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«ICCA’S GUIDE TO THE INTERPRETATION OF THE 1958 NEW YORK CONVENTION: A HANDBOOK FOR JUDGES INTERNATIONAL COUNCIL FOR COMMERCIAL ARBITRATION ICCA’S ...»

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INTERNATIONAL COUNCIL

FOR COMMERCIAL ARBITRATION

ICCA’S GUIDE TO THE INTERPRETATION OF

THE 1958 NEW YORK CONVENTION:

A HANDBOOK FOR JUDGES

INTERNATIONAL COUNCIL

FOR COMMERCIAL ARBITRATION

ICCA’S GUIDE

TO THE INTERPRETATION OF

THE 1958 NEW YORK CONVENTION:

A HANDBOOK FOR JUDGES

with the assistance of the Permanent Court of Arbitration Peace Palace, The Hague Published by the International Council for Commercial Arbitration www.arbitration-icca.org ISBN 978-90-817251-1-8 All rights reserved.

© 2011 International Council for Commercial Arbitration © International Council for Commercial Arbitration (ICCA). All rights reserved. The International Council for Commercial Arbitration (ICCA) wishes to encourage the use of this Guide for teaching purposes and for the promotion of arbitration. Accordingly, it is permitted to reproduce or copy this Guide, provided that the Guide is reproduced accurately, without alteration and in a non-misleading context, and provided that ICCA’s authorship and copyright are clearly acknowledged.

For further information, please contact us at icca@pca-cpa.org.

FOREWORD BY PROFESSOR PIETER SANDERS

AS HONORARY GENERAL EDITOR

The 1958 New York Convention is the most successful multilateral instrument in the field of international trade law. It is the centrepiece in the mosaic of treaties and arbitration laws that ensure acceptance of arbitral awards and arbitration agreements. Courts around the world have been applying and interpreting the Convention for over fifty years, in an increasingly unified and harmonized fashion.

I participated in 1958 in the drafting of the Convention as a delegate from The Netherlands. We started our work on a draft that was originally produced by the International Chamber of Commerce (ICC) in

1955. The ICC draft provided for the enforcement of “international” awards. It was presented to the United Nations Economic and Social Council (ECOSOC). ECOSOC changed the draft to apply to “foreign” awards. This was the draft the Conference worked on from 20 May to 10 June 1958.

Changes and additions were made to the working draft, leading to what became known as the “Dutch proposal”. One change was the elimination of the requirement of a double exequatur, so that it would be possible to present awards for enforcement without first obtaining a declaration of enforceability from the courts of the country where they were rendered. Another change was to restrict the grounds for refusal of the award to the seven grounds listed in Article V and to shift the burden of proving those grounds to the party opposing enforcement. The seven grounds listed in the Convention became the exclusive grounds for refusal. The burden of proof on the party resisting enforcement and the exhaustive grounds for refusal are now recognized as key features of the Convention.

–  –  –

Article II of the Convention was added in the final drafting stage, also as a result of the Dutch proposal. It provides that courts shall refer the parties to arbitration when a party relies on a valid agreement. The working draft only provided for the enforcement of foreign arbitral awards. Including a provision on the enforcement of arbitration agreements was more efficient than the earlier regulation in two instruments: the 1923 Geneva Protocol on Arbitration Clauses and the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards.

In order for the application of the New York Convention to be unified and harmonized, an effective worldwide system of reporting cases applying the Convention was needed. That is why the publication of the ICCA Yearbook Commercial Arbitration was begun in 1976. I was its General Editor. Since then, thirty-five volumes have been published. The Yearbook is also available online at www.KluwerArbitration.com. The Yearbook has reported 1,666 New York Convention court decisions from 65 of the 145 countries that have acceded to the Convention.

The Convention was forward-looking. Professor Matteucci, the Italian delegate to the Conference, called it “a very bold innovation”. The Convention has stood the test of time. More than fifty years later, we can still look forward to beneficial adaptations of the interpretation of its text, responding to modern technology and practice.

The Model Law on International Commercial Arbitration issued by UNCITRAL (the United Nations Commission on International Trade Law) in 1985, and as amended in 2006, has been adopted in over seventy countries and federal states. Some countries have adopted the Model Law with no changes. Others have enacted modern arbitration laws inspired by the Model Law. As countries adopt modern arbitration laws, courts can rely on their more favourable provisions as provided by Article VII of the Convention.

Such modern arbitration laws may also contain provisions on the procedure for the enforcement of an award. The Convention only vi ICCA Guide to the NYC

FOREWORD





prescribes the documents to be submitted to the court (Article IV) and that no more onerous conditions or higher fees may be imposed than for the enforcement of a domestic award (Article III). The UNCITRAL Secretariat, together with the International Bar Association, has surveyed these conditions and determined in its Report of 2008 that “there are diverging solutions to the many different procedural requirements that govern the recognition and enforcement of awards under the Convention” (Report of the United Nations Commission on International Trade Law A/63/17 para. 353, p. 71) and has recommended that the Secretariat work towards developing a guide to enactment of the Convention to promote uniform interpretation and application. Such a guide could introduce uniform rules for the enforcement process.

ICCA’s initiative to create ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges is a welcome addition and companion to the ICCA Yearbook. It sets out the questions to be answered and the steps to be followed by courts when applying the New York Convention in a concise, clear and straightforward style that highlights the pro-enforcement bias of the Convention. I expect that this Guide will serve as an effective tool in advancing the motto I have repeated on many occasions: Vivat, Floreat et Crescat New York Convention 1958.

