New York Convention: Article-by-Article Commentary 9781509923847, 9781509923854

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Preface The New York Convention safeguards global trade and investment: an effective arbitration regime is perceived as key to the protection of foreign investment. The effectiveness of an arbitration regime is in turn determined above all by its rules on recognition and enforcement of arbitral awards, which are globally standardized by the New York Convention. World Bank and OECD studies confirm that ratification of the New York Convention is a key indicator for the strength of an arbitration regime, which in turn correlates with foreign direct investment inflows, global competitiveness, perceived political risk and governance indicators.1 The New York Convention has the potential to foster arbitration by facilitating and harmonizing recognition and enforcement of arbitral awards. However, it can only fully exert its potential if the courts of the Contracting States apply its provisions consistently. After all, there is no central entity entrusted with the authoritative interpretation of the New York Convention. It is therefore of the utmost importance to maintain that consistency that all courts deciding on recognition and enforcement under the Convention (and all lawyers advising clients in such proceedings) employ the acknowledged means of interpretation to determine how the Convention shall be applied in a given case. This commentary aims to provide guidance on this point, firstly by routing its readers to pertinent case law and literature and, secondly, by taking a stance while explaining how the Convention is best to be interpreted in a given case and why this result follows from the means of autonomous interpretation. The first edition of this commentary has been kindly received. The present second edition has updated the entire work, incorporated new case law and legal writings and added new developments. To make it easier for the reader to access legal writings, all books are now cited with a short title and all legal writings cited in a contribution are collected in the specific bibliography preceding that contribution. Given that 14 more States have acceded to the Convention since the first edition, Annex II now also lists the only remaining 35 United Nations Member States which are still not parties to the New York Convention. This work reflects the state of developments as of April 2019, though some important updates between then and September 2019 have been incorporated. Special thanks for their invaluable support in editing the second edition go to Bartosz Kiwka for revising case law citations and updating the table of cases and awards and the index, to Jeremy Fenner for language-editing the entire work, to Johanna Platt for revising bibliographies and citations of legal writings and, last but not least, to Thomas Klich of C. H. Beck for enduring and accommodating the editor’s requests. The authors and editor expressly appreciate any remarks and suggestions (wolffr@staff. uni-marburg.de) which are essential to the further development of this work. Marburg, in September 2019

Reinmar Wolff

1 World Bank and International Finance Corporation, Arbitrating and Mediating Disputes, October 2013, available at http://iab.worldbank.org/~/media/FPDKM/IAB/Documents/FDI-Arbitrating-and-MediatingDisputes.pdf (last visited Sep. 30, 2019); similarly OECD, Policy Framework for Investment, 2015, available at https://www.oecd.org/daf/inv/investment-policy/Policy-Framework-for-Investment-2015-CMIN2015-5. pdf (last visited Sep. 30, 2019).

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Preface to the First Edition The rise of international arbitration is closely intertwined with the New York Convention’s success. The Convention, with its 147 current Member States one of the most effective international instruments (if not the most effective) in the field of commercial law, has pioneered the unification of international arbitration. It has done so both by directly facilitating recognition and enforcement of foreign awards and by indirectly establishing standards for arbitral proceedings. Conversely, the considerable growth of international arbitration during the last decades has given the Convention a meaning which could hardly have been foreseen back in 1958. The Convention’s unifying effect largely depends on the coherent interpretation and application of its provisions by the national courts. Only uniform interpretation allows one to predict the chances of success of an application for recognition and enforcement, which in turn furthers certainty in cross-border contracts and reduces transaction costs. The Convention’s age – Article II(2)’s reference to the conclusion of contracts by exchange of telegrams is telling – and the dynamics during the 1958 conference, which resulted in remarkable last-minute amendments, reinforce the need for uniform interpretation. International arbitration is characterized by converging procedural rules which utilize elements of various legal traditions. The same “best of all worlds” approach is beneficial for the tools increasing the Convention’s accessibility. The present work adopts one of these concepts, i.e. the civil law commentary format. It is neither a case digest nor an anthology of essays. Instead, the Convention is annotated article by article, prerequisite by prerequisite. The reader will quickly find how each requirement under the respective provision has been understood and how it should be interpreted. The work provides a concise and reasoned opinion and supplies the reader with further references, both from international case law and scholarly writings. The commentary’s systematic approach is complemented by a table of cases and awards and by an index. Other conventions, in particular the European Convention, are included where appropriate. All of the authors, who are experienced practitioners in international arbitration, are well-acquainted with the commentary concept. Editing the present work was possible only with the tireless support of many individuals, three of whom shall expressly be honored. Jeremy Fenner has done a great service to the table of cases and awards and other registers. Hendrik Lauster has skillfully and thoroughly assembled the index. Last but not least, Dr. Wilhelm Warth of C. H. Beck, Munich, has encouraged and supported the project in an exemplary fashion. The readers’ comments on this commentary’s concept and contents are of utmost value to the further development of this work. The authors and the editor expressly appreciate any remarks and suggestions ([email protected]). Marburg, in August 2012

Reinmar Wolff

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List of Authors Prof. Dr. Christian Borris, LL.M. ..............................................................

Art. V General, V(1)(c)–(d)

Rechtsanwalt (Germany) in Cologne

Dr. Bernd Ehle, LL.M. .................................................................................

Art. I

Avocat (Geneva) and Rechtsanwalt (Germany) in Geneva

Todd J. Fox, LL.M. .......................................................................................

Art. II(3), V(1)(a)

Attorney at Law (New York, New Jersey, Pennsylvania) in Stuttgart

Rudolf Hennecke...........................................................................................

Art. V General, V(1)(c)–(d)

Rechtsanwalt (Germany) in Cologne

Dr. Angela Kölbl ...........................................................................................

Art. VIII–XVI

Rechtsanwältin (Syndikusrechtsanwältin) (Germany) in Erlangen

Dr. Christoph Liebscher, MBA..................................................................

Prel. Rem., Art. V(1)(e), VI

Rechtsanwalt (Austria) and Advokát (Czech Republic) in Vienna

Dr. David Quinke, LL.M.............................................................................

Art. V(2)(a), VII

Rechtsanwalt (Germany) in Düsseldorf

Prof. Dr. Maxi Scherer, LL.M. ...................................................................

Art. III, IV, V(1)(b)

Solicitor (England & Wales) and Avocat à la cour (France) in London

Dr. Stephan Wilske, LL.M. .........................................................................

Art. II(3), V(1)(a)

Rechtsanwalt (Germany) and Attorney at Law (New York) in Stuttgart

Dr. Reinmar Wolff .......................................................................................

Art. II(1)–(2), V(2)(b)

University of Marburg

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List of Abbreviations and Acronyms A.D.2d .................... A.D.3d .................... AAA ........................ AAA Rules ............ AAYB ..................... ABA ........................ ABA J. .................... ABGB ..................... ABQB ..................... AC ........................... ADR ........................ aff’d ......................... AG ........................... AIR .......................... AJIL ......................... Ala. .......................... All E.R. ................... ALR ......................... ALT ......................... alt. ............................ Am. ......................... Am. Bus. L.J. ......... Am. J. Comp. L. ... Am. J. Int’l Arb. ... Am. Rev. Int’l Arb. Am. U. Int’l L. Rev. ......................... Annals Fac. L. Belgrade Int’l Ed. . App. Div. ............... Apr. ......................... Arb. Int’l ................ Arb. L.R. ................ ArbAut News ........ Arbitraje ................. Arbitration ............ arg. .......................... Ariz. J. Int’l & Comp. L. ................ Ark. ......................... Art. .......................... ASA ......................... ASA Bull. ............... Asian DR ............... Asian Int’l Arb. J. ass’n ........................ assoc. ....................... Atl. .......................... Aug. ......................... AUIntLawJl ........... Austl. Disp. Res. J.

Appellate Division Reports (second series), New York Appellate Division Reports (third series), New York American Arbitration Association International Arbitration Rules of the American Arbitration Association Austrian Arbitration Yearbook (journal) American Bar Association ABA Journal Allgemeines Bürgerliches Gesetzbuch (Austrian civil code) Court of Queen’s Bench (Alberta) (neutral citation), available at https://www.canlii.org/en/ab/abqb/ (last visited Apr. 29, 2019) The Law Reports, Appeal Cases, House of Lords Alternative Dispute Resolution affirmed Amtsgericht (German local court); Aktiengesellschaft (stock corporation) All India Reporter American Journal of International Law Alabama All England Law Reports Australian Law Reports Andhra Law Times (journal) alternative America(n) American Business Law Journal American Journal of Comparative Law American Journal of International Arbitration The American Review of International Arbitration (journal) American University International Law Review (journal) Annals of the Faculty of Law in Belgrade – International Edition Appellate Division April Arbitration International (journal) Arbitration Law Reporter Austrian Arbitration Association Newsletter Revista de Arbitraje Commercial y de Inversiones (journal) Arbitration – The Journal of the Chartered Institute of Arbitration argumentum (argument) Arizona Journal of International & Comparative Law Arkansas Article(s) Association Suisse de l’Arbitrage (Swiss Arbitration Association) Bulletin of the Swiss Arbitration Association Asian Dispute Review (journal) Asian International Arbitration Journal association associate Atlantic August Australian International Law Journal Australian Dispute Resolution Journal

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Abbreviations

New York Convention

Auth. ....................... Azer. ........................ Bah. ......................... Barb. ........................ b-Arbitra ................ BayObLG ............... BayObLGZ ............

Authority Azerbaijan Bahamas Barbados Belgian Review of Arbitration Bayerisches Oberstes Landesgericht (Highest Regional Court of Bavaria) Sammlung der Entscheidungen des Bayerischen Obersten Landesgerichts in Zivilsachen (official collection of Highest Regional Court of Bavaria decisions in civil matters) Betriebs-Berater (journal) British Columbia Court of Appeal (neutral citation), available at https:// www.canlii.org/en/bc/bcca/ (last visited Apr. 29, 2019) Bahrain Chamber for Dispute Resolution

BB ............................ BCCA ..................... BCDR ..................... BCDR Int’l Arb. Rev. ......................... BeckRS ................... Beil. ......................... Belg. ........................ Berm. ...................... BG ........................... BGB ......................... BGE ......................... BGH ........................ BGHZ ..................... bhd. ......................... BIT .......................... BJM ......................... bldg. ........................ BLI ........................... BLR ......................... Bom. C.R. .............. Bom. L.R. ............... Brook. J. Int’l L. ... bros. ........................ BT-Drucks. ............ bull. ......................... Bull. civ. ................. Bus. L.R. ................. C.D. ......................... C.F.R. ...................... C.J.Q. ...................... C.L.R. ...................... CA ........................... Cal. .......................... Cal. W. Int’l L.J. ... Can. ......................... CanLII .................... CarswellONT ........ cas. ........................... Cass. ........................ CCJ .......................... cf. .............................

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BCDR International Arbitration Review (journal) Beck-Rechtsprechung (reporter) Beilage (supplement) Belgium Bermuda Schweizerisches Bundesgericht (Swiss Supreme Court) Bürgerliches Gesetzbuch (German civil code) Entscheidungen des Schweizerischen Bundesgerichts (official collection of Swiss Supreme Court decisions) Bundesgerichtshof (German Federal Supreme Court) Entscheidungen des Bundesgerichtshofs in Zivilsachen (official collection of German Federal Supreme Court decisions in civil matters) brotherhood Bilateral investment treaty Basler Juristische Mitteilungen (journal) building Business Law International (journal) Beijing Law Review Bombay Cases Reporter Bombay Law Reporter Brooklyn Journal of International Law brothers Bundestags-Drucksache (reports from the German Parliament) bulletin Bulletin des arrêts de la Cour de Cassation / Chambre Civile (official collection of French Supreme Court decisions) The Business Law Reports (England and Wales) Central District Code of Federal Regulations (US) Civil Justice Quarterly (journal) Commonwealth Law Reports Court of Appeal; Cour d’appel (French or Luxembourg appellate court); Corte d’appello (Italian appellate court) California California Western International Law Journal Canada Canadian Legal Information Institute (reporter), available at https://www. canlii.org/ (last visited Apr. 29, 2019) Carswell Ontario Cases casualty Cour de Cassation (Belgian, French or Luxembourg Supreme Court); Corte di Cassazione (Italian Supreme Court) Caribbean Court of Justice (neutral citation), available at http://www. worldcourts.com/ccj/eng/ (last visited Apr. 29, 2019) confer (compare)

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List of Abbreviations and Acronyms Ch ............................ ch. ............................ Ch. Civ. .................. chem. ...................... CIETAC ................. cir. ........................... CISG ....................... CJ ............................. CJCR ....................... CKN ........................ cl. ............................. CLC ......................... CLJ .......................... CLOUT .................. co. ............................ coll. .......................... Colo. ....................... Com.Cas. ............... comm’n .................. Conn. ...................... constr. ..................... cont’l ....................... Contemp. Asia Arb. J. ..................... Cornell L. Rev. ...... corp. ........................ CPC ......................... ct. ............................. ctr. ........................... D. ............................. D.C. ......................... D.L.R. ...................... DB ........................... Dec. ......................... def. ........................... Del. .......................... dev. .......................... Dir. Fall. ................. DIS .......................... DIS Rules ............... Disp. Res. J. ........... Disp. Resol. Int’l .. distrib. .................... doc. .......................... DÖV ....................... DRC ........................ DZWIR .................. E.D. ......................... e.g. ........................... EA ........................... eastlex ..................... EBLR ....................... EC ............................

Abbreviations

The Law Reports, Chancery Division chapter chambre civil chemical China International Economic and Trade Arbitration Commission circuit United Nations Convention on Contracts for the International Sale of Goods (Apr. 11, 1980) Cour de Justice de Genève (Appellate Court in Geneva) Cardozo Journal of Conflict Resolution cywilna kasacja na wniosek (civil cassation) clause Commercial Law Cases (reporter) Current Law Journal Case Law on UNCITRAL Texts, available at https://uncitral.un.org/en/ case_law (last visited Apr. 29, 2019) company college Colorado Company Cases (reporter) commission Connecticut construction continental Contemporary Asia Arbitration Journal Cornell Law Review corporation Code de Procédure Civile Français (French code of civil procedure); code of civil procedure court center District; Recueil Dalloz Sirey (journal) District of Columbia Dominion Law Reports (Canada) Der Betrieb (journal) December defense Delaware development Diritto Fallimentare (Italian insolvency act) Deutsche Institution für Schiedsgerichtsbarkeit (German Arbitration Institute) Arbitration Rules of the German Arbitration Institute Dispute Resolution Journal Dispute Resolution International (journal) distributing, distributor document Die Öffentliche Verwaltung (journal) Democratic Republic of Congo Deutsche Zeitschrift für Wirtschaftsrecht (journal) Eastern District exempli gratia (for example) East Africa Law Reports Eastlex: Fachzeitschrift für Wirtschafts- und Steuerrecht in Mittel- und Osteuropa (journal) European Business Law Review (journal) European Community, European Communities

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Abbreviations

New York Convention

ECC .........................

United Nations Convention on the Use of Electronic Communications in International Contracts of Nov. 23, 2005 (Electronic Communications Convention) European Convention on Human Rights; European Court of Human Rights European Court of Justice economy, economic(s), economical United Nations Economic and Social Council European Court Reports editor, edited, edition Einführungsgesetz zum Bürgerlichen Gesetzbuch (introductory act to the German civil code) European International Arbitration Review (journal) Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/ 93/EC (OJ 2014 No. L 257, p. 73) European Journal of International Law electric Emory International Law Review engineering enterprise equipment et alii/aliae/alia (and others) et sequens/sequentes (and the following) et cetera (and so on) European Treaty Series European Union Verordnung über die gerichtliche Zuständigkeit und die Anerkennung und Vollstreckung von Entscheidungen in Zivil- und Handelssachen (Regulation (EC) No. 44/2001, the Brussels I Regulation)

ECHR ..................... ECJ .......................... econ. ........................ ECOSOC ................ ECR ......................... ed. ............................ EGBGB ................... EIAR ....................... eIDAS Regulation .

EJIL ......................... elec. ......................... Emory Int’l L. Rev. eng’g ........................ enter. ....................... equip. ...................... et al. ........................ et seq. ...................... etc. ........................... ETS .......................... EU ........................... EuGVVO ............... European Convention ............ EuZW ..................... EvBl. ........................ EWCA .................... EWCA Civ ............ EWHC .................... EWiR ...................... EWS ........................ exp. .......................... F. Supp. .................. F. Supp. 2d ............ F. Supp. 3d ............ F.2d ......................... F.3d ......................... F.C. .......................... F.R.D. ...................... FAA ........................ FAO ........................ FCA ......................... FCAFC ...................

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The European Convention of 21 April 1961 on International Commercial Arbitration Zeitschrift für Europäisches Wirtschaftsrecht (journal) Evidenzblatt der Rechtsmittelentscheidungen in „Österreichische JuristenZeitung – ÖJZ“ (journal) Court of Appeal of England and Wales Court of Appeal of England and Wales Civil Division (neutral citation), available at http://www.bailii.org/ew/cases/EWCA/Civ/ (last visited Apr. 29, 2019) High Court of England and Wales, also known as High Court of Justice; neutral citation for same, available at http://www.bailii.org/ew/cases/EWHC/ Comm/ (last visited Apr. 29, 2019) Entscheidungen zum Wirtschaftsrecht (journal) Europäisches Wirtschafts- & Steuerrecht (journal) export Federal Supplement (reporter) Federal Supplement (second series) (reporter) Federal Supplement (third series) (reporter) Federal Reporter (second series) Federal Reporter (third series) Canada Federal Court Reports Federal Rules Decisions (reporter) Federal Arbitration Act (US) Food and Agriculture Organization of the United Nations Federal Court of Australia (neutral citation), available at http://www.austlii. edu.au/ (last visited Apr. 29, 2019) Federal Court of Australia Full Court (neutral citation), available at http:// www.austlii.edu.au/ (last visited Apr. 29, 2019)

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List of Abbreviations and Acronyms Feb. .......................... fed. ........................... Fed. Appx. ............. fin. ........................... Fla. ........................... Fordham Int’l L.J. . found. ..................... G.R. No. ................. Ga. ........................... Ga. J. Int’l & Comp. L. ................ GAR ........................ GATT ..................... GmbH .................... GmbHR .................. gov’t ........................ GRUR Int. ............. GVP ........................ H.M.S.O. ................ H.R. ......................... Harv. J. on Legis. . Hastings L.J. .......... HG .......................... HGB ........................ HKC ........................ HKCA .................... HKCFI .................... HKEC ..................... HKIAC ................... HKIAC Rules ........ HKLJ ....................... HKLR ..................... HKLRD .................. HL ........................... hosp. ....................... HR ........................... i.a. ............................ i.e. ............................ IBA .......................... IBA Arb. Committee Newsl. ........ IBRD ....................... ICAO ...................... ICC .......................... ICC Bull. ................ ICC Rules .............. ICCA ...................... ICDR ...................... ICJ ........................... ICJ Reports ............ ICLQ ....................... ICSID ...................... ICSID Rev. ............ id. ............................. IDA ......................... IDR .........................

Abbreviations

February federal Federal Appendix (reporter) finance, financial, financing Florida Fordham International Law Journal foundation Supreme Court of the Philippines Case Docket Number Georgia Georgia Journal of International and Comparative Law Global Arbitration Review General Agreement on Tariffs and Trade Gesellschaft mit beschränkter Haftung (limited liability company) GmbH-Rundschau (journal) government Gewerblicher Rechtsschutz und Urheberrecht – Internationaler Teil (journal) Gerichts- und Verwaltungspraxis (journal) Her Majesty’s Stationary Office House of Representatives (US) Harvard Journal on Legislation Hastings Law Journal Handelsgericht (commercial court) Handelsgesetzbuch (German commercial code) Hong Kong Cases (reporter) Hong Kong Court of Appeal (neutral citation), available at http://www.hklii. hk/eng/hk/cases/hkca/ (last visited Apr. 29, 2019) Hong Kong Court of First Instance (neutral citation), available at http:// www.hklii.hk/eng/hk/cases/hkcfi/ (last visited Apr. 29, 2019) Hong Kong Electronic Cases (Westlaw neutral citation) Hong Kong International Arbitration Centre HKIAC Administered Arbitration Rules Hong Kong Law Journal Hong Kong Law Reports Hong Kong Law Reports & Digest House of Lords (since 2009 Supreme Court of the United Kingdom) hospital Hoge Raad der Nederlanden (Netherlands Supreme Court) inter alia (among others) id est (that is) International Bar Association IBA Arbitration Committee Newsletter (journal) International Bank for Reconstruction and Development International Civil Aviation Organization International Chamber of Commerce Bulletin of the International Chamber of Commerce Arbitration Rules of the International Chamber of Commerce International Council for Commercial Arbitration International Centre for Dispute Resolution International Court of Justice, The Hague Report of the International Court of Justice, available at https://www.icj-cij. org/en/annual-reports (last visited Apr. 29, 2019) International & Comparative Law Quarterly (journal) International Centre for Settlement of Investment Disputes ICSID Review – Foreign Investment Law Journal idem (the same) International Development Association Journal of International Dispute Resolution

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Abbreviations

New York Convention

IEHC .......................

High Court of Ireland Decisions (neutral citation), available at http://www. bailii.org/ie/cases/IEHC/ (last visited Apr. 29, 2019) International Fund for Agricultural Development International Finance Corporation Internationales Handelsrecht (journal) International Litigation Procedure (reporter) International Law Association Illinois International Legal Materials International Labour Organization International Law Reports International Monetary Fund International Maritime Organization import incorporated indemnity Indian Journal of Arbitration Law Indonesia industry, industries, industrial insurance Supreme Court of India (neutral citation), available at http://www.liiofindia. org/in/cases/cen/INSC/ (last visited Apr. 29, 2019) International Arbitration Law Review (journal) International International Journal of Arab Arbitration International Law Practicum (journal) International Lawyer (journal)

IFAD ....................... IFC .......................... IHR ......................... IL Pr. ....................... ILA .......................... Ill. ............................ ILM ......................... ILO .......................... ILR .......................... IMF ......................... IMO ........................ imp. ......................... inc. ........................... indem. .................... Indian J. Arb. L. ... Indon. ..................... indus. ...................... ins. ........................... INSC ....................... Int. A.L.R. .............. Int’l .......................... Int’l J. Arab Arb. .. Int’l L. Practicum . Int’l Law. ................ Int’l Trade & Bus. L. Rev. ..................... inv. .......................... IPRax ...................... IPRG ....................... IPRspr. .................... ITA .......................... ITU ......................... J. Arb. Stud. ........... J. Disp. Res. ........... J. Int. Arb. ............. J. Transnat’l L. & Pol’y ........................ J.L. & Com. ........... J.L. & Econ. ........... J.L. Soc’y & Dev. .. Jam. ......................... Jan. .......................... JBl ............................ JCP .......................... JDI ........................... JdT .......................... JIDS ......................... JO ............................ JSC ........................... JT ............................. JZ ............................. Kan. ......................... KG ...........................

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International Trade and Business Law Review investment Praxis des internationalen Privat- und Verfahrensrechts (journal) Bundesgesetz über das Internationale Privatrecht (Swiss international private law act) Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts (reporter) Institute for Transnational Arbitration International Telecommunication Union Journal of Arbitration Studies Journal of Dispute Resolution Journal of International Arbitration Journal of Transnational Law & Policy Journal of Law and Commerce The Journal of Law and Economics Journal of Law, Society and Development Jamaica January Juristische Blätter (journal) Juris-Classeur Périodique, La Semaine Juridique (journal) Journal du droit international privé Journal des Tribunaux (Switzerland) Journal of International Dispute Settlement Journal officiel de la République Française Joint Stock Company Journal des Tribunaux (Belgium) Juristenzeitung (journal) Kansas Kammergericht (Higher Regional Court in Berlin); Kommanditgesellschaft (limited partnership)

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List of Abbreviations and Acronyms KGR ........................ KTS ......................... Ky. ........................... L. Ed. 2d ................ L.N.T.S. .................. La. ............................ LCIA ....................... LCIA Rules ............ Les Cahiers de l’Arbitrage .............. LG ........................... LJN .......................... Lloyd’s Rep ............ LMK ........................ ltd. ........................... M.D. ........................ mach. ...................... Mah. L.J. ................ maint. ..................... Mar. ........................ Mass. ....................... MBCA .................... Md. .......................... MDR ....................... Mealey’s Int’l Arb. Rep. ......................... med. ........................ mem’l ...................... Mex. ........................ mfg. ......................... mgmt. ..................... Mich. ....................... MIGA ..................... MIJIL ...................... Minn. ...................... Miss. ........................ mkt. ......................... Model Law ............ MünchKommZPO mut. ......................... n. .............................. N. ............................. n.b. .......................... N.C. ......................... N.C. J. Int’l L. & Com. Reg. .............. N.D. ........................ N.J. .......................... N.Y. ......................... N.Y. Int’l L. Rev. .. N.Y.2d .................... N.Y.S.2d ................. N.Y.S.3d ................. NAI ......................... NAI Rules .............. nat’l .........................

Abbreviations

KG-Report (reporter) Zeitschrift für Insolvenzrecht (journal) Kentucky United States Supreme Court Reports, Lawyers’ Edition (second series) League of Nations Treaty Series Louisiana London Court of International Arbitration Arbitration Rules of the London Court of International Arbitration Les Cahiers de l’Arbitrage (The Paris Journal of International Arbitration) Landgericht (German regional court) Landelijk Jurispr Nr (journal) Lloyd’s Law Reports Kommentierte BGH-Rechtsprechung Lindenmaier-Möhring (journal) limited Middle District machine(ry) Maharashtra Law Journal maintenance March; maritime Massachusetts Manitoba Court of Appeal (neutral citation), available at https://www.canlii. org/en/mb/mbca/ (last visited Apr. 29, 2019) Maryland Monatsschrift für Deutsches Recht (journal) Mealey’s International Arbitration Reports medicine memorial Mexico manufacturing management Michigan Multilateral Investment Guarantee Agency Michigan Journal of International Law Minnesota Mississippi market UNCITRAL Model Law on International Commercial Arbitration, 1985 (with amendments as adopted in 2006) Münchener Kommentar zur Zivilprozessordnung (commentary on the German code of civil procedure) mutual footnote(s) North(ern) nota bene North Carolina North Carolina Journal of International Law and Commercial Regulation Northern District New Jersey New York; New York Reports New York International Law Review New York Reports (second series) West’s New York Supplement (second series) West’s New York Supplement (third series) Nederlands Arbitrage Instituut (Netherlands Arbitration Institute) NAI Arbitration Rules national

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Abbreviations

New York Convention

NCPC .....................

Nouveau Code de Procédure Civile (French new code of civil procedure [1975–2007]) Netherlands International Law Review (journal) Nigeria Neue Juristische Online-Zeitschrift (journal) Neue Juristische Wochenschrift (journal) NJW-Rechtsprechungs-Report Zivilrecht (reporter) number(s) November New South Wales Supreme Court (neutral citation), available at http://www. austlii.edu.au/ (last visited Apr. 29, 2019) Nigerian Weekly Law Reports Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (the New York Convention)

Neth. Int’l L. Rev. Nig. ......................... NJOZ ...................... NJW ........................ NJW-RR ................. No. .......................... Nov. ........................ NSWSC .................. NWLR .................... NYC ........................ NYSBA Int’l Chap. News ....................... NZG ........................ NZHC ..................... O.R. ......................... Oct. ......................... OG ........................... OGH ....................... OJ ............................ OJ No. .................... OJSC ....................... ÖJZ .......................... Okla. ....................... OLG ........................ OLG-NL ................. OLGR ..................... Or. ........................... OTC ........................ öZPO ...................... p. / pp. .................... P.R. .......................... Pa. ............................ Pac. .......................... Pace L. Rev. ........... Pak. ......................... PAO ........................ para. / paras .......... Pas. .......................... PCIJ ......................... PCIJ Series A ........ Penn St. L. Rev. .... pharm. .................... Philip. ..................... PRC ......................... Prel. Rem. .............. prod. ....................... prop. ....................... prot. ........................ pub. ......................... QB ........................... QCA ........................ RAA ........................ RabelsZ ...................

XX

New York State Bar Association International Chapter News (journal) Neue Zeitschrift für Gesellschaftsrecht (journal) High Court of New Zealand (neutral citation), available at http://www.nzlii. org/nz/cases/NZHC/ (last visited Apr. 29, 2019) Ontario Reports October Obergericht (Swiss higher regional court) Oberster Gerichtshof (Austrian Supreme Court) Official Journal of the European Union Ontario Judgments from Quicklaw (reporter) Open Joint Stock Company Österreichische Juristen-Zeitung (journal) Oklahoma Oberlandesgericht (German or Austrian higher regional court) OLG-Rechtsprechung Neue Länder (journal) OLG-Report (reporter) Oregon Ontario Trial Cases (reporter) österreichische Zivilprozessordnung (Austrian code of civil procedure) page(s) Puerto Rico Pennsylvania Pacific Pace Law Review Pakistan Publitschnoje Akzionernoje Obschtschestwo (Public Stock Company) paragraph(s) Pasicrisie belge (journal) Permanent Court of International Justice Permanent Court of International Justice Series A (reporter) Penn State Law Review pharmaceutics, pharmaceutical(s) Philippines People’s Republic of China Preliminary Remarks production property protection public Law Reports – Queen’s Bench Division Queensland Court of Appeal (neutral citation), available at http://www. austlii.edu.au/ (last visited Apr. 29, 2019) Russian Arbitration Association Rabels Zeitschrift für ausländisches und internationales Privatrecht (journal)

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List of Abbreviations and Acronyms RDJ .......................... RdW ........................ Recueil des Cours ref. ........................... res. ........................... Rev. arb. ................. Rev. crit. dr. int. pr. RG ........................... RGZ ........................ RHDI ...................... RICO ...................... Riv. Dir. Int. Priv. Proc. ........................ Riv. Dir. Proc. ....... RIW ........................ RRA ........................ RSDIE ..................... S. Ct. ....................... S.A. .......................... S.C.C. ...................... S.D. .......................... S.S. ........................... S.W.2d .................... SA ............................ SCC ......................... SCC Rules .............. SchiedsVZ .............. sci. ........................... SCR ......................... SCUK ...................... SEC ......................... sec. ........................... sect. ......................... Sep. .......................... serv. ......................... SIAR ........................ SJ .............................. SJZ ........................... SLR .......................... SLR(R) .................... SN ............................ soc. .......................... Stan. J. Int’l L. ....... StR ........................... Sup. Ct. .................. Swiss Int’l Arb. L. Rep. ......................... sys. ........................... SZ ............................ SZIER ..................... TDM ....................... tech. ......................... Tenn. ...................... Tex. .........................

Abbreviations

Revista de Derecho y Jurisprudencia y Gaceta de los Tribunales (journal) Recht der Wirtschaft (journal) Recueil des Cours, Académie de Droit International de la Haye = Collected Courses, Hague Academy of International Law refining resource(s) Revue de l’arbitrage (journal) Revue critique de droit international privé (journal) Reichsgericht (Supreme Court of the German Reich until 1945) Entscheidungen des Reichsgerichts in Zivilsachen (official collection of Supreme Court of the German Reich decisions in civil matters until 1945) Revue hellénique de droit international Racketeer-Influenced and Corrupt Organizations Act (US) Rivista di diritto internazionale privato e processuale (journal) Rivista di diritto processuale (journal) Recht der Internationalen Wirtschaft (journal) Revista română de arbitraj (journal) Revue suisse de droit international et de droit européen (journal) United States Supreme Court (reporter) South African Law Reports; Société Anonyme Supreme Court Cases (India) (reporter) Southern District Steamship South Western Reporter (second series) Société Anonyme Stockholm Chamber of Commerce Rules of the Arbitration Institute of the Stockholm Chamber of Commerce Zeitschrift für Schiedsverfahren (German Arbitration Journal) science Supreme Court Reports Supreme Court of the United Kingdom U.S. Securities and Exchange Commission security/-ies section(s) September service Stockholm International Arbitration Review (journal) La Semaine judiciaire (journal) Schweizerische Juristen-Zeitung (journal) Singapore Law Reports Singapore Law Reports (Reissue) Sąd Najwyższy (Polish Supreme Court) social Stanford Journal of International Law Steuer Revue (journal) Supreme Court Swiss International Arbitration Law Reports system(s) Entscheidungen des österreichischen Obersten Gerichtshofes in Zivil- und Justizverwaltungssachen (official collection of Austrian Supreme Court decisions in civil and administration of justice matters) Schweizerische Zeitschrift für internationales und europäisches Recht (journal) Transnational Dispute Management technology Tennessee Texas

XXI

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Abbreviations Tex. Int’l L.J. ......... Tex. L. Rev. ........... TGI .......................... Thai. ........................ TPI .......................... trans. ....................... transp. ..................... Trin. & Tobago .... TS ............................ Tul. J. Int’l & Comp. L. ................ Tul. L. Rev. ............ Tur. Com. L. Rev. TvA ......................... U. Miami L. Rev. . U. Pa. J. Int’l L. .... U.N.T.S. ................. U.S. .......................... U.S. App. LEXIS .. U.S. Dist. LEXIS ... U.S.C. ...................... UAE ........................ UK ........................... UKHL ..................... UKPC ..................... Ukr. ......................... UKSC ...................... UN .......................... UN Doc. ................. UNCITRAL ........... UNCITRAL Rules UNESCO ............... UNIDO .................. UNIDROIT ........... Unif. L. Rev. .......... univ. ........................ UNÜ ....................... UNWTO ................ UPU ........................ US ............................ USSR ....................... v. .............................. V.I. .......................... Va. ........................... Va. J. Int’l L. ......... Vand. J. Transnat’l L. .............................. VersR ...................... Vestnik VAS RF ... vol. ........................... VSC ......................... W. ............................ W.D. .......................

