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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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Judges must be aware of these potential issues and it is hoped that this Guide will heighten that awareness. In some countries the practitioners may be far more astute as to possible problems and issues arising in international arbitration but in some jurisdictions there is a limited number of such practitioners which places a higher burden on the judge to spot and focus on issues relevant to the Convention. It is hoped that this Guide will assist this process.

ICCA is delighted that Professor Pieter Sanders has agreed to provide a Foreword as Honorary General Editor of this Guide. Not only has he been a leading figure in the field of international commercial arbitration for many years but as he nears his hundredth birthday he is the sole

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surviving member of the drafting committee of the Convention. It is thus wholly appropriate that this Guide should be published under his guidance.

A few words on ICCA ICCA was formed in May 1961 by a small group of experts and friends in the field of international commercial arbitration. It is a worldwide nongovernmental organization dedicated to promoting and developing arbitration, conciliation and other forms of international dispute resolution. Members come from many jurisdictions and are all intensely involved in international arbitration as counsel, arbitrators, scholars and members of the judiciary.

Every two years ICCA holds a Congress or Conference which is one of the major events in the international arbitration calendar. The last was held in May 2010 in Rio de Janeiro and attracted over 900 participants from all over the world. The next ICCA Congress will be held in Singapore in 2012.

ICCA is not an arbitral institution; it does not administer arbitrations or act as an appointing authority. ICCA is probably best known for its publications. Since 1976, over 1,600 court decisions applying the New York Convention, from more than 60 countries, have been reported in the Yearbook Commercial Arbitration. The International Handbook on Commercial Arbitration contains continuously updated reports on the arbitration law and practice in over 70 countries. The ICCA Congress Series publishes the papers of ICCA events.

All ICCA publications are also available online at www.kluwer arbitration.com (subscription required). More information on ICCA and ICCA publications can be found on its free website at www.arbitration

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(ii) What if the court finds that respondent is not bound by the arbitration agreement?

IV.6. Is This Particular Dispute Arbitrable?

IV.6.1. Subject Matter “Capable of Settlement by Arbitration” Means “Arbitrable” IV.6.2. The Law Applicable to the Determination of Arbitrability IV.6.3. International Arbitration Agreements Should Be Subject to Consistent Standards of Arbitrability V. SUMMARY 65

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III.4. Narrow Interpretation of the Grounds for Refusal III.5. Limited Discretionary Power to Enforce in the Presence of Grounds for Refusal

IV. GROUNDS FOR REFUSAL TO BE PROVEN

BY RESPONDENT (ARTICLE V(1)) 84 IV.1. Ground 1: Incapacity of Party and Invalidity of Arbitration Agreement (Article V(1)(a)) IV.1.1. Incapacity of Party IV.1.2. Invalidity of Arbitration Agreement IV.2. Ground 2: Lack of Notice and Due Process Violations;

Right to a Fair Hearing (Article V(1)(b)) IV.2.1. Right to a Fair Hearing IV.2.2. Lack of Notice IV.2.3. Due Process Violations: “Unable to Present His Case” IV.3. Ground 3: Outside or Beyond the Scope of the Arbitration Agreement (Article V(1)(c)) IV.4. Ground 4: Irregularities in the Composition of the Arbitral Tribunal or the Arbitration Procedure (Article V(1)(d)) IV.4.1. Composition of the Tribunal IV.4.2. Arbitral Procedure IV.5. Ground 5: Award Not Binding, Set Aside or Suspended (Article V(1)(e)) IV.5.1. Award Not Yet Binding IV.5.2. Award Set Aside or Suspended (i) Award set aside (ii) Consequences of being set aside (iii) Award “suspended”

V. GROUNDS FOR REFUSAL TO BE RAISED BY THE

COURT EX OFFICIO (ARTICLE V(2)) 104 V.1. Ground 6: Not Arbitrable (Article V(2(a))

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This Checklist sets out the questions to be answered and the steps to be followed by courts when applying the New York Convention. The Checklist is not exhaustive and is meant to be used along with the text of the Guide.

I. Application of the Convention What is the Convention about?

C The recognition and enforcement of arbitration agreements (Articles I and II) C The recognition and enforcement of arbitral awards (Articles I, IIIVII) How should the court interpret the Convention?

C Vienna Convention Articles 31 and 32 C Interpretation in favour of recognition and enforcement C Article VII allows for application of a more favourable treaty or domestic law C Non-application engages the international responsibility of the State II. Request for the recognition and enforcement of an arbitration agreement (Articles I and II)

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Reciprocity reservation?

Commercial reservation?

C Does the forum State have implementing legislation and does it affect the application of the Convention?

C Can the Convention apply to actions ancillary to arbitration?

Examples:





B Appointment of arbitrator?

B Request for conservatory measures?

Does the arbitration agreement fall under the substantive scope of the Convention? (Article II) C Is the arbitration agreement evidenced in writing? (Article II(2))

Examples:

B Is the arbitration agreement incorporated by reference?

B Has the arbitration agreement been tacitly accepted?

C Does the arbitration agreement exist and is it substantively valid?

(Article II(3)) Null and void?

Inoperative?

Incapable of being performed?

C Is there a dispute?

C Does the dispute arise out of a defined legal relationship, whether contractual or not? (Article II(1)) C Did the parties intend to have this particular dispute settled by arbitration?

C Is the arbitration agreement binding on the parties to the dispute that is before the court?

C Is this dispute arbitrable?

Does the arbitration agreement fall under the territorial scope of the Convention? (Article I by analogy) C Is the arbitral seat in a foreign State?

2 ICCA Guide to the NYC WORKING WITH THE NEW YORK CONVENTION

C Will the future award be considered non-domestic in the forum State?

