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Convention's framers and every indication is that the United States, in acceding to the Convention, meant to subscribe to this supranational emphasis. Cf. Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974).
To deny enforcement of this award largely because of the United States' falling out with Egypt in recent years would mean converting a defense intended to be of narrow scope into a major loophole in the Convention's mechanism for enforcement.
To plaintiff's argument that the subject was not appropriate for arbitration because it involved national interest matters, the Court called attention to the Supreme Court's holding of arbitrability in Scherk v. Alberto-Culver Co., supra, “a case far more prominently displaying public features than the instant one.” It also stated that there was “no special national interest in juridical, rather than arbitral, resolution of the breach of contract claim underlying the award in this case."
The Court of Appeals rejected plaintiff's contentions that (1) the arbitral tribunal had denied it due process of law in declining to reschedule a hearing for the convenience of an Overseas witness, and (2) that the arbitral tribunal had exceeded its jurisdiction. Finding no basis for Overseas' argument that the award was in "manifest disregard of the law," the Court refused to review the arbitral proceedings for errors of law or fact.
Since RAKTA could fully satisfy the award out of a supersedeas bond posted by Overseas, the Court declined to rule on RAKTA's appeal from the District Court's ruling denying payment from the letter of credit. It also rejected RAKTA's request to assess damages and double costs against Overseas for bringing an allegedly frivolous appeal.
The United States and the Socialist Republic of Romania on April 2, 1975, signed an Agreement on Trade Relations (TIAS 8159; 26 UST 2305; entered into force August 3, 1975), in which they reaffirmed their commitment, as expressed in the Joint Statement on Economic, Industrial and Technological Cooperation of December 5, 1973, to “prompt and equitable settlement on an amicable basis of commercial disputes which may arise." The Agreement also set forth recommended procedures for the settlement of commercial disputes between companies and economic organizations in the two countries. Article VIII of the Agreement provides as follows:
1. The parties reaffirm their commitment, as expressed in the Joint Statement on Economic, Industrial and Technological Cooperation of December 5, 1973, to prompt and equitable settlement on an amicable basis of commercial disputes which may arise.
2. The parties encourage the adoption of arbitration for the settlement of disputes arising out of international commercial transactions concluded between firms, companies and economic organizations of the United States of America and those of the Socialist Republic of Romania. Such arbitration should be provided for by provisions in contracts between such firms, companies, and economic organizations, or in separate agreements between them in writing executed in the form required for such contracts. Such agreements (a) should provide for arbitration under the rules of arbitration of the International Chamber of Commerce in Paris; and (b) should specify as the place of arbitration a place in a country other than the United States of America or the Socialist Republic of Romania that is a party to the Convention for the Recognition and Enforcement of Foreign Arbitral Awards of New York on June 10, 1958; however firms, companies and economic organizations party to a contract may agree upon any other form or place of arbitration.
The United States and Romania are parties to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (TIAS 6997; 21 UST 2517; entered into force for the United States Dec. 29, 1970), with declarations that they will apply the Convention to the recognition and enforcement of awards made only in the territory of another contracting state, and that they will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under their respective national law.
The Final Act of the Conference on Security and Cooperation in Europe (CSCE), signed at Helsinki on August 1, 1975, include among its “Provisions concerning trade and industrial cooperation" the following guidelines in the matter of commercial arbitration:
The participating states,
Considering that the prompt and equitable settlement of disputes which may arise from commercial transactions relating to goods and services and contracts for industrial cooperation would contribute to expanding and facilitating trade and cooperation,
Considering that arbitration is an appropriate means of settling such disputes,
recommend, where appropriate, to organizations, enterprises and firms in their countries, to include arbitration clauses in commercial contracts and industrial cooperation contracts, or in special agreements;
recommend that the provisions on arbitration should provide for arbitration under a mutually acceptable set of arbitration rules, and permit arbitration in a third country, taking into account existing intergovernmental and other agreements in this field.
For the full text of the Final Act of the CSCE, see Dept. of State Bulletin, Vol. LXXIII, No. 1888, Sept. 1, 1975, pp. 323–350. For reference to other provisions of the Final Act, see index entries, this Digest, under Conference on Security and Cooperation in Europe (CSCE) (1975).
