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Bibliographic The legal framework for enforcing international arbitration agreements has undergone important
changes over the past century, evolving from a position of relative disfavor to one of essentially
reference universal support. That legal regime consists of international conventions (principally the New York
'Chapter 2: International Convention), national law (such as the UNCITRAL Model Law) and institutional arbitration rules.
Arbitration Agreements: When their jurisdictional requirements are satisfied, these instruments provide a robust and highly
Legal Framework', in Gary B. effective framework for enforcing international arbitration agreements.
Born , International
Arbitration: Law and Practice §2.01 INTERNATIONAL ARBITRATION
(Third Edition), 3rd edition
(© Kluwer Law International;
AGREEMENTS: CHALLENGES TO EXISTENCE,
Kluwer Law International VALIDITY AND SCOPE
2021) pp. 53 - 80
Challenges to international arbitration agreements can take a variety of forms (e.g., to the existence,
validity, scope or enforceability of the arbitration agreement). They can also arise in different
procedural settings, including both arbitral proceedings and national courts.
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“refer” the parties to arbitration. As discussed below, this relief is contemplated by Article II of the
New York Convention and Article 8 of the UNCITRAL Model Law (and parallel provisions of other
national arbitration statutes). (2) In determining whether or not to refer the parties to arbitration, a
national court will generally consider whether the parties are bound by a valid arbitration agreement
which applies to their dispute.
Alternatively, a party may choose not to appear in the arbitral proceedings or to commence parallel
litigation, and instead subsequently either seek annulment of any eventual arbitral award or resist
enforcement of any award (in both cases, on jurisdictional grounds, as provided for by Articles 34(2)
(a)(i) and (iii) and 36(1)(a)(i)
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and (iii) of the Model Law). In each case, a national court will be required to consider whether the
parties are bound by a valid arbitration agreement which encompasses their dispute.
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[C] “Commercial” Relationship Requirement
The New York Convention and many arbitration statutes are potentially applicable only to
“commercial” relationships. Article 1(3) of the Convention provides that Contracting States may
make a “commercial declaration,” i.e., declare that the Convention applies only to “relationships …
which are considered as commercial under the national law of the State making [the] declaration.” A
number of nations, including the United States, have made declarations under Article 1(3). (5)
Similarly, many arbitration statutes are limited to “commercial” matters. Article 1(1) of the Model
Law limits the Law’s application to “international commercial arbitration,” while §1 of the FAA is
limited to arbitration agreements in “transaction[s] involving commerce.” In general, national courts
have adopted broad definitions of the “commercial” requirement, including almost any conceivable
profit-making activity within its scope.
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[G] Reciprocity Requirements
Article I(3) of the New York Convention permits Contracting States to make “reciprocity
reservations,” undertaking the Convention’s obligations only towards other Contracting States: “[Any
Contracting State may] declare that it will apply the Convention to the recognition and enforcement
of awards made only
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in the territory of another Contracting State.” Roughly two-thirds of the Convention’s 168 Contracting
States have made reciprocity reservations. (9)
In addition, Article XIV of the Convention contains a separate, more general reciprocity provision,
limiting a Contracting State’s rights under the Convention to those it “is itself bound to apply.” (10) In
practice, because almost all trading states have ratified the Convention (except Taiwan and Libya),
the reciprocity exception has very limited importance.
“to submit to arbitration all or any differences which have arisen or which may
arise between them in respect of a defined legal relationship, whether
contractual or not, concerning a subject matter capable of settlement by
arbitration.”
This obligation extends to all material terms of an agreement to arbitrate (including, for example, the
parties’ selection of the arbitral seat, the scope of the arbitration clause, the selection of the
arbitrators, the designation of institutional rules and the like).
The Convention goes on to provide an enforcement mechanism for agreements to arbitrate in
Article II(3), requiring specific performance of such agreements, subject only to a limited set of
enumerated exceptions based on generally-applicable contract law principles:
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In so doing, the Convention permits non-recognition of arbitration agreements only in limited cases
– where they are “null and void, inoperative or incapable of being performed” or where they concern
a “subject matter not capable of settlement by arbitration”; (16) the Convention’s drafters left no room
for national courts to invent additional bases for holding an international arbitration agreement
invalid.
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contract; and (d) the potential application of different form requirements to the arbitration agreement
and the underlying contract.
Separability Presumption: Consequences
(1) Invalidity or non-existence of underlying contract does not necessarily entails invalidity or non-
existence of arbitration agreement.
(2) Invalidity of arbitration agreement does not necessarily entail invalidity of main or underlying
contract.
(3) Law governing main or underlying contract is not necessarily the same as law governing
arbitration agreement.
(4) Different form requirements for main or underlying contract and arbitration agreement.
Suppose, for example, that two parties conclude a sale agreement, containing an arbitration clause,
and disputes arise, leading to termination of the contract; thereafter, one party claims damages,
alleging breach of the contract (e.g., because the goods were defective or payment was not made).
Notwithstanding termination of the
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underlying sales contract, the separability presumption provides for the continued validity of the
arbitration agreement, with the arbitral tribunal having jurisdiction to decide claims regarding
termination of the underlying contract; (23) it also provides for the possible application of a different
law to the arbitration agreement (for example, the law of the arbitral seat), than to the underlying
contract.
Similarly, if one party claims that the parties’ underlying contract was procured by fraud (e.g.,
misrepresentations about quality of goods or assets in a sales contract), the separability
presumption provides that this claim does not impeach the validity of the separable arbitration
agreement, and is for resolution by the arbitrators. (24) Conversely, a claim that the parties’
arbitration agreement itself is invalid (for example, because its terms give one party an
unconscionably disproportionate influence on choice of the arbitrators or arbitral procedure) does
not affect the validity of the underlying contract. (25)
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[B] Allocation of Competence to Decide Jurisdictional
Disputes
Related to the arbitrators’ competence-competence is the allocation of competence between
national courts and arbitrators to decide disputes over the interpretation, validity and enforceability
of arbitration agreements. In particular, a critically-important issue is whether, when a jurisdictional
objection is raised, a national court must (or may) initially decide the issue or, alternatively, whether
an arbitral tribunal must (or may) initially decide the jurisdictional objection, subject to subsequent
(or no) judicial review. Different states adopt different approaches to this issue.
