A Primer for Enforcement in the U.S. of Foreign-Issued Arbitration Awards
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In CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 2017 U.S. App. LEXIS 3815 (2d Cir. Mar. 2, 2017), the U.S. Court of Appeals for the Second Circuit provides something of a primer regarding enforcement in the United States of a foreign-issued arbitral award, which is subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and Chapter 2 of the Federal Arbitration Act (“FAA”). In an effort to clear up confusion, the court (i) defined several pertinent terms and explained their significance, (ii) urged practitioners and judges to use consistent terminology, (iii) examined when a district court sits in primary jurisdiction versus in secondary jurisdiction, (iv) explained the differences between a non-domestic arbitral award and a foreign arbitral award, and (v) described the treatment of each when brought to a U.S. district court for enforcement.
The court’s principal teaching was that in order to enforce an award that was issued (or “made”) outside the U.S. — i.e., a foreign arbitral award — in a U.S. court, the award-creditor need not commence a proceeding to confirm the award. Indeed, the word “confirm,” as used in FAA § 207, is a misnomer when referring to a foreign arbitral award: “Section 207 uses the term ‘confirm’ to describe the process by which a district court acts under its secondary jurisdiction to recognize and enforce a foreign arbitral award,” but “the proper term for the single-step process in which a federal district court engages when it sits in secondary jurisdiction over a foreign arbitral award is ‘Enforcement,’. . . .”
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