the power at least to compel arbitration. How could even this limited power be exercised without subject matter jurisdiction?
Other courts, have concluded that granting a stay pending arbitration is permissible in Convention cases. E.g., Rhone Mediterranee Compagnia Francese di Assicurazioni e Riassicurazoni v. Lauro, 712 F.2d 50, 54 (3d Cir. 1983). Our own Court of Appeals seemed to adopt this position, as it recently countenanced an injunction in aid of arbitration in a Convention case, Borden, Inc. v. Meiji Milk Products Co., Ltd., 919 F.2d 822, 826 (2d Cir. 1990), cert. denied, 114 L. Ed. 2d 712, 111 S. Ct. 2259 (1991). In a more recent case, though, with facts closer to those in the instant case, another panel of that court expressly declined to follow Borden, or resolve the issue of whether a stay or dismissal is appropriate, Threlkeld, supra, at 253 n.2. See also Tennessee Imports, supra, at 1323-25 (reviewing cases and holding that stay and dismissal are both permissible methods of referral under the Convention); Restatement (Third) of the Foreign Relations Law of the United States § 487(2) (1980) (same).
This Court agrees in theory with those courts which have held that retaining jurisdiction but staying the action is consistent with the commands of the Convention. However, to do so in this case would serve no purpose, since the entire controversy between these parties is subject to and will be resolved by arbitration. Accordingly, it is appropriate that a final judgment issue here containing a mandatory injunction to arbitrate in accordance with the Convention and what this Court finds to be the agreement of the parties.
Lastly, the plaintiff contends that if this Court does order arbitration, the Court should take judicial notice of the unsettled conditions in Moscow and order arbitration to proceed in this judicial district. The language of section 206 is concededly permissive: the Court "may direct that arbitration be held in accordance with the agreement at any place therein provided for". 9 U.S.C. § 206 (West Supp. 1991). These parties, though, did agree to arbitrate their disputes in Moscow. Compare Oil Basins Ltd. v. Broken Hill Proprietary Co., Ltd., 613 F. Supp. 483, 486-87 (S.D.N.Y 1985) (section 206 furnishes sole authority for court to order arbitration outside its judicial district) with Bauhinia Corp. v. China National Machinery & Equipment Import & Export Corp., 819 F.2d 247 (9th Cir. 1987) (ordering arbitration before American Arbitration Association when parties' agreements ambiguous as to arbitration site).
Plaintiff relies on cases which have stated or held that forum-selection clauses may be invalidated when the chosen forum has become seriously inconvenient or dangerous. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 16, 32 L. Ed. 2d 513, 92 S. Ct. 1907 (1972) (noting that invalidation of forum-selection clause appropriate when chosen forum "seriously inconvenient") (emphasis in original); Rockwell International Systems, Inc. v. Citibank, N.A., 719 F.2d 583, 587-88 (2d Cir. 1983) (no adequate remedy in courts of post-revolutionary Iran). Whatever the applicability of these cases in the arbitration context, the chosen forum in this case does have a reasonable relation to the contract at issue, as the ultimate purchaser of the boots was a Russian concern and the Russian Contract was incorporated by reference into Filanto's Memorandum Agreement with Chilewich. Furthermore, though conditions in the Republic of Russia are unsettled, they continue to improve and there is no reason to believe that the Chamber of Commerce in Moscow cannot provide fair and impartial justice to these litigants.
Settle a final judgment on five (5) days notice.
Dated: April 14, 1992
White Plains, New York
Charles L. Brieant