[1] France: Prima Facie Jurisdiction
In France, statutory provisions and judicial authority recognize a “prima facie” approach to
challenges to arbitral jurisdiction. If a jurisdictional objection is raised in a French court (e.g., if a
party seeks to litigate a claim allegedly subject to arbitration), the court is required to refer the
parties to arbitration unless the putative arbitration agreement is “manifestly null”; (28) if an arbitral
tribunal has already been constituted, a French court may not even consider whether the arbitration
clause is manifestly null, and must instead simply refer the parties to arbitration – where the
jurisdictional objection may be raised before the tribunal. The arbitrators’ jurisdictional decision is
later subject to de novo review in French courts – but those courts will virtually never initially decide
a jurisdictional objection.
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[2] United States: Interlocutory Judicial Decisions
In the United States, the FAA generally permits interlocutory judicial determination of jurisdictional
objections, with the court making a binding decision on such issues. Thus, if a party seeks to refer a
claim, asserted in litigation, to arbitration, a U.S. court will ordinarily make a final decision whether
or not the claim is subject to a valid arbitration agreement before referring the parties to arbitration.
If a court decides that no valid arbitration agreement exists, or that the agreement does not apply to
the parties’ dispute, then it will not refer the parties to arbitration and will instead allow litigation of
the parties’ dispute to proceed.
The allocation of competence to decide jurisdictional disputes in the United States is significantly
affected by the separability presumption. As discussed above, the separability presumption
provides that an arbitration agreement is separable from the underlying contract and that challenges
to the validity of the underlying contract do not affect or impeach the validity of the contract’s
arbitration clause. (29) As a consequence, where a party challenges the validity of the underlying
contract (e.g., on the grounds that it is void for fraud, unconscionability or mistake), but does not
specifically challenge the validity of the arbitration clause itself, U.S. courts hold that there is no
jurisdictional challenge and that the parties’ dispute over the validity of the underlying contract must
be referred to arbitration.
For example, the U.S. Supreme Court held in Buckeye Check Cashing, Inc. v. Cardegna that
claims challenging the legality of the parties’ underlying contract were for initial resolution by the
arbitrators, “because respondents challenge the [underlying] Agreement, and not specifically its
arbitration provisions, those provisions are enforceable apart from the remainder of the contract,”
and “should therefore be considered by an arbitrator, not a court.” (30) Consistent with this analysis,
U.S. courts have held that claims of invalidity (e.g., based on fraud, unconscionability or mistake),
illegality or termination are for judicial determination only when they are “specifically” directed at the
arbitration agreement itself, and not when they are directed at the underlying contract or generally at
both the underlying contract and the arbitration agreement. (31)
A more difficult category of cases under the FAA involves challenges to the existence (as
distinguished from the validity) of the underlying contract. The Supreme Court noted this issue in
Buckeye Check Cashing, reasoning that: “The issue of the contract’s validity is different from the
issue of whether any agreement between the alleged obligor and obligee was ever concluded.” (32)
The Court referred in particular to lower court decisions holding that “it is for courts to decide
whether the alleged obligor ever signed the contract, whether the signor lacked authority to commit
the alleged principal and whether the signor lacked the mental capacity to assent.” (33) Applying this
analysis, U.S. courts have generally held that, where a party denies
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that any contract was ever concluded, the challenge may be resolved initially by the court and must
not first be referred to arbitration. (34)
The foregoing rules regarding the allocation of competence under the FAA are subject to an
important exception: where parties have agreed to arbitrate jurisdictional disputes. The U.S.
Supreme Court held, in First Options of Chicago, Inc. v. Kaplan, that parties may validly agree to
submit jurisdictional disputes to final resolution by an arbitral tribunal, but that such an agreement
will be found only where there is “clear and unmistakable” evidence that this was the parties’
(35)
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intention. (35) If such an agreement exists, U.S. courts will refer the parties’ jurisdictional objections
to arbitration and (additionally) subject the resulting decision to only minimal judicial review. (36) In
many cases, arbitration agreements incorporating institutional arbitration rules providing for the
arbitrators’ competence-competence will be treated as clear and unmistakable evidence of an
agreement to arbitrate jurisdictional disputes. (37)
[3] UNCITRAL Model Law: Diversity of Approaches
It is uncertain how competence to decide jurisdictional objections is allocated under the UNCITRAL
Model Law. Article 8(1) of the Model Law provides that, where a suit is brought “in a matter which is
the subject of an arbitration agreement,” the national court “shall … refer the parties to arbitration,”
unless “it finds that the agreement is null and void, inoperative, or incapable of being performed.”
The ordinary meaning of this language suggests that the court’s mission under Article 8(1) includes
making a final determination (“find[ing]”) whether or not the agreement is valid. (38)
Despite the language of Article 8, courts in several Model Law jurisdictions have held that only a
“prima facie inquiry” into jurisdiction should be conducted by a court before referring parties to
arbitration. Under this analysis, if there is any plausible argument that a valid arbitration agreement
exists, the arbitrators should be permitted initially to resolve the jurisdictional issue (subject to
subsequent judicial review); only if it is clear that there is no valid arbitration agreement may a court
decline to refer the parties to arbitration and allow the claim be litigated. (39) It is uncertain which
approach to the allocation of jurisdictional competence under the Model Law will ultimately prevail.
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Despite the clarity of this rule, it is uncertain when parties will be found to have selected the law
governing an arbitration agreement. In most cases, parties do not agree upon a choice-of-law
clause specifically applicable to their arbitration agreement (e.g., “This arbitration agreement
(Article X) shall be governed by [Y] law.”), and instead agree only to a general choice-of-law clause,
applicable to their underlying contract (e.g., “This contract shall be governed by [Z] law.”). In these
circumstances, some authorities have held that the parties’ choice-of-law clause does not extend to
the “separable” agreement to arbitrate; other authorities have held that the choice-of-law clause
necessarily or ordinarily extends to all the provisions of the parties’ contract, including its arbitration
agreement. (43)
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The capacity of parties to conclude valid international arbitration agreements is also governed by
separate choice-of-law rules, which differ from those applicable to the substantive (and formal)
validity of such agreements. Article V(1)(a) of the Convention provides that an arbitral award may be
denied recognition if “the parties to the [arbitration agreement] were, under the law applicable to
them, under some incapacity.” Article V(1)(a) has generally been interpreted as requiring
application of the national law of the parties’ domicile or place of incorporation to questions of
capacity. (53)
[3] Nonarbitrability
As discussed below, the New York Convention and most arbitration statutes provide that, in
exceptional cases, an otherwise valid arbitration agreement may be denied enforcement because
the parties’ dispute is “not capable of settlement by arbitration” – i.e., the dispute is “nonarbitrable.”
