In fact, as the Second Circuit noted, Chapter 2 of the FAA uses the word “confirm,” allowing a party to an arbitration to apply for “an order confirming the award.” 9 U.S.C. § 207 (emphasis added). And in the same section, the FAA also refers to “recognition” and “enforcement” of awards.

Subject to FAA ch. 2 because (1) it was “made within the legal framework of another country, e.g., pronounced in accordance with foreign law[,]”; or (2) if decided under the laws of the U.S., it [a] involves entities that are not U.S. citizens; [b] involves “property located abroad; [c] envisages performance or enforcement abroad; or [d] has some other reasonable relation with one or more foreign states” Primary Action for confirmation under 9 U.S.C. §207. “The process by which a nondomestic arbitral award is reduced to a judgment of the court by a federal court under its primary jurisdiction is called “confirmation.”

al arbitrations often raise defenses to award enforcement before our courts, those efforts rarely succeed.The Federal Arbitration Act sets forth grounds for setting aside an arbitration award (see 9 U.S.C. 10) and often governs disputes arbitrated in the United States. Those include:where the award was procured by corruption, fraud, or undue means;where there was evident partiality or corruption in the arbitrators, or either of them;where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; orwhere the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.For international awards, the New York Convention, a treaty ratified by over 150 countries and incorporated into the FAA at 9 U.S.C 207 , sets forth the following grounds for vacatur:the parties were under some incapacity or the arbitration agreement was invalid under the law of the country where it was madethe party against whom the award is invoke was not given proper notice of the proceedings or otherwise unable to present its casethe award deals with a dispute that is beyond the scope of the parties agreement to arbitratethe composition of the tribunal or arbitral procedure was not in accordance with the parties’ agreementThe award has not yet become binding on the parties, or has been set aside or suspended by a competent authorityThe subject matter of the difference is not capable of settlement by arbitration under the law of that country; orThe recognition or enforcement of the award would be contrary to the public policy of that country.The Eleventh Circuit analyzed the contractor’s arguments under both the FAA and the New York Convention and concluded that the contractor “presented nothing that comes near the

Preliminarily, given the international elements of the dispute, the Appellate Division noted that the parties agreed that the enforcement of the arbitration award is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 (generally known as “the New York Convention”), and by the U.S. Federal Arbitration Act (“FAA”). Indeed, the parties agreed that because the awards were rendered in the United Sates, the provisions of Chapter 1 of the FAA (9 U.S.C. § 208) govern whether the awards may be set aside or vacated, but the Appellate Division also found that the “[New York] Convention [art V, §§ 1, 2] and the FAA [9 U.S.C. § 207] mandate […] that a court ‘shall confirm [an arbitral] award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.’” The specified grounds for refusal or deferral of recognition alleged by NutraSweet were that the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter was not made (citing to 9 U.S.C. § 10(a)(4)), and the “implied ground of manifest disregard of the law.”

The petitioner in Kamhi sought confirmation of an arbitration award issued by a Swiss tribunal in February 2017. (We note that the Second Circuit indicated in de Gusa thatan application to a U.S. court by a party in effect seeking enforcement of a foreign arbitral award is a petition for “enforcement,” rather than for “confirmation, even if Section 207 of the FAA (9 U.S.C. § 207) uses the word “confirm” and its variants rather than enforcement. That is because the U.S. court would be sitting with secondary jurisdiction, and confirmation can only be granted by a court with primary jurisdiction over an award.)

The certainty that comes from final arbitral awards is a feature of arbitration that clients, particularly those that engage in international commercial transactions, should consider in drafting dispute resolution clauses in their agreements. The relative unlikelihood that a U.S. court would vacate an arbitral award provides enhanced certainty to the parties, as compared to court decisions, which are more likely to be modified on appeal.1See Bayer Cropscience AG v. Dow Agrosciences LLC, Case No. 2:12-cv-00047 (E.D. Va.).2 9 U.S.C. § 10(a) (2016).3United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987).4 9 U.S.C. § 207 (2016).5 United Nations Conference on International Commercial Arbitration, Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. V, June 10, 1958, 330 U.N.T.S. 38.

The Federal Arbitration Act (the “FAA”) provides, in the chapter implementing the New York Convention, that a court “shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified” in the New York Convention. 9 U.S.C. § 207 (emphasis added). The defense of forum non conveniens, as it is understood in the U.S., is not among the seven grounds provided in the New York Convention.

The Solicitor General noted that, in an amicus brief submitted in Figueiredo, the United States took the position that the doctrine of forum non conveniens is a rule of procedure that may properly be considered as a ground for dismissal under the materially identical Inter-American Convention on International Commercial Arbitration (the “Panama Convention”). Id. at 11 n.2.[21] 9 U.S.C. § 207.[22] Rest. Int’l Comm. Arb. § 4-29(a) (Tentative Draft No. 3, 2013); see alsoFigueiredo, 665 F.3d at 398 (Lynch, J., dissenting) (citing the 2010 draft of the Restatement).[23]See U.S. Amicus Br. at 11 (No. 15-830).[24]Id.; BCB Holdings, 650 Fed. Appx. at 19; Newco, 650 Fed. Appx. at 16.

The principles apply generally to such transactions as well as foreign arbitration awards subject to the New York Convention. See 9 U.S.C. §207.[2] A fifth ground, that the award evinced “manifest disregard of the law” has long been accepted as part of the common law of arbitration.

The bases for which a court may refuse to enforce a foreign arbitral award are similarly narrow. See 9 USC §207; Convention on the Recognition and Enforcement of Foreign Arbitral Awards art 5, entered into force for U.S. Dec. 29, 1970, 21 UST 2517, 330 UNTS 38. Appealability (or the lack thereof) may be precisely why parties to license agreements choose litigation over arbitration or vice versa.