XXII

New York Convention Texas International Law Journal Texas Law Review Tribunal de Grande Instance (French court of first instance) Thailand Tribunal de Première Instance (court of first instance) translation transport Trinidad and Tobago Tribunal Supremo (Spanish Supreme Court) Tulane Journal of International & Comparative Law Tulane Law Review Turkish Commercial Law Review Tijdschrift voor arbitrage (journal) University of Miami Law Review University of Pennsylvania Journal of International Law United Nations Treaty Series United States Reports (US) LexisNexis database for U.S. Court of Appeals cases LexisNexis database for U.S. District Court cases United States Code United Arab Emirates United Kingdom United Kingdom House of Lords (neutral citation), available at http://www. bailii.org/uk/cases/UKHL/ (last visited Apr. 29, 2019) United Kingdom Privy Council Decisions (neutral citation), available at http://www.bailii.org/uk/cases/UKPC/ (last visited Apr. 29, 2019) Ukraine United Kingdom Supreme Court (neutral citation), available at http://www. bailii.org/uk/cases/UKSC/ (last visited Apr. 29, 2019) United Nations Official documents of the United Nations United Nations Commission on International Trade Law UNCITRAL Arbitration Rules United Nations Educational, Scientific and Cultural Organization United Nations Industrial Development Organization International Institute for the Unification of Private Law Uniform Law Review university UN-Übereinkommen (the New York Convention) World Tourism Organization Universal Postal Union United States Union of Soviet Socialist Republics versus (against) Virgin Islands Virginia Virginia Journal of International Law Vanderbilt Journal of Transnational Law Versicherungsrecht – Zeitschrift für Versicherungsrecht, Haftungs- und Schadensrecht (journal) Vestnik Visshij Arbitrazhnij Syd, Russian Federation (Review of the Supreme Arbitrazh Court of the Russian Federation) volume Supreme Court of Victoria (neutral citation), available at http://www.austlii. edu.au/ (last visited Apr. 29, 2019) West(ern) Western District

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List of Abbreviations and Acronyms WAMR ................... WASC .................... WASCA ................. Wash. ...................... wbl ........................... WBR ....................... WHO ...................... WIPO ..................... Wis. ......................... WL .......................... WLR ....................... WM ......................... WMO ..................... WWR ..................... Wyo. ....................... Y.B. .......................... Y.B. Com. Arb. ..... Y.B. ILC ................. Yale J. Int’l L. ........ Yale L.J. .................. ZEuP ....................... ZEV ......................... ZfRV ....................... ZGR ........................ ZIP .......................... ZLR ......................... ZPO ........................ ZVglRWiss ............ ZZP .........................

Abbreviations

World Arbitration & Mediation Report (journal) Supreme Court of Western Australia (neutral citation), available at http:// www.austlii.edu.au/ (last visited Apr. 29, 2019) Supreme Court of Western Australia (Appeal) (neutral citation), available at http://www.austlii.edu.au/ (last visited Apr. 29, 2019) Washington Wirtschaftsrechtliche Blätter (journal) Wetboek van Burgerlijke Rechtsvordering (Netherlands code of civil procedure) World Health Organization World Intellectual Property Organization Wisconsin Westlaw (database) The Weekly Law Reports Wertpapier-Mitteilungen, Zeitschrift für Wirtschafts- und Bankrecht (journal) World Meteorological Organization Western Weekly Reports Wyoming Yearbook Yearbook of Commercial Arbitration (journal) Yearbook of the International Law Commission, available at http://legal.un. org/ilc/publications/yearbooks/ (last visited Apr. 29, 2019) Yale Journal of International Law Yale Law Journal Zeitschrift für Europäisches Privatrecht (journal) Zeitschrift für Erbrecht und Vermögensnachfolge (journal) Zeitschrift für Rechtsvergleichung (journal) Zeitschrift für Unternehmens- und Gesellschaftsrecht (journal) Zeitschrift für Wirtschaftsrecht (journal) Zimbabwe Law Reports Zivilprozessordnung (German code of civil procedure) Zeitschrift für Vergleichende Rechtswissenschaft (journal) Zeitschrift für Zivilprozess (journal)

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NEW YORK CONVENTION CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS OF 10 JUNE 1958 Preliminary Remarks* Specific Bibliography: Berkowitz/Moenius/Pistor, Legal Institutions and International Trade Flows, 26 MIJIL 163 (2004); Binder/Zemanek, Das Völkervertragsrecht, in: Reinisch (ed.), Österreichisches Handbuch des Völkerrechts, 5th ed., Manz 2013; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Briner/Hamilton, The History and General Purpose of the Convention: The Creation of an International Standard to Ensure the Effectiveness of Arbitration Agreements and Foreign Arbitral Awards, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 3; Cheng, Celebrating the Fiftieth Anniversary of the New York Convention, in: van den Berg (ed.), 50 Years of the New York Convention, ICCA Congress Series No. 14, Kluwer Law International 2009, p. 679; Di Pietro, General Remarks on Arbitrability Under the New York Convention, in: Mistelis/Brekoulakis (eds), Arbitrability: International & Comparative Perspectives, Kluwer Law International 2009, p. 85; Di Pietro/Platte, Enforcement of International Arbitration Awards: The New York Convention of 1958, Cameron May 2001; Gaillard, The Urgency of Not Revising the New York Convention, in: van den Berg (ed.), 50 Years of the New York Convention, ICCA Congress Series No. 14, Kluwer Law International 2009, p. 689; Gharavi, The International Effectiveness of the Annulment of an Arbitral Award, Kluwer Law International 2002; Glossner, From New York (1958) to Geneva (1961) – a veteran’s diary, in: United Nations (ed.), Enforcing Arbitration Awards under the New York Convention: Experience and Prospects, 1999, available at https://uncitral.un.org/sites/uncitral.un.org/files/mediadocuments/uncitral/en/nycday-e.pdf (last visited Apr. 9, 2019), p. 5; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Hanotiau/Caprasse, Public Policy in International Commercial Arbitration, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 787; ICC, ICC Guide to National Procedures for Recognition and Enforcement of Awards under the New York Convention, 2nd ed., Special Supplement 2012, ICC Publications 2013; Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Liebscher, The Healthy Award, Kluwer Law International 2003; Mistelis/Lagerberg, International Arbitration: Corporate attitudes and practices 2008, PricewaterhouseCoopers 2008, available at: http://www.pwc.co.uk/assets/pdf/pwc-international-arbitration-2008.pdf (last visited Apr. 9, 2019); Mustill, Arbitration: History and Background, (1983) 6 J. Int. Arb. 43; Myburgh/Paniagua, Does International Commercial Arbitration Promote Foreign Direct Investment?, 59(3) J.L. & Econ. 597 (2016); Paulsson, Enforcing Arbitral Awards Notwithstanding a Local Standard Annulment (LSA), 9(1) ICC Bull. 14 (1998); M. R. P. Paulsson, The 1958 New York Convention in Action, Kluwer Law International 2016; Rubins/Kinsella, International Investment, Political Risk and Dispute Resolution, A Practitioner’s Guide, Oceana Publications 2005; Schlechtriem/Schwenzer (eds), Kommentar zum einheitlichen UN-Kaufrecht, 6th ed., C. H. Beck 2013; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, The New York Convention of 1958: An Overview, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 39; van den Berg, Hypothetical Draft Convention on the * I would like to thank Zrinka Reisinger, Thomas Christ, and Khristina Siletskaya for their valuable assistance in preparing the text for the first edition.

Liebscher

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Prel. Rem. 1

New York Convention

International Enforcement of Arbitration Agreements and Awards: Explanatory Note, in: van den Berg (ed.), 50 Years of the New York Convention, ICCA Congress Series No. 14, Kluwer Law International 2009, p. 649; van den Berg, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958, Audiovisual Library of International Law available at: http://legal.un.org/avl/ faculty/vandenBerg.html (last visited Apr. 9, 2019) (“Online Commentary”); Wetter, The Present Status of the International Court of Arbitration of the ICC: An Appraisal, 1 Am. Rev. Int’l Arb. 91 (1990). Table of Contents I. General Overview.................................................................................................... 1. The New York Convention.............................................................................. a) Arbitration...................................................................................................... b) Enforceability................................................................................................. c) The Provisions of the New York Convention ....................................... 2. Objectives of the Convention .......................................................................... 3. The Importance and Relevance of the New York Convention ............... 4. The Convention’s Title: Recognition and Enforcement of Foreign Arbitral Awards................................................................................... a) Distinction Between Recognition and Enforcement ............................ b) Recognition and Enforcement of Arbitration Agreements................. 5. Distinction Between Challenge of the Award and Enforcement ............ 6. Achievements of the New York Convention ............................................... II. History of the Convention.................................................................................... 1. The Legal Regime Preceding the New York Convention ......................... a) The 1923 Geneva Protocol ......................................................................... b) The 1927 Geneva Convention ................................................................... 2. The Origins of the New York Convention – Drafting History ............... III. Temporal Scope of Application ........................................................................... IV. Reform Efforts ............................................................................................................ 1. Criticisms of the New York Convention ...................................................... a) Acknowledgments ........................................................................................ b) Shortcomings ................................................................................................. aa) Writing Requirement ........................................................................... bb) Grounds for Refusal of Enforcement ............................................... cc) Public Policy........................................................................................... 2. The Future of the Convention ........................................................................ V. Interpretation of the Convention ........................................................................ 1. Rules of Interpretation ...................................................................................... 2. Methods of Interpretation ................................................................................ a) Wording.......................................................................................................... b) Context............................................................................................................ c) Object and Purpose...................................................................................... d) Legislative History ........................................................................................ 3. Current Interpretation of the Convention.................................................... VI. Implementing Legislation ........................................................................................ 1. The 2008 UNCITRAL Report ......................................................................... 2. The ICC Task Force Report............................................................................. VII. Improving the Implementation of the New York Convention ....................

1 1 2 5 8 17 18 21 21 26 29 38 41 43 43 45 48 55 61 61 61 62 63 67 68 69 72 72 78 83 84 87 91 92 97 97 100 102

I. General Overview 1. The New York Convention 1

The New York Convention is a key instrument in international arbitration. One might even say that it was the Convention that has allowed arbitration to become the primary method of solving disputes in international trade and commerce. In order to be able to fully appreciate the relevance of the Convention, one should take a closer look at arbitration as such. What is arbitration?

2

Liebscher

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Prel. Rem.

a) Arbitration Arbitration is a form of private dispute resolution in which two or more parties refer 2 their dispute to an arbitral tribunal (generally consisting of one or three “arbitrators”) by whose decision they agree to be bound. The decision makers are thus not state court judges, but arbitrators who are usually chosen by the parties. In many jurisdictions, the decision of the arbitrators (the “award”) has the same legal force as a final judgment of a state court of last instance. Arbitration is often used for the resolution of commercial disputes and has become especially important in the context of international commercial transactions. Since it constitutes a deviation from the fundamental right of recourse to the state 3 courts, the parties must agree upon arbitration. An arbitration agreement must therefore be concluded between the parties to arbitration. In practice, an arbitration clause is usually inserted into a contract for this purpose. Unless the parties to arbitration settle their claims, the arbitration is concluded by the 4 arbitrators rendering the arbitral award. An arbitral award is analogous to a judgment of a state court. Arbitral awards are usually not subject to appeal and are therefore considered to be “final.” Most countries, however, allow arbitral awards to be “challenged” on limited grounds, such as the violation of public policy or the lack of jurisdiction of the arbitral tribunal (Õ paras 67 et seq.). b) Enforceability It has already been mentioned that arbitration is a matter of great importance to 5 international commerce. The primary advantage of international arbitration is enforceability. Thanks to the New York Convention, to which 161 countries had acceded by September 2019 (Õ Annex II), a foreign arbitral award can be enforced in many countries around the world. The overwhelming majority of countries that are of significance in international commerce are party to the Convention. The Convention requires the courts of Contracting States to give effect to arbitra- 6 tion agreements and to recognize and enforce foreign arbitral awards. Arbitral awards must, however, undergo court proceedings in order to obtain a declaration of enforceability in the State where recognition and enforcement are sought (exequatur). Certain limited defenses may be raised against recognition and enforcement (Õ Art. V paras 85–586). In order to facilitate the following appraisal of the New York Convention, a short 7 summary of its provisions is provided below. c) The Provisions of the New York Convention Article I(1) provides that the Convention applies to arbitral awards made in any 8 State other than the one where recognition and enforcement are sought and to awards that are not considered to be domestic awards in the State where their recognition and enforcement are sought (Õ Art. I para. 2, Õ Art. I paras 12–92, Õ Art. I paras 93–137). Article I(3) sets forth two reservations that can be adopted by States that accede to the Convention, the reciprocity and the commercial reservation (Õ Art. I para. 4). Article II(1) defines what an arbitration agreement is and obliges the Contracting 9 States to recognize such agreements (Õ Art. II para. 40). Article II(2) defines one requirement of a valid arbitration agreement, namely that it be in writing (Õ Art. II para. 73). Article II(3) obliges the courts of the Contracting States to refer a matter to arbitration upon request by a party if it is covered by an arbitration agreement (Õ Art. II paras 189–190).

Liebscher

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Prel. Rem. 10–17 10

11

12

13

14

15

16

New York Convention

Article III obliges each Contracting State to recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the country where the award is being relied on (Õ Art. III para. 7). Contracting States may not discriminate against foreign arbitral awards compared to domestic awards (Õ Art. III para. 24). Article IV sets forth the formalities to be observed in order to obtain recognition and enforcement of an arbitral award. It specifies the evidence to be submitted by the party applying for recognition and enforcement (Õ Art. IV para. 1, Õ Art. IV paras 8–37). Article V, one of the Convention’s core provisions, contains the reasons why recognition and enforcement of an arbitral award may be refused. The party against whom the award is invoked must raise certain defenses themselves (Article V(1), Õ Art. V para. 85, Õ Art. V para. 128, Õ Art. V para. 196, Õ Art. V para. 262, Õ Art. V para. 351, Õ Art. V paras 418–420, Õ Art. V para. 480), while other defenses are considered ex officio by the court (Article V(2), Õ Art. V para. 2). Article VI allows a court of a Contracting State to suspend the decision on enforceability of an arbitral award if proceedings challenging the arbitral award have been initiated in the country of the award’s origin (Õ Art. VI para. 1, Õ Art. VI paras 6–23). Article VII contains a “more favorable rights” provision.1 A party seeking recognition and enforcement of an arbitral award may base its respective request on any other treaty or domestic law if it deems this to be appropriate (Õ Art. VII para. 2, Õ Art. VII paras 35–62). Article VIII specifies which countries may join the New York Convention and how the ratification process is to be conducted (Õ Art. VIII para. 1, Õ Art. VIII paras 9–13). Article IX provides for the accession of States that were not among the original signatories to the Convention (Õ Art. IX para. 1, Õ Art. IX paras 6–14). Article X addresses the territorial scope of application (Õ Art. X para. 1, Õ Art. X paras 10–45) and Article XI the application in federal Contracting States (Õ Art. XI para. 1, Õ Art. XI paras 9–11). Article XII provides for the entry into force of the Convention (Õ Art. XII para. 1, Õ Art. XII paras 19–12) and Article XIII for its denunciation by a Contracting State (Õ Art. XIII para. 1, Õ Art. XIII paras 7–19). Article XIV addresses issues of reciprocity among the Contracting States (Õ Art. XIV para. 1, Õ Art. XIV paras 6–8). Articles XV and XVI specify administrative aspects (Õ Art. XV para. 1, Õ Art. XV paras 6–8 and Õ Art. XVI paras 1–2, Õ Art. XVI paras 5–9).

2. Objectives of the Convention 17

The principal objective of the Convention was to build an effective international legislative framework which would be capable of practical application and which would facilitate the recognition and enforcement of arbitral awards and arbitration agreements.2 This ambitious objective could only be achieved by drafting the Convention in a manner that would facilitate its acceptance by a large number of States. The Convention therefore aims to strike a balance between its main goal of facilitating international arbitration and simultaneously ensuring that the various fundamental legal principles of different States are observed. This balance was indeed successfully achieved and this paved the way for the Convention’s great success and widespread application. In fact, the Convention now links the world’s major trading States. 1 2

4

See also Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 444. Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 20.

Liebscher

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18–20a Prel.

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3. The Importance and Relevance of the New York Convention The New York Convention was signed on June 10, 1958 and entered into force on June 7, 1959. As already mentioned above, 161 countries had acceded to the Convention as of September 2019. It is without doubt one of the most successful international treaties. Moreover, the New York Convention is considered to be the cornerstone of current international commercial arbitration3 and has been referred to as “the single most important pillar on which the edifice of international arbitration rests.”4 The Convention was introduced into the international legal framework in recognition of the growing importance of international commercial arbitration. The drafters of the Convention acknowledged and, moreover, successfully addressed the needs of transnational business for a certain degree of autonomy from the national rules applicable to domestic trade5 as well as for certainty with respect to the recognition and enforcement of arbitral awards. The Convention provides for international legislative standards for the recognition of arbitration agreements and the recognition and enforcement of arbitral awards. As one of the most widely ratified commercial treaties in the world,6 the Convention has contributed significantly to the globalization of international commercial arbitration. Furthermore, it provided an incentive for the Contracting States to revise their national arbitration laws in light of modern international business needs7 and thus the Convention also enhanced the advantages of arbitration as a form of dispute settlement between parties to international transactions. The Convention’s contribution to the development of arbitration is even more apparent when one bears in mind that litigation does not have recourse to such unified legislative standards of recognition and enforcement. The degree of certainty afforded to a party in arbitration that it can have its award recognized and enforced almost anywhere in the world is one of the most important legal advantages of arbitration over litigation.8 In many parts of the world, it is easier to have a foreign arbitral award recognized and enforced than a foreign court judgment. However, this is not a general rule. The recognition and enforcement of foreign judgments in Member States of the European Union, for instance, has been significantly facilitated by the Brussels I Regulation,9 which entered into force on March 1, 2002 and has since been replaced by the Regulation of the European Parliament and of the Council (EU) No. 1215/2012 of December 12, 2012.10 Some studies indicate that the New York Convention has had a possible positive economic effect.11 These studies focus on legal institutions as well as on arbitration and their effect on international flows of trade and investments. Obviously, it is hardly possible to pinpoint any concrete economic effect as the direct result of the fact that a State has become a member of the New York Convention. Still, there are indications that becoming a member of the New York Convention sends a positive signal to the business community, encouraging economic exchange. 3

Van den Berg, NYC, p. 1. Wetter, 1 Am. Rev. Int’l Arb. 91 (1990). 5 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 11. 6 Rubins/Kinsella, International Investment, p. 352. 7 Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 20. 8 Kronke, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 3. 9 Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. 10 Regulation of the European Parliament and of the Council (EU) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. 11 Myburgh/Paniagua, 59(3) J.L. & Econ. 597 (2016); Berkowitz/Moenius/Pistor, 26 MIJIL 163 (2004). 4

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4. The Convention’s Title: Recognition and Enforcement of Foreign Arbitral Awards 21

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a) Distinction Between Recognition and Enforcement The title of the Convention refers to recognition and enforcement of arbitral awards. Both recognition and enforcement are concerned with giving effect to the award rendered, as opposed to a challenge of such award, which is aimed at attacking the validity of the award. It is important to note, however, that even though the concepts of recognition and enforcement are intertwined, they are nonetheless two distinct procedural actions. Recognition of an award is the first step in giving effect to the award. Recognition is often called exequatur and refers to the national court proceedings in which a court renders a decision confirming the award.12 Such decision recognizes the validity of the award rendered by the arbitral tribunal and the binding effect of such award upon the parties to the arbitral proceedings. An award may be recognized without being enforced.13 The enforcement of an award is considered to be a further procedural step. An action for enforcement presupposes that the court has already recognized the award. These concepts must be analyzed in light of the respective objectives of each of these actions. Generally speaking, recognition is a defensive process, in which the court is asked to recognize the legal effect of an award. The party seeking recognition seeks to prevent the same issues decided upon in previous arbitral proceedings from being raised in potential new proceedings. Furthermore, recognition can be useful for tax reasons where a party wants to have proof of the existence of a debt or receivables.14 When used as a defense, the court is asked to recognize the award by invocation of its res iudicata effect, meaning matters in issue between the parties have already been decided. In this case, the party seeking recognition of an arbitral award seeks to rely on this award by using it as a “shield” to prevent issues that have already been decided on in the award from being raised again.15 Enforcement is a further procedural step. Enforcement is a proactive procedural action in which a party seeks to obtain redress from the award rendered in its favor. Hence, in contrast to recognition, enforcement is used as a “sword.”16 The party petitions the court to carry out the award rendered in its favor by applying legal actions that may take various forms. These legal actions are intended to compel the defaulting party to execute the award. However, it should be noted that the Convention deals with enforceability and not with enforcement as such. The actual enforcement is subject to the local rules on enforcement, such as, for instance, rules on how to seize property or to forfeit bank accounts of the defaulting party. As regards the necessity to distinguish recognition from enforcement, some authors17 claim that the Convention’s predecessor, the 1927 Geneva Convention (Õ Annex V 2), was clearer in this respect as it referred to “recognition or enforcement.” 12

Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-10. Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.19; see UK: Dallal v. Bank Mellat, [1986] All E.R. 239 = [1986] 2 WLR 745 = XI Y.B. Com. Arb. 547 (1986), where it was held that an award rendered by the Iran-US Claims Tribunal was to be recognized but was not enforceable under the New York Convention. 14 Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-11. 15 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.23. 16 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.23. 17 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.19. 13

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b) Recognition and Enforcement of Arbitration Agreements Although the title of the Convention18 only mentions the recognition and enforce- 26 ment of arbitral awards, the Convention also applies to the recognition and enforcement of arbitration agreements (Õ Art. II para. 40). The Convention recognized and endorsed19 the need for international commercial arbitration agreements to be given effect internationally and not solely in the place where the agreement was made.20 The Convention thus in fact covers two fundamental aspects of international commercial arbitration: the recognition and enforcement of arbitration agreements and the recognition and enforcement of arbitral awards.21 The title of the Convention might thus be considered to be too narrow. Article II(1) provides for the recognition of arbitration agreements (Õ Art. II 27 para. 40), while Article II(3) provides for the enforcement of arbitration agreements (Õ Art. II paras 189–190). The enforcement of an arbitration agreement is effected by a court’s referral of the parties to arbitration. At the request of one of the parties, the court shall enforce an arbitration agreement by referring the parties to arbitration unless it finds that the respective agreement is null and void, inoperative or incapable of being performed. The court may not refer the parties to arbitration on its own motion; one of the parties must invoke the arbitration agreement. Should a party fail to do so, the court will retain its jurisdiction over the case. However, provided the conditions are fulfilled, the court’s referral of the parties to arbitration is mandatory.22 Unlike its scope in relation to arbitral awards, the Convention’s field of application 28 with respect to arbitration agreements is not defined. The Convention does not specify which arbitration agreements come within its scope. On the basis of analogy from Article I, which refers to the field of application with regard to foreign arbitral awards (Õ Art. I para. 2, Õ Art. I paras 12–92, Õ Art. I paras 93–137),23 the Convention applies to arbitration agreements providing for arbitration in a State other than the State where the agreement is invoked (Õ Art. II para. 26). Consequently, Article II applies whenever the place (or seat) of arbitration is in a State other than the forum State.24 However, Article I(1) does not apply if the place of arbitration is in the forum State (Õ Art. II para. 28, Õ Art. II para. 32). Some jurisdictions therefore exclude the application of Article II in this case.25 Other jurisdictions extend the scope of Article II to cases where the arbitration agreement has an international element, such as the international nature of the subject matter, the foreign nationality of one of the parties or the existence of a foreign head office of one of the parties (Õ Art. II para. 27, Õ Art. II para. 30).26 18 The full title of the Convention is: “Convention on the Recognition and Enforcement of Foreign Arbitral Awards.” 19 This vital requirement was already recognized in the 1923 Geneva Protocol. 20 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 1.57. 21 Van den Berg, NYC, p. 383. 22 Van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 51. 23 That is, arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought. 24 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 41 et seq. 25 Switzerland: BG, 26(2) ASA Bull. 329–352 at reason 2 (2008); BG, 14(3) ASA Bull. 527–532 at reason 2a (1996); see Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 42; van den Berg, NYC, pp. 57 et seq. 26 India: Gas Authority of India, Ltd. v. SPIE-CAPAG, S.A., XXIII Y.B. Com. Arb. 688, 697 (1998) = AIR 1994 Delhi 75; US: Smith/Enron Cogeneration, Ltd. v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 92 (2d Cir. 1999) = 1999 U.S. App. LEXIS 32097 = XXV Y.B. Com. Arb. 1088, 1091–1095 (2000); see Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 42, as well as van den Berg, NYC, pp. 57 et seq.

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5. Distinction Between Challenge of the Award and Enforcement A number of courts have – correctly – distinguished between “primary jurisdiction” and “secondary jurisdiction.”27 The first refers to the challenge of the award, the second to the recognition and enforcement of the award.28 While Article V of the Convention provides the grounds for refusal of recognition and enforcement of an award by the enforcing court (Õ Art. V para. 85, Õ Art. V para. 128, Õ Art. V para. 196, Õ Art. V para. 262, Õ Art. V para. 351, Õ Art. V paras 418–420, Õ Art. V para. 480), it does not harmonize the grounds for challenging an award. It only deals with the situation where an award has been set aside in the State in which it was made (Õ Art. V para. 377). In this case, a Contracting State may refuse recognition and enforcement of the award (Õ Art. V para. 391). 30 The purpose of challenging an award before a national court at the seat of arbitration is usually to have it set aside in whole or in part.29 While recognition and enforcement are concerned with giving effect to an arbitral award, challenging an award therefore involves attacking the award at its source.30 The grounds on which such an action may ensue are governed by domestic law and unregulated on an international level (Õ Art. V para. 379). 31 The international arbitral community considers this discretion given to domestic courts with respect to setting aside arbitral awards as a hindrance to a uniform international regime. As a further step towards harmonization of domestic legislation, Article 34 of the Model Law adopted the grounds for refusal of recognition and enforcement of an arbitral award set forth in the Convention as grounds for the setting aside of an arbitral award by a national court at the seat of arbitration. 32 The grounds for the setting aside of an arbitral award provided by the Model Law can be broadly organized into grounds relating to the adjudicability of the claim in question (such as issues of incapacity, invalid arbitration agreements, tribunals exceeding their powers or arbitrability of the dispute’s subject-matter), procedural grounds (such as lack of due process or irregularities in the composition of the arbitral tribunal) and substantive grounds (violation of public policy).31 29

27 US: (with an extensive interpretation of the scope of the New York Convention) Mitchell v. Tillett, XLII Y.B. Com. Arb. 653 (2017) (N.D. Cal. 2016); Xiangkai Xu v. China Sunergy (US) Clean Tech Inc., XLII Y.B. Com. Arb. 612 (2017) (N.D. Cal. 2016); Cvoro v. Carnival Corp., XLII Y.B. Com. Arb. 668 (2017) (S.D. Fla. 2016); Thai-Lao Lignite (Thai.) Co. v. Gov’t of the Lao People’s Democratic Republic, XLII Y.B. Com. Arb. 713 (2017) (2d Cir. 2017); Sharp Corp. v. Hisense USA Corp., 292 F. Supp. 3d 157 (D.D.C. 2017) = XLIII Y.B. Com. Arb. 678 (2018); Ziad Sakr Fakhri v. Marriot Int’l Hotels Inc., 201 F. Supp. 3d 696 (D. Md. 2016) = XLIII Y.B. Com. Arb. 585 (2018); Salini Costruttori S.P.A. v. Kingdom of Morocco, 233 F. Supp. 3d 190 (D.D.C. 2017) = XLIII Y.B. Com. Arb. 604 (2018); OJSC Ukrnafta v. Carpatsky Petroleum Corp., XLIII Y.B. Com. Arb. 664 (2018) (S.D. Tex. 2017); without using this terminology: Moldova: Supreme Court of Justice, XLII Y.B. Com. Arb. 444 (2017); Romania: Sup. Ct., XLII Y.B. Com. Arb. 499 (2017); Kenya: Tracer Ltd. v. SGS Kenya Ltd., XLIV Y.B. Com. Arb. ___ (2019), also available at http://kenyalaw.org/caselaw/cases/export/143800/pdf (last visited Apr. 29, 2019). 28 See e.g. Kenya: Kundan Singh Construction Ltd. v. Tanzania National Roads Agency, XL Y.B. Com. Arb. 449 (2015); US: CBF Industria de Gusa v. AMCI Holdings, Inc., 2014 U.S. Dist. LEXIS 49368 (S.D.N.Y. 2014) = XXXIX Y.B. Com. Arb. 609 (2014); BCB Holdings Ltd. v. Gov’t of Belize, XL Y.B. Com. Arb. 590 (2015) (D.D.C. 2015); Thai-Lao Lignite (Thai.) Co. v. Gov’t of the Lao People’s Democratic Republic, XXXIX Y.B. Com. Arb. 592 (2014) (S.D.N.Y. 2014); see also Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 471 (2015); Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 468 (2015); Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 464 (2015). 29 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 10.06. 30 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.17. 31 See also Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 10.41.

