25 Id. at 729 (citing Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 (1991)).26Id. at 730.27Id.28Id. (citing Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220 (1987)).29Id. (citing Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974)).30Id.31Id. at 732.32Boilermakers Loc. 154 Ret. Fund v. Chevron Corp., 73 A.3d 934, 954 (Del.
See id., art. V; Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974) (“The goal of the [New York] Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.”).
Passed by Congress in 1924, the Act reversed more than a century of American common law reflecting traditional English hostility to arbitration agreements, which were considered unenforceable attempts to divest the courts of their jurisdiction. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 510-11 & n. 4 (1974). The Congressional report accompanying the Act explained that English courts, jealous of their jurisdiction, “refused to enforce specific agreements to arbitrate,” and that this “jealously survived for so long a period that the principle became firmly embedded in the English common law and was adopted with it by the American courts.”
The treaty requires that courts of contracting states to give effect to private agreements to arbitrate as well as recognize and enforce arbitration awards rendered in other contracting states. As the U.S. Supreme Court noted in Scherk v. Alberto-Culver, 417 U.S. 506, 520 n.15 (1973): The goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries. (emphasis supplied) In addition, while one of its aims is to prevent signatories from discriminating against foreign and non-domestic arbitral awards, the New York Convention provides an alternative means (which is many times much more effective) to resolve international disputes.
Thus, any arbitration provision that requires disputes to be arbitrated in a particular state, or arbitrated under a particular state’s law, will continue to be strongly enforced by federal courts notwithstanding the Supreme Court’s analysis here. SeeScherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974); see also American Arbitration Association, Construction Industry Arbitration Rules, R-12 (“When the parties’ arbitration agreement requires a specific locale, … the locale shall be that specified in the agreement.”).Federal versus state litigation.
And no matter what the Atlantic Marine court decides, contracts that require disputes to be arbitrated in a particular state, or arbitrated under a particular state’s law, will continue to be strongly enforced. Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974); see also American Arbitration Association, Construction Industry Arbitration Rules, R-12 (“When the parties’ arbitration agreement requires a specific locale, … the locale shall be that specified in the agreement …. When the parties’ arbitration agreement is silent with respect to locale, … the locale shall be the city nearest to the site of the project in dispute.”). Thus, the shift—or, depending on one’s vantage point, the solidification—of the balance of interests in the construction industry potentially brought about by Atlantic Marine must be tempered by the reality that a large percentage of disputes will never make it into a courtroom in the first place.