Steps to take when enforcing Arb. Agreement under NY Conv. Art. II (1) and (3):
A—Must first decide whether arbitrability questions are to be decided by cts. or arbitrators
B—What law governs the formation, validity, and legality of the alleged arb. agreement
C—After conflict of laws questions resolved, must consider issues of K formation, validity, and legality under applicable law
1. What is the Issue?
2. What law applies?
3. Who decides?
4. Is it valid? [Answer]
What Issue?
Existence
Validity
Scope
What Law?
— party autonomy
–choice of law
— fed / state issues
— mandatory rules
Who Decides?
What Results?
Questions Prof. told us to think about for each case:
1. Who has authority to decide on the formation of underlying K? (Arbitrators)
2. Who has the authority to decide on the formation of the arbitration agreement? (Cts.—F.A.A Chapters One and Two)
3. What is the meaning of First Options requirement of “clear and unmistakable evidence” that the parties meant to create a binding arb. agreement?
4. Which law applies to the question of the formation of the arb. agreement?
5. What standard of pr
h of the legal requirements relating to the content and form of arb. Agreements
WHO SHOULD HAVE THE AUTHORITY TO DECIDE WHETHER A PARTY ENTERED INTO AN ARB. AGREEMENT (Existence), AND IF SO WHETHER THE ARB. AGREEMENT IS VALID (Validity)?
Existence:
· Elements of formation of an arb. agreement
· Must be proved by plaintiff
· Generally K formation law
–so in the United States—offer, acceptance, and consideration (look at it in terms of the “bargain”
Validity:
· Affirmative Defenses such as: fraud, duress, mistake, illegality, unconscionability, incapacity, public policy
· Pled and proved by defendant
**Most international arb. rules & laws say that the arbitrator has the authority to decide it’s own jurisdiction, so they can decide questions of both existence and validity (see Competence-Competence below for examples)
**U.S. view is that Existence & Validity are primarily questions for the court (Prima Paint combined w/ First Options); so even if arbitrator decides, ct. will review de novo
**Place where U.S. & Intl. Rules meet is:
