May or Must Under the New York Convention: An Exercise in Syntax and Linguistics

Abstract

THE NEW York Convention was drafted in no less than five equally authentic texts: Chinese, English, Spanish, French and Russian. It has been said that the English and French texts diverge on a tiny point that makes a big difference. The notion is that the English text of Article V(1) allows but does not require judges to reject applications to enforce awards that are deficient for one of the reasons defined in the five subparagraphs of that Article, whereas the French text would oblige the judge to turn the applicant away. In France, ironically, it does not matter what Article V(1) says, since courts there rule on enforcement applications without heed to the New York Convention.1 They are able to do so because Article VII of the New York Convention requires enforcement jurisdictions to allow applicants to rely on treaties or laws that are more favourable than the Convention itself. Article 1502 of the French Code of Civil Procedure allows a smaller range of objections to enforcement than those defined in the New York Convention. Accordingly, foreign awards are routinely enforced in France without reference to the Convention. But the French are not the only ones who use the French language. Moreover, given the four other official languages of the New York Convention, it is worthwhile to inquire whether there is a common core meaning. This issue is given additional vitality by virtue of the fact that the language of Article V(1) is reproduced verbatim in Article 36 of the UNCITRAL Model Law, which in turn has been adopted in a range of languages – from Arabic to Bulgarian – in many countries. (To the extent that a country's law on arbitration exactly reproduces the conditions of enforcement defined in Article V of the New York Convention, the more-favourable-law …