A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

United States of America.

Implementing jurisdictions: 50 states, 94 district courts and 12 circuit courts of appeal.

Note: This country answer identifies the general rules followed by the 12 circuits. To the extent any circuit or state has unique rules, those are included as well.

Explanatory note: The USA is a federal system comprising 50 states. Power is divided between the federal government, which comprises an executive branch, a legislative branch and a judicial branch, and the governments of the individual states, which also comprise executive, legislative and judicial branches.

The federal judiciary and most state court systems are tripartite comprising a trial court, an appellate court and a supreme court.

US district courts: The US district courts are the principal trial courts in the federal court system. There are 94 federal judicial districts (one or more in each state, the District of Columbia, Puerto Rico and the overseas territories).

US circuit courts: The 94 judicial districts are organized into 12 regional circuits. Each circuit has a US court of appeals that hears appeals from the circuit's district courts.

The Court of Appeals:

1. The Court of Appeals for the First Circuit hears appeals from district courts located in Maine, New Hampshire, Massachusetts, Rhode Island and Puerto Rico.
2. The Court of Appeals for the Second Circuit hears appeals from district courts located in New York, Connecticut and Vermont.
3. The Court of Appeals for the Third Circuit hears appeals from district courts located in Pennsylvania, New Jersey, Delaware and the Virgin Islands.
4. The Court of Appeals for the Fourth Circuit hears appeals from district courts located in South Carolina, North Carolina, West Virginia, Virginia and Maryland.
5. The Court of Appeals for the Fifth Circuit hears appeals from district courts located in Texas, Louisiana and Mississippi.
6. The Court of Appeals for the Sixth Circuit hears appeals from district courts located in Michigan, Ohio, Kentucky and Tennessee.
7. The Court of Appeals for the Seventh Circuit hears appeals from district courts located in Wisconsin, Illinois and Indiana.
8. The Court of Appeals for the Eighth Circuit hears appeals from district courts located in North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas.
9. The Court of Appeals for the Ninth Circuit hears appeals from district courts located in California, Hawaii, Alaska, Arizona, Nevada, Oregon, Washington, Idaho, Montana and the territories of Guam and the Northern Mariana Islands.
10. The Court of Appeals for the Tenth Circuit hears appeals from district courts located in Wyoming, Utah, Colorado, New Mexico, Kansas and Oklahoma.
11. The Court of Appeals for the Eleventh Circuit hears appeals from district courts located in Florida, Georgia and Alabama.
12. The Court of Appeals for the D.C. Circuit hears appeals from district courts located in the District of Columbia.

US Supreme Court: The US Supreme Court hears a limited number of cases typically involving important questions about the Constitution or federal law.

US treaty ratification and implementing legislation: The federal government signs treaties that bind the USA internationally. Under the US Constitution, the head of the executive branch, the President, is authorised to enter into treaties. Once a treaty is ratified by the US legislature, the treaty becomes binding federal law. In some cases (incl. the New York Convention), the US legislature enacts implementing legislation that sets forth the statutory mechanism for implementation and allows for its enforcement.

2. Date of entry into force of the New York Convention

29 Dec. 1970.

(Source: 9 U.S.C. §§ 201-208.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?

Yes.

(Source: 9 U.S.C. § 201; New York Convention Art. XVI; G. Aksen, 'Application of the New York Convention by United States Courts', Y.B. Com. Arb., P. Sanders (ed.), Vol. IV (1979), pp. 341-59.)

(b) commercial relationships?

Yes.

Sect. 202 of the United States Federal Arbitration Act ('FAA') provides that '[a]n arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial … falls under the Convention'.

(Source: 9 U.S.C. § 202.)

The Supreme Court of the United States has instructed that the term 'involving commerce', as used in the FAA serves as a 'functional equivalent of more familiar term "affecting commerce", words of art that ordinarily signal broadest permissible exercise of Congress' Commerce Clause power'.

(Source: Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56 (2003).)

In the context of international arbitration, 'commercial' refers to 'matters or relationships, whether contractual or not, that arise out of or in connection with commerce'. A matter or relationship may be commercial even though it does not arise out of or relate to a contract, so long as it has a connection with commerce, whether or not that commerce has a nexus with the United States.

(Source: Restatement (Third) of US Law of Int'l Com. Arb. § 1–1 (2012).)

(i) D.C. Circuit: Settlement deed containing arbitration clause and resolving previous dispute between Government of Belize and Belize-registered companies arising from purchase of shares of stock fell within the scope of the term 'commercial' as used in the New York Convention because the underlying transaction was commercial and the arbitration agreement to resolve dispute arising out that transaction facilitated commercial legal relationship between parties.

(Source: BCB Holdings Ltd. v. Gov’t of Belize, 110 F. Supp. 3d 233, 243 (D.D.C. 2015), aff'd, 650 F. App'x 17, 2016 WL 3042521 (D.C. Cir. May 13, 2016).)

Foreign government's contract with a private telecommunications company to sell properties in exchange for certain accommodations to ensure provision of telecommunication services was a commercial transaction and therefore an arbitration award in the company's favour falling within the scope of the New York Convention.

(Source: Belize Soc. Dev. Ltd. v. Gov't of Belize, 794 F.3d 99, 105 (D.C. Cir. 2015).)

First Circuit: Agency Agreement between a Korean manufacturer of electronic equipment and its provider of repair services established a commercial relationship between the parties within the meaning of the New York Convention and therefore the parties had to arbitrate their disputes pursuant to an arbitration clause in the Agency Agreement.

(Source: Eazy Elecs. & Tech., LLC v. LG Elecs., Inc., 226 F. Supp. 3d 68, 75 (D.P.R. 2016).)

Second Circuit: Licensor of patents for wireless technology filed petition against licensee, seeking order enforcing foreign arbitration award setting forth the terms and conditions of patent license agreement. Having found that the non-domestic arbitral award arose out of commercial relationships and, as such, was subject to the New York Convention, the court stayed enforcement proceedings pending resolution of a set aside proceeding in Paris, the place of arbitration.

(Source: InterDigital Comm’ns, Inc. v. Huawei Inv. & Holding Co. 166 F. Supp. 3d 463, 469 (S.D.N.Y. 2016).)

Contract between a United States manufacturer and a foreign government for construction of certain buildings, employment of local residents for that project, and the manufacturer's lease of the buildings was 'commercial' within the meaning of the New York Convention.

(Source: Island Territory of Curacao v. Solitron Devices, Inc., 356 F. Supp. 1, 13 (S.D.N.Y. 1973).)

The provision of the FAA relating to non-domestic arbitral agreements applied to a dispute between a chemical plant operator and a shipping company regarding fuel deliveries where the operator had plants in Texas and Louisiana and the shipping company was a Swiss corporation with its principal place of business in Switzerland.

(Source: Glencore Ltd. v. Degussa Engineered Carbons L.P., 848 F. Supp. 2d 410 (S.D.N.Y. 2012).)

Third Circuit: Arbitration agreement in the applicant's employment contract was valid and enforceable under the New York Convention. The Circuit court upheld the district court's finding that contracts of employment for seaman are not excluded from the term 'commercial' in the New York Convention.

(Source: Razo v. Nordic Empress Shipping Ltd., 362 F. App'x 243 (3rd Cir. 2009).)

Fifth Circuit: Arbitration clause contained in an insurance policy falls within the purview of the New York Convention as the relationship between the insured and the insurer was commercial in nature.

(Source: Simmons v. Sabine River Auth. of La., 823 F. Supp. 2d 420 (W.D. La. 2011).)

Ninth Circuit: Agreements to arbitrate fall under the New York Convention when they 'aris[e] out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in [9 U.S.C. § 2]'.

(Source: Quiksilver Greater China Ltd. v. Quiksilver Glorious Sun Licensing Ltd., 2012 WL 12878644, at *3 (S.D. Cal. Nov. 2, 2012).)

Employment agreement to act as a sailor for Oracle Team USA at the America's Cup yacht race was a legal relationship of commercial nature and, as such, the New York Convention applied to it.

(Source: Mitchell v. Tillett, 2016 WL 6436820, at *1 (N.D. Cal. Oct. 26, 2016).)

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

The Convention also generally applies to awards rendered in the United States when either: (a) there is a non-US party to the arbitration, or (b) even if the parties are all domestic, their relationship involves: (i) property located abroad; (ii) envisages performance or enforcement abroad; or (iii) has some other reasonable relation with one or more foreign States.

(Source: 9 U.S.C. § 202.)

D.C. Circuit. Subject matter of a dispute is not entirely domestic in scope where it involves a 'dispute originating in [a foreign state] and none of the parties are citizens of the United States'.

(Source: Stati v. Rep. of Kaz., 199 F. Supp. 3d 179 (D.D.C. 2016).)

The New York Convention applies to a dispute between a non-US company and the Republic of Niger to provide biometric and electronic passports. Granting the petition to confirm the arbitral award, the District Court for the District of Columbia found that it had no reason to deny confirmation where respondent had failed to appear in the case and raise any defences.

(Source: Africard Co. v. Rep. of Niger, 210 F. Supp. 3d 119 (D.D.C. 2016).)

First Circuit: Signatory to a commercial contract requiring international arbitration was equitably estopped from avoiding arbitration with a non-signatory when the dispute that the non-signatory was seeking to resolve in arbitration was, at least in part, based upon the subject matter of the commercial contract that the estopped party had signed.

(Source: Sourcing Unlimited, Inc. v. Asimco Int’l, Inc., 526 F.3d 38 (1st Cir. 2008).)

If an arbitration agreement exists between the parties and is covered by the New York Convention, it is enforceable unless it is null and void, inoperative or incapable of being performed. Here, the court found that the arbitration clause falling within the scope of the Convention was effective upon the assignee of the contract containing the arbitration clause. The arbitration clause was originally between the English insurer and the Massachusetts owner of a commercial fishing vessel and required arbitration of all disputes in England. The court found that because the arbitration clause was valid between the original parties it was also valid for the assignee of the Massachusetts owner's rights.

(Source: DiMercurio v. Sphere Drake Ins., PLC, 202 F.3d 71 (1st Cir. 2000).)

Second Circuit: Non-domestic arbitral award is an award that is 'made' in the United States because the parties agreed to arbitrate before an arbitrator in the United States, but which nonetheless falls under the New York Convention if it was made within the legal framework of another country, it was decided under the laws of the United States but involves either non-US entities or property located abroad, it envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states.

(Source: CBF Indústria de Gusa S/A v. AMCI Holdings, Inc., 846 F.3d 35, 60 (2d Cir. 2017); CBF Indústria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58, 73 (2d Cir. 2017); Bergesen v. Joseph Muller Corp., 710 F.2d 928, 932 (2d Cir. 1983); Yusuf Ahmed Alghanim & Sons v. Toys ‘R’ Us, Inc., 126 F.3d 15, 18 (2d Cir. 1997).

The New York Convention applied to a dispute between a chemical plant operator and a shipping company regarding fuel deliveries where the operator had plants in Texas and Louisiana and the shipping company was a Swiss corporation with its principal place of business in Switzerland.

(Source: Glencore Ltd. v. Degussa Engineered Carbons L.P., 848 F. Supp. 2d 410 (S.D.N.Y. 2012).)

Third Circuit: An arbitration award falls under the New York Convention if it involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states. The New York Convention also applies to awards that are not entirely between citizens of the United States. Because the arbitration award at issue had been issued against a number of entities that were not citizens of the United States, the New York Convention applied.

(Source: Vento v. Crithfield, 2015 WL 5735616, at *8 (D.V.I. Sept. 30, 2015).)

Fourth Circuit: The order of the American Arbitration Association ('AAA') dismissing the respondent's claims owing to the parties' failure to make the required arbitration payment was final. Further, the court noted that the New York Convention was applicable because the award, i.e. order, was not domestic given that the contract, albeit between US citizens, was to be performed abroad (namely in Iraq).

(Source: Blackwater Sec. Consulting, LLC v. Nordan, 2011 WL 237840 (E.D.N.C. Jan. 21, 2011).)

Fifth Circuit: The Convention applies where '[a]t least one of the parties to the agreement is a US citizen, or, if the agreement is entirely between US citizens, it must have some "reasonable relation" with a foreign state'.

(Source: Beiser v. Weyler, 284 F.3d 665 (5th Cir. 2002).)

Several years prior, the US District Court for the Southern District of Texas opined that an award rendered in an AAA arbitration seated in Houston between Chinese and Pakistani companies could be enforced under the New York Convention. The court adopted the Second Circuit's Bergesen definition (see above) of 'non-domestic' as covering awards rendered in the USA between two foreign parties.

(Source: In the Matter of the Arb. Between Trans Chem. Ltd. v. China Nat’l Mach. Import and Export Corp., 978 F. Supp. 266 (S.D. Tex. 1997).)

