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Attachments in Aid of International Arbitration - The American Position

NCJ Number
Arbitration International Volume: 1 Issue: 1 Dated: (April 1985) Pages: 40-48
J D Becker
Date Published
9 pages
After examining the remedy of attachment as applied in New York State, this article critically examines the prohibition of this remedy under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Article II(3) of the convention provides that a court of a contracting State, when seized of an action involving a written arbitration agreement, 'shall at the request of one of the parties, refer the parties to arbitration.' American courts, including the New York Supreme Court, have interpreted the obligation to 'refer' as an implicit prohibition of the power to grant provisional orders of attachment in aid of arbitration agreements falling under the convention. An analysis of the New York court's reasoning in this prohibition suggests the prohibition is unwarranted. It is argued that while voluntary compliance with arbitral awards is the rule, in some cases there is need for the security provided by attachment. Further, other security devices are rarely available; and while the convention does make provision for requiring security of a party opposing the award, this is left to the discretion of the court. In addition, many States with commercial interests are not party to the convention, nor is attachment incompatible with standards for international arbitration. Finally, the Federal Arbitration Act specifically provides for attaching a promisor's property in the face of an arbitration clause. 39 footnotes.