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Whereas over 74 States have adopted legislation based on the Model Law to date, the extent to which they followed, inter alia, the provisions of Article 34 varies quite significantly.32 The heterogeneity of national laws in respect of the validity of arbitral awards induces unpredictability and encourages forum shopping (Õ Art. V para. 385).33 This lack of regulation thus still allows national arbitration laws to have far-reaching international effects. Existing deviations from Article 34 of the Model Law can be either more or less stringent than the Model Law provision itself. Some States adopted more extensive criteria for reviewing arbitral awards than those provided by the Model Law. This may amount to a departure from challenge proceedings being the exclusive means of action against an arbitral award or to the adoption of more rigorous grounds for the setting aside of an award.34 Section 69(1) of the English Arbitration Act 1996, for instance, allows for an appeal to the court on a question of law arising out of an award. By permitting the judge to review the merits of the case, the English arbitration law thus deviates from the principle of exclusivity of challenge proceedings and allows for an appeal of the arbitral award.35 Other States, like Iran, Egypt or Brazil,36 have adopted grounds for the setting aside of an arbitral award that are not contained in the Model Law. Other States have adopted more relaxed measures for examining arbitral awards than those provided by the Model Law. France, for instance, adopted grounds for the setting aside of arbitral awards that are less rigorous than those of the Model Law.37 Israel even grants discretionary power to judges to refuse to set aside arbitral awards which fall under one of the grounds for setting aside if no miscarriage of justice has occurred.38

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6. Achievements of the New York Convention As stated in Õ para. 17, the Convention managed to strike a balance between the 38 development of international arbitration and the protection of the legal principles of different States. The Convention imposes a general obligation on Contracting States to recognize and enforce arbitral awards and arbitration agreements. At the same time, it allows an exception to this general obligation when these procedural actions are considered to breach the basic principles of the legal system in which they are sought.39 Together with the other international conventions on arbitration and the Model Law, 39 it has brought about modernization and harmonization of the national laws governing international arbitration.40 While the Convention (indirectly) lays down certain general principles, the Model Law provides detailed provisions for the different stages of arbitration.41 The underlying approach is to establish international standards for the conduct of arbitral proceedings. 32

See also Gharavi, International Effectiveness, pp. 32 et seq. Gharavi, International Effectiveness, pp. 42 et seq. 34 Gharavi, International Effectiveness, p. 33. 35 See also Gharavi, International Effectiveness, p. 33. 36 See Article 33 of the 1997 Iranian Law on International Commercial Arbitration, Article 53 of the 1994 Egyptian Law concerning Arbitration in Civil and Commercial Matters and Article 32 of the 1996 Brazilian Arbitration Act; see also Gharavi, International Effectiveness, pp. 36–38. 37 Article 1520 of the French Code of Civil Procedure; see also Gharavi, International Effectiveness, p. 41 (referring to Articles 1504 in conjunction with 1502 of the old law). 38 Article 26 (a) of the 1968 Israeli Arbitration Law; see also Gharavi, International Effectiveness, p. 42. 39 Di Pietro, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 5-4. 40 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 1.239. 41 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, paras 1.225 et seq. 33

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Still, settlement or voluntary compliance with an award seems to be the most common outcome of arbitral proceedings.42

II. History of the Convention The roots of the Convention can be traced back to the very beginning of the 20th century. At that point in time, there were only national arbitration laws and many courts in various countries did not look favorably upon arbitration.43 The increased use of international commercial arbitration showed up the inadequacy of the existing dispute resolution framework. The idea of unifying the laws on arbitration was already put forward in 1914 at the International Congress of Chambers of Commerce in Paris.44 After World War I, the newly established ICC45 took the initiative and advocated an international convention on arbitration. The ICC reiterated its idea in the form of resolutions, adopted at its London Congress in 1921 and at its Rome Congress in 1923. Meanwhile, the League of Nations urged those Member States whose legislation and court practice was not in favor of commercial arbitration to reconsider their position and to allow for steps which would ensure that arbitration agreements were respected. Finally, the initiative endorsed by the ICC and other major private organizations to provide for an international arbitration framework in the form of a convention was accepted by the League of Nations. The Assembly of the League of Nations held in Geneva on September 24, 1923 approved the Protocol on Arbitration Clauses (Õ Annex V 1). Four years later, the Convention on the Execution of Foreign Arbitral Awards (Õ Annex V 2) approved by the Assembly of the League of Nations in Geneva, on September 26, 1927 (jointly, the “Geneva Treaties”) supplemented this Protocol. 42 The Geneva Treaties therefore constituted the legal regime preceding the New York Convention.46 41

1. The Legal Regime Preceding the New York Convention 43

a) The 1923 Geneva Protocol The Geneva Protocol on Arbitration Clauses of 1923, commonly known as the 1923 Geneva Protocol (Õ Annex V 1), was approved by the Assembly of the League of Nations in Geneva and opened for signature on September 24, 1923. It entered into force on July 28, 1924. With the notable exceptions of the USA and the USSR,47 the Protocol was ratified by a number of major trading States.48 The Protocol provided for the recognition of arbitration agreements relating to existing or future differences between parties who were subject to the jurisdiction of different Contracting States (Article 1 of the Protocol). The Protocol also provided for the obligation of the courts 42

Mistelis/Lagerberg, Corporate attitudes and practices 2008, pp. 6 et seq. Van den Berg, NYC, p. 6. Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 4. 45 The ICC was founded in 1919. 46 Gharavi, International Effectiveness, p. 42. 47 Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 5. 48 Contracting States: Albania, Austria, Belgium, the British Empire (Great Britain, Northern Ireland, Southern Rhodesia, Newfoundland, British Guiana, British Honduras, Ceylon, Falkland Islands and Dependencies, Gambia, Gold Coast, Gibraltar, Jamaica [Turks & Caicos Islands, Cayman Islands], Kenya, Leeward Islands, Zanzibar, Tanganyika, St Helena, Uganda, Bahamas, Burma, New Zealand, India), Czechoslovakia, Denmark, Estonia, Finland, France, Germany, Greece, Iraq, Italy, Japan, Luxembourg, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Spain, Sweden, Switzerland, Thailand. 43 44

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of Contracting States to refer to arbitration those disputes brought before them which were subject to the aforementioned arbitration agreements (Article 4 of the Protocol). The Protocol thus established the international validity and enforceability of arbitration clauses.49 However, as just mentioned, the Protocol’s scope was limited as it only applied to arbitration agreements made between parties from different Contracting States. Furthermore, the Protocol contained provisions regarding the arbitration procedure 44 and was the first multilateral convention to mention the question of enforcement of arbitral awards.50 It stipulated that the will of the parties and the law of the country in whose territory the arbitration takes place should govern the arbitral procedure (Article 2 of the Protocol). Further, the Protocol made the enforcement of awards compulsory.51 However, it only referred to the execution of arbitral awards in the territory of the Contracting State in which the award was rendered. The Protocol thus did not refer to foreign awards at all. Some of the Contracting States did not have any provisions relating to the enforcement of foreign arbitral awards in their national legal framework and in those Contracting States which did actually have respective provisions, the conditions for enforcement of foreign awards varied significantly.52 With the growth of international trade, there was certainly a need for a multilateral treaty on the international enforcement of foreign arbitral awards. b) The 1927 Geneva Convention The League of Nations commenced work on a new treaty upon the initiative of the 45 ICC and in 1927 set up a special committee53 in charge of the drafting of the new convention.54 The Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 (Õ Annex V 2), often referred to as the 1927 Geneva Convention, was approved by the Assembly of the League of Nations in Geneva and opened for signature on September 26, 1927. It entered into force on July 25, 1929. The list of Contracting States55 was similar to that of the 1923 Geneva Protocol, with the same notable exceptions being the USA and the USSR. The 1927 Geneva Convention was the first multilateral treaty referring to foreign arbitral awards56 and was considered to be a supplement and expansion to the 1923 Geneva Protocol. It regulated the enforcement of arbitral awards rendered under arbitration agreements that came within the scope of the 1923 Geneva Protocol.57 Notwithstanding the fact that this was a step forward, the 1927 Geneva Convention, 46 like the 1923 Geneva Protocol, had certain shortcomings. The Geneva Convention applied only to awards rendered in the territory of one of the Contracting States and 49

Van den Berg, NYC, p. 6. Gharavi, International Effectiveness, p. 46. 51 Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 6. 52 Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 6. 53 The special committee consisted of Mr. Anzilotti, Judge of the Permanent Court of International Justice, who acted as Chairman, Benjamin H. Connor, President of the American Chamber of Commerce in Paris and René Arnaud of the ICC. 54 Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 6. 55 Contracting States: Austria, Belgium (including Congo, Territory of Rwanda-Burundi), United Kingdom of Great Britain and Northern Ireland (including Newfoundland, Bahamas, British Guiana, British Honduras, Falkland Islands, Gibraltar, Gold Coast, Jamaica, Kenya, Palestine, Tanganyika, Uganda, Windward Islands, Zanzibar, Mauritius, Northern Rhodesia, Leeward Islands, Malta, Burma, New Zealand, India), Czechoslovakia, Denmark, Estonia, Finland, France, Germany, Greece, Italy, Luxembourg, Netherlands, Portugal, Romania, Spain, Sweden, Switzerland, Thailand. 56 Gharavi, International Effectiveness, pp. 46–47. 57 Van den Berg, NYC, p. 7. 50

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between parties who were subject to the jurisdiction of one of the Contracting States (Article I(1) of the Geneva Convention). Further, the party seeking enforcement carried the burden of proof that the conditions necessary for enforcement were fulfilled. One of these conditions was that the award for which enforcement was sought “has become” final in the country in which it was made (Article I(1)(d) of the Geneva Convention). Many courts interpreted this provision so that the party seeking enforcement was first required to obtain a leave of enforcement (exequatur) in the Contracting State in which the award was made. This requirement, in addition to the requirement of obtaining a leave of enforcement in the Contracting State in which the enforcement was actually sought, led to the situation of so-called “double exequatur.”58 This later proved to be very burdensome in practice59 and was a significant deficit of the Geneva Convention. Another condition was that the award had to be made in conformity with the agreement of the parties and the law governing the arbitration procedure, which was almost always the law of the Contracting State in which the arbitration took place.60 The New York Convention, on the contrary, provides that the composition of the arbitral tribunal and the arbitral procedure shall be in accordance with the agreement of the parties or (failing such agreement) in accordance with the law of the country where the arbitration took place. 47 Overall, the 1927 Geneva Convention made recognition and enforcement of foreign awards subject to a catalogue of conditions. It also conferred a major role on the courts in the Contracting State61 in which the arbitral award was made and relied heavily on domestic laws. This reflected once again the compromise necessary for such an international legal framework to be accepted by the Contracting States. However, this reliance on domestic laws resulted in significant differences in the Geneva Convention’s application due to the many differences in domestic laws and practices. In addition, it allowed the parties against whom enforcement was sought to raise numerous objections and hence to delay or avoid enforcement of the award.

2. The Origins of the New York Convention – Drafting History 48

Although a step forward, the Geneva Treaties proved to be an inadequate international framework for meeting the needs of international trade. The boom of the world economy after World War II was significant and the need for a better international legal framework became greater than ever before.62 The ICC studies in 1950 confirmed that the 1927 Geneva Convention (Õ Annex V 2) was out of date and did not satisfy the needs of contemporary international trade.63 As early as 1951, at its Lisbon Congress, the ICC lobbied for a reform in this regard. On March 13, 1953, the ICC adopted its draft Convention and accompanying report that reflected the underlying idea of a truly international arbitral award and, indeed, referred to the notion of an international award. It also aspired to arbitration proceedings that would not be governed by a particular domestic law.64 However, the idea of a truly international commercial arbitration framework, independent of domestic laws, was considered to be too radical by the majority of States.

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Van den Berg, NYC, p. 7. Gharavi, International Effectiveness, p. 47. 60 Van den Berg, NYC, p. 7. 61 Gharavi, International Effectiveness, pp. 47–48. 62 Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 8. 63 Van den Berg, Online Commentary, p. 1. 64 Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 9; van den Berg, NYC, p. 7. 59

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As a result, the United Nations Economic and Social Council at its seventeenth session, on April 6, 1954, by means of a resolution65 established an ad hoc committee to review and analyze the matter brought before it by the ICC and to propose a new draft, if it considered this necessary. The ad hoc committee produced a new draft of the Convention on the Recognition and the Enforcement of International Arbitral Awards.66 The new draft was considered to be a compromise between the idealistic views expressed in the ICC draft of a truly international arbitration framework and the realities of sovereign States that were not prepared to accept this revolutionary idea. The new draft Convention was transmitted to governments, the ICC and non-governmental organizations for their comments.67 Upon receiving the respective comments, the United Nations Economic and Social Council convened the United Nations Conference on International Commercial Arbitration. The Conference was held at the United Nations Headquarters, New York, from May 20, 1958 until June 10, 1958 and was attended by delegates from about forty States. Among them were a large number of highly respected officials and experts in the field.68 The new draft Convention prepared by the ad hoc committee of the United Nations as well as the comments received from governments and non-governmental organizations were used as the starting point for the discussions. The objective of the Conference was to remedy the shortcomings of the existing legal regime, i.e. the Geneva Treaties. This would be achieved by a completely new legal regime regulating the recognition and enforcement of both arbitration agreements and arbitral awards and providing uniform standards on an international level. However, this new legal regime was simultaneously also intended to take into account the will of the sovereign States and their national courts to carry it out. Evidently, the Conference faced a very ambitious task. One area in which there was dispute was the scope of application of the Convention.69 The draft Convention contained a territorial principle in such a way that it applied to an award made in the territory of a State other than that in which it was relied upon (i.e. where recognition and enforcement were sought). Several delegates at the Conference criticized the emphasis on the place in which the award was made, inter alia, the French delegate, one of whose concerns was that, according to French case law, arbitral awards rendered in France pursuant to a foreign law were considered as foreign. After referral of this matter to a Working Group for reconciliation, the territorial criterion ultimately remained in the text of the Convention but was amended so as to encompass awards that are considered to be foreign although rendered in the State where they are relied upon (Article I(1)(2)). Another disputed matter was whether to permit reservations limiting the scope of the Convention, in particular to awards made in the territory of another Contracting State (reciprocity) and to commercial disputes.70 Some delegates feared that States might refrain from acceding to the Convention at all if they were not allowed to restrict its application in such a way. Others, like the Ceylonese delegate, voiced their concern that allowing such reservations could impair the Convention’s effectiveness. Again, the 65

Resolution No. 520 (VII). E/2704 (Õ Annex IV 1). 67 Van den Berg, Online Commentary, p. 1. Also Õ Annex IV 1. 68 See e.g. the personal recollections of Ottoarndt Glossner, delegate at the 1958 Conference, Glossner, in: United Nations (ed.), Experience and Prospects, pp. 5 et seq. 69 See e.g. E/CONF.26/L.42 (Õ Annex IV 1); see also Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 15. 70 See e.g. E/CONF.26/L.49 (Õ Annex IV 1); see also Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 16. 66

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matter was referred to a Working Group and, after consideration by the plenary meeting, a reciprocity reservation was included in the text of the Convention at the disposal of the States acceding to it (Article I(3)(1)). Furthermore, at the suggestion of the Dutch delegate, Pieter Sanders, a commercial reservation was also included (Article I(3)(2)). 53 Further significant amendments to the draft Convention that were discussed and, on the recommendation of Dutch delegate Pieter Sanders, ultimately adopted by the plenary meeting were the inclusion of a provision on arbitral agreements (Article II)71 and the removal of the principle of a double exequatur (Õ Art. V para. 355).72 54 Finally on June 10, 1958, the Conference adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). It entered into force on June 7, 1959. The Convention replaced the Geneva Treaties. Article VII(2) stipulates that both Geneva Treaties shall cease to have effect between Contracting States on their becoming bound by the New York Convention.

III. Temporal Scope of Application Article XII provides for the entry into force of the Convention and sets forth the procedure for new Member States acceding to it (Õ Art. XII para. 1, Õ Art. XII paras 9–12). Pursuant to Articles VIII and IX, accession takes place by depositing the instrument of accession with the Secretary-General of the United Nations (Õ Art. VIII para. 19 and Õ Art. IX para. 12). The Convention enters into force in the respective Contracting State ninety days after such deposit. As international conventions are not self-executing in many States, a domestic legal act declaring the Convention applicable, respectively implementing it into national law, may also be required. 56 The Convention does not set forth rules regarding arbitral awards or arbitration agreements issued or concluded before the Convention comes into force in a Contracting State. Only a few countries have addressed this issue in their implementing acts and those that did often differ in the implementation.73 Courts of the Member States have also answered the question of retroactive application of the Convention quite differently.74 When the enforcement of the arbitration agreement or the arbitral award is sought, a variety of points in time may be taken into account in respect of both the arbitration and the Convention.75 With regard to the arbitration, these are the date of conclusion of the arbitration agreement, the date of commencement of the arbitral proceedings, the date on which the arbitral award is rendered and the date of commencement of the recognition and enforcement proceedings of the agreement or award.76 Where the Convention is concerned, in the absence of any implementing legislation there are two possible points in time to be considered: (i) the date when the Convention as such came into effect (June 7, 55

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E/CONF.26/SR.16 (Õ Annex IV 1). E/CONF.26/SR.17 (Õ Annex IV 1); for an overview of further amendments to the draft Convention see Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 18 et seq. 73 Van den Berg, NYC, p. 73. 74 For an overview see Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 515 et seq.; van den Berg, NYC, pp. 74 et seq. 75 Van den Berg, NYC, pp. 74 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.18. 76 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.18 with further references. 72

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1959) and (ii) the date on which the Convention entered into force in the country where recognition and enforcement are sought.77 It is a well-established principle that international conventions do not have retroactive effect on the contractual relations of the parties, unless a different intention appears from the treaty or is otherwise established.78 It has been argued that Article VII(2) establishes such a different intention.79 According to this view, a gap would exist in respect of arbitration agreements and awards made before the accession of States to the New York Convention which had adhered to the Geneva Treaties. However, it can be argued that, according to the very wording of Article VII(2), the Geneva Treaties cease to have effect only to the extent that States become bound by the Convention, which includes its temporal scope of application (Õ Art. VII paras 66–69).80 In view of arbitration being a process based on private autonomy, the better reasons, particularly the protection of the confidence of the parties, militate in favor of the application of the Convention as of the date of its entry into force in the respective country, unless it is determined otherwise in the country’s implementing legislation.81 This is obvious for arbitration agreements. It also applies to arbitral awards. The parties entered into the arbitration on the basis of a certain set of rules. Under different rules, they may have taken a different route, e.g. they may have settled the case instead. Article XIII offers Contracting States an opportunity to withdraw unilaterally without the consent of other Contracting States (Õ Art. XIII para. 7).82 Such denunciation will take effect one year after the date of receipt of the notification by the SecretaryGeneral of the United Nations (Õ Art. XIII para. 10). In order to preclude Contracting States from denouncing the Convention solely in order to prevent enforcement of an unfavorable arbitral award that has already been or may soon be rendered,83 the Convention continues to apply to any arbitral awards in respect of which recognition or enforcement proceedings were instituted before the denunciation takes effect (Õ Art. XIII para. 19). So far, denunciation of the New York Convention has never occurred. It is proposed84 that this is due in part to the Convention’s widely acknowledged importance for the enforcement of arbitral awards, combined with the absence of affirmative obligations for Contracting States that would make membership too burdensome or costly. Possible negative implications resulting from a withdrawal might also be a consideration. Furthermore, the Convention itself allows the Contracting States leeway for avoiding results detrimental to their national interests.85 Enforcement of an arbitral award can be refused based on the public policy exception (Õ Art. V para. 480). Invoking the reciprocity and/or the commercial reservation can narrow the Convention’s field of application. Finally, the Convention does not provide for any direct sanction against a Contracting State that does not comply with its obligations under the Convention.

77 Van den Berg, NYC, p. 74, further mentions the date on which the Convention entered into force in the foreign State where the arbitration is taking place or where the award is made, which may be relevant if the State where the enforcement is sought has used the reciprocity reservation of Article I(3). 78 See Article 28 of the 1969 Vienna Convention on the Law of Treaties. 79 Van den Berg, NYC, p. 78. 80 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 523. 81 See also Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 523 seq. 82 Port/Fuhr/Simonoff, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 532. 83 Port/Fuhr/Simonoff, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 533. 84 Port/Fuhr/Simonoff, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 534. 85 Port/Fuhr/Simonoff, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 534.

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IV. Reform Efforts 1. Criticisms of the New York Convention a) Acknowledgments 61 At the time when it was signed, the Convention represented a major step forward in the further development of international commercial arbitration. Even though it was not as radical as some had hoped and represented a balancing act between the need for truly international recognition and enforcement of awards and the need for the Convention to be widely accepted by the sovereign States, the Convention remains the most successful treaty in international arbitration. One might even argue that it was a far-sighted instrument which facilitated international trade and international co-operation. The Convention is in fact without doubt one of the most successful pieces of international legislation ever. Moreover, some authors go even further in stating that the Convention “perhaps could lay claim to be the most effective instance of international legislation in the entire history of commercial law.”86 62

b) Shortcomings Having said that, after more than 50 years certain adjustments seem necessary to bring the Convention into accordance with current legal, technical, political and economic developments.87 There is an ongoing debate on the shortcomings of the Convention and its practical implications.

aa) Writing Requirement. The most debated shortcoming is certainly the definition of the term “agreement in writing” as set out in Article II(2) (Õ Art. II para. 73). Pursuant to said provision, the term “agreement in writing” includes an arbitral clause in a contract or an arbitration agreement, signed by the parties (Õ Art. II paras 94 et seq.) or contained in an exchange of letters or telegrams (Õ Art. II paras 97 et seq.). Courts interpret the question of whether an exchange in writing has actually been accomplished differently. One view is that the party that signed the document should return it to the party that sent it (Õ Art. II paras 125 et seq.). Another view is that it is sufficient if a reference is made to the document in subsequent correspondence (such as letters and invoices) which originates from the party to which the document was sent (Õ Art. II paras 145 et seq.).88 64 It is generally well established that the form requirements of Article II(2) are leges speciales to domestic law, meaning that Article II(2) supersedes domestic law regarding the form of the arbitration agreement (Õ Art. II para. 56).89 However, it is debated whether the definition merely sets out an international maximum requirement for the formal validity of an arbitration agreement, or whether it also simultaneously sets out a minimum requirement (Õ Art. II para. 76).90 If assuming it is only a maximum requirement, courts would be entitled to accept less demanding requirements than the written form. If assuming that it would be both a maximum and a minimum requirement, courts could demand neither more nor less than required in Article II(2). Such a fixed standard is, e.g., advocated by the courts in Austria91 and in Germany,92 whereas 63

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Mustill, (1983) 6 J. Int. Arb. 43. Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 199. 88 Van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 48. 89 Van den Berg, NYC, p. 178. 90 Van den Berg, NYC, p. 178; van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 47. 91 Austria: OGH, JBl 1974, 629 = I Y.B. Com. Arb. 183 (1976). 92 Germany: BGH, SchiedsVZ 2005, 306 = XXXI Y.B. Com. Arb. 679 (2006). 87

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the latter simultaneously stress the possibility that if an arbitration agreement could not be valid under Article II(2), then it might be valid under the most-favored-nation clause of Article VII (Õ Art. II para. 177). In view of Article VII it is clear that Article II(2) ultimately sets forth only a maximum requirement in respect of the recognition and enforcement of arbitral awards. In any case, the requirements as set out in Article II(2) seem no longer to be in line 65 with contemporary business reality (Õ Art. II para. 17). The requirement that the agreement has to be exchanged in writing is outdated. Even when the European Convention was being drafted in 1961, the provision referring to the term “agreement in writing” (which mirrored Article II(2) of the New York Convention) was extended to encompass broader means of communication (Õ Art. II para. 75, Õ Art. II para. 130). As mentioned in Õ para. 63, some courts in the Contracting States try to overcome this shortcoming of the New York Convention by broadly interpreting the term “exchange of letters or telegrams” so that it fits contemporary business needs. With the ongoing advancement of business and technology, it is certain that new 66 questions will arise, such as the issue of whether an agreement concluded via email falls under Article II(2) (Õ Art. II para. 102, Õ Art. II para. 130). The debate on the necessity for revision of this provision will therefore certainly continue. This is also recognized by UNCITRAL in its recommendation adopted on July 7, 2006 (Õ Annex III), which recommends that Article II(2) should be “applied recognizing that the circumstances described therein are not exhaustive” (Õ Art. II para. 111). However, the question is rather more fundamental: why is a writing requirement necessary? The common reasons for a writing requirement are its probative force and the protection offered against precipitance. However, there are other important areas of law where no writing requirement applies. In many States, declarations of a merchant assuming a guarantee or acknowledging a debt are not subject to a writing requirement. Furthermore, there are States that are quite liberal as far as the form required for a valid arbitration agreement is concerned. A written agreement is not required, for instance, under French law on international arbitration. bb) Grounds for Refusal of Enforcement. Another provision which is considered to 67 constitute a shortcoming relates to the grounds for refusal of enforcement, more specifically to the ground stipulated in Article V(1)(e) that an award has been set aside by a competent authority of the country in which or under the law of which it was made. This means that the courts of the Contracting State in which enforcement is sought can refuse to recognize or enforce an award that has been set aside in another State. This indirectly makes the Convention dependent upon the domestic laws and systems of the country in which the award for which enforcement is sought was rendered and goes against the spirit of an international, independent award (Õ Art. V para. 352). It is argued that this provision is a potential weakness of the Convention and exposes the Convention to the local peculiarities of the State in which the award was rendered (Õ Art. V para. 384).93 In this respect, the European Convention of 1961 offers a more award-friendly solution by limiting the grounds upon which awards can be set aside and, indirectly, upon which the enforcement can be refused, as well as by excluding the public policy defense in the enforcement State (Õ Art. V paras 392–393). In any case, under the New York Convention the courts are given discretion to enforce the award notwithstanding its annulment in the country in which it was rendered. It is argued that the courts should exercise their discretion by verifying whether the basis for

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annulment by the court of the State in which the award was rendered was compliant with international standards (Õ Art. V para. 382).94 68

cc) Public Policy. The often vastly differing views of the Contracting States as to the notion of public policy, in particular as a ground for refusal of enforcement under Article V(2), have also proven to be a shortcoming of the Convention (Õ Art. V para. 480, Õ Art. V paras 521 et seq.). So far, all attempts to agree on a uniform solution have failed (Õ Art. V para. 491). The concepts behind the scope of this notion are often simply too different.95 This issue will be dealt with in Õ para. 93.

2. The Future of the Convention There is vigorous debate on how to remedy the Convention’s shortcomings and whether the Convention is in need of revision. Some authors96 advocate the need to revise the Convention by arguing that its shortcomings cannot be adequately remedied by other means. It is considered that the revised Model Law cannot be used as a remedy since it was decided that the Model Law should follow the New York Convention as closely as possible. The provisions regarding enforcement of arbitral awards in the Model Law are thus almost identical to the provisions in the Convention.97 Further, the UNCITRAL Recommendation adopted on July 7, 2006 (Õ Annex III) is also claimed to be of limited assistance. Professor van den Berg therefore put forward his proposal for a hypothetical draft convention98 which is intended to remedy the Convention’s shortcomings. It contains, inter alia, additional provisions like a definition of the scope of application with respect to agreements that fall under the referral provisions of Article II(3), revisions of certain provisions like Article II(2) setting forth the written form requirement, clarifications of various kinds and alignments of provisions with prevailing judicial interpretation. Professor van den Berg’s view is that since the draft builds upon the New York Convention, it can be interpreted as a necessary update and hence be more easily accepted by the States. 70 However, some argue differently. The great success of the Convention also creates an impediment to reform. If the Convention were modified, such modifications would have to be ratified by each Signatory State individually in the form of amendments. In the absence of such ratifications, there would not be one New York Convention, but many different “versions,” depending on whether a State had ratified the particular amendment or not.99 It is claimed that there is in fact no need for a revision purely because the language of the Convention is outdated and should be amended.100 Further, it is often considered that there is little chance that all Contracting States would genuinely be in favor of further enhancing the enforcement process.101 In addition, the Convention imposes a minimum standard in terms of enforcement and acts more as a safeguard than as the sole instrument upon which basis enforcement proceedings are conducted.102 Finally, there is the danger that States which do not adhere to the amendment might even use it to defend a more restrictive interpretation of the New 69

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Paulsson, 9(1) ICC Bull. 14 (1998). For examples regarding concepts of European public policy, see, e.g., Liebscher, Healthy Award, pp. 25 et seq. 96 Van den Berg, in: van den Berg (ed.), 50 Years of NYC, p. 649. 97 Van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 650. 98 Van den Berg, in: van den Berg (ed.), 50 Years of NYC, p. 649. 99 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 16. 100 Gaillard, in: van den Berg (ed.), 50 Years of NYC, pp. 689, 690. 101 Gaillard, in: van den Berg (ed.), 50 Years of NYC, pp. 689, 692. 102 Gaillard, in: van den Berg (ed.), 50 Years of NYC, pp. 689, 692. 95

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York Convention by pointing out that the amendment demonstrates that certain aspects were indeed not covered in the New York Convention, otherwise there would not have been a need for amendment in the first place. In any case, the Convention does not prevent States from passing laws that could be more liberal and favorable towards arbitration. It is therefore submitted that even unaltered, the Convention will not hinder the further development of arbitration law.103 Whether revised or not, the New York Convention will undoubtedly still maintain its 71 relevance in the international legal framework.

V. Interpretation of the Convention 1. Rules of Interpretation There is no uniformity in respect of the rules of interpretation applied by courts in the Contracting States in interpreting the New York Convention and its implementing legislation. Different sources of rules come into consideration for this purpose. A report on the Convention’s legislative implementation issued by UNCITRAL in June 2008104 revealed the great variety of rules applied by courts in the Contracting States in interpreting the Convention and its implementing legislation. According to UNCITRAL’s findings, many States agree that the Convention should be interpreted according to Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties, setting forth general rules of interpretation and defining supplementary means of interpretation, either in combination with other rules of interpretation or as the sole source of interpretation. Several States, upon ratifying or acceding to the Convention, made a declaration that the Convention was to be interpreted in accordance with the principles of their constitution. Other States use their statutes and provisions on interpretation contained in their respective civil code or code of civil procedure as a source of rules for interpreting the Convention. The UNCITRAL report furthermore revealed the use of various other approaches to the interpretation of the Convention, such as the consultation of a governmental or ministerial office or reference to the travaux préparatoires of the Convention as well as (less frequently) the travaux préparatoires of the implementing legislation and of the Model Law. A large number of Contracting States uses court decisions, whether domestic or from other Contracting States, as guidance for interpretation of the Convention. In 2006 UNCITRAL issued a recommendation regarding the interpretation of Article II(2) and Article VII(1) (Õ Annex III; Õ para. 67), which has been referred to by courts.105 The general question is therefore according to which rules the New York Convention is to be interpreted. In this regard, it should be borne in mind that the Convention constitutes a treaty. As a treaty, it is necessary to take the Convention’s international character into account.106 In respect of its interpretation, this means recognizing that

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Gaillard, in: van den Berg (ed.), 50 Years of NYC, pp. 689, 692. Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656. 105 See Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 (2013); Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 456 (2013). 106 See also Ferrari, in: Schlechtriem/Schwenzer (eds), UN-Kaufrecht, Art. 7 para. 9 in respect of the interpretation of the United Nations Convention on Contracts for the International Sale of Goods (CISG). 104

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the Convention is the result of international negotiations and did not come into being against the background of a national legal order.107 76 The Convention therefore needs to be interpreted autonomously, i.e. without recourse to national law. The necessity of an autonomous interpretation separate from any national law also pertains to the criteria applied to the interpretation. The international legal framework provides guidance in this regard. Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties provide for rules of interpretation specifically for treaties. It is therefore reasonable to interpret the New York Convention according to these rules. 77 In this respect it is irrelevant whether the respective Contracting State is also a signatory to the Vienna Convention on the Law of Treaties. The Convention’s provisions on the interpretation of treaties, embodied in Articles 31 and 32,108 have been accepted by the International Court of Justice109 not only as a treaty commitment but also as an expression of customary public international law.110

2. Methods of Interpretation 78

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In general, there are four methods of interpretation: grammatical interpretation (wording), systematic interpretation (context), teleological interpretation (object and purpose) and historical interpretation (legislative history). Article 31(1) of the 1969 Vienna Convention on the Law of Treaties determines that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of a treaty in their context and in light of its object and purpose. The paramount principle of interpretation is the observance of bona fides, i.e. that a treaty is to be interpreted in good faith. In respect of the methods of interpretation, the emphasis must be placed on the ordinary meaning of its wording in its context and on the treaty’s object and purpose. Pursuant to Article 32 of the 1969 Vienna Convention on the Law of Treaties, recourse to supplementary means of interpretation, including the preparatory work for the treaty and the circumstances of its conclusion, may only be had if the interpretation according to Article 31 leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable. This means that the historical interpretation is subsidiary to the grammatical, systematic and teleological interpretation. It can be argued that the other three should be deployed in this order. However, in practice, all three apply on a rather equal footing, the ordinary meaning having certain prevalence.

a) Wording 83 The wording is generally considered to be the starting point of the interpretation, i.e. the ordinary meaning of the terms of the treaty in their context.111 According to Article 31(4) of the Vienna Convention, deviation from the customary language used in this respect is only permissible if it has been established that this was the intention of the parties to the treaty. 107 See also Ferrari, in: Schlechtriem/Schwenzer (eds), UN-Kaufrecht, Art. 7 para. 9 in respect of the interpretation of the United Nations Convention on Contracts for the International Sale of Goods (CISG). 108 See M. R. P. Paulsson, NYC in Action, pp. 43 et seq. with further references. 109 See ICJ: Territorial Dispute (Libyan Arab Jamahiriya v. Chad), ICJ Reports 1994, pp. 6, 21–22, para. 41; Kasikili/Sedudu Island (Botswana v. Namibia), ICJ Reports 1999, pp. 1045, 1059, para. 18. 110 ICSID: Malaysian Historical Salvors SDN BHD v. The Government of Malaysia (ARB/05/10), Apr. 16, 2009 (unreported), available at http://icsid.worldbank.org (last visited Apr. 9, 2019), para. 56. 111 Binder/Zemanek, in: Reinisch (ed.), Österreichisches Handbuch des Völkerrechts, para. 323.

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b) Context As set forth by Article 31(1) of the Vienna Convention, the ordinary meaning of the 84 terms of the treaty must be established in view of their context. Pursuant to Article 31(2) of the Vienna Convention, the context for the purpose of 85 interpretation of a treaty comprises not only the text, its preamble and annexes, but also any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty, as well as any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. Article 31(3) of the Vienna Convention broadens the scope of the “context” even 86 further: any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation and any relevant rules of international law applicable in the relations between the parties must also be taken into account. c) Object and Purpose The guiding principle of the teleological interpretation is the intent of the law (ratio legis). A good example of the interpretation of the New York Convention in light of its object and purpose is the observance of a pro-enforcement bias of the Convention. In interpreting the Convention, several courts have been mindful of its pro-enforcement bias.112 In advocating a narrow reading of the public policy defense, a court argued that a general pro-enforcement bias could be inferred from the history of the Convention as a whole.113 An expansive construction of the defense, according to the court, would vitiate the Convention’s basic effort to remove pre-existing obstacles to enforcement.114 In particular, Articles IV–VI of the Convention are meant to facilitate the enforcement of arbitral awards. Other provisions of the Convention are also interpreted in light of this pro-enforcement bias, such as Article II(3), setting forth that a court can refuse to refer the parties to arbitration if it finds that the arbitration agreement is “null and void, inoperative or incapable of being performed” (Õ Art. II para. 309). Several courts have held that these words should be construed narrowly and the invalidity of the arbitration agreement should be accepted in manifest cases only (Õ Art. II para. 302).115

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d) Legislative History As mentioned in Õ para. 81, supplementary means of interpretation, including the 91 preparatory work for the treaty and the circumstances of its conclusion, may only be consulted if interpretation according to other methods results in ambiguity or obscurity, or leads to a result which is manifestly absurd or unreasonable. In view of the

112 US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274 (5th Cir. 2004) = XXIX Y.B. Com. Arb. 1262 (2004); see also US: MGM Prods. Group, Inc. v. Aeroflot Russian Airlines, 2004 WL 234871 (2d Cir. 2004) = XXIX Y.B. Com. Arb. 1215 (2004); Switzerland: BG, XXXVII Y.B. Com. Arb. 300, 305 (2012). 113 US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976). 114 US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976). 115 Van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 52.

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Prel. Rem. 92–97

New York Convention

interpretation of the New York Convention, this means that the travaux préparatoires may only be consulted subsidiarily.

3. Current Interpretation of the Convention 92

93

94

95

96

Regrettably, besides the different rules of interpretation outlined in Õ paras 73 and 74, there are also differences in the interpretation of the terms of the Convention, such as in respect of the term “agreement in writing” (Õ Art. II para. 73) and the notion of public policy (Õ Art. V para. 491). The problems associated with the writing requirement have already been outlined above (Õ paras 63 to 66). As indicated in Õ para. 68, the lack of uniform interpretation of the notion “public policy,” inter alia, as a ground for refusal of enforcement under Article V(2) may also lead to legal uncertainty and prove to be detrimental to the importance of the Convention in the international context (Õ Art. V paras 521 et seq.). The function of any public policy provision is to safeguard the “fundamental moral convictions of policies of the forum”116 (Õ Art. V para. 480, Õ Art. V para. 490). Often, the civil law term ordre public is used interchangeably.117 The content of public policy is highly relative and depends upon the conceptions of each individual State.118 It is generally accepted that only the fundamental notions of a particular legal system can be regarded as belonging to public policy.119 Naturally, the question of what is encompassed by these fundamental notions is answered differently in every State. EC competition law is a quite vivid example of the different interpretation of the notion of public policy (Õ Art. V para. 579). As early as 1969, the German Federal Supreme Court held that EC law is part of German public policy to the extent that it establishes the foundations of the common market and is not just concerned with the “expedient organization of affairs.”120 The Austrian Supreme Court held that its fundamental principles, for instance those of the internal market, have to be taken into account when considering the denial of enforcement of a foreign award on the ground of violation of public policy. Examples are Articles 81 and 82 of the former EC Treaty.121 The Swiss Supreme Court, however, did not consider EC competition law to be part of international public policy, which constitutes the applicable standard in case of an annulment claim.122 The aim should be to achieve uniform judicial interpretation, i.e. a definition of the scope of the notion of public policy in international commercial arbitration.

