The Federal Arbitration Act and New York Convention solidified U.S. law on arbitration and have together been read by the courts to result in a strong federal policy in favor of arbitration. Party autonomy to choose a court for resolution of a private dispute came later in the United States, but now receives similar deference in the courts, largely as a result of the 1972 Supreme Court decision in Bremen v. Zapata. What began as a body of federal common law on the recognition and enforcement of foreign judgments now is found in state statutes and common law which, while uniform on the surface, is fragmented in its application. The recognition and enforcement of both choice of court agreements and the resulting judgments would receive treatment similar to that for arbitral afreements and awards if teh United States were to ratify and implement the 2005 Hague Convention on Choice of Court Agreements. But political disagreements are preventing the U.S. from becoming a party to that Convention, despite widespread agreement that implementation of its rules would be good for U.S. constituencies.
This paper presents and compares the current framework for enforcement of choice of forum agreements and the resulting decisions in both the arbitration and litigation contexts. In doing so, it considers the similaritues and differences in the New York and Hague Conventions that should be considered when choosing a forum in international commercial contracts. It then considers the decisions (of a political as well as legal nature) that must be made by states upon entry into either of these treaty systems - particularly in the form of available declarations. Finally, it considers how the current political environment is affecting private international law development and the implications that process may have for the future.
Ronald A. Brand, Arbitration or Litigation? Private Choice as a Political Matter, 8 Y.B. Arb. & Mediation 20 (2016).