Yesterday’s case of the day, Dedon GmbH v. Janus et Cie, got me thinking about an interesting point, though one that is, strictly speaking, outside of the Letters Blogatory scope of coverage. It is not uncommon, in domestic or international trade, for a seller to deliver goods to a buyer upon receipt of a purchase order. In the interim, the seller may send the buyer an acknowledgment of the purchase order. Both the purchase order and the acknowledgement (if there is one) may contain boilerplate terms.
Dedon focused on the limitation of the court’s powers to compel arbitration (or, presumably, to confirm an award) where the arbitration agreement was neither in writing nor evidenced by an exchange of letters or telegrams. In a classic battle of the forms, where one party’s form contains an arbitration agreement, and the other does not, what will happen? How does the New York Convention interact with the U.C.C. or the C.I.S.G. on this point?