Second Circuit Clarifies Scope of Post-Award Judicial Review of Arbitrability

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On August 8, 2012, the U.S. Court of Appeals for the Second Circuit issued its decision in Schneider v. Kingdom of Thailand, a case in which the Court of Appeals was asked to clarify the scope of the competence-competence doctrine —the doctrine holding that, where parties authorize an arbitration tribunal to rule on its own jurisdiction, that agreement will foreclose de novo judicial review of the tribunal’s decisions — in post-arbitration enforcement proceedings.

In Schneider, the Court of Appeals affirmed a district court’s confirmation of an arbitration award entered in favor of a German investor who had brought a claim under the bilateral investment treaty between Germany and Thailand. That treaty — and its arbitration agreement — applied with respect to “approved investments” as that term was defined in article 8 of the treaty. When a dispute between the investor and Thailand arose, the investor commenced arbitration, and the parties agreed to terms of reference in which they agreed that the UNCITRAL Arbitration Rules would govern the arbitration.

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