No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 27 February 2017
In 1986 Florida became the first state in the United States to adopt a statute specifically designed for international arbi–tration. The Florida International Arbitration Act, Chapter 684 of the Florida Statutes, entered into effect on October 1, 1986.
* [ The Introductory Note was prepared for International LegaT Materials by Carlos E. Loumiet, Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quental, P.A., Miami, Florida. The text of the Florida International Arbitration Act, at I.L.M. page 970, is reproduced from 1986 Supplement to Florida Statutes 1985, pages 1177-85. The I.L.M. Content Summary of the Act precedes the Act at I.L.M. page 968. ]
1/ This commentary is a distillauia much lengthier report prepared by three members of The Florida Bar's task force which drafted the Act: Professor Alan C. Swan of the University of Miami School of Law, Juan T.O'Naghten of the Miami law firm Beasley, Olle, Downs Keihner, and the author (hereinafter the “Report“). The Report is available to interested scholars and practitioners by writing to the author at 1401 Brickell Avenue, Miami, Florida 3313.
2/ 9 U.S.C.A. §§ 1 to 1.
3/ The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958,was enacted into United States law as 9 U.S.C.A. §§ 201-208 (hereinafter the “New York Convention“.
4/ For a discussion of some of the Florida Arbitration Code's deficiencies, see Swan,Alan C, “Compelling Arbitration and the Judicial Review of Arbitral Awards”,11 Lawyer of the Americas 475-495(1979.
5/ 9 U.S.C.A. §§1 and .
6/ Article 1(1) of the New York Convention, found at 9 U.S.C.A. § 20.
7/ According to the 1987 Cumulative Annual Pocket Part to Title 9 of the U.S.C.A., only the following Latin American and Caribbean countries are parties to the New York Convention: Chile,Colombia,Cuba,Ecuador,Guatemala,Mexico,Panama,Trinidad and Tobago and Urugua.
8/ Inter-American Convention on International Commercial Arbi-tration, open for signature January 30, 1975 OAS/SER.A/20(SEPF), reprinted in 14 I.L.M. 336 (1975) (here-inafter the “Inter-American Convention“.
9/ Based on information provided to the author by Charles Norberg, Esq., General Counsel to the Inter-American Commission on International Commercial Arbitration, as of April 20, 1987, the following Latin American and Caribbean countries had become parties to the Inter-American Convention: Colombia, Costa Rica, Chile, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Uruguay and Venezuel.
10/ In situations where the Federal Arbitration Act, the New York Convention or, upon ratification by the United States, the Inter-American Convention, is applicable, Florida law in the form of the Act will be preempted by virtue of the Supremacy Clause of the U.S. Constitution, Article VI, cl. 2. However, the extent of that preemption is not, at this time, completely defined. Thus, it is likely that the provisions of the Act dealing with the validity, revocability and enforceability of a written undertaking to arbitrate (Sections 684.02(2), 684.22 and 684.23) will largely be preempted by Section 2, 3 and 4 of the Federal Arbitration Act, 9 U.S.C.A. §§ 2, 3 and 4, to the extent the later statute applies by its terms to the arbitration under consideration. The same result would logically apply under Article II of the New York Convention and Article 1 of the Inter-American Convention, in the event those Conventions were applicable. Similarly, as concerns confirmation, vacation or modification of an arbitral award, Sections 9, 10 and 11 of the Federal Arbitration Act will preempt the Act's Sections 684.24 and 684. in the event the former statute is applicable. In each of the foregoing instances, preemption seems logical because there is an express provision of federal law (i.e.,the Federal Arbitration Act, the New York Convention and/or the Inter-American Convention, upon eventual ratification) expressly covering the same ground covered by the cited provisions of the Act. But what about those provisions of the Act for which no corresponding provision exists in the Federal Arbitration Act, the New York Convention or the Inter-AmericanConvention? Will they also necessarily be preempted by virtue of the preemption of other provisions in the Act by corresponding provisions in the Federal Arbitration Act, the New York Convention or the Inter-American Convention? The answer is far from clear. Take, for example, Part II of the Act, consisting of 16 provisions, Sections 684.05 through 684.20. Of all those provisions, only Sections 684.15(2),(3) and (4) find an express counterpart in the Federal Arbitration Act (Section 7, 9 U.S.C.A. § 7), and no provi-sion of Part II has a corresponding provision in the New York Convention or the Inter-American Convention. The question, then, is whether merely because the Federal Arbitration Act, the New York Convention or the Inter-American Convention may apply to the construction, validity, revocability or enforceability of an arbitration agreement involved in a