A Louisiana court confirmed that an arbitration seated in the United States between a US corporation and a citizen of Canada was deemed to be non-domestic. Finding that it was a court of primary jurisdiction pursuant to the New York Convention, the Court applied provisions in the FAA - the applicable national law of the primary jurisdiction - to the issue of whether to set aside the award.

(Source: Jolie Design & Décor, Inc. v. Gogh, 2016 WL 3257585 (E.D. La. June 14, 2016) (quoting Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 368 (5th Cir. 2003)).)

Sixth Circuit: Arbitral award made in the USA, arising from a dispute not exclusively between US citizens, involving a contract that envisaged performance abroad and involving property abroad, was not domestic for the purpose of the applicability of the New York Convention.

(Source: Jacada (Europe), Ltd. v. Int’ Mktg. Strategies, Inc., 401 F.3d 701, 706-09 (6th Cir. 2005).)

Seventh Circuit: Any commercial agreement or arbitration that involves property located abroad, envisages performance or enforcement abroad or has some other reasonable relation with one or more foreign states is governed by the New York Convention, when both or all countries concerned are parties to the Convention.

(Source: Johnson Controls, Inc. v. Edman Controls, Inc., 712 F.3d 1021, 1025 (7th Cir. 2013).)

The New York Convention applies to awards made in the USA between US parties if the underlying agreement was to be performed abroad.

(Source: Lander Co. Inc. v. MMP Invs., Inc., 107 F.3d 476 (7th Cir. 1997).)

Eighth Circuit: The circuit court of the state of Missouri recognized that in order for agreements to fall under the Convention they must: involve property located abroad, envisage performance or enforcement abroad, or have some other reasonable relation with one or more foreign States. The court explained that where signatories to an arbitration agreement are all US citizens and nothing in the agreement gives rise to any relationship to a foreign State, the requirements of a 'reasonable relationship' set forth in Sect. 202 of the FAA are not satisfied.

(Source: Smoller v. Deutsche Bank AG, 2006 WL 2129792 (E.D. Mo. July 31, 2006) [not reported].)

Petitioner brought an action to vacate the arbitration award construing the parties' arbitration agreement in an underlying vehicle sales agreement to allow for class arbitration. Respondent, a permanent resident in the United States removed the action to federal court, asserting that his Danish citizenship rendered the arbitration award 'non-domestic' and the court therefore had jurisdiction. In rejecting respondent's argument that the mere presence of a foreign national as a party to an arbitration agreement was sufficient to render an award non-domestic under 9 U.S.C. § 202, the court held that the proper test for establishing citizenship under the New York Convention was stated in 28 U.S.C. § 1332(a), i.e. that '[f]or the purposes of this section, Sect. 1335, and Sect. 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled').

(Source: North Motors, Inc. v. Knudsen, 2011 WL 2552573 (E.D. Mo. June 27, 2011).)

Tenth Circuit: New York Convention applied to the case because one of the parties to the dispute was a 'non-domestic' corporation and the dispute principally involved conduct and contract performance in a foreign state.

(Source: Privacy-Assured Inc. v. AccessData Corp. Ltd., 2015 WL 1868757, at *3 (D. Utah Apr. 23, 2015).)

Although respondent's parent corporation was Canadian, respondent's subsidiary - the party directly involved in the dispute - was a US company. Petitioner's arbitration request fell outside the Convention because petitioner had failed to show that respondent's Canadian parent corporation - which was not directly involved in the dispute - was bound by the arbitration agreement between the US petitioner corporation and respondent's US subsidiary.

(Source: Colorado Mills LLC v. Sunrich, LLC., 2010 WL 1413173, at *2 (D. Colo. Apr. 2, 2010).)

Eleventh Circuit: Where a district court finds that an arbitration agreement falls under the New York Convention, it must order the parties to arbitrate. An arbitration agreement falls under the New York Convention if (a) the agreement is in writing; (b) the agreement provides for arbitration in the territory of a signatory of the New York Convention; (c) the agreement arises out of a commercial legal relationship, whether contractual or not; and (d) either one of the parties to the agreement is not a US citizen or the commercial relationship has some "reasonable relation" with one or more foreign states.

(Source: Suazo v. NCL (Bahamas) Ltd., 822 F.3d 543, 546 (11th Cir. 2016).)

Arbitration seated in Tampa, Florida between a US party and a German party was characterized as non-domestic. The court went on to hold that for such arbitrations, the exclusive legal test for setting aside would be Art. V of the New York Convention.

(Source: Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434 (11th Cir. 1998).)

An award issued by a tribunal sitting in Miami between a Canadian party and a Venezuelan party was considered non-domestic.

(Source: Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164 (11th Cir. 2004).)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) Chapter 2 of the FAA, 9 U.S.C. §§ 201-208, which implements the New York Convention in the USA;

(ii) Chapter 1 of the FAA, 9 U.S.C. §§ 1-16, but only to the extent not in conflict with the Convention or the implementing legislation in Chapter 2 of the FAA;

(iii) Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a);

(iv) Chapter 3 of the FAA, 9 U.S.C. §§ 301-307, which implements the Panama Convention in the USA.

It bears noting that the parties cannot opt out of the FAA by choosing state law arbitration rules.

(Source: Ario v. Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of Acc., 618 F.3d 277 (3d Cir. 2010).)

Furthermore, it is well established that the FAA pre-empts inconsistent state law.

(Source: DIRECTV, Inc. v. Imburgia, 136 S.Ct. 463 (2015) (FAA pre-empts a California provision that made class-arbitration waivers unenforceable); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 351-52 (2011) (FAA pre-empts California common law rule regarding the unconscionability of class arbitration waivers in consumer contracts); Preston v. Ferrer, 552 U.S. 346, 359 (2008) ('When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws lodging primary jurisdiction in another forum'); Renard v. Ameriprise Fin. Servs., Inc., 778 F.3d 563, 567 (7th Cir. 2015) ('the FAA pre-empts inconsistent state law'); Oblix, Inc. v. Winiecki, 374 F.3d 488, 492 (7th Cir. 2004) ('If a state treats arbitration differently, and imposes on form arbitration clauses more or different requirements from those imposed on other clauses, then its approach is pre-empted by § 2 of the Federal Arbitration Act').)

However, only substantive provisions of the FAA (and not its procedural provisions) pre-empt provisions of the relevant state arbitration law in state court proceedings.

(Source: Johnson v. Chase Manhattan Bank USA, N.A., 784 N.Y.S.2d 921 (Sup. Ct. N.Y. Co.), aff'd, 786 N.Y.S.2d 302 (N.Y. 1st Dep't. 2004); Sims v. Clarendon Nat'l Ins. Co., 336 F. Supp. 2d 1311 (S.D. Fla. 2004); Avatar Props., Inc. v. N.C.J. Inv. Co., 848 So. 2d 1259 (Fla. Dist. Ct. App. 2003); Sanchez v. Valencia Holding Co., LLC, 353 P.3d 741, 756 (Cal. 2015).)

In addition to the aforementioned federal statutes, many states have adopted the UNCITRAL Model Law including California, Connecticut, Florida, Georgia, Illinois, Louisiana, Oregon and Texas. There are numerous relevant state laws and authorities, including the following:

D.C. Circuit: The District of Columbia Revised Uniform Arbitration Act, D.C. Code §§ 16-4401 to 16-4432.

First Circuit: The New Hampshire Supreme Court ruled that a choice of New Hampshire law in a contract containing an arbitration clause requires that New Hampshire arbitration law apply to a petition to vacate an arbitral award. Under New Hampshire law, a court may vacate an award for plain mistake of law.

(Source: Finn v. Ballentine Partners, LLC, 143 A.3d 859, 871-72 (N.H. 2016).)

Courts in Massachusetts have held that parties cannot contract for expanded review under state law.

(Source: Katz, Nannis & Solomon, P.C. v. Levine, 46 N.E.3d 541, 549 (Mass. 2016).)

Third Circuit: New Jersey Arbitration Act, N.J. Stat. Ann. §§ 2a:23B-1 to 2a:23B-32.

Fourth Circuit: (i) Maryland Uniform Arbitration Act, Md. Code Ann. Cts. & Jud. Proc. §§ 3-201–234; (ii) North Carolina International Commercial Arbitration and Conciliation Act, NC. Gen. Stat. §§ 1-567.30 to 1-567.68.

Fifth Circuit: (i) Texas Civil Practice and Remedies Code, §§ 171.001 to 171.098 and §§ 172.001-172.215; (ii) Mississippi Code, §§ 11-15-1 to 11-15-37; (iii) Louisiana Revised Statutes, §§ 9:4201 to 9:4217 and §§ 9:4241 to 9:4276.

In Texas, the courts have confronted the question of how the Texas Arbitration Act ('TAA') interacts with the FAA, of which the New York Convention is an integrated part. The Texas Supreme Court has stated that '[m]any courts of appeals wrongly view the FAA and TAA as mutually exclusive, but the US Supreme Court and this Court have held a different view for some time: the FAA only pre-empts contrary state law, not consonant state law'.

(Source: In re D. Wilson Construction Co., 196 S.W.3d 774 (Tex. 2006).)

The Federal Court for the Eastern District of Louisiana has manifested a comparable legal position, stating 'because the Convention was negotiated pursuant to the Treaty power set forth in the US Constitution, and Congress passed enabling legislation to make the Convention the highest law of the land, the Convention must be enforced over all prior inconsistent rules of law'.

(Source: Consorcio Rive, S.A. v. Briggs of Cancun, Inc., 134 F. Supp. 2dd 789 (E.D. La. 2001).)

The Texas Supreme Court held that the FAA does not pre-empt enforcement of an agreement for expanded judicial review of an arbitration award enforceable under state law.

(Source: Nafta Traders Inc. v. Quinn, 339 S.W.3d 84, 101 (Tex. 2011).)

Sixth Circuit: Tennessee courts have held that parties cannot contract for expanded review under state law.

(Source: Pugh's Lawn Landscape Co. v. Jaycon Dev. Corp., 320 S.W.3d 252, 260 (Tenn. 2010).)

Seventh Circuit: (i) Illinois International Commercial Arbitration Act, 710 ILCS 30/1-1 to 99-99 (modelled on the UNCITRAL Model Law); (ii) Indiana State Code, Chapter 34, Art. 57, IC-34-57 (domestic arbitration act available if all parties subject to suit in Indiana); (iii) Wisconsin Statutes, Chapter 788, Wis. Stats. 788 (domestic arbitration act).

Ninth Circuit: Applicable California laws include: California Arbitration Act, Cal. Code Civil Proc. §§ 1285 to 1294.4; California International Arbitration Act, Cal. Code Civil Proc. §§ 1297.11 et seq.; California Rules of Court, Rules 3.1100 to 3.1116, 3.1300 to 3.1312, Cal. Code Civil Proc. §§ 1003 to 1020; local court rules and judge-made law.

In Hall Street Associates, LLC. v. Mattel, the US Supreme Court suggested, in dicta, that parties may agree to expanded judicial review of arbitral awards under state law. Courts in California have been accepting such an expansion.

(Source: Hall Street Associates, LLC. v. Mattel, Inc. 552 U.S. 576, 590 (2008); Burton Way Hotels, Ltd. v. Four Seasons Hotels Ltd., 663 F. App'x 567, 2016 WL 6081390, at *1 (9th Cir. Oct. 18, 2016) (vacating an award, in part, after reviewing issues of law de novo); Cable Connection, Inc. v. DIRECTV, Inc., 190 P.3d 586, 600-01 (Cal. 2008) (permitting judicial review when it was provided by the parties' agreement.)

However, courts will not vacate an award based on an arbitrator's failure to consider an argument the parties did not present during the arbitration.

(Source: Watermill Ventures, Ltd. v. Cappello Capital Corp., 671 F. App'x 492, 493 (9th Cir. Dec. 1, 2016).)

Rules under the FAA that are considered procedural in nature might not apply in California state courts.

(Source: Rosenthal v. Great Western Fin. Securities. Corp., 14 Cal. 4th 394, 409-10 (1996) (state procedural rules apply in state court proceedings except where such rules would defeat the purposes of federal law).)

When parties choose California law to govern their arbitration agreement, the procedural sections of the FAA are not applicable.

(Source: Cronus Invs., Inc. v. Concierge Svcs., 35 Cal. 4th 376, 380 (2005); Rambus, Inc. v. Hynix Semiconductors, Inc., 2007 WL 18829, at **11-12 (Cal. App. Jan. 3, 2007).)

Petitions to confirm arbitral awards in California are governed procedurally by the rules generally applicable to the making and hearing of motions.

(Source: Cal. Code Civil Proc. § 1290.2; Cal. R. Ct. 3.1103(a)(2).)

Parties seeking to enforce arbitral awards in California courts must therefore consult the relevant Rules of Court, provisions of the Code of Civil Procedure, and any local court rules pertaining to law and motion practice.

