The U.S. Court of Appeals for the Second Circuit and other circuit courts have held that the defenses of lack of personal jurisdiction and forum non conveniens can be asserted in actions to enforce international arbitration awards governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Frontera Resources Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393 (2d Cir. 2009) (personal jurisdiction); Monegasque De Reasurrances v. Nak Naftogaz of Ukraine, 311 F.3d 488 (2d Cir. 2002) (forum non conveniens).
In an earlier article in this column (“Enforcing Foreign Arbitral Awards: Should Jurisdictional Defenses Apply?” NYLJ, Feb. 6, 2015), I argued that, as a matter of principle, there is no good reason these jurisdictional obstacles should apply in an action to confirm a foreign arbitral award when they do not apply in the analogous context of an action to enforce a foreign judgment. Abu Dhabi Commercial Bank v. Saad Trading, 117 A.D.3d 609 (1st Dept. 2014) (in action to enforce a foreign judgment in New York it is not necessary to establish personal jurisdiction over the judgment debtor and defense of forum non conveniens is inapplicable). In this article, I put aside the issue of principle and focus, instead, on practice: how to avoid the jurisdictional obstacles to the enforcement of foreign arbitral awards.