dispute, should the Act's Part II, if otherwise applicable, also be displaced by federal law, and if so, from where will that federal law be derived? It is true that the past 10 years have witnessed a resurgence in the United States of. federal common law. Yet, those cases where state law has been deemed preempted by federal common law have usually involved interests of the federal government or its instrumentalities under nationwide federal programs. See e.g., United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979). In such circumstances, one can understand why uniformity of decision (through the application of a nationwide federal common law) would be desirable. However, no comparable considerations are involved in the typical international arbitration, and in their absence it is difficult to discern any federal policy that would be disserved by allowing the parties to select non-federal procedural law to govern the arbitral process, or, in the absence of such a selection, determining that law through the application of appropriate conflict of laws rules. Uniformity of decision (or of procedure) in and of itself is not a particularly persuasive reason. Were it so, the same conclusion should apply whether the arbitration were to be conducted in the United States or abroad, and the courts applying the Federal Arbitration Act should not be as prepared as they have been to allow the parties to conduct their arbitrations under different systems of procedural rules, which, after all, could lead to different arbitral processes and results. See, e.g., Reed & Martin, Inc. v. Westinghouse Electric Corp., 439 F.2d 1268 (2d Cir. 1971); Mobil Oil Indonesia v. Asamera Oil, Etc.,487 F.Supp. 63 (S.D.N.Y. 1980); Flower World of America, Inc. v. Whittington, 385 A.2d 85 (Md. App. 1978). Indeed, were the courts to develop a mandatory federal common law of procedure for arbitrations falling within the Federal Arbitration Act, the result could be a disincentive to arbitration. It is also striking that the only provision in the Federal Arbitration Act touching on arbitral procedure, Section 7, concerns an issue (the issuance of subpoenas by an arbitral tribunal and the enforcement of the same by the courts) where the courts must interact with the tribunal, and that neither the New York Convention nor the Inter-American Convention contains any provision governing the procedure of arbitrations falling within their scope. It does not seem illogical to suggest, given the absence of any other provision in the Federal Arbitration Act, the New York Convention and the Inter-American Convention dictating how an arbitration should be conducted, that the reason for the inclusion of Section 7 in the Federal Arbitration Act was not to tell arbitral tribunals how to conduct their arbitrations - an area which federal law does not seek to regulate - but to instruct and authorize the courts to use their coercive powers in assisting tribunals in obtaining necessary evidence. In any event, many of the reported decisions under the Federal Arbitration Act have emphasized that the principal function of that statute was to legislate as to the construction, validity, revocability and enforceability of arbitration agreements, and that state law is not otherwise displaced. See, e.g., Cost Brothers, Inc. v. Travelers Indemnity Company, 760 F.2d 58 (3rd Cir. 1985); Societe Generale, Etc. v. Raytheon, Etc., 643 F.2d 863 (1st Cir. 1981). One other area of possible interaction between the Act and federal law in the form of the New York Convention and the Inter-American Convention is the enforcement of arbitral awards, which is discussed in footnote 24, infra.
11/ At the same time that the Act was enacted, the Florida Legislature added to the Florida Statutes a new Section 48.196 setting forth rules for service of process in the context of Florida court proceedings arising under the Act. While Section 48.196 falls beyond the purview of this commentary, it should be noted that, by virtue of the enactment of that statutory section there is now greater flexibility in serving process in connection with such a proceeding than is available under Florida law for any other type of court proceedin.
12/ The first two sentences of Section 604.02(2) should be read in conjunction with Section 684.22, discussed in the text below. The last sentence merely makes it clear that the validity and enforceability of a promise to arbitrate governed by the law of Florida must be determined in the same manner as would be true of any other contract. Obviously, if the promise to arbitrate is governed by the law of a jurisdiction other than Florida, then Florida cannot legislate as to the validity and enforceability of that promise, since it cannot determine the contract law of other jurisdictions. Note that, at least as Florida courts are concerned, issues as to the validity and enforceability under applicable contract law of the promise to arbitrate are for the arbitral tribunal and not for the courts. See Section 684.22(1), discussed in the text belo.
