On August 7, 2024, Thomas Welling and Benjamin Paull published, “Foreign Sovereign Arbitrability Defense Faces Demise on Appeal” in Bloomberg Law. The following is an excerpt:
The US Court of Appeals for the District of Columbia Circuit is poised to solidify rulings that effectively bar foreign sovereigns from challenging arbitrability determinations of tribunals where the parties have agreed the tribunal shall determine its own jurisdiction. It’s a welcome development for parties seeking to confirm an arbitral award against a foreign sovereign in the US.
The Foreign Sovereign Immunities Act provides an exception to sovereign immunity to allow a party to confirm an arbitral award against a foreign sovereign in the US. US courts have long held that they won’t independently review an arbitral tribunal’s arbitrability determination—that is, whether a dispute is subject to arbitration—where the party seeking enforcement can show that the parties clearly agreed to arbitrate that question.
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