VI. Implementing Legislation 1. The 2008 UNCITRAL Report 97

In 1995, UNCITRAL decided to undertake a survey with the aim of monitoring the implementation of the New York Convention into national law and of considering 116

Van den Berg, NYC, p. 360 with further references. Due to the limited scope of this introduction, the similarities and differences between these two notions cannot be further explained. For this purpose see, e.g., Liebscher, Healthy Award, pp. 25 et seq. 118 Hanotiau/Caprasse, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 787, 788. 119 Hanotiau/Caprasse, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 787, 789. 120 Germany: BGH, NJW 1969, 978. 121 Austria: OGH, ÖJZ 1994, 513 = XXIVa Y.B. Com. Arb. 923 (1999). Articles 81 and 82 of the EC Treaty have meanwhile been replaced by Articles 101 and 102 of the Treaty on the Functioning of the European Union. 122 Switzerland: BG, BGE 132 III 389. 117

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98–101 Prel.

Preliminary Remarks

Rem.

the procedural mechanisms that various States have put in place to make the Convention operative. The report on the survey,123 which evaluated the responses of 108 States and was published in 2008, highlighted the main trends that could be identified as to the implementation and interpretation of the Convention and with regard to the requirements and procedures applicable when enforcing a Convention award. The report revealed that constitutions of the various Contracting States prescribed a 98 variety of procedures for authorizing the ratification of, or accession to, a treaty or a convention.124 Many States required approval by both the executive and the legislature, whereas in others a declaration of ratification or proclamation by the Head of State was sufficient. In relation to the question of how the Convention gains force of law in an individual legal order, in a vast majority of States the Convention was considered as self-executing or directly applicable, while in several other States the adoption of an implementing legislation was required. The report further showed that where States adopted implementing legislation, the 99 text of that legislation was reported to differ from the text of the Convention in certain instances.125 Furthermore, different responses were given to the question of whether the original text of the Convention or the implementing legislation would prevail in case of conflict (the correct approach being the prevalence of the text of the Convention). In respect of the way in which the Convention was adopted, more than half of the States indicated that the Convention as implemented in the legislation stood alone, whereas others incorporated it into broader legislation. Generally, the responses to the survey suggested that there were no significant differences between the implementing legislation and the Convention.

2. The ICC Task Force Report In light of the 50th anniversary of the New York Convention in 2008, the ICC 100 Commission on Arbitration decided to establish a task force to conduct a study of national rules of procedure for the recognition and enforcement of foreign arbitral awards. The report prepared by the task force126 focuses on national rules of procedure for recognition and enforcement of foreign awards under Articles III and IV. In addition, it addresses any more favorable legal basis for recognition and enforcement of foreign awards that may exist in a country. With 161 current Contracting States under the New York Convention, it is not 101 surprising that there are considerable differences in the national rules of procedure. The lack of uniformity of the procedural requirements for recognition and enforcement of foreign awards can have major practical impacts on a party’s ability to obtain recognition and enforcement in a given Contracting State. Practitioners in international arbitration should therefore be aware of the importance of these different rules of procedure.

123 Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656. 124 Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656, paras 9 et seq. 125 Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656, paras 18 et seq. 126 ICC, ICC Guide to National Procedures for Recognition and Enforcement of Awards under the New York Convention, 2nd ed., Special Supplement 2012, ICC Publications 2013.

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Prel. Rem. 102–104

New York Convention

VII. Improving the Implementation of the New York Convention The different interpretations of the notion of public policy by the various Contracting States (Õ Art. V para. 491) and, procedurally, the lack of a supervising judicial authority for the uniform interpretation of the provisions of the New York Convention constitute the biggest obstacles to the implementation of the Convention. Despite all honorable efforts to amend its text, even to re-draft it in its entirety, the New York Convention most probably will, for the time being, maintain its status of a historical singularity. 103 Besides the question of whether it is feasible to achieve significant amendments to the Convention with the consensus of all or at least a substantial number of Contracting States, it remains questionable whether this would provide a lasting solution for all issues arising in the context of the Convention. The most efficient and, at the same time, a very pragmatic approach is to promote the uniform interpretation of the Convention’s provisions. It has already been suggested127 that a “judicial direction” be created in the form of an international body or working group consisting of internationally renowned arbitration practitioners who would collate and analyze judgments from all the jurisdictions and issue recommendations on the interpretation of the articles of the Convention. UNCITRAL, for instance, has used recommendations on the interpretation of the articles of the Model Law for adoption by practitioners and judiciaries. 104 This approach should be developed even further. The suggested judicial direction could emerge as a judicial authority concerned with the interpretation of the provisions of the New York Convention and their uniform application. Any Contracting State would be free to transfer its judicial powers to this new authority in this respect. This would avoid going through lengthy proceedings to amend the text of the Convention and create an opportunity to achieve uniform interpretation and application of the Convention in those Contracting States that wish to do so. 102

127

24

Cheng, in: van den Berg (ed.), 50 Years of NYC, pp. 679, 685.

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Article I [Scope of Application] 1. 1This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. 2It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought. 2. The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted. 3. 1When signing, ratifying or acceding to this Convention, or notifying extension under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. 2It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration. Specific Bibliography: Avanessian, The New York Convention and Denationalised Arbitral Awards (With Emphasis on the Iran-United States Claims Tribunal), (1991) 5 J. Int. Arb. 8; Basler Kommentar: see Honsell/Vogt/Schnyder/Berti; Berger, International Economic Arbitration, Kluwer Law and Taxation 1993; Berger/Kellerhals, International and Domestic Arbitration in Switzerland, 3rd ed., Stämpfli et al. 2015; Bermann, ‘Domesticating’ the New York Convention: the Impact of the Federal Arbitration Act, 2(2) JIDS 317 (2011); Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Blessing, The New York Convention: Major Problem Areas, in: Blessing (ed.), The New York Convention of 1958, ASA Special Series No. 9, 1996, p. 17; Böckstiegel/ Kröll/Nacimiento (eds), Arbitration in Germany – The Model Law in Practice, 2nd ed., Kluwer Law International 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Briner/Hamilton, The History and General Purpose of the Convention: The Creation of an International Standard to Ensure the Effectiveness of Arbitration Agreements and Foreign Arbitral Awards, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 3; Broches, Awards Rendered Pursuant to the ICSID Convention: Binding Force, Finality, Recognition, Enforcement, Execution, 2 ICSID Rev. 287 (1987); Brotóns, La reconnaissance et l’exécution des sentences arbitrales étrangères, Recueil des Cours, Vol. 184 (1984-I), p. 173; Bülow, Das UN-Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche, KTS 1959, 1; Cappelli-Perciballi, The Application of the New York Convention of 1958 to Disputes Between States and Between State Entities and Private Individuals: The Problem of Sovereign Immunity, 12(1) Int’l Law. 198 (1978); Coop/Nistal/Volterra, Sovereign immunities and investor-state awards: specificities of enforcing awards based on investment treaties, in: Fouret (ed.), Enforcement of Investment Treaty Arbitration Awards: A Global Guide, Globe Business Publishing 2015, p. 67; Craig/Park/Paulsson, International Chamber of Commerce Arbitration, 3rd ed., Oceana Publications 2000; Deshpande, Jurisdiction over ‘Foreign’ and ‘Domestic’ Awards in the New York Convention, 1958, (1991) 7 Arb. Int’l 123; Deshpande, “Foreign Award” in the 1958 New York Convention, (1992) 9 J. Int. Arb. 51; Di Garbo, The Arbitrator and the Arbitration Procedure – Informal Arbitration (“Arbitrato Irrituale”) in Italy: A Contractual Award, AAYB 2010, 129; Di Pietro, The Influence of the New Law on Arbitration Agreements and arbitrato irrituale, 10(1) Int. A.L.R. 18 (2007); Di Pietro, What Constitutes an Arbitral Award Under the New York Convention?, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 139; Di Pietro/Platte, Enforcement of International Arbitration Awards: The New York Convention of 1958, Cameron May 2001; Ehle, Emergency Arbitration in Practice, in: Müller/Rigozzi (eds), New Developments in International Commercial Arbitration 2013, Schulthess 2013, p. 87; Fan,

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Article I

New York Convention

Prospects of Foreign Arbitration Institutions Administering Arbitration in China, (2011) 28(4) J. Int. Arb. 343; Favre-Bulle, Les conséquences du non-paiement de la provision pour frais de l’arbitrage par une partie – Un tribunal arbitral peut-il condamner un défendeur au paiement de sa part de l’avance de frais?, 19(2) ASA Bull. 227 (2001); Favre-Bulle, 50 Years of the New York Convention on Enforcement of Awards: Conventional Wisdom and Recent Developments, in: Müller/Rigozzi (eds), New Developments in International Commercial Arbitration 2008, Schulthess 2008, p. 61; Fox/Webb, The Law of State Immunity, 3rd ed., Oxford University Press 2013; Gaillard, Aspects philosophiques du droit de l’arbitrage international, Martinus Nijhoff 2008; Gaillard, The Urgency of Not Revising the New York Convention, in: van den Berg (ed.), 50 Years of the New York Convention, ICCA Congress Series No. 14, Kluwer Law International 2009, p. 689; Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Geimer, Internationales Zivilprozessrecht, 7th ed., Otto Schmidt 2014; Girsberger/Voser, International Arbitration: Comparative and Swiss Perspectives, 3rd ed., Schulthess 2016; Haas, Die Anerkennung und Vollstreckung ausländischer und internationaler Schiedssprüche, Duncker & Humblot 1991; Haas, Schiedsgerichte in Erbsachen und das New Yorker Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche, SchiedsVZ 2011, 289; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Herdegen, Wirkungen von Schiedssprüchen in Streitigkeiten zwischen Privatpersonen und fremden Staaten, RIW 1989, 329; Honsell/ Vogt/Schnyder/Berti (eds), Basler Kommentar Internationales Privatrecht (IPRG), 3rd ed., Helbing & Lichtenhahn 2013; ICCA, ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges, 2011, available at http://www.arbitration-icca.org/publications/NYC_Guide.html (last visited Apr. 29, 2019); Karrer, Awards and Orders – Labels Matter After All, 2 TvA 57 (2004); Kirby, What Is an Award, Anyway?, (2014) 31 J. Int. Arb. 4; Klein, La Convention de New York pour la reconnaissance et l’exécution des sentences arbitrales étrangères, SJZ 1961, 229; Kreindler/Schäfer/Wolff, Schiedsgerichtsbarkeit, Kompendium für die Praxis, Recht und Wirtschaft 2006; Kröll, Recognition and Enforcement of Foreign Arbitral Awards in Germany, 5(5) Int. A.L.R. 160 (2002); Kronke/Nacimiento/ Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Kryvoi/Davydenko, Consent Awards in International Arbitration: From Settlement to Enforcement, 40 Brook. J. Int’l L. 827 (2015); Kunz, Enforcement of Arbitral Awards under the New York Convention in Switzerland – An overview of the current practice and case law of the Swiss Supreme Court, 34(4) ASA Bull. 836 (2016); Lalive, Assurer l’exécution des sentences arbitrales, in: CCI (ed.), Arbitrage international, 60 ans après, Regard sur l’avenir, Publication CCI, Paris 1984, p. 331; Laschet, Zur Anerkennung ausländischer Zwischenschiedssprüche, IPRax 1984, 72; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Mann, Where is an Award ‘made’?, (1985) 1 Arb. Int’l 107; Marossi, Iran-United States Claims Tribunal, (2006) 23 J. Int. Arb. 494; Nater-Bass, Praktische Aspekte des Vergleichs in Schiedsgerichtsverfahren, 20(4) ASA Bull. 427 (2002); Niddam, L’exécution des sentences arbitrales internationals aux EtatsUnis, Rev. arb. 1993, 15; Patocchi, The 1958 New York Convention: The Swiss Practice, in: Blessing (ed.), The New York Convention of 1958, ASA Special Series No. 9, 1996, p. 145; Paulsson, Arbitration Unbound: Award Detached from the Law of its Country of Origin, 30 ICLQ 358 (1981); Paulsson, Arbitration in Three Dimensions, LSE Working Papers 2/2010; Pinsolle, Observations – Cour d’appel des Etats-Unis (7e circuit) 14 mars 2000, Rev. arb. 2000, 657; Poudret/Besson, Comparative Law of International Arbitration, 2nd ed., Sweet & Maxwell 2007; Pryles, Foreign Awards and the New York Convention, (1993) 9 Arb. Int’l 259; Pryles, Interlocutory Orders and Convention Awards: The Case of Resort Condominiums v. Bolwell, (1994) 10 Arb. Int’l 385; Pryles, Reservations Available to Member States: The Reciprocal and Commercial Reservations, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 161; Reinisch, European Court Practice Concerning State Immunity from Enforcement Measures, 17 EJIL 803 (2006); Rensmann, Wo ergehen Schiedssprüche nach dem New Yorker Übereinkommen?, RIW 1991, 911; Rensmann, Anationale Schiedssprüche, eine Untersuchung zu den Wirkungen anationaler Schiedssprüche im nationalen Recht, Duncker & Humblot 1997; Rensmann, A-national Awards – Legal Phenomenon or Academic Phantom?, (1998) 15 J. Int. Arb. 37; Roth, Recognition by Circumvention: Enforcing Foreign Arbitral Awards as Judgments under the Parallel Entitlements Approach, 92(3) Cornell L. Rev. 573 (2007); Roughton, Commencing Arbitration: Contemporary Paradoxes and Problems, in: van den Berg (ed.), International Arbitration: The Coming of a New Age?, ICCA Congress Series No. 17, Kluwer Law International 2013, p. 174; Rubinstein/Fabian, The Territorial Scope of the New York Convention and Its Implementation in Common and Civil Law Countries, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 91; Sanders, Quo Vadis Arbitration? Sixty Years of Arbitration Practice, A Comparative Study, Kluwer Law International 1999; Sangiovanni, Arbitrato irrituale e regole procedurali nel nuovo diritto italiano, 26(4) ASA Bull. 688 (2008); Santacroce, The emergency arbitrator: a full-fledged arbitrator rendering an enforceable decision?, (2015) 31(2) Arb. Int’l 283; Santens/Kudrna,

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Article I

Scope of Application

The State of Enforcement of Emergency Arbitrator Decisions, (2017) 34 J. Int. Arb. 1; Scherer, Effects of Foreign Judgments Relating to International Arbitral Awards: Is the ‘Judgment Route’ the Wrong Road?, 4(3) JIDS 587 (2013); Schlosser, Doppelexequatur zu Schiedssprüchen und ausländischen Gerichtsentscheidungen, IPRax 1985, 141; Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2nd ed., Mohr Siebeck 1989; Schneider, Le lieu où la jurisprudence est rendue, 7(3) ASA Bull. 279 (1991); Schreuer, State Immunity: Some Recent Developments, Cambridge University Press 1988; Schreuer/Malintoppi/Reinisch/Sinclair, The ICSID Convention: A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 2nd ed., Cambridge University Press 2009; Schütze, Aktuelle Fragen der Anerkennung und Vollstreckbarerklärung von USamerikanischen Schiedssprüchen und Gerichtsurteilen in Deutschland, ZVglRWiss 104 (2005), 427; Schwab/Walter, Schiedsgerichtsbarkeit, 7th ed., C. H. Beck, Helbing & Lichtenhahn 2005; Simon, L’arbitrage des conflits sportifs, Rev. arb. 1995, 185; Solomon, Die Verbindlichkeit von Schiedssprüchen in der internationalen privaten Schiedsgerichtsbarkeit, Sellier 2007; Sucharitkul, Fourth Report on Jurisdictional Immunities of States and Their Property, UN Doc. A/CN.4/357, Y.B. ILC 1982, vol. II (Part One), p. 199 (A/CN.4/SER.A/1982/Add.1 (Part 1)); Sussman/Dosman, Evaluating the Advantages and Drawbacks of Emergency Arbitrators, 12(6) TDM 2015; Sutton/Gill/Gearing, Russell on Arbitration, 24th ed., Sweet & Maxwell 2015; Tustin, Enforcing an Expert Determination Award Under the New York Convention, 28(1) N.Y. Int’l L. Rev. 25 (2015); UNCITRAL, UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), 2016, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/2016_guide_ on_the_convention.pdf (last visited Apr. 29, 2019); van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, The New York Arbitration Convention 1958: When Is an Arbitral Award Nondomestic Under the New York Convention of 1958?, 6 Pace L. Rev. 25 (1985); van den Berg, Non-domestic Arbitral Awards under the 1958 New York Convention, (1986) 2 Arb. Int’l 191; van den Berg, New York Convention of 1958, Consolidated Commentary of Cases Reported in Volumes XV (1990) – XVI (1991), XVI Y.B. Com. Arb. 449 (1991); van den Berg, The New York Convention: Summary of Court Decisions, in: Blessing (ed.), The New York Convention of 1958, ASA Special Series No. 9, 1996, p. 46; van den Berg, Consolidated Commentary Cases Reported in Volumes XXII (1997) – XXVII (2002), XXVIII Y.B. Com. Arb. 562 (2003); van den Berg, New York Convention of 1958: Refusals of Enforcement, 18(2) ICC Bull. 1 (2007); van den Berg, Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards: Explanatory Note, in: van den Berg (ed.), 50 Years of the New York Convention, ICCA Congress Series No. 14, Kluwer Law International 2009, p. 649; Veeder, Provisional and Conservatory Measures, in: United Nations (ed.), Enforcing Arbitration Awards under the New York Convention: Experience and Prospects, 1999, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-docu ments/uncitral/en/nycday-e.pdf (last visited Apr. 29, 2019), p. 21; Walter, Das Schiedsverfahren im deutsch-italienischen Rechtsverkehr, RIW 1982, 693; Weiss/Hodgkinson, Adoptive Arbitration: An Alternative Approach to Enforcing Cross-Border Mediation Settlement Agreements, 25 Am. Rev. Int’l Arb. 275 (2014); Wittich, The Definition of Commercial Acts, in: Hafner/Kohen/Breau (eds), State Practice Regarding State Immunities, Martinus Nijhoff 2006, p. 21. Table of Contents A. Overview ............................................................................................................................ B. Spirit and Purpose ........................................................................................................... C. Drafting History ............................................................................................................... D. Recognition and Enforcement of Foreign Arbitral Awards (Article I(1)) .......... I. Arbitral Award......................................................................................................... 1. Term ..................................................................................................................... a) Governing Law for Qualification as Arbitral Award ......................... b) Criteria Qualifying a Decision as an Arbitral Award ........................ c) Denomination of Tribunal’s Decision Not Determinative ............... d) Decision Rendered by an Arbitral Tribunal......................................... aa) Submission Agreement ........................................................................ bb) Results from Other Adjudication Bodies ........................................ cc) Findings from Procedures Akin to Arbitration ............................. dd) Decisions of Internal Tribunals ......................................................... ee) Recognized Awards Under the Doctrine of Merger ..................... e) Final and Binding Nature of the Award ............................................... aa) Final ......................................................................................................... (1) Procedural Orders.......................................................................... (2) Partial Awards.................................................................................

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Article I 1–2

New York Convention

(3) Awards on Interim or Provisional Measures........................... (a) Binding Decisions that Are Interlocutory or Temporary in Nature........................................................ (b) Decisions Disposing of Temporary Rights in a Final Manner ................................................................... (4) Emergency Arbitrator Decisions ................................................ (5) Interim Awards Ordering Reimbursement of an Advance on Costs................................................................ (6) Consent Awards ............................................................................. bb) Binding .................................................................................................... 2. Made by Permanent Arbitral Bodies (Article I(2)) ................................... a) Drafting History.......................................................................................... b) Broad Standard ........................................................................................... c) Iran-United States Claims Tribunal....................................................... 3. The Convention’s Application to Arbitration Agreements ..................... II. Foreign Award ......................................................................................................... 1. Made in the Territory of Another State (Article I(1)(1)) ........................ a) State Where the Award Was Made........................................................ b) A-National Awards .................................................................................... 2. Awards Not Considered as Domestic (Article I(1)(2)) ............................ a) Drafting History.......................................................................................... b) Conventional and Modern Interpretation ............................................ c) Expansive Interpretation in the United States..................................... d) Interpretation in China ............................................................................. e) Relationship Between the Two Sentences of Article I(1).................. 3. Relevance of Other Criteria ............................................................................ 4. Application to Domestic Awards .................................................................. III. Arising out of Differences Between Persons..................................................... 1. Public Entities and States ................................................................................ 2. Investment Arbitration Under ICSID Rules ............................................... 3. Investment Arbitration Under Non-ICSID Rules ..................................... 4. No Restriction on the Arbitration’s Subject Matter .................................. IV. Recognition and Enforcement ............................................................................. E. Reservations (Article I(3)).............................................................................................. I. Reservation of Reciprocity (Article I(3)(1))...................................................... 1. Drafting History ................................................................................................ 2. Diminishing Practical Importance ................................................................ 3. Formal Interpretation of Reciprocity............................................................ 4. Application of Reciprocity Reservation to Article I(1)(2) ....................... II. Reservation of Commercial Matters (Article I(3)(2))..................................... 1. Drafting History ................................................................................................ 2. Little Practical Importance.............................................................................. 3. Broad Interpretation of “Commercial”......................................................... III. Relationship Between Reservations.....................................................................

65 66 69 71a 72 74 79 85 86 87 88 92 93 94 98 105 114 115 118 122 129 130 132 136 138 139 151 160 161 164 165 170 171 172 175 178 179 180 181 182 188

A. Overview Provisions on scope of application are an important component of every multilateral body of rules. They are particularly vital to a treaty such as the New York Convention whose aim is to establish uniformity in the recognition and enforcement of foreign arbitral awards. One must be able to determine which foreign arbitral awards fall under the enforcement regime of the Convention and which ones do not. 2 Article I(1) specifies the object of the Convention’s recognition and enforcement provisions: arbitral awards, which arise out of differences between physical or legal persons, and which qualify as “foreign,” either because they have been made in the territory of a State other than the enforcement State (first sentence), or because they are considered “non-domestic” in the enforcement State (second sentence). The way that 1

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Scope of Application

3–6

Article I

the arbitral award notion and its foreign or “non-domestic” nature are to be understood, and how they have been interpreted in practice, is set out herein in parts D. I. and D. II. (Õ paras 12–92 and Õ paras 93–137). The origins and meaning of the requirement for the foreign arbitral award to arise out of differences “between persons, whether physical or legal” are treated in part D. III. (Õ paras 138–163). Article I(2) clarifies the meaning of the term “arbitral awards” used in Article I(1) to 3 include not only awards made by arbitrators appointed for an individual dispute but also those made by “permanent arbitral bodies.” This provision, which was inserted into the Convention to appease certain States, has largely lost its relevance in modern practice (Õ paras 85–91). Finally, Article I(3) allows each Contracting State to restrict the territorial and 4 substantive scope of the Convention as defined in Article I(1) when signing, ratifying, acceding to or extending the Convention. It can adopt the so-called reciprocity reservation, which grants its courts the right to refuse recognition and enforcement of awards not made in the territory of another Contracting State. In addition, States may make a commercial reservation and declare that they will apply the Convention only to those differences arising out of legal relationships that qualify as “commercial” under domestic law. Several States have indeed made these reservations, though they are gradually losing importance as the number of Contracting States continues to grow (Õ paras 165–190).

B. Spirit and Purpose The overall purpose of the Convention was to improve the legal regime previously 5 provided by the Geneva Treaties (Õ Prel. Rem. paras 43–47) and to better meet the needs of the international business community with a mechanism that promotes the worldwide effectiveness of international arbitration.1 The scope of application provision (Article I) is a clear expression of the Convention’s pro-recognition and pro-enforcement posture (Õ Prel. Rem. paras 88–90): it is intended to include as many arbitral awards as possible, subject to only two reservations that may restrict its application.2 By adopting a “territorial principle” that applies to arbitral awards rendered in any State other than the enforcement State, Article I is designed to bring universal applicability to the Convention. By decoupling the application of the Convention from international elements, such as 6 the requirement that an arbitral award be rendered in a dispute between parties of different nationalities, and by limiting the application to an objective territorial criterion, the drafters of the Convention “radically reengineered”3 the mechanism provided in the 1927 Geneva Convention. Indeed, they sought to lay a foundation for the uniform application of the Convention by national courts around the world. Because Article I establishes certain fundamental principles and defines the context in which all other provisions of the Convention operate, it has been referred to as providing the foundation upon which the rest of the Convention is built.4

1 See, e.g., Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3 et seq.; Born, International Commercial Arbitration, p. 100. 2 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.37; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.78. 3 Paulsson, Arbitration in Three Dimensions, p. 10. 4 Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 20.

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Article I 7–9

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C. Drafting History In the preliminary draft convention, which the International Chamber of Commerce (ICC) presented to the United Nations Economic and Social Council (ECOSOC) in 1953, the scope of application in Article I reads as follows: “The present Convention shall apply to the enforcement of arbitral awards arising out of commercial disputes between persons subject to the jurisdiction of different States or involving legal relationships arising on the territories of different States.”5 8 The ICC draft adopted the “internationalist” approach already taken by the 1923 and 1927 Geneva Treaties and even went further: it provided not only for the enforcement of arbitral awards arising from disputes between persons of different nationalities, but also from cross-border disputes “arising on the territories of different States.”6 The ICC wanted to do away with the requirement that the award “has been made in a territory of one of the High Contracting Parties to which the present Convention applies.” Its proposal contained no territorial element regarding the origin of the award. In effect, the ICC introduced a “de-nationalized” form of international arbitration, “completely independent of national laws, correspond[ing] precisely to an economic requirement.”7 The ICC draft also deviated from the Geneva Convention in that it contained the commercial reservation (“arising out of commercial disputes”). 9 The ECOSOC Committee considered the initial wording proposed by the ICC, but eventually decided to take an entirely different approach. In light of the uncertainties arising from the concept of an arbitral award detached from all national laws, the notion of “de-nationalized” arbitral proceedings was rejected.8 Instead the Committee decided that only “foreign” awards, namely those “made in the territory of a State other than the State in which such awards are relied upon,” and thus rooted in national law, particularly the law of the seat of the arbitration, should fall within the ambit of the Convention. Further requirements as to the international character of an award, such as the parties’ nationalities, were deliberately left out.9 The result was a scope of application antithetical to that proposed by the ICC: the Convention was to apply to all foreign awards irrespective of the international character of the underlying dispute, and not to awards arising out of international disputes irrespective of the territory in which they have been rendered.10 The ECOSOC Committee also decided to make the commercial reservation optional. The 1955 draft developed by ECOSOC read as follows: “1. Subject to paragraph 2 of this Article, this Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State in which such awards are relied upon, and arising out of differences between persons whether physical or legal. 2. Any Contracting State may, upon signing, ratifying or 7

5

9(1) ICC Bull. 32, 35 (1998) = E/C.2/373 (Õ Annex IV 1). Solomon, Verbindlichkeit von Schiedssprüchen, p. 53. 7 9(1) ICC Bull. 32 (1998) = E/C.2/373 (Õ Annex IV 1); Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 13; Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 176; Solomon, Verbindlichkeit von Schiedssprüchen, pp. 54, 55. 8 E/2704, paras 43–44 (Õ Annex IV 1); Rensmann, Anationale Schiedssprüche, p. 213; Klein, SJZ 1961, 229, 231–233; Solomon, Verbindlichkeit von Schiedssprüchen, p. 56; Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 13; van den Berg, NYC, p. 17; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.58; Born, International Commercial Arbitration, pp. 101, 1545 et seq.; Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 176. 9 Klein, SJZ 1961, 229, 234. 10 Solomon, Verbindlichkeit von Schiedssprüchen, pp. 56, 62; Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 10, 12; van den Berg, NYC, pp. 8, 9. 6

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Scope of Application

10–13

Article I

acceding to this Convention, declare that it will apply the Convention only to the recognition and enforcement of arbitral awards made in the territory of another Contracting State. Similarly, any Contracting State may declare that it will apply the Convention only to disputes arising out of contracts which are considered as commercial under the national law of the State making such declaration.”11 Before the New York Convention Conference on June 10, 1958 adopted the wording 10 that Article I has today, further changes were necessary to ensure adherence to the Convention by as many Contracting States as possible. First, in addition to the territorial approach taken in Article I(1)(1), a provision on the application of the Convention to “non-domestic” arbitral awards was added in Article I(1)(2) to satisfy the needs of certain European civil law countries following the so-called procedural theory, whereby the foreign nature of an award is determined according to the procedural law that the parties chose to govern their arbitration and award (Õ paras 115 et seq.).12 Second, Article I(2) was inserted into the scope of application provision at the request of the USSR and Czechoslovakia, where permanent arbitral bodies were a frequent phenomenon (Õ para. 86).13

D. Recognition and Enforcement of Foreign Arbitral Awards (Article I(1)) In order for the Convention to open the gates to recognition and enforcement, a 11 decision must constitute an “arbitral award” that qualifies as “foreign” and arises out of “differences between persons.” The meanings of these prerequisites, especially the first two, are neither readily obvious nor defined in the Convention. For this reason, although they form the basis for the Convention, these prerequisites are somewhat controversial, still inspire much doctrinal commentary, and have been at issue in numerous cases for recognition and enforcement around the world.

I. Arbitral Award 1. Term While the drafters of the Convention intended to establish whether an arbitral award is 12 “foreign,” they did not try to define the core notion of “arbitral award,” despite the important consequences that flow from it. Article I(1) thus follows the example of the 1927 Geneva Convention (Õ Annex V 2) and uses the term without further clarifications. The explanation in Article I(2) that the term “arbitral awards” shall include not only awards made by arbitrators appointed for each case, ad hoc or by an arbitral institution, but also those made by permanent arbitral bodies to which the parties have submitted (Õ paras 85 et seq.), is of little assistance in determining the meaning of “arbitral award.”14 The negotiators of the Convention had a hard time agreeing upon a common 13 definition and eventually decided to leave the term undefined.15 Indeed, in light of the 11

E/2704: E/AC.42/4/Rev.1, Annex, p. 1 (Õ Annex IV 1). E/CONF.26/L.42, pp. 1, 2 (Õ Annex IV 1). 13 E/CONF.26/L.10 (Õ Annex IV 1); E/CONF.26/C.1/L.2 (Õ Annex IV 1). 14 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 30; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 151. 15 Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 151; Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 140; Berger/Kellerhals, Arbitration in Switzerland, para. 2037. 12

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Article I 14–17

New York Convention

diversity of national arbitration laws and concepts as well as institutional rules, it was hardly conceivable to find a common definition of “arbitral award.” It is therefore left to the courts of each Contracting State to determine case-by-case and in compliance with the governing law (Õ paras 14–19) and generally accepted qualifying criteria (Õ paras 20–23) whether a decision in respect of which recognition and enforcement is requested constitutes an arbitral award under the Convention, a so-called “Convention award.”16 a) Governing Law for Qualification as Arbitral Award National courts must know which law to apply when ascertaining whether a decision constitutes an “arbitral award” entitled to recognition and enforcement under the Convention. Several possibilities – and divergent views – exist in this respect. 15 First, the courts could each apply their own law, the lex fori. This solution has the obvious practical advantage that judges will apply the law with which they are most familiar. The main argument advanced by those who favor this approach appears to be that in light of Article I(3), which allows Contracting States to restrict the territorial and substantive scope of the Convention by adopting the reciprocity or commercial reservation, Contracting States should also be free to determine what constitutes an arbitral award in their jurisdictions.17 This view seems contrary, however, to the spirit of the Convention as it leaves too much discretion to national judges and risks contributing to a patchy, non-uniform case law. In addition, it does not make sufficient allowance for the foreign character of arbitral awards rendered in the territory of another State. 16 Other commentators have opined that the classification of a decision as an “award” for the purposes of the Convention must depend on the lex arbitri or the law of the place of arbitration.18 The rationale here is that, except in the theoretical case of an “anational award” (Õ paras 105–113), an award is not rendered in a legal vacuum but rather on the jurisdictional basis of the law at the arbitral seat.19 For this reason, a decision cannot qualify as an arbitral award within the meaning of the Convention if it lacks such qualities under the law of its State of origin.20 17 A third possibility is that the national court faced with a request for recognition and enforcement of an “arbitral award” applies a combination of these two approaches, i.e. it determines whether the decision qualifies as an award both under the law applicable to the arbitration and under the law of the enforcement country.21 Patocchi/Jermini favor this cumulative approach, but also state that one “must go beyond domestic concepts so as to take into account comparative law and practice.”22 Indeed, disregarding international practice could lead to significant complications in cases where a certain foreign decision would be considered an arbitral award in the enforcement State, but not in its State of origin, as for instance the lodo irrituale (Õ paras 37–43). However, the cumulative application of lex fori and lex arbitri could effectively increase 14

16 Gaillard/Savage, Fouchard Gaillard Goldman, para. 1668; Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 140; see also Kirby, (2014) 31 J. Int. Arb. 4, 476. 17 Gaillard/Savage, Fouchard Gaillard Goldman, para. 1668; Walter, RIW 1982, 693, 696; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 10. 18 Van den Berg, XXVIII Y.B. Com. Arb. 562, 577 (2003); Haas, Anerkennung und Vollstreckung, p. 420, n. 47; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 53 para. 2; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 783; Kreindler/Schäfer/Wolff, Kompendium, para. 1129. 19 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.79; see also Brotóns, Recueil des Cours, Vol. 184 (1984-I), pp. 173, 195. 20 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.79. 21 Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 2; see also Haas, Anerkennung und Vollstreckung, pp. 143–144. 22 Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 2.

