USA Law and Practice Contributed by: Matthew H. Kirtland, Timothy Tyler, Katie Connolly and Taylor LeMay, Norton Rose Fulbright
States (the “ICSID Convention”). The Inter-American Convention on Commercial Arbitration contains a reci - procity reservation that mirrors the US reservation in the New York Convention. Additionally, the US is party to multilateral and bilateral treaties that contain arbitration provisions. 12.2 Enforcement Procedure In order for an arbitral award to be enforced by US courts of the United States, it must be “confirmed” (ie, recognised) by a court with jurisdiction. Domestic Awards The FAA provides a summary procedure where – if the parties in their arbitration agreement have agreed that a judgment of the court shall be entered upon the award – an award “shall” be confirmed if it is request - ed within one year of issuance unless the award is vacated, modified or corrected. International Awards Chapter 2 of the FAA incorporates the provisions of the New York Convention, and provides for similar summary proceedings: “Within three years after an arbitral award falling under the [New York] Convention is made, any party to the arbitration may apply to any court having jurisdic - tion under this chapter for an order confirming the award as against any other party to the arbitration. The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Con - vention.” Execution of Award Once a party has confirmed an arbitral award, they have in hand an enforceable US court judgment, against which they can attempt to execute against the judgment debtor’s assets. Such execution proce - dures are governed by applicable rules of both federal and state court. 12.3 Approach of the Courts US courts are likely to enforce international arbitra - tion awards. Under the New York Convention as implemented by Chapter 2 of the FAA or the Pana -
ma Convention, as implemented by Chapter 3 of the FAA, a court can refuse enforcement on the following grounds: • party incapacity; • invalid arbitration agreement; • the procedure before the arbitral tribunal was affected by procedural unfairness; • the award deals with issues falling outside the scope of the submission to arbitration; • the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, absent such an agree - ment, the law of the arbitral seat; • the award has not yet become binding on the par - ties, or was set aside in the country where it was made; or • the dispute was not arbitrable under US law or is contrary to US public policy. These are the exclusive grounds for refusing to enforce a New York or Panama Convention award, as imple - mented into US law by the FAA. Thus, barring these statutory exceptions, arbitration awards will generally be enforced. Per the New York Convention, courts may also refuse to recognise and enforce an award when it contra - venes domestic public policy. However, in US courts, “public policy” is narrowly interpreted. Challeng - ing enforcement based on public policy would likely require that unambiguous, well-defined and dominant public policy is being violated. However, the US Supreme Court has not clarified whether grounds for refusing enforcement based on public policy rather than the FAA’s enumerated cat - egories is permissible. There is currently a circuit split. 13. Miscellaneous 13.1 Class Action or Group Arbitration The FAA is silent on whether class action arbitration is allowed. The US Supreme Court has held that a party may not be compelled to submit to class arbitration absent an agreement to do so. An agreement to sub - mit to class action arbitration must be express; courts
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