(Source: Cal. Code Civil Proc. § 1290.2; Cal. R. Ct. 3.1103(a)(2).)

Eleventh Circuit: The Florida International Commercial Arbitration Act (FICAA) governs international arbitration.

(Source: Fla. Stat. §§ 684.0001 to 684.0049.)

The Eleventh Circuit has used the FICAA when the setting aside standards were determined to be more favourable to the recognition and enforcement of foreign arbitral awards.

(Source: Rintin Corp., S.A. v. Domar, Ltd., 476 F.3d 1254 (11th Cir. 2007).)

Under Alabama law, a court may conduct de novo review of an award if the agreement provides for judicial review on that basis.

(Source: Raymond James Fin. Servs., Inc. v. Honea, 55 So. 3d 1161, 1169 (Ala. 2010).)

By contrast, a Georgia court has held that parties cannot contract for expanded review under state law.

(Source: Brookfield Country Club, Inc. v. St. James-Brookfield, LLC, 696 S.E.2d 663, 667 (Ga. 2010).)

C. Limitation periods (time limits)

6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

Any party may apply to any court having jurisdiction for an order confirming the award against any other party to the arbitration within three years after an arbitral award falling under the Convention is made.

(Source: 9 U.S.C. § 207.)

The applicable limitation period starts running when the arbitration award is 'made' within the meaning of 9 U.S.C. § 207, i.e. on the date that it is issued by the arbitrators.

(Source: Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572 (2d Cir. 1993) (dismissing claim that statute of limitations began to run only after award became final according to the law governing the contract).)

It bears noting that the three-year time limit for the enforcement of arbitral awards under the FAA does not pre-empt State law time limits for the enforcement of foreign judgments (which may be longer than three years). In Commissions Import Export S.A. v. Republic of the Congo, the Court for the District of Columbia Circuit confirmed such non-pre-emption, reasoning that 'it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides the usual constitutional balance of federal and state powers'. The Court found that 'it is unlikely that Congress would have intended its implementation of the New York Convention to cover both arbitral awards and judgments without mentioning the latter in [the FAA]' and that such silence 'is powerful evidence that Congress did not intend [the FAA] to be the exclusive means of ensuring arbitration agreements and arbitral awards are enforced'. This decision is consistent with decisions of federal courts in other Circuits. In Seetransport Wiking Trader Schiffahrtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, a judgment of the Paris Court of Appeals confirming an arbitral award was enforced under the New York Uniform Foreign Money–Judgments Recognition Act although the period for seeking enforcement of the underlying award under the FAA had passed. In National Alum. Co. v. Peak Chem. Corp., the court noted that the FAA does not pre-empt applicable state law governing the recognition of foreign judgments, even when a judgment is based upon a foreign arbitral award, because the New York Convention sets a 'floor' but not a 'ceiling' for enforcement proceedings.

(Source: Commissions Import Export S.A. v. Republic of the Congo, 757 F.3d 321, 332 (D.D.C. 2014); Seetransport Wiking Trader Schiffahrtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 29 F.3d 79, 80 (2d Cir. 1994); National Alum. Co. v. Peak Chem. Corp., 132 F. Supp. 3d 990, 998 (N.D. Ill. 2015).)

Albeit not an international case, Policeman's Benevolent Assoc. v. Borough of North Haledon suggests that when a party fails to bring an action to enforce an arbitral award within the time period specified for summary proceedings the party may still file a lawsuit to enforce the award within the six-year period for bringing breach-of-contract claims.

(Source: Policeman's Benevolent Assoc. v. Borough of North Haledon, 158 N.J. 392, 401, 730 A.2d 320, 325 (N.J. 1999).)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The federal district courts have jurisdiction to hear petitions to confirm foreign arbitration awards under the FAA.

(Source: 9 U.S.C. § 203.)

In addition, 9 U.S.C. § 204 provides that an action or proceeding over which the district courts have jurisdiction pursuant to § 203 may be brought 'in any such court in which save for the arbitration agreement an action or proceeding with respect to the controversy between the parties could be brought, or in such court for the district and division which embraces the place designated in the agreement as the place of arbitration if such place is within the United States'.

When a recognition and enforcement is sought, the district court has 'little discretion in refusing or deferring enforcement of foreign arbitral awards'.

(Source: Belize Social Dev. Ltd. v. Belize, 668 F.3d 724, 728 (D.D.C. 2012).)

State court proceeding: Alternatively, a party may apply for recognition and enforcement of a foreign or non-domestic award in a state court of general jurisdiction relying on state law procedures (see Q.5 above).

Removal to federal court: The responding party can 'remove' an action from the state court to a federal district court under 9 U.S.C. § 205. If the action remains in the state court, the FAA will apply.

Federal courts within the Fifth Circuit have interpreted this removal provision fairly broadly in relation to the enforcement of agreements to arbitrate. According to the court in Beiser v. Weyler, 'whenever an arbitration agreement falling under the Convention could conceivably affect the outcome of the plaintiff's case, the agreement "relates to" the plaintiff's 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 [defence]'. Furthermore, the Beiser court stated that '[a] party may only waive his right to remove under the statute by clearly and explicitly saying so in the agreement'. The Fifth Circuit's decision in McDermott International, Inc. v. Lloyd's Underwriters of London also militated in favour of broad federal jurisdiction over Convention enforcement issues.

(Source: Beiser v. Weyler, 284 F.3d 665 at 669, 672 (5th Cir. 2002); McDermott Int’l, Inc. v. Lloyd's Underwriters of London, 944 F.2d 1199, 1211-12 (5th Cir. 1991); Safety Nat. Cas. Corp. v. Certain Underwriters At Lloyd's London, 587 F.3d 714 (5th Cir. 2009).)

Arbitrability: The US Supreme Court has clarified in First Options of Chicago v. Kaplan, that the issue of arbitrability contains three separate sub-issues:

1. who decides the merits of the dispute;
2. who decides whether the parties agreed to arbitrate their dispute, i.e. whether the dispute is arbitrable;
3. who decides on who decides the above sub-issue, i.e. who decides on who decides arbitrability.

These issues are sometimes referred to as (i) merits; (ii) whether the parties agreed to arbitration; and (iii) who decides on whether the parties agreed to arbitration.

As explained by the court in VRG Linhas Aereas S.A. v. MatlinPatterson Global Opportunities Partners (Cayman) II L.P., these issues should be considered in the 'reverse order', as the question of who decides the arbitrability question is preliminary to the question of whether the claims must be arbitrated. Thus, a court must begin by considering whether the parties clearly and unmistakably committed to arbitrate questions regarding the scope of their arbitration agreement. If yes, then the court’s standard for reviewing the arbitrator’s decision about that matter should not differ from the one standard the courts apply when they review any other matter that parties have agreed to arbitrate -- and that standard is highly differential. On the other hand, if the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently.

(Source: First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942-3 (1995); VRG Linhas Aereas S.A. v. MatlinPatterson Global Opportunities Partners (Cayman) II L.P., 717 F.3d 322, 326 (2d Cir. 2013); see also Alliance Bernstein Inv. Res. & Mgmt., Inc. v. Schaffran, 445 F.3d 121, 122 (2d Cir. 2006).)

The courts have also instructed that the existence of an arbitration agreement referring all questions to arbitration under the ICC Rules of Arbitration constitutes 'clear and unmistakable evidence' of the parties' intent to arbitrate arbitrability.

(Source: VRG Linhas Aereas S.A. v. MatlinPatterson Global Opportunities Partners (Cayman) II L.P., 717 F.3d 322, 326 (2d Cir. 2013).)

Authority of the court of primary jurisdiction: Where the US court is the court of primary jurisdiction and foreign courts serve as courts of secondary jurisdiction, a US court need not defer to the foreign courts’ decisions on whether to enforce, modify, or set aside an arbitral award.

In Salini Costruttori S.p.A. v. Kingdom of Morocco, Morocco sought to dismiss the enforcement proceeding, claiming that Salini, the award-creditor, was precluded from enforcing the award in the United States because it had sought to enforce the award before courts in Morocco and courts in Morocco had enforced the award in part, but refused to enforce the remainder of the award. The Court dismissed Morocco’s argument and concluded that because (i) the procedural law governing the arbitration was the ICC Arbitration Rules, (ii) Morocco did not present any evidence suggesting that it has adopted the ICC rules as its own rules of arbitration, and (iii) the arbitration physically took place in France, Morocco cannot claim to be a primary or "competent" jurisdiction. Therefore, because the Moroccan courts are not courts of "competent jurisdiction," the Court found that decisions rendered by the Moroccan courts would not be entitled to deference.

(Source: Salini Costruttori S.p.A. v. Kingdom of Morocco, 233 F. Supp. 3d 190 (D.D.C. 2017).)

Authority of the court of secondary jurisdiction: Under the New York Convention, federal courts with secondary jurisdiction over a foreign arbitral award lack subject-matter jurisdiction to vacate, set aside, or modify foreign awards. Such court may only decide whether or not to enforce and recognize the foreign award.

(Source: Fakhri v. Marriot Int’l Hotels, Inc., 221 F. Supp. 3d 696, 711-12 (D. Md. 2016).)

US district courts sit in "primary jurisdiction" over non-domestic awards and in "secondary jurisdiction" over foreign awards. A "non-domestic" award is an award "made" in the United States due to the parties’ agreement to arbitrate in this country, but which nonetheless falls under the New York Convention and Chapter 2 of the FAA because it was (a) made within the legal framework of another country, or (b) decided under the laws of the United States but involves either entities that are not US citizens or property located abroad or envisages performance or enforcement abroad or has some other reasonable relation with one or more foreign states. A "foreign" award is one that is made outside of the United States. The conversion to a judgment of such two types of awards differ in that the process for "non-domestic" awards is that of a "confirmation," and the process for "foreign" awards is that of "enforcement." The enforcement process is a single-step process and it does not require a separate "confirmation," although Section 207 of the Federal Arbitration Act (which sets out the legal basis for enforcement of foreign awards) refers to the word "confirm." Such use of the word "confirm" is a misnomer when referring to a "foreign" arbitral award. Under the New York Convention, an arbitration award is to be "confirmed," if at all, in the jurisdiction in which it was made. Elsewhere, the award may be "enforced," and an award creditor is not required to seek a separate "confirmation" of the award. Thus, an award debtor may seek vacatur of an award in the jurisdiction in which it was issued, or the award may be enforced – subject only to very narrow defences – in any New York Convention jurisdiction.

(Source: CBF Indústria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58, 73-74 (2d Cir. 2017) (finding that the district court erred in holding that appellants were required to confirm their foreign arbitral award before they could enforce it); Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 366-67 (5th Cir. 2003).)

Federal courts with secondary jurisdiction over a foreign arbitral award also have authority to determine whether emergency interim awards issued by a tribunal seated outside of the United States are enforceable in the United States. In Sharp Corp. v. Hisense USA Corp., the Singapore International Arbitration Centre issued an emergency award requiring the petitioner, Sharp Corp., to continue to perform under the agreement between the parties while the arbitration was pending. Sharp Corp. brought suit, alleging that the emergency arbitrator award was contrary to the public policy of the United States and asking that the court find the award unenforceable. The Court determined that, as a court of secondary jurisdiction, it was permitted to determine whether the award was enforceable in the United States and found that the award was enforceable.

(Source: Sharp Corp. v. Hisense USA Corp., 292 F. Supp. 3d 157 (D.D.C. 2017).)

In Cerner Middle East Ltd. v. iCapital, LLC, the District Court of Oregon found that an ICC tribunal lacked jurisdiction to determine whether the individual respondent, Mr. Al-Dahari, was an alter ego of the corporate respondent, iCapital, LLC, and thus whether he agreed to arbitrate the dispute with petitioner. During the arbitration, the tribunal had determined that it had jurisdiction over Mr. Al-Dahari, under the theory of alter ego liability, even though he was not a signatory to the arbitration agreement between Cerner Middle East Limited and iCapital, LLC. The District Court of Oregon disagreed. The Court’s decision turned on its finding that that the tribunal could not decide the arbitrability of petitioner’s claim against Mr. Al-Dahari because there was no agreement between the parties (Cerner Middle East Limited and Mr. Al-Dahari) to arbitrate their dispute. In turn, because the court found that the tribunal did not have jurisdiction over Mr. Al-Dahari, the tribunal’s arbitration award failed to satisfy the court’s own jurisdictional requirement that it hear a decision issued by an arbitral tribunal "of competent jurisdiction."

(Source: Cerner Middle E. Ltd. v. iCapital, LLC, 2017 WL 2579292 (D. Or. June 14, 2017).)

Enforcement of annulled awards: See Q.19 below.

Refusal to enforce awards that were not subject to vacatur proceedings: A party's failure (or choice) not to seek vacatur in the court of primary jurisdiction did not impact its right to oppose enforcement of that award under the New York Convention on public policy grounds, even though the arbitration agreement required that any challenges to the arbitration award be made in the country in which the arbitration took place.

