Revisiting the Debate on the Reform of the New York Convention, 1958: A Millennia's Perspective

Abstract

In recent years, the debate on reform of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention or Convention) has come to dominate public discourse within the global arbitration community. The paucity of empirical data on the failure of the Convention, the privacy associated with international arbitration and the varying approaches to reform by key stakeholders, have multiplied the complexity of designing appropriate reform. At the heart of this debate, however, is a general consensus that, while the risks posed by inconsistency in the application of the Convention texts are real, arbitral awards must be insulated from frivolous challenges that would add cost and delays and undermine confidence in the arbitral process. The first objective of this article is to analyze the doubts about the Convention necessitating the calls for reform and to provide response to each doubt. I argue that what is needed is not a transplant of the Convention texts, but measures aimed at achieving consistency in their application. That is, attaining uniformity in the Convention countries’ treatment of Convention awards. Another objective of this article is to examine how the holes in the Convention can be plugged, should reform become imperative. Fixing the gaps should not be difficult, at least in principle. Though, the potential difficulty in agreeing on replacement language or additional provisions deserves to be toted up.