New York Convention 1958 Research Articles

Enforcement of Annulled Awards: A Balanced Approach

The enforcement of annulled awards has been an extensively debated topic in international commercial arbitration. The drafting history of Article V of the New York Convention (NYC) indicates that discretion was granted to Member States to refuse enforcement of annulled awards. However, most jurisdictions have either adopted a territorial approach or an internationalist or delocalized approach when it comes to annulled awards. In this paper, we argue that there are many flaws in the delocalized approach adopted by various jurisdictions. The territorial approach is also not feasible due to differing standards of enforcement in different jurisdictions. We bring forth a more balanced approach to the enforcement of annulled awards, which borrows from the stance of William W. Park on this issue. We argue that annulment decisions should be seen as akin to decisions of foreign jurisdictions. Further, we argue that the public policy ground could be used to create sufficient grounds for refusal of enforcement when necessary.

Legal Regulation of Cross-Border Movement of Arbitral Awards

Enforcement of arbitral awards in foreign countries is carried out on the basis of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 (the 1958 New York Convention). Provisions of the New-York Convention of 1958 are rather laconic and some of them cause difficulties in enforcement. Such a provision is subparagraph (e) of Article 1 of the 1958 New York Convention. «е» of paragraph 1 of article V, which provides for the possibility to execute an arbitral award annulled at the place where it was rendered. Similar norms are provided for in the Russian legislation. Using general scientific methods of knowledge (analysis and synthesis, induction and deduction, generalization) and special scientific methods (formal-logical, formal-legal and method of legal forecasting) the analysis of execution of annulled arbitral awards in foreign countries was carried out. Scientific novelty of the present research consists in substantiation of the fact that the arbitral award and the acts adopted in respect of this award form a single totality, each element of which should be taken into account in the enforcement of the arbitral award. It is found that the enforcement of the annulled arbitral awards is contrary to the purpose of the 1958 New York Convention and the logic of its provisions. The enforcement of such decisions also violates the rights and interests of the parties to the arbitral proceedings. It is proposed to amend the current legal regulation and to provide for a clear provision prescribing the refusal to recognize and enforce a foreign arbitral award that has been set aside by a State court in the place where it was made.

Implementing International Commercial Arbitration Principles in the Russian Legislation

The arbitration of disputes arising between the parties by the international commercial arbitration courtsis one of the most effective methods of conflict resolution in foreign economic transactions. Significantadvantages of arbitration, including the International Commercial Arbitration, are based on thedeveloped foreign legislation whose implementation in the Russian legal system in the ongoing judicialreform is analyzed by the author through the study of the principles of International CommercialArbitration, such as the principle of promptness, principle of neutrality and internationalism, principleof justice economy, principle of parity of interests and business relations, principle of freedom of expressionwhen choosing the law applicable, principle of confidentiality, principle of professionalism anddisinterestedness of the referee. It was analyzes the main novella of the Federal Law of December 29,2015 No. 382-FZ «On Arbitration (Arbitral Proceedings) in the Russian Federation” and their influenceupon legal doctrine and further practices, including the establishment of the presumption of validity ofan arbitration agreement, the description of new methods of concluding an arbitration agreement, theintroduction of a licensing procedure for the establishment of the permanent arbitral institutions alongwith the establishment of mandatory requirements to them, as well as the strict requirements for thearbitrators’ education and experience. The new law has introduced a clear framework of the arbitrabilityof corporate disputes, which will help to decide on whether it is possible to transfer a particulardispute to arbitration. The author draws the conclusion on the expediency of legislative consolidationof possible including arbitration clauses into the articles of incorporation, which is consistent with NewYork Convention of 1958 “On Recognition and Enforcement of Foreign Arbitral Awards”, as well as ofthe changing the law on the application by International Commercial Arbitration of injunctive remediesand the need for introducing the institution of Emergency Arbitrator. The author notes that the FederalLaw No 382-FZ is not without shortcomings, as some of the legal developments are characterized byhalfway policy, that allows argue the need for its improvement.

Common Pitfalls of Arbitration in the United Arab Emirates: Interference and Enforcement

Since the United Arab Emirates (‘UAE’) ratified the NewYork Convention in July 2006, the popularity of arbitration has soared in the UAE. The local UAE courts have enforced a number of arbitral awards under the Convention and the Dubai International Financial Centre (DIFC) Court now offers an alternative seat and route for the recognition and enforcement of arbitral awards pursuant to an UNCITRAL Model Law-based arbitration law. Yet there remain a number of recurrent pitfalls commonly encountered by parties attempting to enforce arbitration agreements, conduct effective arbitrations and enforce foreign and domestic arbitral awards in the UAE. Parties may be caught out by issues such as capacity, the breadth of disputes considered non-arbitrable by the local courts, and alleged deficiencies in the conduct of the arbitration and the award itself. These pitfalls result from quirks of UAE law and the fact that there is still no dedicated arbitration law applicable to all of the UAE.