(Source: Enron Nigeria Power Holding, Ltd. v. Fed. Rep. of Nigeria, 844 F.3d 281, 290 (D.C. Cir. 2016).)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

The district court must have both subject-matter and personal or, alternatively, quasi in rem jurisdiction to hear an enforcement action. Moreover, forum non-conveniens has been regarded by the majority of courts as an available defence which, if asserted, requires the court to decide whether it is the most convenient forum.

Subject-matter jurisdiction: Chapter 2 of the FAA explicitly grants federal courts subject-matter jurisdiction over actions falling within the Convention. 9 U.S.C. § 203 provides that: 'An action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States. The district courts of the United States … shall have original jurisdiction over such an action or proceeding, regardless of the amount in controversy'. To fall within the Convention, and thus to create subject-matter jurisdiction in a US district court, the arbitration agreement must be in writing and arise from a commercial relationship; one of the parties must be a citizen of a country other than the USA; and the arbitration must take place in a country that is a signatory to the New York Convention.

It bears noting that, as far as foreign sovereign states are concerned, the Foreign Sovereign Immunities Act provides the sole basis for subject-matter jurisdiction over them. Accordingly, a foreign state is presumptively immune from the jurisdiction of United States courts and, unless one of the exceptions set out in the Foreign Sovereign Immunities Act applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state. The six exceptions available under the Foreign Sovereign Immunities Act can be summarized as follows: (i) waiver; (ii) commercial activity; (iii) expropriation; (iv) property in the United States; (v) tort injury occurring in the United States; and (vi) arbitration.

(Source: Argentine Rep. v. Amerada Hess Shipping Corp., 488 U.S. 428, 429 (1989); Diag Human v. Czech Republic-Ministry of Health, 824 F.3d 131, 134 (D.C. Cir. 2016); Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); 28 U.S.C. § 1605).)

A sovereign's failure to raise the defence of sovereign immunity in its first responsive pleading will result in waiver of such defence.

(Source: Foremost–McKesson, Inc. v. Islamic Rep. of Iran, 905 F.2d 438, 444 (D.C. Cir. 1990); Stati v. Rep. of Kaz., 199 F. Supp. 3d 179 (D.D.C. 2016).)

Personal jurisdiction: Personal jurisdiction establishes 'the court’s power to exercise control over the parties'. Personal jurisdiction must be established in an action seeking enforcement of an arbitral award, even though the New York Convention is silent on this. In other words, the New York Convention does not confer personal jurisdiction when the jurisdiction would not otherwise exist.

(Source: Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979); Int’l Shoe Co. v. Wash., 326 U.S. 310 (1945); Frontera Res. Azer. Corp. v. State Oil Co. of Azer. Rep., 582 F.3d 393, 397–98 (2d Cir. 2009); Vento v. All. Holding Cos., Ltd, 33 N.Y.S.3d 13 (1st Dep't 2016); Transatlantic Bulk Shipping Ltd. v. Saudi Chartering S.A., 622 F. Supp. 25, 27 (S.D.N.Y. 1985); Telcordia Tech Inc. v. Telkom SA Ltd., 458 F.3d 172 (3d Cir. 2006); Base Metal Trading, Ltd. v. OJSC 'Novokuznetsky Aluminum Factory', 283 F.3d 208, 212 (4th Cir. 2002); First Inv. Corp. of Marshall Islands v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742, 749 (5th Cir. 2012); Emp’rs Ins. of Wausau v. Banco De Seguros Del Estado, 199 F.3d 937, 941–43 & n.1 (7th Cir. 1999); Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1121 (9th Cir. 2002); S & Davis Int’l, Inc. v. Rep. of Yemen, 218 F.3d 1292, 1303–05 (11th Cir. 2000).)

Personal jurisdiction over a foreign defendant requires a two-step inquiry. First, the court will determine whether the defendant is subject to jurisdiction under the law of the forum state. Second, the court will consider whether the exercise of personal jurisdiction over the defendant comports with the Due Process Clause of the United States Constitution.

(Source: Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014).)

As regards the first step, there are two types of personal jurisdiction: specific and general. Specific jurisdiction 'depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum state and is therefore subject to the State's regulation'. General (or all-purpose) jurisdiction exists when a corporation's contacts with a State are 'so continuous and systematic' as to render it essentially 'at home' in the forum state. In Daimler AG v. Bauman, the US Supreme Court clarified that the 'at home' requirement establishes a higher requirement than a 'doing business' test. It also noted that the 'paradigm all-purpose forums for general jurisdiction are a corporation's place of incorporation and principal place of business'.

(Source: Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). Daimler AG v. Bauman, 517 U.S. 117, 139 n.20 (2014).)

As regards the second step, the Due Process Clause typically requires that the defendant, if not present in the forum, have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'. It also bears noting that the protections of due process do not apply to foreign states and their instrumentalities. Jurisdiction over a 'person' is required in an enforcement action and therefore the court must determine whether defendant, a state-owned entity, is a 'person' and thus entitled to the due process protection or whether it is an instrumentality of a foreign state and thus not entitled to it.

(Sources: International Shoe Co. v. Wash., 326 U.S. 310, 316 (1945); Frontera Res. Azer. Corp. v. State Oil Co. of Azer. Rep., 582 F.3d 393, 397–401 (2d Cir. 2009); TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296 (D.D.C. 2005).)

The courts have held that by agreeing to arbitrate in a forum, foreign parties have submitted to the jurisdiction of the forum's judiciary.

(Source: Alstom Brasil Energia e Transporte Ltda. v. Mitsui Sumitomo Seguros S.A., 2016 WL 3476430, at *5 (S.D.N.Y. June 20, 2016).)

In a similar fashion, by consenting to the jurisdiction of the forum courts for the purpose of enforcing arbitral awards, foreign parties agree to personal jurisdiction even though their arbitrations may occur outside of the forum.

(Source: D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 103 (2d Cir. 2006).)

Quasi in rem jurisdiction: Generally, under the US Supreme Court precedent from Shaffer v. Heitner, the presence of a defendant's property within a court's jurisdiction is insufficient to allow the court to hear claims against the defendant unrelated to that property. However, an exception to that general rule applies where a petitioner seeks to recover on a judgment already adjudicated in a forum with personal jurisdiction over the respondent. The rationale, as articulated by the US Supreme Court is that, 'once it has been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant has property, whether or not that State would have jurisdiction to determine the existence of the debt as an original matter'. This type of jurisdiction is known as quasi in rem and refers to a court's ability to exercise jurisdiction over property located within the court's territorial jurisdiction. Quasi in rem jurisdiction is available for the enforcement of foreign arbitral awards.

(Source: Shaffer v. Heitner, 433 U.S. 186, 210–12, 210 n.36 (1977); CME Media Enters. B.V. v. Zelezny, 2001 WL 1035138, at *3–4 (S.D.N.Y. Sept. 10, 2001); Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1127–28 (9th Cir. 2002).)

Notably, quasi in rem jurisdiction may be exercised even when the property at issue is unrelated to the dispute. In such case, attachment of a defendant's property is necessary to establish and maintain quasi in rem jurisdiction. Thus a party bringing an action in the USA to enforce a foreign arbitral agreement may request the court to seize or assert dominion and control over the foreign party's assets, even if that foreign party has no minimum contacts with the forum state.

(Sources: Crescendo Mar. Co. v. Bank of Commc'ns Co., 2016 WL 750351, at *5 (S.D.N.Y. Feb. 22, 2016); Cargill, Inc. v. Sabine Trading & Shipping Co, Inc., 756 F.2d 224, 230 (2d Cir. 1985); 9 U.S.C. §§ 201-208; Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330(a), 1605(a)(2), 1605(a)(6).)

In order to establish quasi in rem jurisdiction, an applicant must make a prima facie showing that an arbitral tribunal or court of competent jurisdiction rendered a valid judgment or award over a party and that the party had property in the forum. In Cerner Middle East Ltd. v. iCapital, LLC, the District Court found that an ICC tribunal did not have jurisdiction over the respondent so that its Award did not satisfy the requirement of a decision issued by an arbitral tribunal of competent jurisdiction. Because no court of competent jurisdiction had determined that respondent was a debtor of the petitioner, the petitioner was unable to make the necessary showing of quasi in rem jurisdiction.

(Source: Cerner Middle E. Ltd. v. iCapital, LLC, 2017 WL 2579292 (D.Or. June 14, 2017).)

Forum non conveniens: At the time of this writing, the prevalent view adopted by the majority of US courts addressing the issue of forum non conveniens is that, because the proceedings for enforcement of foreign arbitral awards are conducted pursuant to the rules of procedure applied in the courts where enforcement is sought, the procedural defence of forum non conveniens is available in such enforcement proceedings. A different line of cases materialized recently, which hold essentially that forum non conveniens is available in enforcement actions. It is to be seen whether this line of cases will receive greater acceptance. For more detailed discussion of the cases considering the issue of forum non conveniens, see Sect. 14(b) below.

(Source: See, e.g. In re Arb. between Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488, 495–97 (2d Cir. 2002); see also Q.14(b) below.)

It bears noting that the defences of personal jurisdiction and forum non conveniens may be waived if the defendant advances other arguments before these threshold matters are considered.

(Source: Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v. Pemex-Exploración Y Producción, 832 F.3d 92 (2d Cir. 2016).)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision is obtained through inter partes proceedings. The FAA provides that 'any party to the arbitration may apply to the court so specified for an order confirming the award . . . Notice of the application shall be served upon the adverse party …’

(Source: 9 U.S.C. § 9; see also 9 U.S.C. § 12 ('[n]otice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months'); 9 U.S.C. § 208 (providing that Chapter 1 of Title 9 applies to actions brought under Chapter 2 to the extent not in conflict with Chapter 2).)

10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes. Sect. 16 of the FAA provides that an appeal may be taken from an order confirming or denying confirmation of an award. This procedure transforms the award into a judgment of the court. It has the same executory force and effect as a judgment in a lawsuit in the same court.

(Source: 9 U.S.C. § 16(a)(1)(D), (E).)

(b) How many levels of appeal or recourse are available against this decision?

There is one level of appeal available as of right: the final decision of a US district court granting or denying recognition and enforcement can be appealed to a US circuit court. Thereafter, a party may request that the US Supreme Court review the decision of a US circuit if it believes there are grounds for an appeal. However, the Supreme Court agrees to hear only a small percentage of the cases brought before it. A tripartite system is in place in most of the 50 states as well.

(Source: 9 U.S.C. § 16(a)(1)(D), (E).)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

Typically, execution against assets (as opposed to freezing of assets) is available after the arbitral award has been converted to a court judgment (i.e. recognized and enforced). Following such recognition and enforcement, it will become subject to execution like any other judgment issued by a court in the United States. Generally, money judgments are enforced through writs of execution. Writs of execution are court orders that authorise a US Marshall, state sheriff, or other person to seize the property of the judgment debtor located in the district and either sell it or turn it over to the judgment creditor.

Having received a writ of execution, the judgment creditor will seek to place a lien on the judgment debtor's property. Even where the execution is pending in federal court, state law procedures in the state in which the district court sits will be applicable to the execution process. The district court may only stay execution of judgment pending the disposition of certain post-trial motions or appeal and the district court will ordinarily seek to ensure that the judgment creditor's position is secured by a supersedeas bond.

When enforcing a judgment that requires performance of an act, the judgment creditor has several options, including:

(i) appointing another person to perform the act and charging the costs to the judgment debtor;

(ii) divesting the judgment debtor's title to property and vesting it in others;

(iii) issuing a writ of attachment or sequestration against the property of the judgment debtor to compel obedience;

(iv) issuing a writ of execution or assistance if the judgment or order is for the possession of property; or

(v) holding the judgment debtor in contempt.

(Source: Fed. R. Civ. P. 69-70; Peacock v. Thomas, 516 U.S. 349, 359, n.7 (1996).)

By contrast, freezing orders are available during the pendency of an enforcement proceeding. When and how a US citizen may attach (freeze) property pursuant to a foreign award, or execute against that property, in an enforcement action depends upon where the enforcement action is filed. State attachment and execution mechanisms apply whether a suit is filed in a state or federal court.

(Source: 9 U.S.C. § 203; Fed. R. Civ. P. 64(a) (‘[E]very remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies.’).)

First Circuit: District courts within that circuit can grant injunctive relief in an arbitrable dispute pending arbitration, provided the prerequisites for injunctive relief are satisfied. The Court of Appeals explained that this approach reinforces rather than detracts from the policy of the Arbitration Act.

(Source: Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 47–51 (1st Cir. 1986).)

Second Circuit: A court may, pending a decision on the application for confirmation, issue a preliminary injunction to freeze assets so as to preserve the petitioner's ability to collect on the arbitration award.

(Source: GE Transp. (Shenyang) Co. v. A-Power Energy Generation Sys., Ltd., 2015 WL 7444625 (S.D.N.Y. Nov. 23, 2015), award confirmed and injunction made permanent, 2016 WL 3525358 (S.D.N.Y. June 22, 2016).)

The standard for an injunction pending arbitration is the same as for preliminary injunctions generally. A party seeking a preliminary injunction must demonstrate:

(i) a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiff's favour;

(ii) a likelihood of irreparable injury in the absence of an injunction;

(iii) that the balance of hardships tips in the plaintiff's favour; and

(iv) that the public interest would not be disserved by the issuance of an injunction.

(Source: Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir. 2015); Salinger v. Colting, 607 F.3d 68, 79–80 (2d Cir. 2010).)

State courts in New York can grant attachment in aid of arbitration under the New York Civil Practice Law and Rules ('CPLR') § 7502(c), which provides that the court 'may entertain an application for an order of attachment or for a preliminary injunction in connection with an arbitration . . . but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief'. Sect. 7502(c) provides further that provisions of Arts. 62 and 63 (respectively on attachment and injunction) shall apply to the application. There is somewhat of an open question as to whether the standard for obtaining an attachment is solely the requirement set forth § 7502(c) (i.e. that the relief rendered in arbitration may become ineffectual without attachment') or whether the three prong equitable test required for attachments and injunctive relief (i.e. likelihood of success on the merits, irreparable harm, and balance of equities) is applicable as well.

(Source: Matter of Sojitz Corp. v. Prithvi Info. Solutions Ltd., 82 A.D.3d 89, 97 (1st Dep’t 2011); cf.

Interoil LNG Holdings, Inc. v. Merrill Lynch PNG LNG Corp., 60 A.D.3d 403, 404 (1st Dep't 2009); Winter v. Brown, 49 A.D.3d 526, 529 (2d Dep't 2008); Erber v. Catalyst Trading, LLC., 303 A.D.2d 165, 165 (1st Dep't 2003).)

Third Circuit: Marketer of the biological medicine erythropoietin filed suit requesting preliminary injunctive relief to maintain the status quo pending an expedited arbitration of a dispute with the drug's manufacturer arising out of product license agreement. The court held that the district court has subject-matter jurisdiction to entertain a motion for preliminary injunctive relief in an arbitrable dispute, provided that traditional prerequisites for such relief are satisfied.

(Source: Ortho Pharm. Corp. v. Amgen, Inc., 882 F.2d 806, 813 (3d Cir. 1989).)

Fifth Circuit: There must generally be a 'final judgment confirming the Arbitral Award' before parties can obtain execution against assets.

(Source: In the Matter of an Arb. Between Karaha Bodas Co. L.L.C., 264 F. Supp. 2d 470 (S.D. Tex. 2002).)

The option of prejudgment attachment in the Fifth Circuit (essentially, execution before a final award has been rendered) has not been ruled out entirely. The Fifth Circuit held that although 'we need not decide today whether pre-arbitration attachment … is protected by the Convention', it did remark that '[t]he Convention does not expressly forbid pre-arbitration attachment'.

(Source: E.A.S.T., Inc. of Stamford, CT v. M/V Alaia, 876 F.2d 1168 (5th Cir. 1989).)

The New York Convention does not deprive federal courts of jurisdiction or Fed. R. Civ. P. 64 (see above) authority to order provisional remedies available under state law in connection with arbitral disputes.

(Source: Stemcor USA, Inc. v. America Metals Trading, LLP, 199 F. Supp. 3d 1102 (E.D. La. 2016).)

Sixth Circuit: In Performance Unlimited, Inc. v. Questar Publishers, Inc., the Sixth Circuit addressing what was then an issue of first impression, holding that in a dispute subject to mandatory arbitration, a district court has subject matter jurisdiction to grant preliminary injunctive relief provided that the party seeking the relief satisfies the four criteria which are prerequisites to the grant of such relief. The court reasoned that a grant of preliminary injunctive relief pending arbitration is particularly appropriate and furthers the purpose behind the FAA, while the withholding of injunctive relief would render the process of arbitration meaningless or a hollow formality because an arbitral award, at the time it was rendered, 'could not return the parties substantially to the status quo ante.’

Source: Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1378-80 (6th Cir. 1995).)

Seventh Circuit: Employees of securities firm left firm to work for competitor, and the employees demanded that any disputes regarding client lists and solicitation be resolved in arbitration pursuant to arbitration agreement. Firm brought separate action against employees, requesting temporary restraining order (TRO) to keep employees from soliciting clients or disclosing client information. The District Court issued a TRO, and the Court of Appeals affirmed, noting that the TRO could not be extended beyond point when arbitration panel could hear dispute.

(Source: Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Salvano, 999 F.2d 211, 214-15 (7th Cir. 1993).)

Courts in the Seventh Circuit have long held that they are authorised to grant injunctive relief pending arbitration of a matter, where the party seeking such relief has satisfied the four factors necessary for the grant of a preliminary injunction.

(Source: Sauer–Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348, 350–52 (7th Cir. 1983).)

Eighth Circuit: In contrast to the majority of federal circuits, courts in the Eighth Circuit have held that a preliminary injunction may only be granted in a case subject to arbitration where 'the contract terms contemplate such relief and it can be granted without addressing the merits'.

(Source: Manion v. Nagin, 255 F.3d 535, 538 (8th Cir. 2001); Eagle Creek Software Servs., Inc. v. Jones, 2015 WL 1038534, at *7 (D. Minn. Mar. 10, 2015).)

In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hovey, the Eighth Circuit, relying on three decisions of the US Supreme Court, Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967); and Buffalo Forge Co. v. United Steelworkers of America AFL-CIO., 428 U.S. 397 (1976), held that the grant of injunctive relief in an arbitrable controversy 'abrogates the intent of the Federal Arbitration Act and consequently was an abuse of discretion'. The Eighth Circuit reasoned that the 'congressional intent revealed in the Arbitration Act [which was] to facilitate quick, expeditious arbitration', would be thwarted because 'the judicial inquiry requisite to determine the propriety of injunctive relief necessarily would inject the court into the merits of issues more appropriately left to the arbitrator'.

(Source: Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hovey, 726 F.2d 1286, 1291–92 (8th Cir. 1984).)

However, where the parties' contract provided that performance of the parties' respective obligations under that contract 'shall be continued in full by the parties during the dispute resolution process', injunctive relief was possible.

(Source: Peabody Coalsales Co. v. Tampa Elec. Co., 36 F.3d 46, 47, n.3 (8th Cir. 1994).)

Ninth Circuit: district court may issue interim injunctive relief on arbitrable claims if interim relief is necessary to preserve the status quo and the meaningfulness of the arbitration process—provided, of course, that the requirements for granting injunctive relief are otherwise satisfied.

(Source: Toyo Tire Holdings Of Americas Inc. v. Continental Tire North America, Inc., 609 F.3d 975, 981-82 (9th Cir. 2010); PMS Distrib. Co. v. Huber & Suhner, A.G., 863 F.2d 639, 642 (9th Cir. 1988).)

Tenth Circuit: Preliminary injunction preserving status quo until arbitration panel took jurisdiction over former employer's attempt to prevent employee from soliciting former customers and from using for solicitation purposes any information obtained during employment did not violate the FAA, which requires stay of court action until arbitration in accordance with terms of arbitration agreement. The court noted, however, that the preliminary injunction should expire when the issue of preserving the status quo is presented to and considered by the arbitration panel.

(Source: Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 726–28 (10th Cir. 1988).)

E. Evidence required

12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award,

contract containing arbitration clause, affidavits, witness statements, etc.)?

The applicant must supply the court with the arbitration agreement, the arbitration award, any documents reflecting the selection or appointment of the arbitrator, any written extensions of time to make the award, any documents used in an application to confirm, modify or correct the award, and any orders issued by a court resulting from such an application.

(Source: New York Convention, Art. IV; FAA, 9 U.S.C. § 13(a)-(c).)

If the respondent did not fully participate in the arbitration, it is best practice to include in the petition facts establishing that the respondent was given proper notice of the arbitration proceedings because if the notice was given in a language contrary to the parties' agreement and not reasonably understood by the respondent, the court may decline to confirm the award.

(Source: CEEG (Shanghai) Solar Sci. & Tech. Co. v. LUMOS LLC, 829 F.3d 1201, 1207 (10th Cir. 2016).)

Additionally, if the respondent claims that it was prevented from physically appearing in the case, the award-creditor can show that there were alternatives available to being physically present, such as sending a duly authorized representative to the hearing or participating by means of videoconference. In Research & Dev. Ctr. ’Teploenergetika,’ LLC v. EP Int’l, LLC, respondent argued that a foreign arbitral award should be set aside because he had not appeared in the arbitration. The Eastern District Court for Virginia determined that respondent could have found alternative means to appear in the proceedings besides being physically present and thus there were no applicable grounds to refuse to enforce the award.

(Source: Research & Dev. Ctr. ’Teploenergetika,’ LLC v. EP Int’l, LLC, 182 F. Supp. 3d 556, 570 (E.D. Va. 2016).)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The FAA and many State arbitration acts call for a copy of the 'arbitration agreement', not the entire contract. It is, however, necessary to consult rules of the court where the submission is made to ensure that any jurisdiction-specific requirements are complied with. Moreover, some state statutes, for example, the FICAA, do not require that a copy of the arbitration agreement be submitted.

(Source: 9 U.S.C. §§ 201, 207; Art. IV of the New York Convention; Cal. Civ. Proc. Code § 1285.4 (California); Fla. Stat. § 684.0047(2) (Florida); CPLR § 7510 (New York).)

(c) Are originals or duly certified copies required?

The FAA is silent on the issue, as are the Federal Rules of Civil Procedure (‘Fed. R. Civ. P.’). The Federal Rules of Evidence treat a duplicate as admissible to the same extent as an original unless (i) a genuine question is raised as to the authenticity of the original; or (ii) in the circumstances it would be unfair to admit the duplicate in lieu of the original. However, sufficient evidence must be provided to authenticate all documents that are filed.

(Source: Fed. R. Evid. 1003; Fed. R. Evid. 901(a).)

Several courts have enacted rules regarding whether the original or a certified copy is acceptable, as well as related rules concerning numbers of copies filed with the court. Several of these local rules are identified below.

Second Circuit: or a copy of the award or the arbitration agreement to be duly certified, it is sufficient that the petitioner's counsel or a member of the arbitral tribunal certify that the copy is genuine.

(Source: Bergesen v. Joseph Muller Corp., 710 F.2d 928, 934 (2d Cir. 1983); In re Arb. between Continental Grain Co. & Foremost Farms Inc., 1998 WL 132805, at *2 (S.D.N.Y. Mar. 23, 1998).)

Third Circuit: Courts have permitted certification of the arbitral award by a member of the arbitration panel, by the arbitral institution that administered the arbitration and even by petitioner's attorney.

(Source: Vento v. Crithfield, 2015 WL 5735616, at *8 (D.V.I. Sep. 30, 2015).)

The Third Circuit has not required the authentication nor certification of an arbitration agreement. In Al Haddad Bros. Enters., Inc. v. M/S AGAPI, the district court affirmed an arbitration award, holding that neither authentication nor certification of the arbitration agreement was necessary. The court reasoned that the purpose for requiring submission of the original agreement or a certified copy is to prove the existence of an agreement to arbitrate. Such proof already existed in that case because the court had previously determined that the charter between Al Haddad and Diakan contained a London arbitration provision. Those rulings formed sufficient verification of the existence of an arbitration agreement to allow enforcement of the award.

(Source: Al Haddad Bros. Enters., Inc. v. M/S AGAPI, 635 F. Supp. 205, 209–10 (D.Del. 1986) aff'd sub nom., Al–Haddad Bros. Enters. v. MS Agapi, 813 F.2d 396 (3d Cir. 1987).)

California: Originals or certified copies of the award are not required under California law. The petition to confirm an arbitral award need only 'set forth or have attached a copy of the award'.

(Source: Cal. Code Civil Proc. § 1285.4.)

(d) How many originals or duly certified copies are required?

The FAA is silent on the issue, as are the Fed. R. Civ. P. It is necessary to consult the local civil procedure rules of the jurisdiction as the number of copies required varies among the district courts. In particular, local rules may require an additional copy for chambers (e.g. the local rules for the courts of both the Central and Northern Districts of California require courtesy copies).

(Source: L.R. Central District of California, R. 11-4.1; L.R. Northern District of California, R. 5-1(e)(7).)

(e) Does the authority or court keep the originals that are filed?

The FAA and Fed. R. Civ. P. are silent on this issue. Practices vary by court and local rules. A sample of these local rules is provided below.

D.C. Circuit: Yes. The local rules for the US District Court for the District of Columbia provide that no original paper in any case shall be removed from the place of filing.

(Source: Rules of the US District Court for the District of Columbia, D.C.R. 79.1.)