C Is there an element of internationality?

Are procedural elements satisfied?

Examples:

B Has a party requested the referral to arbitration (no ex officio referral)?

B Does the process at issue qualify as arbitration?

B Has the requesting party satisfied preliminary steps?

Examples:

B Cooling off period?

B Mediation/conciliation?

B Has the requesting party waived its right to arbitration?

B Is there a decision of another court on the same matter that is res judicata?

What is the applicable law?

Examples:

B Formation and substantive validity of the arbitration agreement?

B Capacity of a party?

B Non-signatories to the arbitration agreement?

B Arbitrability?

Are there matters that should be decided by the arbitral tribunal rather than the court?

Can the court rely on Article VII allowing for reliance on a more favourable right in a national law or treaty?

If all requirements are fulfilled, the court shall refer the parties to arbitration.

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III. Request for the Recognition and Enforcement of an Arbitral Award (Articles I, III-VII) Is the forum State a party to the New York Convention? (Article I) C Date of entry into force?

Does the forum State have implementing legislation and does it affect the application of the Convention?

Does the Convention apply to the award?

C Is the award made in the territory of another State?

C Is the award not considered as domestic in the forum State?

C Does the award arise out of a difference between physical or legal persons?

C If the forum State has made the reciprocity reservation, is the State where the award was made a Contracting State?

C If the forum State has made the commercial reservation, is the subject matter “commercial”?

C Was the dispute-resolution process arbitration?

C Is the decision an award?

Are other more favourable treaties or domestic law applicable? (Article VII)?

Are procedural requirements not regulated by the Convention complied with?

Examples:

B Time limit for filing request?

B Competent authority?

B Form of request?

B Manner of proceedings?

B Remedies against decision granting or refusing enforcement?

B Availability of set-off or counterclaim?

4 ICCA Guide to the NYC WORKING WITH THE NEW YORK CONVENTION

Has the petitioner submitted the required documents?

C Authenticated award or a certified copy?

C Original arbitration agreement or certified copy?

C Is a translation required?

C Were the documents submitted in a timely fashion?

C Are any other documents required (no)?

How to apply the grounds for refusal of recognition and enforcement?

C No review on the merits C Respondent has burden of proof C Grounds for refusal listed in Convention are exhaustive C Grounds for refusal to be interpreted narrowly What is the applicable law?

Examples:

B Authentication?

B Certification?

B Incapacity of party?

B Validity of arbitration agreement?

B Composition of the arbitral tribunal?

B Arbitral procedure?

B Award not yet binding?

B Suspension of award?

B Non-arbitrable subject matter?

B Violation of public policy?

Are any of the grounds for refusal of recognition and enforcement proven?

C Incapacity of party and invalidity of arbitration agreement?

C Lack of proper notice or due process violation?

C Award outside or beyond the scope of the arbitration agreement?

C Irregularities in the composition of the arbitral tribunal or the arbitral procedure?

C Award not binding, set aside or suspended?

ICCA Guide to the NYC CHECKLIST FOR JUDGES

Does the court find that there are grounds that it may raise ex officio to refuse recognition and enforcement?

C Non-arbitrable subject matter?

C Contrary to public policy?

Application of international public policy?

Has a party waived a ground for refusal of recognition and enforcement?

What is the scope of court’s discretion to enforce?

Should the recognition and enforcement proceedings be suspended pending setting aside proceedings? (Article VI) If no ground for refusal or suspension of recognition and enforcement is established, the court shall enforce the award.

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Judges who are asked to apply the 1958 New York Convention face two types of challenges. First, there are the complexities that usually arise with respect to international treaties from the perspective of national judges. Second, this is a Convention which tests the objectivity of the national judge in a particular way, because it is often invoked by a foreigner against a local party. (This is particularly so with respect to the enforcement of foreign awards, which are typically brought to the home jurisdiction of the losing party, because that is where that party’s assets are located.) This observation is one of great importance. The Convention is the cornerstone of international commercial arbitration, which is crucial to the reliability of international business transactions. The Convention envisages a mechanism which depends on the cooperation of national courts. Its essence is reciprocal confidence. If some courts show bias in favour of their own nationals, this reciprocity is damaged as other courts may be tempted to follow the bad example.

The goal of this Guide is to provide simple explanations of the Convention’s objectives, and how to interpret its text in accordance with best international practice over the first fifty years of its existence.

We start with the most obvious question:

WHAT IS THE NEW YORK CONVENTION ABOUT?

The New York Convention has two objects:

! The recognition and enforcement of arbitration agreements (see below at I; see also Chapter II);

! The recognition and enforcement of foreign arbitral awards (see below at II; see also Chapter III).

ICCA Guide to the NYC

OVERVIEW

I. RECOGNITION AND ENFORCEMENT OF ARBITRATION

AGREEMENTS

Arbitration is a consensual process. It can only take place if the parties have agreed to submit their dispute to arbitration. The agreement to refer disputes to arbitration is called the “arbitration agreement”.

An arbitration agreement has a positive and a negative legal effect:

– It obliges the parties to submit disputes to arbitration and confers jurisdiction on an arbitral tribunal over disputes covered by the arbitration agreement (positive effect). If a dispute arises that falls within the scope of the arbitration agreement, either party may submit it to an arbitral tribunal.

– It prevents the parties from seeking the resolution of their disputes in court (negative effect). By concluding an arbitration agreement, the parties waive their rights to judicial remedies. A party having entered into an arbitration agreement cannot disregard it and instead go to court.

The New York Convention obliges Contracting States to recognize and enforce these effects. The conditions under which a court must do so are discussed in Chapter II of this Guide.

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example an award on jurisdiction or on liability. All are covered by the New York Convention (see Chapter I).



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