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Convention on the Recognition and Enforcement of Foreign Arbitral Awards
New York, 10 June 1958
By Albert Jan van den Berg
Hanotiau & van den Berg, Brussels, Belgium President, Netherlands Arbitration Institute Professor at law, Erasmus University, Rotterdam
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958 (the New York Convention), is described as the most successful treaty in private international law. It is adhered to by more than 140 nations. The more than 1,400 court decisions reported in the Yearbook: Commercial Arbitration show that enforcement of an arbitral award is granted in almost 90 per cent of the cases. The Convention was established as a result of dissatisfaction with the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927. The initiative to replace the Geneva treaties came from the International Chamber of Commerce (ICC), which issued a preliminary draft convention in 1953. The ICC’s initiative was taken over by the United Nations Economic and Social Council, which produced an amended draft convention in 1955. That draft was discussed during a conference at the United Nations Headquarters in May-June 1958, which led to the establishment of the New York Convention. The following briefly describes the two basic actions contemplated by the New York Convention. The first action is the recognition and enforcement of foreign arbitral awards, i.e., arbitral awards made in the territory of another State. This field of application is defined in article I. The general obligation for the Contracting States to recognize such awards as binding and to enforce them in accordance with their rules of procedure is laid down in article III. A party seeking enforcement of a foreign award needs to supply to the court: (a) the arbitral award; and (b) the arbitration agreement (article IV). The party against whom enforcement is sought can object to the enforcement by submitting proof of one of the grounds for refusal of enforcement which are limitatively listed in article V, paragraph 1. The court may on its own motion refuse enforcement for reasons of public policy as provided in article V, paragraph 2. If the award is subject to an action for setting aside in the country in which, or under the law of which, it is made (“the country of origin”), the foreign court before which enforcement of the award is sought may adjourn its decision on enforcement (article VI). Finally, if a party seeking enforcement prefers to base its request for enforcement on the court’s domestic law on enforcement of foreign awards or bilateral or other multilateral treaties in force in the country where it seeks enforcement, it is allowed to do so by virtue of the so-called more-favourable-right-provision of article VII, paragraph 1. The second action contemplated by the New York Convention is the referral by a court to arbitration. Article II, paragraph 3, provides that a court of a Contracting State, when seized of a matter in respect of which the parties have made an arbitration agreement, must, at the request of one of the parties, refer them to arbitration. In both actions, the arbitration agreement must satisfy the requirements of article II, paragraphs 1 and 2, which include, in particular, that the agreement be in writing. The influence of the New York Convention on the development of international commercial arbitration has been phenomenal. The New York Convention solidified two essential pillars of the legal framework by providing for the obligatory referral by a national court to arbitration in the event of a valid arbitration agreement and for the enforcement of the arbitral award. The Convention provided impetus to the hugely successful UNCITRAL Arbitration Rules of 1976 and the UNCITRAL Model Law on International Commercial Arbitration of 1985 (as amended in 2006). The New York Convention is probably the main reason why arbitration is the preferred method for the resolution of international business disputes. This Introductory Note was written in September 2008.
Related Materials
Protocol on Arbitration Clauses, Geneva, 24 September 1923, League of Nations, Treaty Series, vol. 27, p. 157.
Studies and research undertaken by the Commission on International Commercial Arbitration in 1950, on the initiative of its Chairman, had borne out the International Chamber of Commerce in its conviction that the system established under the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards no longer corresponded to the requirements of international trade. At its Lisbon Congress (1951), the International Chamber of Commerce adopted a resolution which was to be followed up by an International Conference with a view to the adoption of a new international system of enforcement of arbitral awards (reproduced in E/C.2/373). Subsequently, the International Chamber of Commerce, under rule 10, paragraph 2, of the rules of procedure of the Economic and Social Council, proposed that an item Draft Convention on the Enforcement of International Arbitral Awards be added to the provisional agenda of the eighteenth session of the Council (E/C.2/373/Add.1). On 6 April 1954, at its seventeenth session, the Economic and Social Council adopted resolution 520 (VII) which established the Committee on the Enforcement of International Arbitral Awards to study the matter raised by the International Chamber of Commerce and to submit any proposal as it might deem appropriate, including, if it saw it fit, a draft convention. The Committee met at United Nations Headquarters from 1 to 15 March 1955 and established a drafting committee, which also held a number of meetings during the session. The Committee’s work resulted in a draft for a Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter “the Draft Convention”, reproduced in E/C.2/373). The Committee also agreed upon a resolution which, inter alia, recommended that the Economic and Social Council transmit the Draft Convention and the report of the Committee’s work: (a) to Governments of member and non-member States, for their consideration and comments with respect to the text of the Convention and the desirability of convening a conference to conclude a convention; (b) to the International Chamber of Commerce and other non-governmental organizations having consultative status with the Council as may be interested in commercial arbitration, for comments; and (c) to the International Institute for the Unification of Private Law, for information (see the report of the Committee, E/2704-E/AC.42/4/Rev.1, p. 18). Having considered the report of the Committee on the Enforcement of International Arbitral Awards and the Draft Convention annexed thereto, the Economic and Social Council requested the Secretary-General to transmit the Draft Convention and the report of the Committee to Governments, the International Chamber of Commerce, non-governmental organizations and the International Institute, as recommended by the Committee. The Council also requested that the Secretary-General prepare a report containing the comments received from those entities, together with such observations as he might have, for submission to the Council at its twenty-first session (resolution 570 (XIX) of 20 May 1955). The Economic and Social Council again considered the matter at its following session, in 1956. In its resolution 604 (XXI) of 3 May 1956, it took note of the report submitted by the Secretary-General (E/2822 and Corr. 1 and Add. 1 to 5) and decided to call a conference of plenipotentiaries to conclude a convention on the basis of the draft prepared by the Committee on the Enforcement of International Arbitral Awards, taking into account the comments received. States Members of the United Nations and members of any of its specialized agencies, and any other States which were a party to the Statute of the International Court of Justice were invited to participate. In the same resolution, the Council requested the Secretary-General to ask the inter-governmental and non-governmental organizations active in the field of international commercial arbitration to submit brief reports on the progress of their activities on this subject, together with any comments or suggestions they might have. The Council also asked the Secretary-General to submit to the conference a consolidated report and to make all necessary arrangements for the calling of the conference. The United Nations Conference on International Commercial Arbitration was held at United Nations Headquarters from 20 May to 10 June 1958. As the basis for its negotiations, the Conference used the Draft Convention prepared by the Committee on Enforcement of International Arbitral Awards, taking into account the comments and suggestions made by Governments and non-governmental organizations. On 10 June 1958, the Conference adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). The Convention remained open for signature until 31 December 1958, and entered into force on 7 June 1959. Text of the Convention Selected preparatory documents Report and Preliminary Draft Convention on the Enforcement of International Arbitral Awards submitted by the International Chamber of Commerce (E/C.2/373, 28 October 1953) The Convention entered into force on 7 June 1959. For the current participation status of the Convention, as well as information and relevant texts of related treaty actions, such as reservations, declarations, objections, denunciations and notifications, see:
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