The law applicable to questions of nonarbitrability is addressed, with respect to recognition of
awards, in Article V(2)(a) of the Convention, which provides that an award need not be recognized
in a Contracting State if “the subject matter of the dispute is not capable of settlement by arbitration
under the law of that country.” The same rule is contained in Article 36(1)(b)(i) of the Model Law.
Most authorities have applied this choice-of-law rule by analogy to the enforcement of arbitration
agreements, holding that a state may apply its own nonarbitrability rules in deciding to refer a
dispute to arbitration. (54)
[4] Non-Signatory Issues
As discussed below, arbitration agreements are sometimes argued to apply to non-signatories
(i.e., parties that did not sign the arbitration agreement, but who are nonetheless bound by it). A
non-signatory may be subject to an arbitration agreement on various legal theories, including alter
ego, agency, succession and estoppel. (55) When one of these grounds is asserted as the basis for
subjecting a non-signatory to an arbitration agreement, choice-of-law issues are raised.
In many instances, the law governing a particular issue (e.g., merger, alter ego status) will be
different from that governing the agreement to arbitrate. For example,
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if A (incorporated in State A) and B (incorporated in State B) agree to arbitrate in State C, the effect
of a merger between A and D (also incorporated in State A) on the parties’ arbitration agreement
will often be subject to the law of State A, and, specifically, State A’s merger legislation; that is true
regardless of the fact that the arbitration agreement is subject to the law of State C (or State B).
Similarly, if A were alleged to be the alter ego or agent of D, the law governing the alter ego or
agency relationship might differ from that governing the validity of the arbitration agreement.
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The positive obligations imposed by an arbitration agreement have their source in that agreement
itself, which is given effect by the New York Convention and national law. In agreeing to arbitrate, the
parties do not merely negatively waive their access to judicial remedies, but also affirmatively agree
to participate in the resolution of their disputes through the arbitral process. This positive obligation
to participate cooperatively in a mutually-established, adjudicative dispute resolution process is
central to the arbitration agreement.
In turn, the New York Convention requires Contracting States to “recognize” agreements by which
parties have undertaken “to submit to arbitration” specified disputes. (57) The parties’ positive
obligation to participate in arbitrating their differences is also given effect by national legal systems,
which parallel and implement the approach taken by the Convention. Thus, Article 7(1) of the
UNCITRAL Model Law defines an arbitration agreement as “an agreement by the parties to submit
to arbitration all or certain disputes,” while Article 8 requires that agreements to arbitrate be
enforced by “refer[ring]” the parties to arbitration. Other arbitration legislation deals similarly with the
positive obligations imposed by an agreement to arbitrate. (58)
[2] Content of Positive Obligation to Arbitrate
The content of the positive obligation to arbitrate is dealt with under the Convention and national
arbitration legislation by giving effect to the parties’ agreement – that is, by requiring “recognition” of
that agreement – rather than by stating a generally-applicable and abstract “obligation to arbitrate.”
This approach to the positive duty to arbitrate is consistent with the contractual character of the
arbitral process. As discussed elsewhere, party autonomy is one of the essential characteristics of
international arbitration. This autonomy, and hence the contents of the positive obligation to
arbitrate, extend to the disputes to be arbitrated, the parties to the arbitration, the constitution of the
arbitral tribunal, the selection of the arbitral seat, the arbitral procedures and the choice of the
applicable law(s). (59)
The positive obligation to participate in the resolution of disputes by arbitration includes duties to
participate in good faith and cooperatively in the arbitral process. An arbitration agreement is not
merely a negative undertaking not to litigate, but a positive obligation to take part in a sui generis
process which requires a substantial degree of cooperation (e.g., in constituting a tribunal, paying
the arbitrators, agreeing upon an arbitral procedure, obeying the arbitral procedure and complying
with the award). When a party agrees to arbitrate, it impliedly agrees to participate cooperatively in
all of these aspects of the arbitral process.
In a few jurisdictions, these obligations are reflected in national arbitration legislation. (60) Even
absent such legislative provisions, national courts have emphasized
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that an arbitration agreement imposes obligations to make use of, and participate cooperatively in,
the arbitral process. For example, it is well settled under English law that there is an implied term in
an agreement to arbitrate that the parties must cooperate in the conduct of the arbitration:
“[T]he obligation is, in my view, mutual: it obliges each party to cooperate with
the other in taking appropriate steps to keep the procedure in the arbitration
moving.… [I]t is in my view a necessary implication from their having agreed that
the arbitrator shall resolve their dispute that both parties, respondent as well as
claimant, are under a mutual obligation to one another to join in applying to the
arbitrator for appropriate directions to put an end to the delay.” (61)
A Swiss Federal Tribunal decision adopted similar conclusions, emphasizing the parties’
obligations of good faith:
The contours of the obligation to participate cooperatively in the arbitral process are not precisely
defined. They have been held to include participating in the constitution of the tribunal, paying the
arbitrators’ fees, cooperating in relation to procedural matters, not obstructing the arbitral process,
obeying confidentiality obligations relating to the arbitration and complying with disclosure requests
and other orders. (63) As with other aspects of the arbitral process, these obligations are the subject
of party autonomy, and can be altered by agreement.
[3] Remedies for Breach of Positive Obligation to Arbitrate
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As noted above, Article II(3) of the New York Convention and Article 8(1) of the UNCITRAL Model
Law provide that, if a valid arbitration agreement exists, courts
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shall “refer the parties to arbitration.” The wording of these provisions indicates an obligation on
national courts affirmatively to direct the parties to proceed with the arbitration of their dispute
(rather than merely an obligation not to permit litigation to proceed). Despite that, virtually none of
the Convention’s Contracting States or Model Law’s adherents enforce arbitration agreements by
way of orders affirmatively directing a party to arbitrate; rather, the consistent approach is to
dismiss or stay (i.e., suspend) litigation brought in breach of an agreement to arbitrate. (64)
The only major exception to this approach is the United States, where the FAA provides for the
issuance of orders compelling arbitration (under §4 and §206 of the FAA). (65) These provisions
empower U.S. courts to grant orders requiring parties to arbitrate pursuant to their arbitration
agreements. In the words of one U.S. lower court, a request under §4 (or §206) “is simply a request
for an order compelling specific performance of part of a contract.” (66)
Pursuant to §§4 and 206 of the FAA, U.S. courts have frequently ordered parties to comply with the
positive obligations under their arbitration agreements. In so doing, they have emphasized that the
issuance of such an order is not a matter of discretion, but a mandatory legal right (guaranteed by
the FAA):
“So long as the parties are bound to arbitrate and the district court has personal
jurisdiction over them, the court is under an unflagging, nondiscretionary duty to
grant a timely motion to compel arbitration and thereby enforce the New York
Convention as provided in Chapter 2 of the FAA, even though the agreement in
question requires arbitration in a distant forum.” (67)
U.S. courts have issued orders compelling arbitration in both arbitrations seated in the United
States and in other states. (68) In contrast, as already noted, most states do not provide for specific
performance of the positive obligations of arbitration agreements. Instead, the mechanism for
enforcing such obligations is through a stay or dismissal of litigation, thereby allowing a party to
commence and proceed with an arbitration, potentially obtaining a default award without its counter-
party’s participation.
