Looking into a Crystal Ball: Courts' Inevitable Refusal to Enforce Parties' Contracts to Expand Judicial Review of Non-Domestic Arbitral Awards

Authors

Eric Chafetz

Document Type

Article

Abstract

This article will first discuss the legislative history of the NY Convention in general and the history of its vacatur provisions in particular. Second, it will summarize certain federal court decisions that address the Expansion Issues and reach the Consensus. Third, it will argue that the Expansion Issues were resolved incorrectly, because the courts addressing them do not recognize how the operative/material language in section 207 of Ch. 2 of the FAA and section 9 of Ch. 129 of the FAA has a virtually identical meaning, and therefore should have been construed and applied in the same manner. Fourth, this article will discuss how the courts addressing the Expansion Issues incompletely analyze the interaction between the provisions in the NY Convention and in Ch. 1 of the FAA. Fifth, this article will argue that the courts analyzing the Expansion Issues fail to recognize how the NY Convention's vacatur provisions have historically been narrowly construed. Sixth, many of those same courts ignore how all the operative/material language in Art. V(1)(e) of the NY Convention is in the past tense. Seventh, this article will contend that how courts have improperly resolved the Expansion Issues-the Consensus-foreshadows how those same courts will eventually resolve the issue of whether parties can contract to expand the judicial review provisions in Art. V of the NY Convention.

Recommended Citation

Eric Chafetz, Looking into a Crystal Ball: Courts' Inevitable Refusal to Enforce Parties' Contracts to Expand Judicial Review of Non-Domestic Arbitral Awards, 9 Pepp. Disp. Resol. L.J. Iss. 1 (2008)
Available at: https://digitalcommons.pepperdine.edu/drlj/vol9/iss1/2