13/ One interesting aspect is that the Act is not by its terms limited to “commercial” arbitrations. The authors felt that the affirmative inclusion of such a limitation in the Act was unnecessary, deeming it easier and clearer to make the Act all-inclusive, except for those disputes expressly excluded by Section 684.03(2). In this manner, it is hoped that litigation over what is meant by the term “commercial” can be avoided. By contrast, the Uncitral Model Law on International Commercial Arbitration, Annex I to the Report 959 960 of the United Nations Commission on International Trade Law on the Work of Its Eighteenth Session, 3-21 June 1985, Gen-eral Assembly Official Records: Fortieth Session, Supple-ment No. 17 (A/40/17) (hereinafter referred to as the “UNCITRAL Model Law“) relies on a footnote to its Article I in an attempt to give the term “commercial” a sufficiently ample definition. As will become apparent in this commen-tary, there are significant philosophical and textual differences between the Act and the Uncitral Model Law. Many of those differences are discussed in this commentary and its footnotes. In general, the author believes that the following provisions of the Act find no counterpart in the Uncitral Model Law: Sections 684.02, 684.05, 684.10, 684.12, 684.14, 684.15(4) (as to courts outside the jurisdiction where the law is enacted), 684.16(2), 684.16(3), 684.18, 684.19 (1) (as to interim, interlocutory or partial awards), 684.19(4), 684.22(3), 684.22(4), 684.23(3), 684.23(4), 684.23(5), 684.24 (as to actions by the loser of an award to declare an award not entitled to confirmation), 684.24(2), 684.24(3), (as to confirmation), 684.24(6), 684.24(7), 684.26, 684.27, 684.28, 684.29, 684.30, 684.31, 684.32, 684.33, 684.34 and 684.35. Of course, similar provisions or concepts may have been considered and rejected by the draftsmen of the Uncitral Model Law. Conversely, the following are the provisions of the Uncitral Model Law which could be said to not find a counterpart in the Act: Articles 3, 5, 8(2), 11, 12, 13, 18, 22, the last sentence of 24(3), 26(2), and 32(2). Provisions corresponding to the foregoing Articles were omitted from the Act for the following reasons: Articles 5 and 8(2), for the reasons discussed at footnote 23, infra; Article 3, which is a general notice provision, because notice is already dealt with in various provisions of the Act; Article 11, which concerns the appointment of arbitrators, because it is dealt with in condensed fashion in Sections 684.09 and 684.23(1) of the Act, all references to whether or not nationality should be taken into account in appointing arbitrators and found in Article 11(1) of the Uncitral Model Law having been omitted from the Act as unnecessary under United States law; Article 12, which imposes an obligation on each arbitrator to disclose conflicts of interest, because it was felt by the task force to be (i) too broad, too vague and probably unworkable in that it applies not only to neutral arbitrators, but also to arbitrators appointed by the par-ties with the intention or understanding that they be partial, (ii) a fertile ground for potential claims against arbitrators and challenges to awards, and (iii) better dealt with (as applying solely to the neutral arbitrator) in the section of the Act dealing with the vacating and enforcement of arbitral awards (see Section 684.25(1)(e) of the Act); Article 13, which provides for challenges (including court challenges) to arbitrators, because it is conducive to court intrusion into the arbitral process; Article 18, which requires that the parties be treated with “equality” and that each party be given “a full opportunity of presenting his case”, for the same reasons indicated above for Article 12, its essential concept being dealt with in a narrower manner in Section 684.25(1)(c) of the Act; Article 22, the language provision, because it is dealt with more briefly in Section 684.06 of the Act; the last sentence of Article 24(3), and Article 26(2), because they were deemed by the task force to be best left to the discretion of the arbitral tribunal, within the minimum due process requirements contained in Section 684.25(1)(c) and 684.25(1)(d) of the Act, rather than being made mandatory to all circumstances in all arbitrations; and Article 32(2), permitting termina¬tion of the arbitral proceedings by the tribunal without issuance of an award, because it was considered to be unnecessary and, insofar as it allows the tribunal to terminate proceedings because it deems them “unnecessary”, too broa.