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negative obligations. That breach, like other violations of contractual obligations, entitles the non-
breaching party to relief, including specific enforcement through a stay or dismissal of the litigation,
and exposes the breaching party to contractual liability or injunctive and other remedies.
[2] Remedies for Breach of Negative Obligation Not to Litigate Arbitrable
Disputes: Stay or Dismissal of Litigation
As discussed above, some courts historically refused to stay litigation of arbitrable disputes, either
holding that arbitration agreements were revocable or not subject to specific performance. In
contrast, the principal contemporary remedies for breach of an arbitration agreement’s negative
obligation not to litigate arbitrable disputes are either dismissal of the improperly-commenced
litigation or a mandatory stay of that litigation.
As discussed above, Article II(3) of the New York Convention provides for the dismissal or stay of
proceedings in national courts brought in breach of an arbitration agreement. Article II(3) does not
leave courts with any discretion to deny a dismissal or stay of judicial proceedings where an
arbitration agreement is enforceable under the Convention. Rather, Article II(3) mandatorily requires
that national courts “shall” refer parties to arbitration. (75)
Some arbitration legislation expressly provides for a stay of litigation brought in violation of an
arbitration agreement, including in the United States, England, Canada, Singapore and other
common law jurisdictions. (76) In other countries (principally civil law jurisdictions, including France,
Switzerland and Germany), legislation requires courts to decline jurisdiction over arbitrable
disputes. (77) Whether through a stay or a dismissal of litigation, it is the almost uniform practice of
national courts to refuse
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to hear the merits of claims, initiated in litigation, which are properly subject to arbitration. As one
national court put it:
“[The FAA] leaves no room for the exercise of discretion by a district court, but
instead mandates that district courts shall direct the parties to proceed to an
arbitration on issues as to which an arbitration agreement has been signed.” (78)
The imposition of this obligation on courts to order specific performance of the negative duties
imposed by international arbitration agreements, which were historically often not enforceable in
this manner, was one of the central achievements of the New York Convention and modern
arbitration statutes.
As already discussed, the negative effects of an arbitration agreement are almost precisely the
mirror-image of the positive effects of such an agreement. Accordingly, insofar as an arbitral
tribunal is vested with jurisdiction to hear disputes, then national courts must cease to exercise
parallel jurisdiction to decide such disputes (save for their roles in supporting the arbitral process or
reviewing an award). Where one jurisdictional ambit stops (e.g., the court’s), then the other (e.g., the
arbitral tribunal’s) generally begins. (79) There may also be cases where the negative obligation not
to litigate extends more broadly than the scope of arbitrable disputes, to prevent litigations that
obstruct or undermine the arbitral process.
[3] Remedies for Breach of Negative Obligation Not to Litigate Arbitrable
Disputes: Antisuit Injunction
A party’s ability to obtain a stay of litigation is not always sufficient to effectively enforce an
arbitration agreement. That is because a party may be able to pursue litigation of the underlying
dispute in a national court which does not honor, or fully honor, its undertakings in the New York
Convention. In that event, a stay of the underlying litigation in one (or several) national courts, which
do honor the Convention, may ultimately be an ineffective remedy for fully enforcing the arbitration
agreement.
Accordingly, some states permit additional means of enforcement of the negative obligation to
refrain from litigating arbitrable disputes. In particular, courts in some common law jurisdictions are
prepared to issue “antisuit injunctions” to prohibit litigation in a foreign forum. Antisuit orders are
directed against the parties to a litigation (not the foreign court), but are intended to preclude a
litigation from proceeding in the foreign court. (80) In practice, antisuit injunctions can be powerful
tools for compelling compliance with an agreement to arbitrate.
English courts have long been prepared to enjoin foreign litigations brought in violation of an
arbitration agreement. Under English law, an injunction may ordinarily
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be granted against a foreign litigation if: (a) the English forum has a sufficient interest in the matter;
(b) the foreign proceeding causes sufficient prejudice to the applicant; and (c) the antisuit injunction
would not unjustly deprive the claimant in the foreign court of a legitimate advantage. (81) One
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English decision affirmed the existence of this power in emphatic terms, reasoning:
English courts have sometimes given consideration to notions of comity, as justifying the
withholding of an antisuit injunction against parties to a foreign litigation, but nonetheless generally
have been very willing to issue antisuit orders. (83)
Courts of other common law jurisdictions, including in Singapore, Canada, Bermuda, Hong Kong,
South Africa and Australia, have also issued antisuit orders to enforce the negative obligations of
arbitration agreements. (84) The Singapore High Court explained the rationale for these orders as
follows:
“[An antisuit order] is entirely consistent with the principle that parties be made
to abide by their agreement to arbitrate. Furthermore, the New York Convention
obliges state parties to uphold arbitration agreements and awards. Such an
agreement is often contravened by a party commencing an action in its home
courts. Once this Court is satisfied that there is an arbitration agreement, it has
a duty to uphold that agreement and prevent any breach of it.” (85)
U.S. courts have also been prepared to grant antisuit injunctions prohibiting parties from
proceeding with foreign litigation in violation of a valid arbitration agreement, but subject to greater
restrictions than in other common law jurisdictions. Some U.S. courts will grant an antisuit injunction
based upon only a showing of serious inconvenience or risk of inconsistent judgments, (86) while
others are more demanding and require a clear showing that the foreign litigation would threaten the
jurisdiction
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or public policies of the U.S. forum. (87) Even U.S. courts that are otherwise reluctant to issue antisuit
injunctions will sometimes do so where foreign litigation is brought in violation of the parties’
agreement to arbitrate, based on U.S. policies favoring international arbitration:
In contrast to the common law approach, civil law jurisdictions have generally refused to grant
antisuit orders, whether to enforce arbitration agreements or otherwise. (89) In most cases, civil law
courts are not even requested to issue antisuit orders, because it is clear that no such remedy is
available.