The Enforcement of Foreign Arbitral Awards in the GCC Countries: Focus on Kuwait

Kuwait is a member country of the Gulf Cooperation Council (GCC). As with the other countries in the GCC, Sharia law informs its laws. The use of the New York Convention (NYC) to resolve disputes has come into conflict with Sharia law if the choice of law is from another system of laws. This means that Kuwait has followed the procedures of the NYC, under the principle of reciprocity, as the main ground for disqualifying enforcement of foreign arbitral awards in Kuwait. The legislation and practices that guide the enforcement and recognition of foreign arbitral awards are not only limited to the international standards under the NYC and the United Nations Commission on International Trade Law (UNCITRAL) Model Law. The domestic laws adopt the international standards as well as incorporating the reservation clauses and the reciprocity aspects. The article also seeks to elucidate the grounds that do not inform the enforcement of foreign arbitral awards. These include procedural and substantive technicalities that arise from non-adherence to the law, the competency of the arbitrators, the legality of the arbitral awards, as well as other stipulations in the Code of Civil and Commercial Procedure (CCCP). This article examines the application of arbitral law in the Middle East and how effective this is in settling trade disputes. A broader perspective will also be taken as this article will consider the issues that have been associated with the application of arbitral law in preference to conservative land laws in the region. The place of arbitral awards that are rendered abroad is also a focus of the article, as are the procedures and conditions that are considered in enforcing them in Kuwait. Arbitrability and non-arbitrability of foreign arbitral awards is also examined based mainly on the choice of law or where the arbitral award is from a country that does not enforce or recognise arbitral awards declared against it.

International Public Policy and Recognition and Enforcement of Foreign Arbitral Awards in Brazil

This article considers if and how Brazilian courts have applied the international public policy exception when deciding whether to recognize and enforce foreign arbitral awards. In Brazil, like other jurisdictions, according to Article V(2)(b) of the NewYork Convention on Recognition and Enforcement of Foreign Arbitral Awards (the 'New York Convention'), when a court is faced with a challenge, it has to determine if the public policy exception refers to its national public policy or international public policy. In the past ten years, arbitration in Brazil has gained prominence and the number of challenges to awards, both national and international, has generated several decisions on how Brazilian courts interpret the public policy exemption. This article presents the Brazilian and the international view of what the international public policy is, as well as how the Brazilian and the international view is expressed in their jurisprudence on the topic in order to demonstrate and compare the direction being taken on the public policy exception by Brazilian courts.

Problems Associated with the Enforcement of Arbitral Awards Revisited: Australian Consumer Protection; Conflict of Laws; An English Law Perspective

THE NEW York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (‘the New York Convention’) was designed to provide a speedy and efficient mechanism for the worldwide enforcement of arbitral awards subject to limited exceptions. Unfortunately, a recurring problem in international arbitration has been the breakdown of the scheme arising out of an enforcing court's refusal to enforce an arbitral award on the grounds that the arbitral tribunal has failed to take account of the law of the enforcing state, relying on the public policy exception to recognition and enforcement contained in Article V.2(b) of the New York Convention.1 The basis for such ‘public policy’ refusal is that certain provisions of the law of the enforcing state (usually statutory) are matters of fundamental public policy, which should not be disregarded even though the contract giving rise to the arbitral award does not provide for the application of that law. These issues were considered by the US Supreme Court in the landmark and oft-cited decision of Mitsubishi Motors Corp . v. Soler Chrysler-Plymouth, Inc .2 There the question for consideration was the arbitrability of certain allegations by Soler Chrysler-Plymouth (a US company) against Mitsubishi (a Japanese company) relating to alleged anti-competitive practices contrary to the US Sherman Act. The parties' sales agreement provided for all disputes between the parties to be settled by arbitration in Switzerland applying Japanese law. The Supreme Court recognized the arbitrability of such disputes, consistently with the parties' bargain, but warned in a famous footnote3 that in the event that resort to arbitration were to result in the disregarding of Soler Chrysler-Plymouth's rights to pursue statutory remedies for antitrust violations, the United States would have the opportunity, at the enforcement stage, to ensure that those legitimate interests in the enforcement of …

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

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 …