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The Significance of the Language of Arbitration Agreements – Focusing on the recent U.S. court's decision denying confirmation of arbitral award in Spineway SA v. Strategos Group LLC

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한국중재학회 (Korean Association Of Arbitration Studies(Kaas))|2024.09|중재연구 (JOURNAL OF ARBITRATION STUDIES)|제34권 제3호|pp. 99-126

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international arbitrationarbitration agreementthe New York Conventionconfirmation of foreign arbitral awardlanguage of arbitration agreement
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초록

Arbitration is an alternative dispute resolution mechanism based on the parties’ agreement to arbitrate any dispute(s) that may arise, rather than to proceed with litigation before national court(s). Arbitration may be similar to court proceedings in some ways, but due to its characteristics, such as, confidentiality of proceedings, enforceability of final and binding arbitral awards, and overall efficiency in the proceedings, among others, it has been the preferred way of resolving disputes by disputing parties all over the world. However, without valid arbitration agreements or other dispute resolution agreements properly providing for arbitration between the parties, arbitration cannot be had. Therefore, the language of any arbitration agreement must be clear and without any ambiguity in order to proceed to an effective and efficient arbitral process. Foreign arbitral awards are readily recognized and enforced due to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention. Generally in Contracting States, a summary proceeding of confirmation of the arbitral award is had in the relevant national court, giving the award enforceability in the court’s jurisdiction. Recently, in March of 2024, the U.S. District Court for the District of Delaware denied the confirmation of a final foreign arbitral award based on one of the exhaustive grounds for refusing to recognize and enforce a foreign arbitral award pursuant to the New York Convention. Thus, this article focuses on examining such decision with issues of interpretation of the parties’ arbitration provision, unresolved question of proper jurisdiction of the arbitral tribunal, among others. Examination of such decision is necessary, especially in light of one of the parties having filed an appeal to the Third Circuit Court of Appeals following this decision.

Abstract

Arbitration is an alternative dispute resolution mechanism based on the parties’ agreement to arbitrate any dispute(s) that may arise, rather than to proceed with litigation before national court(s). Arbitration may be similar to court proceedings in some ways, but due to its characteristics, such as, confidentiality of proceedings, enforceability of final and binding arbitral awards, and overall efficiency in the proceedings, among others, it has been the preferred way of resolving disputes by disputing parties all over the world. However, without valid arbitration agreements or other dispute resolution agreements properly providing for arbitration between the parties, arbitration cannot be had. Therefore, the language of any arbitration agreement must be clear and without any ambiguity in order to proceed to an effective and efficient arbitral process. Foreign arbitral awards are readily recognized and enforced due to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention. Generally in Contracting States, a summary proceeding of confirmation of the arbitral award is had in the relevant national court, giving the award enforceability in the court’s jurisdiction. Recently, in March of 2024, the U.S. District Court for the District of Delaware denied the confirmation of a final foreign arbitral award based on one of the exhaustive grounds for refusing to recognize and enforce a foreign arbitral award pursuant to the New York Convention. Thus, this article focuses on examining such decision with issues of interpretation of the parties’ arbitration provision, unresolved question of proper jurisdiction of the arbitral tribunal, among others. Examination of such decision is necessary, especially in light of one of the parties having filed an appeal to the Third Circuit Court of Appeals following this decision.

참고문헌 (35)