Sixth Circuit: In the following US district courts, the clerk's office will keep the original unless the court orders its removal: US District Court for the Western District of Tennessee, US District Court for the Southern District of Ohio, US Western District of Kentucky, and the US Eastern District of Kentucky.

(Source: Rules of the US District Court for the Western District of Tennessee, LR79.1; Rules of the US District Court for the Southern District of Ohio, L.R. 79.1; Rules of the US District Court for the Western District of Kentucky, LR 79.1; Rules of the US District Court for the Eastern District of Kentucky, LR 79.1.)

In the US District Court for the Northern District of Ohio, the court will keep the original unless the court orders its removal and the person requesting removal files a duly certified copy of the original and a duly signed receipt.

(Source: Rules of the US District Court for the Northern District of Ohio, Rule 79.1.)

13.
(a) Is it necessary to provide a translation of the documents supplied?

Yes.

(Source: New York Convention, Art. IV.)

(b) If yes, into what language?

English.

(Source: Jiangsu Changlong Chem. Co. v. Burlington Bio-Medical & Scientific Corp., 399 F. Supp. 2d 165, 168 (E.D.N.Y. 2005).)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or by some other person)?

Yes. The translation must be certified by an official or sworn translator, or by a diplomatic or consular agent. There exist no specific rules regarding the nationality of the diplomatic or consular agent who may provide such certification.

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

The FAA does not state whether it is necessary to provide a full translation of the documents.

Ninth Circuit: The Ninth Circuit requires a full translation of documents. California Rule of Court 3.1110 provides that '[e]xhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter'.

(Source: Cal. Rules of Court, Rules 3.1110 (g) and 3.1103(a)(2).)

F. Stay of enforcement

14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Generally, under Art. VI of the New York Convention, the district court may stay an enforcement action if the moving party can demonstrate that a 'competent authority' is considering an 'application for the setting aside or suspension of the award' that the applicant seeks to enforce. Cases adding to this general principle are available in several circuits:

D.C. Circuit: In Science Applications Intern’l Corp. v. Hellenic Rep., the District Court was asked by the parties to stay the proceeding in light of a set aside proceeding in Athens, Greece, the situs of arbitration. The trial court in Greece subsequently set aside the arbitral award and that set aside decision was appealed to the Supreme Court of Greece. The District Court in the District of Columbia requested that the parties provide periodic updates on the status of the Greek court proceedings. After the Greek Supreme Court issued a decision reinstating the underlying arbitral award and remanding the set aside proceeding to the lower court for resolution of a relatively minor issue, the parties' positions diverged - the petitioner sought enforcement and the respondent sought its denial. The District Court considered the six-prong test set out in the Second Circuit's Europcar case (detailed below), and concluded that, while most of the factors weighed in favour of enforcement, two factors were particularly significant:

(i) the dispute between the parties already lasted for 13 years and, given the remanded litigation, it was possible it would last for another 15 years; and

(ii) the balance of hardships was clearly in respondent's favour as '[it] will not have to endure possible hardship given the fact that it is a country with a treasury and all the resources that a government has, whereas the Petitioner is a private firm that may well suffer hardship for not gaining access to the substantial amount of money awarded by the [Greek] Supreme Court'.

The District Court granted the petition to enforce the arbitral award.

(Source: Science Applications Int’l Corp. v. Hellenic Rep., 2017 WL 65821, at *3-4 (D.D.C. Jan. 5, 2017).)

In Hulley Enters. Ltd. v. Russian Fed’n, the District Court was presented with a request to stay enforcement of an arbitral award, atypically, by the party seeking the enforcement. The case arose from the $ 50 billion award issued by the arbitral tribunal in favour of the Yukos shareholders and against the Russian Federation. As the award was set aside in the place of arbitration, The Hague, the Russian Federation insisted on the District Court's dismissal of the action for lack of subject-matter jurisdiction (alleging the lack of subject-matter jurisdiction due to the Russian Federation's entitlement to sovereign immunity under the Foreign Sovereign Immunities Act). The shareholders appealed the set aside in The Hague and requested the District Court to stay the proceeding in the case before it pending resolution of the aforementioned appeal. The District Court granted the stay noting that the power to stay proceedings is 'incidental to the power in every court to control the disposition of the causes on its docket'. The District Court resolved that 'granting a stay does not involve ruling on the merits' because 'jurisdiction is vital only if the court proposes to issue a judgment on the merits'. The District Court thereafter considered whether the stay was in fact appropriate and concluded that it was. While not disagreeing with the Russian Federation's argument that 'only this Court will ever address the [jurisdictional] question', it noted that this argument 'falls short of establishing that such an analysis would be required here'. Noting it was a 'paradigm example of a case warranting a stay where the legal viability of claims may rest on determinations in another legal proceeding', the District Court granted the stay.

(Source: Hulley Enters. Ltd. v. Russian Fed’n, 211 F. Supp. 3d 269, 276-82 (D.D.C. 2016).)

In the Matter of Arb. of Certain Controversies Between Getma Int’l and Republic of Guinea, the court stayed a confirmation proceeding upon Guinea's request, which was based on a set aside proceeding commenced in Guinea. While acknowledging that a stay of confirmation should not be lightly granted lest it encourage abusive tactics by the party that lost in arbitration, the court concluded that the six-prong test set out in the Second Circuit's Europcar case (detailed below) weighed in favour of a stay. Specifically, it found that the stay was likely to shorten, rather than delay, the proceedings, that prudence called for a stay, that the possibility of a set aside 'weighs mildly in favour of [granting a] stay' and that the balance of hardships was tilted in favour of Guinea because 'a premature confirmation and enforcement of the award would essentially eviscerate Guinea's bargained-for right to have the arbitral award reviewed'. The Court of Appeals affirmed the decision of the district court in July 2017 and held that enforcement of a set aside award should be refused. Generally, the appellate court noted, US courts "have declined to ‘second guess’ a competent authority’s annulment of an arbitral award absent ‘extraordinary circumstances,’ and will only set aside an annulment "if it violates this country’s ‘most basic notions of morality and justice.’" Accordingly, the court found that the set aside proceeding in Guinea was not marked by infirmities so substantial as to warrant enforcement of the annulled award.

(Source: Getma Int’l v. Rep. of Guinea, 142 F. Supp. 3d 110, 114 (D.D.C. 2015), aff’d, Getma Int’l v. Rep. of Guinea, 862 F.3d 45, 48-49 (D.C. Cir. 2017).)

In Gold Reserve Inc. v. Bolivarian Rep. of Venezuela, the court decided to enforce a foreign arbitral award despite it being challenged at the seat of arbitration - in Paris, France. Having considered the six Europcar factors, the court concluded that the first two factors - which are the most critical factors - weighed in favour of confirmation, with the remaining factors weighing marginally in its favour. The court therefore ordered immediate confirmation of the arbitral award.

(Source: Gold Reserve Inc. v. Bolivarian Republic of Venez., 146 F. Supp. 3d 112, 137 (D.D.C. 2015).)

First Circuit: District courts have the authority to issue stays in confirmation actions under the New York Convention to the same extent as they can in ordinary cases (i.e. there are no restrictions imposed by the New York Convention on the district court's power to stay a case).

(Source: Hewlett-Packard Co., Inc. v. Berg, 61 F.3d 101 (1st Cir. 1995).)

Second Circuit: The factors that a district court should weigh when deciding whether to stay an enforcement proceeding are:

(i) the general objectives of arbitration: the expeditious resolution of disputes and the avoidance of protracted and expensive litigation;

(ii) the status of the foreign proceedings and the estimated time for those proceedings to be resolved;

(iii) whether the award sought to be enforced will receive greater scrutiny in the foreign proceedings under a less deferential standard of review;

(iv) the characteristics of the foreign proceedings, including whether they were brought to enforce an award (weighing in favour of a stay) or to set the award aside (which would tend to weigh in favour of enforcement), whether they were initiated before the underlying enforcement proceeding so as to raise concerns of international comity, whether they were initiated by the party now seeking to enforce the award in the federal court, and whether they were initiated under circumstances indicating an intent to hinder or delay resolution of the dispute;

(v) a balance of the possible hardships to each of the parties; and

(vi) any other circumstances that might shift the balance towards or against adjournment.

(Source: Europcar Italia, S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310, 317 (2d Cir. 1998); see also Nedagro B.V. v. Zao Konversbank, 2003 WL 151997, at *6-7 (S.D.N.Y. Jan. 21, 2003); Spier v. Calzaturificio Tecnica S.p.A., 1988 WL 96839, at *1-2 (S.D.N.Y. Sept. 12, 1988).)

Third Circuit: The appellate court held that the case was properly dismissed without prejudice based on the pendency of proceedings to set aside the award in the jurisdiction in which it was rendered. The court found that the trial court's authority under Art. VI of the New York Convention to 'adjourn' the enforcement proceedings included not only the power to stay them, but also the power to dismiss them without prejudice.

(Source: Telcordia Tech Inc. v. Telkom SA Ltd., 458 F.3d 172, 180-81 (3d Cir. 2006); see also Jorf Lasfar Energy Co., S.C.A. v. AMCI Export Corp., 2005 WL 3533128 (W.D. Pa. Dec. 22, 2005).)

Fifth Circuit: The federal court stayed enforcement of a Mexican arbitral award where proceedings appealing the validity of the award were on-going in Mexico. The stay was granted provided the party challenging enforcement in federal court posted a bond for the full amount of the arbitral award.

(Source: Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., 2000 WL 98127 (E.D. La. Jan. 26, 2000).)

Sixth Circuit: Courts within the Sixth Circuit have been willing to stay proceeding, citing to the aforementioned decisions in Hewlett-Packard and Europcar Italia, S.p.A, reasoning that considerations of comity, judicial efficiency, and the convenience of the parties and the courts were especially strong 'where a parallel proceeding is on-going in the originating country and there is a possibility that the award will be set aside … [since] a court may be acting improvidently by enforcing the award prior to the completion of the foreign proceedings'.

(Source: Higgins v. SPX Corp., 2006 WL 1008677, at *9-10, *14-15 (W.D. Mich. Apr. 18, 2006); see also Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948, 961-62 (S.D. Ohio 1981).)

Seventh Circuit: Courts can exercise their discretion to stay enforcement while an application to set aside an award is pending. Here, the court exercised its discretion to stay enforcement while an application to set aside an award was pending in France.

(Source: Alto Mar Girassol v. Lumbermen's Mut. Cas. Co., 2005 WL 947126 (N.D. Ill. Apr. 12, 2005).)

Ninth Circuit: A court considering an enforcement action may postpone enforcement of an arbitral award under Art. VI of the New York Convention.

(Source: Korea Wheel Corp. v. JCA Corp., 2005 WL 3454335 (W.D. Wash. Dec. 16, 2005) (discussing the effect of a request for a stay order on the applicability of an enforcement action under the New York Convention).)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

The argument of forum non conveniens has been frequently used to dismiss the enforcement proceedings (not merely to stay them).

D.C. Circuit: Historically, courts within the District of Columbia Circuit have recognized forum non conveniens as a defence to an enforcement action.

Respondent argued that the enforcement proceedings in the D.C. Circuit should be dismissed on the basis that similar proceedings had already been commenced in the courts of Sweden and Ukraine as those two jurisdictions would be more appropriate for enforcement of the arbitral award at issue, the D.C. Circuit declined to rule expressly on the argument that the doctrine of forum non conveniens 'has no place in an action to enforce an arbitration award'. Instead, the court ruled that it was the appropriate forum because 'there is no other forum in which [petitioner] could reach [respondent's] property, if any, in the United States'.

(Source: TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 305 (D.C. Cir. 2005).)

In a different enforcement case, the Circuit Court of Appeals noted that the forum non conveniens determinations are left to the sound discretion of the trial court, thus implicitly acknowledging that such defence may be available in a proceeding to enforce a foreign arbitral award.

(Source: TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (D.C. Cir. 2007).)

The Circuit Court also instructed that:

(i) when an alternative forum has jurisdiction to hear a case;

(ii) when trying the case in the chosen forum would establish oppressiveness and vexation to respondent for petitioner's convenience; or

(iii) when the chosen forum is inappropriate because of considerations affecting the court's own administrative and legal problems, the court may, in the exercise of its sound discretion, dismiss the case on forum non-conveniens grounds. It noted, however, that there is a presumption in favour of petitioner's choice of forum. Because such presumption was not overcome by reference to any contrary public or private interest, the dismissal was not appropriate.

(Source: Continental Tranfert Tech. Ltd. v. Fed. Gov. of Nigeria, 697 F. Supp. 2d 46 (D.C. Cir. 2010).)

