Enforcement under the New York Convention (1958)

Abstract

THE SCHEME OF THE CONVENTION (1958) The arbitral tribunal cannot administer coercive or physical assistance in securing enforcement of its awards. Instead the successful party must invoke the enforcement powers of the relevant judicial system, whether this be within the jurisdiction where the arbitration had its seat or within a foreign jurisdiction. National systems provide for enforcement of domestic arbitration awards, but these details are too large and fragmentary to justify separate discussion here. And so attention is confined here to judicial recognition and enforcement of foreign arbitral awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). Foreign awards are enforceable in over 140 different countries in accordance with the New York Convention (1958). This instrument is the greatest success of modern international commercial arbitration: ‘ It has made the greatest single contribution to the internationalisation of international commercial arbitration .’ The grounds (which are permissive – ‘may’ – so that the enforcement court is not obliged to deny recognition or refuse enforcement) for the refusal of recognition and enforcement of an arbitration award under Article V are as follows: (1) Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that : (a) The parties to the arbitration agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made ; (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present its case ; (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced ;