Wednesday, September 7, 2011

Reservations of the New York Convention

Please excuse my delay... I promise to be on schedule next week!

After reading more in detail about the New York Convention, I'm left with several questions regarding the (1) reciprocity and (2) commercial relationship reservations, and have attempted to construe various hypothetical situations that might not fall under the New York Convention.

Regarding reciprocity, if for instance, the United States enters into an agreement with a country who has not signed the New York Convention, such as Germany, will there only be reciprocity if the location of the arbitration is in a State which recognizes the New York Convention? Meaning that despite the fact that Germany is not a signatory and has not agreed to be held to the New York Convention, if they are compelled to arbitrate in a third state (neither the U.S. nor Germany) which has signed the New York Convention, then they are held to it? So it seems that as long as 2 of 3 factors agree to the New York Convention (at least one party, and the State where the dispute is arbitrated, or else both parties in a neutral state), the award will be enforceable.

The commercial relationship stipulation makes sense to me, because it seems that the vast majority of arbitrations center around international trade and commerce in some sense. But does this mean that arbitration under the definition of the New York Convention will never involve something political in nature, or a dispute that involves an individual as one of the parties? For instance, say the Jamie Leigh Jones v. Halliburton/KBR had actually occurred with international players in some sense, for instance a foreign "subsidiary" of KBR (I add quotes because in my hypo it would be a company that was originally autonomous and later acquired by KBR such that it is more definitively foreign and not just located in a foreign state) and perhaps even if Jamie Leigh Jones had been a foreign national contractor instead of an American. In that case, a term of her employment was that any dispute would be resolved through arbitration. Because her claim was not commercial in nature, would this mean that it would not have been subject to the terms of the New York Convention? And what would be the ramifications of recognizing and enforcing an award in such a dispute not subject to the New York Convention?

I assume we will clarify many of these issues in class, but these are the immediate questions I had in response to this week's reading.

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