead to the authors faith in an independent arbitral legal order).
See also Paklito Investment Ltd. v. Klockner East Asia Ltd, [1993] 2 HKLR 39 (High Ct.)(held,
the defendants were prevented from presenting their case and this constituted a serious breach of due
process; there is nothing in the Convention which specifies that a defendant is obliged to apply to set
aside an award in the country where it was made as a condition of opposing enforcement elsewhere,
and so the defendants rights are not in any way cut down because of their failure to challenge the matter
in the courts of China).
36
Socit PT Putrabali Adyamulia v. Socit Rena Holding, 2007 Rev. Arb. 507, 514 (Cour de
Cassation, June 29, 2007)(an English award, annulled by an English court for having misapplied English
law, is nevertheless enforced in France). See generally text accompanying nn. 97ff. infra.
37
Id. at 509, 511 (report of President Jean-Pierre Ancel).
38
Cf. Comit populaire de la municipalit de Khoms v. Soc. Dalico Contractors, [1994] Rev. Crit. Droit Intl
Priv 663 (Cour de Cassation, Dec. 20, 1993)(the existence and validity of an arbitration agreement must
be tested only by looking at the parties mutual consent, any reference to any state law being
unnecessary).
39
Gaillard, supra n.7 at 60. 97.
40
I call this a poignant irony, but I am being uncharacteristically tolerant and indulgent---Professor
Mayer perceives instead a shocking asymmetry. Pierre Mayer, Linsertion de la sentence dans lordre
juridique franais, in Yves Derains (ed.), Droit et pratique de larbitrage international en France 81, 100
(1984).
41
CPC art. 1504; see Gaillard & Savage, supra n.31 at 903-04.
Page 16 of 118

c. In which, or under the law of which . . .

That the seat of the arbitration is the privileged starting point with respect to any
allocation of judicial authority has traditionally been a simple reflection of the power of
any sovereign over acts taking place within its territory.
42
An alternative and perhaps
more robust explanation would be somewhat more contractualist: It would give priority

That French legislation contemplates judicial review of awards rendered in France, may be
explained in part by a desire to demonstrate that such awards---however trivial or indeed inexistent their
connections with France may be--have undergone some local vetting process, tending to insure arbitral
authority and procedural integrity: The reassurance this supposedly provides to the international
community is in turn likely to enhance the worldwide currency of French awards. See William W. Park,
Why Courts Review Arbitral Awards, in William W. Park, Arbitration of International Business Dispute s:
Studies in Law and Practice 147, 151 (2006). But where as in the celebrated Gtaverken case, neither
party is French, contractual performance is to take place outside of France, and there is no express
submission to French procedural law, it is rather hard to discern the national interest in this---other than,
of course, the guild interest of local arbitrati, attorneys and arbitrators. That this is in fact the driving
engine behind most of French jurisprudence is rarely acknowledged, and only by the most self-aware.
There is something else, however: The exercise of judicial review in France carries with it at the
same time the general understanding that no other state (with the exception perhaps of a handful similarly
inclined) is likely to undertake to second-guess any actual French decree of annulment. The power of
French courts to annul French awards may perhaps tend to insure transnational coordination, and a
rational allocation of jurisdictional power, cf. Philippe Fouchard, Larbitrage international en France
aprs le dcret du 12 mai 1981, in Philippe Fouchard, Ecrits 301, 329 (2007)---but after all, it can do so
only if other states can be expected ultimately to defer to a French order of vacatur. Cf. Philippe
Fouchard, La porte internationale de lannulation de la sentence arbitrale dans son pays dorigine, in
id. at 441, 456 (Why set aside an award if there has been no attempt to enforce it locally? And why set it
aside at all if the vacatur is not intended to have extraterritorial effect?). Thus it is hard to understand why
the legislature should have provided for a setting-aside process (as opposed to merely providing for the
denial of recognition and enforcement) if the purpose was not to permit [or encourage?] foreign states to
attribute the usual effect to a French annulment. Cf. Mayer, supra n.40 at 100.
An imminent revision of French legislation will now permit opting out of annulment proceedings
in France, see the proposed art. 1521 (by special agreement, the parties may at any time expressly
waive the right to seek annulment, although they may of course always resist actual enforcement of an
award on the usual grounds). Unlike the Swiss model, this possibility is offered to all contracting parties
and not merely to foreigners; just as in Switzerland, however, it is not expected that the option will be
widely exploited. See also n.21 supra.
42
See, e.g., Craig, Uses and Abuses of Appeal from Awards, supra n.22 at 182-83, 191-92 (within its
frontiers; while arbitrations in the home jurisdiction are much more likely to involve domestic concerns,
a large number of international arbitrations have nothing to do with the home jurisdiction, except that that
they use conference rooms in the home jurisdictions Hilton hotel, and quite often states have more
interests at stake in the meeting of the local jockey club than in the proceedings of an international arbitral
tribunal).See also F.A. Mann, The UNCITRAL Model Law---Lex Facit Arbitrum, 2 Arb. Intl 241, 246
(1986)(Is not every activity occurring on the territory of a State necessarily subject to its jurisdiction?);
UK Comments to UNCITRAL Model Law art. 1, A/CN.9/263/ADD.2 (21 May 1985), in Holtzmann &
Neuhaus, supra n.14 at 112 (It would be unacceptable to have the jurisdiction of the local court
completely ousted in respect of arbitrations taking place within its territory). Cf. Hannah L. Buxbaum,
Territory, Territoriality, and the Resolution of Jurisdictional Conflict, 57 Amer. J. Comp. L. 631, 636
(2009)(historically, a claim of territorial jurisdiction was irrefutable and unproblematic in that it rested on
conduct occurring within the regulating state and, by definition, could not overlap with a competing claim
by another country).
Page 17 of 118

to the parties exercise of autonomy in the very act of selecting the place of arbitration---
and to the intuition that, by extension, they have presumptively chosen to subject
themselves both to a certain body of arbitration law, and to the supervisory jurisdiction
of the courts charged with applying that law.
43

It may indeed once have been taken largely for granted that the state of the
seat would necessarily coincide with the state where the arbitrators are physically
present---where they physically convene hearings---and where they physically sign
awards; any decoupling would likely be seen as a freak accident and so the cause of
much bewilderment.
44
But any such assumption has largely been undermined by
technological advances, by the prevalence of multifaceted transactions spanning
multiple frontiers, and by a greater sophistication in the techniques of complex case
management. So it is now a familiar proposition that the arbitral seat may be a pure
fiction---in the simple sense that it is but a notional legal construct, one that may not
accurately describe the world as it is.
45
For arbitrators may be forgiven if they should

43
See C. v. D., supra n. 20 at 16-17(by choosing London as the seat of the arbitration, the parties
must be taken to have agreed that the proceedings on the award should be only those permitted by
English law; a choice of seat for the arbitration must be a choice of forum for remedies seeking to attack
the award; any claim for a remedy going to the existence or scope of the arbitrators jurisdiction or as to
the validity of [an award] is agreed to be made only in the courts of the place designated as the seat of
the arbitration); Shashoua v. Sharma, [2009] 2 Lloyds L. Rep. 376 (QBD (Comm.)) 23 (not only is
there agreement to the curial law of the seat, but also to the courts of the seat having supervisory
jurisdiction over the arbitration, so that, by agreeing to the seat, the parties agree that any challenge to an
interim or final award is to be made only in the courts of the place designated as the seat of the
arbitration).
44
See, e.g., the now-obsolete case of Hiscox v. Outhwaite, supra n.27 (arbitration clause called for
arbitration in London, but the arbitrator, an English barrister, signed the final award when he was in Paris;
I find it anomalous and regrettable that the fortuitous circumstance of signature in Paris should stamp
what was clearly intended to be an award subject to all the procedural regulations of an English
arbitration with the character of a Convention award [on the ground that it was made in France, but] I
find the conclusion that it did irresistible)((Lord Oliver of Aylmerton). It is now more generally understood
that the place of the hearings and of the signature of the award may vary subject only to the whims or the
clumsiness of the arbitrators, but that this does not effect any change in the arbitral situs itself. Socit
Procds de prfabrication pour le bton v. Libye, [1998] Rev. de lArb. 399 (Cour dAppel de Paris, Oct.
28, 1997)(contract designated Geneva as the seat of the arbitration; held, award had not been made in
France despite the fact that the tribunal had held all hearings in Paris and the chairman had signed the
award there).
45
Gabrielle Kaufmann-Kohler, Le lieu de larbitrage laune de la mondialisation, [1998] Rev. de lArb.
517, 522. Certainly not, however, in the sense that these words imply any lack of legal consequence, cf.
Noah Rubins, The Arbitral Seat is No Fiction, 16(1) Mealeys Int. Arb. Rep. 12 (Jan. 2001)(the arbitral
seat is anything but fictitious, since the choice of the seat is perhaps the most essential negotiating point
of any international arbitration agreement).
This is precisely what a legal fiction is: The seat is where the arbitration is conclusively
deemed to take place, and the location of this place is the first question we (Continentals and Anglo-
Saxons alike) ask in evaluating any arbitral agreement or award. The parties are thus enabled, and
expected, to identify a single governing body of law, and a single court system, which will constitute the
legal framework for their arbitration---all without impairing in any way the convenience and efficiency of
the process. Cf. Philippe Fouchard, Suggestions pour accrotre lefficacit internationale des sentences
arbitrales, in Fouchard, supra n. 41 at 456, 466 (the law of the state on whose territory the arbitration
Page 18 of 118

(understandably enough) prefer to dine in Paris rather than in Addis Ababa;
46
the Court
of Arbitration for Sport may understandably wish to develop a stable and unitary body of
procedural law to govern its jurisprudence, even though the need for rapid on-site
dispute resolution may require the evaluation of testimony in Sydney or Beijing.
47

takes placeor at least where it is deemed to take place [cens se drouler] gives the proceedings a
legal framework). The familiar language of the physical world (place, rendered, territory) is evoked,
but this is a space where neither parties nor arbitrators may ever have stood or walked around; it is
constructive.
46
See, e.g., Salini Costruttori S.p.a. v. Federal Democratic Republic of Ethiopia, ICC Arbitration No.
10623/AER/ACS, in Emannuel Gaillard (ed)., Anti-Suit Injunctions in International Arbitration 227 (2005).
In the view of the respondent Government, the contractual choice of Ethiopia as the place of arbitration
at the very least created a presumption that the hearings would physically take place in Addis Ababa---
which would also allow the tribunal to make a visit to the site of the project. In a preliminary ruling,
however the arbitrators---professors from Italy, France, and Ireland---decided instead, based on
considerations of convenience and costliness, to hold at least the first meeting in Paris.
47
See generally Gabrielle Kaufmann-Kohler, Arbitration at the Olympics: Issues of Fast-Track Dispute
Resolution and Sports Law 47-49 (2001)(the seat of every CAS arbitration is therefore deemed to be
Lausanne; while on-site arbitration, at the Olympic games or otherwise, makes the process as convenient
and expeditious as possible for the participants, a uniform regime of arbitral procedural law ensures an
equal treatment in matters of dispute resolution [which is] in line with the equal standards that govern
sports competition).
See Raguz v. Sullivan, [2000] NSWCA 240 (New South Wales Ct. App.). Here the Australian
court refused leave to appeal a CAS award, on the ground that having selected Switzerland as the seat
of their arbitration, the parties had necessarily entered into an exclusion agreement under 40 of the
New South Wales Commercial Arbitration Act 1984---thus barring any right of appeal to Australian courts
that they would otherwise have. I have always been somewhat puzzled as to why the Raguz court did
not take a simpler and more direct route to the same result: Invoking the UNCITRAL Model Law---which
has the force of law in Australia under the International Arbitration Act 1974---would lead irresistibly to the
conclusion that submission to the CAS constituted an agreement for an international arbitration, with the
place of arbitration to be outside of Australia; it should follow that an Australian court would lack any
jurisdiction to set the award aside. See text accompanying nn. 13-14 supra. Sharing my bemusement
are Jean-Franois Poudret & Sbastien Besson, Droit compar de larbitrage international 104-05 (2002).
But doubtless the proper explanation lies in the current assumption of Australian jurisprudence---an
assumption quite curious and entirely indefensible---that by choosing a body of institutional procedural
rules (like the rules of the CAS), the parties had necessarily excluded the applicability of the Model Law.
(Under 21 of the Act, the Model Law does not apply if the parties have agreed that disputes are to be
settled otherwise than in accordance with the Model Law.). See American Diagnostica Inc. v. Gradipore
Ltd., 1998 NSW Lexis 1051 at *26 (New South Wales Sup. Ct.)(contract provided for arbitration pursuant
to the rules of the Australian American Arbitration Agreement [sic], and the parties later agreed on the
UNCITRAL Arbitration Rules; there was clearly agreement that disputes falling within the arbitration
clause were to be settled otherwise than in accordance with the Model Law, and so the New South
Wales Commercial Arbitration Act governed); Australian Granites Ltd. v. Eisenwerk Hensel Bayreuth
Dipl.-Ing Burkhardt GmbH, [2001] 1 QdR. 461, 465 (Queensland Ct. App.)(It would have made little
sense to agree to subject disputes to arbitration under both the Model Law and the ICC Rules, since the
two are irreconcilable in a number of respects).
By contrast the courts of Switzerland regularly undertake to review CAS awards on motions
seeking annulment; see, e.g., Decision of Feb. 9, 2009 (Trib. Fed. 4A_400/2008)(award set aside under
art. 190(2)(d) of the Swiss Private International Law Act on the ground that a partys right to be heard in
an adversary procedure has not been observed).
Page 19 of 118

Now perhaps one shouldnt erect too elaborate a structure on examples like
these which, however seductive, are exceptional: Doubtless the parties natural ex ante
assumption is that the designated seat is precisely where the actual proceedings will
begin and unfold---and this is an expectation that is likely as a general matter to be
respected.
48
And perhaps, some modicum of actual physical connection with the state
of the seat may in any event be thought well-advised, if the award is to have its
intended legal effect

.
49
But there is nevertheless no general legal barrier to conducting

48
The UNCITRAL Notes on Organizing Arbitral Proceedings suggest a number of factual and legal
factors [that should] influence the choice of the place of arbitration and which any tribunal or
administering institution should take into account in making the decision. Among the more prominent
factors are, indiscriminately, both those that address the seat as a legal construct---e.g., the suitability
of [its] law on arbitral procedure, and the existence of international conventions dealing with the
enforcement of awards to which the state is a party---and those that suggest the inevitability of a physical
presence---e.g., the convenience of the parties and the arbitrators, including the travel distances, and
the availability and cost of support services needed.
http://www.uncitral.org/pdf/english/texts/arbitration/arb-notes/arb-notes-e.pdf, List of Matters for Possible
Consideration in Organizing Arbitral Proceedings, Note 3 (1996). This suggests a working presumption
that after balancing the various considerations, whichever place is chosen is likely to serve both as the
seat of the arbitration and the physical location of the hearings. See also Tatsuya Nakamura, The Place
of Arbitration in International Arbitration---Its Fictitious Nature and Lex Arbitri, 25 (10) Mealeys Int. Arb.
Rep. 11 (2000)(it seems natural to assume that if the parties agree that the place of arbitration is
London, in principle they intended to choose it not only for legal reasons but also for other reasons
such as neutrality or geographical convenience).
With respect to American arbitrations, the overwhelming importance of federal law means that
(as long as it is within the United States) the concept of the seat as a legal construct---distinct from the
physical conduct of the proceedings---will have virtually no purchase. Indeed, except in the rare case
where state law is thought (usually mistakenly) to be relevant, the former is largely an alien concept; the
situs is the nation at large. See generally Alan Scott Rau, Does State Arbitration Law Matter at All?, in
ADR & the Law 199, 207 (AAA 15
th
ed. 1999)(the notion that state arbitration law, which is at odds with
the dictates of the FAA, can be reintroduced through the device of a choice-of-law clause has been
steadily eroding, and is being increasingly ignored). As a consequence the place of arbitration will
usually be understood to refer merely to the physical location where the arbitration is to be set in motion.
(How else to explain the occasional kerfuffle arising from the supposed unconscionability of an
inconvenient forum clause? See Alan Scott Rau et al., Processes of Dispute Resolution 703-04 (4
th
ed.
2006)). See, e.g., FAA 4, which grants a federal court the rather unusual power to direct the parties to
arbitrate in accordance with the terms of [their] agreement, but also specifies that should it exercise this
power, the hearing and proceedings, under such agreement, shall be within the district in which the
petition for an order directing such arbitration is filed. All of this of course is routinely superseded by
institutional rules permitting arbitrators to hold hearings elsewhere; see, e.g., Spring Hope Rockwool v.
Industrial Clean Air Inc., 504 F.Supp.1385 (D.C.N.C. 1981)(forum non conveniens does not justify
overriding a contractual provision with respect to the seat, but any question of where the arbitrators will
hold their hearings is to be decided by the American Arbitration Association in accordance with its rules).
49
See, e.g., Titan Corp. v. Alcatel CIT, S.A., 20 (7) Mealeys Int. Arb. Rep. at A-1 (Svea Court of Appeal,
28 Feb. 2005). Here the arbitration clause provided that the place of arbitration was to be Stockholm; the
parties were French and American, and the dispute concerned an agreement regarding a
telecommunications system to be installed in Benin. The English arbitrator held oral hearings in London
and Paris, and performed the remainder of his work in England. The Swedish court held that in these
circumstances it had no jurisdiction over a challenge to the award, as there was no Swedish judicial
interest in the case---which normally required that the dispute or the parties to the dispute have some,
albeit minor, connection to Sweden. The award, then, could not be deemed to have been rendered in
Sweden. The courts observation that there was no reason to believe that [the challenge to the award]
Page 20 of 118

arbitration outside the named seat---and to conducting it, not only anywhere, but
indeed nowhere---on the high seas or in cyberspace.
50
By the same token it must follow
that should the tribunal think it appropriate to hold hearings, receive testimony, or
deliberate in any other state, their decision to do so cannot alter the legal seat of the
arbitration---cannot, that is, confer jurisdiction to vacate on the courts of a state other
than the one the parties had selected for that purpose.
51

would not be dealt with by e.g. a French court is obviously uninformed. A further, and a nice, point is that
if the award had been challenged on the ground that the arbitral procedure was not in accordance with
the agreement of the parties---because they had expected the hearing to be conducted within Sweden---
the same jurisdictional defect would presumably be present---even though this absence of any physical
link to Sweden would be precisely what the moving party was complaining about! Cf. Swedish Arbitration
Act, 34(2)(vacatur if the arbitrators have exceeded their mandate), 34(6)(vacatur if, without fault of
the party, there otherwise occurred an irregularity in the course of the proceedings which probably
influenced the outcome of the case). See Sigvard Jarvin & Carroll S. Dorgan, Are Foreign Parties Still
Welcome in Stockholm?, 20 (7) Mealeys Intl Arb. Rep. 42 (July 2005).
See also Poudret & Besson, supra n.47 at 105 (it might be prudent to conduct certain minimal
activities in the state of the seat in order to cut short any discussions arising out of the supposedly
fictitious nature of the chosen place); Marc Blessing, The New International Arbitration Law in
Switzerland: A Significant Step towards Liberalism, 5 J. Intl Arb. 9, 22 (1988)(it is a practical
recommendation to avoid an overly strong connection being established with a place other than the
formal seat of the arbitral tribunal, relying, for illustrative purposes, on attributes of German law which are
probably no longer in play after Germanys adoption of the Model Law).
50
Obviously it does not matter much for our purposes whether we conceive of cyberspace as an actual
location, albeit one much like outer space or the high seas---a new territory, virgin, without frontiers and
with virtually infinite dimensions, a little like the Far West of westerns---or instead as nothing but a
metaphor. See the admirable work by Thomas Schultz, Rguler le commerce lectronique par la
resolution des litiges on ligne: une approche critique 23-25 (2005); see also Kaufmann-Kohler, supra
n.45 at 529-34.
51
In a New York arbitration, the tribunal issues a subpoena to a non-party in Houston, commanding him
to appear at a deposition in Houston. If the non-party is recalcitrant, the subpoena may be a dead letter
since there is no court to enforce it. One possible solution may be to ask the arbitrators to move the
location of the hearing to the place of production and deposition; this may cleverly obviate the problem,
since 7 of the FAA permits the federal court for the district in which such arbitrators, or a majority of
them, are sitting, to compel production or attendance. For the details, see Rau, Evidence and Discovery
in American Arbitration, supra n.14 at 52-59.
There are of course an infinite number of reasons why a tribunal may deem a change of physical
venue warranted; there is, for example, the celebrated Himpurna arbitration, in which a state-controlled
entity had obtained an injunction in the Indonesian courts against continuation of the arbitral proceedings,
and the tribunal felt it necessary to conduct witness hearings in the Hague rather than in Jakarta. See Jan
Paulsson, Denial of Justice in International Law 149-52 (2005)(without changing the legal place of
arbitration). For one colorful account of the difficulties, see H. Priyatna Abdurrasyid, They Said I Was
Going To Be Kidnapped, 18(6) Mealeys Intl Arb. Rep., June 2003 at p. 29.
Such peripatetic tribunals, responsive to the interests of efficient case management, will not in
any way affect the identity of the arbitral seat or override the legal framework established by the parties.
See Dubai Islamic Bank PJSC, supra n.20 (an arbitration must have a seat when the arbitration starts,
and once an arbitration starts and it has a seat then I cannot see how it can be changed; the location of
the board meeting in London was adventitious). And given a general presumption to that effect, the
mere failure of the parties to object to the conduct of hearings elsewhere should be probative of precisely
nothing. But cf. Mann, supra n.42 at 247-48 (a Stockholm arbitrator decides to hold the arbitration in
Zurich; either party may object to a change to Switzerland, but in the absence of objection the original
seat would become varied to a Swiss seat)).
Page 21 of 118

However explained or rationalized, the choice of a seat as the notional legal
home of an arbitration is critical precisely because this will presumptively determine
the body of law that will govern the arbitral procedure.
52
And conversely, a contractual
choice of a governing body of procedural law will presumptively determine where the
arbitration will be located and thus where the ultimate award will have been

Of course, while it is true that the tribunals conduct may not deprive the parties of the contractual
choice of a lex arbitri, it is equally true that merely invoking the law of a foreign seat cannot serve to
evade whatever mandatory rules at the physical place of arbitration govern conduct taking place there---
relating, perhaps, to the practice of law or to the taking of testimony---however it is envisaged that such
rules might be enforced. Cf. Braes of Doune Wind Farm (Scotland) Ltd. v. Alfred McAlpine Business
Services Ltd., [2008] EWHC 426 (TCC)) 17(f)(where the curial law was to be the law of England, and
Glasgow to be merely where the parties agreed that the hearings should take place, then the Scottish
courts would have no real control or interest in the arbitral proceedings other than in a criminal context).
52
See Adam Samuel, Jurisdictional Problems in International Commercial Arbitration 64 (1989)(it is
commonly accepted that a choice of the place of arbitration carries with it an implication that the law of
that location will govern the proceedings; a party selection of the seat . . . is often made on the actual
assumption that the lex loci arbitri will govern the proceedings); Klaus Peter Berger, Re-examining the
Arbitration Agreement: Applicable Law---Consensus or Confusion?, in International Arbitration 2006: Back
to Basics? 301, 315 (ICCA Congress ser. No. 13, 2007)(the choice of the seat by the parties . . .
functions as an indirect choice of law not only for the law applicable to the arbitration procedure but also
for the law applicable to the substantive validity of the arbitration agreement).
This is a point made with monotonous regularity in the English decisions; see, e.g., Halpern v.
Halpern, [2006] 2 Lloyds Rep. 83 (QBD (Comm))( in the absence of a clear pointer to the contrary, there
is a strong presumption that the place where the arbitration takes place [here, Zurich] is to constitute its
seat; it then followed inexorably that the law applicable to the arbitration itself, sometimes called the
curial law or the lex arbitri,---governing how the proceedings in the arbitration are to be conducted by the
arbitrators and the extent to which the courts will supervise the conduct of the arbitration---would be that
of Switzerland). See also Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd.. [1993] AC 334,
457-58 (H.L.)(contract provided that the seat shall be Brussels, and so the national law which the
parties have expressly or by implication selected to govern the relationship between themselves and the
arbitrator in the conduct of the arbitration. . . must I believe be the law of Belgium; the inference that the
parties when contracting to arbitrate in a particular place consented to having the arbitral process
governed by the law of that place is irresistible)(Lord Mustill).
It is commonly said on the Continent that unlike a state judge, the arbitrator "has no forum state
[for]---or perhaps, in a more grandiloquent fashion, that "he has a forum but, as in the novels of
Balzac, it's the universe." See, e.g., Thomas Clay, Le siege de arbitrage international entre ordem et
progresso, Les Cahiers de larbitrage, [2008] 2 Gaz. Pal. 20, 22. This is of course but a figure of
speech---serving to remind us that just as the arbitrator (unlike the judge) is not the emanation of the
sovereignty of a state, so he has no particular duty to anyone to formulate or apply or uphold its
substantive law. But really, one must make some effort not to take rhetorical flourishes too literally: For
there is a danger of concluding that in the absence of a for, there is necessarily (again, unlike the case of
a state judge) no lex fori, no governing procedural law: Instead, rather than an applicable curial law, there
exists a "range of possible tailor-made procedures, and combinations of different procedural systems,
with which the parties can do what they please." Id. I sense a rather fundamental misunderstanding here:
For it seems evident that party autonomy, and institutional rules, can only determine an arbitrations
procedural regime if and to the extent that the applicable arbitration legislation of the forum permits.
Recall the discussion of the Australian jurisprudence at n.47 supra. There as here: it is not that the ICC
Rules supplant the Model Law, but on the contrary, it is only the provisions of the Model Law itself that
may permit these Rules to be effective.
Page 22 of 118

rendered.
53
Both serve precisely the same function---both, at least until displaced by
agreement to the contrary, are a function of party autonomy
54
---both respond to the
overarching principle that the process is to be the parties dream.
55

So worrying
56
the choice between two views
57
----trying to decide whether we
should in fact attribute greater importance to the seat, or to the law chosen by the

53
See Zenol, Inc. v. Carblox, Ltd., 334 F.Supp. 866 (W.D. Pa. 1971), affd per curiam, 474 F.2d 1338 (3
rd

Cir. 1973)(arbitration clause provided that it shall be deemed to be a submission to arbitration within the
Arbitration Act 1950, understood to be a reference to the English statute; the court stayed the action
pending arbitration under the British [sic] Act of 1950; where the proceedings should actually be held is
a matter for the British Courts, but if it is required to arbitrate in England, plaintiff cannot complain,
having agreed to such a result by incorporating the British Arbitration Act in the contract); Naviera
Amazonica Peruana S.A. v. Compania Internacional de Seguros del Peru, [1988] 1 Lloyds L. Rep. 116,
119 (C.A.)(in the absence of some express and clear provision to the contrary, it must follow that an
agreement that the curial or procedural law of an arbitration is to be the law of X has the consequence
that X is also to be the seat of the arbitration and that the Courts which are competent to control or
assist the arbitration are the Courts exercising jurisdiction at X).
See also Tonicstar Ltd., supra n.17. Here, since the parties had contracted in England, in the
Lloyds market on a Lloyds slip policy, it seemed clear that the proper law of the whole contract is
English law. It also seemed to follow that the applicable law of the arbitration agreement would be no
different from the applicable law of the reinsurance contract in which it has been incorporated. The
inevitable conclusion was that England was the natural forum for the dispute. The court therefore
granted an injunction barring the defendant from seeking to compel arbitration in New York: For if the
defendant were allowed to pursue its petition, the necessary and undesirable result under the terms of the
FAA would be, in the absence of an express choice of seat, [that] the seat [would] be in the Southern
District of New York.
54
E.g., Decision of May 10, 1984, Bundesgerichtshof (Germany), 10 Y.B. COM. ARB. 427, 429
(1985)(law governing the arbitration is "determined by the will of the parties," and the choice to be
governed by the arbitration law of New York "could be inferred from the arbitration clause referring to
arbitration in New York under the Arbitration Rules of the AAA").
Redfern and Hunter write that:
To say that the parties [by choosing a place of arbitration in a particular country] have chosen
that particular law to govern the arbitration is rather like saying that an English woman who takes
her car to France has chosen French traffic law. . . [I]t would be an odd use of language to say
that this national motorist has opted for French traffic law.
Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration 87 (4
th
ed. 2004).
This is engaging but essentially meaningless. One carefully weighs all the various
considerations, and then one decides. In fact, however charming the Devon countryside, my choice of
Provence as a place to vacation instead will be largely determined by my unwillingness to drive on the
left. Should I find myself paralyzed in a London roundabout, well, you asked for it would be an
appropriate reproach. And as is often true of the seat, neither Devon nor Provence may have the
slightest connection with my business or professional life---but it is where I know from the outset that I will
be behind the wheel.
55
Cf. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 310 (1994):
Within broad limits * * * private parties who submit an existing dispute to arbitration may write
their own ticket about the terms of submission, if they can agree to a ticket. There is an old story
about the girl who, dreaming, found herself threatened by an ominously male character, and said
tremulously, "Wh-what are you going to do now?, only to receive the answer, "How do I know,
lady? This is your dream." The arbitration of an existing dispute is the parties' dream, and they
can make it what they want it to be.
Page 23 of 118

parties---inevitably appears to be the product of a particularly abstract, arid, and
conceptual mind set.
58
Any attempt to disassociate the two---any attempt to posit that
the parties may have chosen to arbitrate in one jurisdiction but to submit to the
arbitration law of another---is quite unrealistic---doubtless a theoretical possibility,
59

but a hypothse dcole.
60
We do indeed come across arbitration clauses that seem to
have such an effect, although I suspect they are far more likely to be the result of
inadvertence or ineptitude
61
than of deliberate choice. At the very least such

56
To seize by the throat with the teeth and tear or lacerate; to harass by rough or severe treatment; in a
lighter sense, to plague or pester with reiterated demands, requests, or the like. (OED).
57
Cf. Mann, supra n.42 at 245.
58
See U.N. Conference on Int'l Commercial Arbitration, Summary Record of 4th Meeting, May 22, 1958,
reprinted in INTERNATIONAL COMMERCIAL ARBITRATION: NEW YORK CONVENTION III.C.13,16-17
(Giorgio Gaja ed.) (remarks of German delegate; the nature, and hence the nationality, of an arbitral
award should be derived from the rules of procedure under which it had been made, which in turn
depended on the will of the parties); Summary Record of 6
th
Meeting, May 23, 1958, id. at C.32, 40
(remarks of German delegate; where an arbitration tribunal sat in London but followed the German
procedure,, "German law regarded that award as German; by contrast applying the "territorial" criterion
"would have the effect of seriously infringing the autonomy of the will of the parties, which should be
respected"); cf. Jean-Denis Bredin, The New York Convention of June 10th 1958 for the Recognition and
Enforcement of Foreign Arbitral Awards, 87 J. DROIT INT'L (CLUNET) 1003, 1011 (1960)( "while the
territorial criterion has attracted some authors ... it is nowadays rejected by the majority of doctrinal writers
who rely on the law of autonomy"; the place where the award was made is at present a mere factor
amongst others to assist in determining the law by which the parties intended to be governed").
59
See 1 Born, supra n.10 at 1244 (properly defined, the arbitration legislation of the arbitral seat is a
different and broader concept, with a necessarily wider scope, than the procedural law of the arbitration;
therefore it is often possible for parties to agree for a foreign procedural law to govern, or foreign court to
have competence over, some of the subjects ordinarily governed by the law of the arbitral seat).
60
Just as a well-known cognitive hiccup causes us in our purchasing decisions to attribute exceptional
importance to the interval between $1 and free ---far greater importance than, say, to the interval
between $3 and $4---so here, whole structures of legal analysis have been erected in the vanishing
space between virtually unthinkable and when Hell freezes over. For the former case, see Dan Ariely,
Predictably Irrational: The Hidden Forces That Shape Our Decisions 49 (2008).
61
See, e.g., Decision of July 5, 1955 (Cour d'appel de Paris), [1956] Rev. Crit. Droit Intl Priv 79. Here a
contract between two French parties provided for arbitration in Paris to be held pursuant to English
jurisdiction exclusively [suivant la juridiction anglaise seule admise]. The court concluded, sensibly
enough, that the parties had wanted (a) a French arbitration, but had also wanted (b) to waive any right
of appeal that they would otherwise have under French law---appeal being possible under English law
only if the arbitrators error was manifest, and a waiver of appeal being something which is both
frequent in France and which in no way violates French public policy. Cf. Ernst Mezger, Comment, id.
at 81 (such a clause is an example of "reality surpassing fiction").
See also Pepsico Inc. v. Oficina Central de Asesoria y Ayuda Tecnica, C.A., 945 F. Supp. 69
(S.D.N.Y. 1996). A contract provided that this Agreement shall be governed by the laws of the Republic
of Venezuela; arbitration under ICC rules, including the rendering of an award, shall take place in New
York, and the arbitrators shall apply the substantive law of the State of New York. The respondent
argued that the arbitration clause was inoperative because of its obscurity and ambiguity, but the court
held that the determination of this question was plainly a matter of Venezuelan law: For the agreement
"clearly contemplates that matters subject to determination by a court, such as threshold disputes over
arbitrability, will be governed by Venezuelan law, while matters to be determined by arbitrators will be
governed by New York law. 945 F. Supp. at 71 fn. 3. So the court denied for the moment a motion to
Page 24 of 118

agreements are both extremely rare---exceptional, almost unknown, a purely academic
invention, almost never used in practice, a possibility more theoretical than real, and a
once-in-a-blue moon set of circumstances
62
--- and extremely foolish.
63
Doubling the
number of jurisdictions with a plausible interest in seeing their law applied, and in
entertaining actions to supervise proceedings or vacate awards, could only be
calculated to create confusionand this alone would justify a virtually irrebutable
presumption that it is not what the parties have done.

Now should that presumption somehow be overcome---if we are indeed faced
with an incorrigible, or insistently playful, draftsman---we do have to wonder about the
consequences: Recall the New York Convention, which allows states of secondary
jurisdiction to refuse enforcement of awards that have been set aside or suspended by
a competent authority of the country in which, or under the law of which, that award was
made.
64
Does this really suggest that if separate states can be identified---if the parties
have designated both a seat and an applicable procedural law--- then both are
simultaneously the competent authorities envisaged by the Convention? Are both,
then, states of primary jurisdiction, with the power to appoint arbitrators and set aside
awards? (It is in any event of course the rare jurisdiction these days that will venture to
annul an award not actually rendered on its territory, but merely made subject to its
law.).
65
That both such states may set aside an award has in fact been seriously

compel arbitration, so that a Venezuelan court could first be afforded the initial opportunity to determine
this threshold question of Venezuelan law before a non-Venezuelan court is called upon to do so.
Now what is this all about? Perhaps the Pepsico court may have been trying to invoke the rather
arcane distinction---
not between the law of the seat and the contractually chosen curial law---but instead,
between the two of these, on the one hand, and the law governing the arbitration agreement
itself (here, the law of Venezuela) on the other.
See generally the text accompanying nn. 297-316 infra. This may be making the best of a bad job---
although the problems with Pepsico are self-evident: The boundary between what is subject to
determination by a court and what is a matter to be determined by arbitrators is a fraught and shifting
and controverted frontier---and of course, at any given moment New York and Venezuela are likely to
have quite different ideas as to just what a threshold dispute over arbitrability amounts to.
62
Karaha Bodas Co., L.L.C, supra n.20 at 291 (citations omitted).
63
Since their physical convenience, or the possibility of travel for hedonic purposes, need not be
impaired---and can in any event be separately provided for--- it is not easy to understand why parties
might wish to complicate the conduct of an arbitration in this way (unless, as is possible, they do not
understand what they are doing). Redfern & Hunter, supra n.54 at 87.
64
Art. V(1)(e).
65
See text accompanying nn. 13-14 supra; see also Poudret & Besson, supra n.47 at 89 (even if the
parties have agreed to apply the arbitration law of the judge to whom the request is made); Gabrielle
Kaufmann-Kohler, Identifying and Applying the Law Governing the Arbitration Procedure---The Role of
the Law of the Place of Arbitration, in Improving the Efficiency of Arbitration Agreements and Awards: 40
Years of Application of the New York Convention 336, 338-43 (ICCA Congress series no. 9, 1999). So,
for example, awards rendered outside Germany under German procedural law are no longer subject to
setting aside proceedings in Germany, id. at 341.
Page 25 of 118

asserted.
66
Still, this may strike us not only as heresy,
67
but as an invitation to
confusion.
68
Such a result is not in any way mandated by the text of the Convention
69
---

Counter examples are hard to find; For one, the provisions of Egypts Law Concerning Arbitration
in Civil and Commercial Matters, including its provisions on judicial review, apply to all arbitrations
conducted in Egypt or when the parties to an international commercial arbitration conducted abroad
agree to subject it to the provisions of this Law. (Arts. 1, 9(2)). Apparently India too still cannot be
counted on to fall in line with international standards, see Raghav Sharma, Bhatia International v. Bulk
Trading S.A.: Ambushing International Commercial Arbitration Outside India?, 26(3) J. Intl. Arb. 357, 363-
69 (2009)(appointment of arbitrators and vacatur of foreign awards); see also Venture Global Engineering
v. Satyam Computer Services Ltd., [2008] INSC 40 (Ind. Sup. Ct. 2008) at 13, 19 (London arbitration,
but under the shareholders agreement, necessarily enforcement has to be in India; the judgment-
debtor cannot be deprived of his right under [ 34 of the Arbitration and Conciliation Act, 1996] to invoke
the public policy of India, to set aside the award; and that section, identical to art. 34 of the Model Law
and dealing with the annulment of awards, is equally applicable to international commercial arbitrations
which take place out of India).
With respect to the United States, see n.21 supra. Most everyone accepts that by law, art.
V(1)(e) intended to reference the complex thicket of the procedural law of arbitration obtaining in the
numerous and diverse jurisdictions of nations in attendance at the time the Convention was being
debated---and certainly not the substantive law governing the contract; see International Standard
Electric Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Commercial, 745 F.Supp. 172 (S.D.N.Y.
1990)(the whole point of arbitration is that the merits of the dispute will not be reviewed in the courts,
wherever they be located). This is overdetermined, reflecting the likely abstraction of the seat (for which
this is a surrogate) from the realities of the underlying transaction, as well as the venerable notion of the
separability of the agreement to arbitrate. But even an award rendered abroad under the FAA---if one
can shut ones eyes and imagine any such animal---should be beyond the jurisdiction of an American
court to vacate.
66
Restatement, supra n.25 at 1-1, cmt. f & Reporters Notes note f (in the exceptional circumstance in
which the parties expressly choose an arbitration law other than that of the seat, then an adjudicative
body within the system whose arbitration law was designated by the parties is authorized . . . concurrently
with the authorities at the seat, to set aside or suspend an award).
See also V.S. Deshpande, Article V.1(e) of the 1958 New York Convention: A Plea for
Harmonious and Purposive Interpretation, 8 J. Intl Arb. (Sept. 1991) at pp. 77, 86 (there are courts of
two countries which are recognized as being competent to set aside an award; they will independently
exercise the same [jurisdiction] and may come to different conclusions). Going even further down this
perilous Indian path, there is also Ved P. Nanda & David Pansius, 2 Litigation of International Disputes in
U.S. Courts 19:2 2009): There are potentially two courts with primary jurisdiction: the courts of the
arbitration state and the courts of the applicable arbitration law state; it will be a rare instance where
there are two primary jurisdiction states unless a court should interpret the Convention language to
include substantive law as well). And cf. Floridas International Arbitration Act, Fla. St. 684.05(3),
684.24(1)(b), which forthrightly asserts that the selection of the place of arbitration shall not in itself
constitute selection of the procedural or substantive law of that place as the law governing the arbitration.
As hard as it is to credit, Florida courts may apparently vacate an award not only if (a) the place of
arbitration was in this state---but also (b) if the arbitration was conducted in accordance with the law of
this state---and indeed, (c) if the undertaking to arbitrate forms part of a contract the interpretation of
which is to be governed by the law of this state! More generally on Floridas shockingly lame legislation,
see Rau, Federal Common Law and Arbitral Power, supra n.22 at 202-03 fn.103.
67
See Karaha Bodas Co., L.L.C., supra n.20 at 308-09 & fns. 127-128 (exclusive primary jurisdiction in
the courts of a single country facilitates the orderliness and predictability necessary to international
commercial agreements; this is the predominant view).
68
If both are indeed states of primary jurisdiction, the mechanism for jurisdictional coordination provided
in art. VI of the Convention could no longer be relied on.
Page 26 of 118

the elusive disjunctive does not lend itself so readily to dogmatism. The law may
occasionally permit folly, but it can never make it totally obligatory---and no judge worthy
of the name would be unable to avoid this result.

