Jurisdiction Over 'Foreign' and 'Domestic' Awards in the New York Convention, 1958

Abstract

ALTHOUGH the New York Convention 1958 is primarily concerned with the recognition and enforcement of foreign arbitral awards, an arbitration award arises out of an arbitration agreement and is therefore regarded as a part of it. Russell1 has expressed this law in the following words: > English law regards an arbitral award as inherently valid and enforceable whatever procedure has been adopted to enforce it, and indeed before ever the successful party has sought to enforce it. This is because it represents an agreement made between the parties, and is no more and no less enforceable than any agreement made between parties. The Supreme Court of India2 has also observed that: ‘The contract remained a part of the award.’ The New York Convention opens with Article I(1) which deals with awards as ‘arising out of differences between persons.’ It is because the parties in their arbitration agreement have agreed to refer to arbitration the ‘differences’ between persons that the award could result out of the arbitration agreement. Again, Article II of the Convention expressly deals with arbitration agreement and not with the award. The reference in Article II(3) of the New York Convention to ‘[t]he court of a Contracting State when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article’ refers to the court which has jurisdiction over the subject-matter of the agreement. Such a court has been defined in section 2(c) of the Indian Arbitration Act 1940 and section 4 of the US Federal Arbitration Act 1925, as amended in 1970 to implement the Convention, as a court which has jurisdiction to decide the question forming the subject-matter of reference if the same had been the subject-matter of a suit. This court is located …