[4] Remedies for Breach of Negative Obligation Not to Litigate Arbitrable
Disputes: Damages for Breach of Obligation Not to Litigate
Another means of enforcing the negative effects of an arbitration agreement is damages for
breaches of the undertaking not to litigate disputes that have been submitted to arbitration. Indeed,
in historical contexts when arbitration agreements were not capable of specific performance,
damages were the only remedy for their breach. (90)
It was frequently (and correctly) remarked that damages for breach of an arbitration agreement are
an uncertain and inadequate remedy, because calculating the quantum of damages is speculative.
While inadequate when considered alone, damages for breach of an arbitration agreement can be
an appropriate supplementary means of enforcing arbitration agreements, by increasing the
disincentives for such conduct. A few contemporary judicial decisions in the United States, England
and Switzerland have either awarded damages for the breach of an arbitration agreement or
indicated that the possibility for doing so existed. (91)
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[5] Remedies for Breach of Negative Obligation Not to Litigate Arbitrable
Disputes: Non-Recognition of Judgments
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If a party pursues litigation in breach of a valid arbitration agreement, then the resulting judgment
should not be entitled to recognition. Indeed, it would violate the New York Convention for a
Contracting State to enforce a judgment obtained in breach of a valid agreement to arbitrate, which
is subject to the Convention. Contracting States are committed under Articles II(1) and II(3) of the
Convention to recognize arbitration agreements and to refer parties to such agreements to
arbitration. Where a judgment is obtained in breach of an agreement protected by the Convention, a
Contracting State would violate these commitments by giving effect to that judgment, rather than
ordering the parties to arbitrate their disputes, as Article II requires. A Singapore court explained
this rationale as follows:
“By virtue of [the parties’ agreement, the respondent] had agreed to submit
disputes to arbitration in Singapore upon election by any party and the Plaintiffs
have so elected. In the circumstances it would be manifestly against public
policy to give recognition to the foreign judgment at the behest of the
Defendants who have procured it in breach of an order emanating from this
Court.” (92)
Similarly, Swiss courts have held that they will not recognize foreign judgments that are obtained in
a litigation that violated the Convention. In one decision, the Swiss Federal Tribunal refused to annul
an award on the grounds that it conflicted with a foreign judgment, reasoning that the judgment had
been issued in proceedings conducted in breach of an arbitration agreement:
Other courts have also made it clear that they will not recognize judgments rendered in breach of a
valid arbitration agreement. In particular, both U.S. and English courts have refused to recognize
foreign judgments made in violation of an arbitration agreement. (94)
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8)
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8)
See G. Born, International Commercial Arbitration 339–65 (3d ed. 2021).
9)
A list of the Convention’s parties and their reservations is available at www.uncitral.org.
10)
There is divergent authority on the meaning of Article XIV, including on the question whether it
applies in litigation between private parties. See G. Born, International Commercial Arbitration
369–70 (3d ed. 2021).
11)
See infra pp. 90–91; G. Born, International Commercial Arbitration 255–62 (3d ed. 2021).
12)
See infra pp. 90–91; G. Born, International Commercial Arbitration 259–62 (3d ed. 2021).
13)
Tobey v. County of Bristol, 23 Fed.Cas. 1313, 1321–23 (C.C.D. Mass. 1845) (Story, J.).
14)
See G. Born, International Commercial Arbitration 34–40, 51–54 (3d ed. 2021).
15)
See id. at 62–67.
16)
These grounds for non-recognition are discussed below. See infra pp. 90–100.
17)
See, e.g., Kaverit Steel & Crane Ltd v. Kone Corp., 1992 ABCA 7 (Alberta Ct. App.); Boart
Sweden AB v. Nya Stromnes AB, (1988) 41 BLR 295, ¶4 (Ontario Super. Ct.).
18)
See, e.g., Sandvik AB v. Advent Int’l Corp., 220 F.3d 99 (3d Cir. 2000) (“presumption in favor of
arbitration carries ‘special force’ when international commerce is involved”; “FAA establishes a
strong federal policy in favor of compelling arbitration over litigation”); Deloitte Noraudit AS v.
Deloitte Haskins & Sells, 9 F.3d 1060, 1063 (2d Cir. 1993) (policy in favor of arbitration “is even
stronger in the context of international transactions”); Davis v. Cascade Tanks, LLC, 2014 WL
3695493, at *3 (D. Or.) (“Federal courts recognize ‘the emphatic federal policy in favor of arbitral
dispute resolution,’ a policy that ‘applies with special force in the field of international commerce’”
(quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 631 (U.S. S.Ct.
1985)).
19)
See, e.g., Judgment of 20 December 1993, Municipalité de Khoms El Mergeb v. Dalico, 1994
Rev. Arb. 116 (French Cour de Cassation Civ. 1e); Judgment of 16 October 2003, 2004 ASA Bull.
364 (Swiss Fed. Trib.); Judgment of 16 October 2001, 2002 Rev. Arb. 753 (Swiss Fed. Trib.).
20)
Final Award in ICC Case No. 8938, XXIV Y.B. Comm. Arb. 174, 176 (1999). See G. Born,
International Commercial Arbitration 376 et seq. (3d ed. 2021).
21)
Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 409 (2d Cir. 1959).
22)
See G. Born, International Commercial Arbitration 401–04 (3d ed. 2021).
23)
See, e.g., Sea Master Shipping Inc. v. Arab Bank (Switzerland) Ltd [2018] EWHC 1902, ¶30
(Comm) (English High Ct) (“One aspect of this doctrine of separability is that the agreement may
confer jurisdiction on the arbitrators to determine disputes notwithstanding the termination or even
initial invalidity of the matrix agreement giving rise to the disputes”); Judgment of 29 June 2017, I
ZB 60/16, ¶13 (German Bundesgerichtshof) (insolvency administrator remains bound by arbitration
agreement even where insolvency proceedings result in termination of main contract).
24)
See Prima Paint Corp. v. Flood & Conklin Mfg Co., 388 U.S. 395 (U.S. S.Ct. 1967); S. Jersey
Sanitation Co. v. Applied Underwriters Captive Risk Assur. Co., Inc., 840 F.3d 138, 144–45 (3d
Cir. 2016) (compelling arbitration where allegations of fraud concerned underlying contract); G.
Born, International Commercial Arbitration 432–98 (3d ed. 2021).
25)
See G. Born, International Commercial Arbitration 501–02 (3d ed. 2021).