So, assume a proceeding where the place of arbitration is to be Lima, but which
is somehow expressly made subject to the arbitration law of England. Is a duplication of
competence between competing jurisdictions---with all the confusion entailed by a
concurrent power in each to vacate awards---truly inevitable? Surely it would be more
natural simply to say,

that the Peruvian courts, in exercising their authority, are expected to refer and
defer to English legislation? Since autonomy with respect to the procedural
regime of an arbitration is a feature of any modern legislation, the result would
simply be to assume that English law has been incorporated into the agreement--
-in the same way that the parties could have taken the pains to copy out the text
of the Arbitration Act at length into their contract.
70

It will not do to suggest as a palliative that the party who wishes to challenge an award may have
the option of proceeding in either of the two states, his choice, however, being definitive---binding on
everybody. This does not particularly conduce to coherence or certainty---but more to the point, it still
does not preclude dislocation and disorder: For it is not uncommon for Party A to be dissatisfied with an
award in some respects, and for Party B to be equally dissatisfied with the same award in others: It could
scarcely be supposed that a party aggrieved by one part of an award could proceed in one jurisdiction
and a party aggrieved by another part of an award could proceed in another jurisdiction, nor that the
aggrieved party could complain in one jurisdiction and the satisfied party be entitled to ask the other
jurisdiction to declare its satisfaction with the award. There would be a serious risk of parties rushing to
get the first judgment or of conflicting decisions which the parties cannot have contemplated. C. v. D.,
supra n.20 at 16. Co-equal courts could I suppose simultaneously evolve rules of lis pendens and res
judicata to avoid multiple litigation and inconsistent results, but the unseemly rush to the courthouse
would continue..
69
See Restatement, supra n.25 at 5-12 cmt. b. (that an award in exceptional circumstances will be
subject to the primary jurisdiction of two countries---both the state of the seat, and the state to whose
arbitration law the parties have expressly subject[ed] their arbitration---with the consequence that the
courts of both states will have competence to set it aside---is a consequence explicitly recognized in
art. V(1)(e) of the Convention).
Assume a text provides that, absent party agreement or arbitral order, the arbitration may be
conducted in the official language of the country in which, or under the law of which, [the award is to be]
made. The plain meaning may perhaps mandate a concurrent cacophony of English and Spanish---but
I would hope not
70
So the desire to entrust the arbitral tribunal with the power to order depositions for discovery purposes
could be accomplished by lengthy drafting to that effect---or by a direct and specific reference to the
Texas General Arbitration Act, Tex. Civ. Prac. & Rem. Code 171.050(a)(2); cf. Georgios Petrochilos,
Procedural Law in International Arbitration 94-95 (2004)(suppose that in an arbitration under the FAA,
the parties agree that arbitral procedure is to follow the civil procedure of the state of New York;
presumably the award can be set aside, either by state or federal court, should the tribunal not provide for
witness and cross-examination as required by that law). Likewise the desire to impose tight time limits on
the party appointment of arbitrators could be accomplished by an explicit provision to that effect---or by
the incorporation of English law, see Arbitration Act 1996 (Eng.), 16. See also Laconian Maritime
Enterprises Ltd. v. Agromar Lineas Ltd., [1986] 3 S.A.L.R. 509, 530 (Durban and Coast Loc. Div.
1985)(incorporation in the contract of certain domestic provisions of a foreign law may simply be
Page 27 of 118

Or in the alternative, could one say that the parties---by subjecting themselves to
the English Act---have entrusted the English court alone with the power to
monitor the arbitration and to set aside the award? On this view, then, they have
chosen to withhold the usual effect given to the selection of a seat---they have
negated the usual assumption that the choice of a seat carries along with it a
body of law and a judicial system designated to control the validity of the
proceedings. (Recall the Conventions use of the disjunctive (or)). In such
circumstances, what could it possibly mean, anyway, for Lima to be the seat of
the arbitration if the entire body of Peruvian legislation has been displaced?
71

regarded as a short-hand method of expressing certain agreed terms). Cf. Arbitration Act 1996 (Eng.),
4(5):
The choice of a law other than the law of [England] as the applicable law in respect of a matter
provided for by a non-mandatory provision of this Part is equivalent to an agreement making
provision about that matter.[Italics added.].
This was apparently the solution adopted by the lower court in Amazonica Peruana S.A., supra n.53,
where the agreement provided that the insured accepts, from now on, the jurisdiction and
competence of the City of Lima, but that there was to be Arbitration under the Laws and Conditions
of London. The court concluded that the effect of this language was that any arbitration should be
held in Lima, but governed by English law in every respect. By contrast, the Court of Appeal
understandably feared that this would be likely to produce a highly complex and possibly unworkable
result which the parties could hardly have intended, [1988] 1 Lloyds L. Rep. at 121.
Granted, if one were inclined to go very far down the path marked out by the lower court in
Amazonica Peruana, one would probably be compelled to go further, and distinguish between the
external issues regulated by English arbitration law---unlikely to be incorporated, for as a practical
matter the supervisory jurisdiction of an English court would not readily extend beyond local
proceedings---and the Acts internal rules applicable to arbitral tribunals, see n.10 supra. This does
not seem insuperably difficult; cf. Union of India v. McDonnell Douglas Corp., [1993] 2 Lloyds L. Rep.
48 (QBD (Comm))(agreement provided that the seat of the arbitration proceedings shall be London,
but that the arbitration shall be conducted in accordance with the procedure provided in the Indian
Arbitration Act; held, the parties have chosen English law as the law to govern their arbitration
proceedings [and thus the arbitration is subject to the supervisory jurisdiction of the English courts],
while contractually importing from the Indian Act those provisions of that Act which are concerned
with the internal conduct of their arbitration and which are not inconsistent with the choice of English
arbitral procedural law). Whether the law of the designated seat would permit parties to enlist local
courts in applying the standards of vacatur of another jurisdiction, is precisely the question left open
by the very unsatisfactory opinion in Hall Street.
Cf. Mauro Rubino-Sammartano, International Arbitration Law and Practice 499 (2
nd
ed. 2001),
who seems to conflate the parties choice of a procedural law . . . different from . . . the lex fori with their
choice of the arbitration rules of an international arbitral institution; the situation is in principle the
same. Now I would not, as adolescents say, particularly want to go there; the incorporation of the ICC
Rules is hardly what art. V(1)(e) of the Convention is talking about, and the point elides the whole
problem of conflict with the mandatory law of the arbitral seat. But Professor Rubino-Sammartanos
discussion certainly has the virtue of reminding us that the apparent choice of a procedural law may at
bottom be no more complicated than this---that it amounts to a contractual election to proceed on the
basis of certain favored rules. That this choice should be honored even in preference to the otherwise-
applicable law of the seat, also appears to be the teaching of the Conventions art. V(1)(a).
71
See Georgios C. Petrochilos, Enforcing Awards Annulled in their State of Origin under the New York
Convention, 48 Intl & Comp. L.Q. 856, 877 (1999)(the fact that art. V(1)(e) makes an exception for the
Page 28 of 118

And would it follow from what has just been said, that the contracts designation
of Lima as the place of arbitration is deemed to be just an inartful shorthand for
the physical location of the hearings?
72

What, after all, is the function of a legal education other than to train us in such heroic
measures of avoidance?
73

case where the state in which the award was made would not coincide with the state whose law was
expressly stipulated by the parties to govern the proceedings, suggests that a decision in the latter
forum has the better claim to be internationally recognized).
Cf. Hans Smit, Annulment and Enforcement of International Arbitral Awards: A Practical
Perspective, 18 Amer. Rev. Intl Arb. 297, 301 (2007), who argues that the legislative history of the
Convention squarely rejects the proposition that a party seeking annulment has the choice between
selecting the place of arbitration or that whose arbitration laws apply in the event the latter place is
different. I of course completely agree with this. Professor Smit goes on, however, to conclude that the
history makes clear that the second forum specified is available only if the first is not. I would much
prefer to put it this way instead: that the first forum is indeed presumptively the relevant forum, but if---in
the highly unlikely event that---the choice of a second forum points to a different state, then the first forum
is supplanted and this second forum becomes exclusively competent.
72
See Braes of Doune Wind Farm (Scotland) Ltd., supra n.51. Here the agreement provided that, subject
to [arbitration], the courts of England and Wales have exclusive jurisdiction to settle any dispute; the
arbitration agreement is subject to English Law and the seat of the arbitration shall be Glasgow,
Scotland. The court held that the law which governed the arbitral proceedings was that of England and
Wales---and that the contractual reference to the seat must relate to the place in which the parties
agreed that the hearings should take place).
In the celebrated Indian case of Oil & Natural Gas Commn v. Western Co. of North America,
[1987] A.I.R. 674 (Sup. Ct.), the contract provided that the validity and interpretation [of the agreement]
shall be governed by the laws of India, and indeed that the arbitration proceedings shall be held in
accordance with the provisions of the Indian Arbitration Act; under the arbitration clause, however, the
agreed venue for the hearings was to be London. The Indian court held that the award could only be
set aside in India; the Indian Court alone has the jurisdiction to pronounce on the validity or enforceability
of the award. That alone would have been plausible enough, for the reasons suggested in the text.
Characteristically, however, the court proceeded to cross over the line---going on to hold that since an
Indian annulment would cause the award to be non-existent, the prevailing party should be immediately
enjoined from seeking to enforce it in the United States---for U.S. confirmation might mean that the U.S.
court would then have acted on and enforced an award which did not exist in the eye of law, 11, 12.
Should not such an unaesthetic situation be foreclosed? 13. The Indian court must then have been
under the gross misimpression that arts. V(1)(e) and VI of the Convention were not merely hortatory, but
mandatory for a court of secondary jurisdiction. See text accompanying n.80 infra.
73
There are lots of others; the English cases are particularly disingenuous in tending to insist that any
apparent conflict go away and that all the prerogatives of the natural and preferable forum be preserved.
For example, the Court of Appeal in Amazonica Peruana preferred to avoid the rather complex route
taken by the lower court, see supra n.70, in favor of deploying the familiar canons of contract
construction: Quite straightforward, really: Simply presume that the agreements pre-printed stipulations
(with respect to the jurisdiction and competence of the City of Lima) had been overridden by the
subsequent typed arbitration endorsement, with which it cannot co exist; in that case the specter of dual
jurisdictions simply disappears.
Similarly, see Black Clawson Intl Ltd. v. Papierwerke Waldhof-Aschaffenburg AG, [1981] 2
Lloyds L. Rep. 446, 453 (QBD (Comm))(arbitration shall take place in Zurich and any question as to
construction or effect shall be decided according to the laws of England; really, this amounts to nothing
more than a rather roundabout way of ensuring that the [English] Court has power to stay an action
Page 29 of 118

--------------------------

Very little of what I have said in the preceding section is surprising or even
controverted: Surely a man of no very comprehensive search may venture to say that
he has heard all this before.
74

And even where matters arise as to which there happens to be disagreement, all
hope of nuance is not irretrievably lost: All that is really necessary before going further is
to strip the subject of red herrings and rhetoric. It is, for example, quite untenable to
claim, and disquieting to read, that under some supposed theory of a-national
arbitration transborder commercial arbitrations are completely outside the domestic
regulatory reach of national laws and courts
75
: All the preceding discussion---however
superfluous it must have seemed to most observers---demonstrates that this is true in
the mind of precisely no-one---neither descriptively nor normatively.
76
At the opposite
extreme it is, if possible, even more baffling and misguided to assert that according to
some supposed concept of lex loci arbitri, the legitimacy of an adjudicatory process
depends upon the will of a sovereign [and] not the individual will of private parties.
77

And nothing that I have said so far with respect to the critical significance of the law and
courts of the arbitral seat could possibly amount to a view of the arbitrator as
equivalent to---as just another version of--- a member of the local judiciary.
78

All such views of the matter risk tipping over into caricature: What is called for
perhaps is something less in the way of theory and philosophy and overarching
concepts---and something more in the way of working out a prudential allocation of

brought in England in breach of the agreement to arbitrate; there is certainly no intention to submit the
reference to English arbitration law as a whole).
74
Samuel Johnson, Life of Alexander Pope 105 (Peter Peterson ed. 1899).
75
See Thomas E. Carbonneau, Cases and Materials on Arbitration Law and Practice 41 (4
th
ed. 2007).
76
See, e.g., n.17 supra (appointing arbitrators in France), text accompanying nn. 35-41 supra (annulling
local awards).
More generally, see text accompanying n.29 supra (enforcement of foreign awards); cf. Jan
Paulsson, Delocalisation of International Commercial Arbitration: When and Why It Matters, 32 Intl &
Comp. L. Q. 53, 57 (1983)(the delocalized award is not thought to be independent of any legal order;
rather, the point is that a delocalized award may be accepted by the legal order of an enforcement
jurisdiction although it is independent from the legal order of its country of origin); Gaillard, supra n.7 at
56-57, 61, 189 (the state where enforcement is sought has a strong claim to assert its view as to whether
an award is worthy of protection; again, conveniently, this is true both under the traditional
Westphalian model, and under an alternative model that conceives of arbitration as part of an
autonomous and separate legal order).
77
Carbonneau, supra n.75 at 42. Cf. the discussion at text accompanying nn. 52-55 supra.
78
See Gaillard, supra n.7 at 34-39 (under the oldest conception of arbitration as being purely and
simply a part of the local legal order, the arbitrator would be treated as just one of multiple adjudicatory
bodies in the state, side by side, in France, with the Superior Court, the Commercial Court, and the Land
Estate Court (tribunal paritaire des baux ruraux). But an arbitrator hearing a dispute between a U.S. and
a Japanese party in an arbitration taking place in Cyprus, does not think or behave as if he were part of
the Cypriot legal order. See Alison Ross, Gaillard on the Seat of Arbitration, Global Arbitration Review,
Oct. 5, 2009.
Page 30 of 118

responsibilities among various states in their necessary task of oversight and control of
the process of private ordering: Arriving incrementally at such an understanding---
attributing the proper role, for example, to the jurisdiction of the chosen seat---should
call for an inquiry that is highly context-dependent. Some factual patterns in particular
are most likely to recur and prove worrisome, and it is to these that I turn now.

II. Annulment at the Seat

Whats the difference between provincialism, which unthinkingly takes its situation for
everyones, and cosmopolitanism, which is confident it has the right to?
79

One of the most fraught questions in the literature is posed when the courts of
the seat have exercised their undoubted power to set aside an award made there.
What is the fate of the award in states of secondary jurisdiction? Of course art.
V(1)(e) of the Convention makes local annulment a permissible ground for non-
enforcement in other states; nevertheless at the same time the syntax---and indeed the
whole raison dtre---of the Convention, cohere in conveying the message that
contracting states remain perfectly free to ignore vacatur by the courts of the seat. That
is, while art. V provides states of secondary jurisdiction with certain carefully delimited
outs justifying non-enforcement, nothing prevents them from going further---nothing
prevents them from giving enhanced currency to any award at all should they wish to do
so.
80

And that is more or less where agreement ends. Not surprisingly, then, the
subject has become an obsession with arbitrati of every age and on every Continent:
Analogies and metaphors, often depending fatally on unspoken premises or on the
tedious intricacies of Conflicts lore, often indeed tendentious and deployed for rhetorical
purposes, abound.
81
To someone obliged to master the literature it might readily

79
James Richardson, Vectors 93 (2001).
80
See Alexis Mourre, A propos des articles V et VII de la Convention de New York et de la
reconnaissance des sentences annules dans leurs pays dorigine, [2008] Rev. Arb. 263, 271-72, 275
(given that the overall purpose of the Convention was to enhance the recognition of awards, it cannot be
interpreted in any way that would forbid the recognition of awards which national law would on the
contrary wish to enforce); Paulsson, Note, supra n.4 at 562 (a contracting state cannot violate the
Convention in enforcing an award)(italics in original).
But for an elegant argument to the contrary---an argument, however, which may not give full and
appropriate force to the policies underlying art. VIIsee Michael Reisman, The Changing Relations of
National Courts and International Commercial Arbitration (prepared for the symposium, Arbitration and
National Courts: Conflict and Cooperation, and forthcoming, 2010)(in terms of the dynamic of the
Convention, annulment in a primary jurisdiction has universal effect, and the award is not supposed to
be enforceable anywhere else; allowance to courts of discretion or prudential space with regard to
technical, nonmaterial defects is not the same as allowing a national option under which a signatory state
may elect to remove local courts from any control role under Article 5).
81
A contract entered into in an Indian airport hotel between representatives of Japanese and American
companies, and which relates to an Italian venture, may of course be given effect in America, or Japan, or
Italy, whether or not the parties have complied with Indian formalities with respect to what constitutes a
Page 31 of 118

appear that indeed, on this subject, just about everything possible has now been said
82
:
The moves and countermoves, the accusations and defenses, the inevitable assertions
and the no-less-inevitable ripostes, succeed each other with monotonous regularity like
the daily squabbles of an elderly married couple, or the daily pilpul of the faculty lounge.
Now while nothing in the Convention requires a state of secondary jurisdiction to
defer to annulment at the seat, it is a very different, and far more plausible, proposition
to suggest that deference is necessary and inevitable. There may in fact still be people
out there who are ready to believe that an award once vacated at the seat no longer
exists, so that there is nothing left to be enforced elsewhere---that an award is in that
respect just like the judgment of a hierarchically inferior court which, once reversed on
appeal, has equally disappeared.
83
That would really be carrying the premise of
integration into the local legal order very far indeed---or would be, if it could be taken at
all seriously. Such people, if they can indeed still be found, do legitimately lend
themselves to ridicule. Although I share their conclusions---although I too believe that
annulled awards are presumptively unenforceable---I am embarrassed by their
rationale. For rules of law may perhaps be imprudent or ill-advised, but I very much
doubt that they can ever be impossible.

valid contractual obligation. See Paulsson, supra n.76 at 57; Jan Paulsson, The Case for Disregarding
LSAs (Local Standard Annulments) Under the New York Convention, 7 Amer. Rev. Intl Arb. 99, 109
(1996); William W. Park, Duty and Discretion in International Arbitration, in Park, supra n.41 at 190.
Very true: But the situation would be rather different, would it not, if there had been a contractual
choice of Indian law---or if the transaction had had substantial connections with India---and if the Indian
courts, clearly the best placed to interpret their own law, had in an adversarial proceeding decided against
the contracts validity? See id. at 190 fn.5; Horatia Muir-Watt, Note [to Direction gnrale de l'aviation
civile de l'Emirat de Dubai, supra n.28], [2006] Rev. Arb. 700, 703 & fn. 10. The expectation that this
Indian judgment would be followed elsewhere could not fairly be described as an attempt by Indian courts
to impose their will on the whole of the civilized world, cf. Clay, supra n.8 at 1245. See also Soc.
Locautra v. Soc. Industrie und Baumaschinen Vertriebs, [1975] Rev. Crit. Droit Intl Priv 504 (Cour de
Cassation Dec. 9, 1974)(German judgment, applying the applicable law in accordance with French
conflict rules, had nullified a sale taking place in Germany); cf. id. at 506 (note E. Mezger)(deference to
the German judgment was the only honest solution, the French judge hardly being well-equipped to
analyze, in light of German law, the (probably complex) relationship between the German seller and the
German buyer, and its impact on the ownership of the property in question).
Now whether that alternative factual matrix is closer to our concerns here is of course the very
question to be determined: The rabbit has already been placed in the hat if one posits a priori that the
chosen site of the arbitration (arising from the separable submission to arbitration) is to be deemed
fortuitous and not the product of instrumental behavior.
82
And said, as Jan Paulsson points out, more than a generation ago, see Paulsson, Note, supra n.4 at
564-65. These days one might be forgiven the impression that a publication on the extraterritorial effects
of annulment has become a sort of ticket of admission to an ongoing fraternity party.
83
See text accompanying n.34 supra; see also Albert Jan van den Berg, , Enforcement of Arbitral Awards
Annulled in Russia, 27(2) J. Intl Arb. 179, 187, 198 (2010)(an award that has been set aside in the
country of origin no longer exists legally; it is not possible [sic] that an arbitral award that has been set
aside could be brought back to life during an enforcement procedure ex nihilo nil fit). Cf. Petrochilos,
supra n.71 at 857 (there is much eminent authority to the effect that an award set aside at the seat no
longer exists---so that enforcing a non-existing arbitral award would be an impossibility; although the
logic of the thesis seems irrebutable, it is not what the Convention says).
Page 32 of 118

Nevertheless, non-recognition on the sole ground that an award has been set
aside at the seat has become the American norm.
84
This is a nod to the notion that the
contractual choice of the seat was not without intended consequences, that it tends to
suggest a contractual choice of the legal framework to govern the proceeding.
85
An
agreement to arbitrate in London will enlist the commitment of English courts to give
broad support to the arbitral process---and at the same time it acknowledges the
possible idiosyncrasies of English law with respect to judicial review. If the parties did
not actually seek the extended review that is a well-known feature of English law,
86
it
seems plausible at the very least to suppose that they were aware of, and accepted, the
risk.
87
(The extensive professional literature addressed to the choice of an appropriate
seat would be incomprehensible if this were not true).
88
So for other states to honor an

84
See, e.g., TermoRio S.A., supra n.22; see also Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd., 191
F.3d 194 (2
nd
Cir. 1999)( the parties contracted in Nigeria that their disputes would be arbitrated under
the laws of Nigeria, and Baker Marine has shown no adequate reason for refusing to recognize the
judgments of the Nigerian court).
85
See text accompanying nn. 42-55 supra. See also Termorio S.A., supra n.22 at 939 (the parties
agreed to be bound by Colombian law, of which Columbias highest administrative court is the final
expositor). For a characteristically fair and balanced summary of this position---even though the author
finds himself ultimately unable to accept it---see also Fouchard, La porte internationale de lannulation
de la sentence arbitrale dans son pays dorigine, supra n.41 at 450: Since the parties chose---or at least
had the power to choose---the place of the arbitration, and since in doing so they wanted---or at least
accepted---that the award would be under the supervision of the courts of the seat and perhaps even set
aside there, then to refuse to give international currency to any vacatur would be to betray their common
intention [leur volont commune].
86
Cf. Paulsson, Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment, supra n.4 at 25
(referring to the hypothesis of parties who intentionally seek a maximum-review regime as mythical).
87
Whether this prospect of expanded review for errors of law is in fact welcome or not, one might still
find it a reasonable trade-off, consciously assumed, given the generally unobtrusive efficiency of [the
Englilsh forums] supervisory law, Fiona Trust & Holding Corp. v. Privalov, [2008] 1 Lloyds Rep. 254, 256
(H.L.)(Lord Hoffmann).
88
The 2006 Queen Mary/PricewaterhouseCoopers research study concluded that for in-house counsel,
legal considerations were the single most important factor in the choice of a place of arbitration.
Nevertheless for these respondents, convenience came a close second. For the authors of the study,
this might suggest that some do not fully appreciate the significance of choosing the right seat.
Still, I should think that even this modest relevance attributed to considerations of convenience
is somewhat diluted by the fact that the study questionnaire referred merely to arbitration venues rather
than using a brightly flashing neon term of art like seat. In addition, the indifference of many
respondents towards legal considerations---for example, ratification of the New York Convention, or a
local law that is arbitration friendly---can be explained simply on the grounds that such considerations
were taken for granted; this can hardly be surprising given that the most favored venues were
overwhelmingly countries like Switzerland, France, and the United States, as well as England. See
International Arbitration: Corporate Attitudes and Practices (2006),
http://www.pwc.com/en_BE/be/publications/ia-study-pwc-06.pdf at 6.2; see also Loukas Mistelis,
International Arbitration---Corporate Attitudes and Practices, 15 Amer. Rev. Intl Arb. 525, 567-71 (2004).
For an amusing example of a contractual provision which seems to have been driven exclusively by
climatic factors---but where the chosen seat would in any event take place in one of two arbitration-
friendly jurisdictions---see HSMV Corp. v. ADI Ltd., 72 F.Supp.2d 1122 (C.D. Cal. 1999)(hearing would
take place within seven days following the arbitrators receipt of a notice of claim; the arbitration was to be
conducted in Melbourne if this occurred between November and April, and in Los Angeles if it occurred
between May and October).
Page 33 of 118

English annulment hardly means that the award now amounts to little more than a
judgment of the [English] courts---whose jurisdiction the parties had sought to exclude
in the first place by agreeing to arbitrate.
89
For precisely the same reasons, the
decision to ignore an English annulment is not self-evidently a contractualist position:
90

Indeed to wrap oneself in the mantle of contractualism, in the interest of enforcing an
award set aside at the chosen seat, is a clever but disingenuous gambit, a high-handed
bit of chutzpah.
Routine respect for local annulments may not be ideal, but it strikes me as by far
the best of a number of bad solutions. The case is undoubtedly hard, but in political
regulations, good cannot be complete, it can only be predominant.
91

Before inquiring further into what seems the most constructive path to take, one
might note first that this is a presumption firmly rooted in the text of the Convention. In
addition to the invitation extended by art. V(1)(e), the Convention permits courts of
secondary jurisdiction to refuse recognition if the arbitration agreement is not valid
under the law to which the parties have subjected it or, failing any indication thereon,
under the law of the country where the award was made;
92
similarly, they may refuse
recognition if the composition of the tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, . . . with the
law of the country where the arbitration took place:
93
I should think that an authoritative
formulation by the courts of that country---an application of the peculiar requirements
of their law with respect to what makes a valid agreement or what constitutes proper
arbitral procedure---would have a strong claim to be definitive: Who is better placed to
judge?
94

89
Cf. Petrochilos, supra n. 71 at 888.
90
See Pierre Bellet & Ernst Mezger, Larbitrage international dans le nouveau code de procedure civile,
[1981] Rev. Crit. Droit Intl Priv 611, 648, 655 (French arbitration legislation is inspired by the
contractualist view, and the absence of any provision analogous to art. V(1)(e) of the Convention is the
corollary of the contractualist view of arbitration and of the award).
91
Samuel Johnson, A Journey to the Western Islands of Scotland in 1773 (Paisley: Alexander Gardner
1906) at 137.
92
Art. V(1)(a)(emphasis added).
93
Art. V(1)(d)(emphasis added).
94
He is the final exponent of that law, and we do not see how it is possible for a foreign Court to
pronounce his decision wrong. Ingenohl v. Olsen & Co., 273 U.S. 541 (1927)(Holmes, J.)(trademark
depend[s] for its protection in Hong Kong upon the law prevailing in Hong Kong). Cf. Bellet & Mezger,
supra n.90 at 649 (the decision of a foreign judge setting aside an award would have, for a French judge,
only the value of a data point [une information] with respect to the foreign law, which might become
useful in the event that a rule of conflicts should make that law applicable).
Jan Paulsson of course acknowledges the possible relevance of arts. V(1)(a) and V(1)(d) but then
goes on to assert, with enviable bravura, that one must [simply] disregard [these] incidental renvois to
the law of the venue---in order to keep local and peculiar annulments from returning through the back
door. Paulsson, Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment, supra n.4 at
29.
Page 34 of 118

And then of course there is art. VI---which permits a court of secondary
jurisdiction to adjourn a decision on enforcement of an award if an application for
setting it aside is pending before the courts of the seat. It is obvious that such an
adjournment can only be of consequence in the architecture of the Convention if an
eventual annulment can be expected to evoke deference from judges in other states.
95

The predictable argument to the contrary is that if, indeed, annulment is intended to
preclude enforcement, then as a matter of logic one would expect that adjournment
should be automatic and obligatory---to ensure that no award will ever be enforced until
any possible challenges in the country of origin have been disposed of. On this view,
to withhold adjournment on a prudential basis---while at the same time taking the
position that any annulment invariably justifies a refusal of enforcement--- is
inconsistent and incongruous.
96
But Im afraid Im quite unable to see this as
anything like a clincher:
97
One might usefully begin with a working presumption of
suspension pending annulment proceedings. But then, surely, one can recognize that
any such presumption must on occasion be trumped, by a courts willingness to move
ahead where it is convinced the risk is warranted---that is, where the challenge at the
seat appears to be dilatory, frivolous, and doomed.
98
Absolutism here (as just about
anywhere) would reduce itself to a foolish insistence on abstract principle.

95
See Fouchard, La porte internationale de lannulation de la sentence arbitrale dans son pays
dorigine, supra n.41 at 455 fn. 49 (que si la dcision attendue du juge de lannulation simpose lui).
96
See Mourre, supra n.80 at 273 (if the Convention had intended to establish as a rule the international
currency of annulments at the seat, it would have provided for an obligation, and not a simple power, on
the part of the enforcement judge to adjourn proceedings in the event of a pending motion to set aside
the award); see also Paulsson, Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment,
supra n.4 at 23.
97
Jan Paulsson, Rediscovering the N.Y. Convention: Further Reflections on Chromalloy, 12 (4)
Mealeys Intl Arb. Rep. 20, text accompanying fn. 29 (April 1997).
98
So it will be relevant to ask whether the application before the court in the country of origin is brought
bona fide and not simply by way of delaying tactics, and whether it has at least a real (i.e., realistic)
prospect of success, IPCO (Nigeria) Ltd. v. Nigerian Natl Petroleum Corp., [2005] 2 Lloyds L. Rep. 326
15 (Q.B.D. (Comm.)). See also Jorf Lasfar Energy Co. v. AMCI Export Corp., 2005 WL 3533128
(W.D.Pa.)(U.S. enforcement action and French setting-aside action were filed on the same day; [w]e can
draw no inference from the timing of the filing, or any other circumstances, that the French action was
filed in order to hinder or delay resolution of this dispute). In this connection the Second Circuit has
intriguingly suggested that in circumstances where the courts of the seat apply less deferential standards
of review in passing on awards, the Convention particularly favors deference to proceedings there, on
the premise that, under these circumstances, a foreign court well-versed in its own law is better suited to
determine the validity of the award, Europcar Italia, S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310 (2
nd
Cir.
1998).
Given the implausibility of most claims of annulment---and the low success rate in setting awards
aside at the most popular venues---it may in fact be perfectly sensible to expect the party seeking an
adjournment to make a prima facie case demonstrating the likelihood of an ultimate annulment, and to
place the burden of proof accordingly. . But cf. Jorf Lasfar Energy Co., supra at *3(although we question
defendant's ability to ultimately prove its defenses, we are unable to say that they, or defendant's appeal
in France, are frivolous). Even without any such showing, the court can hedge its bet (as art. VI
envisages), by conditioning enforcement on the claimants furnishing of security in the event that the
award is in fact later set aside.
Page 35 of 118

At the opposite extreme is this: If one is at all tempted by the notion of arbitration
as an autonomous, parallel, separate legal order----owing its legal effect only to the
international community, which has made it the expected and routine method of
resolving international commercial disputes
99
--- then one readily arrives at the
conclusion that awards should be entirely detached from any consequences of judicial
review at the seat. French courts---unique and quite friendless in this respect
100
---do in
fact take the position that they dont have to be concerned at all with local
annulment,
101
which then becomes entirely irrelevant. It is often said that this position
rests on art. VII of the Convention,
102
but even where the Convention---and thus art.
VII---is not applicable, precisely the same result is reached---the key assertion remains
that annulment by the courts of the seat generate no international effects and reflect
only an exercise of sovereignty on local territory.
103

The recent decision of the French Cour de Cassation in Putrabali
104
cannot
inspire much confidence in the practical wisdom of this philosophy for our workaday
world: The legal regime that can countenance the absurdities of Putrabali is one that
needs to take a close look at itself in the mirror--- asking itself, as many of us do with
chagrin and dismay on dark mornings, how we could possibly have wound up, after a
series of small and imperceptible steps, in this condition.

99
See Emmanuel Gaillard, Note [to Socit Putrabali Adyamulia v. Socit Rena Holding (Cour de
Cassation 29 June, 2007)], [2007] Rev. Arb.. 517, 521 (it is therefore to the international community---
not to any of the states taken individually---that the award owes its legal effect [juridicit]).
100
With the exception perhaps of some Swiss, Belgian, and Austrian decisions, mostly antiquated and
probably destined to remain isolated, Mourre, supra n.80 at 266 fn.8.
101
Gaillard, supra n.99 at 518.
102
The most favored right provision of art. VII would refer us in turn to French domestic legislation,
which in art. 1502 of the CPC does not envisage annulment at the seat as a permissible ground for the
refusal of recognition. See, e.g., Socit PT Putrabali Adyamulia v. Socit Rena Holding, 2007 Rev.
Arb. 507, 510-11 (Cour de Cassation, June 29, 2007)(report of Prsident Jean-Pierre Ancel; art. VII is the
legal underpinning of this solution; in recognizing an award annulled abroad, the French judge is
precisely applying the terms of the Convention); Gaillard & Savage, supra n.31 at 268-70); Fouchard,
La porte internationale de lannulation de la sentence arbitrale dans son pays dorigine, in Fouchard,
supra n.41 at 446-47. But cf. Mourre, supra n.80 at 268-9 (it should not be necessary to rely on art. VII
despite the misleadingly peremptory tone of the French-language version of art. V); cf. generally n.80
supra.
103
Direction gnrale de l'aviation civile de l'Emirat de Dubai, supra n.29; see also Mourre, supra n.80 at
283 (this is a logical corollary of the initial premise of delocalization, which posits that even an award
that has been set aside can still be effective and recognized in other states)..
At that time the UAE had not yet ratified the New York Convention, and Frances ratification was
as always subject to the reservation of reciprocity. It is simply incorrect to assert that France has
withdrawn that reservation, compare Alexandra Szekely, Note [to Direction gnrale de l'aviation civile de
l'Emirat de Dubai v. Socit international Bechtel], 95 Rev. Crit. Droit Intl Priv 392, 398 (2006). Effective
November 27, 1989, France withdrew only the second sentence of its declaration made upon ratification,
that is, the commercial reservation. See Decree No. 90-170 (Feb. 16, 1990), J.O. Feb. 23, 1990, p.
2344.
104
Socit PT Putrabali Adyamulia v. Socit Rena Holding, 2007 Rev. Arb. 507 (Cour de Cassation,
June 29, 2007).
Page 36 of 118

Putrabali was an entirely ordinary, common garden-variety commercial case, in
which the seller had made a claim for the price of his goods (or for damages for the
buyers failure to pay the price). The goods had been lost when the vessel carrying
them sank off Indonesia. In a trade association arbitration, held pursuant to the
associations rules in London, an umpires award against the buyer was reversed by a
Board of Appeal, which excused the buyer from liability for non-payment: For according
to the Board, the sellers declaration of shipment---which had given the name of an
unpowered barge contrary to the terms of the contract---had been defective; and as
the buyers had been unaware of the vessels classification, they had been unable to
object in a timely fashion.

Now every law student who has paid even desultory attention to a course in
Arbitration, is familiar with the notion that English courts have long exercised an unusual
and much controverted power to review and set aside awards for errors of law. Then,
five minutes on Google would confirm for him that while the possibilities of such review
have been sharply curtailed in the perceived interest of users---that is, though much is
taken---much abides: The 1996 Act still permits appeal to the court on a question of
law arising out of an award, at least if a court has given leave to appeal---and at least
where the parties have not otherwise agreed to exclude judicial review.
105
The parties
in Putrabali had not bothered to avail themselves of the possibility extended to them by
the Act of excluding enhanced review on points of law. And so---whether because he
believed the decision of the arbitral tribunal to be obviously wrong, or because he
thought the question to be one of general public importance and the decision of the
tribunal [to be] at least open to serious doubt,
106
the English judge granted permission
to appeal.
The decision on appeal was detailed and meticulous and careful and
commercial---precisely the sort of exercise at which English courts excel and which
they carry out daily.
107
The court concluded that the arbitral Board of Appeal had
erred.
108
So the award was set aside, and the case remitted to the arbitral appellate

105
Arbitration Act 1996, 69(1), (2).
106
These are the points as to which the English judge must be satisfied before granting leave to appeal.
Id. 69(3)(c).
107
PT Putrabali Adyamulia v. Socit Est pices, [2003] 2 Lloyds L. Rep. 700 (Q.B.D.)(Comm.)).
108
Two principal reasons:
The sellers declaration of shipment was valid, for there was nothing in the contract forms
requiring the seller to include in his declaration a statement as to the vessels class. And even
assuming that the vessel was not, as contractually required, a first class ship, precedent
required a holding to the effect that a declaration could not be defective if it did not indicate by
its express terms that either, the vessel by reason of her characteristics, or the voyage by reason
of the manner in which it is being performed, is not contractual. Id. at 9-10, 19.
And in any event, the declaration had to be deemed effective unless the buyer objected to it
within the limited period provided. Certainty in matters of this kind is of real importance because
traders need to know whether notices of this kind are effective and can be relied upon. Id. at
20.
Page 37 of 118

tribunal with a direction that the Board shall assess the measure of the damages due
from the buyers to the sellers for the non-payment of the price.
109
Inevitably, the result
of this second arbitration was entirely different---the buyer being found liable for a
substantial amount of damages.
Now the first award in Putrabali, annulled in England, was of course not
enforceable there-- nor, for that matter, anywhere else in the world--except in France,
where the buyer, first out of the gate, obtained exequatur because

the award itself was not English---indeed it had no nationality at all---and was
not "attached to [any] particular national legal order, while by contrast,

the order for setting aside itself has no claim to be honored internationally,
particularly where the ground for annulment was 'local,' that is, closely linked to
national legal concepts.
110

But of course the second award, rendered after remand by the English court, was
enforceable in England--and, for that matter, just about everywhere else in the world--
except in France, where exequatur was impossible on the ground of "incompatibility"
with the earlier award.
111
(I do not claim to know what would have happened had it
been the second award which, fortuitously, had been the first one presented to the
French courts.).
112
Some time ago Jan Paulsson deprecated as "more theoretical than
real" the often-expressed fear that the French jurisprudence would lead to such
inconsistent results--suggesting vividly that the prospect was much like "a two-headed
white rhinoceros which might give us a thrill in the cinema but does not really endanger

109
Id. at 32.
110
See Socit PT Putrabali Adyamulia, supra n.103 at 511 (report of Prsident Jean-Pierre Ancel).
111
Id. at 517.
112
The buyer/respondent in Putrabali---who was able to speedily seek enforcement in France of the first
award in his favor---and who thus managed to evade the legal analysis of the English Commercial Court--
-was in fact a French company. Professor Gaillard has asserted that French law favoring enforcement of
an award despite annulment at the seat statistically can only be disfavorable to French parties, since
enforcement of an award against a French party is likely to first be sought in French territory---
concluding that it is therefore rather implausible that the French approach could be grounded in
nationalist sentiment. Emmanuel Gaillard, Enforcement of Awards Set Aside in the Country of Origin:
The French Experience, in Improving the Efficiency of Arbitration Agreements and Awards, supra n.65 at
505, 524. But such an extravagant claim has clearly been overtaken by events. See Richard W. Hulbert,
When the Theory Doesnt Fit the Facts: A Further Comment on Putrabali, 25 Arb. Intl 157, 169
(2009)(by acting in time to insert the favourable award into the French juridical order, the respondent can
block enforcement of any later award).
It is perhaps not as troubling---but it certainly offers a rich paradox---to consider that in other
cases, an award set aside at the seat may be enforced in France even though it would be considered
void in both of the states of which the contracting parties were nationals. See, e.g., Direction gnrale de
l'aviation civile de l'Emirat de Dubai, supra n.29 (award in favor of American company annulled in Dubai
at the request of the Department of Civil Aviation of Dubai).
Page 38 of 118

our daily walk to work."
113
Still, it appears, such a beast can occasionally escape into
our dimension and be found stomping clumsily along the Quai de l'Horloge

What else can be said in the interest of explaining, or deconstructing, the French
position? Their definitions surround them like a kennel contains a hound. . . Like a
thrown stone imagining it will not fall their explanations work to keep the world fixed.
114

This insistence on enforcing awards annulled at the seat often seems to erect an
entire structure on a frank distrust or deprecation of the judicial systems of other
states.
115
Or, at the very least, it may rest on a judgment that some foreign states--
neophytes in the recondite world of international arbitration--are not yet able to
understand the proper standards for the review of awards: They may, for example,
simply fail to grasp that the failure of witnesses to take an oath,
116
or the failure of an
award to state the addresses of the arbitrators--or the arbitrators' failure to "follow the

113
Paulsson, The Case for Disregarding LSAs, supra n.81 at 111 (in most situations in contemporary
practice, an award sufficiently defective to be set aside in country A will not pass muster under the
enforcement criteria of country B, whereas the Swiss annulment criterion [in the celebrated Hilmarton
case] (arbitrariness) was an old and much-criticized concept which would not have been applicable if
that case had arisen under contemporary Swiss law).
114
Stephen Dobyns, Sleeping Dogs, Times Literary Supplement, Feb. 3, 2006 at p. 4.
115
E.g., Clay, supra n.52 at p. 24 (the fact that the courts of Dubai had annulled an award against the
state's own civil aviation authority, and in favor of a foreign company, was "perhaps not totally irrelevant to
a true understanding of the court's decision"). See also Gaillard, supra n.7 at 46 (one can think of many
cases where the courts of the seat have come up with some rather exceptional notions so as to come to
the assistance of one of the parties to the dispute, frequently the local party); Paulsson, Note, supra n.4
at 564 (under the conventional American jurisprudence, if international businesses take the risk of
choosing to arbitrate in one of the (many) states where justice is unreliable, so much the worse [tant pis]
for them!); Paulsson, Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment, supra
n.4 at p. 29 fn. 60 (enforcement courts should not be subjugated to the will of courts of the place of
arbitration, which, as experience has unfortunately shown, are sometimes guilty of egregious
chauvinism); Pierre Lastenouse & Petra Senkovic, Note [to Radenska v. Kajo, Sup. Ct. Austria, Oct. 20,
1993]. [1998] Rev. Arb. 421, 428 (parties may often have legitimate fears with respect to the impartiality
of a national judge who has set aside an award, particularly in certain countries and where enforcing the
award would severely injure the interests of a local enterprise).
This is a common ground for deprecating the relevance of annulments at the seat---at least when
the seat is not asserted instead to have been merely a fortuitous choice, reproached precisely for having
no connection to the dispute at all other than for its hotels or conference centers where the proceedings
may be held, see Gaillard, supra n.7 at 56. The whipsawing here is evident and dizzying.
116
See Clay, supra n. 52 at p. 24 ("is it really necessary . . . to allow a judge in Dubai to claim worldwide
validity for his decision vacating an award on the ground that in the arbitral proceeding the witnesses had
not taken an oath in the proper form?); see also Jan Paulsson, Delocalisation of International
Commercial Arbitration, supra n.76 at 58-59 (a state's requirement "that all arbitrators sign the award"
may be "quite reasonable" in terms of "the local legal culture," but in international arbitration "the
legitimate expectation of the parties is that the majority rule will prevail); Paulsson, Note, supra n.4 at 559
(states are of course free, if they wish, to refuse enforcement to awards set aside at the seat, even if the
grounds for annulment were preposterous); Charles Jarrosson, Note [to Socit Hilmarton v. Socit
OTV, Cour de Cassation, March 23, 1994], [1994] Rev. Arb. 329, 332 (agreement on a seat should not
lead to paralyzing the arbitration because of local decisions grounded in outmoded legislation, resulting
in obsolete forms of control over the arbitral process).
Page 39 of 118

law"
117
--are all obsolete and inappropriate grounds for vacatur, with no legitimate claim
to be respected elsewhere. In such cases the French courts act (a telling phrase) as
the enlightened guardians of the Convention:
118
They are able to assume the
pedagogical role they are most comfortable with--providing instruction to other states as
to what is in the best interests of this autonomous international legal order---which is
itself, after all, so much an achievement of decades of Gallic thought.

In either case, those of us who have internalized the values of the marketplace to
a somewhat greater degree than this, may be struck by the meager scope given here to
the usual understandings of contract doctrine---which rests, after all, on the attempt to
encourage rational decision-making by holding people to hard risk-taking choices not
actually induced by force or fraud.
119
It is a rum form of autonomy that deems it

117
Professor Fouchard doubted that it could it possibly be legitimate for an award annulled in England to
turn out to be unenforceable abroad, where annulment was for one of the reasons specified in an
impressive[ly] lengthy laundry list in 68 of the Arbitration Act---such as serious irregularity caus[ing]
substantial injustice, in, for example, the uncertainty or ambiguity as to the effect of the award.
Fouchard, La porte internationale de lannulation de la sentence arbitrale dans son pays dorigine, in
Fouchard, Ecrits, supra n.41 at 454. I must say that while the Devil is of course in the details, the verbal
formulations for annulment in 68---quite different in this respect from the appeal on question of law
procedure of 69---do not on the face of it seem terribly different from those found in or spun out of the
FAA.
118
Thomas Clay, La Convention de New York vue par la doctrine francaise, 27 ASA Bull. 467, 477
(2008). Cf. Gaillard, supra n.7 at 77, 80-81 (when a significant number of bodies of law have adopted the
same solution, the rule they arrive at can be deemed a general principle even if it is not unanimous; the
conflicts-of-law method of transnational rules considers the direction of the general evolution, and must
give priority to the law which follows those lines; it is a matter of drawing out of all legal systems the
dominant tendency).
Professor Clay summarizes the overall question in the form of an analogy to the perennial civil
liberties dilemma of the choice between two evils---of either keeping an innocent person in prison or
allowing a guilty person to go free: Just as everyone would prefer the latter, so it seems to follow that
we should prefer a system occasionally permitting the enforcement somewhere of a bad award rather
than tolerate a regime depriving a good award of any legitimacy anywhere. Clay, supra n.52 at 27. This
does rather seem to load the dice, doesnt it; the whole ingenious metaphor rests, of course, on the
tendentious premise that the first award in Putrabali can be termed a good award.
119
The argument from assumption of the risk can, it is true, sometimes be turned on its head: It is a nice
rhetorical device, for example, to suggest that while the prevailing party in an arbitration may indeed
have assumed the risk of vacatur by agreeing to arbitrate in a place with idiosyncratic standards of
annulment, he also, at the same time, knew---may indeed have counted on the possibility---that any
enforcement of a favorable award outside [of that place] would be governed by the standards of the New
York Convention, including its Art. VII; for his part, by contrast, the losing party, who managed to get the
award set aside, assumed the risk that other countries like France would enforce the award
notwithstanding local annulment. David W. Rivkin, The Enforcement of Awards Nullified in the Country of
Origin: The American Experience, in Improving the Efficiency of Arbitration Agreements and Awards,
supra n.65 at 528, 543.
This is undoubtedly clever: But to invoke this speculative possibility is also to draw attention to
the fact that for the moment at least, the French solution is in the community of nations largely a lawless
outlier. It may be that the French literature claims to attribute determinative importance to the dominant
tendency among the majority of legal systems ---at least with respect to the principles of judicial review
and the permitted grounds for the annulment of awards,see n.118 supra: But at the very same time it
Page 40 of 118

desirable to insulate contracting parties from their mere carelessness in agreeing to
submit to arbitration in a particular jurisdiction, or from their weakness in being unable
to obtain an alternative seat
120
---or where the significance of the choice of a seat is
deprecated because it may represent nothing more than a mere concession made in
the course of negotiations.
121

And finally: It will inevitably be claimed that to enforce awards vacated in less
enlightened states will actually turn out to be in the best interests of those states--"as
properly understood. For once they are freed from the parochial decisions of their own
judiciary, newcomers to the system will find their local awards given greater
international currency--their entrance into the lucrative world of international arbitration
assured.
122
This is a neat paradox, something I always relish--and is it not, as well, the
classic neo-colonialist move: the claim that lesser breeds ought to be grateful to us in
the long run for overriding--for their own benefit, after all--the policy choices they have
made?

These two models that I have just sketched are of course not the only
approaches to the problem: More nuanced views are naturally available: We are, after
all, engaged in a prudential, instrumental search for solutions likely to maximize

does not scruple to completely dismiss or ignore a universal consensus to the effect that local annulments
are to be respected: On this subject, supposedly, as on so many others, French law plays a pioneering
role; and French juristsovercoming the occasional temptation to look to foreign legal systems for
reasons to doubt the well-established solutions of their own regime---have every reason to be proud
of it. Emmanuel Gaillard, Note [to Coproprit Maritime Jules Verne v. American Bureau of Shipping
(Cour de Cassation, June 7, 2006)], [2006] Rev. Arb. 947, 953.
120
Gaillard, supra n.99 at 522 (American case law results in abandoning to their sad fate parties who
have been so careless, or so weak, as to have agreed to an arbitration taking place in the home state of
their contracting partner).
121
Jarrosson supra n.116 at 331.
Before entering into an agreement with, say, Dubais civil aviation authority, a rational contractor
would be expected to factor into its compensation the risks attendant on fixing Dubai as the seat of any
arbitration: Some sort of contractual adjustment would seem called for in return for foregoing supervision
of the arbitral process by the courts of a neutral state. But I take it that a contractor in this position---who
later seeks to avoid the effects of a local annulment of an award in his favor--- does not usually offer at
the same time to return any risk premium that it had received as a quid pro quo, an inducement, for this
concession --a premium that would now be unearned.
122
See, e.g., Jan Paulsson, Note, supra n.4 at 564 (parties "may find it more acceptable to fix the situs in
a country that is less experienced in arbitration, and which does not benefit from a serious tradition of
judicial independence, if they can be assured that any award ultimately rendered will survive local
abuses; therefore French jurisprudence tends to ensure "that the number of sites of arbitrations will be
more widespread throughout the world). Professor Gaillard, referring to such cases as TermoRio S.A.,
supra n.22 & text accompanying n.33 supra, deduces that in the eyes of American courts, an arbitration
in Bogota is not worth as much as an arbitration in Geneva or in London---and suggests that this is not
the best way of encouraging the development of arbitration throughout the world. Gaillard, supra n.99 at
522; see also Gaillard, supra n.7 at 147-8 (recognizing annulments on local and idiosyncratic grounds can
only have the effect of encouraging contracting parties to avoid certain seats for their arbitrations---and
thus advance the interests of the more traditional venues; by contrast, if we recognize the universal
vocation of the institution, we should strive towards the flowering of multiple seats).
Page 41 of 118

coherence and efficiency in dispute-resolution and transactional planning; where, by
contrast, is the possible interest in identifying some fundamental divergence with
respect to our philosophical understanding of the arbitration process?
123
Still, the
alternatives do seem to align themselves along either pole like iron filings to a magnet.

