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Unpublished Paper
Looking Into a Crystal Ball: Courts' Inevitable Refusal to Enforce Parties' Contracts to Expand Judicial Review of Non-Domestic Arbitral Awards
ExpressO (2008)
  • Eric S. Chafetz, Brooklyn Law School
Abstract
Courts have not addressed whether parties can contract to expand the judicial review provisions in Article (“Art.”) V of the New York Convention (the "NY Convention"). When courts do address the issue, they will rely on the resolution of two prior issues: (1) whether parties can rely on the vacatur provisions in Art. 1 of the Federal Arbitration Act (“FAA”), in a vacatur proceeding under the NY Convention and (2) whether parties can rely on manifest disregard of the law and other grounds of review implied under Art. 1 of the FAA, in a vacatur proceeding under the NY Convention. As all courts addressing these two issues have resolved them in the negative, and concluded only those provisions in Art. V of the NY Convention apply in a vacatur proceeding under the NY Convention, it is very unlikely that courts will allow parties to contract to expand the judicial review provisions in Art. V of the NY Convention. This foreseeable conclusion, however, is incorrect, because various statutory provisions and cases courts rely upon when addressing whether parties can contract to expand the judicial review provisions in sections 10 and 11 of Art. 1 of the FAA – there is a circuit split on this issue under Art. 1 of the FAA - are very similar to those sources courts will rely upon under Art. 2 of the FAA and the NY Convention when addressing the issue, and should be construed in the same fashion.
Keywords
  • arbitration,
  • alternate dispute resolution,
  • NY Convention
Disciplines
Publication Date
April 8, 2008
Citation Information
Eric S. Chafetz. "Looking Into a Crystal Ball: Courts' Inevitable Refusal to Enforce Parties' Contracts to Expand Judicial Review of Non-Domestic Arbitral Awards" ExpressO (2008)
Available at: http://works.bepress.com/eric_chafetz/1/