A more recent decision from the District of Columbia Circuit enunciated a different rule. Referring to TMR Energy Ltd. v. State Prop. Fund of Ukraine, the court concluded that the argument that the court below should have dismissed the enforcement action on forum non conveniens grounds 'is squarely foreclosed by [a] precedent'. The court has not provided further elaboration on this point. That decision has not been selected for publication. The US Supreme Court denied certiorari.

(Source: BCB Holdings Ltd. v. Gov’t of Belize, 650 F. App'x 17, 2016 WL 3042521 (D.C. Cir. May 13, 2016).)

In a similar fashion, the lower court within the D.C. Circuit declined to dismiss an enforcement action based on an argument that an alternative forum exists and that the private and public factors favour such alternative forum, Belize. Referring to the Circuit Court's decision in BCB Holdings Ltd. v. Gov’t of Belize (see above), the District Court noted that the argument based on forum non conveniens is foreclosed and denied the motion to dismiss.

(Source: Belize Bank Ltd. v. Gov’t of Belize, 191 F. Supp. 3d 26 (D.C. Cir. 2016).)

Second Circuit: The proceedings for enforcement of foreign arbitral awards are conducted pursuant to the rules of procedure that are applied in the courts where enforcement is sought, including the defence of forum non conveniens. Having found that the parties and the dispute had no connection to New York, the court of appeals affirmed a forum non conveniens dismissal.

(Source: In re Arb. between Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488, 495–97 (2d Cir. 2002).)

Case dismissed based on forum non conveniens in favour of Peruvian courts because it was important to ascertain the meaning of a certain Peruvian statute and the Peruvian judiciary was the only forum empowered to speak authoritatively on the issue.

(Source: Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, 665 F.3d 384 (2d Cir. 2011).)

Federal courts in New York have expressly recognized that the procedural doctrine of forum non conveniens is applicable to petitions to enforce foreign arbitral awards brought under the New York Convention.

(Source: CONPROCA, S.A. de C.V. v. Petroleos Mexicanos, 2013 WL 5664988, at *2, *3 (S.D.N.Y. Oct. 17, 2013).)

Fifth Circuit: The loser party in arbitration cannot freeze the confirmation proceedings in their tracks and indefinitely postpone judgment by merely requesting discovery.

(Source: Imperial Ethiopian Gov't v. Baruch-Foster, Corp., 535 F.2d 334 (5th Cir. 1976).)

Sixth Circuit: A district court may stay legal proceedings for recognition and enforcement on the basis of forum non conveniens. In deciding whether to stay such a proceeding, the district court must consider both public and private factors. The public factors are 'court congestion; the local interest of having localized controversies decided at home; the interest of having a trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty'. The private factors are 'relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive'.

(Source: Venture Global Engineering, LLC v. Satyam Computer Sers., Ltd., 233 F. App'x 517 (6th Cir. 2007).)

Ninth Circuit: A district court may stay legal proceedings for the enforcement of an arbitration award through its inherent power to stay (here, the court denied a request for enforcement of an award, pending the outcome of a separate but related arbitration proceeding).

(Source: Korea Wheel Corp. v. JCA Corp., 2005 WL 3454335 (W.D. Wash. Dec. 16, 2005).)

The Ninth Circuit has affirmed the dismissal of an action for enforcement of a New York Convention award under the doctrine of forum non conveniens (the Ninth Circuit did not consider whether the New York Convention precludes the application of forum non conveniens as this question was first raised on appeal).

(Source: Melton v. Oy Nautor Ab, 161 F.3d 13 (9th Cir. 1998).)

California: California has no specific rules concerning a court's authority to stay legal proceedings for recognition and enforcement of arbitral awards. However, California rules governing a court's authority generally to stay proceedings would also apply to petitions to confirm arbitral awards. For example, as a matter of comity, California courts have the discretion to stay an action pending the outcome of related foreign proceedings or proceedings in another state or federal court.

(Source: Dial 800 v. Fesbinder, 118 Cal. App. 4th 32, 47 (2004); Gregg v. Super. Ct., 194 Cal. App. 3d 134, 136-37 (1987).)

In addition, California courts may stay or dismiss proceedings on the ground of forum non conveniens where 'in the interest of substantial justice an action should be heard in a forum outside this state'.

(Source: Cal. Code Civil Proc. § 410.30(a).)

Finally, the perfecting of an appeal automatically stays proceedings in the superior court.

(Source: Cal. Code Civil Proc. § 916.)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

Courts may condition any stay of proceedings on the provision of security, but it is not required.

D.C. Circuit: The District of Columbia Circuit does not specify whether the granting of a stay is conditional on the provision of security, but the district court likely has discretion to impose a security requirement.

The New York Convention, FAA, Fed. R. Civ. P. and the Local Rules for the US District Court for the District of Columbia are silent on the question of security when staying arbitration confirmation proceedings. The district court in Int'l Bechtel Co. Ltd. did not require security when it stayed proceedings in that case. The court simply denied the motion to dismiss without prejudice and noted that it would entertain a further motion by either party after the Dubai court rendered its decision.

(Source: In re Arb. Between Int’l Bechtel Co., Ltd. and Dep’t of Civil Aviation of Gov’t of Dubai, 300 F. Supp. 2d 112, 118 (D.D.C. 2004).)

Second Circuit: Whether the provision of security is required is subject to the discretion of the court.

(Source: New York Convention, Art. VI; Nedagro B.V. v. Zao Konversbank, 2003 WL 151997, at *6-7 (S.D.N.Y. Jan. 21, 2003); Spier v. Calzaturificio Tecnica S.p.A., 1988 WL 96839, at *1-2 (S.D.N.Y. Sept. 12, 1988).)

Third Circuit: The court may, but is not required to, condition a stay upon the posting of security. The appellate court held that the case was properly dismissed without prejudice as an 'adjournment' under Art. VI of the New York Convention, without any requirement of security.

(Source: Telcordia Tech Inc. v. Telkom SA Ltd., 458 F.3d 172, 180-81 (3d Cir. 2006).)

Fourth Circuit, Maryland: Within the Fourth Circuit, Maryland has a rule that arbitral tribunals in international commercial arbitrations in Maryland may, at the request of a party and after an opportunity for the other party to the arbitration to be heard, order any party to post security or countersecurity.

(Source: Md. Code Ann. Cts. & Jud. Proc. § 3-2B-06).)

Fifth Circuit: The limited case law on this matter suggests that a bond in the amount of the award is likely to be required of the party challenging enforcement of the award in the federal court.

(Source: Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., 2000 WL 98127 (E.D. La. Jan. 26, 2000).)

Sixth Circuit: The court may order security if there is a showing that the party requesting the stay will not be able to pay the arbitration award. Otherwise, the court may order security if requested.

(Source: New York Convention, Art. VI; Jacada (Europe), Ltd. v. Int’l Mktg. Strategies, Inc., 2003 U.S. Dist. LEXIS 26998, at *23 (W.D. Mich. Oct. 21, 2003), aff’d, 401 F.3d 701 (6th Cir. 2005); Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948, 962 (S.D. Ohio 1981).)

Seventh Circuit, US Northern District of Illinois: The court exercised its discretion to stay enforcement while an application to set aside an award was pending in France. It also ordered that security be posted as a condition of the stay.

(Source: Alto Mar Girassol v. Lumbermen's Mut. Cas. Co., 2005 U.S. Dist. LEXIS 7479 (N.D. Ill. 2005).)

Ninth Circuit: While there is no requirement that a party must post security, a district court may require this in certain circumstances.

(Source: See, e.g. L.R. Northern District of California, R. 65.1-1; Korea Wheel Corp. v. JCA Corp.., 2005 WL 3454335 (W.D. Wash. Dec. 16, 2005) (requiring the applicant for a stay of enforcement proceedings to provide security pending resolution of a related dispute).)

G. Confidentiality

15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Yes. Federal court case files are presumed to be available for public inspection and copying. However, public access rights are not absolute. Every court has supervisory power over its own records. Parties to a case may file a motion to seal certain material. Sealed material, although part of the case file, is accessible only by court order.

(Source: Nixon v. Warner Commc’ns., Inc., 435 U.S. 589, 598 (1978); Privacy and Public Access to Electronic Case Files, The Judicial Conference Committee on Court Administration and Case Management, 2008.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

Hearings are not automatically confidential. The transcripts from judicial proceedings and hearings are considered part of the case file and, as explained above, are presumed to be available for public inspection and copying. To protect confidential information, however, parties may file a motion with the court to seal certain materials.

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Yes. Because common law courts rely on judicial precedent in interpreting and applying the law, judicial opinions are made readily available to courts and lawyers. Courts may provide special protection from unlimited public access for certain types of information and documents (including, in some instances, business secrets or State secrets).

(Source: United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989).)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

The FAA and the Fed. R. Civ. P. do not specify whether interim or partial foreign awards may be confirmed. A number of courts have found that 'an award which finally and definitely disposes of a separate independent claim may be confirmed although it does not dispose of all the claims that were submitted to arbitration'.

(Source: Metallgesellschaft A.G. v. M/V Capitan Constante, 790 F.2d 280, 283 (2d Cir. 1986) (citing cases).)

First Circuit: US courts have also found that a determination on liability is "binding" within the meaning of the New York Convention and "final" within the meaning of the FAA, even if no decision has been rendered on damages, when the parties have agreed to bifurcate proceedings. In The Univ. of Notre Dame (USA) in England v. TJAC Waterloo, LLC, the First Circuit Court of Appeals determined that where the arbitrator issued a determination on liability and later affirmed in the arbitration that the issue of liability had been decided in the award and that the "binding Decision" could not be changed, that Decision had become final and binding such that it could be enforced in the US.

(Source: Univ. of Notre Dame (USA) in Eng. v. TJAC Waterloo, LLC, 861 F.3d 287 (1st Cir. 2017).)

Second Circuit: The general rule is that courts do not have the power to review an interlocutory ruling by an arbitration tribunal. There is an exception for certain partial or interim awards that finally and completely dispose of separate and independent claims. These are deemed to be final under federal law even if separate issues in the arbitration are pending. Where partial award determines liability but leaves damages for a later date, the partial award may be confirmed.

(Source: Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d Cir. 1980); Offshore Expl. & Prod., LLC v. Morgan Stanley Private Bank, N.A., 626 F. App'x 303, 307 (2d Cir. 2015); Global Gold Min. LLC v. Caldera Res., Inc., 941 F. Supp. 2d 374, 382 (S.D.N.Y. 2013); Trade & Transp., Inc. v. Natural Petrol. Charterers Inc., 931 F.2d 191, 195 (2d Cir. 1991); Metallgesellschaft A.G. v. M/V Capitan Constante, 790 F.2d 280, 283 (2d Cir. 1986).)

New York state courts have followed the aforementioned federal precedent and confirmed partial or interim awards that finally and completely disposed of separate and independent claims.

(Source: Cotugno v. Bartkowski, 961 N.Y.S.2d 357 (Sup. Ct. Suffolk Co. 2012).)

Sixth Circuit: A district court may accept jurisdiction with respect to 'an interim award that finally and definitely disposes of a separate independent claim . . . notwithstanding the absence of an award that finally disposes of all the claims that were submitted to the arbitration' provided the petitioner demonstrates an immediate need for relief.

(Source: Island Creek Coal Sales Co. v. City of Gainesville, Fla., 729 F.2d 1046, 1049 (6th Cir. 1984) (internal quotation marks and citations omitted); Hall Steel Co. v. Metalloyd Ltd., 492 F. Supp. 2d 715, 718 (E.D. Mich. 2007).)

Seventh Circuit: The New York Convention applies to orders for the disclosure of documents, and treats them as 'awards' so long as these orders are final. The court confirmed that the order in the case before it was final '[d]espite some possible superficial technical flaws, and despite its designation as an "order" instead of an "award"'.

(Source: Publicis Commun. v. True North Communs. Inc., 206 F.3d 725 (7th Cir. 2000).)

Ninth Circuit: Interim and partial awards that are considered to be final as to a particular issue may be recognized and enforced.

(Source: China Nat. Metal Prods. Import/Export Co. v. Apex Digital, Inc., 379 F.3d 796 (9th Cir. 2004); Pacific Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp., 935 F.2d 1019 (9th Cir. 1991).).

Eleventh Circuit: Partial or interim awards that finally and completely dispose of separate and independent claims are deemed to be final under federal law even if separate issues in the arbitration are pending.

(Source: Rollins, Inc. v. Black, 552 F. Supp. 2d 1318, 1325 (M.D. Fla. 2004), aff'd in part, rev'd in part on other grounds, 167 F. App'x 798 (11th Cir. 2006).)

The FICAA provides a more expansive view. It permits the recognition and enforcement of interim measures ordered by arbitral tribunals without the limitations imposed by courts interpreting the FAA. Sect. 684.0026 the FICAA provides that '[a]n interim measure issued by an arbitral tribunal must be recognized as binding and … enforced upon application to the competent court'. Sect. 684.0027 provides that enforcement of an interim measure can be refused on the same grounds as included in Sect. 684.0048(1)(a) or (b) of the Florida Statutes (which set forth grounds for refusal of recognition or enforcement).