26)
See, e.g., Fiona Trust & Holding Corp. v. Privalov [2007] 1 All ER (Comm) 891 (English Ct. App.),
aff’d, [2007] UKHL 40 (House of Lords); Judgment of 26 May 1988, 1988 NJW-RR 1526, 1527
(German Bundesgerichtshof); Tomolugen Holdings Ltd v. Silica Inv. Ltd [2016] 1 SLR 373, ¶¶25–
31 (Singapore Ct. App.). See G. Born, International Commercial Arbitration 1152–59, 1169–331
(3d ed. 2021).
27)
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27)
See, e.g., 2021 ICC Rules, Art. 6(5) (“any decision as to the jurisdiction of the arbitral tribunal …
shall be taken by the arbitral tribunal itself”); 2016 SIAC Rules, Art. 28(2); 2021 ICDR Rules, Art.
21(1); 2020 LCIA Rules, Art. 23(1).
28)
French Code of Civil Procedure, Art. 1448(1).
29)
See supra pp. 61–62.
30)
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 446 (U.S. S.Ct. 2006); G. Born,
International Commercial Arbitration 1250–56 (3d ed. 2021).
31)
See G. Born, International Commercial Arbitration 1250–56 (3d ed. 2021).
32)
Buckeye Check Cashing, 546 U.S. at 444, n.1.
33)
Id.
34)
G. Born, International Commercial Arbitration 1269–78 (3d ed. 2021). See also BG Group plc v.
Argentina, 572 U.S. 25 (U.S. S.Ct. 2014); Granite Rock Co. v. Int’l Bhd of Teamsters, 561 U.S.
287, 303–04 (U.S. S.Ct. 2010).
35)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (U.S. S.Ct. 1995).
36)
G. Born, International Commercial Arbitration 1223–26 (3d ed. 2021).
37)
See id. at 1262–66.
38)
Some national courts have adopted this view. See, e.g., Dallah Real Estate v. Ministry of
Religious Affairs, Pakistan, [2010] UKSC 46, ¶104 (U.K. S.Ct.); Judgment of 7 October 2002,
2003 NJW-RR 354 (Bavarian Oberstes Landesgericht); Walter Rau Neusser Öl und Fett AG v.
Cross Pac. Trading Ltd, [2005] FCA 1111 (Australian Fed. Ct.); Yawata Ltd v. Powell, [2000]
D.C.R. 334 (Wellington Dist. Ct.). See also G. Born, International Commercial Arbitration 1170–
201 (3d ed. 2021).
39)
See, e.g., Malini Ventura v. Knight Capital Pte Ltd, [2015] SGHC 225 (Singapore High Ct.); Gulf
Canada Res. Ltd v. Arochem Int’l Ltd, (1992) 66 BCLR2d 113, 114 (B.C. Ct. App.); Shin-Etsu
Chem. Co. v. Aksh Optifibre Ltd, XXXI Y.B. Comm. Arb. 747, 784 (2006) (Indian S.Ct. 2005);
Skandia Int’l Ins. Co. v. Al Amana Ins. & Reins. Co., [1994] Bda LR 30 (Bermuda S.Ct.).
40)
The law governing an arbitration agreement is applicable to the agreement’s: (a) formation; (b)
substantive validity; and (c) interpretation. As discussed below, issues of formal validity,
nonarbitrability and the effects of the arbitration agreement on non-signatories are subject to
different choice-of-law rules.
41)
See G. Born, International Commercial Arbitration 510–22 (3d ed. 2021).
42)
See infra pp. 364–67.
43)
See G. Born, International Commercial Arbitration 553–60 (3d ed. 2021).
44)
See infra pp. 375–94.
45)
See G. Born, International Commercial Arbitration 547–53 (3d ed. 2021).
46)
See id. at 609–16.
47)
See, e.g., Judgment of 20 December 1993, Municipalité de Khoms El Mergeb v. Société Dalico,
1994 Rev. Arb. 116, 117 (French Cour de Cassation Civ. 1e); Judgment of 7 April 2011, 2011
Rev. Arb. 747, 750 (Paris Cour d’Appel).
48)
See, e.g., Escobar v. Celebration Cruise Operator, Inc., 805 F.3d 1279, 1286 (11th Cir. 2015);
Rhone Mediterranee Compagnia Francese di Assicurazioni e Riassicurazioni v. Achille Lauro,
712 F.2d 50 (3d Cir. 1983); Chloe Z Fishing Co. v. Odyssey Re (London) Ltd, 109 F.Supp.2d
1236 (S.D. Cal. 2000).
49)
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49)
See G. Born, International Commercial Arbitration 574–576, 596–600 (3d ed. 2021).
50)
See infra pp. 81–111.
51)
See infra p. 88; G. Born, International Commercial Arbitration 658–60, 704–15 (3d ed. 2021).
52)
See infra pp. 87–88; G. Born, International Commercial Arbitration 661–62, 736–42 (3d ed.
2021).
53)
G. Born, International Commercial Arbitration 666–67, 765–66 (3d ed. 2021).
54)
See id. at 643–46.
55)
See infra pp. 113–18; G. Born, International Commercial Arbitration 1531–99 (3d ed. 2021).
56)
See supra pp. 72–73 and pp. 75–76; G. Born, International Commercial Arbitration 34–50, 677–
78, 1408–09 (3d ed. 2021).
57)
In the words of Article II(1), Contracting States “shall recognize an agreement in writing under which
the parties undertake to submit to arbitration all or any differences.” The premise of Article II(1) is
that the parties’ obligation to arbitrate includes the affirmative duty to accept the submission of their
disputes to arbitration (“undertake to submit”) and to participate cooperatively in arbitral
proceedings to resolve such disputes.
58)
U.S. FAA, 9 U.S.C. §4; English Arbitration Act, 1996, §9; Swiss Law on Private International Law,
Art. 7; Singapore International Arbitration Act, §6; Chinese Arbitration Law, Art. 5; Japanese
Arbitration Law, Art. 14; Indian Arbitration and Conciliation Act, §8. See G. Born, International
Commercial Arbitration 1350–52 (3d ed. 2021).
59)
See infra pp. 136–37, pp. 145–49, pp. 181–82, and pp. 293–303; G. Born, International
Commercial Arbitration 1353–59 (3d ed. 2021).
60)
See, e.g., English Arbitration Act, 1996, §40(1) (“The parties shall do all things necessary for the
proper and expeditious conduct of the arbitral proceedings”); French Code of Civil Procedure, Art.