In Matter of Israel-British Bank (London), Ltd., 401 F. Supp. 1159 (1975), the U.S. District Court for the Southern District of New York decided on October 10, 1975, that the Bankruptcy Court did not have jurisdiction to entertain a foreign banking corporation's voluntary petition in bankruptcy. The Court held that Section 4 of the Bankruptcy Act, 11 U.S.C. 22, which provides that any person "except a municipal railroad, insurance, or banking corporation or a building and loan association" shall be entitled to file a petition in voluntary bankruptcy, must be taken to mean that foreign banking corporations are precluded from seeking adjudication as voluntary bankrupts and that, consequently, a trustee in bankruptcy may not seek to act pursuant to the Bankruptcy Act and void liens perfected by creditors within four months of filing.
On September 23, 1974, a voluntary petition in bankruptcy had been filed on behalf of Israel-British Bank (IBB); on the same day it was adjudicated a bankrupt. The Bank of the Commonwealth and the Federal Deposit Insurance Corporation (FDIC), as successor in interest to Franklin National Bank appealed from the decision of the Bankruptcy Court which had denied Franklin's motion, as a lien creditor, to dismiss IBB's petition.
IBB, a corporation organized under the law of the United Kingdom, was formerly engaged in banking with its principal place of business in London. It never had a place of business, office, or agent in the United States, was not qualified to do business in the United States, and had never done business in the United States. Its property in the U.S. judicial district consisted of bank deposits of several million dollars. IBB had previously filed a debtor's petition in Great Britain for winding up its affairs, which was approved by the High Court, Chancery Division, of the United Kingdom.
Appellants, FDIC and Commonwealth, were lien creditors of IBB in the amounts of $2,000,000 and $500,000, respectively. Both liens were perfected within four months of the filing of IBB's petition in New York. Consequently, if IBB were adjudicated a bankrupt under the Bankruptcy Act, a trustee in bankruptcy had the power to void those liens pursuant to Section 67(a) of the Act, 11 U.S.C. 107(a).
In the decision below, the Bankruptcy Court had concluded that as a matter of law the term “banking corporation" in Section 4 of the Act does not encompass foreign banks which have no business connection with the United States other than the location of assets, and that the scope of the exception covers only "national banking corporations and banking corporations created under State and territorial laws."
The U.S. District Court reversed the lower Court's decision. It found no indication in the legislative history of the banking exception that Congress had considered its effect as to foreign banks. It also found that there was nothing inherent in the probable objectives of Congress in enacting the exception to require or suggest that the exception apply to domestic but not foreign banks. To IBB's argument that recognizing the priority of lien creditors in a bankruptcy proceeding involving a foreign bankrupt operated to give those creditors an advantage over foreign creditors in derogation of the intention of Congress to ensure generally equal distribution among creditors, the Court responded that the argument presupposed jurisdiction under the Bankruptcy Act and was of no relevance to the initial determination whether jurisdiction existed. The opinion stated:
Where scrutiny of the legislative history unearths no clue that Congress has considered application of the statute to the particular facts at hand and where adherence to the statutory words themselves does not frustrate the general objectives of the legislation, the words must be given effect as they read. ...
. we make no attempt to pronounce what Congress' action might have been had it ever considered whether foreign banks should be accorded the right to file voluntary petitions. To do so would be to rush in where angels fear to tread...,
Abel v. United States (1960), 145
Protocol of Amendment to the Rio
Agricultural Act (1956), as amended
(1962), 522, 523, 524
cials and Official Guests of the U.S. tional Fund for, 681
Agricultural Marketing Act (1946), 541,
Assistance Act (1954), 682, 685
Hemisphere Agricultural Consulta-
tive Group, 683
principles adopted by CSCE (1975),
and U.N. resolution on Development
and International Economic Co
U.S. proposals on production in Latin
sion (1975), 681
Agriculture, Department of, 539, 544
Air commerce regulations, 461
Air law. See Aviation
Air services,“fly U.S. flag" program, 462
Air space, 451
Aircraft, U.S.-supplied, transfer to
Airlift of Portuguese citizens from An-
Restoring Peace in Viet-Nam (1973) Cook Inlet, 388
oil pollution, 445
Aldrich, George H., 31, 88, 90, 263, 803,
Republic of Cuba (1975), 372
Algeria, 169, 705
Algonquin SNG, Inc. et al. v. Federal
access to courts, 134-137
on Industrial Development and commuter system, 125–126
conditional entry, 123–124