Securing Harmonized Effects of Arbitration Agreements under the New York Convention

Abstract

I. INTRODUCTORY REMARKS A. The Role and the Interpretation of Article H of the New York Convention 1. The Interpretive Concerns Regarding Article H of the New York Convention B. The Importance of a Single Harmonized Interpretation of Article H 1. Diverging National Interpretations 2. Why a Single Harmonized Approach Is Desirable C. Ensuring a Truly International Duty of Referral to Arbitration II. THE DOCTRINAL FRAMEWORK A. The Purpose of a Readily Enforceable International Arbitration Agreement 1. Avoiding Domestic Courts 2. Avoiding Dilatory Tactics 3. The Most Common Dilatory Techniques B. The Effects of the Arbitration Agreement 1. Positive Effects Under the New York Convention 2. Positive Effects Under the UNCITRAL Model Law and the UNCITRAL Arbitration Rules 3. Negative Effects Under the New York Convention 4. Negative Effects Under the Model Law III. COURT REFERRAL TO ARBITRATION A. Is the Duty of Referral a Uniform Mandatory Rule? 1. The Dangers Associated With the Use of Domestic Procedural Devices 2. The Obligation to Refer the Parties to Arbitration B. Court Referral to Arbitration: Conditions of Referral to Arbitration 1. The Law Applicable to the Validity of the Arbitration Agreement 2. The Principle of Autonomy of the Arbitration Agreement 3. Request of a Party C. The Relationship Between Article H and the Applicable Municipal Laws 1. The Importance of Letting the Arbitrators Decide First IV. THE CASE LAW APPROACH A. France 1. The Duty of Referral Under the French Code of Civil Procedure 2. The Relationship Between Article H of the New York Convention and Article 1458 of the French Code of Civil Procedure 3. The Prima Facie Standard of Review B. The French Liberal Approach to the Issue of Substantive Validity 1. The Hecht Decision 2. The Dalico Decision 3. The Bomar Oil Saga C. The United States 1. The U.S. Supreme Court's Pro-Enforcement Bias 2. The Scherk Decision 3. The Mitsubishi Decision 4. The Preconditions for Referral Under the Ledee v. Ceramiche Ragno Doctrine D. The U.S. Judicial Scrutiny on the Validity of International Arbitration Agreements: The Applicable Provisions 1. Federal Law v. State Contract Law 2. The Federalist Approach 3. The State Contract Law Approach: The First Options Standard of Review E. Italy 1. Referral to Arbitration in the Italian Legal System 2. The Strict Standard of Review of Italian Courts: Form Over Substance 3. The Strange Case of Krauss Maffei v. Bristol Myers Squibb V. SECURING THE EFFECTS OF ARBITRATION AGREEMENTS UNDER THE NYC: THE PROPOSED HARMONIZED SOLUTION A. A Comparison of the Different Standards of Enforcement: Advantages and Shortcomings 1. Summary of the U.S. Approach 2. Summary of the French Approach 3. Summary of the Italian Approach B. The French Prima Facie Standard of Review as the Best Harmonized Solution 1. The Obstacles to an Amendment of Article H of the New York Convention 2. The Advantages of the French Interpretive Method C. The Suggested Interpretive Solution: Judicial Review of Arbitration Agreements at the Final Stage Only VI. CONCLUSIONS I. INTRODUCTORY REMARKS A. …