New York Convention Roadshow in Washington DC, United States of America

Report written by Marike Paulsson

On 19 August 2016, ICCA collaborated on a New York Convention-themed event with the NAFTA 2022 Committee. The collaboration was at the initiative of Carolyn Lamm, member of both ICCA’s Judiciary Committee and the NAFTA 2022 Committee.  As part of the NAFTA 2022 Committee’s Washington program, ICCA organized sessions about judicial application of the New York Convention, treaty interpretation and compliance by national courts, the Pemex decision recently rendered by the 2nd Circuit and how to properly conduct judicial trainings.

The organizing committee consisted of Carolyn Lamm (ICCA/NAFTA) Michael Coffee (US Co-chair NAFTA 2022 Committee) and Marike Paulsson (ICCA Judiciary Committee and University of Miami School of Law’s International Arbitration Institute ), who spoke during the sessions, and were joined by Erica Stein of Dechert LLP. The event was attended by the co-chairs and members of the NAFTA 2022 Committee, Judge (ret) Ted B. Borek, Georgetown’s adjunct professor Mark Kantor and representatives of ICCA including Francisco Gonzalez de Cossio (member of the 2022 NAFTA Committee and ICCA’s NYC Latin America Committee).

Like ICCA, the NAFTA 2022 Committee aims to promote judicial training. With recent decisions such as Commissa v Pemex by the US 2ndCircuit (enforcing an award that had been annulled in Mexico), a dialogue amongst Mexican and American arbitration and international law specialists is important to revisit both the notion of international comity and also the role of the courts as envisaged by the drafters of the New York Convention.

The Dialogue in Washington

Part I of the program focused on ICCA’s work on promoting a harmonized attitude towards the worldwide application of the 1958 New York Convention. Marike Paulsson engaged with the representatives of Canada, Mexico and the US about successful formats for judicial training and how to persuade judges to rely on proper methods of treaty interpretation. In discussing proper treaty interpretation and treaty compliance, Paulsson shared with the audience the Paulsson Snail Diagram, a simple visual aid breaking down the treaty sources of interpretation provided for in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The session also addressed the question of how judges can ensure that their governments comply with their obligations under the New York Convention: by construing treaty provisions on the basis of an assumption that Congress aims to comply with obligations under international law -- a doctrine developed by justice Marshall in a 1804 decision by the US Supreme Court in Murray v Schooner. This theory was dubbed by Paulsson, the Charming Betsy Alignment.

The audience agreed that more judicial training was necessary to persuade judges of their essential role in contributing to treaty compliance and a successful and harmonized application of the New York Convention.

Part III of the program highlighted two core Articles of the New York Convention: Article II (the recognition of the arbitration agreement), and Article V (the grounds for refusal of the enforcement of awards). The first was discussed by Erica Stein and the latter by Marike Paulsson.

In addition to future judicial dialogues in Mexico, Canada and the US as a joint endeavor of ICCA’s Judiciary Committee and the NAFTA 2022 Committee, the group agreed that perhaps resolutions should be designed suggesting ways in which US landmark cases could be relevant in the international realm.

ICCA will follow up with another judicial dialogue in Washington DC in the spring, with members of the judiciary hoping that it will not only spearhead discussions about the US approach to the New York Convention but also the use of ICCA’s Virtual Forum as an endeavor to connect judges worldwide: an essential step towards harmonization of the New York Convention worldwide.