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18–21

Article I

the chances of courts denying recognition and enforcement, in contradiction to the purpose and spirit of the Convention.23 Finally, national courts could pursue an autonomous interpretation of the term 18 “arbitral award” by referring to scholarly opinions and possibly also taking into consideration different national laws.24 It is indeed indispensable that the Convention, like any other international treaty, be interpreted autonomously with regard to its international and uniform application in all Contracting States according to the general principles of treaty interpretation. As van den Berg stated at the outset of his 1981 thesis on the Convention, the significance of the New York Convention for international commercial arbitration makes it even more important that the courts interpret the Convention uniformly. He rightly emphasized that a non-uniform interpretation may lead to an undesirable degree of uncertainty that can be detrimental to the effectiveness of international commercial arbitration.25 While it seems that neither of the above-mentioned approaches predominates in 19 national courts, commentators widely accept that an autonomous interpretation must play a role. A sensible approach would be the one whereby a national court ascertains whether a decision qualifies as an “arbitral award” under the lex arbitri and, in case it does not, verifies whether – alternatively – the decision falls within the notion of “arbitral award” established autonomously under the Convention.26 In other words, both (a) decisions recognized as arbitral awards under the lex arbitri and (b) decisions not recognized as arbitral awards under the lex arbitri but that do pass the threshold under an autonomous interpretation should be eligible for recognition and enforcement. In deciding in this manner, the courts are acting in line with one of the Convention’s primary goals of bringing as many arbitral awards as possible into its scope of application.27 At the same time, this approach accommodates the parties’ selection of a certain jurisdiction to the greatest extent possible and ensures the uniform application of the Convention on the international level. Certainly, the lex arbitri approach requires national courts to hear the parties’ views on questions of foreign law. However, any unease that judges may feel when interpreting foreign law is likely outweighed by the benefits of an approach that falls more in line with the spirit of the Convention. b) Criteria Qualifying a Decision as an Arbitral Award Whether a decision qualifies as an “arbitral award” is crucial to determining the 20 application of the Convention. In particular when pursuing an autonomous interpretation of Article I(1), practitioners need guidance from a set of objective criteria that distinguish “Convention awards” from other kinds of decisions. Several authors have attempted to “distill” a common denominator from the various 21 national legal systems and formulated definitions for what is generally understood by the notion of an arbitral award and what should be understood by this notion in the context of Article I(1). For instance, Gaillard/Savage conceive of an arbitral award as “a final decision by the arbitrators on all or part of the dispute submitted to them, whether 23

Schlosser, Recht der Schiedsgerichtsbarkeit, para. 766. Lalive, in: CCI (ed.), Arbitrage international, pp. 331, 341; Poudret/Besson, Comparative Arbitration, para. 878; Haas, Anerkennung und Vollstreckung, pp. 143–144; Kreindler/Schäfer/Wolff, Kompendium, para. 1130; ICCA, Guide, pp. 13, 14. 25 Van den Berg, NYC, p. 1; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.78. 26 The present approach slightly deviates from the one proposed in the 2012 edition of this Commentary. 27 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.78. 24

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Article I 22–25

New York Convention

it concerns the merits of the dispute, jurisdiction, or a procedural issue leading them to end the proceedings.”28 Poudret/Besson define an arbitral award as “a decision from the arbitrators deciding finally on whole or on part of the disputed issues on the merits or on a procedural issue which may end the arbitral procedure, or recording a settlement between the parties, rendered in an arbitration connected to the legal order of a State which is in principle the State of the seat of the arbitration.”29 Di Pietro/Platte state that “[i]n practice, the term award should be reserved for decisions which finally determine the substantive issues they deal with.”30 Finally, Russell on Arbitration suggests that, “[i]n principle, an award is a final determination of a particular issue or claim in the arbitration.”31 These doctrinal views are also reflected in a US case, to highlight one example, in which the District Court considered an award to be a decision “finally and definitely dispos[ing]” of a claim submitted to arbitration.32 22 The various aforementioned definitions of “arbitral award” demonstrate that two requirements must be met in order for a decision to qualify: an “arbitral tribunal” must have rendered the award (Õ paras 27–53) and the award must decide on a legal dispute between the parties in a final manner (Õ paras 54–84). The denomination of the decision is not a determining factor (Õ paras 24–26). Applying these criteria, however, does not render obsolete a careful analysis of the specific decision and the circumstances in which it was rendered and applying the lex arbitri while verifying that the outcome is in compliance with an autonomous interpretation under the Convention (Õ para. 19).33 23 Article IV(1)(a) requires that, in order to obtain recognition and enforcement, the applicant shall submit a duly authenticated original or a duly certified copy of the award (Õ Art. IV paras 14–18). Only arbitral awards in written form can therefore be enforced under the Convention.34 c) Denomination of Tribunal’s Decision Not Determinative There is a general consensus that the name a tribunal gives to its decisions may be persuasive, but is not determinative for its subsequent evaluation by a national court.35 Titles of decisions in international dispute resolution can vary and even mislead depending on the context in which the decision has been made, the members of the adjudication body or the administering institution. 25 Whether a decision may be qualified as an arbitral award must ultimately be determined by reference to its nature and content (substance over form). Designating an arbitral decision a “procedural order” or otherwise will not “disqualify” it as a 24

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Gaillard/Savage, Fouchard Gaillard Goldman, para. 1353. Poudret/Besson, Comparative Arbitration, para. 884. 30 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 30. 31 Sutton/Gill/Gearing, Russell on Arbitration, para. 6-002. 32 US: Zephyros Mar. Agencies, Inc. v. Mexicana de Cobre, S.A., 662 F. Supp. 892, 894 (S.D.N.Y. 1987). Equally noteworthy is the definition of “arbitral award” found in the Restatement of the Law Third, which describes the evolution of US law of international commercial arbitration: “a decision in writing by an arbitral tribunal that sets forth the final and binding determination of the merits of a claim, defense, or issue, regardless of whether that decision resolves the entire dispute before the tribunal. Such a decision may consist of a grant of interim relief.” The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1(a) (p. 11). 33 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 31. 34 Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 152. 35 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.80; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 774; Karrer, 2 TvA 57, 59 (2004); Pinsolle, Rev. arb. 2000, 657, 659; Sutton/Gill/Gearing, Russell on Arbitration, para. 6-003; ICCA, Guide, pp. 18, 19. 29

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Article I

Convention award if a court can assess all the substantive elements of a final and binding arbitral award from its content.36 In practice, this consensus has been confirmed by published case law. One of the most 26 prominent examples is Publicis Communication v. True North Communications, Inc.,37 in which a US Court of Appeals considered that an order for the disclosure of certain documents was final and, on that basis alone, qualified it as an arbitral award under the Convention. The court cited earlier decisions of United States courts that had qualified interim orders as arbitral awards in view of their final character38 and held that courts need to “go beyond a document’s heading and delve into its substance and impact to determine whether the decision is final.”39 Similarly, the Paris Court of Appeal in Brasoil v. GMRA qualified as an award and set aside a court’s denial of a party’s request to review a partial award on liability.40 The French court held that it could do so on the ground that, although described as an “order,” the arbitral tribunal’s decision to deny was de facto an award because its effect was to settle a dispute between the parties in a final manner. It stated that the qualification of a decision as an award does not depend on the terms used by the arbitrators or by the parties.41 In another recent decision rendered by the English High Court in Konkola Copper Mines Plc v. U&M Mining Zambia Ltd., the Court stated that English law does not provide a statutory definition of an award and that the terminology used by the arbitrators was “of little or no importance.” The designation of an award as a “conditional” award therefore did not prevent it from being a valid award.42 In 2012, the English Court of Appeal held in Sucafina SA v. Rotenberg that the designation as an “appeal interim award” (in this case issued by the Board of Appeal of the Coffee Trade Federation) does not change the nature of an award, if it is in fact final and binding on the issues determined by the decision.43 d) Decision Rendered by an Arbitral Tribunal Article I(1) refers to “arbitral” awards and Article I(2) speaks of “arbitrators.” As a 27 result, the Convention encompasses only decisions rendered by “arbitral tribunals.” Here too, the Convention chooses not to provide a definition for the term. Article I(2) 36 Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 150, 151; Otto, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, pp. 151, 158. The comment on the definition of “arbitral award” in the Restatement Third also states that “[w]hether a writing issued by an arbitral tribunal constitutes an arbitral award is not controlled by the label given to it by the tribunal.” The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1 Comment a (p. 17). 37 US: Publicis Communication v. True N. Communications, Inc., 206 F.3d 725 (7th Cir. 2000) = 15(4) Mealey’s Int. Arb. Rep. B-1 (2000) = 18(2) ASA Bull. 427 (2000) = XXV Y.B. Com. Arb. 1152, 1155 (2000). 38 US: Yasuda Fire & Marine Ins. Co. of Europe v. Cont’l Cas. Co., 37 F.3d 345 (7th Cir. 1994) qualifying an “interim order of security” as an award; Pac. Reins. Mgmt. Corp. v. Ohio Reins. Corp., 935 F.2d 1019 (9th Cir. 1991), qualifying an “interim final order” as an award; Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046 (6th Cir. 1994), qualifying an “interim order;” Sperry Int’l Trade, Inc. v. Gov’t of Israel, 689 F.2d 301 (2d Cir. 1982); Pinsolle, Rev. arb. 2000, 659. 39 US: Publicis Communication v. True N. Communications, Inc., 206 F.3d 725 (7th Cir. 2000) = 15(4) Mealey’s Int’l Arb. Rep. B-1 (2000) = 18(2) ASA Bull. 427 (2000) = XXV Y.B. Com. Arb. 1152, 1155 (2000). This decision is also relevant for the finality criterion of the arbitral award (Õ paras 55 et seq.). 40 France: CA Paris, Rev. arb. 1999, 834 = XXIVa Y.B. Com. Arb. 296 (1999); Pinsolle, Rev. arb. 2000, 659. The reason for the annulment was that the order had not been submitted to the International Court of Arbitration of the ICC for scrutiny, as required under the ICC Rules: “the arbitral tribunal failed to comply with its mandate to render an award in conformity with the Arbitration Rules chosen by the parties” (France: CA Paris, XXIVa Y.B. Com. Arb. 296, 298 (1999)). 41 France: CA Paris, Rev. arb. 1999, 834 = XXIVa Y.B. Com. Arb. 296, 298 (1999). 42 UK: Konkola Copper Mines Plc v. U&M Mining Zambia Ltd., [2014] EWHC 2374 (Comm). 43 UK: Sucafina SA v. Rotenberg, [2012] EWCA Civ 637, paras 21 et seq.

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Article I 28–30

New York Convention

simply states that awards made by arbitrators appointed for an individual case as well as those decided by permanent arbitral bodies to which the parties have submitted are covered by the Convention (Õ paras 85 et seq.). Even though it may not be possible to find a general formula to deal satisfactorily with all situations,44 it is important to examine the specific features of an arbitral tribunal and what distinguishes it from other adjudicative bodies. 28 An arbitral tribunal is a private panel of one or more arbitrators appointed to resolve a dispute by way of arbitration instead of state court proceedings, deriving its authority and jurisdiction from an agreement between the parties, and which is supposed to offer sufficient guarantees of independence and impartiality.45 For the time being, from a practical as well as from an ethical and public policy perspective, an “arbitrator” is understood to be a human being, not a machine or computer. The possibility cannot be excluded, however, that with the rapid advancement of technology and the advent of artificial intelligence parties will in several years’ time consent to have certain disputes resolved by machine arbitrators through “e-awards.” aa) Submission Agreement. The constitution of a private arbitral tribunal as an adjudicative body is based on party autonomy. The wording “have submitted” in Article I(2) suggests that a voluntary submission agreement between the parties is required.46 The provisions relating to the recognition of arbitration agreements in Article II and to the formal requirements for recognition in Article IV(1)(b), under which a party shall supply the “original” arbitration agreement in order to obtain leave of enforcement, support this understanding. The notion of the parties’ “agreement,” however, should be interpreted broadly to cover all arbitral tribunals that derive their competence from the will of the parties, including from shareholder agreements or from a party’s general terms and conditions that have been accepted by the other party.47 30 Statutorily created arbitral tribunals, however, are not covered. In particular, the term “permanent arbitral body” used in Article I(2) cannot be construed to include arbitral tribunals instituted by law and thus cannot serve as a waiver of the requirement that the parties voluntarily submitted their dispute to arbitration.48 The express mention of the “submission to arbitration” in Article 1 of the 1927 Geneva Convention was not adopted in the Convention.49 However, nothing in the travaux préparatoires or in the wording of the Convention indicates that its drafters intended to include awards 29

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Patocchi, in: Blessing (ed.), ASA Special Series No. 9, pp. 145, 152, 153. See Sutton/Gill/Gearing, Russell on Arbitration, para. 4-132; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 766; van den Berg, NYC, p. 44; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.81 et seq., stating that the Convention assumes (at least implicitly) a functional comparability between arbitration and litigation; Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 142, 143; Pinsolle, Rev. arb. 2000, 661; US: Spier v. Calzaturificio Tecnica SpA, XIII Y.B. Com. Arb. 602, 606 (1988) (S.D.N.Y. 1987); Austria: OGH, XXII Y.B. Com. Arb. 619, 625 (1997). In the Restatement of the Law Third, The U.S. Law of International Commercial Arbitration, the term “arbitral tribunal” is defined as “a body consisting of one or more persons designated directly or indirectly by the parties to an arbitration agreement and empowered by them to adjudicate a dispute that has arisen between or among them.” The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1(b) (p. 11). 46 Born, International Commercial Arbitration, pp. 2924, 2925; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.87. 47 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.84–21.87. 48 See e.g. Germany: OLG München, Feb. 28, 2012, 34 Sch 30/10 (unreported), available at http://www. disarb.org (last visited Apr. 27, 2019), in which the court found that a Russian Arbitrazh Court (“Арбитраҗный суд”) was a state court, not an arbitral tribunal, and denied recognition and enforcement of the judgment, which was made “in the name of the Russian Federation.” 49 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.87. 45

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Article I

rendered by arbitral tribunals instituted by law. Quite to the contrary: the New York Convention Conference rejected a proposal by the attending Czechoslovakian delegation attempting to define the term “permanent arbitral body” in this broad manner.50 In a domestic context, however, national laws can validly provide for certain 31 exceptions from the requirement of a submission agreement. For instance, the German arbitration law applies by analogy to non-contractual arbitral proceedings initiated through a last will and testament51 or other dispositions, such as regulatory codes or by-laws of associations or federations (Õ paras 44 et seq.). bb) Results from Other Adjudication Bodies. Given the clear reference to “arbitral” 32 awards in Article I(1), some categories of findings made in alternative dispute resolution processes other than arbitration can be excluded altogether from the Convention’s scope, even if they are binding. In particular, expert determinations52 and the outcome of dispute boards or conciliations cannot be recognized and enforced as awards because these processes are collaborative53 and are not genuine alternatives to litigation: parties do not intend for third party neutrals (experts, adjudicators or conciliators) to render binding decisions and their proceedings are not court-like.54 In any event, in practice the distinction between arbitral awards and other forms of third-party decision-making has, as it seems, never given rise to difficulties at the recognition or enforcement stage.55 In the case of an expert determination (in German “Schiedsgutachten”) the parties have 33 agreed to submit certain legally relevant factual issues for assessment by an independent expert. This process is often the first step in a two-stage dispute resolution mechanism whereby the subsequent arbitration or state court proceeding will resolve resulting legal questions in light of facts first established by the expert. While the expert’s factual determination is binding on the parties and usually also on the arbitral tribunal, the expert’s role is quite different from that of the arbitrator. The expert does not draw legal conclusions, nor does he try to achieve a resolution of the dispute as a whole or render an award that could be enforced. As such, expert determinations generally cannot qualify as “arbitral awards” under the Convention.56 Furthermore, arbitration and expert determination can be distinguished by the means employed to draw their respective conclusions. While an arbitral tribunal conducts a quasi-judicial proceeding in place of the state court and reaches its decision by applying the law, an expert generally applies his own expertise and makes factual determinations only on that basis.57 50

Bülow, KTS 1959, 6; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.84. See section 1066 of the German Code of Civil Procedure and Haas, SchiedsVZ 2011, 289. 52 Switzerland: BG, 12(1) ASA Bull. 46 (1994) = BGE 117 Ia 365 = SZIER 1993, 199; Girsberger/Voser, International Arbitration, para. 1690; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 10; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 4; Otto, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 158; Patocchi, in: Blessing (ed.), ASA Special Series No. 9, pp. 145, 152; Berger/Kellerhals, Arbitration in Switzerland, para. 2037; ICCA, Guide, p. 16. 53 In ADR processes other than arbitration, the successful conclusion of the process depends on active participation by the parties at all stages. Arbitrators, on the other hand, can produce a valid and enforceable award even where one of the parties refuses to participate in the proceeding. See also The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1 Comment c (p. 19). 54 Born, International Commercial Arbitration, p. 2919; Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 143; Gaillard/Savage, Fouchard Gaillard Goldman, para. 12; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.115; ICCA, Guide, p. 16. 55 See Patocchi, in: Blessing (ed.), ASA Special Series No. 9, pp. 145, 152. 56 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.108; see also the comparative analysis conducted by Tustin, 28(1) N.Y. Int’l L. Rev. 25 (2015). 57 Sutton/Gill/Gearing, Russell on Arbitration, paras 2-029, 2-031; Haas, Anerkennung und Vollstreckung, pp. 135–136. 51

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New York Convention

However, in Seed Holdings, Inc. v. Jiffy International AS the New York District Court decided that an agreement for binding resolution by an independent accountant fell under the Convention. It treated as a valid agreement to arbitrate any agreement for final and binding dispute resolution by a third party, regardless of whether the term “arbitration” was used and of whether a particular proceeding had to be followed.58 In line with the aforementioned decision, in HBC Solutions, Inc. v. Harris Corp., the same Court held that an agreement for a dispute resolution process which called for a decision by an accountant regarding a purchase price adjustment qualified as an agreement to arbitrate rather than for expert determination.59 34 The distinction between arbitrator and expert can become somewhat blurred in cases where arbitrators are appointed because of their technical or other non-legal expertise. However, such arbitrators have not been appointed to apply their expertise, but because they are in a position to better understand complex facts underlying the dispute when deciding upon it. The essential difference is the way in which the proceedings are conducted: while experts generally meet with the parties in rather informal meetings, arbitrators conduct evidentiary hearings in a trial-type manner.60 In addition, arbitrators have greater power and discretion – they are not bound by an expert’s mission – and their awards are subject to challenge in most jurisdictions.61 35 The situation is similar for adjudication procedures like those practiced in particular in the United Kingdom: the decision of the adjudicator is only temporarily binding “until the dispute is finally determined by legal proceedings, by arbitration […] or by agreement.”62

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cc) Findings from Procedures Akin to Arbitration. Some legal systems feature dispute resolution processes, such as the arbitrato irrituale (“informal arbitration”) in Italy and the bindend advies (“binding advice”) in the Netherlands, which resemble arbitration but have no equivalent in other jurisdictions. As shown below with respect to arbitrato irrituale proceedings, the practical concern is whether the outcomes from such procedures should benefit from recognition and enforcement under the Convention. 37 The Italian arbitrato irrituale, whose final order is called a lodo irrituale, is a special kind of arbitration based entirely on contract law and having only contractual force. Because it is less formal than its arbitrato rituale counterpart, it has been described as being “between proper arbitration and contract enhancement (gap filling and price appraisals).”63 Much debate has centered on whether the lodo irrituale should qualify as an arbitral award under the Convention because a lodo irrituale, although binding, cannot be enforced as an arbitral award in Italy. Rather, the party seeking its “enforcement” must commence a subsequent legal action and obtain a judgment that either validates the will of the parties underlying the lodo or compels payment of a pecuniary liability imposed by the lodo against one party in favor of another (decreto ingiuntivo).64 Contrary to the lodo irrituale, the lodo rituale automatically has the same binding effect as a court judgment.65 36

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US: Seed Holdings, Inc. v. Jiffy Int’l AS, 5 F. Supp. 3d 565 (S.D.N.Y. 2014). US: HBC Solutions, Inc. v. Harris Corp., XXXIX Y.B. Com. Arb. 634 (2014) (S.D.N.Y. 2014). 60 Sutton/Gill/Gearing, Russell on Arbitration, para. 2-031. 61 Sutton/Gill/Gearing, Russell on Arbitration, para. 2-032. 62 See section 108(3) of the English 1996 Housing Grants, Construction and Regeneration Act; see also Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 148, 149. 63 Di Pietro/Platte, Enforcement of International Arbitration Awards, pp. 49–52. 64 Di Garbo, AAYB 2010, 129–134; van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 57; van den Berg, 18(2) ICC Bull. 1, 45 (2007); Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 53; Haas, Anerkennung und Vollstreckung, pp. 136–137. 65 Article 824-bis of the Italian Code of Civil Procedure; Di Pietro, 10(1) Int. A.L.R. 18, 22 (2007). 59

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Article I

Until a few years ago, the provisions of the Italian law on arbitration did not govern the arbitrato irrituale and instead gave the parties the utmost freedom in shaping the proceedings. In 2006, the Italian arbitration law finally codified the arbitrato irrituale. The new Article 808(1) of the Italian Code of Civil Procedure provides that “[t]he parties may establish in writing that the dispute be settled by the arbitrators through a contractual determination as an exception to the provision of Article 824-bis.”66 The reform has not made clear, however, whether the procedural rules existing for arbitrato rituale also apply to arbitrato irrituale.67 Ironically, the Italian Corte di Cassazione repeatedly held that, although a lodo irrituale is not enforceable under Italian law as an arbitral award, it does indeed qualify as an “award” under the Convention. The reason is that the Convention has abolished the requirement of obtaining an exequatur from an award’s country of origin and requires merely that the award binds the parties. The arbitrato irrituale fulfills this requirement because the proceedings end with a contract or decision that is binding upon the parties.68 The position taken by the Corte di Cassazione in its decisions has met with doctrinal support. For instance, Di Pietro/Platte argue that formal requirements are normally given less importance in international disputes where the prevailing attitude is to enhance international trade by preserving the validity of business relationships between international traders. They state that the lack of formality might be accepted in favor of the superior interest in stimulating the growth of international trade.69 Similarly, but with more emphasis on the legislative history of the Convention, Haas takes the view that since the purpose of the Convention was to unify the different kinds of national rules on arbitration for easier recognition and enforcement, it should cover all forms of decision used in international commerce. He adds that the fact that the lodo irrituale does not undergo any review by state courts justifies including it into the ambit of the Convention.70 Finally, Schlosser argues that the non-application of the Convention to arbitrato irrituale would mean that States with only “non-judicial” contractual arbitration would not benefit from the recognition and enforcement of their legal mechanisms when signing the Convention. It follows that the term “award” must be interpreted functionally (not distinguishing between law of procedure and law of obligations) and includes all types of decisions that result from quasi-judicial proceedings.71 However, the prevailing view among international commentators, which is shared by the author, is that an Italian lodo irrituale cannot be enforced abroad under the New York Convention.72 This “informal arbitration” is clearly not a genuine alternative to state court litigation and the resulting lodo lacks the finality that characterizes an arbitral award.73 Moreover, to apply the Convention to it might lead to paradoxical results: the lodo irrituale would enjoy broader effect and thus be treated more favorably 66 Article 824-bis of the Italian Code of Civil Procedure states that the award shall have the same effects as a judgment rendered by the judicial authority. 67 Sangiovanni, 26(4) ASA Bull. 688 et seq. (2008). 68 Italy: Cass., IV Y.B. Com. Arb. 296, 297 (1979); Cass., XXIX Y.B. Com. Arb. 784–791 (2004); Cass., XVIII Y.B. Com. Arb. 427–432 (1993); Cass., sez. un., IX Y.B. Com. Arb. 429 et seq. (1984); Cass., sez. un., X Y.B. Com. Arb. 464 et seq. (1985); CA Firenze, III Y.B. Com. Arb. 279 (1978). 69 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 54. 70 Haas, Anerkennung und Vollstreckung, p. 138. 71 Schlosser, Recht der Schiedsgerichtsbarkeit, para. 766. 72 See, e.g., Poudret/Besson, Comparative Arbitration, paras 20, 21, 879; Kreindler/Schäfer/Wolff, Kompendium, para. 1130. 73 Di Pietro, 10(1) Int. A.L.R. 18, 22, 23, 24 (2007).

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New York Convention

in foreign enforcement proceedings than in its country of origin.74 Such results are not in line with the Convention’s spirit and the pursuit of judicial harmony. 42 The German Federal Supreme Court endorsed this view when holding that a lodo irrituale can neither be recognized nor enforced under the Convention. The Bundesgerichtshof held that the text of the Convention already points to the inapplicability of its provisions to a procedure akin to arbitration in which decisions are rendered with contractual force only. It concluded that the lodo irrituale falls under the latter category because it determines the obligations with contractual force only and does not confer upon them the force of a judgment.75 This view was confirmed in a more recent German court ruling that an arbitral award rendered in California could not be enforced in Germany under the Convention because, according to section 1287(6) of the California Code of Civil Procedure, arbitral awards require confirmation by a state court, failing which such awards merely have “the same force and effect as a contract in writing between the parties to arbitration.”76 43 In conclusion, to be on the safe side and in order not to jeopardize the enforceability of a decision under the Convention, parties are well advised not to agree to arbitrato irrituale or similar procedures akin to arbitration (such as a bindend advies under Dutch law) in an international context. dd) Decisions of Internal Tribunals. Some uncertainty exists with regard to the question as to whether decisions made by internal tribunals of associations or federations can qualify as Convention awards. These tribunals are generally formed on the basis of regulatory codes or by-laws. The “arbitrators” are appointed from among the members of the association. The uncertainty results from the absence of criteria for distinguishing “genuine” arbitral tribunals from internal ones. 45 The practice seems split between civil law and common law jurisdictions. Courts in England77 and the United States78 have considered that internal awards fulfill all criteria of a Convention award, even if members of the association had appointed the arbitrators.79 On the other hand, there is precedent in Germany,80 Switzerland81 and 44

74 Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 5; Patocchi, in: Blessing (ed.), ASA Special Series No. 9, pp. 145, 153; van den Berg, NYC, p. 49; Brotóns, Recueil des Cours, Vol. 184 (1984-I), pp. 173, 194–196; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 para. 21; Walter, RIW 1982, 693; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 14. 75 Germany: BGH, NJW 1982, 1224, 1225 = IPRax 1982, 143 = VIII Y.B. Com. Arb. 366, 368 (1983). 76 Germany: BayObLG, NJW-RR 2003, 502, 503 = SchiedsVZ 2003, 142, 143 = XXIX Y.B. Com. Arb. 754, 757 (2004); Kreindler/Schäfer/Wolff, Kompendium, para. 1130; section 1287.6 of the California Code of Civil Procedure reads: “An award that has not been confirmed or vacated has the same force and effect as a contract in writing between the parties to the arbitration.” See also US: Frydman v. Cosmair, Inc., XXI Y.B. Com. Arb. 784–792 (1996) (S.D.N.Y. 1995), in which the District Court denied enforcement of a price determination by a third party pursuant to Article 1592 of the French Civil Code (which procedure exists alongside arbitration governed by Articles 1442–1507 of the French Code of Civil Procedure). 77 UK: Sandra Gasser v. Henry Hunter Stinson, No. Ch-88-g-2191, pp. 32 et seq. (unreported), referenced by Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.113 n. 352. 78 US: Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110 (6th Cir. 1994); Reynolds v. Int’l Amateur Athletic Fed’n, XXI Y.B. Com. Arb. 715, 717 (1996) (S.D. Ohio 1993); Slaney v. Int’l Amateur Athletic Fed’n, 244 F.3d 580 (7th Cir. 2001) = XXVI Y.B. Com. Arb. 1091 (2001). 79 See Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.111 et seq. 80 Germany: BGH, BGHZ 51, 255 = NJW 1969, 750; BGH, NJW 1995, 583; BGH, BGHZ 54, 392, 395 = KTS 1971, 104; BGH, NJW 2004, 2226, 2227; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 32 para. 17, ch. 47 para. 1. 81 Switzerland: BG, BGE 117 Ia 166, 168; BG, BGE 107 Ia 155, 158; but see also Switzerland: BG, 33(3) ASA Bull. 576 (2015), in which the Swiss Supreme Court found the Mexican Footfall Federation’s Conciliation and Dispute Resolution Commission (CDRC) to be a veritable arbitral tribunal.

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France82 to the effect that such “tribunals” generally – and particularly in smaller associations – do not qualify as arbitral tribunals, because they are internal bodies and not comprised of independent third parties.83 Haas expresses the view that, in light of its purpose to facilitate the recognition and 46 enforcement of arbitral awards in foreign countries based on a broad and autonomous interpretation, the Convention should apply to decisions of internal tribunals.84 However, at least in the context of smaller associations, for which the list of potential arbitrators is limited, this view seems contrary to the requirement that, for the purposes of the Convention, arbitral awards must result from quasi-judicial proceedings fulfilling the basic principles of due process. In such cases an award from an internal tribunal may only benefit from recognition and enforcement under the Convention where the parties have appointed the arbitrators themselves and where the internal tribunal decides in lieu of a state court judge and with a sufficient guarantee of independence.85 ee) Recognized Awards Under the Doctrine of Merger. It is beyond dispute that a 47 judicial decision on the recognition and enforcement of an arbitral award does not itself qualify as an award under the Convention.86 This holds equally true for a confirmation judgment into which a foreign arbitral award has been merged, as practiced in a number of common law jurisdictions where the judgment entirely absorbs and replaces the award becoming the only enforceable decision (“doctrine of merger”).87 Significant practical problems can arise from “merged” decisions if enforcement is 48 sought outside the State where the judicial decisions were rendered, based on provisions on the recognition and enforcement of foreign judgments. It is controversial whether the merger occurs only within the rendering State or whether it has an extraterritorial effect. In other words, can the party seeking enforcement in another country still rely on the arbitral award or only on the merged judgment enforceable in the rendering State? Further still, does the prevailing party hold two enforceable titles and, if so, can it choose freely on which to rely for purposes of recognition and enforcement in other countries?88 In accordance with the general conflict of laws principle exequatur sur exequatur ne 49 vaut, courts in most countries deny any extraterritorial effect to foreign exequatur decisions (also Õ Art. V para. 414). Instead, disregarding mergers, they have granted enforcement under the Convention only to the foreign arbitral awards themselves, 82

Simon, Rev. arb. 1995, 194. Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.112. 84 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.114. 85 Schwab/Walter, Schiedsgerichtsbarkeit, ch. 32 para. 17; ch. 47 para. 1; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.114. 86 Geimer, IZPR, paras 3891, 3899; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.116. See also US: Firooz Ghassabian v. Fatollah Hematian, XXXIII Y.B. Com. Arb. 1224 (2008) (S.D.N.Y. 2008), holding that the Convention did not apply to actions to restrain a pending arbitration. 87 Section 9 US Arbitration Act; Roth, 92(3) Cornell L. Rev. 573, 580 (2007); Poudret/Besson, Comparative Arbitration, para. 879. The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1(g) (p. 12), which restates US law of international commercial arbitration, defines the term “confirmation” as “the reduction to judgment of a Convention award made in the United States.” The term “enforcement” is defined as “the reduction to a judgment of an international arbitral award, other than a Convention award made in the United States.” The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1(m) (p. 12). 88 See Roth, 92(3) Cornell L. Rev. 573, 581 et seq. (2007); Scherer, 4(3) JIDS 587 et seq. (2013). 83

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Article I 50–52

New York Convention

viewing them as valid causes of action.89 There is a solitary decision from an Italian court that refused to grant enforcement of an arbitral award issued in England on the ground that the award had merged with an English judgment confirming it and thus had become an integral part of that judgment.90 The same court, however, took the opposite view only weeks later in a subsequent case when refusing to enforce an English confirmation judgment.91 50 Other courts have adopted the solution that the party seeking enforcement should have the right to choose whether to base its enforcement action either on the arbitral award or on the exequatur judgment (parallel entitlement).92 Beginning with two 1984 decisions, the German Federal Supreme Court (the Bundesgerichtshof) supported this parallel entitlement approach.93 The court’s primary rationale was that because the exequatur judgment was an autonomous decision with independent validity, there was no reason to deprive a party of “the benefit of the Convention even if the judicial decision is also enforceable in the State of origin.”94 Enforcing the judicial decision also had certain practical advantages: first, interest accruing between the moment the award was issued and the moment it merges into the judicial decision could more easily be enforced, and second, it is less costly to translate a concise exequatur judgment into a different language than a lengthy arbitral award.95 51 Heavy criticism followed the Bundesgerichtshof’s rulings to the effect that a party seeking recognition and enforcement should be able to rely on the award alone, rather than having a choice, lest the losing party be burdened with multiple enforcement titles.96 Critics of the parallel entitlement approach also referred to a United States court that recognized and enforced an arbitral award rendered in England in which the doctrine of merger applied, but not the award’s subsequent confirmation by an English court.97 52 In a July 2009 decision, the Bundesgerichtshof abandoned its 25-year old precedent and found it improper and inadmissible to recognize and enforce foreign exequatur judgments in Germany, whether or not the issuing State follows the doctrine of merger.98 In that case, the lower court in Berlin had declared an exequatur judgment from the Superior Court of California enforceable, viewing it as an autonomous order. The Bundesgerichtshof found that, based on the rules governing the recognition and enforcement of court decisions in Europe (the Brussels I Regulation and the Lugano 89 Australia: Brali v. Hyundai Corp., 84 ALR 176 = XV Y.B. Com. Arb. 360 (1990); India: Northern Sales Co. Ltd. v. Reliable Extraction Industries Pvt. Ltd., AIR 1985 Bom. 332 = XIV Y.B. Com. Arb. 644 (1989) Germany: OLG Hamburg, IV Y.B. Com. Arb. 266–268 (1979); van den Berg, 18(2) ICC Bull. 1, 45, 46 (2007); Patocchi/Jermini, in: Basler Kommentar, Art. 194 paras 10, 11; Solomon, Verbindlichkeit von Schiedssprüchen, pp. 570 et seq. 90 Italy: CA Firenze, X Y.B. Com. Arb. 450–452 (1985). 91 Italy: CA Firenze, X Y.B. Com. Arb. 453–454 (1985). 92 India: Northern Sales Co. Ltd. v. Reliable Extraction Industries Pvt. Ltd., AIR 1985 Bom. 332 = XIV Y.B. Com. Arb. 644 (1989); Harendra H. Mehta v. Mukesh H. Mehta, [1999] 97 Com.Cas. 265 = XXV Y.B. Com. Arb. 721, 731, 732 (2000). 93 Germany: BGH, NJW 1984, 2763 et seq. = X Y.B. Com. Arb. 427 (1985); see also Geimer, IZPR, para. 3899; Schlosser, IPRax 1985, 141. 94 Poudret/Besson, Comparative Arbitration, para. 879. 95 Schlosser, Recht der Schiedsgerichtsbarkeit, para. 909. 96 See, e.g., Schwab/Walter, Schiedsgerichtsbarkeit, ch. 30 para. 15, ch. 42 para. 7; Haas, Anerkennung und Vollstreckung, pp. 140, 141; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.118; Schütze, ZVglRWiss 104 (2005), 427, 441; Kreindler/Schäfer/Wolff, Kompendium, para. 1132. 97 US: Oilcakes & Oilseeds Trading Co. v. Sinason Teicher Inter Am. Grain Corp., 170 N.Y.S.2d 378, 379, 380 (1958). 98 Germany: BGH, NJW 2009, 2826 = SchiedsVZ 2009, 285 = IHR 2010, 178 = XXXV Y.B. Com. Arb. 374 (2010).

