York Arbitration Research Articles

Originalism Meets International Arbitration: The US Supreme Court’s Interpretation of the New York Convention

The subjection of non-signatories to arbitration agreements under the New York Convention is one of the fundamental issues of international arbitration, raising questions that touch upon the very concept of an arbitration agreement laid down in Article II. In the case of GE Energy Power Conversion v. Outokumpu, the US Supreme Court took a stand on that matter. It held that the New York Convention does not conflict with domestic law doctrines such as equitable estoppel which may bind third parties to arbitration agreements signed by others. Engaging only in an originalist interpretation of the Convention, the judgment fails to explore the normative depth of the problem. GE Energy Power Conversion v. Outokumpu, US Supreme Court, New York Convention, Non-signatory, Third Party, Arbitration Agreement, Party Autonomy, Form or Writing Requirement, Equitable Estoppel

PUBLIC POLICY: AN AMORPHOUS CONCEPT IN THE ENFORCEMENT OF ARBITRAL AWARDS

Public policy permeates the legal principles of a state and its ruling government. The justification of public policy is topical to the ethics and canons acknowledged by that state. These values are determined by the applicable political, social, economic, religious, and legal systems, which differ among states. As public policy usually best illuminates the broad area of government laws, regulations, provincial ordinances, and court decisions, the standards creating public policy alter as states develop. The motif of public policy is critical when the question of enforcement of arbitral awards suffice. There is no definite meaning of the term in the famous Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Arbitration Convention) to enforce foreign arbitral awards. Hence, this paper explores and traces some contemporary trends in defense of public policy as an exception to the enforcement of arbitral awards worldwide.

The 1958 New York Convention in Action, by Marike R. P. Paulsson

The 1958 New York Convention in Action , by Marike R. P. Paulsson, Kluwer Law International, 2016. ‘Discussions of importance are never over’, is a remark I once heard a very learned friend voice. The words have resounded in my head time and again, as they explain why debates on certain topics are recurrent, everlasting. They not only continue, but also take on new perspectives. Seemingly, they are never exhausted; they relate to timeless topics in which breath is never depleted. More importantly, they incrementally knit a theoretical mat the purpose of which is to provide cover for the problems hailing from the trenches of arbitration—particularly, those touching upon matters of principle. The 1958 New York Convention in Action illustrates the point. Since the locus classicus on the matter (Professor Dr Albert Jan van den Berg’s treatise, The New York Arbitration Convention of 1958 : Towards a Uniform Judicial Interpretation ),1 books on the topic have mushroomed from time to time. Those of us specializing in, and dedicated to, arbitration follow and consume said treatises in the hopes of ensuring apposite handling of our craft. What makes Ms Paulsson’s contribution noteworthy is the adroit combination of insightful content, a plausible method, and elegance. As to method , two aspects stand out. First, the New York Convention’s subjects are addressed with a fresh reading of the trabaux preparatoires —a plausible step as many have assumed —rather than reviewed —what its drafters intended. Secondly, the application is commented on by citing examples from the International Council for Commercial Arbitration’s (ICCA) orange book collection: the Yearbook of Commercial Arbitration . Doing so is praiseworthy, as the corpus of wisdom found in the ICCA Yearbook collection has passed inadvertently on to many. Its elegance stems from the poise, refined grace, and dignified propriety with which the topics are addressed. Analytical bias is not adverted. The subjects are dealt with in … fgcossio{at}gdca.com.mx

The Commission’s Proposal to Amend the Arbitration Exception in the EC Jurisdiction Regulation: How ‘Much Ado about Nothing’ Can End Up in a ‘Comedy of Errors’ and in Anti-sui

This article analyses the Proposal to amend the arbitration exception under the Brussels Jurisdiction Regulation. It maintains the view that the deletion of the arbitration exception either completely or partially is undesirable. The main reason is that the Proposal would substantially influence the existing regulatory framework on arbitration in the EU Member States. In particular, the critical view is expressed on the effects that the Proposal would have on the applicability of the 1958 New York Arbitration Convention. Besides, it discusses a number of major deficiencies in the wording of the proposed amendments. Reasons are given as to why the interface of arbitration and litigation would be more appropriately dealt with in a separate instrument than within the context of the Regulation. Finally, it suggests more efficient methods to enhance the effectiveness of arbitration agreements should the EU legislator opt to pursue further the idea of a partial deletion of the arbitration exception.