For example, the 1961 European Convention on International Commercial
Arbitration, as well as a strong current of scholarly writing,
124
attempts to distinguish
between

annulments at the seat based on grounds equivalent to those in art. V (1)(a)-(d)
of the New York Convention---that is, internationally accepted standards
permitting non-enforcement only for the canonical reproaches of arbitral abuse of
authority or violation of due process, and

annulments based on grounds that have no Convention counterpart at all--- but
which are instead, as in the idiosyncratic national regimes of Columbia, or
Dubai---or England--- merely local.
125

Only the latter must be completely ignored. (And in this category, apparently, are local
annulments stemming from the conclusion that the award has violated the public
policy of the seat.)
126
By contrast the former, if they are not indeed absolutely definitive

123
But see Gaillard, supra n.7 at 199.
124
Of course the primary reference here is to the groundbreaking work of Jan Paulsson, e.g., Paulsson,
Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment, supra n.4 at pp. 14 (the
anathema of local peculiarities), 29 (a decision [at the seat] consistent with the substantive provisions
of the first four paragraphs of art. V(1) is an international standard annulment; everything else would
be a local standard annulment, and entitled only to local effect)
125
See text accompanying n.22 supra and nn.22, 29 supra.
In those cases where the ground for annulment has no Convention counterpart---and where, in
addition, the parties to the arbitration agreement are domiciled in different contracting states---then it is
quite true that the European Convention replicates the French model---which to that extent, and despite
the ridicule of the international community, is not entirely isolated. See Gaillard, supra n.112 at 520-21.
126
See Radenska v. Kajo, [1998] Rev. Arb. 419 (Austrian Sup. Ct., October 20, 1993).
The particular public policy that, within a given legal system, is thought to justify a refusal to
honor an award often inevitably strikes us as parochial---in the sense, perhaps, that it exemplifies local
protectionist legislation, responsive to the demands of particularly attractive, politically influential weaker
local parties, see Alan Scott Rau, Comment: Mandatory Law and the Enforceability of Arbitration
Agreements, 3 World Arb. & Med. Rev. 133 (2009); see also Rau, The Arbitrator and Mandatory Rules of
Law, supra n.30 at 83 (both referring to the well-known Belgian legislation providing for damages for the
premature termination of a distribution agreement with an impact on the Belgian market, and giving the
distributor the right to bring the dispute before Belgian courts to be decided under Belgian law). It may
nevertheless represent a strongly-felt national consensus with respect to matters of economic regulation
deemed sufficiently central to the fundamental concepts of the local legal system that it trumps what
would otherwise be the appropriate choice of law in an international transaction.
Now it is perfectly understandable that a court of another state will be reluctant to take upon itself
the task of affirmatively advancing this policy----it will shrink from becoming the guardian or protector of
the economic order of another. See Lastenouse & Senkovic, supra n.116 at 426; cf. Dominique Hascher,
European Convention on International Commercial Arbitration of 1961: Commentary, XVII Yearbook
Page 42 of 118

for a state of secondary jurisdiction,
127
could well be given some indeterminate degree
of benefit of the doubt.
128

This model would expect us then to inquire into the reasons for which the courts
of the seat have set aside the award. But the common lawyer may perhaps have some

Comm. Arb. 711, 739 (1992)(to require that the arbitrators ensure observance of the public policy of the
country of origin when enforcement is not sought there, impairs the international currency of the award
without reason). But cf. Restatement, supra n.25 at 5-13 cmt. c.& Reporters Notes note c (suggesting,
tentatively, that even where an award has not been set aside at the seat, a court in a state of secondary
jurisdiction might in exceptional circumstances, by using its own choice of law rules or its own
judgment as to what would offend its own public policy, show respect for the legitimate national
interests of a foreign state that has emphatically declared a particular claim to be non-arbitrable).
But all of that is already a loaded and rhetorical way of characterizing` the immediate question at
hand: The discussion in the text does not, after all, deal with the problem of applying or imposing
liability for violation of a foreign public law; cf. Hannah L. Buxbaum, Mandatory Rules in Civil Litigation:
Status of the Doctrine Post-Globalization, 18 Am. Rev. Int'l Arb. 21 (2007). One might well frame the
problem otherwise---asking instead whether a states effort to advance its own regulatory policy, by
annulling an award deemed there to be illicit, should be systematically thwarted by a party who somehow
manages to insert an annulled award in his favor into the legal order of some other contracting state.
127
See 2 Born, supra n.10 at 2677 (the European Convention appears to provide that, if an award is
annulled on [grounds equivalent to those in the New York Convention], then non-recognition is required).
This doesnt seem quite right to me. Article IX(1) of the European Convention states that the
setting aside of an award shall only constitute a ground [for] refusal of recognition or enforcement where
it was done for one of the . . . . reasons equivalent to art. V(1)(a)-(d) of the New York Convention---the
so-called internationally accepted standards; art. IX(2) then goes on to say that as between states which
are also parties to the New York Convention, the previous subsection has the effect of limit[ing] the
application of art. V(1)(e) of the New York Convention solely to the cases of setting aside for such
internationally accepted reasons. The European Convention does then clearly deprive states of any
power to refuse enforcement of awards annulled merely for idiosyncratic local reasons---such awards
continue to benefit from the protection of the New York Convention. By contrast, an award set aside on
canonical, consecrated, international grounds no longer benefits from the protection of the New York
Convention---so that contracting states may refuse enforcement. But as always, it hardly follows that
refusal of recognition and enforcement is mandatory: The European Convention is not a Convention on
the Recognition of Foreign Judgments.
While it remains true that the courts of a contracting state may under art. V(1)(e) defer without
more to an annulment made on international grounds; it remains equally true, given the discretionary
nature of art. V(1) and the escape hatch of art. VII, that they are never obligated to do so---the European
Convention is unlikely to have intended to interfere with their freedom to determine on a case-by-case
basis whether enforcement is warranted under their own national standards. But cf. id. at 2696-97
(suggesting that under the New York Convention, courts should give preclusive effect to annulment
decisions in the arbitral seat where those decisions rely on one of the first four grounds under art. V(1),
rather than considering independently the grounds set forth there).
128
Cf. Paulsson, Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment, supra n.4 at p.
30 & fn. 66, who suggests that courts of a state of secondary jurisdiction (not of course his term of choice)
might well choose to accord a presumption of validity to annulments made on international grounds ---
or, quoting Professor Mayer, that to justify enforcement in the face of such an annulment, the proponent
might be required to demonstrate that the courts which had set aside the award had in doing so
committed something like a manifest error of judgment. This would strongly contrast with practice in
France, where any such presumptions are quite unknown, and where annulments of the seat are deemed
to be entirely irrelevant and of no significance whatever, see Roy Goode, The Role of the Lex Loci
Arbitri in International Commercial Arbitration, 17 Art. Intl 19, 27 (2001).
Page 43 of 118

difficulty in gauging just what can be truly intended by language like this: He is perhaps
more familiar than most with the techniques of disingenuous, tendentious
characterization---and has learned to put aside the childish belief that the terms of a
reasoned opinion give anything like a reliable indication into the thought processes of
the judge.
129
Other difficulties arise from the uncomfortable fact that----just like the
optical illusion in the Rubin Vase
130
---what strikes us at first glance as a perverse,
parochial ground for annulment might possibly, should we look aside and return with a
fresh eye, be visualized instead as a far more benign image, nesting comfortably within
the terms of the Convention. So for example:

Is it possible that annulment on the ground that any agreement to use the rules of
the ICC is forbidden by local law---this, for the arbitration community, is about as
lumpish and misguided a position as one can imagine
131
-----could be brought
within the rubric of art. V(1)(a)?
132

Is it possible that annulment on the ground that the witnesses had not been
made to swear to an oath in a prescribed form,
133
could be brought within the
rubric of art. V(1)(d)?
134
?

Is it possible that annulment on the ground of an error of law
135
---at least where
the parties had envisaged or provided for review on this basis---could be brought

129
The Columbian court in the TermoRio litigation carefully chose its rationale for setting aside the award,
rejecting several grounds before ultimately settling on the conclusion that the arbitration agreement was
illegal under Columbian law solely because it specified that the parties were to follow ICC rules. Cf.
Termorio S.A. v. Electrificadora Del Atlantico S.A., 421 F.Supp.2d 87, 102 (D.D.C. 2006), affd, 487 F.3d
928 (D.C.Cir. 2007)( if the Columbian court was [as claimant argued] reaching for any reason to nullify
the award, it is illogical that it would first reject in detail defendants' other arguments for nullifying the
award). Compare Alan Scott Rau, On Integrity in Private Judging, 14 Arb. Intl 115, 147-48 (an arbitrator
or judge obligated to make a reasoned award may be expected to deploy his rhetorical ability, ingenuity,
creativity and imagination in articulating the narrowest, the most plausible, or the most conventional
rationale for his decision---all in the interest of commanding the acquiescence of the disputing parties or a
reviewing court; under the very best of circumstances, the process of crafting reasoned awards will not
be congruent with the decision-making process); Alan Scott Rau & Catherine Pdamon, La
contractualisation de larbitrage: le modle amricain, [2001] Rev. arb. 451, 476-83.
130
Is this a vase, or two faces?
131
See n.29 supra.
132
The agreement is not valid . . . under the law of the country where the award was made. See 2 Born,
supra n.10 at 2686.
133
See Direction gnrale de l'aviation civile de l'Emirat de Dubai, supra n.29.
134
The arbitral procedure was not in accordance . . . with the law of the country where the arbitration
took place.
See also Ray Y. Chan, The Enforceability of Annulled Foreign Arbitral Awards in the United
States: A Critique of Chromalloy, 17 B.U. Intl L.J. 141, 200 (1999), who suggests that the decision of the
Egyptian courts in Chromalloy---annulling an award on the ground that the arbitrators had erroneously
applied the civil law of Egypt rather than its administrative law---might also have been rationalized on the
basis of art. V(1)(d). Cf. Chromalloy Aeroservices v. Arab Republic of Egypt, 939 F.Supp. 907 (D.D.C.
1996).
135
See Socit PT Putrabali Adyamulia, supra n.105.
Page 44 of 118

within art. V(1)(c)?
136
I have myself argued---futilely but gamely, and certainly at
excessive length--- that where the parties have effectively withheld from their
arbitrators the power to adjudicate contested legal issues with finality, then
expanded review for arbitral errors of law merges inevitably with the concept of
arbitral excess of powers.
137

In response to such obvious difficulties, the proponents of the European
Convention model naturally must hasten to reassure us: If we are indeed asked to
engage in the task of drawing distinctions based on the reasons for annulment, the
argument goes, it does not follow that we must stop at the words used by the
reviewing court; there should be no reward for the hypocritical recitation of mantras.
138

But if this is to be at all meaningful, it must entail ---not a futile inquiry into judicial
psychology---but a sustained look into the legitimacy of the annulment. At a minimum, I
suppose, this implies that a court of secondary jurisdiction must be satisfied,

that the grounds for annulment were well-grounded, or at the very least that they
were not pretextual, and had reasonable evidentiary support; and further,

that the asserted grounds for annulment corresponded to an acceptable
Convention ground for the refusal of recognition----which in turn necessarily
requires further inquiry, to ascertain

136
The award deals with a difference not contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on matters beyond the scope of the submission to
arbitration. Admittedly the point would be somewhat easier to see if we were to invoke instead the
language of 10(a)(4) of the FAA---the arbitrators exceeded their powers---although 10(a)(4), and art.
V(1)(c) of the Convention, are usually taken to be congruent and concerned with essentially identical
problems of arbitral overreaching. See, e.g., Edstrom Industries, Inc. v. Companion Life Ins. Co., 516
F.3d 546 (7
th
Cir. 2008)(Posner, J.) (arbitration clause told the arbitrator to apply Wisconsin law strictly,
which limited the extent to which the arbitrator could indulge his fancy; here it is unrealistic to think that
the arbitrator was even trying to interpret Wisconsin law; award vacated, presumably for excess of
power).
The British mechanism of expanded review treated as anathema in Putrabali does in fact largely
consist of default rules made subject to the drafting choices of the contracting parties; see the discussion
in Rau, Fear of Freedom, supra n.30 at 490-91 fn.62.
137
See Alan Scott Rau, Contracting Out of the Arbitration Act, 8 Amer. Rev. Intl Arb. 225 (1997); Alan
Scott Rau, Arbitrability and Judicial Review: A Brief Rejoinder, 1 J. Amer. Arb. 159 (2002); Rau, Fear of
Freedom, supra n.30.
Annulments on other grounds can also sometimes be shoehorned into art. V(1)(c). In Radenska
v. Kajo, supra n. 125, the Court of Appeal of Graz had refused to enforce an award that had been
annulled in Slovenia on the ground that it was contrary to public policy: The court reasoned that since
violations of public policy were contained in---were a component of---the non-recognition provisions of
art. V(1)(c), the Slovenian annulment was thus for a permitted reason under the European Convention
and should be recognized. The Austrian Supreme Court reversed, asserting that public policy violations
had nothing to do with the submission or with the arbitration agreement.
138
Paulsson, Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment, supra n.4 at p.30.
Page 45 of 118

that there has been no category error, that the Convention is being invoked
properly: So assume an annulment has resulted from a states refusal to
countenance ad hoc arbitrations or arbitrations conducted under ICC rules: A
court in a state of secondary jurisdiction may be convinced that however
formulated or framed by its counterpart at the seat, the setting aside fails to
truly fall within what it deems to be the best interpretation of art. V---not being
based on the requisite modern, enlightened consensus, the internationally
accepted grounds for the refusal of recognition.
139

In conclusion, then: It is not evident that were we to go down this path, we would
be able to stop meaningfully short of the de novo inquiry familiar to French
jurisprudence. In any event, if our primary driving interest is (as it must be) the
avoidance of ridicule, it is clear that the modified version of the French model found in
the European Convention provides few assurances that the shambles made possible by
cases like Putrabali can be avoided.
140

139
A court subject to the European Convention---if it is convinced that this annulment was not for any of
the consecrated reasons (as properly understood) found in arts. V(1)(a)-(d) of the New York
Convention---will simply ignore the annulment and presumably proceed to enforce the award. Respecting
art. IX of the European Convention is as far as it needs to go: It need not of course go on to inquire
whether the annulment (based, say, on the illicit nature of an ICC arbitration) was a blatant violation of the
substantive obligations of the state of primary jurisdiction under art. II of the New York Convention, or
whether recognizing the annulment would be contrary to the public policy of the enforcing state.
Still, I suspect that all these positions are largely interchangeable, and as they swim in the same
jurisprudential current, they are likely to be shared in the same quarters. See the discussion in n.22
supra. See also 2 Born, supra n.10 at 2686-87 (Columbian decision annulling award because it provided
for ICC arbitration rather than for arbitration under Colombian procedural rules flagrantly violated
Columbias obligation to recognize arbitration agreements under art. II and therefore reliance on this
decision on the part of a court in a state of secondary jurisdiction would be gravely mistaken and in
fact itself a likely violation of the Conventions obligations), 2692-93 (indisputably illegitimate, so that it
cannot have been the intention of the Convention that the Columbian judgment would deprive the award
of its binding force); Sylvain Bolle, Note [to Yukos Capital SARL v. OAO Rosneft, Amsterdam Court of
Appeal, April 28, 2009], [2009] Rev. Arb. 561, 569 (an annulment such as that in TermoRio, based on a
ground simply lacking any genuine or substantial [srieux] character, should be denied recognition as
contrary to public policy); Linda Silberman, The New York Convention After Fifty Years: Some
Reflections on the Role of National Law, 38 Ga. J. Intl & Comp. L. 25, 34-35 (2009)(such a foreign
judgment annulling an arbitration award on this parochial ground is inconsistent with international
arbitration principles and accordingly would be repugnant to the public policy of the United States);
Stephen T. Ostrowski & Yuval Shany, Chromalloy: United States Law and International Arbitration at the
Crossroads, 73 N.Y.U.L. Rev. 1650, 1691 (1998)(an intrusive de novo review of the award at the seat
could well be considered offensive to both international and American public policy regarding arbitration,
given its failure to respect party autonomy).
140
At least until this position has been widely adopted by most relevant states---so that a country with the
practice of setting aside awards on idiosyncratic or unacceptable grounds is effectively quarantined. See
Pierre Mayer, Revisiting Hilmarton and Chromalloy, in International Arbitration and National Courts: The
Never Ending Story 165, 175 (ICCA Congress ser. No. 10, 2001); see also Hamid G. Gharavi, The
International Effectiveness of the Annulment of an Arbitral Award 127 (2002)(disorder possibilities).
Precisely the same thing can be said, in spades, of the proposal in Ostrowski & Shany, supra
n.139 at 1687: In what almost reads like a parody of the end-product of three years of American case-law
Page 46 of 118

Closer to the opposite American pole
141
is a further alternative. This would merely
interpose one small preliminary step: An absolutist position of uniform non-recognition
of annulled awards is qualified by the need to take a somewhat closer look at the
judgment that annulled it.

One might begin with the well-known Chromalloy case, in which an American
court surprisingly undertook to enforce an award that had been set aside in Egypt.
142

Now something of a relic, distinguished out of existence in the best traditions and true
spirit of the common law, the defects in craftsmanship in the Chromalloy opinion are
familiar and justifiably derided.
143

Perhaps the centerpiece of the Chromalloy decision is its insistence that art.
V(1)(e) is no barrier to the enforcement of the annulled award since under art. VII a

training, the authors churn out an impenetrable and complex balancing test requiring that the court in a
state of secondary jurisdiction weigh:
(1) the specific grounds advanced for the award's infirmity; (2) the intentions of the parties in
making the agreement regarding the finality of arbitration and the extent of judicial review; (3) the
enforcement policies of the forum where recognition is sought and the strong proenforcement
policies of the international system as a whole; (4) the need for uniformity in the application of the
Convention; and (5) the general presumption in favor of the recognition of foreign judgments.
141
See text accompanying n.84 supra.
142
Chromalloy Aeroservices, supra n.134.
143
The agreement in Chromalloy provided that the award shall be final and binding and cannot be made
subject to any appeal or other recourse. For the court, this represented a commitment to the proposition
that the arbitration ends with the decision of the arbitral panel, so that Egypts attempt to set the award
aside amounted to a repudia[tion of] its solemn promise to abide by the results of the arbitration.
Chromalloy Aeroservices, supra n.134 at 912. But of course, contractual provisions like this are routine
and commonplace and are never thought to have the effect of waiving the right to seek annulment---and
in any event could only do so to the extent the arbitration law of the seat permitted such an unlikely result
(even Switzerland or Belgium would not permit this where, as in Chromalloy, one of the parties was a
local national). See inter multa alia Silicon Power v. General Elec. Zenith Controls, Inc., 661 F.Supp.2d
524, 538 (E.D. Pa. 2009)(contractual language to the effect that an award is final and non-appealable
generally does not prohibit review of the arbitrators conduct pursuant to 10(a), but only bars the
disgruntled party from appealing the merits of the arbitration award); Barsness v. Scott, 126 S.W.3d 232
(Tex.App. 2003)(contractual language to the effect that an award shall be final and conclusive . . . and no
appeal thereof shall be made by the parties does not preclude judicial review on the grounds specified
in the states arbitration statute); see also Richard W. Hulbert, Further Observations on Chromalloy: A
Contract Misconstrued, a Law Misapplied, and an Opportunity Foregone, 13 ICSID Rev.-Foreign Inv. L.J.
124, 128-30 (1998).
Still, inevitably relying on this factor to render Chromalloy irrelevant, see TermoRio S.A., supra
n.22 at 937 (the present case is plainly distinguishable from Chromalloy where an express contract
provision was violated by pursuing an appeal to vacate the award. Here, Electranta preserved its
objection that the panel was not proper or authorized by law, promptly raised it in the Colombian courts,
and received a definitive ruling by the highest court on this question of law); Baker Marine (Nig.) Ltd.,
supra n.84 at 197 fn.3 (this case is unlike Chromalloy because here, the claimant/prevailing party is not
a United States citizen, and in addition, the respondent did not violate any promise in appealing the
arbitration award within Nigeria).
Page 47 of 118

court must nevertheless entertain the prevailing partys request.
144
And what is the
effect of art. VII? Apparently, it is that the court must consider the rights that the
prevailing party would have in the absence of the Convention---as if the Convention
did not exist.
145
So the court proceeded to treat the Egyptian award precisely as if it
were an American award---and found that enforcement was mandated under FAA 9
and 10.
146

But such an approach is sadly mistaken on any number of levels: Art. VII does
not require a thought experiment that somehow presupposes the non-existence of the
Convention: It says instead that no party shall be deprive[d] of any right to avail
himself of an award in the manner and to the extent allowed by the law of the state of
secondary jurisdiction. This means simply that the arbitration law of any such
jurisdiction may go further than the Convention requires in enforcing awards otherwise
subject to the Convention---and in doing so may render the Convention limits on
recognition irrelevant: That is precisely the effect of art. 1502 of the French decree, and
why the Egyptian award in Chromalloy was enforced there.
147
Art. VII, in other words,
requires us to identify a right of the prevailing party to enforce the Egyptian award under
some provision of American domestic law more favorable than the rights provided by
the Convention itself.

Whether such more favorable right exists in American law is most doubtful.
The immediate problem is that foreign awards are already the subject of chapter 2 of
the FAA---which is American domestic law for these purposes. 201 tells us that the
Convention shall be enforced in United States courts in accordance with this chapter,
202 tells us that an arbitral award that is not entirely domestic falls under the
Convention, and 207 tell us that awards falling under the Convention must be
confirmed unless a court finds one of the grounds for refusal or deferral of recognition
or enforcement . . .specified in the Convention. Now the Convention of course
includes art. V(1)(e)---so by reference, art. V(1)(e) as a ground for non-enforcement is
part of the domestic law of the United States (as it is not part of the law of France)
governing Convention awards.
148

The only backdoor to a most favorable domestic right must be provided by 208,
which envisages that Chapter One---presumably including 9---applies to motions for
confirmation brought under the Convention to the extent that that chapter is not in

144
Chromalloy Aeroservices, supra n.134 at 914 (italics in original).
145
Id. at 910.
146
Actually, 9 (as opposed to 10) was not mentioned, but that must have been what was intended.
147
See Rpublique arabe dEgypte v. Soc. Chromalloy Aero Services, [1997] Rev. Arb. 395 (Cour dappel
de Paris, January 14, 1997)(note Fouchard).
148
Similar is the domestic legislation of Switzerland, which simply provides that the recognition and
enforcement of foreign arbitral awards is governed by the Convention, Switz. Private International Law
Act art. 194; see Martin Bernet & Anna K. Mller, Recognition and Enforcement of Foreign Arbitral
Awards, in Kaufmann-Kohler & Stucki (eds.), supra n.21 at 167, 178 (2004).
Page 48 of 118

conflict with [Chapter Two] or the Convention itself.
149
Whether such a disqualifying
conflict with the Convention is in fact present is critical, but indeterminate: The
affirmative argument is sometimes built upon the requirement of 9 (absent from the
Convention) that the parties agreement contain an entry of judgment clause.
150
Or
upon the fact that under 9 a motion to confirm is to be made to the United States
court in and for the district within such award was made---by definition impossible in the
case of a foreign award.
151
Or upon the assertion that the grounds for challenging
awards contained respectively in 10 and in art. V are substantively different.
152
But
leaving all that aside, the overriding and obvious problem is that the notion of an

149
The discussion that follows assumes that an action to enforce a foreign Convention award is
necessarily brought under Chapter Two, even though the claimant may be seeking to avail himself of
the more favorable confirmation and review provisions of Chapter One. In light of the preceding
paragraph I think this is correct, although of course the opinion in Chromalloy proceeds on the opposite
premise.
150
If the parties in their agreement have agreed that a judgment of the court shall be entered upon the
award made pursuant to the arbitration . . . See, e.g., Hulbert, supra n.143 at 134.
Such a clause is not likely to be found in any agreement contemplating arbitration outside the
United States, nor should one be necessary in such circumstances. See Polimaster Ltd. v. Rae Systems,
Inc., 2009 WL 196169 (N.D. Cal.)(since 207 preempts 9, there is no consent requirement).
However, there is an increasing tendency to hold in any event that the text of 9 should not be read
literally---and so the "consent to confirmation" requirement of 9 has been found satisfied, for example,
by a simple agreement that all disputes "shall be finally settled by arbitration" or that the award shall be
final and binding, provisions routinely found in any body of institutional rules. See, e.g., Daihatsu Motor
Co., Ltd. v. Terrain Vehicles, Inc., 13 F.3d 196 (7th Cir.1993) (the "language in the arbitration clause and
the parties' conduct, when assessed in its totality, make clear that the parties contemplated judicial
confirmation of an arbitral award); Booth v. Hume Publishing, Inc., 902 F.2d 925 (11th Cir.1990).
151
See Hulbert, supra n.143 at 134-36; Chan, supra n.134 at 160; Ostrowski & Shany supra n.139 at
1675-76; cf. Gary Sampliner, Enforcement of Nullified Foreign Arbitral Awards: Chromalloy Revisited, 14
J. Intl Arb. 141, 152-53 (1997).
This argument seems considerably less plausible these days in light of the Supreme Courts
decision in Cortez Byrd Chips, supra nn.20 & 32, to the effect that the venue provisions of 9 and 10
are now to be understood as "permissive" and not mandatory.
152
Cf. Hulbert, supra n.143 at 138 (if different confirmation standards are to be imported from the [FAA]
that would sustain an award that [the Convention] would not permit to be confirmed, that would raise the
clear conflict that 208 prohibits); Chan, supra n.134 at 158 (grounds for annulling local awards are
not necessarily the same in substance from grounds for refusing to enforce foreign awards); Ostrowski &
Shany supra n.139 at 1678 ([it is difficult to maintain] that the domestic grounds for vacatur listed in 10
do not conflict with the clear language of 207, which establishes Article V as the exclusive source of
grounds for non-recognition and enforcement); Restatement, supra n.25 at 5-3 cmt. d (Significantly,
the grounds for vacatur of an award under FAA Chapter One differ from the grounds for denying
recognition or enforcement of a foreign Convention award under [Chapter Two].).
Section 9 mandates that an award must be confirmed unless [it] is vacated under 10. There is
of course no question of actually setting aside a foreign award, but it should be easy enough if necessary
to refer to the 10 grounds by analogy (as in the case of non-Convention awards), as grounds for the
refusal of recognition or enforcement. See text accompanying n.33 supra. I very much doubt that any
real differences in substance (as opposed to differences in verbal formulations) can be identified here.
See Rau, The New York Convention in American Courts, supra n.22 at 236-39 (I think as a practical
matter that it is highly unlikely---to put it mildly---that actual results in concrete cases will tend to diverge
significantly depending on whether an award is scrutinized under Article V of the Convention or under
10 of the FAA).
Page 49 of 118

absolute duty (under 9) to confirm an award in the absence of specified defenses---
pointedly not including local annulment---must be at odds with the power of a court
(under art. V(1)(e)) to withhold enforcement. The counter-move is of course to the
effect that art. VII, too, is just as much a part of the Convention as art. V---that art. VII is
also made a part of U.S. law under Chapter Two
153
---and that in fact, enforcement
where domestic law does not make local annulment a ground for refusal, is the most
straightforward and uncontroversial application of art. VII.
154

Here we may feel that we are caught up in a perpetual, self-referential loop,
ending only in madness, and where any exit is difficult to discern. Ultimately, though, all
this remains a matter of statutory interpretation. It is evident that one consequence of
choosing to apply Chapter One to all Convention awards is that it would allow a party to
obviate the supervisory function of the courts in a foreign seat, as contemplated by the
Convention---thereby undermin[ing] the distinction between states of primary
jurisdiction and states of secondary jurisdiction which is such an essential feature of
the legal framework underlying the Convention.
155
This is a truism---but it does not at
all follow that this supervisory function of the courts of the seat must be in any way a
permanent or necessary feature of the Convention structure: States of secondary
jurisdiction may after all arrogate this function to themselves---they may, that is, simply
legislate the seat into irrelevance. However one feels about the French statute, it is at
least a gratifying model of clarity in this respect. The problem is that the route to the
same destination in American law is, by contrast, as an exercise in construction, far too
oblique to be at all convincing.

One might be tempted to think that the floundering one identifies in Chromalloy---
the desperate overreaching, and the consequent embarrassment the case presents as
a precedent----all demonstrated an uneasy consciousness at the same time of having
something important to say, and not being able to say it. Is it likely that the Chromalloy
opinion was at least in part a way of responding to suspicions with respect to the
behavior of the Egyptian courts in overturning an arbitral award rendered against the
Egyptian Government?
156

153
See Sampliner, supra n.150 at 152 (accordingly, enforcement of a foreign arbitral award under U.S.
domestic law cannot, by definition, conflict with Chapter Two); Ostrowski & Shany supra n.139 at 1678
(since art. VII permits reliance on more favorable domestic norms, such norms would arguably qualify as
nonconflicting Chapter One provisions).
154
Petrochilos, supra n.71 at 874.
155
Restatement, n.25 supra at 5-3 cmt. d. & Reporters Notes, Note d.
156
The attorney for Chromalloy has written that while his client could present no smoking gun to
demonstrate conclusively that the Egyptian court, or the countrys entire judiciary, was biased or corrupt,
it was able to show that Egyptian courts have had a disturbing propensity to nullify awards in favor of
foreign parties against Egyptians or its government for seemingly arbitrary reasons. (The Cairo court
referred at one point to the irreparable serious harm that the award would supposedly inflict on Egypt.).
See Gary H. Sampliner, Enforcement of Foreign Arbitral Awards After Annulment in Their Country of
Origin, 11 (9) Mealey's Int'l Arb. Rep., Sept. 1996 at 22, 28. See also 2 Born, supra n.10 at 2684 (the
Chromalloy court did not expressly address or rely on the central---if uncomfortable---fact that the
Page 50 of 118

For even if it takes the position that an award set aside at the seat is
presumptively unenforceable, a court in a state of secondary jurisdiction may readily
enforce it nevertheless if it is convinced that the annulment was somehow fatally
flawed or other than authentic.
157
In such circumstances, the court may conclude that
no true setting-aside has taken place at all---at least, none that it has any need to pay
attention to---with the implication that art. V(1)(e) has simply never been triggered.

Perhaps the circumstances surrounding the setting-aside process at the seat
were troubling---where the losing party was, say, denied the opportunity to present its
case, or where the annulment appears to be the product of political pressure or where
there is substantial doubt about the integrity of the rendering court with respect to the
judgment in question.
158
Even more conclusive, apparently, would be a conviction of
systemic failure---that the judicial system of the seat does not provide impartial
tribunals or procedures compatible with due process of law.
159
A court choosing to
enforce an award despite a local annulment could do so, then,

by referring to its general standards that are thought to justify a refusal of
recognition or enforcement of any foreign judgment,
160

by concluding that the foreign annulment is contrary to its public policy,
161

Egyptian courts annulment decision was in favor of a local Egyptian government entity and against a
foreign investor).
157
Termorio S.A., supra n.22 at 941.
158
See Restatement, supra n.25 at 5-12, Reporters Notes, Note d. See also Restatement of the Law
Third, Foreign Relations Law of the United States 482(2)(U.S. court need not recognize a foreign court
judgment if the defendant did not receive notice of the proceedings in sufficient time to enable him to
defend, or if the judgment was obtained by fraud); Uniform Foreign-Country Money Judgments
Recognition Act (2005) 4 (c) (a court need not recognize a foreign court judgment if it was rendered in
circumstances that raise substantial doubt about the integrity of the rendering court, or where the
specific proceeding . . .. was not compatible with the requirements of due process of law).
159
See Restatement of the Law Third, Foreign Relations Law of the United States 482((1)(U.S. court
may not in these circumstances recognize a foreign court judgment), cmt. b. (a court must satisfy itself
of the essential fairness of the judicial system under which the judgment was rendered); see also
Uniform Foreign-Country Money Judgments Recognition Act (2005) 4(b)(same).
160
See nn. 158-59 supra; see also Park, Duty and Discretion in International Arbitration, in Park, supra
n.41 at 199 (the soundest policy toward annulment orders is to treat them like other foreign money
judgments, according them deference unless procedurally unfair or contrary to fundamental notions of
justice).
161
See Termorio S.A., supra n.22 at 939 (there is a narrow public policy gloss on Article V(1)(e), so that
a foreign judgment is unenforceable as against public policy to the extent that it is repugnant to
fundamental notions of what is decent and just in the United States); cf. Paulsson, supra n. 83 at p. 6
(who would seriously argue that an award set aside in country X because it was rendered by a female or
irreligious arbitrator should be rejected by the courts of country Y, making the judges of the latter complicit
in a violation of international public policy?).
But note: An annulment at the seat in accordance with a neutral local law---but that nevertheless
seems to us intrusive, or parochial, or idiosyncratic, in the mere sense that it sweeps more broadly
Page 51 of 118

or even by relying on a flawed annulment as the critical factor guiding the
exercise of the discretion conferred on the court by art. V(1)(e). In practice this
exceptional and tightly circumscribed faculty not to take account of a local
annulment will be far superior to any prophylactic rule that overrides the
contractual choice of a seat largely on the basis of the unprovable premise that
the courts there are likely to be unreliable.
162

Recognizing an annulled award only after a critical assessment of the judgment
setting it aside, is not unprecedented.
163
That this will be rarissime does not detract

than arts. V(1)(a)-(d) of the Convention---cannot in itself be ignored on the ground that it is contrary to the
strong American public policy in favor of arbitration. Cf. Chromalloy Aeroservices, supra n.134 at 913
(the U.S. public policy in favor of final and binding arbitration of commercial disputes is unmistakable,
and in consequence to recognize the decision of the Egyptian court, annulling an award for mistake of
law, would violate this clear U.S. public policy); see generally the discussion in nn. 22,139 supra. For
this would simply return us to, and mimic, the solution of the European Convention. The supposed
international policy in favor of the enforcement of arbitral awards would invariably trump---would
effectively swallow---the non-recognition presumptively mandated by art. V(1)(e); see Termorio S.A.,
supra n.22 at 937; Paulsson, supra n.98, at text accompanying fn. 34 (noting, with approval, that under
Chromalloy, art. V(1)(e) is simply neutralized).
162
See text accompanying n.116 supra.
Cf. Rau, Comment: Mandatory Law and the Enforceability of Arbitration Agreements, supra n.126
at 136-37, discussing the prudential or pragmatic considerations that drive the choice between adopting
a prophylactic rule of blanket inarbitrability, and trying to give content to a focused, post hoc standard,
inquiring into whether the goals of regulatory legislation have in fact been thwarted. This familiar
dichotomy between two models of legal regulation recurs here as well: And obviously our choice will be
driven by what our education has led us to believe about the values of particularistic decision making, and
about the striving of the common law, in Lord Mansfields words, over time ultimately to work its way
pure. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 377 (1978). So
naturally I find rather curious the argument that the discretion envisaged by art. V(1)(e) could not
possibly refer to a choice given to the enforcing judge---for after all, that would necessarily subject us to
his momentary whim, with all the attendant risks of arbitrariness---but that it must refer instead only to
the permissible discretion of the legislature in choosing to enact rules, such as the French art. 1502,
governing the enforcement of foreign judgments: See Bolle, supra n.139 at 566-67.
163
See, e.g., Yukos Capital SARL v. OAO Rosneft, [2009] Rev. Arb. 557 (Amsterdam Court of Appeal,
April 28, 2009). The former shareholders of a bankrupted Russian oil company recovered an award
against a successor company, now closely linked to and owned by the Russian state, and whose
directors were politically appointed. The Russian courts annulled the award---but the Amsterdam court
concluded that the Russian judicial system, at least in relation to the politically sensitive struggle over
the control and ownership of the Yukos group, is not impartial and independent, but is directed by the
interests of the Russian state and receives its orders from the Russian executive; It followed that the
setting aside of the award should be ignored, and the original award enforced.
While there was no direct proof of bias on the part of any of the individual judges responsible for
the annulment, this could not in the nature of things be expected---such things can only happen behind
the scenes. The court relied instead on an abundant literature, including reports and resolutions of the
Council of Europe, reports of NGOs (notably the Corruption Perception Index published by
Transparency International), and accounts in the international press. Cf. Restatement of the Law Third,
Foreign Relations Law of the United States 482 cmt. b. (the recognizing court may make this
determination without formal proof or argument, on the basis of general knowledge and judicial notice).
Page 52 of 118

from its value as an available safeguard for deployment in the event of occasional
abuse. That it can be a sensitive matter, unneighborly and uncollegial, to evaluate the
quality of justice rendered by a fellow jurist---and to find it totally lacking in integrity---is
clear
164
---but this may be inevitable in all cases where national courts try to function in
a heterogeneous world lacking shared traditions of judicial independence.
165
In this
connection Professor Smit makes the interesting suggestion that all annulments should
presumptively be disregarded in cases where the setting aside has taken place in the
home court of one of the parties, and at his request.
166
Disregarding such annulments,
and only such annulments, is an obvious surrogate for the job of explicitly passing
judgment on a foreign court: As such it is strikingly overinclusive---but as a carve out
of cases that we think likely to be particularly problematical, it comes with all the virtues
of a bright, apparently neutral, line, one that makes a rough pass at a problem without
the need for delicate factual inquiry.

The same moves are often made outside the context of what is award recognition in the
technical sense: For example, investment arbitration tribunals have imposed liability on states that have
equally demonstrated a striking failure to internalize the notions of the rule of law and the independence
of the judiciary, all while nevertheless demanding to participate in the international market regime. So
where the courts of the seat have set aside an international award without justification and in a grossly
unfair fashion, this may be deemed an abuse [of their ] supervisory juridiction over the arbitration
process and so tantamount to expropriation under a BIT to which the state is a party. See, e.g.,
Saipem, S.p.a. v. The Peoples Republic of Bangladesh, ICSID Case No. ARB/05/7, Final Award 155,
159 (2009). Note that in cases like this enforcement of the initial award is in any event not a live issue
where the respondent simply lacked assets that could be levied on abroad. But liability under a BIT is a
reasonable surrogate; cf. id., Decision on Jurisdiction and Recommendation on Provisional Measures,
155 (The fact that the indemnity claimed in this arbitration matches the award awarded in the ICC
arbitration at least to some extent, does not mean in and of itself that this Tribunal would enforce the ICC
Award in the event of a treaty breach); Final Award 202 (the Tribunal considers that in the present
case the amount awarded by the ICC Award constitutes the best evaluation of the compensation due).
And outside the context of arbitration entirely, see Osorio v. Dole Food Co., 665 F.Supp.2d 1307
(S.D. Fla. 2009)(Nicaraguan judgment, in favor of workers on banana planations who had allegedly been
exposed to pesticides, was refused recognition on the ground that the judgment was rendered under a
system which does not provide impartial tribunals; the unanimous view among U.S. government
organizations and officials, . . . foreign governments, international organizations, and credible Nicaraguan
authorities, is that the judicial branch in Nicaragua is dominated by political forces and, in general, does
not dispense impartial justice).
164
See Paulsson, Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment, supra n.4 at
28 (it is wise to eschew invidious comparisons). Cf. Mobil Cerro Negro Ltd. v. Petroleos de Venezuela
SA, [2008] 1 Lloyds L. Rep. 684 46 (QBD (Comm.))(application for worldwide freezing order in aid of
New York arbitration; Mobils submissions made reference to reports that the judiciary in Venezuela is
influenced by the executive, but unless there is very strong evidence to the contrary this court does not
proceed on the basis that courts of other foreign friendly countries do not behave properly).
165
Park, Duty and Discretion in International Arbitration, in Park, supra n.41 at 200.
166
See Hans Smit, Annulment and Enforcement of International Arbitral Awards: A Practical Perspective,
18 Amer. Rev. Intl Arb. 297, 304 (2007)(would provide an appropriate disincentive for the home court to
seek improperly to utilize the power of annulment). An even narrower, alternative classification is
suggested by the facts of cases like Chromalloy and TermoRio, where the state of primary jurisdiction
was at the same time directly implicated in the arbitration (either directly as a party or through a wholly-
owned state entity), and also responsible for the setting aside of the award against it.
Page 53 of 118

Under any view of current law, a U.S. court would have no reason that I can see
to decline to honor a pre-dispute waiver of the defense of art. V(1)(e)---in the unlikely
event that a party is willing to make one:
167
Perhaps, in exchange for agreeing to
arbitrate in Egypt, an American party will have extracted the promise that should an
award be vacated by local courts on any grounds other than those conventional and
intentionally accepted, the award could still be enforced in states of secondary
jurisdiction. This form of explicit contracting in to Chromalloy could hardly be
problematical; given the discretion conferred by art. V on courts of states of secondary
jurisdiction, a stipulation in favor of enforcement should not be deemed an
impermissible contraction of the grounds of review.
168

A common chess move in the French literature is to protest that in states refusing
to recognize annulled awards, the vaunted value of finality is in fact finality in one
direction only---that there is an unacceptable and illogical lack of symmetry with
respect to the respective treatment of foreign annulments (treated as definitive) and
foreign confirmations (which are not).
169
Once again the Cartesian logic is not
compelling:

167
See Christopher R. Drahozal, Enforcing Vacated International Arbitration Awards: An Economic
Approach, 11 Amer. Rev. Intl Arb. 451, 478 (2000)(it should suffice for the parties to say, that the
arbitral award may be enforced even if set aside by a competent authority in the country in which the
award was made). See also Food Services of America Inc. v. Pan Pacific Specialties, 32 B.C.L.R. 3d
225 (B.C. Sup. Ct. 1997)(in the agreement to arbitrate, both parties hereby expressly waive any
entitlement they have or may have to rely upon the provisions of [the British Columbia statute equivalent
to art. 36 of the UNCITRAL Model Law] . . . to seek to avoid recognition or enforcement of an arbitration
award made pursuant to this Agreement).
168
But cf. Restatement, supra n.25 at 5-16 cmt. a (contracting parties may not agree before, during, or
after the arbitral proceedings to refrain from opposing recognition or enforcement of an international
arbitral award, or to otherwise relinquish the right to oppose recognition or enforcement of the award).
Even more clearly, I should think, such an agreement should not be held to contravene the
holding of Hall Street---or at least any attempts to extend the reach of that benighted decision should be
stoutly resisted. An advance waiver of the right to oppose enforcement on Convention grounds is far
indeed from the ejusdem generis nonsense on which Hall Street seems to rest---far indeed from the plain
meaning trope to the effect that since the FAA 10 grounds are the exclusive grounds for review,
courts cannot be forced to honor any expansion of these grounds imposed by contract. But for doubts
to the contrary, see 2 Born, supra n.10 at 2736 fn. 162.
If I am wrong in these conclusions as to the state of the positive law---or more broadly, if the
parties are for any other reason unwilling to submit to the law of Egypt as the state of primary jurisdiction--
-that is, if they do not want to subject themselves to [Egypts] standards for vacating awards---nothing of
course would prevent them from simply designating by contract any other seat for the arbitration, while
at the same time retaining fully all the convenience, facilities, and hedonistic attractions of being in
Cairo. See text accompanying n.44 supra; cf. Drahozal, supra n.167 at 470.
169
E.g., Fouchard, La porte internationale de lannulation de la sentence arbitrale dans son pays
dorigine, supra n.41 at 451-52; Gaillard, supra n.7 at 99-200 & fn. 367 (there is no justification for
treating any differently a foreign decision setting aside an award, and a foreign decision refusing to set
aside the same award); Clay, supra n.8 at 1248 (a foreign judgment should have the same fate without
regard to whether it validates or invalidates an award); Socit PT Putrabali Adyamulia, supra n.35 at
511 (report of President Jean-Pierre Ancel); Paulsson, Note, supra n.4 at 561 (American courts must
entertain a very curious notion of international arbitration if they think that the finality of finalities is to
respect national judgments that set aside awards but not judgments that approve them); Paulsson,
Page 54 of 118

It is one thing to make a prudential decision to presumptively defer to foreign
annulments simply in the interest of avoiding the muddle of Putrabali: But by
contrast, surely, a very different calculus is suggested when a state is asked to
deploy its public force, at the behest of a foreign arbitrator, to seize assets within
its own territory---surely only in the latter situation is there a risk of the abdication
of sovereignty
170
that may justify a second look to ensure that local
enforcement is warranted. At a bare minimum art. V(2) is congruent with
ordinary recognition-of-judgment principles in exempting a court of a state of
secondary jurisdiction from having to give effect to any award---whether
confirmed at the seat or not---which might be thought to violate its most basic
notions of morality and justice.
171

Nor is symmetry, if thought desirable, necessarily attainable only under the
French model---it can, after all, work both ways: At least in the United States we
can certainly identify a clear tendency to treat confirmations by the courts of the
seat as recognizable and enforceable foreign judgments---thus creating a
parallel entitlement for the prevailing party, without the need for any
Conventional reexamination of the award itself.
172
The American solution may

Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment, supra n.4 at 27 (the issue of
asymmetry).
170
See Mayer, supra n.140 at 172.
171
Parsons & Whittemore Overseas Co., Inc. v. Socit Gnrale de lIndustrie du Papier (Rakta), 508
F.2d 969, 974 (2
nd
Cir. 1974)(public policy defense under art. V of the Convention).
172
[A] party may often avoid relying on the Convention by applying in the rendering jurisdiction for an
order confirming the award, which converts the award into a judgment which may be enforced abroad
under the appropriate procedures for enforcement of foreign judgments. Oriental Commercial Shipping
Co. (U.K.), Ltd. v. Rosseel, N.V., 769 F.Supp. 514, 516 fn.3 (S.D.N.Y. 1991). See Restatement, supra
n.25 at 5-3(e)(if an award has been confirmed and recognized by a foreign court at the arbitral seat,
the prevailing party may seek to have it recognized or enforced either as an award . . . or as a foreign
judgment, under the standards applicable to the recognition or enforcement of foreign judgments of the
forum).
Greater elaboration of the law of foreign-judgment recognition may eventually turn art.V of the
Convention into a series of default rules applicable only in the absence of local proceedings. See, e.g.,
Ocean Warehousing BV v. Baron Metals and Alloys, Inc., 157 F.Supp.2d 245 (S.D.N.Y 2001). Here a
Dutch arbitral award was confirmed as a Dutch judgment, which under Dutch law is final, conclusive, and
enforceable in the Netherlands. The plaintiff sought an order of attachment, which under New York law
required a demonstration of a likelihood of success on the merits---which in turn required a showing that
the cause of action was based on a judgment which qualifies for recognition under state law. The
respondents argued that had they appeared in the Dutch confirmation proceeding, Dutch courts would
have refused to entertain their defense that the arbitration agreement was not an agreement in writing
as required by the Convention---but this was held to be irrelevant: The Convention defenses simply do
not apply to [a proceeding under New Yorks Uniform Foreign Country Money-Judgments Recognition
Act] seeking recognition and enforcement of a foreign judgment. And indeed, since it was possible for
the Dutch judgment to be converted directly into a U.S. judgment, there is some doubt that the Court will
ever reach the merits of defendants Convention defenses. 157 F.Supp.2d at 250 fn.8. See also Island
Territory of Curacao v. Solitron Devices, 489 F.2d 1313 (2
nd
Cir. 1973)(the prevailing party obtained a
writ of execution in Curacao on the basis of the award, which was declared enforceable in the court of
Page 55 of 118

not, however, be widely shared,
173
and for an American court even to venture
down this path may require a delicate exercise of taxonomy with respect to
foreign judicial decisions.
174

First Instance, and the losing party did not take advantage of its ability to move to have the award set
aside; we conclude that the judgment of Curacao was enforceable under [New York law, and in] so
holding we need not determine the correctness of the alternative ground advanced by the district court
that the arbitration award was independently enforceable under the Convention). See generally, Note:
Recognition by Circumvention: Enforcing Foreign Arbitral Awards as Judgments under the Parallel
Entitlements Approach, in 92 CORNELL L. REV. 573, 589 (2007)(by permitting parties to enforce
awards via foreign confirmation judgments while ignoring defendants assertions of Article V defenses,
courts enforce awards without first considering a potentially problematic arbitration process).
173
See Sylvain Bolle, Les methods du droit international priv lpreuve des sentences arbitrales 260
(2004)(the notion that a judgment confirming an award is capable of being recognized in other countries
seems nowadays to elicit an immediate and virtually unexamined rejection).
See also Markus Burianski, German Federal Court of Justice No Longer Permits the Recognition
and Enforcement of Foreign Judgments Entered Upon Arbitral Awards, 24 (10) Mealeys Intl Arb. Rep.
(Oct. 2009) at p.1: In a recent German decision the court, overturn[ing] its previous line of jurisprudence,
held that a California judgment confirming a California award could not itself be recognized and enforced
in Germany---since the creditors options are limited to enforcing the arbitral award itself, on the basis of
the [Convention]. Part of the rationale was that if the result were otherwise---that is, to the extent
enforcement of the judgment were permitted---signatory states could escape the New York
Convention . . . unless the requirements of Article 5 of the Convention were analyzed as part of public
policy: This is striking: The clear, if heretical, implication is that a proven defense under art. V would
necessarily and invariably and in a mandatory fashion prohibit recognition of any award. Cf. the
discussion at supra n.80, and Oil & Natural Gas Commn, supra n.72.
174
Presumably there should be no recognition of a judgment of enforcement emanating from a third
country, i.e., a state other than the seat: No state will be eager to incorporate into its legal order the
French enforcement of the original (and annulled) award in Putrabali. Cf. Karaha Bodas, Co., L.L.C. v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 372 fn. 59 (5
th
Cir.
2003)(where the U.S. court acts merely as a secondary-jurisdiction court under the Convention, it only
enforces, or refuses to enforce, awards arbitrated elsewhere, and those decisions do not automatically
receive res judicata effect [in foreign jurisdictions]).
A decree of enforcement issued even at the seat has often been thought to be limited by its
very nature to the territory where it was rendered, and thus not functionally equivalent to a judgment of
validity. See Dominique Hascher, Recognition and Enforcement of Arbitration Awards and the Brussels
Convention, 12 Arb. Intl 233, 240 (1996) (the majority of courts have ruled that the effects of an
execution order written on or appended to an award, [giving] the award executory force, are territorially
circumscribed to the boundaries of the State in which the enforcement courts sits [and] carry no
international effect); cf. Burianski, supra n.173 at p. 2 (the purpose of a foreign exequatur judgment. . .
would be limited to permitting to enforce an award in the exequatur countrys territory; while it was
procedurally an autonomous decision, it was not a foreign judgment based upon an independent,
reproducible assessment of the facts and legal conclusions); Ernst Metzger, Note [to Weisbaum & Sons
v. Archaimbault, Trib. civ. de Meaux, April 2, 1958], [1959] Rev. Crit. Droit Intl Priv 152, 153 (a decision
whose only purpose is to declare an award enforceable within the country is not in itself capable of
being enforced in another state, since it is not addressed to the parties themselves but solely to the
officials and local authorities of the first state whose duty it is to carry it out).
But see Seetransport Wiking Trader v. Navimpex Centrala Navala, 29 F.3d 79 (2nd Cir. 1994)
(action to enforce a French arbitral award may be time-barred under the Convention; nevertheless
claimant may bring an alternative action to enforce as a foreign judgment the ruling of the French court
granting exequatur to the award); Peter Hay, Recognition of a Recognition Judgment Within the
European Union: Double Exequatur and the Public Policy Barrier, in Peter Hay et al., Resolving
International Conflicts: Liber Amicorum Tibor Vrady 143, 144-46 (2009)(highlighting conceptual
Page 56 of 118

III. Enjoining Arbitrations

a. Injunctions and Consent

[T]o enjoin a party from arbitrating where an agreement to arbitrate is absent is the
concomitant of the power to compel arbitration where it is present.
175

So lets review the bidding for a moment: This dichotomy between courts at the
seat and courts in the rest of the world has become second nature to us all: No one
can effectively wish it away, and no matter how much we quibble, it is well-understood,
and generally functional, for all sorts of purposes. The inevitable problem, though, is
that it is not a universal solvent----the world can after all be understood and patterned
and divided up in all sorts of ways. Still, courts that come belatedly to this complex
system can readily be mesmerized by its simplicity---and I suppose it is inevitable that
what began as a rough heuristic to allocate responsibility for setting an arbitral process
in motion, and for monitoring the results, has often been sullied and transformed,
unthinkingly applied to all sorts of new and unexpected and inappropriate contexts.

Take, for example, the question of a party wishing to enjoin an arbitration against
him that has been threatened or initiated.

One begins with the Prime Directive---that the arbitral process, as a matter of
contract, must rest on consent, so that a party cannot be required to submit to
arbitration any dispute which he has not agreed so to submit.
176
A necessary corollary,

differences between civil law and common law judgment recognition law in which the common law does
not share the civil laws conceptual difficulty; at common law a foreign judgment is merely a claim on
which the successful foreign judgment creditor obtains a domestic judgment (not only a declaration of
enforceability of the foreign judgment)).
Still more difficult problems of conceptualization may be posed by a simple refusal by the courts
of the seat to vacate an award rendered there: It is surely unacceptable that Belgium, merely by declaring
inadmissible any attempt to set aside an award rendered there between two foreign nationals, can be
thought to legislate for the world. At the very least the foreign regime should have provided an
opportunity to litigate the contested issues of validity. See Gulf Petro Trading Co. v. Nigerian Natl Petrol.
Corp., 288 F.Supp.2d 783, 794-95 (N.D. Tex. 2003), affd, 115 Fed. Appx. 201 (5
th
Cir. 2004)(Swiss
courts issued a decision . . . up[holding] the arbitrators ruling that the claimant did not have standing or
capacity to assert its claims; because the issue has already been decided by the Swiss court, a review
of that issue by this court would violate principles of res judicata and international comity); cf. Hascher,
supra at 264 (arguing that where a Swiss award was unsuccessfully challenged before Swiss courts, the
issue or points that have been determined by the setting aside court should not be relitigated before the
enforcement court, although recognizing that French law is apparently to the contrary).
175
Socit Gnrale de Surveillance S.A. v. Raytheon European Management & Systems Co., 643 F.2d
863, 868 (1
st
Cir. 1981)(Breyer, J.)(injunction was sought and granted under Massachusetts law, the
court holding that while the FAA applies to this dispute, an injunction would interfere with neither the
letter nor the spirit of federal law).
176 United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960).
This is a point so banal, so commonplace, so formulaic, that readers justifiably wince when they
see it repeated. Rau, Arbitral Jurisdiction and the Dimensions of Consent, supra n.19 at 199. The
complexities are explored at inordinate length in id. at 199-206 and in Alan Scott Rau, Everything You
Page 57 of 118

follow[ing] inexorably, is that this question of arbitrability (whether there is a duty to
arbitrate the dispute; whether the parties have consented to a final arbitral judgment on
the issues---whether, in short, the arbitrators have jurisdiction to decide) is undeniably
an issue for judicial determination.
177
An arbitrator who purports to adjudicate a
dispute despite the total absence of any consent whatever, is not alwaysis not
necessarilya con-man and a charlatan. (Although on occasion the conclusion is
compelling that this is, in fact, precisely what he is.
178
) But even if a more benign
account of his behavior is possible, he is no less an impostor (or more charitably, an
officious intermeddler). The claim that nothing is subject to arbitration because there
is no agreement to arbitrate must be the mother of arbitrability questions.
179

American procedure has been exceptionally generous in providing an abundance
of devices through which challenges to arbitral authority may be raised: A judicial
determination is possible not only on review after an award has been rendered, but also
before any proceedings at all have commenced, by a motion to stay litigation or to
compel arbitration under 3 and 4 of the FAA.
180

Really Need to Know About Separability in Seventeen Simple Propositions, 14 Amer. Rev. Intl Arb. 1,
4-13 (2003).
177 AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649 (1986).
178
In 2002 Citibank began receiving letters, purportedly from its credit card holders, stating that
notwithstanding any other agreements which may be in conflict with these terms, Citibank, for valuable
consideration given, must now arbitrate disputes under the rules of the National Arbitration Council
[NAC]. The NAC was an arbitration service of which a certain Charles Morgan was the sole proprietor
and arbitrator. Although Citibank sent notice to the NAC that it did not agree to arbitrate under NAC
rules, the NAC nevertheless conducted 300 arbitrations against Citibank. Citibank never participated in
any of these proceedingsat which no witnesses were calledbut in every case NAC issued an
award against Citibank in the exact amount of the cardholders outstanding credit card debt, plus NACs
fee. See Citibank (South Dakota), N.A. v. National Arbitration Council, Inc., 2004 U.S. Dist. Lexis 28539
(M.D. Fla.) (Citibank is granted a preliminary injunction against NAC, having demonstrated a substantial
likelihood of success on its claims for tortious interference with contractual relations and for unfair and
deceptive practices,). An identical case is Chase Manhattan Bank USA, N.A. v. National Arbitration
Council, 2005 WL 1270504 (M.D. Fla.): At the preliminary injunction hearing, the following colloquy took
place between the court and defendants counsel:
THE COURT: So Im a cardholder, I owe Chase Manhattan Bank $20,000, I go to Mr.
Morgan, I pay him $170, and I get a piece of paper that says, I dont owe them any money
anymore and they owe me $20,000 plus $170? Right?
MS. TROUTWINE: Yes.
179
MCI Telecommunications Corp. v. Exalon Indus., Inc., 138 F.3d 426, 429 (1st Cir. 1998).
180
American legislation thus allows an objecting party to seek judicial determination of the scope of
consent either before, during or after an arbitration, Grad v. Wetherholt Gallieries, 660 A.2d 903, 908
(D.C. App. 1995)(Uniform Arbitration Act); see also Bensadoun v. Jobe-Riat, 316 F.3d 171 (2
nd
Cir.
2003)(district court found that a brokerage customers allegations were sufficient to support sending the
matter to arbitration (without prejudice to any subsequent determination the arbitrators may make, on a
fuller record, as to their jurisdiction); held, reversed; the court was instead required to render a final
decision on [the brokers] claim that the investors had no right to arbitrate their claims against him so that
their NASD arbitration should be enjoined).
So I find rather puzzling the suggestion that recent Supreme Court jurisprudence must be
understood as holding that if challenges are made both to the underlying contract and to the arbitration
agreement---challenges which might therefore impeach the arbitration agreement itself---then such a
Page 58 of 118

And what of the familiar, cruel dilemma faced by a respondent against whom an
arbitration has been initiated, but who believes that he is not in fact subject to any
arbitration agreement?
181
Here, too, a court---once it is convinced that no valid consent
had ever in fact been given---might think it natural to issue an immediate injunction at
the respondents request against any further arbitration proceedings. (To say that
there is no valid consent to arbitrate may be equivalent to saying, in the consecrated
formula, that any agreement to arbitrate is null and void, inoperative or incapable of
being performed.). Otherwise a party claiming not to be bound must either be forced
to spend significant time and resources litigating this issue before a body lacking
authority to decide that issue
182
---or in the alternative, must simply boycott the
proceedings, at the risk of losing any chance to contest the claim on the merits.
183

challenge must preliminarily and in the first instance be resolved by the arbitrators, and only
subsequently addressed in vacatur proceedings. See1 Born, supra n.10 at 942-43, 958 (a result
ironically very similar to the prima facie standard applied in France and elsewhere). However desirable
as a normative matter, U.S. courts have never in fact done anything remotely like this, see Alan Scott
Rau, Separability in the United States Supreme Court, 2006:1 Stockholm International Arbitration Review
1 (2006)---nor is it easy to grasp how any such notion of an interim allocation could be thought
consistent with the mandate of FAA 4 that a court first actually be satisfied that an agreement to
arbitrate not be in issue. (A contractual delegation of such matters to the arbitrators, by contrast,
would necessarily imply that any arbitral determination is final---that is, that it would command the same
deference as that paid to any award, e.g., Rent-A-Center, West, Inc. v. Jackson, 2010 WL 2471058. (S.
Ct.)).
In some courts, admittedly, the ability of a claimant to obtain an initial judicial determination of the
duty to arbitrate under 4 can be somewhat problematical. See, e.g., Waterspring, S.A. v. Trans
Marketing Houston Inc., 717 F. Supp. 181 (S.D.N.Y. 1989). Here the court held that---since the
arbitration clause allowed the claimant to proceed ex parte---the claimant was simply not a party
"aggrieved" within the meaning of 4 by respondent's refusal to arbitrate. Now it is obvious that at a later
stage, after an award is rendered, the respondent might successfully challenge the existence of a binding
arbitration agreement---and equally obvious that in such a case, the claimant would find that the entire
proceeding "was in fact a useless gesture" and that it had been "put to unnecessary expense." However,
this prospect did not seem to trouble the court unduly: For the claimant is hardly in a position to
complain if its unfounded assertion leads to that result; [h]aving designed [its] own remedy for
recalcitrance [claimant] cannot, over respondent's objection, ignore that remedy and pursue another." But
cf. Daye Nonferrous Metals Co. v. Trafigura Beheer B.V., 1997 WL 375680 (S.D.N.Y.)(in cases arising
under the New York Convention, there is no requirement that plaintiff be "aggrieved" before a court can
compel arbitration).
181
Alan Scott Rau, The Arbitrability Question Itself, 10 Am. Rev. Int'l Arb. 287, 296 (1999).
182
In the Matter of the Application of Lakah, 602 F.Supp.2d 497, 499 (S.D.N.Y. 2009).
See also UBS Securities LLC v. Voegeli, 2010 WL 289302 (S.D.N.Y.)(irreparable harm would
result if respondents were compelled to arbitrate claims without having agreed to arbitration; a party
necessarily suffers irreparable harm if forced to expend time and resources arbitrating an issue that is not
arbitrable, and for which any award would not be enforceable); Duthie v. Matria Healthcare, Inc., 535
F.Supp.2d 909 (N.D. Ill.), affd, 540 F.3d 533 (7
th
Cir. 2008)(claimants initiated a AAA proceeding against
former corporate officers alleging fraud, but the conclusion is compelled that the merger agreement
does not require arbitration of any such claims against them individually; forcing them to arbitrate would
therefore deprive them of their Constitutional right to a jury trial, and it is clear that they have no
adequate remedy at law and will suffer irreparable harm if an injunction is not granted); McLaughlin
Gormley King Co. v. Terminix Intl Co., 105 F.3d 1192 (8th Cir. 1997) (If a court has concluded that a
dispute is non-arbitrable, prior cases uniformly hold that the party urging arbitration may be enjoined from
Page 59 of 118

Similar considerations may make it appropriate to issue an injunction against
arbitration merely so that the ultimate judicial determination may be preserved---that is,
pending any adjudication by the court of the issue of the duty to arbitrate.
184

Nevertheless the standard for deciding to issue a preliminary injunction against an
arbitration---in that respect quite unlike a decision on a stay under 3, or a motion to
compel under 4 or 206---will traditionally require at least some nod in the direction of

pursuing what would now be a futile arbitration, even if the threatened irreparable injury to the other party
is only the cost of defending the arbitration and having the court set aside any unfavorable award).
The scheme of Englands arbitration legislation is complex. See Arbitration Act 1996 1 (c)
(essentially identical to UNCITRAL Model Law art. 5), 30 (competence of tribunal to rule on its own
jurisdiction), 32 (but court may determine any question as to the substantive jurisdiction of the tribunal
if an appropriate application is made with the agreement of all the other parties or with the permission of
the tribunal itself), 72(1)(a person alleged to be a party to arbitral proceedings but who takes no part in
the proceedings may ask for an injunction to determine whether he is bound to arbitrate). Nevertheless--
-and leaving all of that aside---an English court also retains a residual jurisdiction to intervene by
injunction where it appears . . . just and convenient to do so, Kazakhstan v Istil Group Inc., [2008] 1
Lloyds Rep. 382, 383 (QBD (Comm.)).
So for a recent case decided under this scheme, granting an injunction against a local arbitration
on familiar grounds, see id. at 395. Although a final award had been set aside on the ground that there
is no basis upon which the arbitrators have been invested with jurisdiction to determine the dispute
between [these] parties, the claimants sought to continue the proceedings by relying on the tribunals
earlier, unchallenged, partial award on jurisdiction. The court held that further pursuit of those arbitration
proceedings . . . would at the very least be oppressive, vexatious and in consequence unconscionable,
and would condemn [respondent] to the expenditure of yet further costs which they may have grave
difficulty in recovering. And in any event the continuation of proceedings would be futile, since if the
arbitrators were to proceed to an award on the merits in favor of the claimant, the court would be bound
to accede to an application to set aside any such award.
183
But cf. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1111 (11
th
Cir. 2004)(district court abused its
discretion in enjoining arbitration of claims which it had already expressly ruled to be nonarbitrable;
after all the movants would not have to participate in the arbitration proceedings, and even if the
defendants should obtain a default award against them, they would be unable to have it enforced, so it
is unclear how [the movants] would suffer any injury at all, much less irreparable injury).
But imposing such a choice amounts in most cases to inflicting an exquisite form of torture on
respondents---indeed, everything the Supreme Court said in First Options can be understood as an
attempt to mitigate it: Recall that the trial court there had built its entire holding on the fact that the
respondent had appeared and argued the jurisdictional objection before the arbitral tribunal---finding that
this amounted to a "waiver" of any jurisdictional objections, a submission of the issue, a clear
acceptance of the arbitration panel's authority to rule on the arbitrability question with the same degree
of finality usually accorded arbitral awards. This conclusion was rejected by the Supreme Court---which at
the same time equally rebuffed as appalling the claimants contention that in these circumstances, the
respondents only possible means of avoiding his dilemma was to seek a judicial stay of the arbitration.
See Rau, supra n. 181 at 297-300; see also Oral Argument in First Options of Chicago, Inc. v. Kaplan,
March 22, 1995, 1995 WL 242250 at *27-*28 ("The essence of your argument, I take it, is that everything
must be made a Federal case by the person who says, I never agreed to arbitrate .... You make litigation
in Federal court necessary for everyone who says, I didn't agree to submit myself to arbitration").
184
See In the Matter of the Application of Lakah, supra n.182 (petitioners were either nonsignatories to
the applicable arbitration agreements or claimed not to have signed in their personal capacity; held,
respondents are enjoined from participating in any arbitration proceeding on the question of whether
[petitioners] are bound by the arbitration agreements . . . until I have determined the issue); McLaughlin
Gormley King Co., supra n.182 at 1194 (the order the court issued here, briefly freezing the parties'
dispute resolution activities until it determines arbitrability, is surely appropriate).
Page 60 of 118

balancing the equities, and in particular some sort of finding as to the likelihood of the
movants success on the merits:
185
If so, that should allow a court to address directly
and explicitly---to focus precisely on---some of the efficiency considerations that must
underlie any choice to give chronological priority either to the court or to the arbitrator.
186

185
For one recent case in which a court issued a preliminary injunction after a skeptical and jaundiced
assessment of the claimants case for arbitration, see Interactive Brokers, LLC v. Duran, 2009 WL
393827 (N.D. Ill.). Here investors claimed to have been defrauded by Enterprise, a customer of an online
brokerage firm (Interactive), and initiated a FINRA arbitration against Interactive. The customers had not
come forward with any basis from which to conclude that they were intended third party beneficiaries of
the arbitration agreement between Interactive and its customer Enterprise, or that, as mere customers of
Interactives customer, [they] may compel arbitration under the FINRA rules. So a preliminary view on
the forum issue---arbitration or court?---supported the grant of an injunction. And so did a traditional
exercise in the balancing of the equities---since the only harm to the customers from the issuance of an
erroneous injunction would be a delay in the arbitration proceedings while this Court determines whether
Interactive can be forced to arbitrate, while by contrast the harm suffered by Interactive if an injunction
were erroneously denied would be irreparable, as it would have been compelled to arbitrate a dispute
that it did not agree to arbitrate. But cf. Citigroup Global Markets, Inc. v. VCG Special Opportunities
Market Fund Ltd., 2010 WL 786584 (2
nd
Cir.)(it is enough simply that a serious question exists as to
whether the respondent had a duty to arbitrate, making this a fair ground for trial; even though the
respondent had failed to make a showing of probable success on the merits, still the balance of
hardships tipped decidedly in its favor---because an injunction would simply freeze the arbitration
without destroying the claimants ability to continue it if he could first show that there was in fact a
customer relationship between the parties).
See also Fiona Trust and Holding Corp. v. Privalov [2006] EWHC 2583 (Comm.), where an
injunction was issued under 72 of the English Act to avoid a considerable waste of resources; on
balance the arguments on behalf of the [movants] are likely to be right and they have a better than
evens chance of establishing their case . . . that the arbitration clause does not bite. (This is a far cry
from a case where the court considers it more likely than not that the agreement will be held to exist---let
alone the only situation where the matter should clearly be decided by an arbitrator, the case in which it
is virtually certain that there is an arbitration agreement). Unfortunately, though, it turned out that the
lower courts favorable evaluation of the movants likelihood of success rested on a flawed and now-
outdated notion of the doctrine of separability---and so the Court of Appeal necessarily reversed. See
[2007] 1 All. E.R. (Comm.) 891, 904 (C.A.) (since the arbitrators did in fact have jurisdiction to decide
whether the contract had been procured by bribery, an injunction against the arbitration is likely to be a
potential breach of the [U.K.s] international obligations under the New York Convention), affd, [2007]
UIKHL 40.
186
On the usual cost/ benefit analysis driving this decision, see text accompanying nn. 196-206 infra. See,
e.g., Centocor, Inc. v. The Kennedy Institute of Rheumatology, 2008 WL 4726036 (S.D.N.Y.). Here the
Kennedy Institute had granted an exclusive license to Centocor to exploit certain of its patents; a
sublicense from Centocor to Abbott---the only agreement containing an arbitration clause---required
Abbott to pay royalties directly to the Institute. The Institute attempted to invoke this arbitration clause for
its claim that the royalty payments were deficient, and Centocors motion for a preliminary injunction was
denied: Even though the Institute was a non-signatory to the arbitration agreement, it is difficult to
imagine a claim that is more integrally related to the contract containing the arbitration clause; most
notably, since Centocur was in fact concurrently involved in an arbitration proceeding with Abbott arising
out of the same facts, it would be more efficient if the parties [addressed] the claim in one arbitration
rather than in different proceedings.
Page 61 of 118

One immediately hears the objection that such an injunction would infringe on
the hallowed principle of comptence/comptence
187
as indeed it would.
188
But that

187
See e.g., Emmanuel Gaillard, Il est interdit dinterdire: reflexions sur lutilisation des anti-suit
injunctions dans larbitrage commercial international, [2004] Rev. Arb. 47, 6061 (antisuit injunctions
ignore the principle, very generally recognized in Comparative Law, that gives arbitrators the power to
determine their own jurisdiction and that requires parties, at least initially, to submit any grounds for the
invalidity of the arbitration clause to the arbitrators themselves); Sandrine Clavel, Anti-Suit Injunctions et
arbitrage, [2001] Rev. Arb. 669, 701-02 (although enjoining arbitrations may cause no interference with
the powers of foreign courts, nevertheless, at least in certain circumstances, they flout important
principles in the law of international arbitration, interfering with the normally-recognized powers of the
arbitrator); see also Marco Stacher, You Dont Want to Go There: Antisuit Injunctions in International
Commercial Arbitration in [2005] 23(4) ASA Bull. 640, 653 (anti-arbitration injunctions tamper with the
principle of Kompetenz-kompetenz and should therefore ... be avoided).
188
See CPC art. 1458 (If a dispute has not yet been brought before an arbitral tribunal, a French court
must declare itself without jurisdiction unless the arbitration agreement is clearly void [manifestement
nulle]).
The choice made by this well-known French model is admittedly a feature, in one form or
another, of legislation in other states as well. A parliamentary initiative apparently now pending in
Switzerland would amend the PILA so that in international matters, and regardless of the seat of
arbitration, a Swiss court will only render a decision once the arbitral tribunal has decided on its own
jurisdiction, unless a prima facie examination shows that there is no arbitration agreement between the
parties. See http://kluwerarbitrationblog.com/blog/2010/02/05/possible-reinforcement-of-the-negative-
effect-of-the-%e2%80%9ccompetence-competence%e2%80%9d-principle-in-swiss-legislation/. (Feb. 5,
2010). That has already been true for some time in cases where the arbitral seat is in Switzerland, see
Zina Abdulla, The Arbitration Agreement, in Kaufmann-Kohler & Stucki, supra n.148 at 15 fn.2; see also
Jean-Franois Poudret, Exception darbitrage et litispendance en droit Suisse, [2007] 25 (2) ASA Bull.
230, 235 (a summary inquiry into the prima facie existence of an arbitration agreement, so as not to
prejudge the arbitral tribunals decision on its own jurisdiction). See also the European Convention on
International Commercial Arbitration, art. VI(3), which provides that---at least where a party has first
initiated arbitration proceedings---a court shall stay [its] ruling on the arbitrators jurisdiction until an
award is rendered, unless it has good and substantial reasons to the contrary: This limitation seems to
swim in the same current of thought as that which underlies the notion of a prima facie examination, see
Emmanuel Gaillard, La reconnaissance, en droit suisse, de la second moiti du principe deffet ngative
de la comptence-comptence, in Gerald Aksen (ed.), Global Reflections on International Law,
Commerce and Dispute Resolution: Liber Amicorum in honour of Robert Briner 311, 325 fn.40 (2005).
Similarly, a strong body of scholarly work asserts that the UNCITRAL Model Law should be read
in the same way---that is, that art.8(1) of the Law must also be construed as calling for [only] prima facie
control of arbitral jurisdiction, see Frdric Bachand, Does Article 8 of the Model Law Call for Full or
Prima Facie Review of the Arbitral Tribunals Jurisdiction?, 22 Arb. Intl 463, 473 (2006)(this is necessary
to reconcile art. 8 with art. 16, for otherwise, the internal coherence of the Model Law would be seriously
imperiled); cf. Dell Computer Corp. v. Union des Consommateurs, [2007] SCC 34 (Sup. Ct. Can.) 77,
84-86(as a general rule a challenge to the arbitrators jurisdiction must be resolved first by the
arbitrator, and a court should depart from this rule of systematic referral only where the challenge is
based solely on a question of law and only where it is satisfied that the challenge is not a delaying
tactic and that it will not unduly impair the conduct of the arbitration proceeding; the prima facie analysis
test is gaining acceptance and has the support of many authors). In any event the legislative history of
the Law is clear that whatever the adjudicative jurisdiction of the court, it may not, in light of arts. 5 and
8(2), enjoin parallel arbitral proceedings, see Holtzmann & Neuhaus, supra n.14 at 306.
Quaere: How likely is it that this Model Law learning will ever affect the behaviorof those charged
with enforcing the version of the Law now on the books in California? Or in Texas? Or in Florida? Or even
rise to the level of their consciousness? See Rau, Federal Common Law and Arbitral Power, supra n.22
Page 62 of 118

after all is not in any sense an argument it is mere tautology. If it is truly intended as
argument, the hidden, lurking premise---the unexpressed middle term of the syllogism---
must be that the French procedural regime of comptence/comptence is somehow an
Immutable Rule of Natural Law. That may in fact be a quite common assumption in the
very highest arbitration circles
189
---but, of course, it is very far from true, isnt it?
190

at 179-92 (aping our betters; the local boosterism, the poignant self-aggrandizement, that led to the
adoption in a number of [U.S.] jurisdictions of the Model Law).
189
See Pierre Lalive, Transnational (or Truly International) Public Policy and International Arbitration, in
Pieter Sanders (ed.), Comparative Arbitration Practice and Public Policy in Arbitration (ICCA Congress
Series No. 3,) 257, 300301 (1987) (the question may arise whether the so-called principle of
comptence-comptence of the arbitrator has not become (notwithstanding a certain reluctance of some
national systems, influenced by the Anglo-American tradition) a fundamental principle of transnational
public policy, especially now that it has been recognized by various international instruments); Serge
Lazareff, Mandatory Extraterritorial Application of National Law, 11 Arb. Intl 137, 139(1995) (international
public policy refers to the hard core of internationally recognized principles (i.e. the autonomy of the
arbitration clause, Kompetenz Kompetenz, good faith, fraud, equal treatment of the parties...)).
So in consequence, see Julian D.M. Lew, Control of Jurisdiction by Injunctions Issued by National
Courts, in International Arbitration 2006: Back to Basics?, supra n.52 at 185, 215 (anti-arbitration
injunctions are contrary to fundamental principles of international arbitration law, including the doctrines
of competence-competence, separability, and party autonomy); Julian D.M. Lew, Anti-Suit Injunctions
Issued by National Courts to Prevent Arbitration Proceedings, in Gaillard (ed.), Anti-Suit Injunctions in
International Arbitration, supra n.46 at 25, 30, 38, 39 (the principle of comptence/comptence is
nowadays fundamental ... to the mechanism of international arbitration, and so I find it difficult to
imagine circumstances in which there would be a justification for a court to intervene in an arbitration, to
stop the arbitration). (But then compare Lew, Anti-Suit Injunctions Issued by National Courts to Prevent
Arbitration Proceedings, supra at 32 (a court order might nevertheless be justified where there is no
arbitration agreement or in a case where a party could go to court to argue that a claim is time-barred))..
Matthias Scherer & Teresa Giovannini, Anti-Arbitration and Anti-Suit Injunctions in International
Arbitration, [2005] (3) Stockholm Intl L. Rev. 201,205 (most arbitration practitioners will undoubtedly
share this view, since an anti-arbitration injunction would clearly violate the internationally recognized
principle of Kompetenz-Kompetenz).
Obviously where an arbitration proceeding is challenged on the ground of lack of consent, the
supposed principle of party autonomy can by itself have no possible purchase: See generally text
accompanying nn. 278-82 infra.
190
It cannot be asserted with a straight face that arbitrators are somehow obligated to pack up their
papers and turn out the lights, as soon as one of the putative parties sends them a note objecting to their
jurisdiction. Cf. MBNA Am. Bank, N.A. v. Credit, 132 P.3d 898, 900-01 (Kan. 2006) (when the existence
of an arbitration agreement is challenged, "the issue must be settled by a court before the arbitration may
proceed; the arbitrator was not "simply free to go forward with the arbitration as though [the respondent]
had not challenged the existence of an agreement). Can it be seriously argued that--even where the
court ultimately finds that the parties had indeed agreed to arbitrate--an award rendered prior to such a
finding would still have to be vacated? See Rau, Federal Common Law and Arbitral Power, supra n.22 at
200-01 (Of course not). Nevertheless---for a demonstration of the humbling proposition that if error is
even remotely possible, it is inevitable---see MBNA America Bank, N.A. v. Kay, 888 N.E.2d 288 (Ind. App.
2008)(the award was not properly obtained, since under the FAA, upon the respondents objection to
the arbitration, the claimant was required to petition a federal court for a determination regarding the
validity of the arbitration agreement; since this was not done---but instead, the NAF attempted to rule
on the validity of the arbitration agreementthen, as a result, the award the claimant sought to confirm
was void.). Perhaps at bottom this is nothing more than NAF jurisprudence, a transitory and
disappearing phenomenon.
Page 63 of 118

Once put into play, though, the logic of the French regime is characteristically
relentless. As has often been pointed out, even a claimant who does not believe that he
is bound by an arbitration agreement must first institute an arbitral proceeding---and
participate in the selection of the tribunal---all for the sole purpose of asking the
arbitrators to declare that they may not hear the case.
191
In addition, it is perfectly
consistent with the logical premises of the system for a French court to consider that it is
barred from adjudicating a matter even where the courts of the agreed seat---say, New
York---have already held the arbitration clause to be invalid under New York law.
192

(Quaere whether such a result could possibly be justified in cases where the courts of
New York had not only refused to compel arbitration, but ---as is their right---had gone
further and also enjoined the parties from continuing the arbitration there?).
193
And
then, what of the chosen arbitrators themselves? It should be particularly easy for them
to ignore an injunction issued by the courts of the seat, if they are in any event
intellectually committed to the notion that annulment there---a likely consequence of
their choosing to go forward---will equally be meaningless.
194

Even accepting this positive aspect of comptence/competence, though, surely it is not an
inevitable corollary that courts must stay their hands even if they are convinced that it would be abusive
for the arbitrators to proceed to adjudicate the question? But cf. Gaillard, supra n.188 at 313-16
(2005)(any authority that arbitrators may have to pass on the validity and scope of the arbitration clause
is only real, can only have any true impact, if, pending their decision, state courts are obliged to
abstain from undertaking an in-depth inquiry into the same questions; general acceptance of the first
proposition should logically lead to this conclusion).
191
E.g., Peter Schlosser, The Competence of Arbitrators and of Courts, 8 Arb. Intl 189, 201, 204 (1992).
192
Cf. Coproprit Maritime Jules Verne v. American Bureau of Shipping, [2006] Rev. Arb. 945 (Cour de
Cassation, June 7, 2006)(New York arbitration; held, French courts may not review the arbitration clause
in a substantive and in-depth manner, whatever the place or seat of the arbitral tribunal, until the time an
award has been rendered); compare Legal Department du Ministre de la Justice de la Rpublique dIrak
v. Socits Fincantieri Cantieri Navali Italiani, [2007] Rev. de lArb. 87 (Cour dAppel de Paris, 2006)
(French arbitration; held, Italian court ruling to the effect that an arbitration clause was inoperative by
virtue of a U.N. embargo cannot be honored and enforced in France, since a state court must decline
jurisdiction unless a summary examination justifies the conclusion that the arbitration clause was
manifestly void or inapplicable); see also id. at 90, 93 (note Sylvain Bolle; the purpose of art. 1458 of
the CPC is not so much to silence the French judge as to give the first word to the arbitrator, and this
can only be accomplished if we make sure that motions to a court, in any country whatever, cannot
serve to torpedo the priority that must be accorded the arbitrators).
In the case given, French deference to a New York arbitral proceeding would presumably
envisage that the arbitration go forward there. The courts in New York would presumably go on to annul
any resulting award---but, as we have seen, that fact too would be equally irrelevant in Paris.
193
Cf. Dominique Hascher, Injunctions in Favor of and Against Arbitration, 7 (paper presented at
Symposium, Arbitration and National Courts: Conflict and Cooperation, and forthcoming, 2010)(where a
lawsuit is brought on the underlying cause of action in France, an American injunction against an
arbitration situated in the U.S. would not be effective because the [American Bureau of Shipping case,
supra n.192] made it clear that the priority rule [giving priority to the arbitrators] applies regardless of the
seat of the arbitral tribunal).
194
See Salini Costruttori S.p.a., supra n.46. Here it was common ground that the place of the arbitration
was to be Ethiopia. Although the respondent Government disputed the claimants assertion that the
parties had agreed to ICC (rather than ad hoc) arbitration, an ICC arbitration was set in motion, and in a
preliminary ruling the arbitrators for the sake of convenience decided to hold at least the first meeting in
Page 64 of 118

Now it would surely be vulgarly reductionist to make too much of the fact---
generally understood but rarely acknowledged--that the French regime happens to be
closely congruent with the self-interest of arbitrati, to the point indeed that it can be
viewed as a sort of guild legislation suitable for a net importer of arbitrations. Jobs for

Paris. Pointing to this as evidence of a lack of impartiality---supposedly the tribunal had improperly and
abusively had regard to its own convenience and the convenience of the Claimant and its witnesses---
the respondent challenged the continued service of the arbitrators; after the challenge was rejected by the
ICC, the respondent obtained from the courts of Ethiopia an injunction suspending the arbitration and
enjoining the claimant from proceeding until the courts could resolve the challenge and finally determine
the ICCs jurisdiction. But the tribunal went ahead anyway, in the fulfillment of [its] larger duty to the
parties: An international arbitral tribunal is not an organ of the state in which it has its seat in the same
way that a court of the seat would be, and an agreement to arbitrate is not anchored exclusively in the
legal order of the seat, but is validated by a range of international sources and norms extending beyond
the domestic seat itself. Id. at 128-29. If a court decision would conflict fundamentally with the
tribunals understanding of its duty to the parties, then the tribunal must follow its own judgment, lest
the courts of the seat convert an international arbitration agreement into a dead letter. Id. at 142-43.
The Ethiopian injunction had been issued on the basis that the court alone was competent to
determine the tribunals jurisdiction. But under the ICC Rules, the arbitrators stressed, decisions by the
ICC with respect to challenges to arbitral impartiality are to be final; equally under the Rules, decisions
with respect to the jurisdiction of the arbitrators are to be made in the first instance by the Arbitral
Tribunal itself, and it would be a clear breach of the fundamental principle of competence-competence if
an international arbitral tribunal were obliged to stay its proceedings in deference to a court proceeding
which had specifically been instituted to determine the question of the tribunals jurisdiction. Id. at
152-53.
Perhaps it is not necessary to add that the chairman of the tribunal was Professor Gaillard. Cf.
Emmanuel Gaillard, Linterfrence des jurisdictions du siege dans le droulement de larbitrage, in Liber
Amicorum Claude Reymond: autour de larbitrage 84, 86 (2004)(this question is intimately linked to---is
upstream from---the more familiar, classical, question of the fate of an award set aside at the seat);
Gaillard, supra n.7 at 116, 126 (only by accepting the model of an independent arbitral legal order can
an arbitrator carry out the mission entrusted him, in the face of an injunction at the seat which he deems
illegitimate in light of the generally admitted principles of international arbitration). Cf. Eric A. Schwartz,
Do International Arbitrators Have a Duty to Obey the Orders of Courts at the Place of the Arbitration?, in
Aksen (ed.), supra 191 at 795, 802 (is the explanation of the tribunals approach simply the arbitrators
well-intentioned desire to proceed with an arbitration?).
By contrast Jan Paulssons rationale for a similar result in the Himpurna arbitration was
dependent neither on
the supposedly autonomous legal existence of an international arbitral process, nor on
the supposedly sacrosanct and universal nature of the comptence/comptence principle
and thus seems infinitely more satisfactory. See n.51 supra; see Himpurna California Energy Ltd. v.
Republic of Indonesia, Interim Award of Sept. 26, 1999, [2000] XXV Yearbook Comm. Arbn 105-06
(this case does not . . . require general pronouncements on the relative allocation of authority between
courts and arbitrators); 148-53, 184 (more conventionally, for a state to prevent a foreign party from
pursuing its remedies before a forum to the authority of which the state consented, and on the availability
of which the foreigner relied in making investments explicitly envisaged by that state, is a denial of
justice in violation of international law).
Page 65 of 118

the boys is certainly a happy side effect of this model, but it cant be the engine driving
the machine---can it?
195

At bottom I should think the choice between various procedural regimes comes
down to nothing more than the usual prudential questions imposed by a cost/benefit
analysis:
196
Is it best (as we have tended to assume in the United States) that the
question of arbitral jurisdiction be resolved with finality as soon as possible, thereby
obviating an extended procedure that might turn out in the end to have been simply
pointless? For the moving party, a judicial imprimatur along the lines of FAA 4 will
foreclose post-award assertions by the respondent that the arbitration was a nullity; by
the same token, early judicial resolution may relieve the resisting party of the need to
put on any defense on the merits---and eliminate the risk, if he chooses instead to stay
out, that any such defense will be deemed waived.
197
(The force of this point is
strongest where---as is quite often the case---the legal systems most willing to entertain
motions to enjoin abusive arbitrations happen, at the same time, to be among those

195
Cf. Symposium, La clause compromissoire, in Perspectives dvolution du droit francais de
larbitrage, [1992] Rev. de lArb. 285 (discussion; intervention of Pierre Bellet): What interests us, is not
the financial advantages that arbitration can have for arbitrators, but the advantages that the development
of arbitration can have for France.
196
Both French law and the European Convention distinguish in their own way between cases where no
arbitration has begun at all (and where a courts review will be summary and exceptional), and cases
where an arbitration proceeding has in fact been initiated (and where a court must stay its hand entirely).
Compare CPC art. 1458, with European Convention, art. V((3), both supra n.188. But none of this is in
any event anything more than a matter of a prudential choice with respect to chronological priority---with
the final word always retained by state courts (except to the extent that the state has permitted the parties
to delegate definitive decisionmaking authority to the arbitral tribunal itself). And given that point, the
corollary must be that considerations of lis pendens are strictly speaking irrelevant (or at most, to be
generous, an element guiding the judicial exercise of equitable discretion).
Although I fear we agree on little else, Professor Gaillard and I certainly join company on this
narrow point. As he says, to allocate decisionmaking authority solely to the forum where the case was
first filed, would make sense only if the two jurisdictions in question have equal legitimacy, have an
equal claim, to decide the dispute. (The dispute, of course, not being one over the underlying merits,
but over the obligation to submit them to arbitration.). Gaillard, supra n.7 at 129; Gaillard, supra n.188 at
317. Here, though, we agree that they dont (but alas for contradictory reasons). See id. at 318 (the
overriding policy favoring arbitration and which lies at the heart of comptence/comptence is the exact
opposite of the neutrality which characterizes the notion of lis pendens). As usual, Professor Mayer hits
the nail right on the head: Any priority in filing cant be taken into account once it is quite clear that the
only decision with respect to arbitral jurisdiction that counts is that of the state judge. Pierre Mayer,
Litispendance, connexit et chose juge dans larbitrage international, in Liber Amicorum Claude
Reymond, supra n.194 at 185, 192 fn.19.
197
See Schlosser, supra n. 191 at 193 (it is deplorable that parties must often invest large amounts of
money and time-consuming, cumbersome work in the arbitration before they are allowed in the
forthcoming challenge or enforcement proceeding to seek the courts review as to the legality of the
arbitration proceedings); cf. Adam Samuel, Jurisdictional Problems in International Commercial
Arbitration 190 (1989)(a court system geared towards encouraging arbitration will ensure that pre-
arbitration jurisdictional applications are given a reasonably high priority, and once the court has
disposed of the application, the arbitration can proceed smoothly and without interruption to what will
usually be an unchallengeable award on the merits).
Page 66 of 118

most willing to move the motion to the head of the queue, and to provide a summary
method of disposition.)
198

Or alternatively, might it perhaps be preferable (as French law provides) to allow
the arbitration to proceed, honoring the parties original bargain to get in and out of
arbitration in the most expeditious manner?
As an empirical matter, one has to be somewhat agnostic. Its pretty clear,
though, where the relevant considerations lie:

A robust rule of comptence/comptence may well reflect a suspicion
(unverifiable, of course, but commonly an article of faith in the arbitration
establishment) that more often than not a challenge to arbitral jurisdiction is
frivolous---nothing but a delaying and obstructive tactic by the recalcitrant party,
who is in bad faith and only trying to gain time.
199

This choice does after all permit--- indeed encourage---the tribunal itself to render
a preliminary award on the jurisdictional issue alone--- something it is likely to do
in the normal course of events, and which can expedite matters by making the
question ripe for immediate review.
200

