USA Law and Practice Contributed by: Seward & Kissel LLP, Seward & Kissel LLP
6.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards The USA is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the “New York Convention”), as implemented by the Federal Arbitration Act, 9 USC Section 201 et seq (FAA). The grounds for resisting enforcement of the award are limited. As specified in the FAA, “[t]he court shall confirm the award unless it finds one of the grounds for refus - al or deferral of recognition or enforcement of the award specified in the said Convention”. As such, the FAA incorporates only the limited enumerated exceptions or defences set forth in Article V of the New York Convention. In the absence of such a defence, a US court “shall confirm” the award. 6.4 Arrest of Vessels Subject to Foreign Arbitration or Jurisdiction Many states have laws allowing the courts to enforce foreign money judgments through adop - tion of versions of the Uniform Foreign-Country Money Judgments Recognition Act. The pro - cedures and defences can vary from state to state, and as such are beyond the scope of this summary. In the absence of a statutory scheme, states will rely on the common law primarily based on principles of international comity. As previously stated, the USA is a party to the New York Convention, as implemented by the FAA 9 USC Section 201 et seq (see 6.3 New York Convention on the Recognition and Enforce- ment of Foreign Arbitral Awards ). 6.5 Domestic Arbitration Institutes Arbitration and mediation are available as alter - native sources of conflict resolution. The relevant arbitral body is the Society of Maritime Arbitra - tors (SMA) in New York. Houston and Miami also are looking to become centres of maritime
tract “so as to give meaning to all of its terms – presuming that every provision was intended to accomplish some purpose, and that none are deemed superfluous”. For instance, see Foster Wheeler Energy Corp v An Ning Jiang MV, etc, 383 F 3d 349, 354 (5th Cir 2004). Ambiguities can lead to disputes – for example, if a compet - ing regime applies a higher limitation of liability than the COGSA’s USD500 per package limi - tation – and, as such, careful attention should be paid to the contract language including its choice-of-law and forum selection provisions (see again Foster Wheeler ). Forum selection, arbitration and choice-of-law clauses are enforced if they are properly incor - porated into the bill of lading. 6.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading The terms of a charterparty can be incorporated into a bill of lading, provided this is clearly done on the face of the bill of lading. Foreign forum selection clauses and foreign arbi - tration clauses found in incorporated charterpar - ties are enforced if the charterparty is properly incorporated into the bill of lading. In order to enforce an arbitration clause against a third-party holder, a bill of lading should specifically identify the charterparty and clearly incorporate the arbi - tration clause. A party seeking to avoid enforce - ment of a foreign arbitration or forum selection clause has the burden of proving a likelihood that “the substantive law to be applied will reduce the carrier’s obligations to the cargo owner below what COGSA guarantees”. See Vimar Seguros Y Reaseguros v M/V Sky Reefer, 515 US 528, 539, 115 S Ct 2322, 2329 (1995).
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