Caught Between the FAA and the New York Convention: Non-Signatories to International Commercial Arbitration Agreements and the ‘In Writing’ Requirement

Abstract

The article critically examines the 2018 decision of the United States Court of Appeals for the Eleventh Circuit in Outokumpu Stainless USA, LLC, et al. v. GE Energy Power Conversion France SAS, Corp. The decision was recently granted Writ of Certiorari by the United States Supreme Court. The question before the Supreme Court concerns the enforcement of international commercial arbitration agreements in the United States, and in particular whether individuals or entities that have not signed an arbitration agreement nonetheless have a right, or an obligation, to arbitrate under it. I examine this question from both a domestic and an international perspective. First, I provide a detailed review of previous conflicting U.S. federal Courts’ decisions on this question and analyze the Eleventh Circuit’s decision in light of the split among the Circuits. Next, I examine the Eleventh Circuit’s decision in the context of the law and practice of international commercial arbitration. I conclude that should the United States wish to preserve its international reputation as a ‘pro-arbitration’ jurisdiction, the Supreme Court ought to reverse the Eleventh Circuit’s decision and settle this controversial issue in favor of international commercial arbitration. To do so would be in line with both the majority of U.S. Courts of Appeals’ jurisprudence and with the internationally recognized liberal approach to the enforcement of arbitration agreements.

Keywords: international arbitration, New York Convention, non-signatories

JEL Classification: K33, K39