In ratifying the Convention on Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, 21 U.S.T. 2517 (1970), the United States reserved the right to apply the Convention, on the basis of reciprocity, to the recognition and enforcement of only those awards made in the territory of another Contracting State.
Foreign arbitral awards not falling under the Convention on Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 … are generally enforceable in the United States in the same manner as foreign judgments whether or not they have been judicially confirmed in the state where made
Facts: “By stipulation dated as recently as April 26, 2001 …, the Jungs agreed to withdraw their objections to probate of the 1993 Will if the Liechtenstein Arbitration "determined, for any reason, that the 1992 By-Laws are valid." … after the decision was rendered in the Liechtenstein Arbitration - Alice Jung and Jaroslav Jung (each) withdrew their objections to probate» (245).
Case: “1. Liechtenstein Arbitration
Defendants argue that 'collateral estoppel precludes Plaintiffs from relitigating the factual predicate for their claims here when [the Liechtenstein Arbitration] conclusively determined the same issues adversely to Plaintiffs.' … In response, Plaintiffs argue that "the Convention [on Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 …) ('Convention')] governs this dispute and, because Liechtenstein is not a signatory, bars all recognition of the Liechtenstein arbitration decision.' …
Ratified by the United States in 1970, see 9 U.S.C. § 201, the Convention governs 'the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought.' … In ratifying the Convention, the United States reserved the right to 'apply the Convention, on the basis of reciprocity, to the recognition and enforcement of only those awards made in the territory of another Contracting State.' …. Plaintiffs argue that this reciprocity reservation 'bars all recognition of the Liechtenstein arbitration decision.'…
The reciprocity provision of the Convention signifies that the United States will recognize and enforce pursuant to the Convention 'only arbitral awards made in nations that also adhere to the Convention.' … Defendants do not appear to be asking this Court to recognize and enforce the Liechtenstein Arbitration award pursuant to the Convention. Defendants seem to be asking this Court to treat the arbitral award as a foreign judgment, outside the scope of the Convention. … (Reciprocity provision, 'does not mean ... that foreign arbitration awards not falling under the Convention are unenforceable.') See also, Restatement (Third) of Foreign Relations Law § 487 cmt. h (1987) ('Foreign arbitral awards not falling under the Convention are generally enforceable in the United States in the same manner as foreign judgments ... whether or not they have been judicially confirmed in the state where made.')
Plaintiffs also claim that this Court should not give preclusive effect to the Liechtenstein Arbitration because they 'were deprived of a full and fair opportunity to participate in the arbitration. … Defendants argue that Plaintiffs, 'have failed to produce any evidence of any actual prejudice, and none of their assertions establishes a denial of full and fair participation.' … At this stage of the litigation (i.e. absent further discovery) it is inappropriate for the Court to make a determination of whether or not Plaintiffs had a full and fair opportunity to participate in the Liechtenstein Arbitration. See e.g., Schenk v. Mine Management Co., 1997 U.S. Dist. LEXIS 575, 89 Civ. 97, 1997 WL 31400, *2 (N.D.N.Y. Jan. 23, 1997) (‘Thus, even though the court could properly consider res judicata and collateral estoppel defenses on a pretrial motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) ... it will not do so here’)” (247-248).
Bemerkung: Liechtenstein hat das New Yorker Übereinkommen in der Zwischenzeit ratifiziert, es ist am 05.10.2011 in Kraft getreten.