198
See FAA 6; Michael J. Mustill & Stewart C. Boyd, The Law and Practice of Commercial Arbitration in
England 782 (2
nd
ed. 1989)(if a party tells the arbitrator that he is about to apply for declaratory relief,
the arbitrator should suspend the reference until the court has arrived at a decision; if he feels that this
will involve undue delay, there is no reason why he should not say so, in which case the Court will no
doubt take his remarks into account when fixing a date for the hearing of the declaratory action). See
also Samuel, supra n.197 at 213 (in England and the U.S., there are no complaints that the current
position gives rise to delays and obstruction; nor is there any pressure for a change in the law in this
area).
199
See e.g., Antonias Dimolitsa, Autonomie et Kompetenz-Kompetenz. [1998] Rev. Arb. 305, 325. See
also Gaillard, supra n. 188 at 322; Emmanuel Gaillard, Note [to Soc. Coprodag v. Bohin (Cour de
Cassation, May 10, 1995)], [1995] Rev. Arb. 618, 620-21 (situations where the claim of a lack of arbitral
jurisdiction is well-founded will be statistically rare, and so the rule is necessary to discourage litigants
from schemes aimed at destabilizing or disturbing the orderly conduct of an arbitration).
200
See Gaillard & Savage, supra n.31 at 739 (an arbitral decision on jurisdiction is a final decision on one
aspect of the dispute and should therefore be considered as an award, against which an immediate
action to set aside can be brought); John J. Barcel, Who Decides the Arbitrators Jurisdiction?
Separability and Competence-Competence in Transnational Perspective, 36 Vand. J. Transnatl L. 1115,
1125-26 (2003)(Thus, in the vast majority of cases, the arbitral process will go forward, but parties with a
legitimate basis for objecting to the arbitrators jurisdiction will have an opportunity, after only moderate
delay, to make their case to a judge). This will not be true of course where the arbitrator has refused to
formalize his decision on jurisdiction before rendering a final award---whether in the interest of prolonging
his mandate, or in the interest of forestalling a challenge he deems abusive; see Samuel, supra n.197 at
212-24.
Immediate review should equally be available in cases---not, I concede an everyday occurrence--
-where the arbitrator has ruled (incorrectly) that he lacks jurisdiction to resolve the dispute. It may be
embarrassingly difficult to squeeze such a case into the architecture of the relevant statute; nevertheless
as a practical matter most everyone readily recognizes the need for an immediate and definitive judicial
declaration that the dispute is indeed arbitrable. Doubtless the same arbitrator cannot be compelled to
take up the task that he has already declined: see Sigvard Jarvin, Note [to Uzinexportimport Romanian
Page 67 of 118

Nor can one be blind to the fact that where (by contrast) the arbitration does
proceed to a final award, in a good percentage of cases the respondent will
prevail anyway---making any question of arbitral jurisdiction entirely moot.
(Where there is risk neutrality and a relatively equal access to information, this
should in fact be true roughly half the time).
201
And in the last resort (that is,
even where on review a second look at jurisdiction proves necessary), a
national court should be able to learn something from an initial reasoned award---
perhaps from a tribunal

with the comparative advantage of having been
instructed in the facts, or possessing some particular insight into an applicable
foreign law.
202

Still, for a long time my own reading of the French literature had made me
intensely skeptical as to whether the game being played there could in fact be worth the
candle: I had always assumed that the statutory exception for manifestly void or
inapplicable clauses would as a practical matter lead to the impossibility of cabining any
preliminary inquiry---thereby inevitably, fatally, muddling whatever practical benefits the

Co. v. Attock Cement Co., Cour dAppel de Paris, July 7, 1994], [1995] REV. ARB. 115, 119 (You cant
make a bird sing). Still, a substitute can always be named: and this time there must be no more
provisional decisions, no comptence/comptence, no more shopping around; basta. See generally
Pierre Mayer, Lautonomie de larbitre international dans lapprciation de sa proper comptence, in
1989-V Recueil des Cours de lAcadmie de Droit International 319, 354; Dimolitsa, supra note 199 at
325328.
201
The seminal piece here is George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation,
13 J. Legal Stud. 1, 4-5, 19 (1984)(where the gains or losses from litigation are equal to the parties, the
individual maximizing decisions of the parties will create a strong bias toward a rate of success for
plaintiffs at trial . . . of 50 % regardless of the substantive standard of law; as the parties error [in
estimating the outcome] diminishes, the 50% proportion of victories will be approached more closely).
See also Kevin M. Clermont, Litigation Realities Redux, 84 Notre Dame L. Rev. 1919, 1965 (2009)(the
set of adjudged cases is a universe dominated by close cases, and these unsettled close cases will
fall more or less equally on either side of the applicable decisional criterion).
202
I am grateful to Gary Born for suggesting this point to me in a private communication. See also Azov
Shipping Co v Baltic Shipping Co (No.1), [1999] 1 Lloyds Rep. 68 (QBD (Comm.))(I can quite see that
there is an interest in encouraging parties to put their arguments on jurisdiction before the arbitrator
himself, for in many cases, and perhaps in the ordinary and normal case of such a challenge, where, for
instance, there is simply an issue as to the width of an arbitration clause and no issue as to whether a
party is bound to the relevant contract in the first place, the arbitrator's view may be accepted).
A presumption in U.S. law deeming the arbitrators themselves empowered to make final
decisions with respect to their own jurisdiction---a presumption of increasing strength---may,
paradoxically, be moving us in the direction of achieving some of these same goals, without the
accompanying risk that the proceedings may ultimately turn out to be futile. See generally Rau, Arbitral
Jurisdiction and the Dimensions of Consent, supra n.19 at 212. This in turn is thought in Continental
legal systems to be sheer heresy; see Rau, The Culture of American Arbitration and the Lessons of ADR,
supra n. 30 at 464; Gaillard & Savage, supra n.31 at 400 (empowering the arbitrators to be the sole
judges of their own jurisdiction would be neither logical nor acceptable); Gaillard, supra n.199 at 621
(such a result is accepted nowhere).
Page 68 of 118

doctrine seeks to attain.
203
In retrospect, though, that attitude may have reflected
nothing more than the mentality of someone trained in the common law: It honestly had
not occurred to me that the French legislative scheme was designed to function instead
as the subtlest of Cartesian traps: For not only is "voidness" or "inapplicability"
impossible to demonstrate---but the more the resisting party tries to do so,
apparently, the more hes fatally caught up in the web, all his struggles telling against
him.
204

Although the social interest in the reduction of systemic costs is critical,
205
in this
case the result of any balancing process must be somewhat indeterminate.
206
There is

203
It should not be surprising in the least that the statutory question (whether a clause is manifestly null)
will shade readily into a related inquiry, asking whether it is manifestly inapplicable--- thereby posing not
only the issues of existence and formation, but also those going to the scope of the clause, whether the
clause still exists, whether a third party can be bound by or take advantage of the clause, and so forth
and so on. See Franois-Xavier Train, Note [to Soc. Champion supermarch France (CSF) v. soc.
Recape (Cour de Cassation, July 4, 2006)], [2006] Rev. Arb. 961 (if he limited himself solely to the
manifest invalidity of the clause, a judge could catch only a tiny fraction of all the cases where the clause
is inoperative; for example, when a clause linking a bankrupt debtor to his franchisor is asserted against
a trustee acting in the collective interest of creditors, its inapplicability is obvious); Yves Derains, Note,
[1992] Rev. Arb. 62, 65 (It is hard to imagine that merely invoking an arbitration clause in Contract A can
be enough to justify a stay of litigation in a dispute involving Contract B). See also Olivier Cachard, Le
contrle de la nullit ou de linapplicabilit manifeste de la clause compromissoire, [2006] Rev. Arb. 894,
904 (litigants show every evidence of intending to exploit this opportunity whenever possible, to expand
this breach in the priority normally accorded to arbitrators).
Nor is it likely that we will really be able to demarcate with any exactitude the precise line
between what ison the one handsupposed to be a mere prima facie examination, intended merely to
allow the arbitration to proceed, andon the otheran in-depth scrutiny; see Poudret & Besson, supra
n.47 at 477 (a prima facie examination will not always be clearly distinguishable from a plenary review of
the validity of the arbitration clause); Ibrahim Fadlallah, Priorit larbitrage: entre quelles parties?, LES
CAHIERS DE LARBITRAGE 13 (Gaz. Pal. 2002/1) (do judicial decisions dealing with the extension of
arbitration clauses to third parties simply represent the chronological priority due to provisional arbitral
decisions, or do they resolve once and for all [trancher dans le vif] the very question of arbitral
jurisdiction?). Can wein shorthave any particular confidence in the ability of non-Gallic tribunals to
thread their way along such shadowy paths with any dexterity? Rau, Arbitral Jurisdiction and the
Dimensions of Consent, supra n.19 at 208 fn.33.
204
See, e.g., Francois-Xavier Train, Note [to Soc. Laviosa Chimica Mineraria v. soc. Afitex (Cour de
Cassation, Feb. 11, 2009)], [2009] Rev. Arb. 156, 157: When you think you are demonstrating that an
arbitration clause is void, you are instead---and necessarily---proving one thing and one thing only---that
it is not manifestly void, for what is manifest has no need to be proven, only to be noticed [constat].
(And as for the judge, even to look into the argument [entrer en matire] means that he has already
stepped over the line).
205
Cf. Stavros Brekoulakis, The Negative Effect of Competence-Competence: The Verdict Has to be
Negative, [2009] Austrian Arbitration Yearbook 238-258, Queen Mary School of Law Legal Studies
Research Paper No. 22/2009; http://ssrn.com/abstract=1414325. This paper (whose title neatly
summarizes its thesis) argues that to confer exclusive jurisdiction on a forum whose validity is at stake,
defies not only logic but also any principle of legitimacy, for parties cannot be obliged to exclusively
submit to arbitration proceedings [merely] on the basis of prima facie evidence.
By contrast, I had always supposed that legal rules exist only to serve some instrumental
function---and thus that there can be no logical a priori impossibilities. If there are deemed to be
systemic advantages from making litigants jump through certain hoops before they are allowed to present
their arguments before a state court, why, then, this seems perfectly legitimate as long as their ultimate
Page 69 of 118

more, though: Every rule derives meaning and legitimacy from the context in which it
operates; for example, the French structure of judicial enforcement and supervision of
arbitral awards is harnessed to certain contingent preferences with respect to the
organization of that state's judiciary: In particular, it rests on a preference that the
functions of review and enforcement of arbitral awards be concentrated in the courts
of appeal---primarily, as a practical matter, the Cour d'Appel de Paris. This centralizing
spirit of French law reflects its characteristic striving for Coherence and
Rationality;
207
allocating exclusive jurisdiction to the courts of appeal is thought
essential to avoid any unhealthy competition with other judges who might otherwise be
approached for purely tactical reasons ---litigants should hardly be free to approach
any judge whatever.
208

The consequences of this preference reverberate throughout the entire legal
regime.
209
It is of course a reasonable and even an enviable choice: It makes possible,

day in court is not unduly burdened. One illustration: In many American jurisdictions, courts may not
hear a case at all unless the parties first go through a non-binding ADR process---perhaps mediation, but
in many cases, a form of "court-annexed" or "non-binding" arbitration. Now in such cases, of course, there
is no evidence of consent or agreement, prima facie or otherwise, on the part of the litigants at all---
that is deemed quite irrelevant and the question is not even asked. But the preliminary hurdle is imposed
as a condition to the courts willingness to hear the case, in the expectation that this will increase the
chances of settlement and reduce the judicial workload; if the arbitrators' decision is rejected by either
party, then the court will hear the case de novo. See generally Rau et al., supra n.48 at 534-43, 571-86;
cf. id. at 649-50 (required medical review panels in malpractice cases). No more than with the French
model, no sustained argument here can plausibly invoke lack of "due process" or "legitimacy.
206
Throughout the litigation in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), it was taken
for granted that a court injunction against arbitration would be available to a party who was claiming that
he was not bound. See n.183 supra. In that case, however, the respondent had chosen instead to argue
to the arbitrators that they had no jurisdiction---and the claimant asserted that if he were permitted to do
that without being bound by the result, this would encourage delay and waste in the resolution of
disputes. Justice Breyer, however, found this point inconclusive---for factual circumstances vary too
greatly to permit a confident conclusion about whether allowing the arbitrator to make an initial (but
independently reviewable) arbitrability determination would, in general, slow down the dispute resolution
process. Id. at 946-47.
207
See Emmanuel Gaillard, L'effet ngatif de la comptence-comptence, in Jacques Haldy et al. (eds.),
ETUDES DE PROCEDURE ET D'ARBITRAGE EN L'HONNEUR DE JEAN-FRANCOIS POUDRET 387,
400 (1999)(le gnie centralisateur); Gaillard, supra n.199 at 620-21 ("a keystone of the recent reforms of
French arbitration law ... has been to rationalize the means of challenging awards by unifying all litigation
on the subject in the courts of appeal"); Gaillard, supra n.188 at 318 (evoking, in the case of both France
and Switzerland, a concern for the coherence of the states judicial structure)..
208
Gaillard, supra n.188 at 318 (chaos would result if a party could file a case in any court which would
have jurisdiction over the substantive dispute in the absence of an arbitration clause---or even worse,
before any judge whatever [un juge quelconque]). See also Sophie Crpin, Le contrle des sentences
arbitrales par la cour d'appel de Paris depuis les rformes de 1980 et 1981, [1991] Rev. Arb. 521, 528
("motivated at all times by the desire to clarify and simplify the mechanisms for challenging arbitral
awards, the legislature decided to entrust all of the litigation on this subject to a single jurisdiction, the
court of appeal").
209
For example, it is seems to be taken quite for granted under French law that the parties have no
power to contract for review of arbitral errors of law. And review of awards in the usual fashion is
restricted to the courts of appeal---while of course, in the absence of any arbitration agreement at all, the
Page 70 of 118

for example, a bench of arbitration mavens, fully at home with the interrelated pieces of
the system, mindful of what is necessary to further the interests of users, and committed
to doing so. The plausible corollary of their profound familiarity with the needs of the
system is that other magistrates must be barred from anything other than perfunctory
glance at any arbitration question. But that choice does not happen to be ours. Where,
for example, a federal district court or even a state court has plenary power both to
compel arbitration, to vacate awards, and to adjudicate the underlying cause of action---
none of the learning developed to buttress the French system can have much
purchase.
210

b. Injunctions by States of Secondary Jurisdiction

Rien ne marque tant le jugement solide dun homme que de savoir choisir entre les grands
inconvenients.
211

Injudicious? Why, it strikes at the root of the whole fairy system.
212

Recent years have brought a sharply increased awareness to international
litigators, of the possibilities inherent in injunctive relief in state courts---whether the
measure is aimed at promoting arbitration, or blocking it: Anti-suit and anti-arbitration
injunctions have thus become a tool of their trade, part of their professional jargon.
213

It is common enough that the courts of the seat might wish to enjoin parallel litigation
elsewhere in the interest of lending support to a local arbitration proceeding: This is,
after all, a remedy that can simply be framed as an alternative form of specific
performance of the arbitration agreement itself---complementary to an affirmative order
directing the parties to arbitration.
214
A protective injunction may equally be regarded as

merits of any contract claim would be heard in the usual court of first instance. Given this architecture--
which necessarily imposes the strictest of separations between, on the one hand, the work of "review" for
arbitral error, and on the other, the work of retail adjudication--conceptual purity in fitting cases into the
pigeonholes of "arbitration" and "review" and "vacatur" is absolutely critical. But under the FAA, by
contrast, "review" of arbitral awards is carried out by the very same district courts that would in the first
instance proceed to adjudicate disputes where (or to the extent that) the parties had made them non
arbitrable---or that would, to the extent an award has been understood to be non-binding, proceed to
adjudicate the entire case de novo. So on this side of the Atlantic, it shouldnt matter very much what
you call it---nor how you pronounce it. See generally Rau, Fear of Freedom, supra n.30 at 477-78.
210
At the end of the day nothing obligates us to find the European terminology particularly relevant to
American procedure. Rau, supra n. 181 at 307 fn. 55.
211
J. A. Gere & John Sparrow (eds.), Geoffrey Madans Notebooks: A Selection 106 (1981)(attributed to
the Cardinal de Retz).
212
Gilbert & Sullivan, Iolanthe, Act I.
213
Scherer & Giovannini, supra n.189 at 201-02.
214
A mere claim for damages for breach of the agreement to arbitrate is self-evidently an ineffective
remedy. See Daniel Tan, Enforcing International Arbitration Agreements in Federal Courts: Rethinking
the Courts Remedial Powers, 47 Va. J. Intl L. 545, 561 (2007)(prohibitory injunctions to ensure that a
Page 71 of 118

one of the advantages which the chosen seat of arbitration has to offer, in its continuing
effort to attract arbitration business.
215
And the remedy becomes routine to the extent
the local courts have already taken steps in the exercise of their supervisory authority
over the arbitration---thus enabling them to make a claim to be protecting their own
judgments.
216
Nor is there any reason to limit this principle of specific enforcement to
the courts of the seat: In a Convention case, the power to compel arbitration anywhere
in the world
217
should bring with it the power to enjoin inconsistent litigation even in a

party abides by his negative covenant not to pursue court proceedings); John J. Barcel III, Anti-Foreign-
Suit Injunctions to Enforce Arbitration Agreements, Cornell Legal Studies Research Paper No. 07-024
(2007), http://ssrn.com/abstract=1030403 (the enjoined party, if it invokes judicial proceedings in F2,
does something that it promised not to do; an F1 anti-suit injunction could be seen as enforcing not only
the parties agreement to arbitrate in F1, but also their implicit agreement to resolve ordinary arbitrability
questions in F1 as well); XL Ins. Ltd. v. Owens Corning, [2001] C.L.C. 914, 925 (QBD (Comm.))(if the
English court is satisfied that litigation in another country would be a breach of contract to arbitrate the
dispute in London, the grant of an injunction involves no disrespect or unfriendliness towards the foreign
court, but merely an insistence on parties respecting their own contractual obligations).
215
West Tankers Inc v RAS Riunione Adriatica di Sicurta SpA (The Front Comor), [2007] 1 Lloyds L. Rep.
391 22-23 (H.L.)(Lord Hoffmann).
216
See George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation, 28 Colum. J.
Transnatl L. 589 (1990). The author distinguishes between convenience-based anti-suit injunctions, id.
at 609 (e.g., injunctions issued to advance judicial orderliness and efficiency, perhaps by preventing a
party who has been unsuccessful in litigation from relitigating the same dispute in a foreign court);
obligation-based anti-suit injunctions, id. at 620; and policy-based anti-suit injunctions, id. at 623-29
(e.g., injunctions aimed at preventing interference with the local courts own prescriptive and adjudicative
jurisdiction, or the frustration of American law or policy): All these concerns tend to be cumulative and
mutually reinforcing in the case of the pro-arbitration injunctions discussed in the text.
See, e.g., Paramedics Electromedicina Comercial, Ltda v. GE Medical Systems Information
Technologies, Inc., 369 F.3d 645 (2
nd
Cir. 2004)(district court issued an order compelling arbitration and
then directed the respondent to dismiss the suit it had filed in Brazil, which was merely a tactic to evade
arbitration; the federal policy favoring the liberal enforcement of arbitration clauses applies with
particular force in international disputes, and where one court has already reached a judgment---on the
same issues, involving the same parties---considerations of comity have diminished force); SG Avipro
Finance Ltd. v. Cameroon Airlines, 2005 WL 1353955 (S.D.N.Y.)(the enjoining forum's strong public
policy in favor of arbitration, particularly in international disputes, would be threatened if [respondent]
were permitted to continue to pursue the Cameroon Action, particularly in light of the Court's decision
herein granting [claimants] motion to compel arbitration; the more lenient standard may be applied here
because the Court has already decided the merits); Affymax, Inc. v. Johnson & Johnson, 420 F.Supp.2d
876 (N.D. Ill. 2006)(this court has already ruled that the German dispute is subject to arbitration, and the
case for an anti-suit injunction is most compelling where, as here, a party seeks to both enforce a
judgment and avoid duplicate litigation); cf. LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194 (2
nd
Cir.
2004)(motion to compel had been denied on the ground that since both parties were already participating
in the arbitration, there had been no refusal to arbitrate).
For an application of the identical principles in the converse situation---that is, where a court was
willing to enjoin a foreign arbitration equally in order to protect its own jurisdiction and to avoid
increased expense and inconvenience to the parties if they are required to re-litigate the same issues---
see Mastercard Intl Inc. v. Fderation Internationale de Football Assn, 2007 WL 631312 (S.D.N.Y.) at *6-
*8.
217
See FAA 206 (court may direct that arbitration be held in accordance with the agreement at any
place therein provided for, whether that place is within or without the United States).
Page 72 of 118

third country.
218
(English courts have if anything been even more assertive than their
American counterparts in exercising this power
219
---but at least for the moment, and at
least within the Brussels regime, their repertoire has been sharply curtailed by West

218
Ibeto Petrochemical Industries Ltd. v. M/T Beffen, 475 F.3d 56 (2
nd
Cir. 2007). Here the trial court had
compelled arbitration in London, and at the same time enjoined pending litigation in Nigeria: Permitting
the litigation to continue, in its view, would frustrate the general policy of promoting arbitration. The
court of appeal found the injunction fully justified: The terms of the charter party, which included an
arbitration clause, had been incorporated by reference in the bill of lading directing delivery to the plaintiff
in Lagos, and were therefore binding on him; although the District Court's direction to proceed with
arbitration in London is not appealable . . . we here note our agreement with the District Court's direction
in light of [the plaintiffs] challenge to arbitration as a basis for the anti-foreign suit injunction). See also
IPOC Intl Growth Fund Ltd. v. OAO CT-Mobile LV Finance Group, [2007] CA (Bermuda) 2 Civ. 35,
43 (Bermuda court granted an injunction requiring respondent to discontinue litigation in Russia, in favor
of arbitration proceedings pending in Switzerland and Sweden; an exclusive jurisdiction or arbitration
clause contains an implied negative obligation not to litigate in any other forum, and the courts at the
seat are not the only courts that can prevent a party breaking his contract to arbitrate; in personam
jurisdiction may be conferred on local courts by a clause providing for arbitration in the forum, but it can
equally arise from the presence or domicile of the defendant).
219
See 1 Born, supra n.10 at 1036-39; Shashoua v. Sharma, supra n.43 (agreement was governed by
Indian law but provided for ICC arbitration with a venue in London; an injunction was issued against
proceedings in India aimed at setting aside the tribunals interim award on costs, and preventing the
claimants from executing a charging order issued by an English court on the respondents London house;
the defendant is seeking to outflank the agreed supervisory jurisdiction of this court).
C. v. D., supra n.20, is another English case in which an injunction was issued, not against
parallel litigation on the merits, but against illegitimate attempts to challenge in another state an award
rendered in England. The respondent had intimated its intention to apply to a Federal Court applying US
Federal Arbitration law in New York to seek vacatur of an English partial award, on the ground that it had
been rendered in manifest disregard of the law. He was enjoined, first, from initiating proceedings on
the Partial Award in New York. I suppose that it might, perhaps, have been enough simply to ignore any
later purported vacatur in New York---as a U.S. court did in the celebrated Karaha Bodas case with
respect to the purported Indonesian annulment of a Swiss award; cf. Karaha Bodas, Co., L.L.C., supra
n.174; Alan Scott Rau, Provisional Relief in Arbitration: How Things Stand in the United States, 22(1) J.
Intl Arb. 1, 43 fn. 194 (2005)(when it overturned the antisuit injunction against the Indonesian
proceedings, the Fifth Circuit surely knew -- it did not have to look very far ahead-that Swiss procedural
law would ultimately be held to govern the arbitration, since the true lex arbitri was in any event not the
law of Indonesia). But here, by contrast, vacatur in New York might just possibly have been a live
option, to the extent the courts of New York---however eccentrically---were likely to deem the award not to
fall within the Convention at all. Cf. n.31 supra; C. v. D., [2007] 1 C.L.C. 1038, 1048 (QBD (Comm. Ct.))(if
this is indeed held to be a non-Convention award, then the USA has not, at least to English eyes,
properly fulfilled its treaty obligations).
Strikingly, the English court in C. v. D. went even further than this---it also enjoined the
respondent even from relying on the law of New York in any application [that might be made by the
claimant] to enforce the Partial Award. Presumably, this was an injunction that would bar the respondent
from invoking any non-Convention grounds---like manifest disregard---in the course of resisting
recognition or enforcement of the award in New York. Carefully framed, such an injunction may be just
barely this side of the permissible (although it may also be, in Jane Austens phrase, the outside of
enough): If American courts cant quite manage to read the Convention correctly, then I suppose one
possible remedy is for the English judiciary to control, by injunction, the arguments that litigants are
allowed to make before them.
Page 73 of 118

Tankers---leaving them locked into playing one single doomed and repetitive game, le
jeu de la confiance mutuelle.).
220

Our previous discussion has already touched on the converse case---the
willingness of courts, within a single legal system, not only to decline to stay their
proceedings when they are unable to identify any duty to arbitrate, but to enjoin local
arbitral proceedings found to be illicit. That the arbitration may happen to fall within the
Convention or be otherwise international, is irrelevant.
221

220
Allianz SpA v. West Tankers Inc. (The Front Comor), [2009] 1 Lloyds Rep. 413 (ECJ (Grand
Chamber))(where an objection of lack of jurisdiction was raised before the Tribunale di Siracusa on the
basis of the existence of an arbitration agreement, including the question of the validity of that
agreement, it is exclusively for that court to rule on that objection and on its jurisdiction; an English anti-
suit injunction would run counter to the trust which the member states accord to one anothers legal
systems and judicial institutions).
In practice, this is indeed what we might call a confidence game. Cf. Gaillard, supra n.188 at
325; see also DHL GBS (UK) Ltd. v Fallimento Finmatica SpA, [2009] 1 C.L.C. 827 (QBD (Comm.)).
Here, despite a London arbitration clause, an Italian court held that it had jurisdiction to hear the case on
the merits, and that the plaintiffs bankruptcy receiver was not bound to arbitrate. The English court
declined to stay registration of the Italian judgment: It will be difficult for the English respondent to argue
that the Italian judgment falls within the Brussels regimes exception for arbitration; it was common
ground that an appeal in the Italian courts would not be decided before two or three years, while the
appeal to this court could be accommodated within the next few months---but in any event a decision of
a court of a member state as to the applicability of an exclusive jurisdiction agreement must not be
reviewed. Cf. Jan Paulsson, International Arbitration Is Not Arbitration, [2008] (2) Stockholm Intl Arb.
Rev. 1, 3 ( all a clever and resourceful defendant needs to do is to file a suit in, for example, Italy, and it
can be fairly certain nothing will happen for a decade). Compare Legal Department du Ministre de la
Justice de la Rpublique dIrak, supra n.192.
By contrast the Heidelberg Report represents an attempt to devise an alternative European
structure---one which aspires to be almost as effective as an English anti-suit injunction for the purpose
of discouraging what it has become conventional to call the Italian torpedo---or more urbanely, as
effective for the purpose of discouraging obstructing and frustrating litigation. See generally Burkhard
Hess et al., Report on the Application of Regulation Brussels I in the Member States (Sept. 2007),
123-136. The thrust of this much-discussed and highly-controversial Report is that courts of all member
states should be expected immediately to stay their proceedings,
once their jurisdiction is challenged in favor of arbitration, and once
the courts of the single state that has been designated as the seat of the arbitration has been
seized for declaratory relief with respect to the existence or validity of the arbitration agreement-
--that state alone is to be exclusively competent.
221
See Satcom Intl Group PLC v. Orbcomm Intl Partners, L.P., 49 F.Supp.2d 331 (S.D.N.Y.), affd, 205
F.3d 1324 (2
nd
Cir. 1999)(waiver of right to arbitrate through engaging in protracted litigation; since in a
Convention case 206 unequivocally directs the court to order arbitration where appropriate, it should
follow . . . that the court should have a concomitant power to enjoin arbitration where arbitration is
inappropriate, and a failure to do so would create delay and increased expense as the parties litigated in
both fora). See also Republic of Ecuador v. ChevronTexaco Corp., 499 F. Supp.2d 452 (S.D.N.Y.
2007)(order permanently enjoining New York arbitration granted at the request of the non-signatory
respondent); Masefield AG v. Colonial Oil Industries, Inc., 2005 WL 911770 (S.D.N.Y.,2005)(preliminary
injunction against New York arbitration requested by non-signatory/respondent; irreparable harm results
from arbitrating a dispute involving a party who is not covered by the arbitration agreement).
Page 74 of 118

Of course, within the arbitration community, the most unseemly, the most
objectionable, exercise of a courts equitable powers must be the attempt to enjoin
arbitration proceedings held in another statethat is, in what we have learned to call
the state of primary jurisdiction.
222
But all the usual considerations do continue to
have some purchase here. (For example, if the arbitrators in fact lack jurisdiction to
adjudicate, at the very least it will be an economy of time and cost to find out now.).
223

The source of the national courts jurisdiction is precisely the power it may exert
personally over the parties; the legal basis for granting anti-arbitration injunctions rests
on the perception that illegitimate and oppressive arbitral proceedings, initiated in the
absence of any consent to the process, may call out for judicial intervention in the form
of equitable relief.
224

Still, given that the court will not merely be withholding its support from the
arbitral process---will not, for example, merely be declining to stay its proceedings or to
compel arbitration---but will be going further, to unilaterally preempt the decision of
other, co-equal national legal orders
225
--- this is self-evidently a much more delicate
matter. Here the prospect of jurisdictional conflict may naturally justify a certain
wariness, a certain caution---may justify placing a thumb (labeled comity) on the
scales.

An injunction by the courts of state A attempting to foreclose arbitral
determination at the seat---say, in state B----will not necessarily require the cooperation
of the local courts in coercive measures. (The need for this will be considerably less
pressing where both parties are in any event subject to the personal jurisdiction of the
courts in state A). Where cooperation is indispensable, though, we can expect as a
general matter that it is not likely to be on the cards.
226

222
If one strives to act as the architect, or the enlightened guardian, of a self-contained institution of public
international law---of which the Convention is the Constitution---and if one thinks it necessary to
adjudicate on the basis of what seems to best serve the interests of this regime---then one is particularly
likely to find this unacceptable. Cf. Saipem, S.p.a., supra n.163, Final Award at 167 (it is generally
acknowledged that the issuance of an anti-arbitration injunction can amount to a violation of the principle
embedded in art. II). For my part I cannot find anything like an absolute bar in the Convention, nor do I
thik, imperialism for imperialism, that it would be self-evidently preferable to do so.
223
Black Clawson Intl Ltd., supra n.73 at 457.
224
Cf. Lew, Control of Jurisdiction by Injunctions Issued by National Courts, supra n.189 at 187 (What is
the source of the national courts jurisdiction over foreign arbitration proceedings, i.e., what is the legal
basis for granting anti-arbitration injunctions?).
225
Cf. 1 Born, supra n.10 at 1053 fns. 244, 248.
226
See, e.g., Air (PTY) Ltd v. International Air Transport Assn, (2005) 23(4) ASA Bull. 728 (Trib. de
premire instance, Geneva, 2 May 2005). Although the parties contract had not specified the arbitral
seat, they had agreed to proceed under the Rules of IATA, a trade association incorporated in Canada
with an executive office in Geneva. The respondent obtained an order from a Namibian court staying the
arbitration, and made application to a Swiss court for equivalent injunctive relief---asserting that the
claimants continuation of the arbitral proceedings constituted a gross violation of the Namibian order.
But the Swiss court refused what was in effect a request for enforcement of the Namibian judgment---
despite being sought in Switzerland under the rubric of interim relief: An injunction was unavailable
because the Swiss legal order . . . embraces to the fullest extent the principle of
Page 75 of 118

Even outside France it will frequently be suggested that a generalized
acceptance of a robust form of comptence/comptence will carry with it virtues other
than that of mere efficiency---will have above all the merit of ensuring that final
decisions with respect to arbitral jurisdiction will be made, at the time of a motion to
vacate, by judges at the arbitral seat. These are, after all, the parties natural
judges.
227
One should hardly be surprised to find this position taken, and vigorously
defended, above all in arbitration-importing states. There is the usual amount of
question-begging going on here,
228
and we can do better.

Not that we have been doing noticeably better so far. Its easy enough in the
conventional categories of cases for courts to spell out the respective roles of the states
of primary and secondary jurisdiction---this is, after all, what most of this article has
been about so far. The problem---this is the ancient jape about the young boy who
adamantly claimed that he really did know how to spell Mississippi---the problem is,
that they also have to know when to stop.

i. The Solidere case

That observation takes us directly to the Solidere case.
229
A French arbitration
had been initiated against both a signatory to the agreement, and against its parent, a
non-signatory Delaware corporation. The parent asked the federal district court in
Delaware for a declaration to the effect that it had never agreed to arbitrate and---

comptence/comptence, both in its positive and its negative forms, and as a consequence does not
recognize any supervisory power [pouvoir de tutelle] on the part of state courts over arbitral tribunals.
When we conduct the balancing test necessary before ordering any provisisonal relief, any harm that the
respondent might suffer cannot outweigh the interest of the Swiss legal system in ensuring that the
arbitral tribunal itself is given the task of ruling on its own jurisdiction.
In fact a legal regime rigidly attached to notions of comptence/comptence is unlikely to honor
any prior judicial judgment, with whatever intended effect, and wherever issued; see Legal Department du
Ministre de la Justice de la Rpublique dIrak, supra n.192; cf. Mastercard Intl Inc., supra n.216 (after a
federal district court held that a dispute was not subject to arbitration, a Zurich tribunal in a later-filed
arbitration went ahead anyway, noting that the question simply is, which of the two [fora] rightly has final
jurisdiction); Matthias Scherer & Werner Jahnel, Anti-Suit and Anti-Arbitration Injunctions in International
Arbitration: A Swiss Perspective, [2009] Intl Arb. L. R. 66, 69-70 (the arbitral tribunals position will most
likely not strike the average arbitration practitioner as being wrong, since the parties agreed to submit
their disputes to arbitration, and the merits should only be decided in this agreed forum).
227
See Poudret & Besson, supra n.47 at 477 (this is apparently the most serious argument in favor of
the negative form of comptence/comptence). See also id. at 478-79 (the foreign judge may tend,
erroneously, to apply only his own law and not the arbitration law of the seat, or at the very least is likely
to be less competent in applying correctly this body of law with which hes not familiar).
228
Apparently not realizing the extent to which this assertion completely begs the underlying question of
party consent, see id. at 478 (the judges of the state of the seat have after all the virtue of having in
most cases been chosen by the parties for their neutrality and reliability).
229
URS Corp. v. Lebanese Co. for Development and Reconstruction of Beirut Central District SAL
(Solidere), 512 F.Supp.2d 199 (D Del. 2007).
Page 76 of 118

based on its claim that no agreement to arbitrate exists---for a preliminary injunction
against the pending arbitration. This was refused: Since the French courts have
primary jurisdiction over the pending arbitration, the court declined to extend its
jurisdiction over those extraterritorial waters by enjoining the ongoing arbitration in
France.
230
In any event, the ICC had already determined under its rules that it was
prima facie satisfied with respect to the existence of an arbitration agreement binding
the parent company, and the parent had failed to demonstrate that an order by this
court on the issue of arbitrability prior to a decision by the ICC tribunal itself will
adhere to the purposes of the New York Convention.
231
So, in sum---whatever power
a U.S. court might have under Chapter One of the FAA to enjoin a local arbitration---it
was thus inconsistent with the purpose of the New York Convention to enjoin arbitral
proceedings in a state of secondary jurisdiction.
232

Now right away, if we look beneath all this conventional, well-worn, arbitration-
speak, all we find is troubling confusion: As we have seen, the distinction between
states of primary and of secondary jurisdiction is indeed abundantly familiar as an
attempt to capture the proper allocation of powers among different national courts---
primarily with respect to the annulment and enforcement of awards; it thus finds its
primary justification in the architecture of art. V of the Convention. But even if we
attribute a broader significance to the supervisory powers of the courts at the seat, this
has no obvious implications for our present concern, after all, for all we have here---for
the moment---is a threatened arbitral proceeding, with no more necessary validity than a
kangaroo court convened by officious intermeddlers.

Apparently some commentators find it axiomatic that anti-arbitration injunctions---
merely by virtue of being issued by courts of a state of secondary jurisdiction---must
inevitably be deprived of any legal effect on the arbitration. This strikes me, however,
as little more than a priori bluster, incomprehensible even on its own terms.
233
In the
converse case, where a court, after hearing the evidence, is finally convinced that a
valid arbitration agreement exists---and then, as a result, compels arbitral proceedings
to take place elsewhere
234
---my impression is that considerations of comity would

230
Id. at 209.
231
Id. at 208.
232
Id. at 210.
233
See Michael E. Schneider, Court Actions in Defense Against Anti-Suit Injunctions, in Gaillard (ed.),
supra n.46 at 41, 60. The author goes on to concede that at the most they may have some practical or
psychological effect, for instance on an arbitrator with links [with] that jurisdiction who might then be in
contempt of court.
I find this contrast between the practical effect (through coercion exercised on the respondents),
and the abstract legal effect (nil), of an injunction to be rather endearing. And in reality, of course, the
injunction will be issued not (or not only) against the arbitrators, but against disputing parties over whom
the court has the right to assert personal jurisdiction.
234
Cf. Rau, supra n.176 at 110-111, which distinguishes between two kinds of possible judicial
decisions:
a flat holding to the effect that the merits of the dispute were indeed entrusted by the parties to
the arbitrator for resolution, and
Page 77 of 118

quite properly play a very marginal role. But surely no Convention or pro-arbitration
policy can possibly justify putting ones thumb on the scales until we are first truly
satisfied that such an agreement can be found.
Similarly, a party who claims never to have consented to an arbitration clause,
cannot be bound to anything at all merely by an administrative determination of the ICC
bureaucracy---nor, for that matter, by a determination of the arbitral tribunal that the ICC
has put into place: The notion of an arbitration clause that can be entirely self-
validating--the product, apparently, of some curious process of autogenesis--is
completely alien to our jurisprudence."
235

So throughout the district courts decision in Solidere we find this confused
conflation of the ICC Rules, on the one hand, and on the other, the Conventions
exclusive allocation of supervisory power to the state of primary jurisdiction---in this
case, poignantly, France. Given such an unpromising beginning, what are we to make
of the opinion? The underlying premise of the decision must be that the Convention
imposes, on the courts of all contracting states, the obligation to stay their hands in
favor of the arbitral tribunal---as the primary decisionmaker with respect to its own
jurisdiction---subject only to after-the-fact review by the courts of the seat.
236
If this is the

a holding to the effect that "the very question whether the matters in dispute are subject to
arbitration is left for resolution to the arbitrators themselves--that is, whether an arbitral decision
on the merits was contemplated by the parties, and was within the scope of the arbitration clause,
is itself a matter for arbitration.
In either case, an award will follow. The former finding should conclusively resolve the question of
arbitral jurisdiction, although different states may vary in their willingness to give preclusive effect to such
determinations.
235
Rau, Everything You Really Need to Know About Separability in Seventeen Simple Propositions,
supra n.176 at 5. See also Alan Scott Rau, Arbitration as Contract: One More Word About First Options v.
Kaplan,12 Mealey's Int'l Arb. Rep. 1 (1997)("The ICC's practice of referring cases to arbitration once a
'prima facie agreement' is found may well be a useful administrative line for an institution's bureaucracy,
but such a standard in itself says nothing about the true presence of consent.").
236
It is apparent that making a judicial determination of arbitrability, prior to an action seeking recognition
or enforcement of an award, is inconsistent with the purposes of the FAA and the New York Convention.
Solidere, supra n. 229, 512 F.Supp.2d at 208.
This would also explain the courts lengthy discussion of the teachings of First Options, see id. at
207-08. And while that seminal case was indeed concerned about the allocation of power between courts
and arbitrators, it says nothing whatever (unlike CPC art. 1458) about the timing or chronological priority
of any decisions---which is why it operates neither to forbid nor require the relief sought by the plaintiff
here. Still, the underlying premise of First Options is that the question of arbitral jurisdiction is ultimately a
matter for the court (except perhaps in those cases where the parties have definitively agreed to entrust
this task instead to the tribunal, see n.285 infra); why should anyone assume that the decisionmaking
process must vary depending on whether URS is a) asking the court to determine the merits, or b) asking
the court to prevent the arbitrators from determining the merits?
See also Textile Unlimited, Inc. v. A.BMH & Co., Inc., 240 F.3d 781, 786 (9
th
Cir.
2001)(agreement provided for arbitration in Georgia and for any court action . . .to enforce the provisions
of this agreement also to be brought in Georgia; held, district court in California may enjoin the
arbitration; venue was proper because the very question of whether [the venue clause, like the
arbitration clause,] is a part of the contract between the parties is at issue). With respect to First
Options, see generally William Park, The Arbitrability Dicta in First Options v. Kaplan: What Sort of
Page 78 of 118

claim being made, the court seems to be eerily channeling the French regime of
comptence/comptence--- but not even the most fervent adherents of that doctrine
would presume to claim that it is internationally mandatory.
237

ii. Subject-Matter Jurisdiction
And yet there is still another aspect to the judgment in Solidere that---hard as it
may be to credit---seems even less defensible. As a technical matter the parent
companys request for relief was refused--- not on the basis of anything that has been
discussed so far---and certainly not because the court was declining to exercise its
equitable discretion on the plaintiffs behalf---but---sua sponteon the sweeping ground
that the court lacked subject matter jurisdiction over the claim. This seems to be the
precise holding of the case: Federal courts are given original jurisdiction only over an
action or proceeding falling under the Convention;
238
the implementing legislation for
the Convention only provides for two types of claims---a motion to compel, and a
motion to confirm an award; since neither party was actually seeking to compel
arbitration, and since there had not yet been any award, the plain language of the
statute---the limitation it imposes---required dismissal of the plaintiffs claims.
239

Now it is always ill-advised to frame and answer arbitration questions in terms of
subject matter jurisdiction: It is after all exceedingly common, and exceedingly easy,
to confuse the questions

whether a tribunal has jurisdiction to adjudicate, and
whether it has legitimately exercised its adjudicatory power.
240

Occasionally a negative finding with respect to the former is intended as merely a
shorthand for a negative finding with respect to the latter, and---formulaic and formalistic

Kompetenz-Kompetenz Has Crossed the Atlantic?, 12 ARB. INTL 137, 150-51(1996); Rau, supra n.181
at 289-301 (There May Be Less Here Than Meets the Eye).
237
See Gaillard & Savage, supra n.31 at 397 (the New York Convention does not cover the competence-
competence principle).
Gary Born claims that the basic structure of the international legal regime for arbitration rests on
the proposition that the arbitral tribunal has the right, and the obligation, to reach decisions regarding its
jurisdiction, and that in consequence national courts . . . are not ordinarily free to prevent the arbitration
from proceeding or the arbitrators from fulfilling their mandate. See 2 Born, supra n.10 at 2943-46, It
seems to me, though, that such a free-standing arbitral right---which can apparently be invoked even
though it is still for the moment unclear whether the contracting parties had initially agreed to anything at
all----is rather the distinctive feature---not of any international legal regime---but instead of the particular
cost-benefit analysis reflected in French legislation; see text accompanying nn. 196-206 supra.
238
FAA 203.
239
Solidere, supra n.229, 512 F.Supp.2d at 207-08.
240
The distinction between the two is plain. One goes to the power, the other only to the duty, of the
court, Fauntleroy v. Lum, 210 U.S. 230, 235 (1908)(Holmes, J.). Jurisdiction is the power to decide the
case either way, The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)(Holmes, J.).
Page 79 of 118

as this may be---I suppose it does no great harm, as long as everyone knows what is
going on. Quite often, though, they dont.
241
And where the ability of a tribunal, whether
federal court or arbitral panel, to adjudicate is closely cabined and monitored, to
characterize a question in terms of jurisdiction can be deeply misleading.
242

Turning then to this precise question, can it really be asserted with confidence
that the federal courts simply lack jurisdiction to enjoin a foreign arbitration?
243
This at
bottom is just a matter of the construction of the implementing legislation
244
: What is an

241
So, for example, it has been argued that when the parties to an arbitration agreement write a clause
providing for expanded review by the courts of arbitral errors of law, they are in effect impermissibly
attempting to grant the courts jurisdiction to review the award on the merits. Cf. Alan Scott Rau,
Contracting Out of the Arbitration Act, 8 Amer. Rev. Intl Arb. 225, 117-30 (1997):
[But] talking in terms of jurisdiction will, I think, get us precisely nowhere. To be fair, I suppose
that this unfortunate and misleading formulation may occasionally be serving simply as a
rhetorical surrogate, in comfortably familiar language, for a somewhat different set of assertions---
for example, the assertion that the parties cant dictate to the courts what legal rules to apply, nor
how the courts should go about conducting their business, nor can they specify the duties of
the federal courts or alter the judicial process by modify[ing] the scope of judicial review. . . . .
At this level of generality, we are still very much in the domain of slogans rather than that of
useful argument.
For an even more alarming example, see Redman Home Builders Co. v. Lewis, 513 F.Supp.2d
1299 (S.D. Ala. 2007) (the question of whether class arbitration was allowable was a matter for
resolution by the arbitrator, not the court; it therefore seemed to follow that the court was without
jurisdiction to consider whether the arbitration agreement permits class arbitration; this in turn meant that
there exists no case or controversy at all, so that the court need not resolve the issue whether the
requisite amount in controversy was present for purposes of diversity jurisdiction).
242
So, for example, starting from the undoubted premise that the power of an arbitrator derives from
contract, contractual limits on a permissible award may be thought (wrongly) to condition or to call into
question the original assent of the parties----and thus the very basis of an arbitrators jurisdiction. See
generally Rau, Arbitral Jurisdiction and the Dimensions of Consent, supra n.19 (even an otherwise
unexceptional arbitration agreement can be cabined about with limitations and conditions that may well
be thought to go to the power of the arbitrator to act; surely it is possible to characterize every objection
to arbitration as implicating the jurisdiction of the arbitrators, in the sense that it potentially calls into
question the presence of consent to submit to the process?)..
243
Federal courts have regularly asserted the power to grant injunctions against arbitrations with a seat
within the United States, see nn. 180-86, 221 supra and text accompanying n.221 supra. The court in
Solidere distinguished these cases away on the ground that the fact that the arbitrations took place on
United States soil vested the district courts with primary jurisdiction over those proceedings, 512
F.Supp.2d at 209. (And considerations of comity can have no possible purchase here). But nevertheless
the courts primary rationale---that under the plain language of the FAA and the New York Convention
there can be federal subject-matter jurisdiction only over actions
to compel arbitration or
to enforce an arbitral award---
would seem to apply equally both to foreign arbitrations, and to non-domestic arbitrations, held in the
U.S. but within the Convention by virtue of 202. It is evident that coherence is not an overriding concern
here.
244
That is why the recent Vaden case seems to have little or no bearing on the problem here. In
domestic arbitration cases a litigant who would like to be in federal court has to point to some
independent source of federal jurisdiction, such as diversity of citizenship or a federal question. With
respect to the latter, courts may now look through a motion made under the FAA---- to see whether, in
Page 80 of 118

action or proceeding falling under the Convention within the meaning of 203? (Note
that we already know what it means for an agreement or award to fall under the
Convention---since 202 tells us this explicitly, and uses precisely that language.)
245
If
we look over the implementing legislation, we do indeed see that only a few kinds of
judicial orders---an order to compel arbitration or to appoint arbitrators,
246
and an
order confirming the award
247
---are expressly referred to. Are we really required to
wheel out, once again, the tired canons of construction, and to conclude that federal
courts are given no jurisdiction when any relief other than this has been requested?
248

