An unsatisfactory result in this case, anyway: Control Screening LLC v Technological Application and Production Co (Tecapro), HCMC-Vietnam (3d Cir, 26 July 2012). Control Screening, a New Jersey company, agreed to supply X-ray machines to Tecapro, an enterprise owned by the government of Vietnam. Their agreement had an arbitration clause stating that disputes that could not be resolved between the parties would be arbitrated at the ‘International Arbitration Center of European countries’. Herein lay the problem when the parties wanted to invoke the arbitration clause: there is no such thing as the International Arbitration Center of European countries (or Countries, even). Tecapro initiated arbitration proceedings in Belgium; Control Screening did so in New Jersey – and sought to enjoin the Belgian arbitration.
The New Jersey district court concluded that ‘the only reasonable interpretation’ of the arbitration was that either party could seek to arbitrate in its home jurisdiction, granting Control Screening’s motion. On appeal by Tecapro, the 3d Circuit relied on the New York Convention, which both the US and Vietnam have ratified, and which provides that an express agreement to arbitrate will be found unenforceable where it is ‘null and void’ because of some underlying mistake. The reference to the non-existent forum was clearly such an error, although it did not vitiate the parties’ intent to arbitrate somewhere; the forum-selection clause was severable from the rest of the agreement. The Federal Arbitration Act, which also applied, permits a district court faced with an agreement that specifies no forum to compel arbitration only within its own jurisdiction – so the court below was correct to say the arbitration had to proceed in New Jersey. But wasn’t it clear that the parties wanted arbitration to occur in Europe, presumably as a compromise between Vietnam and New Jersey?