14/ See Section 684.23, discussed in the text below. Note that for purposes of the Act's Part II, which contains the provisions applicable to the actual conduct of an arbitra¬tion under the Act, the term “written undertaking to arbitrate” is defined to include any system of rules elected by the parties to govern their arbitration. Section 684.07(1). Thus, any arbitral tribunal applying Part II to an arbitration must consider any such system of rules to be part and parcel of the parties’ agreement concerning the arbitratio.
15/ In comparison, Article 19 of the Uncitral Model Law provides that the parties are free to agree on the procedure to be followed in the arbitration “subject to the provisions of” the Uncitral Model Law. It appears that at least eight of the procedural provisions in the Uncitral Model Law (Articles 12,15,16,18,27,28,31and 32) either wholly or in significant part cannot be varied by agreement of the parties. While the provisions contained in those eight Articles are not necessarily provisions that parties to an arbitration would find undesirable, the possibility exists that those provisions will conflict with the provisions of a system of arbitral rules selected by the parties to govern the arbitration. The task force felt that, rather than imposing mandatory procedural provisions on the parties to an arbitration, the unlikely event that the system of rules selected by the parties were so unfair to one party as to violate fundamental due process concepts of fairness and integrity could be better dealt with in the judicial enforcement provisions of the Act. See Sections 684.25(1)(c), (d) or (e.
16/ To a greater or lesser extent, the “territoriality” prin¬ciple is embodied in Article V(l)(a) and (d) of the New York Convention. A different manifestation of the same principle is found in Article 1(2) of the Uncitral Model Law, which provides that (except for certain provisions dealing with court proceedings before, during and after arbitration), the Uncitral Model Law's provisions apply “only if the arbitra-tion is in the territory of this State.” Thus, if Florida had enacted the Uncitral Model Law, it is unclear whether parties could conduct an arbitration in, say, the Bahamas, under Florida arbitral procedural law, regardless of whether the law of the Bahamas allowed it, or even whether the Bahamas had its own arbitral procedural la.
17/ Obviously, Florida cannot legislate for other jurisdictions, and this break with the principle of “territoriality” under Section 684.05 and other provisions of the Act will only bind Florida courts, or other courts which, under their own systems of law, follow the Act as concerns a particular dispute before them. Thus, it will be incumbent on the parties to a written undertaking to arbitrate who select Florida procedural law to govern the conduct of an arbitration outside of Florida, to determine whether that selection conflicts with mandatory choice of law rules in that jurisdiction.
18/ 9 U.S.C.A. § 5. By contrast, Article 10(2) of the Uncitral Model Law calls for arbitration by three arbitrators in the event the parties do not otherwise agree. The task force drafting the Act opted for the one-arbitrator rule in the Act for three reasons. First, because it felt that the two additional arbitrators normally imply more cost, delay and complication in the arbitral process. Because many arbitrations under the Act could conceivably involve relatively small amounts in dispute, as well as parties generally unfamiliar with arbitration who would not think of stipulating as to the number of arbitrators at the time of entering into their agreement, and who at the time of the arbitration might not be predisposed to agree on anything, it did not seem advisable to legislate a presumption in favor of three arbitrators, with the attendant consequences. The task force also felt that in those arbitrations involving larger amounts, the parties would be more likely to either have had prior experience with arbitration or to have employed at the time of entering into the written undertaking to arbitrate legal counsel who can advise the parties on any need to stipulate whether one or three arbitrators should be used. Therefore, the likelihood of parties being unhappily surprised by the number of arbitrators comprising the tribunal in the absence of agreement by the parties to the contrary seemed less likely if the one-arbitrator rule was adopted. Second, because, in the task force's experience, when three arbitrators are used, the two appointed by the parties tend to act as advocates for the party that appointed them, at least as concerns the more fundamental issues in dispute. Hence, even in this situation truly controversial issues tend to be decided by a single arbitrator the neutral one. Third, because it was not clear to the task force how the three-arbitrator rule would work in arbitrations involving more than two parties. For example, if the underlying agreement containing the written undertaking to arbitrate has five parties to it, how are the three arbitrators to be apportioned among those parties in the absence of agreement by them? Note that subsection 3 of Article 11 of the Uncitral Model Law, entitled “Appointment of arbitrators,” does not deal with this possibility, but assumes that there will only be two parties to the arbitration.
