Enforcing Foreign Arbitral Awards in the United States: The Non-Arbitrable Subject Matter Defense

The NewYork Convention has had a considerable impact on attitudes toward international arbitration in the United States. This is particularly true with respect to the non-arbitrable subject matter defense, which provides that certain types of disputes are inappropriate for arbitration and are subject to the exclusive jurisdiction of the courts. Prior to 1970, U.S. courts' skepticism about arbitration often was manifested by a reluctance to stay litigation in favor of an arbitration agreement in a wide range of disputes, including federal securities law and antitrust. With the United States' accession to the New York Convention, U.S. courts increasingly began to accept arbitration as a means for resolving disputes and have continued to limit the scope of the non-arbitrable subject matter defense in cases seeking to resist enforcement of a foreign arbitral award.