Non-domestic arbitral awards under the 1958 New York Convention

Abstract

the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 19581 (‘the New York Convention’) applies to the recognition and enforcement of arbitral awards made in the territory of another State.2 To this territorial criterion for a foreign arbitral award, there is added the following criterion: ‘It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.’3 The latter criterion of non-domestic arbitral awards was considered by the US Court of Appeals for the Second Circuit in the case Bergesen v. Joseph Muller Corp.4 The Court held that an award made in the State of New York between two foreign parties may be considered a non-domestic award within the meaning of the New York Convention and its United States implementing legislation.5 The decision of the Court of Appeals has been received favourably by commentators in the United States.6 The decision can indeed be regarded as a confirmation of the favourable attitude of the American courts towards international arbitration. It may, however, be questioned whether the Court of Appeals went too far. Is an arbitral award made in the United States a non-domestic award within the meaning of the New York Convention for the simple reason that both parties are foreign?