19/ In certain jurisdictions the law has been held to preclude a party to an arbitration from obtaining interim relief from the courts, generally on the reasoning that (i) the party has selected his forum-arbitration-and that precludes access to other forums for dispute-resolution, and (ii) to allow such interim relief would permit the courts to intrude in the arbitral process. Similarly, some court decisions in the United States have construed the New York Convention as preventing a party to an arbitration subject to that treaty from obtaining interim relief from the courts. See,e.g., McCreary Tire & Rubber Co. v. Ceat S.P.A., 501 F.2d 1032 (3rd Cir. 1974); Metropolitan World Tanker Corp. V.P.N. Pertambangan Minjakdangas Bumi Nasional (P.M. Pertamina), 427 F. Supp.2 (S.D. N.Y. 1975); Cooper v. De La Motobecane, 456 N.Y.S.2d 728 (1982); Shah v. Eastern Silk Industries, Ltd., 493 NYS2d 150 (App. Div., 1st Dept. , 1985). The Act's Section 684.16(1) clearly preserves any right a party to an arbitration may have to obtain interim relief from any court under whatever law may be applicable to that court. In addition, to the extent that the request for such relief is made by the arbitral tribunal itself or by a party authorized by the tribunal, the request for interim relief should be viewed under Section 684.16(1) as an intrinsic part of the arbitral process. Consequently, in granting such relief the courts will be acting as part of that process, rather than intruding into it, and insofar as the parties shall have agreed to subject their arbitration to Part II of the Act, will be acting with the parties’ concurrence. These circumstances differ from those in the cases cited above. Therefore, a different result might apply even if the New York Convention is applicable to the arbitration involved and the court from which a party seeks interim relief shares the same view of that Convention as the courts cited above. Note also that, as concerns an application for interim relief to the Florida courts by a party to an arbitration, Sections 684.23(3) and (4) require that party to have been authorized by the tribunal to make that application, or to show the court why that authorization justifiably was not sought (e.g.,the tribunal has not yet been constituted). While other courts may operate under other rules, as a result of Sections 684.23(3) and (4) parties will be limited in their ability to obtain from Florida courts interim relief without the tribunal's knowledge and consent. This, of course, is meant to circumscribe judicial interference in Florida with the arbitral process.
20/ The corresponding provision in the Uncitral Model Law is Article 28. That provision presents certain complexities which merit comment. First, Article 28(1) of the Model Law provides that, unless otherwise expressed, a designation by the parties of the law of a particular jurisdiction means the substantive law of that jurisdiction, and not its conflict of laws rules. It will be interesting to see how this provision interacts with other statutory provisions in the laws of a jurisdiction enacting the Uncitral Model Law which have a mandatory conflict of laws rule. An example is Section 9-103 of the Uniform Commercial Code, which sets forth certain mandatory conflict of laws principles for determining the perfection and effect of perfection or non-perfection of security interest in personal property. 963 964 Second, Article 28(4) requires the arbitral tribunal “in all cases” to “decide in accordance with the terms of the contract” and to take into account “the usages of the trade applicable to the transaction”. This language may be problematic in that, first, it is so broad as to appear to validate all contracts; that is, it requires the tribunal in every case to decide in accordance with the contract's terms, while allowing no exception for instances where the contract may be found by the tribunal to be invalid or unenforceable; and second, because the requirement that “usages of trade” always be taken into account could be interpreted to conflict with other statutory provisions to the contrary. An example is Section 1-205(4) of the Uniform Commercial Code, which provides that express terms in an agreement control any usage of trade.
21/ In any event, by merely selecting a system of rules to govern the conduct of the arbitration which calls for a written statement of reasons to be issued by the arbitral tribunal, the parties to an arbitration under Part II of the Act can, by virtue of Section 684.07, preempt the application of Section 684.19(3).
22/ To the task force's knowledge, the inclusion of such a provision in an arbitration statute is unprecedented. However, the task force was prompted to include this express provision in the Act by the absence of any compelling case-law precedent in Florida and the consideration that it was necessary to give arbitrators strong protection against the types of claims that parties can (and may be prone to) assert against any tribunal that hands down a decision against them. Arbitrators are no less vulnerable on this score than are judges, and both are entitled to immunity. Indeed, unless they are protected it will be difficult to get good people to serve as arbitrators, or to convince arbitrators to reach decisions without being influenced by the likely reaction of a party. Of course, in the event of serious impropriety by an arbitral tribunal in the performance of its duties, recourse may be had against that tribunal's award under Sections 684.24 and 684.25, discussed in the text below.