Would this most blinkered and literal of readings equally suggest that a federal
court is completely without jurisdiction to grant a request for interim relief in aid of a
Convention award?
249
Or to grant a motion to modify or vacate an American non-

the absence of any arbitration agreement, the entire, actual controversy between the parties, as they
have framed it, could be deemed to arise under federal law and thus be litigated in federal court, Vaden
v. Discover Bank, 129 S. Ct. 1262, 1275 (2009). True, jurisdiction still has to be established on the face of
the plaintiffs well-pleaded complaint---that is, on the face of his statement of his own cause of action; it
is not enough that he alleges some anticipated defense to his claim which he then asserts is invalided
by some provision of federal law; nor can federal jurisdiction rest upon an actual or anticipated
counterclaim---it does not suffice to show that a federal question lurks somewhere inside the parties
controversy, id. at 1272, 1278. But this search for the underlying body of law (state or federal) which
governs the controversy as they have framed it, or the inquiry into whether the federal courts would
have jurisdiction absent any arbitration clause, doesnt have much purchse where---as in Chapter Two--
there is already a specific grant of jurisdiction that we have to construe. The plaintiff in Solidere was not
anticipating a defense based on the Convention, but was raising a question as to the breadth of the
grant of jurisdiction in the implementing legislation.
245
See generally Rau, The New York Convention in American Courts, supra n.22 at 229-34 .
246
FAA 206
247
FAA 207.
248
See Ghassabian v. Hematian, 2008 WL 3982885 (S.D.N.Y.)(petition to stay arbitration; defendants
motion to dismiss granted). The court in Ghassabian perpetrates the perfect non-sequitur-----the New
York Convention makes no mentions of actions to restrain a pending or ongoing arbitration. [Nor, by the
way, does Chapter One.]. Therefore [sic], the New York Convention does not create a cause of action to
stay arbitration. And that conclusion is buttressed by little more than the current canon of choice:
Given this enumerated list of judicial powers, according to the canon of statutory interpretation
expressio unius est exclusio alterius . . . it is unreasonable to infer the existence of further
remedies.
249
But see, e.g., Venconsul N.V. v. Tim Intl N.V., 2003 W 21804833 (S.D.N.Y.)(movant sought a
preliminary injunction to preclude consummation of a capital reintegration during the pendency of an
ICC arbitration; it is undisputed that the Agreement falls within the scope of the Convention; the
defendants argument that subject matter jurisdiction was lacking in the absence of a motion to compel
arbitration or to enforce an award is nonsense, since under this theory a party could deprive federal
courts of the power to entertain requests for interim relief . . . by simply appearing in an arbitration
proceeding, thereby obviating the need to compel); Borden, Inc. v. Meiji Milk Prods. Co., Ltd., 919 F.2d
822 (2
nd
Cir. 1990)(entertaining an application for a preliminary injunction in aid of arbitration is
consistent with the courts powers pursuant to 206, noting, however, that in this case, far from trying to
bypass arbitration, [the movant] sought to have the court compel arbitration).
Page 81 of 118

domestic Convention award?
250
Or to grant a motion to remove an arbitral tribunal as
improperly constituted?
251
Or to enforce a foreign court judgment that itself confirmed a
foreign arbitral award?
252
While many cases have been inclined to find federal
jurisdiction over such actions---in a straightforward way, on the basis of a simple finding
that the dispute falls under the Convention under 202
253
---it has to be conceded that
here, too, there is authority to the contrary. Such cases certainly win no prizes for
judicial craftsmanship: They do not link in any satisfactory way---indeed do not even
attempt to link---the jurisdictional question to the precise text of the implementing
statute.
254
Worse, there is the persistent, muddled failure to perceive any difference

250
But see, e.g., LaPine v. Kyocera Corp., 2008 WL 2168914 (N.D. Cal.)(the arbitration agreement and
arbitral award fall under the Convention pursuant to [ 202], and the court has jurisdiction over the award
pursuant to [ 203]); Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 41 F.3d 1434 (11
th

Cir. 1998)(arbitral award falls within the purview of the New York Convention and is thus governed by
Chapter 2; we thus hold federal subject-matter jurisdiction). Cf. Productos Mercantiles e Industriales,
S.A. v. Faberge USA, Inc., 23 F.3d 41 (2
nd
Cir. 1994)(prevailing party moved for modification and then
confirmation as modified of a non-domestic award; court had subject matter jurisdiction over the
arbitration award pursuant to the Inter-American Convention and had authority, pursuant to 11, to
modify the award).
251
But see York Hannover Holding A.G. v. Amer. Arb. Assn, 794 F.Supp. 118 (S.D.N.Y. 1992)(motion to
remand to state court denied; the agreement falls under the Convention under 202, and a state court
petition directing the AAA to remove the tribunal and seeking a stay of arbitration pending a hearing on
the petition, relates to the arbitration agreement since the appointment process as directed by the
[AAA] rules forms an integral part of the agreement).
252
Cf. Seetransport Wiking Trader v. Navimpex Centrala Navala, 989 F.2d 572 (2
nd
Cir. 1993). Here
jurisdiction was founded, not on the Convention, but on the fact that the respondent---an agency or
instrumentality of the Romanian state---had impliedly waived any sovereign immunity defense by
agreeing to arbitrate and by participating in an ICC arbitration. See Foreign Sovereign Immunities Act, 28
U.S.C. 1330(a), 1605(a)(1). The claim for enforcement of the arbitral award itself was dismissed as
time- barred---but the court concluded that subject matter jurisdiction also existed with respect to the
alternative cause of action seeking enforcement of the decision of the Court of Appeals of Paris, which
had confirmed the award. See n.174 supra. Here is the link to the present discussion: The cause of
action to enforce the foreign judgment was within the scope of [the respondents] implied waiver of
sovereign immunity, precisely because it is so closely related to the claim for enforcement of the arbitral
award; it followed that this cause of action also arises under federal law. It is the FSIA itself, rather
than pendent [or supplemental] jurisdiction, that provides jurisdiction over the state law claim to enforce
the Paris Courts judgment.
253
Jacada (Europe) Ltd. v. Intl Marketing Strategies, Inc., 401 F.3d 701 (6
th
Cir. 2005)(action to vacate
was originally filed in state court, and defendant sought to remove; the Convention applies to this case,
and because this dispute falls under the Convention, [defendant] properly removed the case to federal
court); Amer. Life Ins. Co. v. Parra, 25 F.Supp.2d 467 (D. Del. 1998)(action to enjoin claimants from
proceeding with arbitration on the ground that plaintiff has no obligation to arbitrate those claims; district
courts of the U.S. have original jurisdiction over proceedings falling under the Inter-American
Convention). See also the cases in nn. 249-251 supra.
254
E.g., HSMV Corp., supra n.88 at 1127 fn. 8 (HSMVs petition to vacate could not have been initiated
under [Chapter Two, since] the Convention contains no provision that expressly permits a losing party to
initiate suit to vacate an award that would otherwise fall under the scope of the Convention); Intl
Shipping Co., S.A. v. Hydra Offshore, Inc., 675 F.Supp. 146, 153 (S.D.N.Y. 1987), affd, 875 F.2d 388 (2
nd

Cir. 1989)(preliminary injunction in aid of English arbitration; because this case involved neither an action
to compel arbitration nor enforcement of an arbitral award, the Court found that it did not have subject
matter jurisdiction pursuant to the Convention); cf. Gerling Global Reinsurance Corp. v. Sompo Japan
Page 82 of 118

between the threshold question of federal jurisdiction, and the substantive question of
the courts power or authority to grant relief----so that it is left unclear whether, say,
vacatur or an injunction could be ordered even if diversity of citizenship provided an
independent source of federal jurisdiction.
255
And above all, they uncannily bear

Ins. Co., 348 F.Supp.2d 102 (S.D.N.Y. 2004)(five years after district court confirmed an arbitral award, the
movant sought a declaration that in accordance with the Courts decision, the respondent was required
to post letters of credit in specified amounts; held, no subject matter jurisdiction because the movant
does not request that this Court confirm the underlying arbitral award nor does it seek to compel
arbitration over the disputed amount).
255
Here are two striking and instructive illustrations: You will need to look at these in some detail in order
to fully appreciate the lack of arbitration understanding on the part of so many U.S. courts. The
shallowness here runs very deep indeed.
In Ghassabian, supra n.248, the respondent had asked that an arbitration be enjoined. The
claimant moved to dismiss the petition, on the grounds both (a) of lack of subject matter jurisdiction, and
(b) of failure to state a claim, and his motion was granted---apparently for the latter reason, but without
the slightest nod in the direction of making any distinction between these two discrete challenges. The
New York Convention does not create a cause of action to stay arbitration. Not even 208 would be of
any help, because here too the FAA does not provide for petitions brought by the party seeking to stay
arbitration. Id. at *2. To similar effect is Tesoro Petroleum Corp. v. Asamera (South Sumatra) Ltd., 798
F.Supp. 400 (W.D. Tex. 1992)(the language [of the Convention and our implementing legislation] does
not appear . . . to authorize a suit to be initiated for the purpose of vacating an arbitral award; motion to
dismiss granted on the basis of lack of subject-matter jurisdiction).
But look: It has never, to my knowledge, been seriously argued---not under Chapter One, and not
under Chapter Two---that the FAA itself creates a cause of action that would entitle a movant to a stay
of arbitration. This is just a red herring; recall the text accompanying nn. 176-186, 221-222 supra. If we
are in Chapter One alone, then an independent source of subject-matter jurisdiction is required in any
event: But if this can be found, the failure to expressly mention injunctions anywhere in the Act should
hardly operate to strip courts of their inherent power---once again, this is a power that does not rest at all
on the statute itself; see also Maronian v. American Communications Network, Inc., 2008 WL 141753
(W.D.N.Y.)(of its own force FAA 4 does not apply to motions to stay arbitration, but neither does it
prohibit a district court from staying an arbitration pursuant to state law).
Similarly, in Virginia Surety Co., Inc. v. Certain Underwriters at Lloyds, London, 671 F.Supp. 2d
996 (N.D. Ill. 2009), an action was brought in state court to vacate an Illinois award, and the respondent
sought to remove. The court ordered that the case be remanded: Any express judicial power to
entertain a vacatur of the award at issue here is conspicuously absent from the Convention, and indeed,
many commentators. . . . have concluded that an action to set aside an award can be brought only under
the domestic law of the arbitral forum, and can never be made under the Convention. Id. at 998.
But look: Just what is it supposed to mean, anyway, to inquire whether a motion is being made
under Chapter One or instead under the Convention? In this case of a non-domestic U.S.
Convention award, the losing party may invoke the standards of 10 to seek to vacate it. Thats
reasonably clear; see the discussion at text accompanying nn. 21-28 supra. But this does not depend on
the writ system, nor on the forms of action, nor upon any pleading choices with respect to the governing
law made by the moving party: The simplest explanation is that the U.S. is the country in which the
award was made within the meaning of art.V(1)(e), and that it is, therefore, deemed under the
Convention to have authority to vacate in accordance with its own law: And given what art.I(1) tells us
about the coverage of the Convention generally, this need not be incompatible with the award being
subject to the Convention for other purposes. The point is that Chapters One and Two are not watertight
compartments---but that both are instead part of an overall structure dealing with the regulation of arbitral
agreements and awards. (This is an impression confirmed not only by 208 but also by 207, which
instructs a court to confirm an award unless it finds one of the grounds for refusal . . . specified in the
said Convention---which grounds presumably include a denial of enforcement envisaged by art.
Page 83 of 118

witness to the same creeping plain meaning paralysis, the same inability to read
purposefully and functionally, that seems to have affected federal courts with respect to
so many other arbitration questions---just as

the plain meaning of 10 apparently makes it impossible for parties to stipulate
for expanded judicial review on the ground of error of law,
256
and just as

the plain meaning of 7 makes it impossible for arbitrators to order a third party
to produce relevant documents prior to the hearing.
257

One finds throughout, and here again,

the same impatient, unimaginative, and impoverished view of the capacity of
language, and

the same inexplicable attachment to the overbroad and the prophylactic---to the
meat cleaver of lack of jurisdiction in preference to a focused inquiry into the
propriety of its exercise in a given case---the same fearful anxiety about
engaging in marginal, incremental thinking.

V(1)(e)---that is, in which denial of enforcement piggybacks upon a vacatur in U.S. courts on the basis of
U.S. law). So it is not internally contradictory for the Convention to specifically contemplate that a state
may choose to bring local awards within its scope, and at the same time, that a states courts may
vacate such local awards---and so, it is hardly self-evident that the motion to vacate made in Virginia
Surety is in any way impermissible under the Convention regime.
The fact that a U.S. court should have no power or authority to vacate a foreign award means
nothing with respect to U.S. awards---even those brought within the Convention by 202. The
commentators in question [actually this happens to be mostly me, see Virginia Surety Company Inc.s
Submission Regarding Subject Matter Jurisdiction, 2009 WL 5453901 (N.D. Ill.)] are merely referring to
the well-understood truism that a motion to vacate may be made only to the courts of the seat, and
nowhere else, and that the Convention does not purport to limit the power of these courts to monitor the
award. (In Virginia Surety, these are the courts of the U.S.). All that is not addresed to, and thus has
nothing whatever to do with, the question raised in Virginia Surety.
256
See Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008); see generally Alan Scott Rau,
Fear of Freedom, 17 Amer. Rev. Intl Arb. 469 (2006). Cf. Jonathan R. Siegel, The Inexorable
Radicalization of Textualism, 158 U. Pa. L. Rev. 117, 157 (2009)(describing cases---not including Hall
Street---in which, despite ambiguous statutory text of the kind that might have taken meaning form
purpose, the Supreme Court determined which possible meaning of the text was best from a purely
textual perspective, with hardly any consideration of purpose at all).
257
Apparently to summon someone as a witness with instructions to bring any documents with him can
mean only one thing: that for the subpoena power to be properly exercised,
the individual must himself personally come with the documents---it would be utterly
unthinkable, for example, for a subpoena to contemplate that the documents could instead be
sent by Federal Express; and what is more,
the individual can be asked to come---with the documents in hand--- only where---only if---and
only at the same time---that he comes to give testimonial evidence as a witness.
See Rau, Evidence and Discovery in American Arbitration, supra n.14 at 9-16 (the persistent fallacy of
plain meaning).
Page 84 of 118

A party (Solidere) defending against a motion to enjoin---a party who is asking that an
arbitration be allowed to continue unimpeded--- is not exactly asking that arbitration be
compelled
258
: But really, the difficulty is only apparent to someone who is anxious to
find it, and it is hardly a distinction that the legislator is likely to have averted to.

Whatever was said about subject-matter jurisdiction in Solidere can only be fully
addressed---and then fairly dismissed---after we look at the overall federal scheme for
the Convention, including its provisions governing removal. At first glance, the formula
of 205---permitting removal whenever the subject matter of an action pending in
state court relates to an arbitration agreement or award falling under the Convention---
certainly seems expansive, considerably broader than the definition of original
jurisdiction in 203 (which alone was in issue in Solidere).
259
But just what we are to
make of this variation in drafting remains unclear.

Perhaps we are supposed to read 205 as being strictly circumscribed by
203? (That is, the possibility of removal, too, would be confined to cases where
an action brought in state court could be considered somehow analogous to an
action falling under the Convention.) Such a reading would indeed be
consistent with the notion that removal statutes do not as a general matter confer
jurisdiction in themselves, but are parasitical on some grant of original jurisdiction

258
It seems quite uncontroversial that whenever a defendant has actually moved to compel arbitration, a
federal court could ( if asked to do so) assume subject-matter jurisdiction over the entire case---this is true
even if the defendants motion were made in response to a state-court motion to enjoin, and then
asserted as the basis for removal. For even under the most rigid view of federal jurisdiction an action to
compel falls within the Convention, and 205 is distinctive in providing that the grounds for removal of
an action or proceeding need not appear on the face of the complaint but may be shown in the petition
for removal. Cf. Banco de Santander Central Hispano, S.A. v. Consalvi Intl Inc., 425 F.Supp.2d 421,
433 (S.D.N.Y. 2006). Here the losing party moved in state court to vacate an award, and the defendant
first sought to remove, and later filed a cross petition to confirm; the court noted that while subject
matter jurisdiction would be more readily established had [defendant first asserted its] federal defenses in
the state-court action and then removed [plaintiffs] vacatur action, still, to grant plaintiffs motion to
remand at this juncture would seem unduly formalistic. As both 205 and Banco de Santander
suggest---and to be abundantly clear---in that case the entire action, including the motion for vacatur,
would now necessarily be in federal court; cf. Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys R Us, Inc.,
1996 WL 728646 (S.D.N.Y.)(the reverse situation where the prevailing party moved to confirm, and the
respondent moved to vacate; held, the court had original subject matter jurisdiction pursuant to 203,
and it may and does exercise supplemental jurisdiction over respondents' FAA challenge to the award).
Solidere as it happens was somewhat atypical in that there was simply no need for the defendant
to move to compel---nor would any such motion have been likely to be successful, if only because an
arbitration was already currently underway, the ICC having set in motion a proceeding between it and
the parent of the other signatory. Cf. LAIF X SPRL, supra n.216 at 196 (Since Telinor is currently
submitting to arbitration with LAIF X, the district court did not err in refusing to issue an order compelling
Telinor to arbitrate, i.e., to do what it was doing).
259
See Beiser v. Weyler, 284 F.3d 665, 669 (5
th
Cir. 2002 (the phrase relates to generally conveys a
sense of breadth); York Hannover Holding A.G., supra n. 252 at 12 (if Congress had intended to limit
removal to state court proceedings to compel arbitration or confirm or vacate an award, it could easily
have said so; such a narrow construction would be inconsistent with the plain language of the
statute).
Page 85 of 118

as to which a court must independently be satisfied. That is presumably what one
overwrought federal judge was getting at recently when he asserted that if an
action to vacate a non-domestic U.S. award could not be brought into his court
in the first instance, then it certainly could not be shoehorned onto his courts
calendar via removal----since Congress could never have contemplated such a
devious approach.
260

This alternative would of course still leave open the fraught question of just what
it means, anyway, for an action to fall under the Convention---but in any event it
seems an undesirable reading, at odds both with the thrust of the positive law
and with a fair reading of the statutory text.
261

Or perhaps, are we expected to treat these two statutory provisions as if they
were two separate grants of federal jurisdiction---one for cases originally
brought in federal court, and one for cases of removal?
262

But such a reading of the statutory scheme would be clumsy, unstable, and
impossible to rationalize. We all know that the removal right of 205 is, in a
number of ways, far more favorable to defendants than are the rights granted
under the removal statutes generally

.
263
But this is attributable to a deliberate
Congressional preference to channel all Convention cases, to the extent
possible, into federal courts---thereby enabling contracting parties to escape the
uncertainty of the laws of the fifty states for the comparative uniformity of federal
law.
264
By contrast there seems no reason why the removal right of 205

260
Virginia Surety Co., Inc., supra n. 255 at 998. See also HSMV Corp., supra n.88 at 1127 fn. 8
(Because the Court finds that HSMV could not have initiated this action [to vacate a California award]
under the Convention, the Court cannot assert removal jurisdiction on this basis).
261
In Beiser v. Weyler, supra n. 259, the Fifth Circuit took it as a given that 205 independently confers
a form of federal question jurisdiction, 284 F.3d at 670. Here the plaintiff had brought suit in state court
alleging a number of state-law tort claims; the defendant sought to remove (and also, by the way, moved
to compel arbitration); remand was denied, the court writing:
[W]henever an arbitration agreement falling under the Convention could conceivably affect the
outcome of the plaintiffs case, the agreement relates to the plaintiffs suit. Thus, the district
court will have jurisdiction under 205 over just about any suit in which a defendant contends
that an arbitration clause falling under the Convention provides a defense, [as] long as the
defendants assertion is not completely absurd or impossible . . . That is all that is required to
meet the low bar of relates to.
Id. at 669.
In addition to the breadth of this language, note that 205 itself later refers to the ground for
removal provided in this section.
262
See Banco de Santander Central Hispano, S.A., supra n.258 at 425 fn.2 (seeming to accept that
district courts do not have original jurisdiction over actions to vacate an arbitral award), with id. at 430
(but nevertheless, 205 removal [is not] limited to only state-court actions seeking to compel arbitration
or confirm an arbitration award).
263
See the discussion in Rau, Provisional Relief in Arbitration, supra n.219 at 19 & fn. 87.
264
Caringal v. Karteria Shipping, Ltd. 108 F.Supp.2d 651, 654 (E.D.La.,2000); see also
McDermott Intern., Inc. v. Lloyds Underwriters of London, 944 F.2d 1199, 1209-10 (5
th
Cir. 1991)(If we
Page 86 of 118

should be any more liberal than the scope of original jurisdiction under the
Convention: For precisely this same policy suggests that in both cases, the
jurisdictional reach of the statute should be equivalent.
265
I have tried to imagine
some plausible reason why a rational legislature might have intended otherwise--
-that is, I have tried to conjure up some intelligible purpose that would be served
by leaving the final choice of forum in these Convention cases entirely in the
hands of defendants---thereby requiring a vacatur or injunction action to remain
in state court unless the defendant wishes to remove. But I just cant do it.
266

To be fair, one does stumble occasionally upon some half-hearted feints in the
direction of rationalizing the distinction: It might be suggested that where a
plaintiff is seeking to stay arbitration, his action is negatively aimed at bypassing
or avoiding the process----whereas by contrast, a defendant who is invoking
federal jurisdiction through removal should be treated more generously, for he
happens after all to be the party who is seeking to allow arbitration to continue.
Supposedly a broader scope for removal jurisdiction would be more consistent
with the other pro-arbitration grants of authority in Chapter Two, in that respect
following the logic of those cases permitting injunctions in aid of arbitration.
267

But of course---once again---the problem is that it seems inappropriate to put
ones thumbs on the scale prematurely---privileging what is most favorable to
arbitration---unless and until we are truly convinced that both parties have in fact
agreed to submit themselves to this alternative process.

held that a party could be deemed to have waived its Convention Act removal rights by any legal standard
less stringent than our express waiver rule, state courts would rule on more Convention issues;
although a majority of states have abandoned the common law hostility to arbitration, we are not certain
that all states have done so or will not revert to the common law view of arbitration in the future); Suter v.
Munich Reinsurance Co., 223 F.3d 150, 158 (3
rd
Cir. 2000)(the policy and structure of the Convention
Act establish the federal courts as a preferred forum for resolving disputes under the [Act]).
265
This conclusion is also in line with a general systemic assumption that original and removal jurisdiction
are to the extent possible to be coextensive. See Georgene Vairo, 16-107 Moores Federal Practice-
Civil: Federal Courts & Jurisdiction 107.04 (3d. ed. 2009); see also Charles Alan Wright et al., 14B Fed.
Prac. & Proc. Juris. 3722 (4th ed. 2009) at 282-82 (federal jurisprudence aims to minimize any
discrepancy in practice between jurisdiction over cases commenced in federal court and those removed
to federal court).
266
One can indeed imagine stray cases where the forum option ought appropriately to rest with the
defendant; see, e.g., Mesa v. California, 489 U.S. 121 (1989)(a federal statute permits removal of a civil
or criminal case against any officer of the United States. . . for any act under color of such office, but it
is the raising of a federal question in the officers removal petition that constitutes the federal law under
which the action . . . arises for Art. IIII purposes; in this case, state criminal complaints charged postal
employees with traffic violations, and removal was held improper in the absence of some allegation of a
colorable federal defense). But the fact that one can do so, on occasion, suggests no reason why the
same option should be thought appropriate here. It isnt.
267
Republic of Ecuador v. ChevronTexaco Corp., 376 F.Supp.2d 334, 348-50 (S.D.N.Y. 2005)(respondent
brought suit in state court seeking to stay arbitration, and claimants sought to remove; held, district court
had subject-matter jurisdiction over the action under FAA 205).
Page 87 of 118

And then, perhaps, there is one final alternative---one that seems particularly
helpful if we are to properly understand the problem in Solidere: It requires no
great blaze of insight to see that if we really want to insist on a complete
correspondence of original and removal jurisdiction in Convention cases, there
are, logically, two ways of doing it: One can assume a priori that no original
jurisdiction exists over state court actions to enjoin arbitrations (or vacate
awards)---this is Solidere---and then conclude that removal jurisdiction must
necessarily be absent as well.
268
Or we can conclude that this is going about
things precisely backwards---and that as an interpretive strategy, it would be at
least as satisfactory to reason in the opposite direction.

That is, 205 can itself be made to inform a proper reading of the (hardly self-
defining) formulation of 203. (Because it precisely tracks the language of
202---and thus incorporates the elaborate definitions of that section--- 205 is by
far the least ambiguous provision of the two.). To make this move is to
appreciate all of the jurisdictional provisions of Chapter Two as integral parts of a
comprehensive scheme of overriding federal interest
269
---there are in fact no
federalism issues at all that I can discern lurking in any of these cases.
270
Both
statutory provisions can then be read together to privilege federal courts---more
likely to be sensitive to the concerns of uniformity and comity driving any
international arbitration regime---as the proper guardians of the meaning of the
Convention.

Its a pretty safe bet that if you are able to identify only one meaning for a text,
its because you havent been looking very carefully. So, to sum up: The grant of
original jurisdiction in 203 could mean, then---as Solidere supposes---a grant of
jurisdiction over,

an action specifically provided for in Chapter Two, or
an action arising under or brought under the Convention, or

268
E.g., Virginia Surety Co., Inc. , supra n.255 at 998:
That result operates on the premise that Congress knew what it was doing-that having
deliberately limited original federal court jurisdiction in Section 207 [sic; 203?], it would not have
left to a heavily-inference-dependent approach the possibility of removal to the federal courts of
cases that do not come within such original jurisdiction.
269
See Banco de Santander Central Hispano, S.A., supra n. 258 at 431-33 (the legislative history
suggests the intention of a distinct federal role in the enforcement of Convention awards and
agreements).
270
Cf. Note, The Jurisdictional Label: Use and Misuse, 58 Stan. L. Rev. 1457, 1481 (2006)(federal
subject matter jurisdiction ought to refer to the collection of policy decisions that separate the federal
judiciary from state judiciaries, the bundle of . . . policy decisions balancing the need for a national
arbitrator when states cannot be trusted to do justice, and concerns for how to distribute limited judicial
resources).
Page 88 of 118

an action asserting a right granted by the Convention.
271

But the language of 203 is considerably looser,
272
and could, instead, just as easily
confer original jurisdiction over,

an action or proceeding [which relates to the validity or enforceability of an arbitral
agreement or award itself] falling under the Convention [as defined by 202], or
an action or proceeding asking the court to determine whether a duty to arbitrate
under the Convention has been triggered.

That seems an extremely low threshold indeed, one that the plaintiff in Solidere should
have no difficulty stepping over.
273

Note, finally, that in Solidere it was undisputed that the district court had
jurisdiction on the basis of diversity.
274
The problem in the case (quite fortuitously) was
the lack of personal jurisdiction over the defendant in the absence of any contacts
specifically with the state of Delaware:
275
If the plaintiff had been able to point to such
contacts, then the court would have had both subject matter jurisdiction to hear the
case, and personal jurisdiction to adjudicate the rights of the parties.
276
Would it then
have been able to enjoin the arbitration? One strongly suspects---the U.S. was not,
after all, the state of primary jurisdiction--- that the result here would in any event be
the same. Still, one cant be sure that the case doesnt ultimately hinge on the trivial
factoid that the defendant just didnt happen to be doing business in Delaware.

271
Or even, perhaps, an action analogous or equivalent or a counterpart to any of these---even
though the plaintiff may be nominally advancing his suit on grounds other than those under the
Convention; cf. Restatement, supra n.25, 5-18 Reporters Notes Note g.(ii)(a confirmation action under
FAA Chapter One may nevertheless be removable, since the Conventions do have counterparts to
Chapter One confirmation actions (namely, enforcement actions)).
272
Cf. id. at p. 206.
273
See, e.g., Ministry of Defense of the Islamic Republic of Iran v. Gould Inc., 887 F.2d 1357, 1362 (9
th

Cir. 1989)(only three basic requirements exist for jurisdiction to be conferred upon the district court: An
award must arise out of a legal relationship, which is commercial in nature, and which is not entirely
domestic in scope); Beiser v. Weyler, supra n. 259 at 672 fn. 7(resolving the question of whether the
agreement falls under the Convention will ordinarily prove quick and easy).
274
Solidere, supra n.229, 512 F.Supp.2d at 205 n.2.
275
See id. at 215-17.
276
If the case had been deemed to fall under the Convention, then here too, the court would have had---
not only subject matter jurisdiction under 203---but personal jurisdiction as well: The defendants
undoubted nationwide aggregate contacts with the United States as a whole would suffice for personal
jurisdiction, but only where the case arises under federal law---that is, only if this had been considered a
Convention case within the meaning of Chapter Two. Fed. R Civ. R. 4(k)(2).
Page 89 of 118

iii. All things are lawful; but not all things are expedient.

It is one thing to be deliberate, and even hesitant, in enjoining foreign
arbitrations---to shrink from the necessity of doing so in the course of an open,
articulated, exercise of discretion. Courts would then have to develop a jurisprudence
aimed at identifying the limited circumstances in which an injunction might not seem
imprudent. By contrast, invoking the lack of "subject matter jurisdiction" seems a crude
and clumsy and overbroad and irresponsible way of answering the question (to which
the extent of the defendants contacts with Delaware does not seem functionally
related). Invoking a putative lack of power based upon absolute prohibitions that
supposedly emanate from the Convention, is subject to precisely the same criticism.

Questions of jurisdiction and power are profoundly uninteresting here. Instead
the text for the remaining discussion should instead be drawn from St. Paul---the lesson
that all things are lawful; but not all things are expedient. All things are lawful; but not
all things edify.
277
Or perhaps, for judges who may be novice drivers trying to navigate
in unfamiliar terrain, the appropriate traffic signal is the flashing warning light of danger
rather than the barrier of no entry.

To begin with, there are cases at the consensual core: These are cases where
a court must first assure itself that the parties have agreed to arbitrate something---and
where, until this has happened, there exists as yet no reason to defer to the supervisory
power of any alternative regime of dubious legitimacy.
278

For example, take the case where one of the parties asserts that his signature
to the agreement has been forged; he asks the court to prevent any arbitration from
being initiated---at the very least until this issue has been resolved. It is perfectly
consonant with the premises of Anglo-American law that a court here may (and indeed,
should) do so---and, where continuation of a foreign arbitration would be
unconscionable and a needless expense, any question of deference to a putative
arbitral tribunal, or to a supposed court of primary jurisdiction, or to the structure of
the Convention, will simply not arise.
279
Indeed, when we are faced with such a case,

277
1 Corinthians, 10:23.
278
See generally Rau, Arbitral Jurisdiction and the Dimensions of Consent, supra n.19 at 204-05 (Did I
Validly Agree to Arbitrate Anything at All?; justifiable doubts about consent to arbitrate (and by
necessary implication, about arbitral jurisdiction) are raised, for example, by the classroom hypotheticals
of offer and acceptance that suggest a lack of adequate manifestation of mutual assent).
279
See, e.g., Albon v. Naza Motor Trading, [2008] 1 Lloyds Rep. 2. (C.A.). An injunction had been
deemed appropriate by the trial judge on the ground that if the claimant were to allow the arbitrators to
proceed pending determination of the issue of forgery, it would result in a duplication of proceedings
that must be oppressive and unconscionable. And more functionally, with respect to the interests of the
competing fora, it noted that the period of added delay entailed by a judicial determination should be
short, and indeed would be very short indeed if the claimant did not continue to maintain its objection to
this court resolving as a matter of urgency (as it has offered to do so) the issue of authenticity. Albon (t/a
NA Carriage Co.) v. Naza Motor Trading Sdn Bhd, [2007] 2 Lloyds Rep. 420 (Ch.).
Page 90 of 118

what could it possibly mean to assert that an anti-arbitration injunction would curtail
the basic human right to the effect that every person should have access to
justice?
280
Not much, I should think---for that claim elides the only real question---that
is, who is the ultimate decisionmaker to be? (and perhaps, just how many interim
decisionmakers are we willing to tolerate?).
281

The same principle may extend to other cases: For example, assume that after a
reading of the overall agreement, a court is convinced that it would be most congruent
with the overall intentions of the parties that the arbitration---which after all has to be
held somewhere--- should take place locally---which also happens on balance to be the
parties natural forum. It may then reasonably conclude that arbitral proceedings
threatened elsewhere ought to be enjoined.
282

At the same time, by contrast, no responsible court could now make the mistake
of thinking an injunction justified merely because the validity of the overall container
contract itself has been challenged---on the ground that here too, the requisite consent
to submit to arbitration had equally been called into question: The notion of

Cf. Graham Dunning, StopOr Go? Injunctions and Arbitration, [2008] 74 Arbitration 254, 259
(Aug. 2008), who asks, Why did the Court not leave it to the arbitral tribunal to determine the validity of
the arbitration agreement and whether or not it had been forged? To have done so would have been
consistent with the recent decision of the house of Lords in Fiona Trust v. Privalov. Of course, any
reference to arbitration, in these circumstances, would necessarily have been provisional, that is, subject
to de novo review---as the reference to Fiona Trust does not seem to recognize. But the simple and
obvious answer to the question posed has already been given; see text accompanying n. 235 supra (the
notion of an arbitration clause that can be entirely self-validating . . . is completely alien to our
jurisprudence).
Easily as clear a case for an injunction, on the same ground, is Raytheon Engineers &
Constructors, Inc. v. SMS Schloemann-Siemag Akiengesellschaft, 2000 WL 420866 (N.D. Ill.)(injunction
granted against ICC arbitration; the arbitration clause was permissive, and thus the defendant had no
unilateral right to compel arbitration; any supposed policy in favor of arbitration can hardly create an
agreement to arbitrate out of whole cloth).
280
Pierre Karrer, Anti-arbitration Injunctions: Theory and Practice, in International Arbitration 2006: Back
to Basics?, supra n.52 at 228, 230.
281
Cf. Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059 (9
th
Cir. 2007). Here an
English court had issued an injunction against U.S. litigation on the ground that the parties agreement
designated English arbitration as the means for resolving disputes. Nevertheless the Ninth Circuit held
that a stay of the federal litigation was inappropriate: If the record were clear that the parties agreed to
foreign arbitration, or if the district court made such a determination, we would have very little trouble
upholding the stay----but on the contrary, the parties disagreement over that issue was central to the
dispute before us: Therefore the district court was required first to develop the record in order to
determine whether there was an agreement to arbitrate, and thus to answer threshold issues of
arbitrability). Id. at 1069-70.
282
See Tonicstar Ltd., supra n.17, see also n.53 supra. In Tonicstar the respondent was actually enjoined
from pursuing an action in a federal court in New York seeking to compel arbitration---but it was clear that
in the absence of party agreement, any arbitration ordered by a U.S. court would have to have its seat in
New York. (See the discussion in n.17 supra). However, having chosen to contract in the Lloyds market
on the Lloyds slip policy form it is to be inferred that the parties intended these provisions to be
determined by English law and that the proper law of the whole contract is English law: Therefore the
center of gravity of the dispute lay in England, which was the parties natural forum.
Page 91 of 118

separability should by now be sufficiently well-understood to make a result like this
simply impossible.
283
Equally ill-advised, and for similar reasons, was a well-known
injunction issued by a Quebec court barring the respondent from asserting a
counterclaim in a pending New York arbitration:
284
The injunction was apparently
deemed justified based on what reads like a quintessential laundry list of the
inappropriate and the improper---among other things, it was issued on the ground that

the parties by their pleadings in local courts had mutually renounced the
arbitration clause,
285
and because,

283
Cf. Lew, Control of Jurisdiction by Injunctions Issued by National Courts, supra n. 189 at 216 (The
granting of an anti-arbitration injunction may violate the principle of separability, because not infrequently,
such injunctions are granted in response to a claim of the invalidity of the main contract).
284
See Lac dAmiante du Canada Ite v. Lac dAmiante du Qubec Ite, 1999 CarswellQue 2752 (Cour
sup. du Qubec), affd, 1999 CarswellQue 3688 (Cour dappel).
285
Different national schemes will necessarily allocate power between courts and arbitrators in different
ways. But in many cases, the particular issue of whether there is any duty to arbitrate---typically,
perhaps,
the question whether the dispute falls within the intended scope or coverage of the arbitration
clause, or
the question whether an agreement to arbitrate has over time somehow lapsed, or expired, or
been rescinded
will have been entrusted to the arbitrators themselves for a final determination, whether
by express contractual provision, or
by incorporation of institutional rules, or
by an increasingly common gap-filling default rule or presumption.
See generally Rau, Arbitral Jurisdiction and the Dimensions of Consent, supra n.19 at 212; Rau, The
Arbitrability Question Itself, supra n.181 at 319. Then a court would be expected to defer, not only after
the awardbut prospectively as well---to the arbitrator's exercise of his authority. And in no event may
any injunction interfere with a contractual allocation of this prerogative to the arbitral tribunal.
In particular, assertions that a delay or a misstep in asserting a claim have caused the dispute to
be no longer "arbitrable---assertions of abandonment or waiver---assertions that time limits have
passed, or that necessary procedures have not been followed, or that delay in asserting a claim, or action
inconsistent with the intention to pursue arbitration, have been prejudicial to the other party---all are
matters that are routinely entrusted to the arbitral tribunal itself. What all these cases seem to have in
common is that there was originally an agreement in which arbitrators have been selected and entrusted
with the power to do something. And to the extent that defenses like waiver are presumptively treated as
within the contractual jurisdiction of the arbitrators, there is of course no argument for deferring on the
issue to the courts of any legal system. See Boateng v. General Dynamics Corp., 473 F.Supp.2d 241 (D
Mass. 2007)(assertion that the employer had waived its right to arbitrate and was estopped from
enforcing the agreement, was an issue for the arbitrator; determination of this issue involves questions of
fact ... and contract interpretation and arbitrators are well suited to answer such questions); see also
Elektrim SA v. Vivendi Universal SA, [2007] EWHC 571 (QBD (Comm.))(respondent sought an action to
restrain the claimant from pursuing a LCIA arbitration until the completion of an ICC arbitration in Geneva,
which had been initiated under an agreement purporting to settle all existing proceedings; held,
application denied; the real aim of the requested injunction appeared to be case management of the
two arbitrations---but the LCIA arbitration itself results from an admittedly valid arbitration clause, and
the Arbitration Act contemplates that the tribunal itself will consider and decide such matters as the
appropriateness of an adjournment or a stay of the arbitral proceedings).
To be fair, the picture is considerably more muddled when it comes to claims of waiver that are
predicated solely upon participation in the lawsuit by the party seeking arbitration; here the desirability of
Page 92 of 118

the local courts were the most appropriate forum under the circumstances to
decide all of the claims---since they had alone had jurisdiction over both
defendants, and control over all relevant files and documents, and what is more,
the counterclaim had no legal basis, for the defendant-counterclaimant had at
least as of that moment not suffered any quantifiable financial loss,

That all this seems deeply troubling to us, reflects the fact that the grant of an injunction
in these circumstances would seem to involve paying little or no deference to
arbitrations prime values of private autonomy---paying, that is, little or no attention to
what the parties could reasonably have expected to be within the authority of their
chosen decisionmakers. (In that respect the result in this case should be strikingly
different from the forgery example we began with.). The scope of contractual intention
is, as always, a useful heuristic helping to dispose of many cases where anti-arbitration
injunctions are sought
286
At the same time, one should bear in mind that our
disapproval has nothing whatever to do with any supposedly superior claim of the state
of primary jurisdiction.

retaining judicial control over litigation related activity may make any default rule to the contrary a
disfavored contention. See Marie v. Allied Home Mortgage Corp., 402 F.3d 1 (1st Cir. 2005) (allowing
courts to decide waiver issues arising out of litigation-related activity furthers a key purpose of the FAA:
to permit speedy resolution of disputes; comparative expertise also argues for judges to decide this
issue as they are well-trained to recognize abusive forum shopping. The final proviso of 3 of the FAA
has in fact been thought to constitute a statutory command that courts, at least in these circumstances,
are to decide the waiver issue themselves, see County of Middlesex v. Gevyn Constr. Corp., 450 F.2d 53,
56 n. 2 (1st Cir. 1971) (the pursuit of legal remedy inconsistent with arbitration is the default situation
contemplated in 3).
286
See, for example, Cobra North America, LLC v. Cold Cut Systems Svenska AB, 639 F.Supp.2d 1217
(D. Colo. 2008). Here an arbitration was under way in Sweden between a Licensor and its Licensee, in
which the latter claimed that its license had been wrongfully terminated; pending the result of that
arbitration, the court stayed U.S. litigation brought against the Licensor by a Sublicensee. The plaintiff-
Sublicensee had asked for an injunction against the Licensors marketing and selling the licensed product
within the United States. It also requested an injunction against the arbitration itself---and this was easily
denied, partly on the ground that the plaintiff wasnt even a party to the ongoing arbitral proceedings---and
more importantly, on the ground that the immediate Licensee, (although one of the parties to the
arbitration) was not a party to the action before the court.
One striking feature of the litigation was that the Plaintiff-Sublicensee was apparently a wholly-
owned subsidiary of the Licensee, and that its claims in the U.S. litigation stem from, flow from, and are
derivative of, the Licensees own rights under the license---and indeed, that both the license agreement
and the plaintiffs own sublicensing agreement provided in identical terms for any disputes to be settled by
arbitration in Sweden. All this suggests that the Sublicensee might plausibly have been joined in the
Swedish arbitration in the first place: And this, of course, would have made an injunction even less
appropriate. (The Sublicensee had in fact originally claimed the status of a third-party beneficiary---but
withdrew this claim apparently as a tactical measure to avoid being forced into arbitration in Sweden.).
Inevitably, when the Licensee later prevailed in the Swedish arbitration, the Sublicensee immediately
asked that the Licensee be joined as a plaintiff in the stayed litigation, so that [it] may apply to the Court
for confirmation of the award pursuant to the Convention---alleging that the Award after all decides the
primary issues in controversy here. See 2009 WL 2416356, 2009 WL 4506404 (D. Colo.).
The parties were apparently in federal court on the basis of diversity; quite properly, neither the
Convention, nor any respect supposedly owed to the legal order of Sweden as the state of primary
jurisdiction, played any part whatever in the courts sensible decision to withhold an injunction.
Page 93 of 118

Nor should a local public policy barring the arbitration of certain types of disputes
justify an injunction against arbitration elsewhere. (Although it may of course justify the
forums refusal to stay litigation or compel arbitral proceedings, or its refusal to enforce
the ultimate award). This category of non-arbitrable disputes is, as we know, in the
United States virtually a null set--- but in any event there can be little that could possibly
render legitimate the forcible exportation of local notions of non-arbitrability to control
foreign proceedings.
287
It is perfectly possible after all that an award rendered at the
seat could be enforced there---or indeed in any other state where deference to the
mandatory law of the enjoining court would be considered somewhat less important
than attention to party autonomy.
288
In addition, the full dimensions of what is entailed
by compliance with public policy may not be apparent until after an award has been
rendered: There is usually plenty of room for judicial dialogue on this point with arbitral
tribunals; it is commonplace to find that their informed appreciation of situation and
context, and their creativity in interpretation, may help to provide a fruitful first look at the
problem.
289

287
Cf. Murphy Oil USA, Inc. v. SR Intl Business Ins. Co. Ltd., 2007 WL 2752366 (W.D. Ark.), which held
that Arkansas public policy prohibiting arbitration clauses in insurance policies could not justify an
injunction against an English arbitration. While the opinion is written so as to rest on the proposition that
the New York Convention supersedes and renders irrelevant conflicting state law, this seems a
dangerous ground---since it is, surprisingly, a murky matter that has given rise to a curious and contested
jurisprudence; cf. Safety Natl Cas. Corp. v. Certain Underwriters at Lloyds, London, 587 F.3d 714 (5
th

Cir. 2009)(since the Convention is a treaty, it cannot therefore be an Act of Congress within the usual,
commonly understood meaning of the term as used in the McCarran-Ferguson Act, which exempts state
insurance regulation from federal preemption based on congressional legislation). It might be better
simply to say that in a courts requisite exercise of balancing of interests to determine whether to grant
or to withhold a preliminary injunction, the factor of the public interest should itself be understood to
include sustained attention to the principles of international comity, Murphy Oil at *5.
288
A Quebec court justified its injunction against the assertion of a counterclaim in a New York arbitration,
on the ground that since any decision by the arbitrators on the merits would ultimately be futile, the
award would not be capable of being enforced in Quebec. See Lac dAmiante du Canada Ite, supra
n.284 and text accompanying nn. 284-86 supra. But I see no reason to assume that any New York award
issued under these circumstances would not be enforceable there or elsewhere.
See also Northrop Corp. v. Triad Int'l Marketing S.A., 811 F.2d 1265 (9th Cir.1987). The government
of Saudi Arabia had issued a decree, formulated specifically with the Northrop-Triad agency relationship
in mind, which prohibited the payment of commissions in connection with armaments contracts; after
Northrop ceased paying commissions, however, California arbitrators awarded Triad over $31 million.
The district court refused to confirm the award, holding that it was "contrary to law and public policy, but
the Ninth Circuit quite properly reversed: No conflict of laws principle that might call for the application of
Saudi law could possibly be of "sufficient standing" "to overcome the strong policy consideration" favoring
choice-of-law provisions as "an almost indispensable precondition to achievement of the orderliness and
predictability essential to any international business transaction.
289
One of my favorite examples of this point is a recent, very suggestive decision by the Court of Appeal
of Ghent. Apparently, under a Belgian decree of great antiquity, non-competition agreements are void
unless they are for a limited, reasonable period---and courts are not permitted to blue pencil or reform
provisions that fail to meet that test, but are instead expected to strike them out completely. Faced with
such a clause, an arbitrator concluded---after interpreting the agreement on the basis of the joint goals
of the parties---that it was implicitly limited to a period of five years; once he had made that move, he
Page 94 of 118