  1. "Spineway SA v. Strategos Group LLC, No. 22-mc-00604-JLH (D. Del. Mar. 1, 2024)", ~
  2. "Al Haddad Bros. Enter., Inc. v. M", S, ~
  3. "Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., 403 F.3d 85 (2d Cir. 2005)", ~
  4. "Karaha Bodas Co. L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 190 F. Supp. 2d 936 (S.D. Tex. 2001), remanded in part by Karaha Bodas Co. L.L.C. v. Perusahaan Perambangan Minyak Dan Gas Bumi Negara. 2003 WL 21027134 (5th Cir. 2003)", ~
  5. "Rich v. Spartis, 516 F.3d 75 (2d Cir. 2008)", ~
  6. "Teamsters Local 177 v. United Parcel Serv., 966 F.3d 245 (3d Cir. 2020)", ~
  7. "Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008)", ~
  8. "L.A. Apparel, Inc. v. Straight A. Co., LP, 2022 WL 17417173 (Dec. 5, 2022)", ~
  9. "New Ame. Publ’n Inc., Daily Racing Form Div. v. Newark Typographical Union, Local 103, 918 F.2d 21 (3d Cir. 1990)", ~
  10. "LGC Holdings, Inc. v. Julius Klein Diamonds, LLC, 238 F. Supp. 3d 452 (S.D.N.Y. 2017)", ~
  11. "Kora Pack Private Ltd. v. Motivating Graphics LLC, 684 F. Supp. 3d 536 (N.D. Tex. 2023)", ~
  12. "Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Junior Univ., 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989)", ~
  13. "Langlais v. Pennmont Ben. Serv., Inc., 527 Fed. Appx. 215 (3d Cir. 2013)", ~
  14. "Int’l Brotherhood of Elec. Workers, Local Union No. 545 v. Hope Elec. Corp., 380 F.3d 1084 (8th Cir. 2004)", ~
  15. "Lewis v. Circuit City Stores, Inc., 500 F.3d 1140 (10th Cir. 2007)", ~
  16. "Ribadeneira v. New Balance Athletics, Inc., 65 F.4th 1 (1st Cir. 2023)", ~
  17. Born, Gary B., "The New York Convention: A Self-executing Party", Michigan Journal of International Law, 40, pp.115~185 (2018)
  18. Grenig, Jay E., "‘It’s not Over ‘til It’s Over’ : After the Arbitration Award in Sports", Dispute Resolution Journal, 70 (2015)
  19. Jun, Jung W., "The Language of Arbitration Agreements and Availability of Class Arbitration: Focusing on the U.S. Supreme Court’s Lamps Plus, Inc. v. Varela Decision", Journal of Arbitration Studies, 31(3), pp.25~42 (2021)
  20. Sasser, Karon A., "Freedom to Contract for Expanded Judicial Review in Arbitration Agreements", Cumberland Law Review, 31, pp.337~ (2001)
  21. Volz, Jane L., "Foreign Arbitral Awards : Enforcing the Award Against the Recalcitrant Loser", William Mitchell Law Review, 21 (1996)
  22. "Hong Kong International Arbitration Centre (HKIAC) Administered Arbitration Rules", ~ (2024)
  23. "House Report No. 97-542", ~ (1982)
  24. "International Chamber of Commerce (ICC) Arbitration Rules", ~ (2021)
  25. "London Court of International Arbitration (LCIA) Arbitration Rules", ~ (2020)
  26. "Model Arbitration Clause, Annotated Model Arbitration Clause for International Contracts, Debevoise & Plimpton LLP Protocol to Promote Efficiency in International Arbitration", ~
  27. "Singapore International Arbitration Centre (SIAC) Arbitration Rules", ~ (2016)
  28. "Stockholm Chamber of Commerce (SCC) Arbitration Rules", ~ (2023)
  29. "Swiss Private International Law Act", ~
  30. "Swiss Rules of International Arbitration of Swiss Arbitration Centre", ~
  31. "The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards", ~ (1958)
  32. "United States Code, Title 9", ~
  33. "Drafting Dispute Resolution Clauses: A Practical Guide", American Arbitration Association, ~
  35. "The Hong Kong International Arbitration Centre"[URL]

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The Language of Arbitration Agreements and Availability of Class Arbitration: Focusing on the U.S. Supreme Court's Lamps Plus, Inc. v. Varela Decision전정원한국중재학회 · 중재연구2021 · 제31권 제3호U.S. Courts’ Review of Article V(1)(b) under the New York Convention for the Enforcement of Foreign Arbitral Awards전정원한국중재학회 · 중재연구2014 · 제24권 제3호Korean case analysis of compelling arbitration in the United States김용길, 장병윤, David L. Welch한국중재학회 · 중재연구2018 · 제28권 제1호Analysis, Recognition and Enforcement Procedures of Foreign Arbitral Awards in the United States김용길, 장병윤, David L. Welch한국중재학회 · 중재연구2017 · 제27권 제3호Scrutiny of Arbitral Awards by Arbitration Institutions in International Arbitration: Focusing on the ICC’s Scrutiny of Award Process전정원법과정책연구원 · 법과정책2017 · 제23권 제2호Impacts of Contractual Rights' Assignment on Arbitration AgreementsIlyas GOLCUKLU한국중재학회 · 중재연구2024 · 제34권 제3호

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