The contemporary system of international commercial arbitration rests on compliance with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), to which the United States has been a party for over 50 years. Questions have recently been raised, however, about the status of the Convention in U.S. law –
in particular, whether it can properly be considered directly applicable in state courts (as a “self-executing” treaty) notwithstanding its legislative implementation through the Federal Arbitration Act. This article considers (i) whether a duly-ratified treaty can simultaneously be directly applicable and legislatively implemented, (ii) whether a U.S. court could, in the context of a specific proceeding involving private parties, override the decision of the constitutionally empowered “treaty makers” regarding the treaty’s implementation, and (iii) whether such a decision could give the federal government greater authority to compel compliance by state courts than the implementing statute. Answering those questions in the negative, it offers an alternative solution.

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