1464 (“Both parties and arbitrators shall act diligently and in good faith in the conduct of the [arbitral]
proceedings”); Victoria Commercial Arbitration Act, §24B (“(1) The parties must do all things
necessary for the proper and expeditious conduct of the arbitral proceedings. (2) Without limitation,
the parties must – (a) comply without undue delay with any order or direction of the arbitral tribunal
with respect to any procedural, evidentiary or other matter; and (b) take without undue delay any
necessary steps to obtain a decision (if required) of the Court with respect to any function conferred
on the Court under §6. (3) A party must not wilfully do or cause to be done any act to delay or
prevent an award being made.”); Peruvian Arbitration Law, Art. 38 (“The parties are obliged to
observe the good faith principle in all their actions and interventions during the arbitral proceedings
and to cooperate with the arbitral tribunal in the development of the arbitration”).
61)
Bremer Vulkan Schiffbau und Maschinenfabrik v. S. India Shipping Corp. [1981] AC 909, 982–
83, 985 (House of Lords) (emphasis added). See also Wilson & Co. v. Partenreederei Hannah
Blumenthal [1982] 3 WLR 1149, 1160 (House of Lords); Anzen Ltd v. Hermes One Ltd [2016]
UKPC 1, ¶34 (U.K. Privy Council) (“Parties to an agreement to arbitrate are … under mutual
obligations to one another to cooperate in the pursuit of the arbitration”).
62)
Judgment of 10 May 1982, DFT 108 Ia 197, 201 (Swiss Fed. Trib.). See G. Born, International
Commercial Arbitration 1356 (3d ed. 2021).
63)
See G. Born, International Commercial Arbitration 1357–59 (3d ed. 2021).
64)
See id. at 1359–66.
65)
U.S. FAA, 9 U.S.C. §206 (“A court having jurisdiction under this chapter may direct that arbitration
be held in accordance with the agreement at any place therein provided for …”). See G. Born,
International Commercial Arbitration 1361–64 (3d ed. 2021).
66)
Joseph Muller Corp. v. Commonwealth Petrochem., Inc., 334 F.Supp. 1013 (S.D.N.Y. 1971).
67)
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67)
InterGen NV v. Grina, 344 F.3d 134, 142 (1st Cir. 2003).
68)
See G. Born, International Commercial Arbitration 1362, 2273–79 (3d ed. 2021). See Strategic
Asset Group, LLC v. Shabanets, 2018 WL 8131760 (C.D. Cal.) (ordering parties to arbitrate in
Russia); Tierra Verde Escape, LLC v. Brittingham Group, LLC, 2017 WL 3699554 (W.D. Mich.)
(compelling arbitration in Hong Kong under New York Convention); Invista N. Am. Sarl v. Rhodia
Polyamide Intermediates SAS, 503 F.Supp.2d 195, 207 (D.D.C. 2007) (ordering parties to
arbitrate in Switzerland); Sea Bowld Marine Group, LDC v. Oceanfast Pty, Ltd, 432 F.Supp.2d
1305, 1319 (S.D. Fla. 2006) (ordering parties to arbitrate in Australia); Acosta v. Norwegian Cruise
Line, Ltd, 303 F.Supp.2d 1327, 1332 (S.D. Fla. 2003) (ordering parties to arbitrate in the
Philippines).
69)
There are very limited exceptions, involving provisional measures and jurisdictional issues, where
the possibility of concurrent jurisdiction or proceedings in national courts exists. See supra pp. 63–
65 and infra pp. 255–60.
70)
See supra pp. 71–73.
71)
See Answers in Genesis of Ky., Inc. v. Creation Ministries, 556 F.3d 459, 469 (6th Cir. 2009) (“The
language of [Article II(3)] and its statutory incorporation provide for no exceptions. When any party
seeks arbitration, if the agreement falls within the [New York Convention], we must compel the
arbitration unless the agreement is ‘null and void, inoperative, or incapable of being performed.’”);
Tomolugen Holdings Ltd v. Silica Investors Ltd, [2015] SGCA 57, ¶42 (Singapore Ct. App.)
(“When Art II(3) of the New York Convention was formulated in the 1950s, it sought principally to
achieve the limited goal of preventing Contracting States from refusing to recognise the validity of
arbitration agreements”); Hotels.com (U.S.) v. Zuz Tourism Ltd, XXXI Y.B. Comm. Arb. 791, 794–
95 (2006) (Israeli S.Ct.) (“Article II(3) of the Convention states in mandatory language that the court
‘shall … refer’ the parties to arbitration, unless one of the exceptions listed in the section is present.
… [I]f one of the three exceptions mentioned in Article II(3) does not appear, the court is as a rule
required to order a stay of the proceedings.…”); Lonrho Ltd v. Shell Petroleum Co., IV Y.B. Comm.
Arb. 320 (1979) (English High Ct.) (“[T]he effect of §I [of the English Arbitration Act, 1975,
implementing Article II(3)] is to deprive the court of any discretion whether a claim within a non-
domestic arbitration agreement should be arbitrate or litigated.… The Section is mandatory.”).
72)
See, e.g., PetroKazakhstan Inc. v. Lukoil Overseas Kumkol BV, 2005 ABQB 789 (Alberta Q.B.)
(“Courts in this jurisdiction are required not to intervene in matters governed by arbitration:
UNCITRAL Model Law, Article 8(1).”); Dalimpex Ltd v. Janicki, [2003] O.R.3d 737 (Ontario Ct.
App.) (“The wording of article 8 is mandatory”); Tomolugen Holdings Ltd v. Silica Investors Ltd,
[2015] SGCA 57, ¶27 (Singapore Ct. App.). See also G. Born, International Commercial
Arbitration 1369 (3d ed. 2021).
73)
See supra pp. 71–73.
74)
See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (U.S. S.Ct. 1985) (terms of §3 “leave
no place for the exercise of discretion by a district court, but instead … mandate that district courts
shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has
been signed”); Anzen Ltd v. Hermes One Ltd [2016] UKPC 1 (U.K. Privy Council); Sodzawiczny v.
Ruhan [2018] EWHC 1908 (Comm) (English High Ct.); Judgment of 2 October 1931, DFT 57 I
295, 305 (Swiss Fed. Trib.) (“negative effect [of arbitration] is the exclusion of the State courts’
jurisdiction”); G. Born, International Commercial Arbitration 1368–72 (3d ed. 2021).