It is well-known that states outside the mainstream of the international arbitration
system have been particularly inclined to issue injunctions on grounds like these: The
unhappy fact that in a heterogeneous world, other judicial systems, captive of different
legal traditions, may demonstrate a certain lack of independence---or solipsism, over-
protectiveness, or simple venality---certainly makes for interesting anecdotes.
290
Such

was then in a position to enforce the provision on the ground that its limits on competition now did extend
only for a specified, reasonable time period. The award was upheld: The interpretation given by the
arbitrator to the non-compete clause belongs to his judicial capacity, and the result of that judgment
cannot be in conflict with public policy. Since divining contractual intention is within the sovereign
appreciation of the arbitrators---a task entrusted to them by the parties----and since the problem was
framed by the arbitrator as a matter of construction, rather than as one of reformation-- the clause was
now exempt from challenge. J.-P. V. v. V.D.C. Verzekeringen, (Gent 7ime Chambre bis, Dec. 3, 2007),
P. & B./R.D.J.P. 2008, at 131; discussed also by Arne Gutermann & Joeri Vananroye, Developments in
Belgian Arbitration Law, in The Baker & McKenzie International Arbitration Yearbook: 2008, at pp. 106,
110-11.
The Northrop case, supra n.288, equally seems to exemplify this point. The arbitrators did not
after all go about their job as if they were expected to apply the Saudi decree as regulatory law ex proprio
vigore--rather they were asked merely to take it into account in order to judge the nature of the
defendant's promised performance--determining whether the lex contractus, as properly understood,
imposed liability for the defendant's conduct. Here, then, we are smack in the middle of the domain of
interpretation and of context: That is, the decisionmaker would be asked to assess what would be a "just
allocation of risk" in terms of the implicit, underlying assumptions of the contracting parties--a task
familiar across differing legal systems, calling for an exercise of judgment with respect to
what "commercial practice" tells us about which party would be expected to insure against or
prevent the risk;
whether the risk of supervening illegality was foreseeable at the time of contracting,
what were the respective responsibilities of the parties to obtain necessary governmental permits or
authorizations; and
whether--whatever the possible effect of illegality on executory portions of the agreement--the
plaintiff could possibly have been thought to have assumed the risk of nonpayment for performance that
he had already completed.
Such inquiries are of course quintessentially matters for the arbitrators, and it is something about
which the law of California, the law the parties had chosen to govern contract performance, undoubtedly
had much to say. Rau, The Arbitrator and Mandatory Rules of Law, supra n.30 at 71-73; see also id. at
77-78 fn.90; MGM Productions Group, Inc. v. Aeroflot Russian Airlines, 91 Fed. Appx. 716 (2
nd
Cir.
2004)(the arbitrators found that since the agreement provided only for transactions between the claimant
and the respondent, it did not contravene the Iranian Transactions Regulations adopted by the Treasury
Department; we accord great deference to the arbitrators factual findings and contractual construction).
290
Cf. Telenor Mobile Communications AS v. Storm LLC, 524 F.Supp.2d 332 (S.D.N.Y. 2007), affd, 584
F.3d 396 (2
nd
Cir. 2009). A dispute arose out of an agreement between shareholders in a Ukrainian
telecommunications venture---a Norwegian company (the claimant) and a Ukrainian company (the
respondent); the claimant, wary of the Ukrainian legal system, had insisted on an arbitration clause
calling for arbitration in New York. At the request of the respondents parent company, a Ukrainian court
held the arbitration agreement to be null and void, and enjoined both parties from participating in the
arbitration; this Ukrainian decision was issued without any notice whatever to the claimant, and after only
perfunctory oral opposition from an individual who was apparently an officer of the ultimate parent
company of both the respondent and the plaintiff (sic). The arbitration nevertheless continued in the
absence of the respondent---and the award was confirmed by a U.S. court, which found that the
respondent had made repeated efforts to renege on its agreement and to torpedo the proceeding by
collusive and vexatious litigation.
Page 95 of 118

cases provide plenty of raw material for speculation as to just what we might have in
mind when we use the phrase rule of law. And in addition, they provide plenty of data
for the necessary risk calculus useful to market actors in making investment decisions.
But they dont seem to be of much help in formulating generally applicable rules of
international arbitration for American courts, and the relevance for our present problem
is slight: For the lesson of such cautionary tales is certainly not that we must tie our
own hands, to prevent us from ever issuing injunctive relief against arbitrations where
such a measure seems called for: That is not what comity or internationalism can
possibly mean. And I cannot believe that the Convention regime is intended to place us
right in the midst of some sort of iterated Prisoners Dilemma, in which cooperative
moves on our part are called for solely in order to elicit similar behavior from the states
in question. In short, the power has to be reserved, however circumscribed and
circumspect the exercise.
291

The request for an injunction in Solidere was, as we have seen, an attempt to
short circuit both the rules of the ICC, and the arbitral regime of the state of primary
jurisdiction.
292
All of this, however, could only be thought significant in the event that
the claimant had indeed assented to those rules, or to the supervisory authority of those

See generally Lew, supra n.189 at 207-12 (cases from Indonesia and Pakistan; injunctions used
primarily as a tactical tool to undermine, destabilize, delay or avoid an arbitration); Peter Cornell &
Arwen Handley, Himpurna and Hub: International Arbitration in Developing Countries, 15 (9) Mealeys
Intl Arb. Rep. at p. 39 (Sept. 2000)(same; cases illustrate the ways in which a state party may be able to
invoke the assistance of its local courts to avoid its contractual obligations). See also Venture Global
Engineering, supra n.65 at 13, 19 (Indian courts enjoined a transfer of shares, which had been ordered
by a London tribunal but which would allegedly violate Indian law; Indian public policy includes the
interests of India, and should not be bypassed by taking the award to a foreign country for
enforcement); Amaprop Ltd. v. Indiabulls Financial Services Ltd., 2010 WL 1050988 (S.D.N.Y.)(courts of
Mumbai issued an ex parte order against pursuing a New York arbitration, even though it was completely
undisputed that the current dispute falls within the Agreement's arbitration clause). That final resolution
in Mumbai would be likely to take longer than 15 to 20 years, not counting additional years spent on
appeal, undoubtedly played some part in a federal courts decision to direct the respondent not to pursue
any action there that would be designed to interfere with the arbitration; the respondents argument that
it was under a legal requirement to obtain the permission of the Bank of India before it could perform its
buy -back obligations under the agreement was properly held to be an argument for the arbitrator, and
not this Court.
Recent legislation in Belize is in the same vein: The Supreme Court of Judicature (Amendment)
Act allows the courts there to issue injunctions against arbitrations, or against enforcement proceedings, if
they are deemed oppressive, vexatious, inequitable, or if they would constitute an abuse of the legal or
arbitral process; parties who do not comply with such orders---regardless of where the offense takes
place---are subject to fine or a minimum term of imprisonment for 5 to 10 years. Kyriaki Karadelis,
Belize legislates against arbitration, April 12, 2010,
http://www.globalarbitrationreview.com/news/article/28264.
291
Recall that a U.S. court which has abstained from enjoining a foreign arbitration may find itself in the
position of later being expected to honor as a judgment a decision by the courts of the seat confirming the
award. See text accompanying n. 172 and n.172 supra; see also Seetransport Wiking Trader, supra
n.174.
292
See text accompanying nn. 233-35 supra.
Cf. Masefield AG, supra n.221 at *2 fn.2 (invocation of the ICC Rules can only be founded upon
the unproven assumption that the arbitration provision reflects plaintiffs' intent).
Page 96 of 118

courts---but that, in turn, was the very issue in contention, and as yet unresolved. So in
such cases the inquiry into consent must be rigorous and de novo; nor can it be left to
the law or the courts of the seat without courting circularity. Perhaps indeed in
international cases the most minimal indication of the parties intent to arbitrate may
suffice,
293
but in no event should a party be exposed to arbitration proceedings without
some assurance that such an intention is present.
294

This is the principle that seems to drive many cases, including the Second
Circuits curiously controversial recent decision in Sarhank.
295
The simple premise of

293
Cf. Republic of Nicaragua v. Standard Fruit Co., 937 F.2d 469, 478 (9
th
Cir. 1991)(although the district
court found that the arbitration clauses lack of specificity mitigated against its enforcement, the
clear weight of authority holds that the most minimal indication of the parties' intent to arbitrate must be
given full effect, especially in international disputes).
For the proposition that the scope of this inquiry into core consent should be a very narrow one
indeed---with the surprising corollary that even the defense of unconscionability is not---and indeed
cannot be---a recognized defense to the enforceability of arbitration agreements falling under the
Convention, see Khan v. Parsons Global Services, Ltd., 480 F.Supp.2d 327, 340 (D.C. D.C. 1007), revd
on other grounds, 521 F.3d 421 (D.C. Cir. 2008) (appeals to a courts discretion outside of the letter of
the law are contrary to [the need for ] certainty)(italics in original). In Khan, though, the precise nature of
the unconscionability claim was never addressed or explained, and the court obviously didnt want to be
bothered: As applied to the separable arbitration agreement itself, it could in any event safely be
assumed to be an attempt of dubious merit to derail the process; see Plaintiffs Memorandum in
Opposition to Defendants' Motion to Dismiss,, 2003 WL 24252640 (D.D.C.) (arbitration clause imposes
an absurdly short (and non-mutual) 30-day statute of limitations for claims; requires the employee to
split arbitration costs, offers little or no opportunity for discovery; and poses a real risk that plaintiffs
will be unable to recover punitive damages in a case where such damages must be available).
294
At least for the moment, then, there is no real support for a further, and very adventuresome, step in
social engineering---the proposition that the taken-for-granted nature of arbitration agreements in
international transactions should actually shift the burden of proof to the objecting party, creating a
working presumption in favor of the premise that such an agreement does in fact exist. Cf. 1 Born, supra
n.10 at 653 (because international arbitration is the natural and preferred means of resolving
international business disputes, and because arbitration typically produces efficient, expert resolution of
[such] disputes, there are very serious reasons to presume . . . that commercial parties are predisposed
to enter into international arbitration agreements). To the extent that this suggestion rests on the usual
function of a default rule---the desire to most closely mimic the hypothetical bargain that the parties
themselves would have chosen in a completely spelled-out agreement----a recent empirical study of
contracts (contained as exhibits to Form 8-K filings with the SEC during 2002) is striking: See Theodore
Eisenberg & Geoffrey P. Miller, The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration
Clauses in the Contracts of Publicly Held Companies, 56 DePaul L. Rev. 335, 351-52 (2007)(while
arbitration clauses do indeed appear more frequently in international contracts than in domestic ones---
clauses appear at about twice the domestic rate when the contract includes a non-U.S. party---
nevertheless, the international contracts, like the domestic contracts, contain a low absolute rate of
arbitration clauses: only about 20% of international contracts contain them). By contrast, the claim that it
is one virtue of an altered default-rule model that it would cause arbitration to lose its contractual
foundation altogether, displays considerable analytical confusion; cf. Giles Cuniberti, Beyond Contract:
The Case for Default Arbitration in International Commercial Disputes, 32 Fordham Intl LJ. 417 (2009).
295
An agreement was entered into between Sarhank (an Egyptian company), and Systems (a Cypriot
company); the agreement was to be performed within Egypt and provided for arbitration under Egyptian
law. Sarhank later initiated an arbitration against Systems and also against Oracle, its Delaware parent;
although Oracle protested that it had not signed the agreement and had not in any other way consented
Page 97 of 118

these cases is that deference to party choice---whether a choice of the seat of the
arbitration, or a choice of any possible body of substantive law---can only follow upon
some true expression of assent. So, assume that a contract purports to bind a New

to arbitration, the arbitrators found both defendants liable. The district court enforced the award against
Oracle, but the Second Circuit reversed---because the lower court had failed to determine independently
whether Oracle had consented to arbitration: An American nonsignatory cannot be bound to arbitrate in
the absence of a full showing of facts supporting an articulable theory based on American contract law or
agency law. Sarhank Group v. Oracle Corp., 404 F.3d 657, 662-63 (2nd Cir. 2005).
Now the principle seems simple enough that a court should be able to intervene if is not satisfied
at some point that there was indeed an assent to arbitration---that is, either
(a) that the arbitrators did in fact have jurisdiction, or alternatively,
(b) as a higher-level matter, that the parties had entrusted the arbitrators themselves with the power
to make a binding determination with respect to their own jurisdiction. See, e.g., n.285 supra.
Sarhank has nevertheless been vigorously criticized, e.g., Bernard Hanotiau, Multiple Parties and
Multiple Contracts in International Arbitration, in Multiple Party Actions in International Arbitration 35, 60-
62 (Permanent Court of Arbitration ed. 2009). For Prof. Hanotiau the decision is wrong, undoubtedly
an erroneous decision, based on an erroneous interpretation of the arbitrability concept referred to in
Article V(2) of the New York Convention; see also Barry H. Garfinkel and David Iherlihy, Looking for Law
in All the Wrong Places, in 20(6) Mealeys Intl Arb. Rep. 12 (2005) (a mistaken application of Article
V(2)(a); the Court took the wrong route to get to its ultimate outcome).
It does appear that the courts refusal to confirm the Egyptian award was based on art. V(2).
Nevertheless the court did not distinguish at all between art.V(2)(a) (not capable of settlement by
arbitration) and art. V(2)(b) (contrary to public policy). And it is in any event clear that the court never
said anything even remotely suggesting that the dispute was not arbitrable. (Its occasional references to
arbitrability were nothing more than clumsy attempts to capture the supposed teachings of First Options,
with respect to the contractual allocation of decision-making responsibility between courts and arbitrators-
--that is, the term only came up in the midst of a discussion of point (b) above.) But cf. 1 Born, supra n.10
at 497 fn. 411 (Sarhank might conceivabl[y] be defended on the grounds of public policy, although the
court did not invoke public policy in its opinion.). But all right, never mind, the courts precise rationale
does seem rather off the mark: I suppose it might have been preferable to rely directly on art. V(1)(a)
(agreement is not valid) or art. V(1)(c) (matters beyond the scope of the submission to arbitration). In
the case of a U.S. arbitration, it would have been easy enough to speak the language of FAA 10(a)(4)
(the arbitrators exceeded their powers). But as long as we know whats really going onas long as the
ultimate result is defensiblewhy on earth should we be exercised by incorrect terminology?
Well, here is one reason: As the court may have suspected, any talk of lack of agreement would
inevitably raise the question of what law governs such a determination; and the choice-of-law provisions
of art. V(1)(a) seems to point, not only to the formal requirements of Art. II, but also to Egyptian law.
Reliance on Art. V(2) by contrast conveniently allowed the court to restrict itself to U.S. law. See Rau,
Arbitral Jurisdiction and the Dimensions of Consent, supra n.19 at 235-36. For that reason, as John
Townsend shrewdly notes, the most plausible problem with Sarhank may simply be that the decision is
an example of overreaching extraterritoriality, see John M. Townsend, Non-Signatories in International
Arbitration: an American Perspective, in International Arbitration 2006: Back to Basics?, supra n.52 at
359, 364 fn. 28. See also Restatement, supra n.25 at, 5-8 Reporters Notes note b. ( by applying art.
V(2) the court in Sarhank improperly circumvents the choice-of-law rules of art. V(1)(a)); 1 Born, supra
n.10 at 497 (Sarhank reflects a parochial insistence on applying local U.S. law, notwithstanding. . . a
choice of law clause selecting foreign law); Aloe Vera of America, Inc. v. Asianic Food Pte. Ltd., [2006]
SGHC 78 ) 38 (Sing. High Ct. 2006)(Sarhank demonstrates an insular attitude since it pays
insufficient regard to the fact [sic] that the American parties had chosen to do business in a foreign
jurisdiction and to make their agreements subject to foreign law and foreign arbitration). Nevertheless,
even this marginally more sophisticated criticism fails to convince me that the court in Sarhank was in any
way on the wrong track; see the further discussion in the text and note that follows.
Page 98 of 118

York individual to arbitration in Egypt: He claims, however, that he has never agreed to
anything at all---perhaps the signature on the agreement was forged, or was made
without authority; or the arbitration agreement was contained in a counteroffer sent in
the course of a battle of the forms. Or assume that he is not even mentioned in the
document---that he is the parent of an undoubted signatory, but that his parenthood is
his only connection with the dispute or the arbitration. The arbitration proceeds in his
absence, and it is held that the existence of his consent to arbitrate---and thus whether
he is bound to the award---is to be determined by the principles of Egyptian law. But---
notwithstanding art. V(1)(a) of the Convention---what can possibly bind someone who
claims to be a complete stranger to the proceedings to this alien body of law?
296

Various high-level attempts have been made to struggle against this paradox,
with varying degrees of sophistication and success. Whatever their defects, they all at
least have the merit of recognizing the problem, and the proposed solutions often run
parallel to the approach taken here.
297

296
This was precisely the situation in Sarhank (and for that matter, in Solidere as well). Nevertheless it
was clear---and this was conceded by the claimant---that the arbitrators conclusion that Oracle is bound
to arbitrate as a non-signatory was based solely upon Egyptian law, Sarhank, supra n.295, 404 F.3d at
662. Nevertheless in the eyes of the district court, the fact that a U.S. court would not have held Oracle to
be bound under these circumstances was somehow nothing but a misplaced quibble, 2002 WL
31268635 at *7. (S.D.N.Y.).
But cf. Aloe Vera of America, supra n.295 at 61 (respondent was claiming that he was not a
party to the agreement, but the arbitration agreement was subject to the law of Arizona and therefore
[respondent] bore the burden of establishing that . . . under the law of Arizona the clauses of the
agreement could not have any application to him; it would not be correct for a Singapore court to
construe the agreement in the same way as [it] would be able to if [the agreement] were subject to
Singapore law in order to establish whether there was a valid arbitration agreement binding the
respondent).
297
For example, the current draft of the Restatement provides (in the context of the recognition and
enforcement of foreign awards) that
the validity of the arbitration agreement is determined by the law to which the parties have
subjected it or, in the absence of any such law, by the law of the seat; Restatement, supra n.25
at 5-8(b), by contrast, however,
whether the arbitration agreement even exists (as well as whether a party lacked capacity) is
determined by the law applicable to that issue under the choice-of law rules of the forum where
enforcement is sought. Id. at 5-8(c) .
The distinction is apparently this: Questions of existence raise basic questions of contract
formation, while validity depends on whether the agreement is rendered unenforceable by standard
defenses to contract enforcement, id. at cmt.b. This time-honored dichotomy is regularly trotted out to
resolve any number of different problems in the law of contracts---and so it would be bad form indeed for
me simply to dismiss all this learning out of hand as sterile and purely verbal, metaphysical---or even
worse, Continental. But see Rau, Separability in the United States Supreme Court, supra n.180 at 17-
27. At the very least, though, the categories are slippery, and there are troublesome cases on the
margins: Where an attack is made on the container agreement, the very existence of this agreement
is, I suppose, called into question whenever there is a challenge based on indefiniteness, or mutual
mistake---a claim that there is no consensus ad idem---or on the failure of a condition precedent to the
formation of a contract. Yet the parties might nevertheless plausibly have chosen to have such issues
resolved in arbitration, under certain rules and subject to review at the chosen seat. In all these cases a
claim that an enforceable agreement was never concluded need not prevent the inference that the
Page 99 of 118

Now it is one thing simply to abdicate all supervisory power over an arbitration in
favor of the supposed state of primary jurisdiction: That, as we have seen, is the route
taken by cases like Solidere---and only a puppyish eagerness to avoid any stigma of the
parochial could possibly be thought to justify it. But rather than doing this, an
American court asked to compel---and particularly to enjoin---an arbitration, might
appropriately proceed otherwise:

Starting with a federal common law
298
should hardly prevent an American court
from deploying its usual choice-of-law analysis in order to refer to legal systems that
might claim a more significant relationship to the dispute: One obvious example is the
use of foreign law as data---for example, a reference to foreign law in order to make

parties would have wanted to entrust that very determination to arbitrators chosen by them. Id. at 25.
The Restatement seems to incorporate this insight in 5-8(d)(a court does not review the tribunals
determination of the validity of the main contract, but the court does determine de novo the existence of
the main contract---unless the nonexistence of the main contract does not imply the nonexistence of the
arbitration agreement).
The EUs Rome I Regulation is quite similar, although perhaps marginally more energetic in trying
to struggle out of this conceptual morass. See Regulation (EC) No 593/2008 of the European Parliament
and of the Council of 17 June 2008 on the law applicable to contractual obligations (J. E.U. 4.7.2008).
The Regulation does not of course apply to arbitration agreements (see art. 1(2)(e)), but its provisions are
nevertheless suggestive. Art. 10(1) stipulates that both the existence and validity of any term of a
contract---and this includes a term by which the parties have chosen the applicable law, see art. 3(5)---
will be determined by the law which would govern it if the term were valid: This in turn, sends us (as
does 5-8(b) of the Restatement) to the law chosen by the parties under art. 3 (that is, this would deem
the challenge to be irrelevant with respect to the choice of law). But the self-referential effect of the
chosen law is nevertheless qualified where a party wishes to establish that he did not consent at all---
here he may have an out, regardless of how the challenge is characterized, if he seeks the protection of
the law of the state of his habitual residence; he may invoke that law to establish his lack of consent if
it appears from the circumstances that it would not be reasonable to determine the effect of his conduct
in accordance with the putatively chosen law. Art. 10(2).
To the extent we find here a notion of true consent posited as the critical element, logically prior
to and overshadowing any theoretical determination with respect to whether the contract came into
existence, this is extremely attractive. Cf. Mainschiffahrts Genossenschaft eG v. Les Gravires
Rhenanes Sarl, [1997] E.C.R. I-911 (before enforcing an agreement with respect to jurisdiction under the
Brussels Convention on Jurisdiction, a court must ensure that there is real consent on the part of the
persons concerned, which must be clearly and precisely demonstrated); Richard Plender & Michael
Wilderspin, The European Private International Law of Obligations 425 (3
rd
ed. 2009)(but art. 10(2)
relates only to the existence and not to the validity of consent, and so it has no bearing, for example, on
provisions of national law that allow one party to withdraw from a contract originally entered into). While
under the Regulation habitual residence is generally in any event a rigid connecting factor--- a strong
choice-of-law presumption determining the law applicable in the absence of any agreement at all---this
general choice-of-law rule obviously will not always point to the habitual residence of the party seeking to
avoid the contract; see arts. 4(1)(2), and art. 6..
298
When federal courts resort to state contract law in arbitration cases, the only aim obviously is to avoid
the burden of fashioning a newly-minted federal common law of private agreement; even here state law
may not apply ex proprio vigore--as it has no regulatory force of its own--it is chosen, in Justice Holmes'
typically quotable phrase, only as a benevolent gratuity, Southern Pac. Co. v. Jensen, 244 U.S. 205,
220 (1917). See Rau, The Culture of American Arbitration and the Lessons of ADR, supra n. 30 at 490 fn.
164. But cf. Republic of Ecuador, supra n.267, 376 F.Supp.2d at 352-53.
Page 100 of 118

meaningful---to fill with content---a fact-intensive application of a commonplace principle
such as estoppel.
299
More fundamentally, the court might take on the work of identifying
certain transnational standards of agreement---standards which are widely shared and
intuitively understood: These may be found in national law, but should be at a
sufficiently high level of generality that they can be applied neutrally on an international
scale;
300
decisions of a wide range of national courts and arbitral proceedings help to
establish some consensus as to what is mandated by common sense notions of
contract.
301
This recourse to transnational standards of consent will permit a fruitful
conceptual muddiness, making it largely unnecessary to nail down just what law is
being applied. None of this in any sense suggests a developed Code, but rather a
winnowing device ---a set of limiting principles (at a very high level of generality) enlisted
to do the essential---which is to identify and exclude at an early stage those cases

299
See, e.g., Republic of Ecuador, supra n. 221, 499 F. Supp.2d at 458, 465, 469. Here a state-owned oil
company sought to stay a New York arbitration proceeding brought against it by Chevron. Chevron
argued that the non-signatory/respondent was estopped from denying that it had an obligation to
arbitrate. But this estoppel argument turned on whether the claimant had reasonably relied on a joint-
venture agreement still being in effect after the respondent took over the interest of the claimants original
partner in the venture. And this, in turn, depended on Ecuadorian law: It is impossible to properly analyze
an estoppel claim in American law without reference to the underlying Ecuadorian law because estoppel,
particularly when sought against a governmental entity or the government itself, can only lie where there
is reasonable reliance; it would be unreasonable for Chevron to assume the continued existence of the
agreement, and impossible for it to estop the respondent from denying an obligation to arbitrate, if, for
example, the laws of Ecuador precluded contracting with the state without certain formalities. Since it
appeared that an Ecuadorian court would find no reasonable expectation on Chevrons part that the
joint-venture agreement would continue to bind the respondent, the federal court enjoined the arbitration.
See also Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, [2008] EWHC
1901 (QBD (Comm.)) 79, affd, [2009] C.L.C. 84 (CA)(the inquiry into whether a party is bound by an
arbitration clause can extend to the consideration of issues of foreign law in specific circumstances; for
example, where the question is whether a state entity is bound, a states activities and its intentions in
doing various things must be viewed against the background of the legislation of that state and any other
applicable laws).
300
Ledee v. Ceramiche Ragno, 684 F.2d 184, 187 (1st Cir. 1982)(Puerto Rico statute protecting
distributors does not render agreement providing for arbitration in Italy null and void); cf. Rhone
Mediterranee Compagnia Francese di Assicurazioni e Riassicurazoni v. Lauro, 712 F.2d 50 (3rd Cir.
1983)(litigation stayed in the U.S. despite the argument that the agreement, providing for arbitration in
Italy, was not enforceable under Italian law; an arbitration agreement should be deemed null and void
only when it is subject to an internationally recognized defense such as duress, mistake, fraud, or waiver,
or when it contravenes fundamental policies of the forum state); Paul D. Friedland & Robert N. Hornick,
The Relevance of International Standards in the Enforcement of Arbitration Agreements Under the New
York Convention, 6 AM. REV. INTL ARB. 149, 162 (1995)(while the Third Circuit does not say where
courts are to look to identify internationally recognized defenses, the answer must be in the various
available sources of transnational law, including other treaties, reported decisions of public and private
international arbitral tribunals, and writings by international legal scholars).
While French jurisprudence naturally goes much further than this, the link to the discussion here
is the common claim that this question of core consent should be examined solely by reference to the
fundamental notions generally recognized in civilized legal systems. Gaillard & Savage, supra n.31 at
233; see also text accompanying n.38 supra
301
See William W. Park, Non-Signatories and International Contracts: An Arbitrators Dilemma, in
Multiple Party Actions in International Arbitration, supra n.293 at 139, 142; see also id. at 148
(estoppel); see also text accompanying nn. 298-300 supra. .
Page 101 of 118

where the totality of the evidence simply does not support any objective intention to
agree to arbitrate.
302
Despite all its unguarded language with respect to American
federal arbitration law
303
---a bright red flag to the international arbitration community---
Im not sure that cases like Sarhank amount to much more than this; and any of this
could justify the decision if it had been drafted in that sense.
304

Once, though, the parties have indeed chosen to submit future disputes to
arbitration, then the situation becomes quite different: Here is the true realm of
application of art. V(1)(a)---that is, here the implications of their choice, the legal
consequences of their actions, can fairly be left to their chosen law. Most of the cases, I
think, arise in this context; the distinction between (on the one hand) a core consent
and (on the other) the scope, implications, or legality of that consent, is one that I
have developed for other purposes but to which I revert here:
305
Where we do not
simply defer outright and definitively to the arbitrators, then in this vast middle ground,
circumspection on the part of a court asked to rule (whether by injunction or a motion to

302
Sarhank Group, supra n.295 at 662.
Cf. Ronald A. Brand, Consent, Validity, and Choice of Forum Agreements in International
Contracts, in I. Boone et al. (eds.), Liber Amicorum Hubert Bockern 541, 544 (2009)(While different rules
on the formal or substantive validity of choice of forum agreements and contacts in general may be
justified, it is much more difficult to justify different rules on the element of consent necessary to result in a
legally binding obligation).
303
Sarhank Group, supra n.295 at 662.
304
All that happened in Sarhank, after all, was that the case was remanded. The precise (and in light of
the above, quite unobjectionable) holding was that the district court had committed error by thinking that
the conclusions of the arbitrators in Egypt--- their construction of the Agreement or their conclusions
of law, rendered under the law of Egypt---were sufficient in and of themselves to bind Oracle; see n.295
supra, 2002 WL 31268635 at *4. The trial court was instructed instead to go about the logically prior
inquiry---to find as a fact whether Oracle [had] agreed to arbitrate, at all, by its actions or inaction or by
reason of having cloaked its subsidiary with apparent or actual authority to consent to arbitration on its
behalf, 404 F.3d at 662-63.
305
Despite a facile tendency in Continental writing to conflate the two, there seems a critical difference
between
attempts to bind a non-signatory to an arbitration agreement, and
attempts to impose, on a signatory to an agreement, the obligation to arbitrate with other,
unnamed parties.
Where the former always should require some threshold finding of assent, the latter suggests instead a
strong analogy to the problem of determining the scope, the coverage, of an undoubted agreement to
arbitrate: In these cases, the proper inquiry is, what are we to make of your undoubted, broad, generic,
sweeping commitment to arbitrate disputes? Rau, Arbitral Jurisdiction and the Dimensions of Consent,
supra n.19 at 231-254.
The Sarhank case, supra n.295, involved the former category---and so the court quite properly
insisted on a prior judicial finding of consent without regard to the putative chosen law or the law of the
putative seat. By contrast most cases that choose to assess the validity of an arbitration agreement by
relying instead on the parties chosen law fall neatly into the latter category. See Rau, supra at 244 (it is
more foreseeable, and thus more reasonable, that a party who has actually agreed in writing to arbitrate
claims with someone might be compelled to broaden the scope of his agreement to include others); cf.
Republic of Ecuador, supra n. 267 at 354-55(in addition, a non-signatory seeking arbitration must
implicitly accept that the contract under which arbitration is sought is valid and binding on it). I guess
this is depeage.
Page 102 of 118

compel) on a duty to arbitrate, seems called for. Still, hesitation before interfering with a
threatened arbitration unfolding in another state--- before a court is tempted to indulge
in legal imperialism
306
--- could usefully be expressed, not as deference to individuals
pretending to act as arbitrators, but rather through:

1. A conventional decision to assess the validity of the arbitration agreement
exclusively by reference to the law of the seat (at least when such a course is not
foreclosed by the Convention).
307

This of course recalls our much earlier discussion of the selection of the place of
arbitration, viewed as an exercise of autonomy---as a presumptive choice of that states
body of arbitration law;
308
it also reflects the widely-accepted fact that the legitimacy of
any presumptive arbitration proceeding will be determined, perhaps conclusively, in the
courts of that state.
309
It is thus a plausible candidate,
310
and in fact considerably more

306
Cf. Gaillard & Savage, supra n.31 at 231.
307
The assumption that the obligations of the Convention should be read as congruent for both
agreements and awards---that is, that the choice-of-law analysis mandated for awards by Art. V(1)(a)
equally governs the enforceability of arbitration agreementsis I think warranted; see Poudret & Besson,
supra n.47 at 270273; 1 Born, supra n.10 at 430, 462-64 (that an arbitration agreement could be found
valid or invalid at one stage, and then treated in the opposite manner at a later stage, would be a
highly undesirable result). (To the contrary, however, relying on the logical consequences of plain
meaning, is Friedland & Hornick, supra n.300 at 155 (art. IIs silence on choice-of-law means, as a
theoretical matter, that the enforceability of an arbitration agreement can be determined under one legal
regime at the commencement stage of an arbitration and by another regime at the award enforcement
stage; while this result may seem anomalous, it is the logical consequence of the delegates deliberate
refusal to link arts. II and V)).
At the same time, a number of recent cases remind us that Art. V(1)(a) (as well as Art. IV(1)(a))
refer back to, and incorporate, the formal writing requirements of Art. II; see e.g., Czarina, LLC v. W.F.
Poe Syndicate, 358 F.3d 1286 (11th Cir. 2004) (English award; the party seeking confirmation of an
award falling under the Convention must meet Article IVs prerequisites to establish the district courts
subject matter jurisdiction to confirm the award; action dismissed for failure to satisfy the agreement-in-
writing prerequisite). Cf. China Minmetals Materials Import and Export Co., Ltd v. Chi Mei Corp., 334
F.3d 274, 29293 (3rd Cir. 2003) (Alito J, concurring) (Chinese award; a party seeking enforcement of an
award under Art. IV must supply the court with an agreement in writing within the meaning of Art. II; this
means that he must provide either a duly signed written contract containing an arbitration clause or an
agreement to arbitrate that is evidenced by an exchange of letters or telegrams). It is indeed usually
assumed that the law applicable to the arbitration agreement for purposes of determining its validity
under Art. V(1)(a) does not include the questions regarding the formal validity of the arbitration
agreement. Albert Jan van den Berg, The New York Convention of 1958: Towards a Uniform Judicial
Interpretation 196 (1981).
308
309
310
Marc Blessing has in fact identified nine theories--- all of which have been advocated (and indeed
practiced) in attempts to determine the law governing the arbitration clause. Marc Blessing, The Law
Applicable to the Arbitration Clause and Arbitrability, in Improving the Efficiency of Arbitration
Agreements and Awards, supra n.65 at 168, 169.
The courts of England perhaps more than of any other state have devoted careful attention to this
question; they tend to conclude that the law determining the validity of the arbitration agreement is in fact
likely to be congruent with the curial law governing the arbitration generally. See, e.g., Black Clawson
Page 103 of 118

plausible than its many competitors.
311
It also seems to explain the many cases in which
challenges to the arbitration clause implicate the consent of the contracting parties in

Intl Ltd., supra n.73 at 453, 456 (it is by no means uncommon for the proper law of the substantive
contract to be different from the lex fori [the law of the place where the reference is conducted]; and it
does happen, although much more rarely, that the law governing the arbitration agreement is also
different from the lex fori; whatever the proper law of the sale contract, the parties had by their inclusion
of Zurich as an invariable locus for the arbitration indicated a sufficient intention that the law governing the
continuous agreement to arbitrate should, throughout the life of the contract, be the law of Zurich)(Mr.
Justice Mustill); C. v. D., supra n. 20 at 22 (if there is no express law of the arbitration agreement, the
law with which that agreement has its closest and most real connection . . . is more likely to be the law of
the seat of arbitration than the law of the underlying contract); Shashoua v. Sharma, supra n.43 at 29
(recent decisions, where the focus has been on the seat of the arbitration and the agreement to arbitrate,
establish that it is much more likely that the law of the arbitration agreement will coincide with the curial
law); ) Halpern v Halpern, 2006 WL 1020561 (QBD (Comm.))(it would be unusual, but by no means
impossible, for the law applicable to the agreement to arbitrate the dispute, and the law applicable to
the arbitration itself , sometimes called the curial law or the lex arbitri, to differ).
Consequently it is thought to follow that if an apparent agreement between the parties provides
for their substantive rights to be governed by the law of New York---but also contains a putative
London arbitration clause---then the fact that the clause may not be recognized or enforced in New
York is largely irrelevant: English law is the proper law of the arbitration agreement and governs its
validity; the Arbitration Act contains various provisions which could not readily be separated into boxes
labeled substantive arbitration law or procedural law, because that would be an artificial division). XL Ins.
Ltd., supra n.214 at 923. See generally Adam Samuel, The Effect of the Place of Arbitration on the
Enforcement of the Agreement to Arbitrate, 8 Arb. Intl 257, 268 (1992) (on this side of the Atlantic, since
express choices of a law to govern the arbitral agreement different from the seat of arbitration are almost
unknown, in practice the seat of arbitration will, in almost all cases, be applicable). Decisions like
Peterson Farms Inc. v. C & M Farming Ltd, 2004 WL 229138 (QBD (Comm.)) are not to the contrary; that
case merely turned on whether the claimant/signatory could recover damages for losses sustained by its
affiliated companies in addition to its own losses ---rather clearly a matter of the governing substantive
law (in that case, Arkansas), and therefore something the arbitrators (even though they were sitting in
London) had no right to ignore. But cf. 1 Born, supra n.10 at 475 fn. 311.
311
By contrast, the current Restatement draft presumes, in the usual absence of anything more explicit,
that the law to which the parties have subjected their agreement to arbitrate within the meaning of art.
V(1)(a) is the contracts general substantive choice-of-law clause. Restatement, supra n.25 at 5-8, cmt.
c. (provided that such an interpretation does not circumvent federal preemption of state arbitration law).
Only where the parties have neither selected any law to govern the arbitration agreement, nor included in
the contract a general choice-of-law clause, does the law of the seat of arbitration govern the issue. Id.
(This last sentence presumably refers solely to challenges to the validity (as opposed to the existence)
of the arbitration agreement). I wonder whether such a primary default takes adequate account of the
usual abstraction of the arbitral process from the actual place of performance of the underlying
transaction---an intended distinction that helps to explain the venerable notion of the separability of the
arbitration agreement---and also whether it takes account of the obvious need to read art. V(1)(a) as
congruent with the consecrated readings of art. V(1)(e). See generally n.65 supra.
See also Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A. (02-23249-Civ., S.D. Fla.
Sept. 22, 2005), affd, 533 F.3d 1349 (11th Cir. 2008) (Miami arbitration but general choice-of-law clause
called for application of Venezuelan law; where the arbitration agreement does not specify the law to
which the parties have subjected it, art. V(1)(a) requires that the law of the arbitral situs, in this case the
[U.S.], be applied; the determination of invalidity of the arbitration agreement by the Venezuelan court is
irrelevant); 1 Born, supra n.10 at 455 (the reasons that led the parties to select a particular legal
system for their underlying contract have little or no application to their arbitration agreement). Cf.
Gaillard & Savage, supra n.31 at 222-26 (when the traditional choice of law method is used, the principle
Page 104 of 118

only the most tenuous way---so that the law of the seat appropriately serves to
determine how the challenge should be dealt with. That is the situation, for example,
where it is sought to bind an individual---who is an undoubted party to an arbitration
agreement---to submit to arbitration with a non-signatory;
312
it should equally be the

of the autonomy of the arbitration agreement from the main contract requires each to be treated
separately when determining the applicable law).
Now the lesson of cases like Mastrobuono is not, I think, that there is some supposed, and highly
unwieldy, federalism exception, cf. Restatement, supra, Reporters Notes, Note c. Such cases instead
exemplify our understanding that a generic choice-of-law clause shouldnt have much to do with this issue
at all: Unless the parties should happen to be unusually explicit, a contractual choice of state law is
irrelevant: This is partly of course on the simple ground that the law of New York does after all include
the dictates of federal law. But more fundamentally, it is explained by our usual, and sensible,
presumption that a stipulation of the substantive rules of decision governing the merits of the dispute
should not be construed as a selection of the law to validate or invalidate a dispute resolution procedure,
or the States allocation of power between alternative tribunals. See generally the discussion at Alan
Scott Rau, The UNCITRAL Model Law in State and Federal Courts: The Case of Waiver, 6 Amer. Rev.
Intl Arb. 223, 247-61 (1995); see also Pierre Mayer, Note [to Comit populaire de la municipalit de
Khoms v. Soc. Dalico Contractors], [1994] Rev. Crit. Droit Intl Priv 664, 670 (it is by no means
necessary to apply to the arbitration agreement the law that governs the overall contract, for the
procedural nature of the arbitration clause differentiates it radically from the substantive terms that
spell out what the purpose of the contract was); Westbrook Intl, LLC v. Westbrook Technologies, Inc., 17
F.Supp.2d 681, 684 (E.D. Mich. 1998)(the court will not infer that International intended to have Ontario
law govern the arbitrability of its claims simply because the agreement contained a choice-of-law
provision in favor of Ontario law).
312
See, e.g., Motorola Credit Corp. v. Uzan, 388 F.3d 39 (2nd Cir. 2004)(agreement between the plaintiff
and Turkish corporations provided that it would be governed by the internal laws of Switzerland, and
that arbitration would take place in Zurich; the district court denied a motion by the defendants, who were
the principals of the Turkish corporations but nonsignatories, to compel arbitration, and also enjoined
them from pursuing Swiss arbitration; held, affirmed, Swiss law strictly enforces privity of contract and
generally prohibits nonparties from seeking to invoke contractual terms, and the district court was not
required to refer questions of arbitrability to a Swiss arbitrator); Felman Production Inc. v. Bannai, 476
F.Supp.2d 585 (S.D. W. Va. 2007) (agreement for the sale of ore provided that it was to be governed by
English law and called for arbitration in London; the court denied a motion by the defendant---a principal
for the seller but a nonsignatory---to compel arbitration; English law would not allow a non-signatory to
compel arbitration and under the Arbitration Act 1996 it is a general principle of arbitration law that the
agreement only binds the parties to the agreement to arbitration).
The alert reader will immediately have noticed two critical points about both cases:
In both cases the question was whether an undoubted signatory to an arbitration agreement
could be obligated to arbitrate with other, unnamed parties; see n. 305 supra; and
In both cases the choice of the seat and a general choice-of-law clause pointed to precisely the
same body of law: The applicable law question was thus overdetermined, but it was not
satisfactorily clear which ought to be dispositive. See n. 311 supra.
See also Gaillard & Savage, supra n.31 at 223 (where the parties have not only subjected their main
contract to the law of a particular country, but have also chosen that country as that seat of the
arbitration, it would be possible to subject the arbitration agreement to the law of that country, either by
giving effect to the parties presumed intentions, or by making an objective assessment that the
connecting factors provided by the law governing the main contract and the seat of the arbitration are the
same).
But cf. Sea Bowld Marine Group, LDC v. Oceanfast Pty, Ltd., 432 F.Supp.2d 1305, 1311-12 (S.D.
Fla. 2006). Here the agreement was to be governed by the law of Australia and the arbitration was to
take place there; the plaintiff, a signatory, argued that since three of the defendants named in its
Page 105 of 118

case where, for example, the legal challenge involves the scope
313
or formal validity of
the arbitration agreement,
314
the qualifications of the arbitrators,
315
or, of course, where
it merely calls into question the enforceability of the overall agreement.
316

complaint had not signed the agreement, Australian law in those circumstances would not allow them to
compel arbitration and would disallow arbitration of this dispute. Nevertheless the court issued a stay
and refer[red] the case for arbitration in Western Australia. Since the parties themselves had failed to
specify the law that governs the arbitrability of claims---for some entirely unexplained reason the
designation of the seat was apparently insufficient---federal law ruled supreme. Supposedly the
teaching of Mastrobuono was that when the parties fail to contract out of the FAA, a return to the
default of federal law is necessary. Now where (as in Mastrobuono) the arbitration is to take place within
the U.S., federalism concerns may indeed support a default rule of federal lawas opposed, that is, to
state law; for the essential irrelevance of Mastrobuono in the present context, however, see n.311 supra.
Since the party resisting arbitration in Sea Bowld---unlike in Sarhank---was already a signatory to the
agreement, the case does not fit at all satisfactorily into the taxonomy I am trying to establish, and so I
have little alternative but to claim that it is wrongly decided. We can be pretty sure that at some point---
either before or after the arbitration proceedings---we will find the plaintiff once again making precisely the
same arguments; this time, though, before a local court Down Under.
313
See, e.g., Yavuz v. 61 MM Ltd, 465 F.3d 418, 428 (10th Cir. 2006)(Swiss choice-of-law clause and
place of courts is Fribourg, but it is hardly obvious what claims, against what parties, are governed by
the clause; the words may take on different meanings depending on the law used to interpret them,
and so a court can effectuate the parties agreement concerning the forum only if it interprets the forum
clause under the chosen law); contra, Chloe Z Fishing Co., Inc . v. Odyssey Re (London) Ltd., 109
F.Supp.2d 1236, 1252 (S.D. Cal. 2000)(but there is a colorable argument that either the choice-of-law
provision governing the P & I policies or the reference of disputes to arbitration in London in the arbitral
clauses themselves, subject the scope of the arbitration clause to English law); Doe v. Princess Cruise
Lines, Ltd., 2010 WL 1027814 (S.D. Fla.)(Bermuda law does not govern the scope of the arbitration
provisions, and defendant cites no law for [the contrary] proposition).
See also Mastercard Intl Inc. v. Fderation Internationale de Football Assn, 2007 WL 631312
(S.D.N.Y.). Here, after examin[ing] the Swiss law presented by both sides, and finding that the plaintiffs
request for injunctive relief did not fit within the broad language of the parties arbitration provision, the
court denied respondents motion to compel arbitration. The respondent nevertheless pursued an
arbitration in Zurich, and---after the tribunal held in a preliminary ruling that it was not bound to recognize
the views of the district court, which supposedly contained numerous deficiencies---the federal court
enjoined the respondent from proceeding with the arbitration. On this aspect of the case, see text
accompanying n.216 & n.216 supra.
314
Cf. Rhone Mediterranee Compagnia Francese di Assicurazioni e Riassicurazoni, supra n.300 (court
ordered stay pending arbitration in Italy despite plaintiffs argument that in Italy an arbitration clause
calling for an even number of arbitrators is null and void); Apple and Eve, LLC v. Yantai North Andre
Juice Co. Ltd, 499 F.Supp.2d 245 (E.D.N.Y. 2007)(court granted defendants motion to compel arbitration
in China despite plaintiffs argument that under Chinese law the agreement, because it failed to designate
an arbitration commission, was null and void).
Notwithstanding a choice-of-law clause and an implicit incorporation of the arbitration law of the
seat, an American court should naturally be reluctant to conclude that the parties had simultaneously
intended a) to elect to arbitrate, and yet b) to submit themselves to a body of law that would, in all cases
and from the very outset, render their election a nullity. A desire to avoid such an implausible result might
alone explain the choice made in these cases not to examine and possibly invalidate the arbitration
agreement under the chosen law; see Rau, The UNCITRAL Model Law in State and Federal Courts,
supra n.311 at 249-50 (American cases have held that a contractual choice to arbitrate pursuant to the
laws of the State of Texas will incorporate a Texas rule invalidating all arbitration clauses that are not
typed in underlined capital letters or otherwise prominent; if you can believe that, as the Duke of
Wellington was supposed to have remarked in another context, you can believe anything); 1 Born, supra
Page 106 of 118

2. Hesitation before interfering with a threatened arbitration unfolding in another state
might also usefully be expressed, not as deference to individuals pretending to act
as arbitrators, but rather through a prudential forum non conveniens decision
simply to defer judgment altogether.
317
One first takes account of all the concerns

n.10 at 438, 456-57, 497-503 (the parties putative choice of a law that would invalidate their agreement
to arbitrate . . . does not constitute a genuine indication of the parties intentions).
315
See, e.g., A. v. B., [2007] 1 Lloyds L. Rep. 237 (QBD (Comm.)). This was a request to enjoin a Swiss
arbitration. Prior to his appointment, the sole arbitrator (an English solicitor) had been occupying a
hybrid role as a business advisor and independent honest broker in order to facilitate the settlement of
fraternal warfare between the disputants. One party sought an injunction directly against the arbitrator
himself to prevent him from continuing to take any steps as arbitrator or otherwise to hold himself out as
having or exercising any jurisdiction to hear the dispute; the ground was that the agreement to arbitrate
was illegal and unconscionable, since the arbitrator was not independent from the parties and thus
could not validly act as arbitrator. The court refused relief: Once the existence of an arbitration
agreement has been established, deference to Swiss law, which governed the relationship established
by the arbitration agreement, was necessary, id. at 70, 125. And under Swiss arbitration law the
KompetenzKompetenz principle would leave such matters to the tribunal in the first instance; since the
parties expressly agreed that this dispute resolution regime should apply, the plaintiff should not be
permitted to go back on this agreement. Id. at 114, 115. Further on Swiss law in this respect, see
n.188 supra. Note that the basis of the plaintiffs case was not that [he] had never entered into [an
arbitration] agreement, for it is quite obvious that he did so. Id. at 108.
Similarly, a charitable reading of Grynberg v. BP, 596 F.Supp.2d 74 (D.D.C. 2009) would be to
the effect that an American court should not purport to determine the scope of an arbitration clause,
where there has undoubtedly been consent to arbitrate something, and where under the law of the
chosen seat local courts would be expected to stay their hand. See id. at 79 (the court compelled
arbitration of a RICO claim in Alberta; the parties agreement incorporated the [UNCITRAL] Model Law,
whatever that means).
316
See, e.g., Overseas Cosmos, Inc. v. NR Vessel Corp., 1997 WL 757041 (S.D. N.Y.)(respondent
opposed confirmation of London award on the ground that the Memorandum of Agreement between the
parties was never signed by the petitioner---the opposing party---and thus that the underlying agreement
was unenforceable; held, respondent has failed to demonstrate that the underlying agreement between
the parties is unenforceable under English law there is no dispute that the respondent . . . signed it).
317
See Rhone Mediterranee Compagnia Francese di Assicurazioni e Riassicurazoni, supra n.300; see
also n.314 supra. The refusal in cases like Rhone Mediterranee to be governed by the law of the seat has
been termed quixotic and amazing, Samuel, supra n.310 at 268269. But Gary Born suggests that the
reluctance to hold the agreement invalid under Italian law may simply reflect a recognition that Italian
courts are much better placed than U.S. courts to apply Italian arbitration statutes, and ought to be given
the opportunity to do so. Gary Born, International Commercial Arbitration in the United States 166 (2
nd

ed. 2001); see Rhone Mediterranee, supra n.300 at 54 (The defendants insist that even in Italy this
procedural rule on arbitration is waivable and a resulting award will be enforced). Viewed in this way,
Rhone Mediterranee may represent little more than the announcement of a limiting principle (at a very
high level of generality) serving merely to winnow out or eliminate extreme cases at an early stage. For a
more recent decision that seems rather explicitly to adopt a forum non conveniens rationale, see Apple
and Eve, LLC, supra n.314 at 252 (because the alleged defects in the Arbitration Clause is curable under
PRC law, this Court declines to hold that the Arbitration Clause is incapable of being performed art this
time; [g]iven the factual and legal variables required for the agreement to be declared invalid in the
PRC, the Court cannot determine as a matter of law that the Arbitration Clause is incapable of being
performed in China). See also A. v. B., supra n.315 at 114 (in which the judge suggested that he
would have reached the same conclusion on forum non conveniens grounds, in order to avoid this
court having to apply Swiss law to a jurisdiction issue where the parties have agreed that the seat of the
arbitration and the source of judicial regulation will be Geneva).
Page 107 of 118

that properly inform the doctrine---the comparative advantage of foreign courts,
particularly in light of the complexity of the legal issues presented;
318
the relatively
advanced status of proceedings in parallel fora; the extent of possible conflict with
other sovereign legal systems;
319
; the extent of the movants interest in an
American forum and the bona fide connection of the parties or the dispute to the
United States.
320
And what we are left with---what all this comes down to, at the
end, once the critical issue of core consent posed by cases like Solidere has been
dealt with--- is a reasonable surrogate for whatever policies the
primary/secondary jurisdiction dichotomy is thought to embody.