23/ By contrast, Article 11(3), of the New York Convention, found at 9 U.S.C.A. § 201, permits a court not to refer parties to an arbitration if “it finds that the [arbitration] agreement is null and void, inoperative or incapable of being performed.” This language is mirrored in Article 8(1) of the Uncitral Model Law. As a result, the parties conceivably could undertake a trial on the validity, operativeness, and performance of the arbitration agreement before the arbitration process is even commenced. It seems worth mentioning in passing that other provisions of the Uncitral Model Law pertaining to the role of the courts in the arbitral process would have fit awkwardly into a judicial system such as that of Florida. For example, Article 5 of the Uncitral Model Law provides that in matters covered by that law, no court shall intervene except where so provided in that law. While the objective of this provision, to circumscribe excessive judicial intrusion into the arbitral process, is laudable, its language is so broad as to render it inappropriate (as well as, in many cases, ineffective) in a constitutional system such as that of Florida, where the judiciary is the protector of last resort of rights granted by the state and federal constitutions. Also ill-fitting would have been Article 8(2) of the Uncitral Model Law, which expressly permits the commencement and continuation of arbitral proceedings while a parallel court proceeding concerning the same dispute is in progress, thus apparently depriving courts (at least it would be true of Florida courts) of some of their traditional powers over parties to a litigation, or to enjoin parallel proceedings. (One can also question the logic and efficiency of having two proceedings—one judicial and one arbitral—which may lead to mutually exclusive results, going on simultaneously.
24/ See text at footnote 18, supr.
25/ See Article V of the New York Convention, 9 U.S.C.A. § 201. The same grounds for denying enforcement to an award under Article V of the New York Convention constitute grounds for refusing recognition or enforcement to the award under Article 36 of the Uncitral Model Law, and, with some language clarifications, under Article 5 of the Inter-American Convention. A quick comparison of the grounds in Section 684.25 with the grounds in Article V of the New York Convention, Article 36 of the Uncitral Model Law and Article 5 of the Inter-American Convention reveals, first, that the ground set forth in Section 684.25(1) (e) is the only one that does not find a counterpart in the New York Convention, the Uncitral Model Law and the Inter-American Convention. (Although the author believes that, at least as concerns United States courts, the ground set forth in Section 684.25(l)(e) would fall under the “public policy” category contained in Article V(2)(b) of the New York Convention, Article 36(1)(b) of the Uncitral Model Law and Article 5(2)(b) of the Inter-American Convention.) It is true that Section 684.25 contains in (d) a general public policy ground for vacating or denying confirmation to an award, which could overlap with the ground covered in (e). However, it was felt by the task force that since the circumstances in (e) - a material conflict of interest by the neutral arbitrator which goes undisclosed - had been omitted from Part II of the Act (see footnote 12, supra), they merited specific mention in Section 684.25(1). Of the remaining grounds in Section 684.25(1), generally speaking, (a) corresponds to Article V(l)(a) of the New York Convention, Article 36(1)(a)(i) of the Uncitral Model Law and Article 5(1)(a) of the Inter-American Convention. The principal differences are that the Act's Section 684.25(1)(a), first, expressly includes res judicata (subject to waiver) as a ground for denying confirmation to, or vacating, an award, and second, is more narrowly drawn than the corresponding provisions in the New York Convention, the Uncitral Model Law and the Inter-American Convention. Section 684.25(1)(b) generally corresponds to 966 the first clause of Article V(l)(b) of the New York Convention, Article 36(1)(a)(ii) of the Uncitral Model Law and Article 5(1)(b) of the Inter-American Convention, but includes a waiver concept and condones an inability to notify the party involved after efforts reasonably designed to give actual notice. Section 684.25(1)(c) corresponds to the second clause of Article V(l)(b) of the New York Convention, Article 36(1)(a)(ii) of the Uncitral Model Law and Article 5(1)(b) of the Inter-American Convention, but is more narrowly drawn. Section 684.25(1) (f) corresponds to Article V(l)(c) of the New York Convention, Article 36(1)(a)(iii) of the Uncitral Model Law and Article 5(1)(c) of the Inter-American Convention, but is, again, more limited. Finally, Section 684.25(1)(g) corresponds to the portions of Article V(l)(d) of the New York Convention, Article 36(1)(a)(iv) of the Uncitral Model Law and Article 5(1)(d) of the Inter-American Convention pertaining to the composition of the arbitral tribunal, although it also includes a waiver concept. As to Article V(l)(e) of the New York Convention, Article 36(1) (v) of the Uncitral