Originally from:
The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
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Production of Evidence for Use in Foreign Tribunals
Lawrence W. Newman and Michael Burrows
In the case of Robert R. Cooper v. Ateliers de la Motobecane, the New York
Court of Appeals, by a vote of 4 to 3, vacated a pre-award attachment
obtained in New York as security for an arbitral award to be rendered in
Switzerland. The court came to its decision by concluding that the United
Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the so-called “New York Convention”) did not permit
the granting of such provisional remedies as prejudgment attachments in
international arbitration.
In the chapter on “Attachment in Aid of Arbitration” we criticized the
then recently decided case and noted that, as a result of the Cooper case,
there was a need to “clearly establish the right of parties in international
arbitration to seek provisional remedies such as attachment in aid of
arbitration in United States courts.” On January 1, 1986, the New York
State Legislature amended section 7502 of the C.P.L.R. by expressly providing for the granting of
prejudgment attachments and injunctions in arbitrations. In so doing, the
Legislature overruled the Cooper case and placed New York on an equal
footing with such countries as Australia, Israel, Japan, Italy, West Germany,
Austria, East Germany, Nigeria, Kuwait, Sweden and Switzerland, all of
which grant provisional remedies in aid of arbitration.
Background
As far back as 1944, the Second Circuit Court of Appeals in Murray Oil
Products Co. v. Mitsui & Co., held that attachments in aid of arbitration were
permitted under the Federal Arbitration Act (“FAA”). The court held that,
although the Act substituted arbitrations for trials as the method of
resolving disputes, it did not deprive parties of their rights to provisional
remedies.
In coming to the conclusion that it did, the Second Circuit extended to
non-maritime parties a right which the Act itself expressly extended to
maritime parties. Section 8 of the Act states that, in any proceeding begun
by a libel in admiralty, the aggrieved party has the right to seize the other
party’s property accordinreg to the usual course of admiralty proceedings.
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
