Interpretation of Article V of the New York Convention in the Eleventh Circuit: <i>Industrial Risk Insurers</i>

The widespread use and growing preference for international arbitration over cross-border litigation is primarily due to the existence of a clear and straightforward regime for the enforcement of arbitration agreements and awards. Even though this was not always the case, through the appearance of the New York Convention and the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Arbitration, the treatment and acceptance of international arbitration in different legal regimes has undergone a harmonization process which has served to develop consistency. That harmonization process, however, has not been completed. Several jurisdictions, even within their own borders, apply and interpret the New York Convention differently.

One example of those jurisdictions is the United States, where federalism allows that federal law be applied in a non-consistent manner by different federal circuit courts of appeals. In particular, this Article analyzes the persistent notion developed by the United States Court of Appeals for the Eleventh Circuit, which has held and confirmed that the grounds for annulment of a foreign arbitral award—or awards with a foreign component—are those listed in the New York Convention and not those contemplated by federal law. The case, Industrial Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, represents a divorce from longstanding precedent from other circuit courts of appeals, which have correctly and repeatedly held that the grounds for refusing enforcement of an award found in the New York Convention cannot be considered as grounds for annulment.