Arbitration or Litigation? Choice of Forum After the 2005 Hague Convention on Choice of Court Agreements

The possibility of wide ratification of and accession to the 2005 Hague Convention on Choice of Court Agreements presents important issues for those drafting international commercial contracts. Transactions lawyers have rather easily justified the inclusion of arbitration agreements in international commercial contracts because the New York Arbitration Convention insures both compliance with the agreement to arbitrate and the recognition and enforcement of any resulting arbitral award. When the Hague Convention becomes effective in a significant number of states, choice of court clauses will be more easily enforced, and court judgments will more easily recognized in other states. Thus, the choice between arbitration and litigation will hinge on the real differences between these two dispute settlement options, and not merely on the fact that one is more easily enforced than the other. This article compares the choices for both private parties and states under the Hague Convention with those existing under the New York Arbitration Convention.

How Non-Contracting States to the “Universal” New York Arbitration Convention enjoy Third-Party Benefits but not Third-Party Rights

How Non-Contracting States to the “Universal” New York Arbitration Convention enjoy Third-Party Benefits but not Third-Party Rights

Status of the New York Arbitration Convention: Some Gaps in Coverage but New Acceptances Confirm its Vitality

Status of the New York Arbitration Convention: Some Gaps in Coverage but New Acceptances Confirm its Vitality Get access Richard J. Graving Richard J. Graving Search for other works by this author on: Oxford Academic Google Scholar ICSID Review - Foreign Investment Law Journal, Volume 10, Issue 1, Spring 1995, Pages 1–53, https://doi.org/10.1093/icsidreview/10.1.1 Published: 01 March 1995

The New Zealand Law Commission's Report on the UNCITRAL Model Law

The New Zealand Law Commission's Report on Arbitration recommends that new arbitration legislation based on the UNCITRAL Model law be enacted to replace its existing Arbitration Act 1908 and Arbitration Amendment Act 1938 (as amended).1 New Zealand's current legislation is essentially based on the English Arbitration Act 1889 and the Arbitration Act 1934. Whereas in England there have since been substantial changes in the law of arbitration, culminating in the English Arbitration Act 1979, these changes have not been made in New Zealand. It has been over 50 years since the last major amendment was made to New Zealand arbitration legislation, save for the enactment of the 1958 New York Arbitration Convention in 1982. The Law Commission's Report follows its discussion paper on Arbitration (1988) and widespread consultations, in New Zealand and abroad. The new legislation proposed by the Law Commission is to be based on the UNCITRAL Model Law on International Commercial Arbitration; and the Report contains the text of a draft Arbitration Act with a detailed commentary on each provision of the draft Act and the Model Law. The Report also considers the different studies on the Model Law in Canada, Hong Kong, the United Kingdom and Australia; and it comes after the enactment of the Model Law in six countries of the British Commonwealth: Australia (1988), Canada (1986-1988), Cyprus (1987), Hong Kong (1989), Nigeria (1988) and Scotland (1990). It also draws upon the valuable and (by now) large body of scholarship on the Model Law, led by the work of Dr. Gerold Herrmann and Holtzmann & Neuhaus' recent ‘Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary’. The Report includes a large bibliography (Appendix C) and the UNCITRAL Report on the Model Law containing the UNCITRAL Secretariat's analytical commentary on its …

The Temporal Application of the New York Arbitration Convention of 1958: Retroactivity or Immediate Application?

THE issue of retroactive application of the ‘New York Convention of 1958 on the recognition and enforcement of arbitral awards'’1 has already been raised in a number of cases and articles. While the latter tend to agree that the Convention was meant to apply retroactively2 the former show somewhat less homogeneity on that question.3 Nevertheless, this issue remains very much alive with respect to the ever increasing number of states acceding to the Convention. In the last five years, 50 new states have become parties to the Convention, raising the total number to 83 member states.4 The Convention contains no explicit reference to its retroactive application nor is its history conclusive on this issue.5 Some implementing statutes of the Convention deal expressly with its temporal application. Indeed, at least five of them state expressly a date from which the Convention is applicable.6 On the...

Conference on the New York Arbitration Convention

Conference on the New York Arbitration Convention

Consolidated Arbitrations, the New York Arbitration Convention and the Dutch Arbitration Act 1986 - A Replique to Mr Jarvin

