The essay addresses whether party preference for more intrusive court review of the facts and law of an aribitral award will (or should) be respected in national arbitration law. The recent U.S. Supreme Court decision in Hall Street rules that expanded review clauses are not enforceable under the Federal Arbitration Act. The essay argues, however, that expanded review of an international arbitral award should still be possible in the U.S. if the parties draft the arbitration clause carefully. For that purpose the parties should include an expanded review clause and should place the arbitral seat in a State that allows expanded review - for example, California. They should also expressly provide that the arbitration be governed by that State’s arbitration law. A respondent seeking to subject an unfavorable award to expanded review could then file for set-aside in the State courts of the seat. Even if the award creditor were to remove to federal court, the essay argues that a federal court should apply the State arbitration law, which, in the case of California, allows expanded review when the parties expressly provide for it. The essay also discusses the options for obtaining expanded review of an award under Swiss, Italian, Swedish, and English law.
Monday, July 6, 2009
Barcelo: Expanded Judicial Review of Awards After Hall Street and in Comparative Perspective
John James Barcelo III (Cornell Univ. - Law) has posted Expanded Judicial Review of Awards After Hall Street and in Comparative Perspective (in Resolving International Conflicts: Libor Amicorum Tibor Varady, forthcoming). Here's the abstract: