International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2013 Issue

Private International Law Discourse


OAS Convention on International Commercial Arbitration

Carolyn A. Dubay

By: Carolyn A. Dubay, Associate Editor, International Judicial Monitor and Assistant Professor, Charlotte Law School

The Organization of American States, or OAS, was established in 1948 among the nations of North, Central and South America to promote peace and democracy, provide a common defense and to work cooperatively on political, legal and economic problems.  There are currently 35 members (including the United States) and 67 permanent observers, including the European Union.   Among the many accomplishments of the OAS is the promulgation of a number of conventions in the area of private international law.  

To achieve its objectives in private international law, the kOAS has sponsored a series of specialized conferences to develop and adopt conventions to address certain aspects of transnational civil litigation involving parties from member states.  These conferences, known as CIDIPs based on their Spanish acronym, have taken place seven times and have resulted in the development of 26 international instruments (including conventions, protocols, uniform documents and model laws).   The first OAS conference on private international law, CIDIP-I, took place in Panama City, Panama in 1975 and resulted in the development of six conventions covering international trade and procedural law.  Among these conventions was the Inter-American Convention on International Commercial Arbitration, which the United States signed in 1975 and later ratified.  The United States also signed and ratified the Inter-American Convention on Letters Rogatory, which was also promulgated at CIDIP-I, and later joined the Additional Protocol to the Inter-American Convention on Letters Rogatory.

The OAS Convention on International Commercial Arbitration, commonly referred to as the Panama Convention, governs the enforceability of arbitration agreements relating to international commercial transactions between parties who reside in signatory states.   One of the major thrusts behind the adoption of the Panama Convention was the hostility in many Latin American countries to the enforceability of arbitration agreements and the use of foreign arbitrators. 

The Panama Convention complements the United States’ membership to the 1958 Convention on the Recognition and Enforcement of Arbitral Awards (known as the “New York Convention”).   Both the Panama Convention and the New York Convention are codified in the Federal Arbitration Act.   Congress implemented the Panama Convention in 1990 by amending the Federal Arbitration Act to include a new chapter that governs enforcement of the treaty in the United States.  Under 9 U.S.C. § 301, “[t]he Inter-American Convention on International Commercial Arbitration of January 30, 1975, shall be enforced in United States courts . . . .”  


In cases where countries have signed both the New York Convention and the Panama Convention (such as the United States), federal law provides that the Panama Convention will apply if “a majority of the parties to the arbitration agreement are citizens of a State or States that have ratified or acceded to the Inter–American [or Panama] Convention and are member States of the Organization of American States.”  See 9 U.S.C. § 305(1).  Even so, in implementing the Panama Convention, “[t]he New York Convention and the Inter–American Convention are intended to achieve the same results, and their key provisions adopt the same standards . . . .” Productos Mercantiles E Industriales, S.A. v. Faberge USA, Inc., 23 F.3d 41, 45 (2d Cir. 1994) (quoting H.R. Rep. No. 501, 101st Cong., 2d Sess. 4 (1990)).  The implementing legislation therefore incorporates by reference a number of provisions from the legislation implementing the New York Convention.  For example, § 302 of the implementing legislation incorporates the provision in 9 U.S.C. § 203 (relating to the New York Convention) that gives federal question jurisdiction over actions brought to enforce international arbitration agreements and awards, even though the Federal Arbitration Act does not provide an independent basis for federal jurisdiction over domestic arbitration agreements.  Other sections of the Panama Convention implementing legislation mirror the language of the New York Convention legislation, such as the sections within each Convention pertaining to a court's power to compel arbitration.  See 9 U.S.C. § 206 (New York Convention) and 9 U.S.C. § 303 (Panama Convention).  

Despite the similarities in the implementing legislation, there are several differences between the New York and Panama Conventions relating to the scope of their application and procedural rules.   For example, the Panama Convention is written in broader terms as to its scope and does not limit its application by the subject matter of the arbitration or the nationality of the parties.  Article I of the Panama Convention merely provides that “[a]n agreement in which the parties undertake to submit to arbitral decision any differences that may arise or have arisen between them with respect to a commercial transaction is valid . . . .”  Article I of the New York Convention, on the other hand, provides that its terms apply only to “the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought . . . [and] to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.”  Procedurally, the Panama Convention provides that in the absence of an express agreement between the parties, the arbitral procedure is to be governed by the Rules of Procedure of the Inter-American Commercial Arbitration Commission (IACAC).  The New York Convention, on the other hand, requires each contracting state to enforce arbitration agreements under the rules of procedure of its territory.  Finally, the Panama Convention does not require the formalities for authentication of arbitral agreements and awards that are found in the New York Convention (such as the filing of the original or a duly certified copy of the arbitration agreement or award, as well as certified translations). 

For the full text of the Panama Convention, see the website of the Organization of American States at  Additional information may also be found in John P. Bowman’s book, The Panama Convention and its Implementation under the Federal Arbitration Act (Kluwer Law International 2002).

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with assistance from the American Society of International Law.

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