Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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In the last decade, the field of international arbitration has undergone a significant expansion, with many parties preferring to include an arbitration clause over a litigation alternative.  Part of the allure of international arbitration has been its promise as an efficient, cost-effective, and country-neutral method of dispute resolution. The growth of international arbitration has also been helped by the development of a robust enforcement regime through the New York Convention and the Washington (ICSID) Convention that ensures compliance with arbitral awards.  No one is more attuned to the vital role that enforcement regimes play in the growth of international arbitration than our very own Prof. George Bermann, who has authored numerous seminal works on the interplay between international arbitration and domestic law, with his work on Restatement of the Law, the U.S. Law of International Commercial and Investor-State Arbitration likely to shape and influence U.S. courts and arbitration practitioners for decades to come.  Indeed, a favorite topic of George (if I am allowed to call him that after a decade and a half of knowing him and being in awe of his genius) is the issue of arbitrability, with its various permutations and interpretations (See George Bermann, Arbitrability Trouble, 23 Am. Rev. Int’l Arb.  367 (2012); George Bermann, The “Gateway Problem” in International Commercial Arbitration, 37 Yale J. of Int’l L. 1 (2012)).  Inspired by his relentless curiosity regarding who has authority to decide if an arbitration agreement exists and when third-parties can be bound by an arbitration clause, here, I identify what is a very peculiar federal subject jurisdiction issue that has come up in recent U.S. jurisprudence: namely, under what circumstances will U.S. federal courts allow an arbitral award creditor to reach the assets of a third-party after they have already confirmed the arbitral award into a federal judgment against a party to the arbitral agreement.