There is widespread concern that the writing requirement in the New York Convention is unduly restrictive and anachronistic. The UNCI-TRAL Working Group on Arbitration and Conciliation has been considering what to do about Art. Ⅱ, para 2 of the New York Convention since at least 2000. In 2000, the Working Group listed several typical examples of situations where the parties have agreed on the content of a contract containing an arbitration agreement and where there is written evidence of the contract but where, nevertheless, the current form of the relevant Conventions "may be construed as invalidating or calling into question the validity of the arbitration agreement." Two of those situations are: (e) Bills of lading which incorporate the terms of the underlying charterparty by reference; (h) A bill of lading containing an arbitration clause that is not signed by the shipper or the subsequent holder. Obviously, the UNCITRAL Working Group shares the view expressed in this article that arbitration clauses incorporated by reference into unsigned charterparty bills of lading are of questionable enforceability under the Convention. Although the question of Art. Ⅱ, dara 2 remains on the Working Group's agenda, the Working Group has postponed consideration of the question because it cannot decide whether to recommend adoption of an interpretative instrument under Art. 31(3)(a) of the Vienna Convention on the Law of Treaties, or creation of an amending Protocol to the Convention. Until the New York Convention is changed in some respect that will be binding in the United States, the problem identified by this article will remain a real one. The restrictive writing requirement in the New York Convention precludes application of the domestic F.A.A. (particularly 9 U.S.C. para 3) unless both parties to the contract are American, and it also precludes application of the Convention to arbitration clauses incorporated into charterparty bills of lading. The end result is that unless the carrier can persuade the court that an order for specific performance can and should be made, arbitration clauses of this kind should not be regarded as enforceable. Without a doubt, they should not be regarded as presumptively enforceable under 9 U.S.C. para 3, as they so often are in practice. In other words, litigation strikes back, at least a little and at least for a short time.
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