US 1002

US No. 1002, OJSC Ukrnafta v. Carpatsky Petroleum Corporation, United States Court of Appeals, Fifth Circuit, No. 19-20011, 6 April 2020

The Court of Appeals explained that as a court of secondary jurisdiction, it had a limited scope of review and could only deny enforcement on the grounds listed in Art. V of the 1958 New York Convention, which were to be construed narrowly and did not include a review of the merits. On the facts of the case, it found that there was a valid agreement for SCC arbitration in an amendment to the original contract (which had contained a different arbitration clause) because the person who signed the amendment had the necessary capacity; and that there had been no violation of due process because the SCC arbitration had complied with the basic safeguards which constituted due process in the United States. Further, confirmation of the award would not violate the public policy interest in international comity by disrespecting the decision of the Ukrainian courts, which had held that the contractual amendment was invalid; there would be no such violation because the Court, as a court of secondary jurisdiction under the New York Convention, would not apply US law in another country or resolve whether the award would be enforced in Ukraine or satisfied with assets located in Ukraine. Comity concerns were also counterbalanced by the “emphatic” US policy favoring international arbitration. 

Yearbook Commercial Arbitration, S. W. Schill (ed.), Vol. XLV (2020)

United States of America

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Topics in US 1002
¶301 » Procedure for enforcement in general
¶303 » Estoppel/waiver
¶501 » Grounds are exhaustive
¶502 » No re-examination of the merits of the arbitral award
¶502 » No re-examination of the merits of the arbitral award
¶505 » Incapacity of party
¶508 » Ground b: Violation of due process in general
¶511 » “Otherwise unable to present his case”
¶511 » “Otherwise unable to present his case”
¶512 » Ground c: Excess by arbitrator of his authority - Excess of authority
¶513 » Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
¶516 » “Set aside”
¶518 » Paragraph 2 - Distinction domestic–international public policy
¶524 » Other cases

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