It was not my ‘general conclusion’, as Mr. Sigvard Jarvin writes, that ‘a court ordered consolidation would not raise problems at the enforcement stage’ under the 1958 New York Convention.1 Skilful lawyers are as a rule able to raise problems at any stage, particularly on enforcement. I merely concluded my Note by saying that I was ‘inclined to consider an award which is the result of a judicially ordered consolidation of arbitrations enforceable under the New York Convention’. Mr. Jarvin's learned comment has not convinced me that this view is necessarily erroneous. Mr. Jarvin's comment focuses on the parties' agreement with respect to the place of arbitration and the composition of the arbitral tribunal in conjunction with article V(1)(d) of the New York Convention. He distinguishes between four categories in which permutations are made as to whether or not the parties have agreed on the place of arbitration and on the composition of the arbitral tribunal. The four categories are: 1. the parties have agreed on the place of arbitration and on a method of selecting arbitrators; 2. no agreement has been made on the place of arbitration but the parties have agreed on the method of selecting arbitrators; 3. the parties have agreed on the place of arbitration but not on how to compose the arbitration tribunal; and 4. there is neither agreement on the place of arbitration nor on how to compose the arbitration tribunal. Mr. Jarvin concludes that in the third and fourth categories no problem will arise under Article V(1)(d) of the Convention. His adverse conclusion regarding the first and second categories, however, raises questions concerning the posible effect of the mandatory rules of an arbitration law on the parties' agreement and the construction of Article V(1)(d) of the Convention. As far as the applicable arbitration law is concerned, …

Consolidated Arbitrations, the New York Arbitration Convention and the Dutch Arbitration Act 1986 - a Critique of Dr. van den Berg

In a previous Note1, Dr. Albert Jan van den Berg considered whether arbitration awards resulting from court ordered consolidations would be enforceable under the 1958 New York Arbitration Convention. He concluded that neither ground (a) nor (d) of Article V (1) of the Convention could be invoked by the party resisting enforcement.2 His argument as regards (d) is in my opinion somewhat short; and I disagree with his general conclusion that a court ordered consolidation would not raise problems at the enforcement stage. Dr. van den Berg's conclusions are based on the assumption that the parties have agreed to arbitrate in a given jurisdiction and that the law of that jurisdiction allows for court ordered consolidation of related arbitrations. His conclusion would apparently be different if one of the parties involved had not agreed to arbitration at all or if the parties had wished to arbitrate in different jurisdictions. From the point of view of an arbitral institution the question of consolidation is of growing importance, because like the ICC Court of Arbitration, an institution often has to fix the place of arbitration and to compose all or part of the arbitration tribunal. Indeed, an arbitral institution often has to decide whether the arbitration tribunal is to be composed of one or three arbitrators. In discharging these functions, the institution must be influenced by the parties' wishes (express or implied) regarding possible consolidation of their case with other cases under its rules as well as by the overall objective that the award should be enforceable, in particular under the New York Convention. I suggest that by agreeing on (say) the ICC Rules of Arbitration, the parties cannot be considered as having agreed to the place of arbitration which the ICC will fix in the absence of an …

Consolidated arbitrations and the 1958 New York Arbitration Convention

The English Commercial Court's Arbitration Sub-Committee considered at length the need for new legislation with the object of improving the efficiency and acceptability of commercial arbitration in England and Wales. In its working report of February 1985 – which is fascinating reading – it observed that there is a strong support for legislation enabling ‘consolidation’ of arbitrations arising out of the same events. The Sub-Committee reported, however, that a workable solution has yet not been proposed. The objections noted by the Sub-Committee are two-fold, though interrelated: 1. any imposition of a unified dispute-settling mechanism will invariably mean a breach of the contractual rights of at least one of the parties; 2. an award which embodies the decision of the tribunal insofar as it falls outside the scope of the arbitration agreement is likely to encounter serious difficulties when it comes to enforcement under the New York Convention. The desirability of consolidation of related arbitrations is indeed significant in a number of areas, in particular maritime and construction arbitration. Some institutions, like the International Chamber of Commerce, are designing schemes to be incorporated in special arbitration clauses and their rules. However, such schemes will work only if all arbitration clauses in question refer to the same institution. A more effective way of dealing with the problem of related arbitrations is a consolidation ordered by the courts. That possibility exists at present in a few countries only. In the United States, consolidation of related arbitrations by the courts is developed by case law. In 1982, Hong Kong enacted a new Arbitration Act which contains specific provisions on judicially ordered consolidation. The latest development in this field is the new Dutch Arbitration Act, which will become effective on 1 December 1986. The new Dutch Act provides for consolidation of related arbitrations ordered by the President …