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Scope of Application

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Article I

Convention), exequatur judgments confirming foreign judgments generally could not be enforced. There was thus no reason why judgments confirming arbitral awards should receive different treatment. The court further held that because debtors needed protection from having to defend themselves against two enforcement proceedings – one based on the exequatur judgment and the other based on the underlying arbitral award – only the award itself could potentially be enforced. The Bundesgerichtshof decided that exequatur judgments of courts following the doctrine of merger are designed to have effect only within the territory of the State for which the award was recognized and declared enforceable. The party seeking enforcement should not unduly be given the advantage of circumventing the defenses available to debtors under the Convention (such as lack of proper notice of the appointment of an arbitrator, or that the arbitral award exceeded the scope of the arbitration agreement) by commencing enforcement of the exequatur judgment abroad. The Bundesgerichtshof’s reversal of its own case law deserves acclaim since, as the 53 court states, the continued allowance of “double exequatur” of arbitral awards effectively erodes the scope of application of the Convention and contravenes the Convention’s goal of promoting arbitration.99 Parties pursuing enforcement of foreign arbitral awards should do so based on the Convention and not on exequatur judgments. In the future, it seems that foreign exequatur judgments issued in respect of arbitral awards will no longer be enforceable in Germany. e) Final and Binding Nature of the Award In order to merit recognition and enforcement under the Convention, it is not 54 sufficient for an arbitral tribunal to have rendered the decision and that this has determined a legal issue. The decision must also be final and binding – two notions not defined in the Convention. While the finality of a decision derives from its content, binding nature depends upon its effect (Õ paras 79–84). aa) Final. An arbitral award can be “final” in the sense that it determines all 55 outstanding issues in the arbitration in a way that, once it is issued, the arbitrators become functus officio.100 Finality can also mean that certain – and not necessarily all – disputed points submitted for arbitration are finally resolved and concluded, thus becoming res judicata unless and until a successful challenge to the award is mounted.101 Although it is not expressed by the Convention, the latter meaning of finality is the one generally considered to be the essential component of an arbitral award and shall be adopted herein. Arbitral practice employs many different names and categories of awards, the most 56 popular being “preliminary,” “interim,” “interlocutory,” “partial” and “final” awards.102 It has been said that the different award types do not cause “real difficulties in practice.”103 Indeed, the finality of certain kinds of decisions is widely accepted, such as those rendered despite one party having defaulted.104 Other categories of decisions must clearly be excluded from the scope of the Convention because they are preliminary 99

See also Roth, 92(3) Cornell L. Rev. 573, 581 (2007). Sutton/Gill/Gearing, Russell on Arbitration, para. 6-005. 101 Sutton/Gill/Gearing, Russell on Arbitration, para. 6-007; Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 31; Berger/Kellerhals, Arbitration in Switzerland, para. 1454. 102 Van den Berg, XXVIII Y.B. Com. Arb. 562, 577 (2003); see, e.g., Article 62(a) of the 1994 WIPO Arbitration Rules, which provides: “The Tribunal may make preliminary, interim, interlocutory, partial or final awards.” 103 Favre-Bulle, in: Müller/Rigozzi (eds), New Developments 2008, pp. 61, 63; see also van den Berg, 18(2) ICC Bull. 1, 41 (2007). 104 Poudret/Besson, Comparative Arbitration, paras 587, 883. 100

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Article I 57–60

New York Convention

or do not decide a dispute on its merits. Several different types of arbitral findings will be examined in this subsection. (1) Procedural Orders. An arbitral tribunal’s procedural orders and directions issued in the course of the proceedings generally do not qualify as awards. First, procedural orders do not bind the arbitral tribunal, as it can revoke or alter them at any time. Second, they do not reflect a final determination of a party’s claim.105 Instead, such orders or directions normally deal with the management and conduct of the proceedings. Examples include decisions relating to the application of specific procedural rules, requests for document production, the admissibility of evidence or the appearance of witnesses and experts.106 58 The choice of the form of the decision falls largely within the arbitral tribunal’s discretion.107 This discretion, however, is not without limits, depending on the nature of the decision. There may be cases in which a national court will need to re-characterize a procedural order as an arbitral award (or vice-versa), depending on the nature and function of the decision, in particular its finality under the specific circumstances of the case.108 As noted in Õ paras 24–26, the name bestowed upon a decision does not determine its effect. 59 Several court decisions illustrate the considerations to be made when distinguishing between a procedural order and an arbitral award. For instance, fully in line with the understanding of what constitutes an arbitral award under the Convention, the Supreme Court of Queensland, Australia, in Resort Condominiums v. Bolwell refused to grant the enforcement of an “Interim Arbitration Order and Award” that enjoined the respondents from carrying out certain time sharing activities until a final award was issued. The Court held that the decision was not an “arbitral award” within the meaning of the Convention, because the arbitral tribunal could modify it at any time.109 60 On the other hand, a US Court of Appeals in Publicis Communication v. True North Communications allowed recognition and enforcement of a disclosure order under the Convention, even though the decision did not resolve any main issue between the parties.110 Although consistent with American arbitration law (i.e., the FAA), the Court 57

105 Born, International Commercial Arbitration, pp. 2927 et seq.; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 9; Geimer, IZPR, para. 3891; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 151; Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 155. 106 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 35; Poudret/Besson, Comparative Arbitration, paras 727, 728, 852, 879; Veeder, in: United Nations (ed.), Experience and Prospects, p. 21; Sutton/Gill/Gearing, Russell on Arbitration, para. 6-003. 107 See e.g. Article 28(1) ICC Rules of Arbitration (2017), which provides inter alia as follows on conservatory and interim measures: “Any such measure shall take the form of an order, giving reasons, or of an award, as the arbitral tribunal considers appropriate.” 108 Switzerland: BG, 28(3) ASA Bull. 598, 606 et seq. (2010) and 29(1) ASA Bull. 110, 115 et seq. (2011). In these decisions the Swiss Supreme Court re-characterized a “Preliminary Award” (“Sentence préliminaire”) and an “Interim Award” as an order for provisional measures and a procedural order, respectively. See also Karrer, 2 TvA 57 (2004); Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 35. 109 Australia: Resort Condominiums International Inc. v. Ray Bolwell, 118 ALR 655 = XX Y.B. Com. Arb. 628, 630 (1995). The Supreme Court held that “[t]hese Orders […] are clearly of an interlocutory and procedural nature and in no way purport to finally resolve the disputes or any of them referred by RCI for decision or to finally resolve the legal rights of the parties. They are provisional only and liable to be rescinded, suspended, varied or reopened by the tribunal which pronounced them.” 110 See US: Publicis Communication v. True N. Communications, Inc., 206 F.3d 725 (7th Cir. 2000) = 15(4) Mealey’s Int’l Arb. Rep. B-1 (2000) = 18(2) ASA Bull. 427 (2000) = XXV Y.B. Com. Arb. 1152, 1155 (2000). The Court of Appeals noted that “resolving this case actually requires determining only whether or not this particular order by this particular arbitration tribunal regarding these particular tax records was final. If the arbitration tribunal’s Oct. 30, 1998, decision was final, then Judge Gottschall had the authority to confirm it.”

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Scope of Application

61–62

Article I

of Appeals decision was criticized as too restrictive and maladroit for having focused solely on the criterion of finality, without considering that it did not contain a decision on the merits of the parties’ claims.111 In Clinique La Prairie, S.A. v. The Ritz Carlton Hotel Co., a US district court did not adopt the Court of Appeals’ approach when allowing enforcement of a Swiss arbitral award under the Convention. The district court reasoned that, despite the fact that certain issues had been excluded from the final award, the arbitral tribunal had expressly made its findings final and binding and terminated the arbitral procedure.112 The Cour d’appel de Paris also used the finality criterion, but offered a slightly more 61 nuanced analysis in Brasoil v. GMRA.113 During the quantum phase of the arbitral proceedings, the losing party (Brasoil) requested that the arbitral tribunal review its partial award on liability alleging that GMRA had fraudulently withheld certain documents during the liability phase. The tribunal denied the request in a decision described as an “order.” Brasoil sought to have the “order” set aside and the Cour d’appel granted its request. It held that it could do so on the ground that, although described as an “order,” the arbitral tribunal’s decision was in fact an award because its object was to finally settle a dispute between the parties.114 Although the finality criterion seems to have been crucial to the court’s decision, it was applied in combination with the finding that the decision resulted from a detailed examination of the parties’ allegations and put an end to the dispute. (2) Partial Awards. Partial awards generally fall within the scope of the Convention, 62 provided they resolve at least a part of the dispute in a final manner that will not be reviewed in the final award (Õ Art. V para. 371).115 The issues ruled upon must, however, be effectively “detachable” from the remaining issues of the dispute.116 National courts around the world have applied this rule,117 in particular to awards settling preliminary 111

Pinsolle, Rev. arb. 2000, 661, 662. US: Clinique La Prairie, S.A. v. The Ritz Carlton Hotel Co., 2009 WL 884671 (S.D.N.Y. 2009) = XXXIV Y.B. Com. Arb. 1049 (2009). 113 France: CA Paris, Rev. arb. 1999, 834 = XXIVa Y.B. Com. Arb. 296 (1999); Pinsolle, Rev. arb. 2000, 659. 114 France: CA Paris, Rev. arb. 1999, 834 = XXIVa Y.B. Com. Arb. 296, 298 (1999). The Court of Appeal found that “[t]his reasoned decision – by which the arbitrators considered the contradictory theories of the parties and examined in detail whether they were founded, and solved, in a final manner, the dispute between the parties concerning the admissibility of Brasoil’s request for a review, by denying it and thereby ending the dispute submitted to them – appears to be an exercise of its jurisdictional power by the arbitral tribunal. […] Contrary to GMRA’s opinion and notwithstanding its qualification as an ‘order’, the decision of 14 May 1998 […] is thus indeed an award.” 115 Van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 58; Schlosser, Recht der Schiedsgerichtsbarkeit, paras 770, 772–774; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 8; Poudret/Besson, Comparative Arbitration, para. 883; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 12; Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 31; Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 152; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.99; Gaillard/Savage, Fouchard Gaillard Goldman, paras 1360 et seq.; ICCA, Guide, pp. 17, 18. 116 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 32. See also the definition of “partial award” in the Restatement Third: “an arbitral award that disposes of some, but not all, of the claims, defenses, or issues before the arbitral tribunal. A partial award does not include an order addressing scheduling, procedural, or evidentiary matters.” The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1(jj) (p. 15). 117 Austria: OGH, XXII Y.B. Com. Arb. 619, 625 (1997); Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 205, 210 (2012); France: Cass., Rev. arb. 1979, 478, 481; CA Paris, Rev. arb. 1994, 391, 393; Germany: BGH, NJW 1960, 1462; OLG Hamburg, IPRax 1982, 146, 147; Belgium: CA Liège, Pas. 1976 II 25, 26; Switzerland: BG, 12(1) ASA Bull. 46, 50 et seq. (1994); US: Tropical Cruise 112

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Article I 63–64

New York Convention

questions on jurisdiction,118 party standing, the law applicable to the merits119 or even awards determining liability but leaving the quantum to be decided in the final award.120 In a 1995 decision, the Italian Corte di Cassazione expressly confirmed the separate and independent enforceability of partial and final awards, reversing the lower court’s refusal to enforce a final award on quantum because the requesting party had not simultaneously sought enforcement of the partial award on liability.121 Two decisions from courts in Bulgaria122 and Colombia123 that deny the enforcement of partial awards are based on inappropriate reasoning and have remained isolated. 63 In practice, since arbitral proceedings are generally geared towards a final award,124 matters that could be decided in a partial award are oftentimes not given autonomous importance and dealt with only in the final award.125 The advantage of partial awards, however, is that they can be recognized and enforced separately, enabling the winning party to obtain enforcement thereof without having to await the final award. 64 However, certain categories of partial awards qualify for recognition only (and not for enforcement) because they concern non-enforceable issues, such as declaratory awards on jurisdiction or on the applicable law.126 In the case of linked and interdependent matters, it is generally advisable to enforce partial awards on separate matters together Lines, S.A. v. Vesta Ins. Co., 805 F. Supp. 409 (S.D. Miss. 1992) = XVIII Y.B. Com. Arb. 557, 558 et seq. (1993); Hart Surgical, Inc. v. Ultracision, Inc., 244 F.3d 231 (1st Cir. 2001); Am. Univ. of Antigua Coll. of Med. v. Leeward Constr. Co., XL Y.B. Com. Arb. 578, 581 (2015) (S.D.N.Y. 2015). 118 See, e.g., Australia: Commonwealth Development Corp. v. Austin John Montague, [2000] QCA 252 = XXVI Y.B. Com. Arb. 744 (2001); Colombia: Corte Suprema de Justicia, XLI Y.B. Com. Arb. 454, 459 (2016); Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 153. 119 Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 153. 120 Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 156; see, however, Germany: OLG Frankfurt, SchiedsVZ 2007, 278, 279, dismissing a motion to set aside a partial award on liability which left the quantum undecided, because it did not constitute an arbitral award under the terms of section 1059 of the German Code of Civil Procedure. 121 Italy: Cass., XXII Y.B. Com. Arb. 727–733 (1997); CA Bologna, XXI Y.B. Com. Arb. 590 (1996) = Rev. arb. 1994, 303–305. See also US: AO Techsnabexport v. Globe Nuclear Servs. & Supply, Ltd., 656 F. Supp. 2d 550 (D. Md. 2009) = XXXIV Y.B. Com. Arb. 1174 (2009): the US district court was confronted with a case in which the SCC arbitral tribunal had issued both a partial award holding the respondent liable for breach of contract and a final award in favor of the respondent. The claimant sought annulment of the final award in Sweden and confirmation of the partial award in the United States, while the respondent sought enforcement of the final award before the US courts. The district court granted enforcement of the final award and denied enforcement of the partial award. It held, inter alia, that there was no conflict between the two awards, which dealt with different issues, and that the arbitrators had not become functus officio after the partial award. 122 Bulgaria: Sup. Ct. of Appeal, XXV Y.B. Com. Arb. 678, 681 et seq. (2000); see also van den Berg, 18(2) ICC Bull. 1, 41 (2007). The Bulgarian Supreme Court of Appeal seems to have confused partial awards and awards on interim measures when holding that “the binding decision for the parties is exclusively the final arbitral award, which is the logical and stylistic interpretation of Article 32(2) of the UNCITRAL Arbitration Rules.” 123 Colombia: Corte Suprema de Justicia, XXVI Y.B. Com. Arb. 755, 760 et seq. (2001). The Supreme Court of Colombia interpreted Article I too restrictively and refused enforcement of an ICC “Interim Award on Jurisdiction” when it found that “the Convention’s intention is not that all judicial acts, or all acts which are called an ‘arbitral decision’ or an ‘arbitral award’, are enforceable; rather, only those acts are enforceable which settle the ‘differences’ submitted to [arbitration], that is, the merits of the dispute or the claim in arbitration.” 124 See, e.g., Craig/Park/Paulsson, ICC Arbitration, § 19.03 (p. 359). 125 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 32. 126 Poudret/Besson, Comparative Arbitration, paras 854, 883; Berger, International Economic Arbitration, p. 727; van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 58; Kröll, in: Böckstiegel/ Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 19, explaining when declaratory awards or awards with content not specific enough for enforcement may also be declared enforceable in Germany, with references, inter alia, to Germany: BayObLG, SchiedsVZ 2003, 142, 144 = XXIX Y.B. Com. Arb. 754, 757 (2004).

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Scope of Application

65–67

Article I

with the final award, as one can only be certain that all matters are finally and consistently determined by the arbitral tribunal when the final award has been rendered.127 (3) Awards on Interim or Provisional Measures. There is some controversy as to 65 whether independent enforceability should also be granted to awards on interim or provisional measures that arbitral tribunals issue in the course of their proceedings without ending any part of them.128 As rightly noted by some authors, there are two kinds of interim awards that are distinct in their content and effect: decisions that are binding but interlocutory or temporary in nature, aiming to preserve the status quo until the final decision (Õ paras 66–68); and decisions that dispose of temporary rights in a final manner (Õ paras 69–71).129 (a) Binding Decisions that Are Interlocutory or Temporary in Nature. For the first 66 kind of interim measures, binding interlocutory awards, the prevailing view is that, irrespective of the form in which they were rendered, they should not be recognized and enforced under the Convention because they remain provisional and temporary before the final award is rendered.130 The Supreme Court of Queensland agreed with this view in Resort Condominiums v. Bolwell and applied the finality criterion to a foreign “Interim Arbitration Order and Award” issued in the United States that was of interlocutory and procedural nature, as well as subject to suspension or modification by the arbitral tribunal. The court refused enforcement on the ground that, although it would appear unduly restrictive if the expression “arbitral award” in the Convention was construed as excluding a valid interim award, in order to qualify as an arbitral award an order must determine “at least some of the matters in dispute between the parties which were referred to the arbitrator for determination.”131 Today’s practitioners are generally dissatisfied with the non-applicability of the 67 Convention to provisional and conservatory measures given the practical importance of interim measures and of enforcement possibilities to the effectiveness of international arbitration (also Õ Art. V para. 376.).132 It has been stated that it “defies logic and practical common sense” to enforce an award under the Convention, but deny enforcement to an interim order made by the same arbitral tribunal for the sole purpose of ensuring that its award is not ultimately rendered nugatory by the other party.133 A solution could be to supplement the Convention with a multilateral convention on the enforcement of arbitral tribunals’ interim measures of protection by state courts.134 Time will show if there is sufficient political will to draft such a convention. 127

Di Pietro/Platte, Enforcement of International Arbitration Awards, pp. 33, 34. Berger/Kellerhals, Arbitration in Switzerland, para. 2037; Kreindler/Schäfer/Wolff, Kompendium, para. 1130. 129 Van den Berg, XXVIII Y.B. Com. Arb. 562, 577 (2003); Poudret/Besson, Comparative Arbitration, para. 879; see also Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.99. 130 Laschet, IPRax 1984, 72 et seq.; Poudret/Besson, Comparative Arbitration, paras 639, 879; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 13; Di Pietro/Platte, Enforcement of International Arbitration Awards, pp. 35, 44 et seq.; Favre-Bulle, in: Müller/Rigozzi (eds), New Developments 2008, pp. 61, 63; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 155, 156. 131 Australia: Resort Condominiums International Inc. v. Ray Bolwell, 118 ALR 655 = XX Y.B. Com. Arb. 628, 641 et seq. (1995); see also Lew/Mistelis/Kröll, Comparative Arbitration, para. 26‐39 and Pryles, (1994) 10 Arb. Int’l 385, 394, approving the decision of the Supreme Court of Queensland. However, for a decision to the contrary, see Marriott v. Ansal Hotels, in which the High Court of Delhi held that an interim award providing for interim measures “can be enforced as an arbitral award” under the Convention, India: Marriott International Inc. v. Ansal Hotels Ltd., XXVI Y.B. Com. Arb. 788, 805 (2001). 132 See, e.g., Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 45. 133 Veeder, in: United Nations (ed.), Experience and Prospects, pp. 21, 22; see also Di Pietro/Platte, Enforcement of International Arbitration Awards, pp. 47–48. 134 Veeder, in: United Nations (ed.), Experience and Prospects, pp. 21 et seq. 128

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Article I 68–71 68

New York Convention

For the time being, Article 4 of the UNCITRAL Model Law (as amended in 2006) on the recognition and enforcement of interim measures granted by arbitral tribunals already provides some relief in this respect. According to its Article 17H, an interim measure issued by a tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued, subject to the provisions of Article 17I. Interim measures may thus become enforceable in certain jurisdictions.135 In other countries it may remain necessary, depending on the circumstances, to apply to the state courts at the place of arbitration for interim measures. Of course, such measures are difficult to enforce in other countries.

(b) Decisions Disposing of Temporary Rights in a Final Manner. The situation is quite different with respect to interim awards that decisively rule upon temporary substantive rights, as distinct and severable from claims on the merits. With respect to these awards, most scholars agree with their enforceability because they provide for a resolution that shall remain final throughout the remaining proceedings and thus cannot be amended even if the evidence should change.136 70 For example, in Sperry International Trade, Inc. v. Government of Israel, a US Court of Appeals recognized the enforceability of an “interim award” ordering the payment of a contractual letter of credit into an escrow account pending the arbitral tribunal’s decision on Israel’s entitlement to draw on the said letter, because that decision related to a distinct substantive right separable from the merits of the dispute and was settled conclusively for the remainder of the arbitration.137 In such cases, the potential need to reimburse money depending on the outcome of the arbitration should be irrelevant.138 71 Another example is the 2007 decision of the Bundesgerichtshof, the German Federal Supreme Court, which affirmed a judgment of the Oberlandesgericht Hamburg granting enforcement under the Convention to the cost decision rendered as part of a “Partial Award on Jurisdiction” for the costs incurred during the jurisdictional phase of the arbitration. The Supreme Court concluded that the ruling on the costs up to that stage of the proceedings was also final and binding.139 In another German judgment, the Oberlandesgericht Frankfurt granted preliminary enforcement of a foreign arbitral award by ordering the freezing of assets. The decision was, however, based on section 1063(3) of the German Code of Civil Procedure, which is broader than Article I(1) of the Convention in that it authorizes German courts to grant prompt measures of preliminary protection in enforcement proceedings in order to secure assets pending the main enforcement proceedings.140 69

135 Girsberger/Voser, International Arbitration, para. 1691. Interestingly, the reporters’ notes on the definition of “interim measures” in The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1 Comment t (pp. 28 et seq.), make express reference to Article 17H of the UNCITRAL Model Law. They also refer to US case law such as Sperry Int’l Trade Inc. v. Gov’t of Israel, which seems to indicate that the Restatement confuses interim awards on interim measures that are interlocutory in nature with interim awards that concern temporary substantive rights as discussed at Õ paras 69 et seq. 136 Schlosser, Recht der Schiedsgerichtsbarkeit, paras 775 et seq.; Poudret/Besson, Comparative Arbitration, para. 639; ICCA, Guide, p. 18. 137 US: Sperry Int’l Trade, Inc. v. Gov’t of Israel, 670 F.2d 8 (2d Cir. 1982); Schlosser, Recht der Schiedsgerichtsbarkeit, para. 775; Poudret/Besson, Comparative Arbitration, para. 640. 138 Schlosser, Recht der Schiedsgerichtsbarkeit, paras 776, 777, 780. 139 Germany: BGH, WM 2007, 1050; see also Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 157. 140 Germany: OLG Frankfurt, SchiedsVZ 2010, 227, 228.

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Scope of Application

71a–72

Article I

(4) Emergency Arbitrator Decisions. When revising their rules in recent years, 71a various arbitration institutions have introduced the possibility for the parties to obtain pre-arbitral relief from a so-called “emergency arbitrator” who renders a decision pending the constitution of the arbitral tribunal.141 The question has arisen as to whether the interim awards or orders142 issued by emergency arbitrators are enforceable under the Convention. Given their nature as pre-arbitral interim relief, which can be amended or revoked by the subsequent arbitral tribunal, the majority of legal scholars take the view – and rightly so – that emergency arbitrator decisions do not qualify as awards within the meaning of Article I.143 However, much depends on how the courts of a particular jurisdiction apply the Convention to interim measures (Õ paras 65 et seq.).144 In the US, comparable with the situation regarding interim relief, there seems to be a consensus that emergency arbitrator awards constitute final awards and can be enforced within the meaning of the Convention.145 For instance, in Yahoo! v. Microsoft Corp., a US District Court confirmed an award issued by an emergency arbitrator under the 1999 AAA Optional Rules for Emergency Measures of Protection and rejected a motion to vacate the same.146 Regardless of whether or not emergency arbitrator decisions qualify as arbitral awards 71b within the meaning of the Convention, emergency decisions are enforceable if specialized legislation on the enforcement of emergency decisions has been enacted, or if general provisions on the enforcement of arbitral interim measures apply.147 In practice the enforcement of emergency arbitrator decisions does not generally seem to cause many problems as there is a high level of voluntary compliance.148 (5) Interim Awards Ordering Reimbursement of an Advance on Costs. There is 72 also a debate about whether an interim award on the advance of the costs of the arbitration qualifies as a Convention award. Such an award is normally rendered prior to the final award and condemns a party to pay its share of the advance on the costs of the arbitration or to reimburse the party that has advanced the defaulting party’s share in order to ensure that the arbitration is continued.149 The legal doctrine is divided on this issue, the stumbling block being that advances on the costs of the arbitration are generally preliminary in nature insofar as the arbitral tribunal must make a 141 E.g. Schedule 4 of the HKIAC Rules (2018); Article 29 of the ICC Rules of Arbitration (2017); Article 6 of the ICDR Rules (2014); Article 9B of the LCIA Rules (2014); Appendix II of the SCC Arbitration Rules (2017); Rule 30, Schedule 1 of the SIAC Rules (2016); Article 43 of the Swiss Rules of International Arbitration (2012). 142 Note that in ICC arbitration proceedings, pursuant to Article 29 and Article 6 of Appendix V to the ICC Rules of Arbitration (2017), the emergency arbitrator can only render the decision as an order. 143 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 4.21; Berger/Kellerhals, Arbitration in Switzerland, para. 1289; Roughton, in: van den Berg (ed.), The Coming of a New Age?, pp. 174, 185 analysing from the point of view of the legal characterization of emergency arbitrators; Girsberger/Voser, International Arbitration, para. 1172; Santacroce, (2015) 31(2) Arb. Int’l 283, 304; the opposite view is taken by Born, International Commercial Arbitration, pp. 2520, 2521 focussing on jurisprudence in the US. 144 Ehle, in: Müller/Rigozzi (eds), New Developments 2013, pp. 87, 99. 145 See Santacroce, (2015) 31(2) Arb. Int’l 283, 302 et seq.; Sussman/Dosman, 12(6) TDM 2015 (pp. 6, 7). 146 US: Yahoo! Inc. v. Microsoft Corp., 983 F. Supp. 2d 310 (S.D.N.Y. 2013). 147 Ehle, in: Müller/Rigozzi (eds), New Developments 2013, pp. 87, 100, 101; Santacroce, (2015) 31(2) Arb. Int’l 283, 306 et seq., referring to Article 1043b(2) of the Dutch Code of Civil Procedure, Article 2(1) and 12(6) of the Singapore International Arbitration Act, and sections 22A and 22B of the Hong Kong Arbitration Ordinance as examples for specialized legislation. 148 Santacroce, (2015) 31(2) Arb. Int’l 283, 289, 290; Santens/Kudrna, (2017) 34 J. Int. Arb. 1, providing an overview of all cases reported globally. 149 Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 7.

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Article I 73–75

New York Convention

subsequent determination on costs in the final award according to the outcome of the dispute. For this reason some authors argue that the decision is not an enforceable award but rather is an order for interim measures.150 According to these authors, a party seeking to obtain reimbursement of the substituted advance on costs must meet the conditions for an interim measure, namely that it is confronted with an emergency situation which would otherwise cause it to suffer irreparable harm if the arbitral tribunal did not grant its motion. 73 On the other hand, others maintain that any decision on arbitration costs rendered prior to the final award should take the form of a recognizable and enforceable award.151 They argue that by agreeing to refer the dispute to arbitration, or by agreeing on certain arbitration rules, each party has undertaken to pay its share of the advance on costs – an obligation that a party breaches when it fails to pay its share. When a party therefore seeks reimbursement for payments it made on behalf of its defaulting opponent, it is in effect seeking damages for breach of the arbitration agreement while the case is still pending – a final decision with financial implications on an independent issue.152 This is the stronger point of view because neither party should bear the financial burden of paying the complete advance on costs; the parties should equally share that risk. This view prevails in both international arbitral tribunals and state courts153 and has been adopted by certain institutional arbitration rules.154 (6) Consent Awards. Consent awards, or awards on agreed terms, are those by which an arbitral tribunal records terms agreed to by the parties in a settlement. Although not expressly mentioned by the Convention, consent awards generally have the same status and effect as an award on the merits.155 The only condition is that the consent award must qualify as an arbitral award at the place of arbitration (Õ paras 16 et seq.).156 75 Article 30(2) of the 1985 (as amended in 2006) UNCITRAL Model Law reflects this general consensus by providing that an arbitral award on agreed terms “has the same status and effect as any other award on the merits of the case.”157 Article 36(1) of the revised 2013 UNCITRAL Arbitration Rules158 and numerous institutional arbitration 74

150 Favre-Bulle, 19(2) ASA Bull. 227 et seq. (2001); Berger/Kellerhals, Arbitration in Switzerland, para. 1585. 151 Gaillard/Savage, Fouchard Gaillard Goldman, paras 1254, 1255; Girsberger/Voser, International Arbitration, para. 1685; Craig/Park/Paulsson, ICC Arbitration, § 14.04 (pp. 267 et seq.). 152 Schlosser, Recht der Schiedsgerichtsbarkeit, para. 778; Geimer, IZPR, para. 3900. 153 ICC: Sociéte X v. Sociéte Y (Case No. 9667), JDI 2000, 1096; France: Cass., Rev. arb. 1992, 462. 154 See, e.g., Articles 24.4, 24.5 of the 2014 LCIA Rules: “In the event that a party fails or refuses to make any payment on account of the Arbitration Costs as directed by the LCIA Court, the LCIA Court may direct the other party or parties to effect a substitute payment to allow the arbitration to proceed (subject to any order or award on Arbitration Costs). In such circumstances, the party effecting the substitute payment may request the Arbitral Tribunal to make an order or award in order to recover that amount as a debt immediately due and payable to that party by the defaulting party, together with any interest.” 155 See, e.g., van den Berg, NYC, pp. 49, 50; ICCA, Guide, p. 18. 156 Germany: BGH, NJW 2001, 373 = WM 2001, 104 = XXVII Y.B. Com. Arb. 269, 270 (2002); India: Harendra H. Mehta v. Mukesh H. Mehta, XXV Y.B. Com. Arb. 721, 725–726 (2000); Nater-Bass, 20(4) ASA Bull. 427, 433 et seq. (2002); Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 9; Girsberger/ Voser, International Arbitration, para. 1692; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.110; Berger/Kellerhals, Arbitration in Switzerland, para. 2038; Kröll, in: Böckstiegel/ Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 11; Poudret/Besson, Comparative Arbitration, paras 731(f), 883; Craig/Park/Paulsson, ICC Arbitration, § 19.02 (p. 358); Gaillard/Savage, Fouchard Gaillard Goldman, paras 1364 and 1366; Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 158; Berger, International Economic Arbitration, p. 582. 157 See also Article 41.3 of the 2018 Arbitration Rules of the German Arbitration Institute (DIS). 158 Article 36(1) of the revised 2013 UNCITRAL Arbitration Rules reads: “If, before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by the parties and accepted by the arbitral

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rules expressly allow parties to request the arbitral tribunal to record settlements in the form of an award.159 In fact, the possibility to validate a settlement by means of a consent award in 76 order to benefit from recognition and enforcement, especially under the Convention, is a distinct advantage that arbitration has over mediation and other alternative dispute resolution mechanisms. Where a party does not perform in accordance with the settlement agreement, holding a title with res judicata effect facilitates the enforcement of the settlement as opposed to bringing an action to enforce the terms of the settlement.160 Parties who settle are thus well advised to have the arbitral tribunal record their settlement agreement as an award with regard to both form and content so that it can later be presented as such to a national court.161 It remains disputed whether parties should be allowed to convert a settlement 77 agreement reached through mediation (without a pending arbitration) into an enforceable consent award on agreed terms. Article 14 of the 2014 Mediation Rules of the Arbitration Institute of the Stockholm Chamber of Commerce expressly makes this shortcut possible: “In case of settlement, the parties may, subject to the consent of the Mediator, agree to appoint the Mediator as an Arbitrator and request him/her to confirm the settlement agreement in an arbitral award.” Critics of this approach may rightly perceive it as an opportunistic circumvention of 78 the arbitration process not initially contemplated by the parties.162 It is also quite clear from the drafting history that the Convention was not meant to apply to mere settlement agreements reached by parties in the course of a foreign arbitration that terminates the proceedings without recording an award.163 In fact, during the negotiation of the Convention, Austria unsuccessfully proposed amending Article I(1)(1) to add the words “as well as arbitral settlements” after the words “enforcement of arbitral awards.”164 Moreover, parties obtaining a consent award in the above-mentioned manner might not achieve their goal as they could encounter difficulties at the enforcement stage. In a recent 2019 decision, a US Court of Appeals rejected the enforcement as a Convention award of an agreed arbitration order issued by an arbitrator in the Philippines and reflecting a

tribunal, record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal is not obliged to give reasons for such an award.” 159 For example, Article 33 of the 2017 ICC Rules of Arbitration provides: “If the parties reach a settlement after the file has been transmitted to the arbitral tribunal in accordance with Article 16, the settlement shall be recorded in the form of an award made by consent of the parties, if so requested by the parties and if the arbitral tribunal agrees to do so.” Other examples are Article 34(1) of the Swiss Rules of International Arbitration and Article 26.9 of the LCIA Rules. 160 Gaillard/Savage, Fouchard Gaillard Goldman, para. 1364; Sutton/Gill/Gearing, Russell on Arbitration, para. 6-027; Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 139, 157; Poudret/Besson, Comparative Arbitration, para. 731(f). 161 Nater-Bass, 20(4) ASA Bull. 427, 435–437 (2002). 162 For instance, Kryvoi/Davydenko, 40 Brook. J. Int’l L. 827, 854 (2015) argue that where parties appoint an arbitral tribunal after reaching a settlement to merely record the settlement in a consent award there is no ‘difference’ between the parties to resolve, and that a difference is a necessary precondition of an award under the Convention;” see also Weiss/Hodgkinson, 25 Am. Rev. Int’l Arb. 279–281 (2014). 163 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.110; Berger/Kellerhals, Arbitration in Switzerland, para. 2038; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 11, who adds that settlement agreements may be declared enforceable under bilateral treaties as in Germany: BayObLG, SchiedsVZ 2004, 316 = XXX Y.B. Com. Arb. 563–567 (2005), where the Court decided to allow enforcement of a settlement agreement simply recorded in the minutes of an arbitral hearing (and not in an arbitral award), based on the 1959 Austrian-German Treaty on the Reciprocal Recognition and Enforcement of Judgments, Settlements and Authentic Instruments in Civil and Commercial Matters. 164 E/CONF.26/L.26 (Õ Annex IV 1).

