Professor S.I. Strong (University of Missouri School of Law) has published “What Constitutes an ‘Agreement in Writing’ in International Commercial Arbitration? Conflicts Between the New York Convention and the Federal Arbitration Act,” 48 Stanford Journal of International Law 47 (2012).
The abstract is:
This Article investigates whether and to what extent a party must produce
an “agreement in writing” when seeking to enforce an international
arbitration agreement or award in a U.S. federal court. This issue has
recently given rise to both a circuit split and a petition for certiorari to the
U.S. Supreme Court, and involves matters of formal validity as well as federal
subject matter jurisdiction. The problem arises out of subtle differences in the
way an “agreement in writing” is defined in the Federal Arbitration Act
(FAA) and the 1958 United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York Convention).
This is not just a U.S. problem, however. Questions relating to form
requirements under the New York Convention have also been much discussed
at the international level, with UNCITRAL recently issuing a formal
recommendation on how to deal with the problem.
This Article describes the scope of the current problems associated with
form requirements, including how inconsistencies in domestic practice affect
international commercial arbitration and global trade. After discussing the
difficulties in both the U.S. and the international sphere, the Article makes a
number of suggestions for legislative and judicial reform. This is the first
article to discuss the circuit split and associated issues in the context of the
FAA and to take a serious comparative look at the implementation of the
UNCITRAL recommendation at the international level.