Model Law and Article 5(1)(e) of the Inter-American Convention, the grounds they contain are dealt with in different fashion in the Act's Sections 684.24(6) and (7), discussed above in the text. Lastly, the interaction of the Act's Sections 684.24 and 684.25 with Article V of the New York Convention and Article 5 of the Inter-American Convention should be touched on. Obviously, because of federal preemption under the U.S. Constitution's Supremacy Clause, Article VI, cl. 2, in those instances where either of these Conventions (assuming ratification by the United States of the Inter-American Convention) applies to an award, and grounds do not exist under the applicable Convention for denying recognition to the award, the federal and state courts of the United States must enforce the award. In practice, however, this should not present any conflict with the Act, since, given the narrower language of Section 684.25, it is difficult to imagine any situation where grounds would exist under Section 684.25 for vacating or denying confirmation to an award and grounds did not simultaneously exist for denying recognition to the award under Article V of the New York Convention and Article 5 of the Inter-American Convention. The more likely situation to arise will be one in which grounds exist under the broader provisions of Article V of the New York Convention and Article 5 of the Inter-American Convention for denying recognition to an award, but because of the narrower drafting of the Act's Section 684.25, no grounds exist under the Act for vacating or denying confirmation to the award. With this possibility in mind, it is worth noting that both Article V of the New York Convention and Article 5 of the Inter-American Convention are stated in permissive, and not mandatory terms; the courts in a country which is a party to the Convention may, not must, deny recognition to an award emanating from another member country. Thus, both Conventions merely establish minimal criteria which must be present before recognition of an award can be denied. The unanswered question is whether, as a matter of federal law, courts in this country must deny recognition to an award if the applicable Convention permits them to do so. As long as this question remains, it would seem logical and desirable that courts in Florida applying Article V of the New York Convention or Article 5 of the Inter-American Convention (upon eventual ratification by the United States) should not deny recognition to an award because grounds exist under those Articles to do so, when no grounds would exist under the Act (were it applicable) for vacating or. denying confirmation of the award. While a court would not, under these circumstances, be applying the Act as such to the award under consideration, it could look to the Act for guidance of what is acceptable under Florida law, and in the absence of any countervailing federal law, follow those criteria. This approach seems philosophically attuned with the purpose underlying both the New York Convention and the Inter-American Convention-to facilitate wider interna-tional acceptance of arbitral awards. In addition, it will avoid the anomalous situation where, in Florida, by virtue of the more narrow grounds set forth in the Act's Section 684.25 it is easier to deny recognition to an award issued in a country which is a party to the New York Convention or, upon eventual ratification, the Inter-American Convention, than is true of an award issued in a country which is not a party to those Conventions. Note also that if the New York Convention or the Inter-American Convention (upon eventual ratification) applies to an award, courts in Florida will most likely be limited to denying recognition to that award under the applicable Convention, and will not be able to vacate it as provided in the Act's Section 684.24. This is because neither the New York Convention nor the Inter-American Convention talks about a court's vacating an arbitral award, but instead authorizes a court to deny recognition and refuse enforcement of an award. See Article V of the New York Convention, Article 5 of the Inter-American Convention. The omission in those Conventions of any reference to vacating an award is presumably intentional, and based on some perception of international comity among states members to those Conventions. Whether or not one believes that type of consideration makes sense in the context of arbitration awards, the reality is that, in deference to that policy, Florida courts will probably find that the power conferred upon them to vacate awards in the Act's Section 684.24 is preempted in situations where either of those Conventions applies to an awar.
26/ Of course, if the authority's own procedures are so deficient as to not correct gross injustices in the arbitral procedure, or if the authority itself were corrupt, or otherwise acted in such a way as to violate fundamental due process concepts of fairness and integrity, a Florida court could still vacate the award, or deny it confirmation, under Section 684.25(1)(d.
27/ See Article V(l)(d) of the New York Convention, found at 9 U.S.C.A. § 20.
28/ 9 U.S.C.A. §.