IV. Collateral Attacks

A Texas subsidiary of a Texas oil field services company (the claimant) and
Nigerias state-owned oil company (the respondent) were parties to a joint venture, set
up for the purpose of salvaging slop oil. In a Swiss arbitration, the tribunal first
rendered a partial award holding first, that the claimant had standing, and then, that
the respondent had failed to contribute its required share of capital to the joint venture.
But in a later, final award, it concluded that claimant lacked capacity to maintain its
claims after all---for it had, apparently, only been incorporated after execution of the
joint venture agreement and the demand for arbitration. The claimants attempt to

318
Cf. Pepsico Inc., supra n.61 (since the agreement contemplates that matters subject to determination
by a court, such as threshold disputes over arbitrability, will be governed by Venezuelan law, the court
denied for the moment a motion to compel arbitration so that a Venezuelan court could first be afforded
the initial opportunity to determine this threshold question of Venezuelan law before a non-Venezuelan
court is called upon to do so; proceedings were stayed for 60 days to afford the Venezuelan court the
opportunity to determine, if it chooses, the question of arbitrability).
319
On both these points, see General Electric Co. v. Deutz AG, 270 F.3d 144 (3
rd
Cir. 2001). Here the
trial court had submitted to a jury the question whether the defendant (the parent of a signatory) was
entitled to invoke the arbitration clause, and the jury answered in the negative. Meanwhile an ICC
arbitration was proceeding in London--- and so the lower court enjoined the defendant from appealing
the forthcoming jurisdictional order of the Arbitral Tribunal to the English courts or from taking any other
action in furtherance of its prosecution of the ICC arbitration. The Third Circuit held this to be in error.
In practice, I suppose that
enjoining an English arbitration on the ground that the plaintiff is not bound to arbitrate with the
defendant; and
enjoining the defendant from seeking in English courts to annul an arbitral ruling to the effect that
the plaintiff is not bound to arbitrate,
amount to much the same thing. But the latter might be thought to tread rather too heavily on the
prerogatives of the supervisory court, see id. at 160 (the proper exercise of comity demonstrates
confidence in the foreign courts ability to adjudicate a dispute fairly and efficiently).
At the time the lower court issued its injunction, the parties had purportedly completed their
submissions to the arbitration panel, and nothing remained but the issuance of a decision. And by the
time the Third Circuit came to reverse, the tribunal had issued its jurisdictional ruling agreeing with the
federal jury that the case was not arbitrable---an interesting twist that, the court conceded, colors our
ruling. Id. at 155, 162.
320
Cf. Rhone Mediterranee Compagnia Francese di Assicurazioni e Riassicurazoni, supra n.300 at 52
(All the parties to the time charter agreement and the lawsuit are Italian).
Page 108 of 118

challenge this final award in the Swiss courts was unsuccessful. And so was its attempt
to seek U.S. confirmation of the initial, partial award.
321
Nothing daunted, the claimant
then filed a suit in federal court---this time, not only against the respondents, but also
against the three arbitrators---seeking relief under the RICO statute on the ground that
the final award had been procured by fraud, bribery, and corruption.
322
The trial court
dismissed the suit on the ground that it lacked subject matter jurisdiction (for the claim
was nothing but an impermissible collateral attack on a foreign arbitral award)
323
--and
the Fifth Circuit agreed: The underlying premise of the plaintiffs case was that the
misconduct of the arbitrators had rendered the final award itself invalid; the damages
they sought were damages that they would only be entitled to if the final award were
vacated. But Switzerland was the state of primary jurisdiction: A U.S. court sitting in
secondary jurisdiction accordingly lacked jurisdiction over claims seeking to vacate
a foreign arbitral award; under the framework of the New York Convention, the proper
method of obtaining this relief is by moving to set aside or modify the award in a court of
primary jurisdiction.
324

Now the outpouring of praise for this decision from the arbitration establishment--
--praise that must strike any observer as complacent and largely self-congratulatory---
has been remarkable.
325
Yes, the challenge to the arbitral award does seem quite
without merit---a conclusion easier to reach as it was premised on a rather reckless
indictment of the integrity of well-known and respected arbitrators, all clearly belonging

321
Whether or not the partial award was enforceable following the final award was necessarily an issue
that had been addressed by the Swiss courts, when they disallowed any recovery under the partial
award and upheld the arbitral finding that the plaintiff lacked capacity to maintain its claims. But by
seeking confirmation of the partial award in the U.S., the claimant was effectively requesting that the
Final Award be set aside or modified---and this was an action that the court was precluded from taking,
both by the Convention and (on the basis of the doctrines of res judicata and international comity) by the
courts of Switzerland, who alone had authority to do so. See Gulf Petro Trading Co., Inc. v. Nigerian Natl
Petroleum Corp., 288 F.Supp.2d 783, 792-94 (N.D. Tex. 2003), affd per curiam, 115 Fed. Appx. 201 (5
th

Cir. 2004).
322
To the RICO claim were joined counts for violation of the Texas Deceptive Trade Practices Act, and for
common law fraud and civil conspiracy. Allegedly the respondent had made a payment of $25 million
which was to be shared by the three arbitrators in return for delivery of a favorable award; two of the
arbitrators were also supposed to have engaged in a variety of undisclosed dealings and ex parte
communications with the respondent that cast doubt on their impartiality as arbitrators, Gulf Petro
Trading Co., Inc. v. Nigerian Natl Petroleum Corp., 512 F.3d 742, 745 (5
th
Cir. 2008).
323
Gulf Petro Trading Co., Inc. v. Nigerian Natl Petroleum Corp., Case 1:05-cv-00619-RC (E.D. Tex.
March 15, 2006)(This court is not going to revisit the resulting decision of the arbitration panel, nor the
decision by the Swiss Court), affd, 512 F.3d 742 (5
th
Cir. 2008). In the alternative, the court held that it
also lacked subject matter jurisdiction because no exception to sovereign immunity exists.
324
Id. at 747, 750.
325
See, e.g., Thomas W. Walsh, Collateral Attacks and Secondary Jurisdiction in International Arbitration,
25 Arb. Intl 133, 141 (2009)(this result confirms the autonomy of international arbitration and the
purpose of the New York Convention to enforce arbitral awards in foreign jurisdictions, and thus is
legally sound, logical, and altogether critical to the effective use of arbitration); Jane Wessel et al., Note,
11 (2) Int. Arb. L. Rev. at N-17, N-19 (2008)(the Fifth Circuit made plan the broad dictates of the
[Conventions] prohibition on attacking the validity of an award in a court of secondary jurisdiction).
Page 109 of 118

to our crowd.
326
And yes, the plaintiffs behavior might fairly be characterized as going
from one forum to another peddling a repeated repackaging of essentially identical
claims. But the defects in understanding and craftsmanship revealed by the Fifth
Circuits opinion---the conscripting of notions of primary jurisdiction to somehow
support a lack of subject matter jurisdiction in federal courts--- should, after everything
that has gone before, be troublingly familiar. Here too the power of the courts has to be
reserved, however wary the exercise.

The demonstration of this will necessarily be abbreviated; most other readers
are already tired, and I am not writing only to philosophers.
327
But the essential point is
quite straightforward: What we see in Gulf Petro is, once again, a mindless
misapplication of the familiar dichotomy that bids us to distinguish between the role of
the courts of the seat and the role of courts in other jurisdictions. The Continental
learning on which Judge King purports to rely is ill-digested,
328
and indeed, it can be
said that she proceeds in exactly the same way as did the district court in Solidere---
beginning with an a priori deference to the "law of the situs" and then somehow erecting
on top of that an inappropriate bright-line jurisdictional barrier.

In fact the misunderstanding here is even more striking, because here---unlike in
Solidere---there is not even a perfunctory nod in the direction of a conventional statutory
analysis of federal jurisdiction. Recall that the plaintiff (an American corporation) sought
redress for alleged violations of the federal RICO statute: This is a point which alone
should dispose of any objection grounded in the limited jurisdiction of federal courts; the
extraterritorial reach of the statute in these circumstances should be clear enough but in
any event was never addressed.
329
What we have instead, once again, is a common, if

326
The tribunal consisted of Andrew Berkeley (who seems to have been the primary target of the
challenge), as well as Ian Meakin and Hans van Houtte.
327
Samuel Johnson, supra n.74 at 31.
328
See Gulf Petro Trading Co., Inc., supra n.323, 512 F.3d at 746 (citing the Fouchard treatise), 747 citing
van den Berg on the New York Convention).
329
It follows that it would be error--or at the very least, would be clumsy and inaccurate--for a tribunal to
conflate the actual extraterritorial reach of a regulatory statute with the very different question of its own
subject matter jurisdiction to proceed. Rau, The Arbitrator and Mandatory Rules of Law, supra n.126
at 56-58 & fn.26; see also id. at 65 (Courts with jurisdiction over the parties necessarily have to decide
everything in dispute between them (or at any rate, everything that the plaintiff asks them to decide));
text accompanying nn. 240-42 supra. Cf. Poulos v. Caesars World, Inc., 379 F.3d 654 (9
th
Cir. 2004)("we
need not delve too deeply into the question of extraterritoriality as a jurisdictional matter; rather, we need
only assure ourselves that a cause of action under our law was asserted here"; "whether the cause of
action turns out to be 'well founded in law and fact' ... is beyond the scope of our threshold jurisdictional
review").
Just this term the Supreme Court has again reminded us of this proposition---reprimanding a
lower court which had dismissed a foreign cubed securities class action for lack of subject matter
jurisdiction, having concluded that 10(b) of the Securities and Exchange Act of 1934 was not intended
to apply extraterritorially to reach such cases. But to ask what conduct 10(b) reaches is to ask what
conduct 10(b) prohibits, which is a merits question. Subject-matter jurisdiction, by contrast, refers to a
tribunals power to hear a case. Morrison v. Natl Australia Bank Ltd., 2010 WL 2518523 at *4
Page 110 of 118

misleading, trope in which lack of jurisdiction is simply made to stand in for, were
really not supposed to do this.
330

And why not, precisely?
1. The starting point is simple enough. Assume that a lawsuit is brought on an
underlying cause of action that happens to be identical to a claim already resolved in
arbitration; assume also that everything is taking place within a single legal system,
say the United States. In such a case of course immediate dismissal on the ground
of res judicata would be proper.

2. If the plaintiffs suit is not on the original merits---but, say, is premised on
misconduct in or around the arbitration committed by the prevailing party or the
arbitrators---wrongdoing which has allegedly tainted the arbitration proceedings
and caused an illicit award to be rendered
331
---then dismissal is equally appropriate.
This is not strictly speaking a matter of res judicata,
332
but we are here on the
familiar ground of impermissible collateral attack: These are the domestic
American arbitration cases, exemplified by the venerable decision in Corey, on
which so much of the Fifth Circuits analysis rests.
333

(nevertheless nothing in the analysis of the courts below turned on the mistake; held, dismissal affirmed
on the ground that the plaintiff had failed in any event to state a claim under Rule 12(b)(6)).
330
See generally text accompanying nn. 240-42 supra.
331
Gulf Petro Trading Co., Inc., supra n.323, 512 F.3d at 750.
332
See id. at 752: There is simply more at work here than res judicata, since plaintiffs claim that
respondent had suborned the corruption of the panel, though certainly arising out of the arbitration
proceedings, is not a matter that was decided in those proceedings).
333
E.g., Corey v. New York Stock Exchange, 691 F.2d 1205 (6
th
Cir. 1982). Here an unsuccessful
arbitrant sought to hold the NYSE liable for the conduct both of the arbitrators and of the NYSE's
arbitration director; plaintiff challenged the selection of the tribunal as violative of the NYSE rules and
asserted procedural irregularities preventing him from submitting evidence and causing hearings to be
postponed over his objection. Summary judgment was rendered against him both on the grounds of
arbitral immunity (to the extent [the] complaint may be construed to allege wrongdoing by the arbitrators
for which the NYSE is liable), and on grounds that 10 of the FAA provides the exclusive remedy for
challenging acts that taint an arbitration award (to the extent the complaint may also be construed as
alleging wrongdoing, compromis[ing] the arbitration award thereby causing him mental anguish and
physical problems, by the arbitration director for which the NYSE is liable). The issues raised by
[plaintiffs] complaint could have been resolved by timely pursuit of a remedy under 10; the three-month
notice requirement in 12 is meaningless if a party to the arbitration proceedings may bring an
independent direct action asserting such claims outside of the statutory time period.
See also Decker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 205 F.3d 906 (6
th

Cir.2000)(lawsuit was filed by the claimant in the original arbitration against the respondent, seeking
damages for tortious interference with contract and alleging that the respondent had improperly
interfered with the arbitration when one of its wholly owned subsidiaries hired the chairperson of the
arbitration panel to act as a closing agent for various real estate transactions; held, motion to granted;
because the plaintiff chose to attack collaterally the arbitration award in violation of the FAA, she fails to
state a claim upon which relief may be granted).
Page 111 of 118

3. Now in both of these cases, the FAA provides a single mechanism by which the
legitimacy (that is, both the validity, and the claim to recognition) of awards can be
challenged---the motion to vacate; it therefore makes some sense to hold that the
statutory scheme may not be circumvented by collateral litigation raising claims that
could have been heard in a 10 action. Indeed there is authority to the effect that
after the 12 three-month period for seeking vacatur has run, a party may no longer
even oppose confirmation of the award, despite the fact that a legitimate ground for
denial of confirmation might otherwise exist.
334

4. Now lets consider the---very different---situation in which the interests of co-
archical legal systems are implicated: Here we are talking about the transnational
cases which are the subject of this paper. As we have seen throughout, the
architecture of the Convention presupposes that supervisory authority over the
legitimacy of foreign awards is to be shared: So, for example, where an award has
been rendered in the state of primary jurisdiction, the losing party may not of
course seek to have it vacated elsewhere
335
---but he may naturally resist
enforcement in all other states on art. V grounds. No one will claim with a straight
face that by doing so, the respondent is engaging in any sort of impermissible
collateral attack on the award
336
---no one could argue that it would seriously
undermine the functioning of the Convention if the fact that the opportunity for
judicial review of an award in the primary jurisdiction has passed could open the
door to otherwise impermissible review in a secondary jurisdiction.
337
It follows that-
--in total contrast to the cases we started within secondary jurisdictions, the
failure of the aggrieved party to obtain vacatur at the seat may be interesting, but
can hardly be conclusive.

5. In Gulf Petro itself there was apparently no occasion for the prevailing party---who
was after all the respondent---to seek execution in the U.S.: But suppose the

334
See, e.g., Florasynth, Inc., supra n.29 (the role of arbitration as a mechanism for speedy dispute
resolution disfavors delayed challenges to the validity of an award; after the three month limitations
period has run the successful party has a right to assume the award is valid and untainted, and to obtain
its confirmation in a summary proceeding); see also Romero v. Citibank USA, Nat. Ass'n, 551
F.Supp.2d 1010 (E.D.Cal.,2008). By contrast the Restatement quite sensibly takes the position that
because the differences in statutes of limitation for vacatur and confirmation can create confusion and
lay a trap for the unwary, a party may, despite Florasynth, resist confirmation on FAA Chapter One
grounds of Convention awards made in the U.S., even if the time for affirmatively seeking vacatur has
passed, at least where confirmation of the award was sought under FAA Chapter One and within a year
of its making. Restatement, supra n.25, 5-3, Reporters Notes, note c.
335
See text accompanying n.20 & n.20 supra; see also n. 321 supra.
336
Cf. Fifth Working Group Report (A/CN.9/246, March 6, 1984), in Holtzmann & Neuhaus, supra n.14 at
948 130 (art. 34(1) of the UNCITRAL Model Law, by presenting the application for setting aside as
exclusive recourse against awards, appeared to disregard the right of a party under article 36 to raise
objections against the recognition and enforcement of an award; although that right was exercised in
reply to an initiative by the other party, the Working Group was agreed that for the sake of clarity, [art. 34]
should make reference to that other type of recourse).
337
Cf. Gulf Petro Trading Co., Inc., supra n.323, 512 F.3d at 752.
Page 112 of 118

respondent had sought, under 207, abstract confirmation of the award in its favor?
(Or suppose the parties had been reversed, or suppose there had been cross claims
exposing the claimant also to liability?). In such cases, then, I should think the
claimants allegations of wrongdoing would constitute facially plausible grounds for
the refusal of recognition, and would bring the challenge comfortably within the
protection of art. V.

Suggestions to the contrary advanced on behalf of the respondent are
incomprehensible.
338
Nor could it be seriously said in such circumstances that the
claimants exclusive recourse---in order to rectify the alleged harm it suffered---was
instead to move to vacate the award in Switzerland.
339
As we have seen, any
requirement that an aggrieved party must--- before challenging an award in a state
of secondary jurisdiction---first exhaust his remedies by seeking annulment where
the award was rendered, would simply be untenable.
340

It is commonplace to observe that by contrast to the universal vocation of an order
of annulment,
341
the effects of such a refusal of recognition under art. V would be
purely local.
342
Nevertheless the fact remains that within any legal system where an

338
Cf. Brief of Amici Curiae American Arbitration Assn and Swiss Arbitration Assn in Support of
Defendants-Appellees, 2007 WL 5111115 at *8 (plaintiffs claims are attempts to make an end-run
around the Convention; plaintiffs tort suit is a tacit admission that the explicitly enumerated reasons for
non-enforcement of arbitral awards under the New York Convention cannot be met in this instance). But
substantiated claims of bribery or even of undisclosed dealings and ex parte communications on the
part of the arbitrators casting doubt on their impartiality, would presumably justify non-recognition or
non-enforcement under arts. V(1)(b), V(1)(d), or V(2)(b); see generally 2 Born, supra n.10 at 2803-04.
339
Cf. Gulf Petro Trading Co., Inc., supra n.323, 512 F.3d at 748 (discussing Corey and Decker, supra
n.332; this objective should have been pursued by filing a motion to vacate under the FAA), 750
(similarly, under the Convention, the proper method of obtaining this relief is by moving to set aside or
modify the award in a court of primary jurisdiction).
340
See n. 34 supra (as it would be both anachronistic and burdensome).
Of course the plaintiff had indeed unsuccessfully sought to have the award annulled in
Switzerland. Cf. Gulf Petro Trading Co., Inc., supra n.323, 512 F.3d at 752 (Gulf Petro has already had
one opportunity to set aside the award in Switzerland, and now seeks a second opportunity). But
concededly, its current claims of bribery, and improper non-disclosure and ex parte contacts on the part
of the arbitrators, had never been presented to a Swiss court--- and further review on such grounds might
no longer be available there (apparently a prerequisite to obtaining reconsideration of the earlier Swiss
judgment of confirmation was the initiation of criminal proceedings against the arbitrators)---but never
mind, too bad; for after all, in the interest of finality, every primary jurisdiction undoubtedly will foreclose
review of an award at some point. Id.
And what would be the situation if in their original arbitration agreement, the Texas and Nigerian
parties had waived any possibility of annulment proceedings in Switzerland altogether? See generally
n.21 supra. My impression is that (ironically) nothing whatever would have changed in the Fifth Circuits
decision; cf. Gulf Petro Trading Co., Inc., supra n.323, 512 F.3d at 752 (the proposition that the absence
of any possibility of setting aside an award in the primary jurisdiction justifies removing the protection of
the Convention from an award is a view almost unanimously rejected).
341
342
See 2 Born, supra n.10 at 2673-74 (except perhaps where a decision of non-recognition in one
secondary jurisdiction---at least where it is based on the grounds set forth in art. V(1), applying equally
Page 113 of 118

award has been refused recognition, all bets are now off: That means that the
award---once set aside as a bar---cannot, at the very least, be interposed to prevent
an entirely new arbitral proceeding; it also presumably means that if non-recognition
was grounded, say, in the absence of any valid agreement to arbitrate---or where the
option of new proceedings has been lost through lapse of time---there can be no
obstacle to de novo judicial proceedings on the underlying cause of action.
343

6. Now lets move to this hypothetical situation, which will bring us ever closer to the
facts of Gulf Petro itself. Assume that the unsuccessful arbitrant, rather than
passively waiting for the prevailing party to come after him, wishes to take the
initiative: He may, perhaps, wish to assert his own claim for affirmative relief that
had been unsuccessfully advanced in the course of the arbitration---in which case,
when he brings suit on the claim in a state of secondary jurisdiction, he is
necessarily asserting that the award against him may not legitimately be raised as a
bar.

Take this rather striking example: A distributors claim for premature termination has
been arbitrated in Ontario under Ontario law: When the distributor later brings suit
(say, in Belgium or the U.K.) seeking compensation under regulatory legislation that
protects commercial agents, the respondent/licensor will obviously have an interest
in using an award in his favor to defeat the claim---his case will be that if the
Distributor wished to challenge the Award then it should have done so by moving to
have it set aside in the courts of Canada.
344
Nevertheless, implicit in the
distributors suit was the unimpeachable proposition that if the award indeed
offended a mandatory rule, it would have to be refused recognition and thus
ignored by the courts of the forum.
345
Whatever the ultimate decision on the merits--

in all Contracting States---may, under local law, have res judicata or collateral estoppel effect barring
recognition in other secondary jurisdictions).
343
See Redfern & Hunter, supra n.54 at 438.
344
This will I trust sound familiar; it is precisely what was said in Gulf Petro, see text accompanying n.324
supra.. The actual case referred to, though, is Accentuate Ltd. v. Asigra Inc., [2009] EWHC 2655 (QB)
7; the plaintiffs claim for compensation was brought under the Commercial Agents (Council Directive)
Regulations 1993. On the similar Belgian legislation, see Rau, The Arbitrator and Mandatory Rules of
Law, supra n.30 at 83-86.
345
Accordingly, the precise holding in Accentuate was that since the distributor had made a sufficiently
arguable case to that effect, then the stay of the distributors suit should be lifted: If the mandatory
regulations did indeed apply to the claim, then the licensor will not be entitled to rely on the [award] as a
defence to these proceedings. And for the moment at least it has yet to be determined that there exists
an award which can be recognized by this court Accentuate Ltd., supra n.344 at 95, 102.
Note that the grounds for the refusal of recognition implicit in the plaintiffs lawsuit fell neatly within
art. V of the Convention---just as they did in Gulf Petro itself. Compare Slaney v. Intl Amateur Athletic
Fed., 244 F.3d 580 (7
th
Cir. 2001): Here, following an adverse arbitral award under IAAF auspices, a
suspended athlete brought state law and RICO claims against the IAAF. The award was treated as
having been rendered in Monaco; dismissal was affirmed---but only after an in-depth examination of the
grounds contained in art. V convinced the court that it was required to acknowledge the foreign
arbitration decision. The contention that the plaintiff had been denied the opportunity to present her
Page 114 of 118

-and indeed, whatever the extent of deference owed to arbitral competence in the
interpretation of contracts
346
---the notion of a jurisdictional bar erected solely to
prevent some impermissible collateral attack on the award has no purchase here
either.
347

7. Nevertheless the Gulf Petro case is not---not quite---identical to the case
hypothesized in 6 above. Concededly, the plaintiffs federal suit had sought to
recover---not just the costs and expenses of a supposedly wasted arbitration----but
also, notably, the profits it would have been awarded had the panel rendered a fair

case was addressed, but ultimately found to have no merit as this defense need not apply when a
panel employs a burden-shifting test in a fair manner. Id. at 593.
346
See text accompanying n.289 & n.289 supra.
347
The ability of a court in a state of secondary jurisdiction to entertain such actions, finds an obvious
corollary---in the inability of a court at the seat to enjoin challenges to recognition and enforcement
elsewhere. At the very least this would create an intolerable tension with the structure of art. V. Cf.
Shashoua v. Sharma, supra n.43 at 40, 56: The precise terms of the injunction here prevented the
defendant from bringing any proceedings outside the jurisdiction that challenge, impugn or have as their
object or effect the prevention or delay in enforcement by the claimants of an interim arbitration award.
The court noted that it was of course rightly accepted by the claimants that it is not open to this court to
prevent the defendant from objecting to the recognition or enforcement of the [award] in a country where
such recognition or enforcement is sought, on the limited grounds permitted by the [Convention];
however, I am not prepared to insert a general proviso to the injunction for fear that it would give rise to
further arguments as to whether or not any application did truly fall within the ambit of Article V. Through
what appears to be an excess of caution, leave to appeal this decision has been given---limited to the
question whether an injunction is indeed entitled to extend to the point of preventing an aggrieved party
from defending in India or elsewhere under the provisions of [art. V] the enforcement or recognition of
awards entered against him. [2010] EWCA Civ. 15 (C.A.) at 9..
Shashoua v. Sharma represents an admirably nuanced view of the question; cf. also C.v. D.,
discussed at n.219 supra. By contrast, where Convention grounds for non-recognition have not been
advanced---and where art. V is therefore not facially involved at all---common-law courts have been
known to enjoin an unsuccessful arbitrant from relitigating the same dispute on the merits in a foreign
jurisdiction. See text accompanying n.216 & n.216 supra; see also Karaha Bodas Co., L.L.C . v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 500 F.3d 111 (2
nd
Cir. 2007). Here a dispute
arising out of a joint venture for the exploration and development of geothermal energy resources in
Indonesia had given rise to a Swiss arbitral award against the Indonesian respondent; the award was
confirmed in federal district court over the respondents argument that the resource and development
estimates which had been prepared by the claimant at the projects inception had been fraudulent and
that this fraud was such as to vitiate the award. The respondent later filed suit in the Cayman Islands---
a suit also based on the theory that the Award was procured by fraud. An injunction against the Cayman
Islands suit was thought justified: The claims raised in that action have actually been litigated in federal
district courts in the U.S., which finally resolved all the issues presented to them, and even if the suit
had been brought in federal court it would not have been treated as an independent action but instead
as a continuation of the earlier federal proceedings. Id. at 122 fn.13, 123 fn.15, 126. To the same effect
is Suchodolski Associates, Inc. v. Cardell Financial Corp., 2006 WL 10886 (S.D.N.Y.), affd, 261 Fed.
Appx. 324 (2
nd
Cir. 2008)(plaintiffs claim that lender had abused its de facto control of borrower in order
to prevent it from making payments under loan agreement, was rejected by tribunal, and this Court
confirmed the award, including the panels ruling on abuse of control; held, an injunction to prevent
plaintiffs from asserting the same abuse of control claim in Brazilian courts was necessary to protect this
Courts jurisdiction over the award and to prevent the frustration of policies favoring the arbitration of
disputes).
Page 115 of 118

award. But even if it could be demonstrated that the respondent was guilty of
misconduct in procuring an illicit award, this would in no immediate sense be the
appropriate measure of damages: Such a claim must strike us as overreaching
because it impermissibly skips over any number of intermediate steps; obviously,
what remained open---and what was not argued or addressed---was the proper
forum for the adjudication of liability and damages even in the event the award
should be set aside as a bar.
348
The case was in any event not argued on the basis
that the claimant was seeking a de novo determination of the merits, and we
certainly need not go so far in order to understand it.

It is possible, however, to treat the plaintiffs RICO claim somewhat differently---as
an implicit challenge to the legitimacy of the arbitral process---that is, as if the
plaintiff had sought, preemptively, to ask the court on art. V grounds merely to
declare that the award was not worthy of recognition. The utility of such a remedy
seems clear:
349
This is of course particularly true for a losing respondent, who is
particularly vulnerable to the continuing effects of an unchallenged award hanging
over him like a sword of Damocles
350
---but even a losing claimant may have a

348
In addition to its attempt to replicate in federal court the proper result from an untainted
arbitration, the plaintiff had also sought damages for reputational injury and lost business opportunities
that it supposedly suffered as a consequence of not prevailing in the arbitration, Gulf Petro Trading Co.,
Inc., supra n.323, 512 F.3d at 749. This of course is far too speculative and unforeseeable to be
recoverable on any theory that can readily be imagined.
349
See Restatement, supra n.25 at 5-18, Reporters Notes, note h (the losing party may well have an
interest in knowing, in advance of an enforcement action by the prevailing party, that the award is not
deserving of recognition or enforcement); Eric Loquin, Perspectives pour une reforme des voies de
recours, in Perspectives dvolution du droit francais de larbitrage, supra n. 195 at 321, 328, 332 (the
ability of a losing party to act on a precautionary or preventative basis, without waiting for attempts to
enforce the foreign award against him, is favored by many commentators, both practitioners and
academics).
350
See Bertrand Moreau, Note [to Soc. Acteurs auteurs associs (AAA) v. Soc. Herndale Film Corp.,
Trib. de grande instance de Paris, Nov. 22, 1989], [1990] Rev. de lArb. 693, 696, 698 (the losing party
remains exposed to possible action, such as attachment, on the part of its apparent creditor).
The sword of Damocles is an extremely common trope likely to appear also in American cases
where a court has been asked to enforce the Declaratory Judgment Act, 28 U.S.C. 2201; e.g., Japan
Gas Lighter Assn v. Ronson Corp., 257 F.Supp. 219, 237 (D.N.J. 1966)(statute was designed to relieve
potential defendants from the Damoclean threat of impending litigation which a harassing adversary might
brandish, while initiating suit at his leisure - or never, permitting parties to sue for a declaratory judgment
once the adverse positions have crystallized and the conflict of interests is real and immediate); cf.
Yahoo! Inc. v. La Ligue Contre le Racisme et lAntisemitisme, 433 F.3d 1199, 1218 (9
th
Cir. 2006)(Yahoo!
contends that the threat of a monetary penalty hangs like the sword of Damocles. However, it is
exceedingly unlikely that the sword will ever fall).
However, there is absolutely nothing in the Gulf Petro opinion to suggest that the court would
have reached a result that was in the slightest degree different in the event the plaintiff there had been,
not the losing claimant in the arbitration, but the losing respondent, against whom enforcement
proceedings had not (yet) been initiated.
Page 116 of 118

legitimate interest in clarifying legal uncertainty and in clearing away, in the forum,
the barrier of an award that can be demonstrated to fall outside the Convention.
351

8. Whether a plaintiff is entitled to seek this relief in the form of a declaratory judgment
has not satisfactorily been tested.
352
At the very least, though, one can say this:
Whenever his ability to do so is actually denied, the reasons seem contingent and
uninteresting
353
---and more often than not simply irrelevant.
354
To claim that art. V

351
Cf. Volvo Construction Equipment North America, Inc. v. CLM Equipment Co., Inc., 386 F.3d 581 (4
th

Cir. 2004)(after terminating certain dealerships, Volvo asked for a declaration to the effect that it was not
liable for breach of contract or for violation of any state statute, and also for a declaration pursuant to the
Lanham Act of trademark infringement, unfair competition and dilution, on the ground that it was in
objective apprehension of the improper use of its trademark or its ability to control its trademark)..
352
See Rau, The New York Convention in American Courts, supra n.22 at 234, 241 fn. 116; cf. Indocomex
Fibres Pte., Ltd. v. Cotton Co. Int'l, Inc., 916 F. Supp. 721 (W.D. Tenn. 1996)(English award; successful
party moved to confirm and losing party filed "Motion To Vacate, Or In The Alternative To Prevent
Enforcement" of award; court held it had jurisdiction to confirm the award and found no reason not to do
so).
353
Cf. Loquin, supra n.349 at 330 (what is most delicate is to determine, under the scheme of French
procedural law, the appropriate tribunal to hear any such challenge: Should it be the Tribunal de Grande
Instance? Or, more properly, the Cour dAppel, which alone is charged with monitoring the validity of
awards?); see also id. at 353 (discussion; intervention of Charles Jarrosson)(adding one further remedy
would multiply the available mechanisms for challenging an award and thus would involve dismantling
the overall coherent structure carefully designed by French legislation).
On the extent to which such contingent choices with respect to judicial organization may often
drive national arbitration doctrine, cf. text accompanying nn. 207-210 supra.
354
In Gerling-Konzern General Ins. Co.--U.K. Branch v. Noble Assur. Co., 2006 WL 3251491 (D.Vt.), the
losing party had requested that an English award be vacated, an action that was clearly---and
concededly--- beyond the power of the federal court. The movant was then obliged to suggest that the
court view this request as merely invoking [the courts] authority to decline to enforce or recognize the
arbitral award. But the court declined the invitation on the ground that the Convention does not confer
jurisdiction upon this Court to decline to enforce or recognize an award in the absence of a proceeding
either to compel arbitration or to enforce an arbitral award. That the prevailing party seeks to fend off
[the movants] challenge to the validity of the arbitral award by invoking the [Convention's] provisions does
not transform this proceeding into one to enforce an arbitral award. Id. at *4 fn. 5.
As I have written earlier, to the extent that a proposition like this purports to rest on the plain
language of 203, it represents an unnecessarily restrictive view of the jurisdictional reach of that
section. (This is a subject we have already canvassed at excessive length in our discussion of Solidere,
see text accompanying nn. 238 ff. supra). But it should in any event be irrelevant once we are satisfied
that an independent source of federal jurisdiction in fact exists.
Now the Gulf Petro court did acknowledge the possibility that the plaintiffs claim might be
evaluated on an alternative ground---and suggested one scenario that in fact comes rather close to what
is posited in the text. Recall that in reality, the prevailing party in the arbitration saw no need to actually
seek confirmation of the award in the U.S. at all: But suppose that one chose to recharacterize the
parties respective claims, and suppose that one chose to imagine that the defendant had in fact moved
to have the award recognized under the Convention---in which case the plaintiff would, in turn, be
allowed to assert the specific defenses to recognition found in art. V. This, apparently, might have
enabled the complaint to survive a motion based on lack of subject matter jurisdiction. It is all fictional, of
course, and still seems unnecessarily tied to the notion of art. V as being nothing but a shield, purely
defensive and reactive. But what is striking is that the court, in a highly curious passage, refused even to
take a step down this path: For the plaintiffs claims related first and foremost to the alleged tainting of
Page 117 of 118

may only come into play defensively---that is, only in circumstances where the
prevailing party has actually attempted to enforce the award---is certainly not a view
mandated by the language of the Convention
355
; allocation of power on the mere
basis of a metaphor (for example, that of the sword and shield) is rarely
functional.
356

It may seem somewhat extravagant to reconceptualize the Gulf Petro litigation in this
way as nothing more than a request for a declaratory judgment. But going down that
path would have at least one virtue: It would call on the court to engage in a fact-
intensive and delicate exercise of judgment; it would call on it to weigh the prospect
of hardship to the plaintiff (to the extent he is denied some sort of immediate
remedy) against the value of avoiding premature decisions (to the extent the factual
record may be sketchy, and where things may not have yet progressed to the point
that the judge can know concretely what is at stake)---all this with a view to arriving
at some sort of conclusion concerning the prudential ripeness of declaratory
action.
357
Such a process might well have counseled that the plaintiff be allowed the
usual opportunity, however ultimately ill-fated, to go forward with its allegations,
however trivial. But thats hardly the point, is it? How comforting it would be to know
that we are at least asking the right questions; on this playing field, the notion of a

the arbitration proceedings rather than the underlying contract dispute itself; since that was the case,
there is more at work here than res judicata. Id. at 751-52; see n. 332 supra. I cannot begin to make the
slightest sense of this: Yes, doubtless a request for recognition and enforcement under art. V will
commonly encompass a claim that the award was a final determination of litigated matters (that is, is res
judicata properly speaking). But at the same time it may go far beyond that; art. V more broadly is
concerned with the extent of the preclusive effect to be given to illegitimate awardsand that is precisely
the challenge posed by the plaintiff in Gulf Petro.
355
Art. V(1) does provide that recognition and enforcement of the award may be refused, at the request
of the party against whom it is invoked, only if that party demonstrates the presence of one of the
grounds for refusal specified in that section. But surely too much weight cannot be borne by the word
invoked? Note also that Art. V(2) does not contain the italicized language at all: The apparent intention
is presumably to draw a distinction between grounds (under art. V(1)) that must be raised by the movant,
and grounds (under art. V(2) that the court may raise sua spontethere is no apparent intention to
regulate the permissible timing of the objection. Cf. also Soc. Acteurs auteurs associs (AAA), supra
n.350 (art. V is not a barrier to declaratory relief, since art. III makes it clear that the Convention does not
purport in any way to interfere with the usual internal rules of procedure of the state where the award is
relied on).
356
French courts have held that an action claiming merely that the court lacks jurisdiction is not
admissible [recevable]; a plaintiff may not bring a suit solely for the purpose of challenging the territorial
jurisdiction of the court to which he has submtited his case. Apparently this is thought not to be
formalistic in the slightest---for after all, there are actions and [then there are] defenses. Emmanuel
Jeuland, Flashairlines and Declaratory Relief Under French Law,
http://conflictoflaws.net/2008/flashairlines-and-declarartory-relief-under-french -law (April 1, 2008).
357
See Yahoo! Inc., supra n.350 at 1205. Here the plaintiff sought a declaratory judgment to the effect
that interim orders of French courts, requiring Yahoo! France to remove certain links and to post certain
warnings, are not recognizable or enforceable in the United States. The court held that the suit was not
ripe. Note that in the curious alignment of the parties here, the plaintiff was insisting that it continues
to be in serious violation of the French orders, while the defendants---at whose request the French
orders had been issued---were insisting that Yahoo! was fact substantially complying with those orders.
Page 118 of 118

jurisdictional bar---the notion of some imagined inability to interfere with the
prerogatives of the state of primary jurisdiction---must seem very faint and distant
indeed.

V. Conclusion

This last point returns us to the main theme of the present paper---and so, a
conclusion should only be necessary here for the benefit of the terminally inattentive.
We have canvassed the various fact patterns in which the traditional allocation of
international competence on the basis of primary and secondary jurisdiction might
possibly be deemed useful: For example as we have seen, it appears to be the
heuristic of choice to test the extraterritorial effect of an award, in circumstances where
the agreement of the parties has subjected the arbitral process to a particular legal
system whose own courts have found it lacking in legitimacy. All this is much
controverted, but generally well understood.

But on occasion an American court may be asked to deploy familiar procedural
devices---a preliminary injunction, say, or a declaratory judgment---in aid of its nationals;
in these cases, it may be claimed, some safety valve may be necessary for the
exceptional situation where the plaintiff thinks he can demonstrate the absence of true
assent, or the misconduct of a tainted tribunal. And at this point the courts begin to be
curiously mesmerized by a rhetoric invented for quite different purposes. What began as
merely a tentative organizing principle for the allocation of power becomes a shibboleth.
What purports in cases like Solidere and Gulf Petro to be a commendable solicitude for
the needs of the institution of international arbitration, takes the form---in apparent dread
of any sense of nuance---of an abdication of any decision making power whatever, in
favor of the arbitral tribunal and the courts of the seat.

It is not as if federal courts entirely lacked alternative weapons in their arsenal to
dispose at preliminary stages of frivolous litigation: Why then the perceived need,
whatever the merits, to erect a jurisdictional bar to choke off post-arbitration litigation
at the earliest posssible moment?
358
Even a legal system quite committed, for
example, to the proposition that attempts to evade the arbitral process are likely to be
quite without merit---or for that matter to the proposition that international neutrals
cannot possibly be corrupt---need not shrink, on the prophylactic grounds of lack of
power, from testing any challenges.

358
Gulf Petro Trading Co., Inc., supra n.323, 512 F.3d at 753.

Understanding and Misunderstanding Primary Jurisdiction

Uploaded by

Copyright:

Available Formats

Understanding and Misunderstanding Primary Jurisdiction

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Understanding and Misunderstanding Primary Jurisdiction

Uploaded by

Copyright:

Available Formats

Electronic copy available at: http://ssrn.

Electronic copy available at: http://ssrn.com/abstract=1633555

You might also like