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party settlement.165 Looking to the essence of the arbitrator’s order, the court held that the latter was not a foreign arbitral award because the parties had already agreed to settle their dispute, and so there was no outstanding dispute to arbitrate when they brought the matter to the arbitrator. The court further found that the purported arbitration did not follow the parties’ prior agreements to arbitrate, nor did it follow Philippine arbitral procedure. The court concluded as follows: “To cloak its free-floating settlement agreement in the New York Convention’s favorable enforcement regime, Tri Marine asked an arbitrator to wave his wand and transform the settlement into an arbitral award. This is not sufficient to produce an award subject to the Convention.” In this context, Rule R-9 of the AAA Commercial Arbitration Rules and Mediation Procedures is worth mentioning as it contains an express statement that “[u]nless agreed to by all parties and the mediator, the mediator shall not be appointed as an arbitrator to the case.” bb) Binding. Binding character is not a constitutive element of an arbitral award. Instead, the lack of binding effect may prevent recognition and enforcement of an award under the Convention. Accordingly, the requirement is not derived from the wording of Article I, but from Article V(1)(e), which provides that recognition and enforcement of an award may be refused when the party against whom it is invoked can show that the award has not yet become “binding on the parties.” For a detailed discussion of the binding effect, Õ Art. V paras 357 et seq. 80 The term “binding” is not defined in the Convention and has hence incited some debate.166 Some authors favor an autonomous interpretation that draws a distinction between ordinary and extraordinary recourse proceedings. According to this view, an award is binding once it can no longer be subject to “ordinary” recourse proceedings before a superior arbitral instance or before state courts (i.e. reviewed on the merits), even though it could still be set aside (i.e. be subject to an “extraordinary” recourse).167 81 Other commentators take the view that an award’s binding effect must be determined under the law of the country of origin of the award, i.e. the lex arbitri: the award must fulfill all conditions for being declared enforceable in the country of origin.168 It is important to mention that this view does not seek to reintroduce a “double exequatur,” but assumes the existence of the binding effect without the award having received express leave for enforcement from the courts in the country of origin, as had been required under the Geneva Convention of 1927 (Õ Annex V 2).169 82 While both ways of ascertaining binding effect will lead to the same result in most cases,170 the latter view (which has been confirmed in various published court 79

165 US: Castro v. Tri Marine Fish Co., 921 F.3d 766 (9th Cir. 2019). The court noted that “amazingly” the term arbitral award was not defined in the New York Convention or in the Federal Arbitration Act (FAA) and that it had therefore resorted to an interpretation “by applying its common meaning and common sense” and “evaluat[ing] the award by looking at its essence.” 166 Solomon, Verbindlichkeit von Schiedssprüchen, pp. 91 et seq., 364 et seq. 167 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.103; Haas, Anerkennung und Vollstreckung, p. 134; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 16. 168 Gaillard/Savage, Fouchard Gaillard Goldman, paras 1682, 1684; Berger/Kellerhals, Arbitration in Switzerland, para. 2037; Solomon, Verbindlichkeit von Schiedssprüchen, pp. 97, 98, 364, 365; Kreindler/ Schäfer/Wolff, Kompendium, para. 1131; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26‐38; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 786; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 30 para. 16, ch. 57 para. 20. 169 Gaillard/Savage, Fouchard Gaillard Goldman, paras 1679, 1680, 1684; Solomon, Verbindlichkeit von Schiedssprüchen, p. 92. 170 Schlosser, Recht der Schiedsgerichtsbarkeit, para. 786; Solomon, Verbindlichkeit von Schiedssprüchen, pp. 98 et seq.

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Article I

decisions)171 is preferable as it honors the right of each Contracting State to determine when an arbitral award issued within its legal order has obtained binding effect. Otherwise there would be the risk that awards not binding in their country of origin could gain a more extensive effect in foreign jurisdictions, as discussed in relation to the lodo irrituale (Õ paras 37 et seq.).172 In any event, as can be inferred from the wording of Article V(1)(e), neither 83 imminent nor pending proceedings to set aside an award in its country of origin will affect the award’s binding character for the purposes of the Convention (Õ Art. V para. 380).173 Likewise, neither the absence of a challenge to the award174 nor the parties’ waiver of the right to challenge the award175 will diminish the award’s res judicata effect. However, an award can generally no longer be subject to recognition and enforcement under the Convention when it has been set aside or suspended by a competent court, except in certain jurisdictions such as France, the Netherlands and the US (Õ Art. V paras 288 et seq.).176 In this context it is worth mentioning that in his “Hypothetical Draft Convention on 84 the International Enforcement of Arbitration Agreements and Awards,” van den Berg proposed replacing the word “binding” in Article V(1)(e) with a description of its meaning. Accordingly, a non-binding award would be “subject to appeal on the merits before an arbitral appeal tribunal or a court in the country where the award was made” (Article 5(3)(f) of the hypothetical draft).177

2. Made by Permanent Arbitral Bodies (Article I(2)) Article I(2) provides that the term “arbitral awards” used in Article I(1) “shall include 85 not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.” a) Drafting History This precision was inserted into the Convention at the specific request of the USSR 86 and Czechoslovakia, where permanent arbitral bodies were numerous.178 The 1927 Geneva Convention (Õ Annex V 2) did not contain similar language. However, the 171 Switzerland: BG, BGE 108 Ib 85, cons. 4(b) = JdT 1982 I 367 = IX Y.B. Com. Arb. 437 (1984); Belgium: Cass., XXIVa Y.B. Com. Arb. 603–614 (1999); Germany: LG Bremen, II Y.B. Com. Arb. 234 (1977); BGH, NJW-RR 1988, 572 = WM 1987, 731 = XIII Y.B. Com. Arb. 471 (1988); BGH, NJW 1988, 3090–3092 = RIW 1988, 642–644 = XV Y.B. Com. Arb. 450, 452 (1990); BayObLG, SchiedsVZ 2003, 142, 144 = XXIX Y.B. Com. Arb. 754, 758 (2004). 172 Solomon, Verbindlichkeit von Schiedssprüchen, pp. 103, 104; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 para. 20. 173 Germany: BGH, BGHZ 52, 184 = NJW 1969, 2093; LG Bremen, II Y.B. Com. Arb. 234 (1977); BGH, NJW 1988, 3090–3092 = RIW 1988, 642–644 = XV Y.B. Com. Arb. 450, 452 (1990); US: Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948 (S.D. Ohio 1981) = VII Y.B. Com. Arb. 382, 387 et seq. (1982); Born, International Commercial Arbitration, pp. 3613 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.103; Haas, Anerkennung und Vollstreckung, p. 134; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 16; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 30 para. 16. 174 Switzerland: BG, BGE 108 Ib 85, cons. 4(b) = JdT 1982 I 367 = IX Y.B. Com. Arb. 437, 439 (1984); Poudret/Besson, Comparative Arbitration, para. 883; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1689. 175 Poudret/Besson, Comparative Arbitration, para. 883. 176 Germany: OLG Rostock, BB 2000, Beil. 37, pp. 20, 23 = XXV Y.B. Com. Arb. 717 (2000); Schwab/ Walter, Schiedsgerichtsbarkeit, ch. 57 para. 22; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 17; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1687; Haas, Anerkennung und Vollstreckung, p. 134; Kunz, 34(4) ASA Bull. 836, 854 et seq. (2016). 177 Van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 662, 675. 178 E/CONF.26/L.10 (Õ Annex IV 1); E/CONF.26/C.1/L.2 (Õ Annex IV 1); Bagner, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, pp. 20, 21.

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drafters of the subsequent 1961 European Convention saw fit to include Article I(2)(b), which stipulates that “the term ‘arbitration’ shall mean not only settlement by arbitrators appointed for each case (ad hoc arbitration) but also by permanent arbitral institutions.” b) Broad Standard 87 Based on the terms of Article I(2), there is no doubt that awards rendered both in ad hoc proceedings and in institutional arbitration proceedings fall within the scope of the Convention.179 Modern arbitral institutions tend to be less involved in the cases they administer than the permanent arbitral bodies whose existence led to the insertion of Article I(2) into the Convention. A survey of case law from different Contracting States reveals the use of a broad standard when determining whether a “permanent arbitral body” has made the decision. For example, it has been held that the Arbitration Institute of the Central Chamber of Commerce of Finland180 and the Chambers of Commerce and Industry of Ukraine181 and Bulgaria182 are covered by the definition of Article I(2). Other examples of permanent bodies are the Vienna Commodity Exchange,183 the Arbitration Board of the Coffee Trade Federation in London,184 as well as the United States National Grain and Feed Association.185 In light of this practice, Article I(2) has rightly been deemed superfluous because, even in its absence, awards rendered by different types of arbitral bodies are covered by the Convention as long as the arbitration is based on a voluntary submission agreement.186 c) Iran-United States Claims Tribunal More controversial is whether the Iran-United States Claims Tribunal located in The Hague, Netherlands, must be regarded as a “permanent arbitral body” such that its awards fall under the Convention. The Iran-United States Claims Tribunal came into existence in an effort to restore relations between Iran and the United States following the detention of 52 United States nationals at the US Embassy in Tehran in November of 1979 and the subsequent US freeze of Iranian assets.187 The issue is of some practical importance as the Iran-US Claims Tribunal has finalized over 3,000 cases by award, decision or order since its inception in 1981.188 89 There is no uniform case law on this issue. In 1985, the English High Court in Mark Dallal v. Bank Mellat held obiter dictum that the Convention could not be applied to an Iran-US Claims Tribunal award “by reason of non-compliance with Article 623 of the Dutch Code of Civil Procedure,” which required submission agreements to be in writing and signed by both parties.189 Conversely, two United States courts have applied the 88

179

Girsberger/Voser, International Arbitration, para. 1684. Germany: OLG Brandenburg, IPRax 2003, 349, 350 = XXIX Y.B. Com. Arb. 747, 749 (2004). 181 Germany: OLG Brandenburg, BB 2001, Beil. 6, p. 21 = XXIX Y.B. Com. Arb. 697, 698 (2004). 182 Italy: Cass., IV Y.B. Com. Arb. 282, 283 (1979). 183 Italy: CA Firenze, XV Y.B. Com. Arb. 498 (1990). 184 Spain: TS, VIII Y.B. Com. Arb. 406, 407 (1983). 185 Canada: West Plains Co. v. Northwest Organic Community Mills Co-Operative Ltd., XXXIV Y.B. Com. Arb. 475 (2009). 186 Van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 58. More recently, van den Berg considered the provision “outdated” and deleted it from his hypothetical draft convention; van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 650; van den Berg, NYC, pp. 662, 675; see also Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 20, 21. 187 See Background Information on the Iran-United States Claims Tribunal, http://www.iusct.net (last visited Apr. 29, 2019). 188 See http://www.iusct.net (last visited Apr. 29, 2019). 189 UK: Dallal v. Bank Mellat, [1986] All E.R. 239 = [1986] 2 WLR 745 = XI Y.B. Com. Arb. 547 et seq. (1986). 180

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Convention to awards rendered in favor of Iran.190 In particular, the US Ninth Circuit Court of Appeals confirmed a California District Court’s holding in Iran v. Gould that “[t]he Convention certainly is applicable to the claim here in that the Tribunal is a permanent arbitral body.”191 Despite the broad interpretation generally given to the notion of “permanent arbitral 90 body” in Article I(2) and the fact that the Iran-United States Claims Tribunal has been called the “most significant arbitral body in history,”192 the arguments disputing the Convention’s application to its awards are more convincing.193 The “Algiers Accords” negotiated with the assistance of Algeria and concluded between Iran and the United States on January 19, 1981 consist of two parts. The second part – the Claims Settlement Declaration – established the Claims Tribunal. Article II(1) of this Declaration provides: “An international arbitral tribunal (the Iran-United States Claims Tribunal) is hereby established for the purpose of deciding claims of nationals of the United States against Iran and claims of nationals of Iran against the United States, and any counterclaim which arises out of the same contract, transaction or occurrence that constitutes the subject matter of that national’s claim […]” The Algiers Accords are generally understood to be public international law treaties rather than private in nature, with the result that there is no submission agreement as required under the Convention (Õ para. 29).194 It is also doubtful whether Iran and the United States had contemplated that the awards should have Dutch nationality (as opined, for example, by Rensmann)195 to ensure their enforceability on an international scale.196 As stated at Õ para. 30 and shown by the legislative history of Article I(2), the 91 wording “permanent arbitral body” can generally not be interpreted to cover statutory arbitral tribunals, to which the parties have not “submitted” their dispute.197 In two instances German courts refused to grant enforcement under the Convention of decisions issuing from foreign trade chambers in former Eastern bloc States that had not been based on submission agreements.198

3. The Convention’s Application to Arbitration Agreements Apart from foreign arbitral awards, the Convention also deals with the recognition 92 and enforcement of arbitration agreements. The Convention’s scope with respect to arbitration agreements was not discussed during the drafting and is not delineated therein.199 Consequently, Contracting States and their courts fill this lacuna by constru190 US: Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc., XIV Y.B. Com. Arb. 763, 766 (1989) (C.D. Cal. 1988); Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc., 887 F.2d 1357 (9th Cir. 1989) = XV Y.B. Com. Arb. 605, 610 (1990) and XVIII Y.B. Com. Arb. 590, 593 et seq. (1993) (9th Cir. 1992); see also US: Iran Aircraft Indus. v. AVCO Corp., 980 F.2d 141 (2d Cir. 1992) = XVIII Y.B. Com. Arb. 596–605 (1993). 191 US: Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc., XIV Y.B. Com. Arb. 763, 766 (1989) (C.D. Cal. 1988); see also van den Berg, XVI Y.B. Com. Arb. 449, 450 (1991). 192 Marossi, (2006) 23 J. Int. Arb. 494. 193 Herdegen, RIW 1989, 329, 335, 336; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.87; Poudret/Besson, Comparative Arbitration, para. 882; Rensmann, Anationale Schiedssprüche, pp. 147–169. 194 Rensmann, Anationale Schiedssprüche, p. 159; Avanessian, (1991) 5 J. Int. Arb. 8. 195 Rensmann, Anationale Schiedssprüche, p. 169. 196 Herdegen, RIW 1989, 329, 335, 336. 197 Bülow, KTS 1959, 6; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.84. 198 Germany: BGH, BGHZ 125, 7 = NJW 1994, 1008, 1009; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.87. 199 Van den Berg, NYC, p. 56; van den Berg, (1986) 2 Arb. Int’l 191, 206.

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ing Article I of the Convention to apply to arbitration agreements by way of analogy.200 It is undisputed nowadays that the Convention applies to all arbitration agreements that lead or would lead to a recognizable and enforceable Convention award.201 For a detailed discussion regarding this issue Õ Art. II paras 22–38.

II. Foreign Award 93

The Convention applies only to foreign arbitral awards. Article I(1) stipulates two categories of awards that qualify as foreign: those “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” (first sentence; Õ paras 94–113), and those “not considered as domestic awards in the State where their recognition and enforcement are sought” (second sentence; Õ paras 114–129).

1. Made in the Territory of Another State (Article I(1)(1)) The first category of foreign awards in Article I(1)(1) follows the territorial principle in that it qualifies an award as foreign if it was made in the territory of a State other than the enforcement State. By virtue of this provision, the Convention has a universal approach and scope of application.202 It applies to awards rendered in any other State, unless a Contracting State has adopted the reciprocity reservation under Article I(3)(1), thereby limiting the application of the Convention to awards made in the territory of other Contracting States (Õ paras 170 et seq.). 95 The only relevant criterion for the foreign character of the award under Article I(1)(1) is therefore a geographical one: the award must have been issued in the territory of another State.203 This purely objective limitation reflects the Convention’s significant progress with respect to its predecessor, the Geneva Convention of 1927 (Õ Annex V 2), which required that the parties come from different Contracting States.204 For the purposes of the Convention, a party’s nationality or residence is of no relevance.205 The fact that the parties to the arbitration are nationals of the same State, or of the State in which recognition and enforcement are sought, therefore does not affect the applicability of the Convention (Õ para. 133).206 96 If van den Berg were allowed to update the Convention he would omit the word “foreign” and replace it with “international.” In his hypothetical draft convention, he assumes “an arbitration agreement [to be] international for the purposes of the draft Convention unless the parties have their place of business or residence in the same State and all other elements relevant to the dispute referred to in the agreement are connected only with that State.”207 Gaillard rightly criticized this change as unneces94

200 Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 92, 93, 96; van den Berg, (1986) 2 Arb. Int’l 191, 206. 201 Schlosser, Recht der Schiedsgerichtsbarkeit, paras 78, 80; ICCA, Guide, pp. 23, 24. 202 Van den Berg, NYC, p. 12. 203 Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 95. For States acceding to other States, special solutions must be found such as the 1999 arrangement concerning the mutual enforcement of arbitral awards between Mainland China and the Special Administrative Region of Hong Kong, see Fuentes, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 482. 204 Gaillard/Savage, Fouchard Gaillard Goldman, para. 255. 205 Austria: OGH, XXII Y.B. Com. Arb. 619, 625 (1997), which stated that “[t]he nationality or the seat of the debtor is irrelevant.” 206 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.31. 207 Van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 651.

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Scope of Application

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Article I

sary;208 the proposed alternative is vague and would sacrifice the predictability provided by the territorial principle. On a side note, the drafters of the 1961 European Convention (Õ Annex V 3) 97 intended to complement and even go beyond the Convention.209 This Convention (which does not, however, focus on the recognition and enforcement of awards) adopted an “internationalist” approach rather than a territorial one.210 Pursuant to Article I(1)(a), the scope of application of the European Convention is defined by reference to the parties’ habitual residence or corporate seat, not the place of the arbitration. Article I(2)(c) defines the term “seat” as “the place of the situation of the establishment that has made the arbitration agreement.”211 For the European Convention’s scope of application, also Õ Art. VII para. 78. a) State Where the Award Was Made The origins of the word “made” in Article I(1)(1) go back to Article 1 of the Geneva 98 Convention of 1927 (Õ Annex V 2), according to which an arbitral award “made” in accordance with an agreement covered by the Geneva Protocol of 1923 shall be recognized as binding and enforceable. The adoption of this wording in the Convention caused some uncertainty as it could be interpreted in different ways. Legally, an award is “made” at the place of the arbitration, while it is literally “made” where the last (or only) arbitrator physically signs the award. The appropriate and prevailing view is that an award is “made” at the legal seat of 99 the arbitration, as oftentimes determined by the parties in their arbitration clause or, when necessary, by the arbitral tribunal or the supervising institution.212 Situations in which the parties failed to agree on a place of arbitration in the arbitration agreement and in which neither the arbitration rules nor the arbitration institution or the arbitral tribunal provide for a solution or determine the seat of the arbitration are rather theoretical. In such a case, the judge confronted with the question of the award’s foreign nature would reasonably examine with which State the arbitration had the closest connection and apply the Convention if this State is different from the enforcement State (also Õ Art. V para. 120). The legal seat does more than simply reflect the parties’ intention. In addition, 100 because it can be ascertained so easily it supports the legal certainty that is necessary for a uniform application of the Convention.213 For this reason most arbitration laws214 208

Gaillard, in: van den Berg (ed.), 50 Years of NYC, pp. 689, 694, 695. Born, International Commercial Arbitration, pp. 117, 118; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1714. 210 Gaillard/Savage, Fouchard Gaillard Goldman, para. 1714. 211 The French Cass. pointed out this difference. France: Cass., XI Y.B. Com. Arb. 484, 487 (1986). 212 Germany: OLG München, SchiedsVZ 2010, 336; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.33. 213 Lew/Mistelis/Kröll, Comparative Arbitration, para. 26‐44; Mann, (1985) 1 Arb. Int’l 107, 108; Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.40. 214 For instance section 1054(3) of the German Code of Civil Procedure, which reads: “The award shall state the date on which it was made and the place of arbitration as determined in accordance with section 1043 subs. 1. The award shall be deemed to have been made on that date and at that place.” According to the comments relating to the definition of the word “made” in the Restatement of the Law Third, “[i]n determining the place of making [of an award] in non-ICSID Convention cases, or with respect to Convention awards, as defined in subsection (i), the seat of arbitration, as defined in subsection (oo), is conclusive; an award is deemed to be made at the seat even if it is the product of hearings or deliberations held elsewhere, or it was drafted or signed elsewhere.” The Reporters’ Notes add that the Restatement rejects the approach formerly taken in Hiscox v. Outhwaite. The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1 Comment dd (pp. 39–40), § 1.1(dd) (p. 15). 209

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Article I 101–102

New York Convention

and rules,215 including the revised 2013 UNCITRAL Arbitration Rules,216 expressly provide that an award shall be “deemed to be made” or “deemed to have been made” at the place of arbitration. Where the arbitrator(s) physically sign the award is irrelevant, as are the geographical locations of hearings, site visits and tribunal deliberations (also Õ Art. V para. 119).217 101 The opposite – and very literal – reading of the word “made” appears in the English Hiscox v. Outhwaite decision. The case is a good example of the possible complications connected with the ambiguity of the term.218 Both the Court of Appeal and the House of Lords interpreted the term “made” to mean “perfected” and held that an award was “made” within the meaning of the Convention at the place where the last necessary action was taken for the award to become effective, i.e. the place where the sole arbitrator or the last arbitrator signed the award, independent of the seat of the arbitration.219 The result was that, for the purposes of the Convention, an award physically signed in Paris and bearing the words “Dated at Paris, France” was to be considered “made” in Paris although the tribunal had been seated in London, where it conducted all the proceedings. Lord Oliver of Aylmerton held that “[a]n award, whilst it is no doubt the final culmination of a continuing process, is not in itself a continuing process. It is simply a written instrument and I can see no context for departing from what I apprehend to be the ordinary, common and natural construction of the word ‘made’. A document is made when and where it is perfected. An award is perfected when it is signed.”220 102 This isolated decision221 was deliberately reversed and replaced by sections 53 and 100(2)(b) of the 1996 Arbitration Act. Section 53 states that “[u]nless otherwise agreed by the parties, where the seat of the arbitration is in England and Wales or Northern Ireland, any award in the proceedings shall be treated as made there, regardless of where it was signed, dispatched or delivered to any of the parties.” Section 100(2)(b), which 215 For example, Article 32(3) of the ICC Rules of Arbitration: “The award shall be deemed to be made at the place of the arbitration and on the date stated therein.” (emphasis added) or Article 16.3 of the LCIA Rules: “The Arbitral Tribunal may hold any hearing at any convenient geographical place in consultation with the parties and hold its deliberations at any geographical place of its own choice; and if such place(s) should be elsewhere than the seat of the arbitration, the arbitration shall nonetheless be treated for all purposes as an arbitration conducted at the arbitral seat and any order or award as having been made at that seat.” (emphasis added). 216 Article 18(1) of the 2013 UNCITRAL Arbitration Rules provides: “If the parties have not previously agreed on the place of arbitration, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case. The award shall be deemed to have been made at the place of arbitration.” (emphasis added). 217 See, e.g., Mann, (1985) 1 Arb. Int’l 107, 108; Schneider, 7(3) ASA Bull. 279 (1991); Poudret/Besson, Comparative Arbitration, paras 135, 885; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1590; see also Di Pietro/Platte, Enforcement of International Arbitration Awards, pp. 25 et seq.; van den Berg, NYC, pp. 294, 295; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26‐44; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.35; ICCA, Guide, p. 21. 218 Berger, International Economic Arbitration, p. 727. 219 UK: Hiscox v. Outhwaite, [1991] 3 WLR 297 = [1991] 3 All E.R. 641 = XVII Y.B. Com. Arb. 599, 603 et seq. (1992). 220 UK: Hiscox v. Outhwaite, XVII Y.B. Com. Arb. 599, 603 (1992); see also Bagner, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 23. 221 See, however, the 2005 decision in Alcatel CIT SA v. Titan Corporation, in which the Swedish Court of Appeal held in annulment proceedings (i.e. not in proceedings for recognition and enforcement) against an ICC award arising out of an arbitration with its seat in Stockholm, but no other connection to Sweden (the sole arbitrator was from England, the parties were from the US and France, neither party’s counsel during the arbitration was Swedish and the hearings were held in London and Paris), that the arbitration had an insufficient connection with Sweden and dismissed the challenge. Sweden: CA Svea, XXX Y.B. Com. Arb. 139 et seq. (2005) = 20(7) Mealey’s Int’l Arb. Rep. A-1–A-2 (2005) with commentary by Jarvin/Dorgan; Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 23, 24.

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Article I

relates to New York Convention awards, provides that “an award shall be treated as made at the seat of the arbitration, regardless of where it is signed, dispatched or delivered to any of the parties.” In 2000, a German court ruled that the place indicated on the signature page of the arbitral award is not determinative of the place of arbitration; it may be a simple reference to the arbitrator’s residence.222 In order to avoid uncertainty, arbitral tribunals are well advised to indicate the place of the arbitration on the signature page of the arbitral award,223 possibly by adding the words “deemed to be made,”224 and to maintain at least minimum “physical” contact between the seat and the arbitration.225 Some authors have shown sympathy for the Hiscox reading of Article I(1)(1), arguing 103 that the wording of the Convention contains no indication that the parties’ intention should be taken into account when determining where an award was made.226 It is also true that the Convention seems to make a distinction between the location “where the arbitration took place” (Article V(1)(d)) and the location, “in which [the] award was made” (Article V(1)(e)). Nonetheless, no indication can be found in the drafting history of the Convention to support the view that this differentiation was intentional (also Õ Art. V para. 275).227 Because the natural meaning of the word “made” would lead to unacceptable 104 results, a less literal interpretation is justified.228 If the location of the last perfecting act (such as the last signature) were the determinative factor, the State where the award is made would be merely incidental and completely detached from the parties’ intention.229 It would indeed be very odd if, as noted by Mann, “possibly without the knowledge of the parties or even unwittingly, the arbitrators had the power to sever that part from the preceding procedure and thus give a totally different character to the whole.”230 In light of the international mobility of modern arbitrators and their common practice of internationally mailing final awards to co-arbitrators for signature, an outmoded literal interpretation could open the floodgates to “forum shopping.”231 b) A-National Awards Some legal scholars and judges, particularly in France, promote the view that, based 105 on an express agreement of the parties or absent any connecting factors to a national arbitration law, arbitral proceedings can be legally “delocalized,” i.e. completely detached or removed from all national legal systems.232 According to this view, the parties 222 Germany: OLG Düsseldorf, EWiR 2000, 795 = 4(4) Int. A.L.R. N25 (2001); Kröll, 5(5) Int. A.L.R. 160, 161 (2002). 223 See also Rensmann, RIW 1991, 911, 916. 224 Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 21. 225 Berger, International Economic Arbitration, p. 727. 226 Rensmann, RIW 1991, 911, 913 et seq., referring to the “center of gravity” of the arbitral proceedings; see also Schlosser, Recht der Schiedsgerichtsbarkeit, paras 67, 138. 227 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.39; see also van den Berg, 6 Pace L. Rev. 25, 26 (1985). 228 Mann, (1985) 1 Arb. Int’l 107, 108. 229 Solomon, Verbindlichkeit von Schiedssprüchen, pp. 63, 77. 230 Mann, (1985) 1 Arb. Int’l 107, 108; see also Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 22. 231 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.40. 232 France: Cass., Les Cahiers de l’Arbitrage 2007, 44 = 25(4) ASA Bull. 829 (2007) = XXXII Y.B. Com. Arb. 299 (2007). The Court concluded that “an international arbitral award, which is not linked to any national legal order, is a decision of international justice, whose validity is reviewed in accordance with the rules applicable in the country where its recognition and enforcement is sought.” Gaillard/Savage, Fouchard Gaillard Goldman, paras 94 et seq.; Gaillard, Aspects philosophiques, pp. 60 et seq., contemplating an “ordre juridique arbitral;” Rensmann, (1998) 15 J. Int. Arb. 37, 63, states that “[a]national

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106

107

108

109

New York Convention

to a “floating arbitration” are autonomous and free to organize the proceedings as they see fit or to authorize the arbitrators to do so without the interference or influence of any domestic arbitration law.233 Awards rendered in such “delocalized” arbitral proceedings are referred to as “a-national” or “floating” awards.234 The prevailing view, however, seems to remain that an arbitration is always “rooted in a national legal system,” in particular through its legal seat and the lex arbitri.235 Every arbitration must have a seat or locus arbitri. Assuming that delocalized arbitral proceedings and a-national awards do indeed exist, our interest here is whether such awards merit recognition and enforcement under the Convention in light of their uncertain legal status. Interestingly, advocates both in favor of and opposing the Convention’s application to a-national awards refer to the wording of the Convention to support their views. It is true that neither of the two criteria qualifying the foreign character of an award under Article I(1) suggests excluding a-national awards from the ambit of the Convention. A “strictly geographical” interpretation of the territorial principle in Article I(1)(1) would find that a-national arbitral awards fall under the Convention as long as they were made in a State other than the State of recognition and enforcement.236 However, this view disregards the correct interpretation of the word “made” in Article I(1)(1) as referring to the legal seat of the arbitration and not to the physical location of the award’s final signature (Õ paras 98 et seq.).237 An arbitral award rendered in a delocalized arbitration cannot be considered as “made” under the terms of the Convention as it lacks a legal seat. Analysis of the second sentence of Article I(1) raises similar problems for the delocalized award. The second sentence aims to expand the Convention’s scope of application to cover those arbitrations conducted in accordance with a foreign arbitration law and therefore not considered domestic in the enforcement State (Õ paras 114 et seq.). To construe the language “arbitral awards not considered as domestic” to include a-national awards simply because they are not deemed domestic by definition in the State of recognition and enforcement238 would contravene the historical meaning and purpose of Article I(1)(2);239 the delocalization is legal, not geographical.240 Finally, the legislative history offers no support for the view that a-national awards fall within Article I. The initial wording proposed by the ICC that provided for the enforcement of “international” arbitral awards detached from national laws241 was arbitration is nor purely an academic phantom. At least in mixed disputes between States or international organisations and private entities the parties may effectively denationalize the arbitral procedure by choosing public international law as lex arbitri.” 233 Van den Berg, (1986) 2 Arb. Int’l 191, 212; see also US: Chromalloy Aeroservs., Inc. v. Arab Republic of Egypt, 939 F. Supp. 907–915 (D.D.C. 1996) = XXII Y.B. Com. Arb. 1001, 1009 et seq. (1997). 234 Van den Berg, (1986) 2 Arb. Int’l 191, 211, 212; Rensmann, Anationale Schiedssprüche, pp. 31 et seq., 78 et seq. 235 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.55; Poudret/Besson, Comparative Arbitration, paras 125 et seq.; Paulsson, in: Arbitration in Three Dimensions, pp. 11 et seq. 236 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.57, 21.61; Herdegen, RIW 1989, 329, 336; Rensmann, Anationale Schiedssprüche, pp. 207 et seq., 221; see also van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 54; Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 105 and Gaillard/Savage, Fouchard Gaillard Goldman, para. 96. 237 Poudret/Besson, Comparative Arbitration, para. 881. 238 Gaillard/Savage, Fouchard Gaillard Goldman, para. 96; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.57. 239 Poudret/Besson, Comparative Arbitration, para. 881. 240 Poudret/Besson, Comparative Arbitration, para. 881. 241 E/C.2/373 (Õ Annex IV 1).

