The Legal Acrobatics of Dealing with International Arbitral Awards Rendered in the United States

Authors

Damon R. Duchenne, University of Miami School of Law

Abstract

International arbitration has become a preferred method for resolving cross-border commercial disputes, largely due to its efficiency and flexibility compared to traditional court litigation. However, the post-award phase, particularly the process of vacating or enforcing arbitral awards, presents significant complexities, especially in the United States. Despite the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”) guiding the international recognition and enforcement of arbitral awards, the U.S. has introduced an anomaly by categorizing certain awards rendered within its jurisdiction as “nondomestic,” subjecting them to the Convention’s framework. This has led to confusion regarding whether such awards are subject to domestic vacatur under U.S. law or the Convention’s provisions. While the majority of scholars argue that these awards should follow the U.S. Federal Arbitration Act, some suggest that Article V of the Convention governs their vacatur. This paper contends that U.S. Convention awards should not be subject to vacatur under either U.S. law or the Convention. Instead, they should only be subject to confirmation or denial of confirmation under Article V of the Convention. The analysis highlights the tension between applying domestic vacatur law to U.S. Convention awards, and well-established principles of statutory and treaty interpretation, while emphasizing that such awards should be treated consistently with foreign arbitral awards under the Convention.

Recommended Citation

Damon R. Duchenne, The Legal Acrobatics of Dealing with International Arbitral Awards Rendered in the United States, 79 U. Mia. L. Rev. 831 (2025)
Available at: https://repository.law.miami.edu/umlr/vol79/iss4/10