75)
See supra pp. 72–73; InterGen NV v. Grina, 344 F.3d 134, 141 (1st Cir. 2003) (“Given this regime,
it clearly appears that enforcing arbitration clauses under the New York Convention is an obligation,
not a matter committed to district court discretion”); Hi-Fert Pty Ltd v. Kiukiang Maritime Carriers
Inc., (1998) 86 FCR 374, 393 (Australian Fed. Ct.) (“the Court must stay the proceedings and refer
the parties to arbitration”). See also Dell Computer Corp. v. Union des Consommateurs, [2007] 2
SCR 801, ¶39 (Canadian S.Ct.) (“Article II of the Convention provides that a court of a contracting
state that is seized of an action in a matter covered by an arbitration clause must refer the parties to
arbitration. At present, 142 countries are parties to the Convention. The accession of this many
countries is evidence of a broad consensus in favour of the institution of arbitration.”).
76)
See G. Born, International Commercial Arbitration 1377–79 (3d ed. 2021).
77)
See id. at 1380.
78)
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78)
Danisco AS Denmark v. Novo Nordisk AS, 2003 U.S. Dist. LEXIS 1842 (S.D.N.Y.).
79)
Nonetheless, as discussed below, there are limited circumstances where both arbitral tribunals and
national courts simultaneously possess jurisdiction to consider and decide particular matters (e.g.,
jurisdictional issues, requests for provisional measures). See supra pp. 63–65 and infra pp. 255–
60. In these circumstances, the jurisdiction of the arbitrators does not cease where that of national
courts begins.
80)
See G. Born, International Commercial Arbitration 1392 (3d ed. 2021).
81)
See Airbus Indus. GIE v. Patel [1998] 1 Lloyd’s Rep. 631 (House of Lords).
82)
Aggeliki Charis Compania Maritime SA v. Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd’s
Rep. 87, 96 (English Ct. App.).
83)
World Pride Shipping Ltd v. Daiichi Chuo Kisen Kaisha [1984] 2 Lloyd’s Rep. 489 (English High
Ct.) (“[T]he American court has not yet ruled on the joint motion for continuance [of litigation]…. It
seems to me that in those circumstances it would be much better that the [U.S.] District Court should
itself rule on the motion for continuance and, if it thinks fit, stay all further proceedings on [the
counterclaim] … rather than that I should seek to preempt, and perhaps even seem to dictate the
decision of a foreign Court.”).
84)
See G. Born, International Commercial Arbitration 1395–96 (3d ed. 2021).
85)
WSG Nimbus Pte Ltd v. Board of Control for Cricket in Sri Lanka, [2002] 3 SLR 603, 637
(Singapore High Ct.). See G. Born, International Commercial Arbitration 1395–96 (3d ed. 2021).
86)
See, e.g., E&J Gallo Winery v. Andina Licores SA, 446 F.3d 984 (9th Cir. 2006); Karaha Bodas
Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357 (5th Cir. 2003);
MacPhail v. Oceaneering Int’l, Inc., 302 F.3d 274 (5th Cir. 2002); Kaepa, Inc. v. Achilles Corp., 76
F.3d 624 (5th Cir. 1996).
87)
See, e.g., Goss Int’l Corp. v. Man Roland Druckmaschinen AG, 434 F.3d 1081 (8th Cir.); Quaak v.
Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11 (1st Cir. 2004); WTA Tour, Inc.
v. Super Slam Ltd, 339 F.Supp.3d 390, 402–03 (S.D.N.Y. 2018); BCB Holdings Ltd v. Belize, 232
F.Supp.3d 28, 34 (D.D.C. 2017).
88)
SG Avipro Fin. Ltd v. Cameroon Airlines, 2005 U.S. Dist. LEXIS 11117 (S.D.N.Y.).
89)
G. Petrochilos, Procedural Law in International Arbitration 105 (2004) (“Orders enjoining a party
from continuing with proceedings commenced by that party in another forum (commonly called
‘antisuit injunctions’) are peculiar to Anglo-American common law systems”).
90)
This was the position in much of the United States prior to the FAA. See Red Cross Line v. Atl.
Fruit Co., 264 U.S. 109 (U.S. S.Ct. 1924) (“an agreement to arbitrate was legal in New York and
damages were recoverable for a breach thereof”); Payton v. Hurst Eye, Ear, Nose & Throat Hosp.,
318 S.W.2d 726 (Tex. App. 1958) (under Texas common law, a party “could not compel an
arbitration … and is relegated to a suit for damages for any breach of the arbitration clause”).
91)
See, e.g., Ball v. Versar, Inc., 2006 WL 2568057 (S.D. Ind.); Indosuez Int’l Fin., BV v. Nacional
Reserve Bank, 758 N.Y.S.2d 308 (N.Y. App. Div. 2003); Schiffahrtsgesellschaft Detlev von Appen
GmbH v. Voest Alpine Intertrading GmbH [1997] 2 Lloyd’s Rep. 279 (English Ct. App.); Mantovani
v. Caparelli SpA [1980] 1 Lloyd’s Rep. 375 (English Ct. App.); Judgment of 11 February 2010,
DFT 4A_444/2009 (Swiss Fed. Trib.).
92)
WSG Nimbus Pte Ltd v. Board of Control for Cricket in Sri Lanka, [2002] 3 SLR 603 (Singapore
High Ct.).
93)
Judgment of 19 December 1997, Compañía Minera Condesa SA et Compañía de Minas
Buenaventura SA v. BRGM-Pérou SAS, DFT 124 III 83, 86–87 (Swiss Fed. Trib.).
94)
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94)
See Montebueno Mktg, Inc v. Del Monte Corp.-USA, 570 F.App’x 675 (9th Cir. 2014); CBS Corp.
v. WAK Orient Power & Light Ltd, 168 F.Supp.2d 403, 416 (E.D. Pa. 2001) (“WAK’s expressed
intention to attempt to obtain and register in the courts of the United States of America, without
leave of this court, a foreign judgment arising from a subject matter relating to the arbitral award
would run afoul of this court’s judgment enforcing the Arbitral Award as well as the fundamental
principles undergirding the Convention”); Tracomin SA v. Sudan Oil Seeds [1983] Lloyd’s Rep.
384 (English Ct. App.); Spliethoff’s Bevrachtingskantoor BV v. Bank of China Ltd [2015] EWHC
999, ¶136 (Comm) (English High Ct.) (“Under §32, a foreign judgment arising out of proceedings
brought without agreement and in breach of a jurisdiction or arbitration clause against a party will
not be recognised by the United Kingdom, provided that that party has not counterclaimed or
otherwise submitted to the jurisdiction of the foreign court”).
95)
See G. Born, International Commercial Arbitration 1410–16 (3d ed. 2021).
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