Multi-party disputes: Consolidation under English law The Vimeira - a Sad Forensic Fable

over Christmas 1980 the vessel Vimeira discharged a cargo of grain at a dock called the Rodenhuizedok in the port of Ghent, having berthed at night stern first with the assistance of pilot and tugs following a turning manoeuvre at the dock entrance. When the vessel left the dock, her rudder was found to have suffered serious damage causing substantial losses to her Owners. Disputes over this incident between the Owners and three other interested parties were referred separately to two arbitrations in London where they became the subject of extensive legal proceedings in the English courts between the Owners, the Time Charterers and the Voyage Charterers of the vessel, and to litigation in Belgium between the Owners and the Ghent Port Authority which was not party to any arbitration agreement. The London arbitrations are a classic lesson in the problems of multi-party disputes arising from the same incident. The case re-affirms the need for some mechanism for ‘consolidation’ of related arbitrations between different parties, both where a claimant claims against multiple respondents and where a respondent claims relief against a third party, which was the case in The Vimeira . These problems exist in every arbitral jurisdiction; and a comprehensive practical solution remains elusive for a number of reasons. In England and other countries enacting the 1958 New York Arbitration Convention, the separate problem exists of related disputes covered by concurrent arbitration and litigation where consolidated court proceedings are thwarted by one party applying for a mandatory stay pursuant to an arbitration agreement with another party, leaving in the litigation other disputants not party to a similar arbitration agreement.1 In The Vimeira this further problem is evident from the separate Belgian proceedings brought by the Owners against the Ghent Port Authority alone; and it has no apparent solution. …

Mitsubishi: the folly of quixotic internationalism

WRITING on international commercial arbitration is often replete with statements affirming the necessity and advocating the progression of the institution.1 Analyses of the historical evolution and contemporary status of international arbitral law are usually supplemented by entreaties to foster the collaboration of national courts. Commentators, it seems, are reluctant to note or suggest restraints. The consideration of limits upon the creative handiwork of national courts and international merchants might sully the merits of the appraisal or, worse yet, impede the growth of an institution destined to advance international commercial interests. Indeed, the transnational consensus on commercial arbitration is exceptional – a rare example of viable cohesion in the fragmented arena of international affairs. The unifying spirit of the 1958 New York Arbitration Convention,2 the uniformity of approach among national courts to the implementation of the Convention,3 national legislation supportive of the emerging international consensus on arbitration,4 all attest to a willingness to eradicate parochial concerns, to respond to felt needs, and to achieve functional international commercial co-operation. Nationalism may engender diplomatic incidents and actual warfare, but it should not incapacitate world commerce by depriving international merchants of the means to resolve their contractual disputes without regard to their national, jurisdictional, and cultural differences. The sounds of dissonance have been faint – episodic murmuring about the integrity of domestic public policy concerns, the dire implications of ‘a-national’ arbitration, and the necessity of having local law play a role in the proceedings.5 The United States officially joined the transnational ranks with its ratification of the New York Arbitration Convention6 in 1970 and the United States Supreme Court's 1974 pronouncement in Scherk v. Alberto-Culver .7 In Scherk ,8 the court, seemingly inspired by the incorporation of the Convention into US law, began to articulate the …

United States: New York Statute Amendments Concerning Reference to New York Law and New York Arbitration in International Agreements

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Does the New York Arbitration Convention of 1958 apply retroactively: decision of the House of Lords in Government of Kuwait v. Sir Frederic Snow

This important decision of the House of Lords1; has a long history. On 15 July 1958, the Government of Kuwait (Minister of Public Works) and the consulting civil engineers, Sir Frederic Snow and Partners, entered into a contract concerning the construction of an international airport in Kuwait. A dispute rose in 1964 which resulted in an arbitration in Kuwait no less than eight years later. In accordance with the arbitration clause in the contract, Dr Yassin was appointed as arbitrator by the Kuwaiti National Court on 22 May 1972. Dr Yassin made his award in Kuwait on 18 September 1973, whereby he ordered the Partnership to pay to the Kuwaiti Government a sum of Kuwaiti Dinars equivalent to almost sterling £3.5 million. It was only on 23 March 1979, that the Kuwaiti Government applied to the Commercial Court in London for leave to enforce the award against the Partnership. In the meantime on 24 September 1975, the United Kingdom acceded to the New York Convention on the Recognition and Enforcement of Foreign Awards of 10 June 1958. The New York Convention was implemented in the United Kingdom by the Arbitration Act 1975. Kuwait acceded to the New York Convention on 28 April 1978. At this point it should be noted that the United Kingdom used the first reservation under article I(3) of the New York Convention. According to this reservation, a state (when becoming party to the Convention) can limit the Convention's field of application to awards made in other contracting states only. Section 7(2) of the Arbitration Act 1975 specifies that if Her Majesty by Order in Council declares that any state specified in the Order is a party to the New York Convention, the Order shall be conclusive evidence that that state is a party to …

Judicial Innovations in the New York Arbitration Law

Judicial Innovations in the New York Arbitration Law

Arbitration and Award. Constitutionality of Section 4-A of the New York Arbitration Law

Arbitration and Award. Constitutionality of Section 4-A of the New York Arbitration Law

Scope of the New York Arbitration Law

Scope of the New York Arbitration Law