Pieter Sanders Schiedam, April 2011

–  –  –

The idea for this Guide to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958, known as the New York Convention, was essentially born during the five years in the early 1990’s that I was the sole judge in charge of the Arbitration and Construction List of the High Court of Hong Kong.

Before becoming a judge I dealt with arbitration and the New York Convention as a practicing lawyer. Since the Convention now applies in 145 States and the use of international arbitration has grown rapidly over the last 25 years, my mind has turned to all judges around the world who might be unfamiliar with the Convention and its current interpretation.

I was pleased that my concerns were shared by some of my colleagues on the International Council for Commercial Arbitration (ICCA) and was delighted when they agreed to assist in writing this Guide. Professor Gabrielle Kaufmann-Kohler is both a distinguished academic holding the Chair of Private International Law at the University of Geneva and a very active international arbitrator specializing, in particular, in investment disputes. She is a partner in the Geneva law firm of Levy Kaufmann-Kohler. Professor Guido Tawil holds the chair of Administrative Law at the University of Buenos Aires Law School and he is the senior partner in the Buenos Aires law firm of M & M Bomchil. He, too, is an experienced arbitrator. Kim Rooney was an Asia partner in the Hong Kong office of White & Case and is now practicing at the Hong Kong bar. Marike Paulsson is the co-author with Professor Albert Jan van den Berg of the second edition of his seminal work on the New York Convention (The New York Arbitration Convention of 1958 (Kluwer, 1981)). She is of counsel with the Brussels-based law

ixICCA Guide to the NYC INTRODUCTION

firm Hanotiau and Van den Berg. We have been greatly assisted and guided by an editorial team comprising Judy Freedberg, Silvia Borelli and Alice Siegel, all three of whom are currently or have been responsible for the ICCA publications.

This Guide is intended to provide an outline of the Convention and give guidance to judges determining applications under the Convention as to its scope, interpretation and application. It is intended as a concise Guide written in plain language which would serve as a road map to more extensive study, if need be. The Guide is designed to provide answers to individual questions that might arise at any stage of applying the Convention, rather than to be a comprehensive reference work. We address this Guide to the judges who are such an integral part of making the Convention work.

It is hoped that this Guide will not only be of interest to judges, but also to students, teachers and practitioners. We have attempted to avoid academic discourse as much as possible but this has not always been attainable. A number of highly discussed and controversial cases that create a great deal of interest in the academic community are not of interest for the normal application of the Convention. Although some cases will be referred to in order to illustrate a point we have tried to limit this to essential principles.

We have limited our examination to the essential aspects of the Convention. In-depth information can be found in Professor Van den Berg’s 1981 work and its second edition, which is expected to be published in 2012. A further source of detailed information are the extracts of court decisions applying the Convention and the Commentaries to these court decisions published yearly since 1976 in ICCA’s Yearbook Commercial Arbitration, and the chapters on the application of the New York Convention in ICCA’s International Handbook on Commercial Arbitration.

x ICCA Guide to the NYC

INTRODUCTION

The Convention is based on a pro-enforcement bias. It facilitates and safeguards the enforcement of arbitration agreements and arbitral awards and in doing so it serves international trade and commerce. It provides an additional measure of commercial security for parties entering into cross-border transactions.

The success of modern international commercial arbitration has been built on the twin pillars of the Convention and the UNCITRAL Model Law on International Commercial Arbitration of l985 (and amended 2006) (see for the full texts, Annexes I and II). The latter forms the basis for States without an arbitration law to adopt one ready-made or to substitute it for one that is out of date. Other jurisdictions have enacted new legislation, which, although not exactly the Model Law, is based essentially upon it.

All this has contributed greatly to achieving the harmonization of international arbitration law which, in turn, assists in achieving predictability and certainty – qualities much desired by the international business community.

The ultimate growth of the rule of law, the expansion of international arbitration for resolving cross-border disputes and enforcement of awards depend on the sovereign national courts.

It is thus hoped that this Guide will also play its small part in assisting judges around the world to participate in this continuing harmonization process and use the Convention in a way consistent with its letter and spirit.

In this Guide we will first outline the purpose of the Convention as an instrument of international law, including its application to arbitration agreements as well as to recognition and enforcement of certain arbitral awards (Chapter I). We will address its scope and the nature of the arbitration agreement and awards respectively to which it applies. We will explain the extent to which States may limit the Convention’s scope by choosing to make reservations as to reciprocity and commerciality

xiICCA Guide to the NYC INTRODUCTION

respectively. We will discuss the relationship between the Convention, domestic law and other enforcement regimes, and the nature of the legal standards which the Convention imposes upon its signatories. We will explain the international obligation of a signatory state to adhere to the Convention, and the potential consequences if it does not (Chapter I).

We will then outline the Convention principles involved in considering a request for the enforcement of an arbitration agreement (Chapter II) and for recognition and enforcement of an arbitral award (Chapter III) respectively.

Most cases coming before courts involve issues relating to the arbitration agreement itself rather than applications to enforce awards.

Issues relating to the enforcement of the arbitration agreement as opposed to the enforcement of an actual award can come before the court in an indirect manner. For example a party might apply to a national court for the appointment of an arbitrator where the agreed mechanism for appointing has broken down or does not exist. In considering its jurisdiction to appoint the court may well be asked to rule on the validity of the agreement to arbitrate which is of course a prerequisite to appointment. It is also possible that this issue may arise when the court is asked to grant some form of interim measure in support of arbitration.



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