(Source: Fla. Stat. §§ 682.081, 684.0026, 684.0027; 684.0048(1)(a) or (b).)

The Eleventh Circuit reviewed the confirmation order of a partial award that resolved the jurisdictional phase of the arbitration and issued an anti-suit injunction. The order was reversed on the basis of waiver and the matter remanded to determine whether the conditions for non-recognition and non-enforcement of Art. V(1)(a) were satisfied and, if so, whether the lower court in the exercise of its discretion could nonetheless recognize and enforce the partial award. The arbitration was seated in Miami and involved foreign claimants and a foreign respondent.

(Source: Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164 (11th Cir. 2004).)

California: The California International Arbitration Act authorises an arbitral tribunal to 'make an interim arbitral award on any matter with respect to which it may make a final arbitral award' and states that '[t]he interim award may be enforced in the same manner as a final arbitral award'.

(Source: Cal. Code Civil Proc. § 1297.316.)

California decisional law also recognizes the ability of parties to enforce interim or partial arbitral awards when such awards finally dispose of a submitted issue.

(Source: Hightower v. Super. Ct., 86 Cal. App. 4th 1415, 1440-41 (2001).)

Ohio: The Ohio Revised Code s. 2712.60 states that 'interim award[s] may be enforced in the same manner as a final award'.

(Source: Ohio Revised Code s. 2712.60.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

The FAA and the Fed. R. Civ. P. do not address the enforcement of injunctive or other non-monetary foreign arbitration awards. Some courts have found that arbitration awards involving non-monetary relief can be confirmed.

(Source: Southern Seas Navigation Ltd. of Monrovia v. Petroleos Mexicanos, 606 F. Supp. 692, 693-94 (S.D.N.Y. 1985) (confirming a non-foreign equitable arbitral award that amounted to 'in effect, a grant of preliminary injunction'); see also Alcatel Space, S.A. v. Loral Space & Comm. Ltd., 2002 WL 1391819, at *5-6 (S.D.N.Y. June 25, 2002).)

Second Circuit: Recognition of a plaintiff's right to enforce an arbitral award that directed the defendant to cooperate in the management of the corporation and divestiture of stock shares.

(Source: Telenor Mobile Comms. AS v. Storm LLC., 584 F.3d 396 (2nd Cir. 2009).)

Sixth Circuit: The Sixth Circuit recognizes and enforces foreign arbitral awards of non-monetary relief as long as the award otherwise satisfies the requirements of the New York Convention.

(Source: Venture Global Engineering, LLC v. Satyam Computer Servs., Ltd., 233 F. App'x 517, 519-20, 524 (6th Cir. 2007).)

The Sixth Circuit affirmed an order of the US District Court for the Eastern District of Michigan enforcing a foreign arbitration award that gave the petitioner the option of buying shares of stock.

(Source: Venture Global Engineering, LLC v. Satyam Computer Servs., Ltd., 233 F. App'x 517 (6th Cir. 2007).)

Seventh Circuit: The New York Convention applies to orders for the disclosure of documents, so long as these orders are final. The court confirmed that the order in the case before it was final '[d]espite some possible superficial technical flaws, and despite its designation as an "order" instead of an "award"'.

(Source: Publicis Commun. v. True North Communs. Inc., 206 F.3d 725 (7th Cir. 2000).)

Ninth Circuit: Courts in the Ninth Circuit have enforced awards granting equitable and injunctive relief. Specifically, courts have enforced awards requiring an interim payment into an escrow account as security for a final award.

(Source: Pacific Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp. 935 F.2d 1019 (9th Cir. 1991) (under FAA, Chapter 1); Certain Underwriters at Lloyd's London v. Argonaut Ins. Co. 264 F. Supp. 2d 926 (N.D. Cal. 2003); see also Ever-Gotesco Res. and Holdings, Inc. v. PriceSmart, Inc., 192 F. Supp. 2d 1040 (S.D. Cal. 2002) (confirming the power of an arbitral tribunal constituted under the UNCITRAL Arbitration Rules generally to grant provisional relief).)

Eleventh Circuit: In an opinion recognizing the inherent equitable powers of the arbitrator, the Eleventh Circuit affirmed the enforcement of an award that included the obligation for the respondent to deliver shares of a company to the claimant.

(Source: Rintin Corp., S.A. v. Domar, Ltd., 476 F.3d 1254 (11th Cir. 2007).)

California: In general, California law does not limit the type of relief that may be awarded by an arbitral tribunal. California courts are extremely deferential to the remedies awarded by arbitrators.

(Source: Advanced Micro Devices, Inc. v. Intel Corp. 9 Cal. 4th 362, 383 (1994).)

California courts have enforced arbitral awards ordering various injunctive and equitable remedies, including declaratory relief and an accounting from the general partner (i.e. the process of communicating information about a business entity to pertinent stakeholders, here the other partners) (Pacific Inv. Co. v. Townsend); permanent injunctive relief (Swan Magnetics, Inc. v. Superior Court); the conveyance of real or personal property (Mleynek v. Headquarters Companies); and the granting of a license to use a party's intellectual property (Advanced Micro Devices).

(Source: Pacific Inv. Co. v. Townsend, 58 Cal. App.3d 1, 7 (1976); Swan Magnetics, Inc. v. Superior Court, 56 Cal. App. 4th 1504, 1512 (1997); Mleynek v. Headquarters Companies, 165 Cal. App. 3d 1133 (1984); Advanced Micro Devices, 9 Cal. 4th at 385-88.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

Art. V.1(c) of the New York Convention permits a court to recognize and enforce only part of an award where the award deals partly with matters falling within the terms or the scope of the submission to arbitration and partly with matters not within the terms or beyond the scope of the submission, and those parts can be 'separated'.

9 U.S.C. § 11 of the FAA, taken in conjunction with 9 U.S.C. § 208 of the FAA, permits a district court in and for the district 'wherein the award was made' to modify or correct an award, and so, in a sense, to recognize and enforce only part of the award as originally made.

9 U.S.C. § 11 sets out limited grounds on which a court may modify or correct an award, as follows:

(i) where there was an evident material miscalculation of figures or an evident material mistake in a description of any person, thing or property referred to in the award;

(ii) where the award deals with a matter not submitted to the arbitrators, unless that matter does not affect the merits of the decision; and

(iii) where the award is imperfect in form.

(Source: FAA, 9 U.S.C. §§ 11 and 208.)

Ninth Circuit: The Ninth Circuit has confirmed that parties may not extend the grounds for modifying an arbitration award beyond those set forth in 9 U.S.C. § 11.
[#H3#](Source: Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th Cir. 2003) (en banc); see also Schoenduve Corp. v. Lucent Technologies, Inc., 442 F.3d 727 (9th Cir. 2006).)

California: California law does not allow courts to enforce only part of an arbitral award, absent a petition to correct the award. Sect. 1286 of the Code of Civil Procedure provides that 'the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected …’.

The grounds for correcting an award under California law are very limited; courts have no power to modify or correct an award in any manner 'affecting the merits of the decision upon the controversy submitted'.

(Source: Cal. Code Civil Proc. § 1286.6.)

However, pursuant to the authority to correct an award, one California case allowed for partial enforcement by deleting the portion of an award as it applied to a non-party to the arbitration while confirming the remainder of the award against the parties to the arbitration.

(Source: Ikerd v. Warren T. Merrill & Sons, 9 Cal. App. 4th 1833, 1841 (1992).)

Beyond these decisions, and other than in the circumstances specifically covered by 9 U.S.C. § 11 or by Art. V.1(c) of the New York Convention, the issue has not been squarely addressed by the courts.

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

Under the New York Convention, the enforcing courts are authorised to consider whether the subject award was annulled in the place of arbitration. Several recent decisions demonstrate that, while annulment in the place of arbitration is not a dispositive factor, the courts will consider this fact along the totality of other circumstances. In Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v. Pemex–Exploración Y Producción, the Second Circuit affirmed a lower court's decision recognizing an arbitral award that had been set aside by a court in the place of arbitration (Mexico). While acknowledging that 'a final judgment obtained through sound procedures in a foreign country is generally conclusive, the court noted that nevertheless '[a] 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 State where enforcement is sought'. Having found a number of serious improprieties associated with the Mexican court proceeding, the court decided to exercise its discretion to deny enforcement 'to vindicate fundamental notions of what is decent and just' in the United States. In Chromalloy Aeroservices, A Div. of Chromalloy Gas Turbine Corp. v. Arab Rep. of Egypt, the District of Columbia Circuit confirmed an arbitral award because Egypt's set aside of that award in its own courts violated the parties' arbitration agreement and therefore violated US public policy in favour of enforcement of binding arbitration clauses. In Karaha Bodas Co. v. Negara, the Court of Appeals for the Fifth Circuit noted that 'an American court and courts of other countries have enforced awards, or permitted their enforcement, despite prior annulment in courts of primary jurisdiction'.

(Source: Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v. Pemex–Exploración Y Producción, 832 F.3d 92, 106 (2d Cir. 2016); Karaha Bodas Co. v. Negara, 335 F.3d 357, 367 (5th Cir. 2003); Chromalloy Aeroservices, A Div. of Chromalloy Gas Turbine Corp. v. Arab Rep. of Egypt, 939 F. Supp. 907 (D.D.C. 1996).)

In other cases, where exceptional circumstances were not found, the courts exercised deference to foreign court decisions. In a recent decision in the Matter of Arb. of Certain Controversies Between Getma Int’l and Rep. of Guinea, the District Court for the District of Columbia refused to enforce the award that was set aside at the arbitral situs, Côte d’Ivoire, despite petitioner's allegations that improprieties occurred during the set aside proceeding, including that a Guinean official publicly stated that a Guinean judge had been appointed in the set aside proceedings with the view to ensuring a set aside. While noting that these allegations raised concerns, the District Court for the District of Columbia nevertheless concluded that the set aside decision was not 'repugnant to US public policy' and declined to enforce the arbitral award. The Court of Appeals affirmed the decision of the district court in July 2017 and held that enforcement of a set aside award should be refused. Generally, the appellate court noted, US courts "have declined to ‘second guess’ a competent authority’s annulment of an arbitral award absent ‘extraordinary circumstances,’ and will only set aside an annulment "if it violates this country’s ‘most basic notions of morality and justice.’" Accordingly, the court found that the set aside proceeding in Guinea was not marked by infirmities so substantial as to warrant enforcement of the annulled award.

(Source: Matter of Arb. of Certain Controversies Between Getma Int’l and Rep. of Guinea, 191 F. Supp. 3d 43, 53-55 (D.D.C. 2016), aff’d, Getma Int’l v. Rep. of Guinea, 862 F.3d 45 (D.C. Cir. 2017); see also TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 938 (D.C. Cir. 2007) (when a competent foreign court has nullified a foreign arbitration award, United States courts should not go behind that decision absent extraordinary circumstances not present in that case); Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd., 191 F.3d 194, 197 n.3 (2d Cir. 1999) (same).)

At least one US court has dealt with the issue of reversing its own enforcement decision when an award has been set aside at the seat of arbitration. In Thai-Lao Lignite (Thailand) Co., Ltd. v. Gov’t of the Lao People’s Democratic Rep., the Second Circuit upheld a district court’s decision vacating its prior enforcement of a USD $57 million arbitral award against Laos after the award was set aside by a Malaysian court. Here, the Second Circuit assessed the interplay between the Federal Rules of Civil Procedure (Fed. R. Civ. P.) 60(b), which permits district courts to relieve a party from a final judgment when that judgment is based on a prior judgment since reversed or vacated, and the standards for declining enforcement of an arbitral award - chiefly, interests of comity and public policy - under the New York Convention. Here, respondent filed a Rule 60(b) motion to vacate the lower court’s judgment confirming the arbitral award, which had been made before a Malaysian court set aside the award. The Court determined that, in the absence of any public policy concerns, "the annulment of an award in the primary jurisdiction should weigh heavily in a district court’s Rule 60(b)(5) analysis." Concluding that vacating the award would not "offend basic notions of justice" and that the interests of judicial finality did not outweigh comity where, as here, Laos had sought to set aside the award promptly and no delay would impact the finality of the judgment, the court affirmed the lower court’s order vacating its judgment confirming the award.

(Source: Thai-Lao Lignite (Thailand) Co., Ltd. v. Gov’t of the Lao People’s Democratic Rep., 864 F.3d 172, 186 (2d Cir. 2017).)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteur: Allen B. Green
Other contributors: A. Stephens Clay, Jean E. Kalicki, James L. Loftis, Dana C. MacGrath, Michael D. Nolan, William W. Park, Stephanie Reedy, C. Ryan Reetz, John H. Rooney, Peter Sherwin, Steven L. Smith, George M. Von Mehren, Janet Whittaker

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