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rejected by the ECOSOC Committee and was not presented to the New York Conference (Õ para. 9).242 The prevailing view is that the drafters of the Convention wanted it to apply only 110 to awards rendered under the laws of a State and did not envisage its application to a-national awards.243 Much like its text and legislative history, the Convention’s overarching structure further confirms that a-national awards were not contemplated. The evidence lies in the words “awards rendered in the territory of another Contracting State” appearing in the Article I(3)(1) reciprocity reservation. It indicates that there must exist a connection to a State and legal order – the very characteristic that delocalized arbitration lacks. Article I must be read in conjunction with other provisions of the Convention, especially with Article V(1) of which subsections (a), (d), and (e) require that the award be governed by a national arbitration law, namely the law of the seat of arbitration (Õ Art. V paras 116–120, Õ Art. V para. 312, Õ Art. V para. 405).244 For all these reasons, legally delocalized or “a-national” awards cannot fall within the ambit of the Convention. Nonetheless, there are a few isolated cases in which courts have applied the 111 Convention to a-national awards. The most prominent case is SEEE v. Yugoslavia, in which both the Dutch Hoge Raad245 and the French Cour d’appel de Rouen246 applied the Convention to an award rendered in Lausanne although it was “not recognized as Swiss by the courts of the Canton of Vaud because the matter had no link to Switzerland (except that the tribunal met in Lausanne because one of the arbitrators was a judge at the Swiss Supreme Court).”247 Further, in the Götaverken case, the Cour d’appel de Paris considered as a-national 112 (and therefore as falling outside the Convention) an arbitral award rendered in Paris although the Supreme Court of Sweden had previously held that the Convention applied to the award.248 Also, in Gould v. Iran, the US Court of Appeals of the Ninth Circuit applied the Convention to an award rendered by the Iran-United States Claims Tribunal.249 The court found that “the fairest reading of the Convention itself appears to be that it applies to the enforcement of non-national awards” and that an award “need not to be made under a national law for a court to entertain jurisdiction over its enforcement pursuant to the Convention.”250 242 E/2704, paras 43–44 (Õ Annex IV 1); Klein, SJZ 1961, 229, 233; van den Berg, NYC, p. 35; Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.58; Briner/Hamilton, in: Gaillard/ Di Pietro (eds), NYC in Practice, pp. 3, 13; Born, International Commercial Arbitration, pp. 101, 1545 et seq.; Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 176. 243 Van den Berg, NYC, pp. 37 et seq.; van den Berg, (1986) 2 Arb. Int’l 191, 213, 214; Brotóns, Recueil des Cours, Vol. 184 (1984-I), pp. 173, 205; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 61; Schwab/ Walter, Schiedsgerichtsbarkeit, ch. 53 para. 3; Poudret/Besson, Comparative Arbitration, paras 880, 881; Berger/Kellerhals, Arbitration in Switzerland, para. 2035; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 15; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.61 take a different view. 244 Van den Berg (1986) 2 Arb. Int’l 191, 213; Poudret/Besson, Comparative Arbitration, para. 881. 245 Netherlands: HR, Rev. arb. 1974, 318, 321. 246 France: CA Rouen, Rev. arb. 1985, 115 = XI Y.B. Com. Arb. 491–499 (1986). 247 See also Haas, Anerkennung und Vollstreckung, pp. 123–127; Poudret/Besson, Comparative Arbitration, para. 880; Rensmann, Anationale Schiedssprüche, pp. 79–84; Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 108 et seq. 248 France: CA Paris, Rev. arb. 1980, 524; Sweden: Högsta domstolen, Rev. arb. 1980, 555 = VI Y.B. Com. Arb. 237, 239 et seq. (1981); see also Paulsson, 30 ICLQ 358, 365 et seq. (1981) and Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 107, 108. 249 US: Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc., 887 F.2d 1357 (9th Cir. 1989) = XV Y.B. Com. Arb. 605, 610 (1990), and XVIII Y.B. Com. Arb. 590, 593 et seq. (1993) (9th Cir. 1992). 250 Idem.

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Ultimately, however, the applicability of the Convention to a-national awards has limited practical significance insofar as a-national awards arise rather rarely in practice.251 Parties appear to prefer agreeing upon a national arbitration law in which to “anchor” their arbitration.252 In so doing, they not only preserve their recourse to the juge d’appui and potential challenge proceedings in national courts, but they also avoid obstacles to enforcement.253 In addition, the idea of a “de-nationalized arbitration” will remain of limited importance as long as national courts control its ultimate value, namely the eventual enforcement of its awards.254 The enforcement court is not bound by the award’s own qualification as a-national, but can proactively connect it to an appropriate jurisdiction (Õ para. 99), thereby opening the door to recognition and enforcement.255

2. Awards Not Considered as Domestic (Article I(1)(2)) 114

Pursuant to the second sentence of Article I(1), the Convention shall “also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.” As can be inferred from the word “also,” this alternative was an addendum to the territorial criterion of the first sentence and has a clear historical reason.

a) Drafting History 115 The initial draft Convention defined the foreign character of an award only by means of the territorial principle. The negotiators of the Convention were at odds as to the whether the territorial criterion alone adequately characterized what should count as a foreign arbitral award. While the territorial approach satisfied the majority of the States, certain civil law countries like France256 and Germany257 regarded the place where the award was made as “often fortuitous or artificial”258 and therefore insufficient as the sole determining criterion.259 116 At the time, these countries were of the opinion that the foreign nature of an award should instead be determined according to the procedural law that the parties chose to govern their arbitration and award. Under this procedural theory, the parties can agree on a lex arbitri different from the arbitration law of the place of the arbitration. On May 22, 1958, eight European civil law countries260 requested that the Convention be amended to “apply to the recognition and enforcement of arbitral awards other than those considered as domestic in the country in which they are relied upon” (the “eightpower amendment”).261 117 A Working Group proposed a compromise text that introduced the second sentence as it now appears in Article I(1).262 The idea was to defer to the domestic systems of 251

Van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 57. Paulsson, 30 ICLQ 358, 375, 376 (1981). 253 Gaillard/Savage, Fouchard Gaillard Goldman, para. 96; Paulsson, 30 ICLQ 358, 384, 385 (1981); Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 104; Haas, Anerkennung und Vollstreckung, pp. 122, 123. 254 Gaillard/Savage, Fouchard Gaillard Goldman, para. 96. 255 Poudret/Besson, Comparative Arbitration, para. 881. 256 E/CONF.26/SR.3, pp. 3, 4 (Õ Annex IV 1). 257 E/CONF.26/SR.4, pp. 4, 5 (Õ Annex IV 1). 258 E/CONF.26/SR.5, p. 8 (Õ Annex IV 1). 259 See van den Berg, NYC, pp. 23, 24; van den Berg, 6 Pace L. Rev. 25, 33 et seq. (1985). 260 Austria, Belgium, Germany, France, Italy, the Netherlands, Sweden and Switzerland (E/CONF.26/ L.6 [Õ Annex IV 1]). 261 E/CONF.26/L.6 (Õ Annex IV 1); van den Berg, (1986) 2 Arb. Int’l 191, 195, 196; Solomon, Verbindlichkeit von Schiedssprüchen, pp. 64, 65. 262 E/CONF.26/L.42, pp. 1, 2 (Õ Annex IV 1). 252

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certain Contracting States and to extend the scope of application of Article I(1)(1) to embrace a second way of defining a “foreign” award other than by the territorial principle.263 This solution helps to prevent the situation of an award being issued by a tribunal in accordance with the laws of a foreign State and yet not being recognized and enforced under the enforcement State’s domestic rules or under the Convention.264 b) Conventional and Modern Interpretation Today, the procedural theory no longer remains.265 The “eight powers” have each 118 enacted domestic arbitration laws based on the territoriality criterion so that an award may be “domestic” even though the arbitration was conducted according to foreign procedural rules.266 Moreover, in practice parties hardly ever agree to arbitrate under a different national arbitration law than that of the place of arbitration; rather, they prefer to link the lex arbitri to the place of arbitration.267 Indeed, to select an arbitration law other than that of the seat of the arbitration bears great potential for uncertainty and conflicts of jurisdiction regarding, for instance, a challenge to the arbitral award.268 Hence, from a strictly historical perspective, the second sentence of Article I(1) can be considered to have become dead letter, leaving Article I(1)(1) as the only practical criterion (but Õ para. 126).269 In light of its ambiguous wording, one wonders whether, de lege lata, Article I(1)(2) 119 has any relevance beyond the procedural theory. According to van den Berg, assessing what constitutes a non-domestic award under the Convention is “one of the most complicated issues posed by this treaty.”270 This uncertainty was, however, “a fair price to pay” in order to earn the signatures of many States which would not otherwise have signed the Convention.271 Some authors take the view that, despite its legislative history, Article I(1)(2) must be 120 read to cover situations other than those that arise under the procedural theory.272 They consider the second criterion in Article I(1) to be a “useful tool” that grants national courts a certain degree of discretion in cases where the non-application of the Convention could lead to an unjust outcome.273 Each Contracting State determines which arbitral awards can be “considered” non-domestic in accordance with the lex fori.274 According to this view, where a national court is confronted with a dispute with 263

See Solomon, Verbindlichkeit von Schiedssprüchen, p. 65. See Berger/Kellerhals, Arbitration in Switzerland, para. 2035; Poudret/Besson, Comparative Arbitration, paras 121, 124. 265 Kröll, 5(5) Int. A.L.R. 160, 161 (2002). 266 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.42. 267 Van den Berg, (1986) 2 Arb. Int’l 191, 214; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.42; ICCA, Guide, p. 22. 268 Van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 54; van den Berg, (1986) 2 Arb. Int’l 191, 214; Poudret/Besson, Comparative Arbitration, para. 124. 269 Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 101; van den Berg, NYC, p. 28; Poudret/Besson, Comparative Arbitration, para. 124; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 42 para. 2. The “non-domestic award” addition was also dropped in van den Berg’s hypothetical draft convention, van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 670. 270 Van den Berg, 6 Pace L. Rev. 25, 26 (1985). 271 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 24. 272 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 28; Niddam, Rev. arb. 1993, 15, 25, 30; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.41, 21.45; Berger, International Economic Arbitration, p. 727. 273 Di Pietro/Platte, Enforcement of International Arbitration Awards, pp. 27, 29 et seq.; van den Berg, NYC, pp. 25, 26; see also Lew/Mistelis/Kröll, Comparative Arbitration, para. 26‐46. 274 Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 99, 100; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.43–21.44; Di Pietro/Platte, Enforcement of International Arbitration Awards, pp. 23, 28. 264

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virtually no connection to the place of arbitration and with a high degree of “internationality” (i.e. if there are sufficient foreign aspects characterizing the dispute), even an arbitral award issued in the enforcement State can qualify as “foreign” and be subject to the Convention.275 Acceptance of this broader application of the Convention effectively becomes a “bonus”276 for the party seeking enforcement.277 121 In furtherance of the favor recognitionis principle underlying the Convention and encouraging the recognition and enforcement of international arbitral awards, and with regard to the discretion inherent in the word “considered,” the wider interpretation of Article I(1)(2) must prevail within reason.278 However, Contracting States and national courts should exercise their autonomy and discretion conservatively for fear of fostering “a non-uniform administration of the jurisdictional activity.”279 c) Expansive Interpretation in the United States The above-mentioned fear of fostering “a non-uniform administration of the jurisdictional activity” is generally believed to have materialized in the United States, leading to an apparent US – civil law dichotomy. Chapter 2, section 202 of the Federal Arbitration Act (“Agreement or award falling under the Convention”), which implements the Convention in the United States, determines which arbitration agreements and awards are enforceable under the Convention.280 It reads: “An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless that relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign States. For the purpose of this section a corporation is a citizen of the United States if it is incorporated or has its principal place of business in the United States.”281 123 As a consequence of this legislation, US courts have developed case law to the effect that an arbitral award “made” in the United States may be deemed “non-domestic” and governed by the Convention if it involves a non-US party or foreign commerce. Article I(1)(2) is thus interpreted to apply to “international” arbitration cases that are arguably US-domestic.282 The leading case is the 1983 Bergesen v. Joseph Müller AG decision in which the Court of Appeals for the Second Circuit held that an award made in the State of New York and applying the law of the State of New York following a 122

275 Solomon, Verbindlichkeit von Schiedssprüchen, pp. 72, 73; Deshpande, (1991) 7 Arb. Int’l 123; Deshpande, (1992) 9 J. Int. Arb. 51; Pryles, (1993) 9 Arb. Int’l 259; Berger, International Economic Arbitration, p. 727. 276 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 24. 277 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 24. 278 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.45. 279 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 24. 280 Solomon, Verbindlichkeit von Schiedssprüchen, p. 69. 281 US Federal Arbitration Act, 9 U.S.C. 1–16 (emphasis added). The words “which is considered as commercial” incorporate the commercial reservation made by the United States according to Article I(3)(2). 282 US: Fiat S.p.A. v. Ministry of Fin. & Planning of the Republic of Surin., 1989 WL 122891 (S.D.N.Y. 1989) = XXIII Y.B. Com. Arb. 880, 882 et seq. (1998); Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266 (S.D. Tex. 1997) = XXIII Y.B. Com. Arb. 995, 1001 et seq. (1998); Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15, 25 (2d Cir. 1997) = XXIII Y.B. Com. Arb. 1058, 1060 (1998); Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434 (11th Cir. 1998) = XXIVa Y.B. Com. Arb. 819, 822 et seq. (1999); Cont’l Grain Co. v. Foremost Farms, Inc., 1998 WL 132805 (S.D.N.Y. 1998) = XXV Y.B. Com. Arb. 820, 821 (2000); Millicom Int’l V N.V. v. Motorola, Inc., 2002 WL 472042 (S.D.N.Y. 2002) = XXVII Y.B. Com. Arb. 948, 954 (2002); Zeiler v. Deitsch, 500 F.3d 157, 162, 164 (2d Cir. 2007); Nanda v. Nanda, XXXVII Y.B. Com. Arb. 399, 401 et seq. (2012) (N.D. Tex. 2012); HBC Solutions, Inc. v. Harris Corp., XXXIX Y.B. Com. Arb. 634 (2014) (S.D.N.Y. 2014); see Bermann, 2(2) JIDS 317, 321 (2011) and UNCITRAL Secretariat, Guide, Art. I paras 53–54.

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dispute between a Norwegian ship-owner and a Swiss company may be considered a non-domestic award within the meaning of the Convention. The Court adopted “the view that awards ‘not considered as domestic’ denotes awards which are subject to the Convention not because made abroad, but because made within the legal framework of another country, e.g., pronounced in accordance with foreign law or involving parties domiciled or having their principal place of business outside the enforcing jurisdiction. […] We prefer this broader construction because it is more in line with the intended purpose of the Treaty, which was entered into to encourage the recognition and enforcement of international arbitral awards.”283 US courts broadly interpret section 202 of the FAA and go so far as to qualify as 124 “non-domestic” an arbitral award rendered in the US entirely between US citizens because the commercial relationship “envisages performance abroad.”284 To take another example, enforcement has been granted under the Convention because the award issued in the US was made “within the legal framework of another country,” namely under English law and the Arbitration Rules of the ICC located in France, and because the respondent was a foreign company.285 Furthermore, in LaPine v. Kyocera in which the award was likewise issued in the United States, a Californian district court applied the Convention simply because Kyocera was not a US citizen, but Japanese.286 The Court also decided that the “additional” requirement imposed in Gould v. Iran was not controlling authority.287 However, the expansive US approach has its limits and in some cases also has the 125 opposite effect. In Brier v. Northstar Marine an agreement calling for arbitration in London was not entitled to enforcement under the Convention. The US district court decided, with express reference to section 202 of the FAA, that an agreement to arbitrate in London under English law fell outside the Convention where both parties were US citizens and there was no “reasonable relation with a foreign state.”288 Ironically, although the US court could not compel arbitration in Brier, section 202 would certainly have required recognition and enforcement of an award rendered under that same arbitration agreement. Indeed, the Restatement of the Law Third, the U.S. Law of International Commercial and Investor-State Arbitration, a “foreign award” is defined as “an international arbitral award made in an arbitration seated outside the United States.”289 The comments to the definition make clear that an award made abroad is also regarded as foreign “even if rendered in a dispute between two U.S. citizens.”290 While some US-American authors favorably greeted the Bergesen v. Joseph Müller 126 AG decision for making the US “a more hospitable forum for foreign parties intending 283 US: Bergesen v. Joseph Müller AG, 710 F.2d 928 (2d Cir. 1983) = IX Y.B. Com. Arb. 487, 492 (1984), affirming 548 F Supp. 650 (S.D.N.Y. 1982). 284 US: Millmaker v. Bruso, 2008 WL 219551 (S.D. Tex. 2008) = XXXIII Y.B. Com. Arb. 1103, 1107 (2008). 285 US: RZS Holdings AVV v. PDVSA Petroleos S.A., 598 F. Supp. 2d 762 (E.D. Va. 2009) = 2009 U.S. Dist. LEXIS 47126 = XXXIV Y.B. Com. Arb. 1023 (2009). 286 US: LaPine v. Kyocera Corp., 2008 WL 2168914 (N.D. Cal. 2008) = XXXIV Y.B. Com. Arb. 951 (2009). The Court held: “The arbitration, therefore, was not entirely between citizens of the United States. Accordingly, the arbitration agreement and arbitral award fall under the Convention pursuant to 9 U.S.C. 202, and the court has jurisdiction over the award pursuant to 9 U.S.C. 203. That the arbitral award was made in the United States under American law does not change the court’s conclusion.” 287 Idem. 288 US: Brier v. Northstar Marine, Inc., 1992 WL 350292 (D.N.J. 1992) = XIX Y.B. Com. Arb. 766, 769 et seq. (1994). 289 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1(p) (p. 13). 290 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1 Comment p (p. 25).

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to arbitrate within the United States,”291 it rightly drew harsh criticism from outside of the US for being incompatible with the Convention. The main critique is that US courts have unilaterally expanded the meaning of Article I(1)(2) far beyond its legislative history and text and thus breached the Convention.292 This critique applies in particular to the decision in Brier, because by exercising so wide a discretionary power, US courts are disregarding the place of the arbitration and instead take into account the parties’ nationalities or domiciles, or the law applicable to the contract. That antiquated practice finds no basis in the Convention and was expressly not carried over from the Convention’s predecessor, the Geneva Convention of 1927 (Õ para. 133).293 127 Moreover, section 202 has been construed to allow the challenge of a “nondomestic” award before US courts. In Millicom International V N.V. v. Motorola, Inc., a New York federal district court expressly stated that because the non-domestic award was rendered in the United States, it may be challenged pursuant to the FAA, including “the full panoply of express and implied grounds for relief contained in the statute.”294 Note the evident contradiction between that reasoning and Article V(1)(e) of the Convention, which provides the fifth and final ground for refusing recognition and enforcement of an award made in another State or under the arbitration law of another State.295 128 While the favorable attitude of the American courts towards international arbitration is to be regarded as positive, it is regrettable that the US courts read Article I(1)(2) in isolation, without regard to its legislative history and other provisions of the Convention.296 129

d) Interpretation in China The People’s Republic of China is another State in which courts have interpreted Article I(1)(2) in deviation from the conventional or modern understanding of the provision, thus contributing to the above-mentioned non-uniform jurisdictional activity. Under Chinese law, and despite the fact that China is a signatory to the Convention, the “nationality” of an arbitral award is not determined by reference to the seat of the arbitration, but rather by reference to the seat of the arbitral institution.297 On that basis Chinese courts have considered that arbitral awards rendered in mainland China, but arising out of proceedings conducted under the rules of a foreign arbitral institution, are non-domestic awards pursuant to Article I(1)(2). For instance, in 2009 a Chinese court in Duferco S.A. v. Ningbo Arts & Crafts Import & Export Co. considered an ICC award rendered in Beijing as non-domestic and granted recognition and enforcement under the Convention.298 In light of the Chinese courts’ historical unwillingness to recognize and enforce arbitral awards not administered by a mainland Chinese 291

Van den Berg, (1986) 2 Arb. Int’l 191, 205. Schlosser, Recht der Schiedsgerichtsbarkeit, para. 66; van den Berg, NYC, p. 17; van den Berg, (1986) 2 Arb. Int’l 191, 202 et seq.; Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 27; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.47; Solomon, Verbindlichkeit von Schiedssprüchen, p. 69; Poudret/Besson, Comparative Arbitration, para. 885; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 42 para. 3. 293 See also Gaillard/Savage, Fouchard Gaillard Goldman, para. 256. 294 US: Millicom Int’l V N.V. v. Motorola, Inc., 2002 WL 472042 (S.D.N.Y. 2002) = XXVII Y.B. Com. Arb. 948, 954 (2002). 295 See van den Berg, (1986) 2 Arb. Int’l 191, 206 et seq. 296 Van den Berg, (1986) 2 Arb. Int’l 191, 203, 205; van den Berg, 6 Pace L. Rev. 25, 52 et seq. (1985). 297 Article 267 of the Civil Procedure Law refers to an “award made by foreign arbitration commission.” 298 China: Zhejiang Province Ningbo City Intermediate People’s Court, (2008) Yong Zhong Jian Zi No. 4, available at http://newyorkconvention1958.org/index.php?lvl=notice_display&id=585 (last visited Apr. 29, 2019). 292

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arbitration institution,299 however, it is doubtful that this decision of a lower court will engender a trend towards a more tolerant approach and general enforceability in China of awards issued in foreign-administered arbitral proceedings. The application of the Convention and the recognition and enforcement of awards made in Hong Kong and Macao in Mainland China in general are covered in Õ Art. X para. 24. e) Relationship Between the Two Sentences of Article I(1) In light of the fact that the two criteria in Article I(1) represent a compromise found 130 by the negotiators of the Convention to make allowance both for the territorial principle and the procedural theory (Õ para. 117), Article I(1)(1) and Article I(1)(2) are equal alternatives: the Convention is triggered where one of them applies.300 However, in cases where these alternatives conflict, such as where an arbitral award 131 can be considered domestic in the enforcement State although it was rendered in another State, the prevailing view is that Article I(1)(1) preempts Article I(1)(2).301 The subordinate nature of the second criterion reflects the legislative history in practice, because Article I(1)(2) – as the word “also” indicates – was not added to restrict the scope of application defined by Article I(1)(1), but to extend it.302 Article I(1)(1) does not give discretion to the Contracting States or their courts; they may not refuse enforcement for reasons other than those listed in Article V.303 Accordingly, the Convention applies to the recognition and enforcement of an arbitral award made in the territory of another State in any event – this criterion is also much more reliable for determining the applicability of the Convention.304 In addition to that, however, it may (in exceptional circumstances) apply to the recognition and enforcement of an award not considered as domestic in the enforcement State, but rendered in that State.305 Controversial decisions of US and Indian courts,306 which have viewed as “domestic” certain arbitral awards rendered in the territory of a foreign State, are inconsistent with the legislative history and purpose of the Convention.

3. Relevance of Other Criteria As set forth in the preceding sections, Article I provides only two criteria to 132 determine whether an arbitral award is “foreign” and falls within the ambit of the Convention. Either the award was made in the territory of a (Contracting) State other than that where enforcement is sought (territorial principle), depending on whether or not the enforcement State has made the reciprocity reservation in Article I(3) (Õ paras 94 et seq.), or it is considered as “non-domestic” in the enforcement State in 299 See, e.g., China: Supreme People’s Court, (2003) Min Si Ta Zi No. 23, cited in Fan, (2011) 28(4) J. Int. Arb. 343, 347 n. 18. In this case the respondent successfully challenged the validity of an arbitration agreement providing for arbitration under the ICC Rules in Shanghai. 300 Schlosser, Recht der Schiedsgerichtsbarkeit, paras 64, 65; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.41, 21.49. 301 Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 101; van den Berg, NYC, p. 25; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.49. 302 E/CONF.26/SR.16, pp. 4–6 (Õ Annex IV 1); van den Berg, NYC, p. 24; van den Berg, (1986) 2 Arb. Int’l 191, 198; Solomon, Verbindlichkeit von Schiedssprüchen, pp. 67, 68; the opposite view is taken, e.g., by Klein, SJZ 1961, 229, 233. 303 Solomon, Verbindlichkeit von Schiedssprüchen, pp. 68, 76. 304 Schlosser, Recht der Schiedsgerichtsbarkeit, para. 65; van den Berg, 6 Pace L. Rev. 25, 52 et seq. (1985). 305 Van den Berg, (1986) 2 Arb. Int’l 191, 198. 306 US: Brier v. Northstar Marine, Inc., 1992 WL 350292 (D.N.J. 1992) = XIX Y.B. Com. Arb. 766, 769 et seq. (1994); India: National Thermal Power Corp. v. The Singer Co., XVIII Y.B. Com. Arb. 403, 409 et seq. (1993).

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the sense of Article I(1)(2) (Õ paras 114 et seq.). Circumstances not falling in these two categories are, in principle, irrelevant. 133 Unlike the Geneva Treaties of 1923 and 1927 (Õ Annex V 1 and Õ Annex V 2), both of which applied only to arbitration agreements and arbitral awards between parties “subject to the jurisdiction” of different Contracting States, under the Convention the nationalities of the parties play no role in the characterization of an arbitral award as foreign. The negotiators of the Convention agreed to abolish party nationality as a criterion.307 Arbitral awards rendered in arbitral proceedings between parties of the same nationality can therefore be enforced under the Convention, as held for instance by the Swiss Supreme Court regarding an award rendered by a tribunal seated in Paris involving two Swiss parties.308 134 In addition, the Convention applies independently of factors such as the place of residence or domicile of the parties, the applicable law or the location(s) where hearings or site visits occurred. There is no “internationality” requirement.309 Accordingly, the Convention applies, in principle, to a foreign arbitral award even where the underlying economic transaction is purely domestic in nature.310 However, as seen in Õ paras 122 et seq., other connecting criteria may play a role in the context of “nondomestic” arbitral awards falling under Article I(1)(2), in particular in the United States. This happens when the foreign aspects of a given dispute lead a national court to apply the Convention to an award issued in its own jurisdiction without having any other connection to this jurisdiction.311 135 Finally, Article I(1) contains no restriction with respect to the subject matter of the arbitration; the wording “arising out of differences between persons” must be construed broadly (Õ paras 161 et seq.).

4. Application to Domestic Awards As per the title of the Convention (“Foreign Arbitral Awards”) and the wording of Article I(1), the Convention does not apply to domestic awards that fulfill neither of the two criteria, i.e. that are rendered in the enforcement State and according to that State’s procedural law.312 This view has been criticized as too restrictive in light of the overall pro-enforcement bias of the Convention and Article I(1)(2), which allows for the application of the Convention to awards considered as non-domestic under national law (Õ paras 120 et seq.).313 137 When it comes to certain domestic awards, for instance, Swiss law provides for their enforcement by analogy to the Convention. Article 192(2) of the Swiss Private International Law Act stipulates that if the parties have fully waived the action for annulment against the awards and if the awards are to be enforced in Switzerland, the Convention applies by analogy. Furthermore, Articles 35 and 36 of the UNCITRAL Model Law on International Commercial Arbitration 1985 (as amended in 2006) provide for recognition and enforcement of an arbitral award “irrespective of the country in which it was made,” though without referring to the Convention. In such 136

307 Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 96; van den Berg, NYC, pp. 15 et seq.; van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 54; Gaillard/Savage, Fouchard Gaillard Goldman, para. 255. 308 Switzerland: BG, BGE 110 Ib 191 = XI Y.B. Com. Arb. 536 (1986). 309 Gaillard/Savage, Fouchard Gaillard Goldman, para. 256; ICCA, Guide, p. 21. 310 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.31. 311 Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 97; Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 23. 312 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.50–21.53. 313 Gaillard/Savage, Fouchard Gaillard Goldman, paras 263 et seq.

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cases the ambit of the Convention is, however, extended only by virtue of national law and not based on international law.

III. Arising out of Differences Between Persons According to Article I(1)(1), the Convention shall apply to the recognition and 138 enforcement of arbitral awards “arising out of differences between persons, whether physical or legal.” Questions regarding the identity of a party, such as in cases of “piercing of the corporate veil,” are not covered by Article I and must be resolved in accordance with the law that the court of enforcement determines to be applicable (Õ Art. II paras 227 et seq.).

1. Public Entities and States The wording “persons, whether physical or legal” undoubtedly refers to natural 139 persons and legal entities such as companies that have a separate existence. Moreover, there is a general consensus that the term “legal persons” also embraces legal entities under public law, i.e. States, state agencies or enterprises, as well as international organizations,314 as can also be inferred from the travaux préparatoires of the Convention and as has been confirmed by national courts.315 Difficulties arise when States invoke the defense of sovereign immunity against the 140 recognition and enforcement of arbitral awards. The significant increase in international trade during the latter half of the 20th century, including with the State trading companies of the then Soviet bloc, placed the classical rule of absolute sovereign immunity under increasing pressure, as the famous so-called Tate letter from the US State Department in 1952 demonstrated.316 Today it is generally established under the doctrine of restrictive sovereign immunity that a State’s immunity against liability applies only where that State performs public acts in the exercise of governmental authority (acta jure imperii). On the other hand, a State cannot rely on immunity where it or its subdivisions or agencies participate in commercial activity (acta jure gestionis).317 This basic principle of restrictive immunity is codified in the 1972 European Convention on State Immunity and, more recently, in the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (“2004 UN Convention”).318 As an illustration, the Dutch Supreme Court dealt with this distinction in SEEE v. 141 Yugoslavia when it reversed the lower Rotterdam court’s refusal to enforce an award on State immunity grounds, much like the French Cour d’appel, which found that 314 Rensmann, Anationale Schiedssprüche, pp. 226–234; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.92; Berger/Kellerhals, Arbitration in Switzerland, para. 2042; Sanders, Quo Vadis Arbitration?, p. 189. 315 Cappelli-Perciballi, 12(1) Int’l Law. 198 (1978). See also E/2704: E/AC.42/4/Rev.1, p. 7 (Õ Annex IV 1); Netherlands: HR, 65 ILR 356 (1973). 316 See “Changing Policy Concerning the Granting of Sovereign Immunity to Foreign Governments,” Letter to US Acting Attorney-General, May 19, 1952, 26 US Dept. of State Bulletin 984 (“the Tate letter”). 317 For a detailed survey of practice from municipal courts see Sucharitkul, Y.B. ILC 1982, vol. II (Part One), pp. 199, 211–222 (A/CN.4/SER.A/1982/Add.1 (Part 1)); Materials on Jurisdictional Immunities of States and Their Property, United Nations Legislative Series, ST/LEG/SER.B/20. See generally Wittich, in: Hafner/Kohen/Breau (eds), State Immunities, pp. 21–47. 318 European Convention on State Immunity (1972), ETS No. 74; United Nations Convention on Jurisdictional Immunities of States and Their Property, General Assembly resolution 59/38 (Dec. 2, 2004) (not yet in force).

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Yugoslavia was not entitled to sovereign immunity because this defense “may be invoked only when the works are intended to ensure the functioning of one of the traditional missions of the State or of its administrative departments.” The Court held, inter alia, that the contract by its own terms did “not constitute a governmental act since it contains no provisions derogating from private law [droit commun].”319 In addition, a distinction must be drawn between immunity from jurisdiction and immunity from execution. It is accepted today that a State that enters into a valid agreement to arbitrate is deemed to have waived its sovereign immunity in respect of the arbitral proceedings and accordingly cannot unilaterally withdraw its consent and rescind the arbitration agreement.320 For example, in Union of India v. Lief Hoegh & Co., the High Court of Gujarat rejected India’s “denial of sovereignty” defense in an action to stay court proceedings and held that there is no such restriction when resorting to the Convention.321 It follows from this general proposition that an undertaking to arbitrate by a State is equally considered an implicit waiver of immunity from the supervisory jurisdiction of national courts over the arbitration agreement. This position finds support in Article 17 (“Effect of an Arbitration Agreement”) of the 2004 UN Convention.322 The travaux préparatoires of this provision explain that “[c]onsenting to a commercial arbitration necessarily implies consent to all the natural and logical consequences of the commercial arbitration contemplated. In this limited area only, it may therefore be said that consent to arbitration by a State entails consent to the exercise of supervisory jurisdiction by a court of another State, competent to supervise the implementation of the arbitration agreement.”323 This position has also found support before English courts in Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania.324 A more controversial issue is whether the arbitration agreement can also be understood as a waiver of sovereign immunity for the purposes of enforcement of an arbitral award by local courts. A negative answer is usually provided to this question, as confirmed in 2005 by the decision of the German Bundesgerichtshof in Sedelmayer v. Russia.325 This is not surprising insofar as enforcement against State property constitutes a greater interference with a State’s sovereign prerogatives than the mere supervisory function of national courts over the four corners of an arbitration agreement. Indeed, the 2004 UN Convention follows a generally accepted position among commentators and State practice by treating immunity from enforcement as a separate regime from that of immunity of jurisdiction or adjudication. Article 20 of the 2004 UN Convention (“Effect of consent to jurisdiction to measures of constraint”) thus provides 319

France: CA Paris, Rev. arb. 1995, 115–129. See, e.g., Ad hoc arbitration: Sapphire International Petroleum Ltd. v. National Iranian Oil Co., 35 ILR 136, 170 (1967); BP Exploration Co. (Libya) Ltd. v. Government of the Libyan Arab Republic, 53 ILR 297, 311 and 356 (1979); Texaco Overseas Petroleum Co. (TOPCO) and California Asiatic Oil Co. v. Libya, 17 ILM 1 (1978) = 53 ILR 389 (1978); Libyan American Oil Co. (LIAMCO) v. Libya, 20 ILM 1, 78–79 = IV Y.B. Com. Arb. 177 (1979). See also Article 25 of the ICSID Convention which embodies the same principle. 321 India: Union of India v. Lief Hoegh & Co., IX Y.B. Com. Arb. 405, 408 (1984); see also Greece: CA Athens, XIV Y.B. Com. Arb. 634, 635 (1989). 322 Õ n. 318. Although the 2004 UN Convention has not yet entered into force it represents a coherent exposition of the current international law of sovereign immunity based on State practice. For a similar provision see already Article 12 of the 1972 European Convention on State Immunity. 323 Report of the International Law Commission, A/46/10, p. 55. 324 UK: Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania and AB Geonafta, [2006] EWCA Civ 1529. 325 Germany: BGH, SchiedsVZ 2006, 47 = XXXI Y.B. Com. Arb. 698 (2006). See further e.g., Fox/Webb, Law of State Immunity, pp. 479 et seq.; Reinisch, 17 EJIL 803, 817–818 (2006); Schreuer, State Immunity, p. 126. 320

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that a separate or double waiver is necessary for the purposes of enforcing an arbitral award.326 This provision is consistent with the requirement of double waiver adopted in, for example, the United States, the United Kingdom and France.327 The more difficult question arises where no valid waiver from enforcement can be established. It is true that there is a general consensus among the major jurisdictions today that 146 the principle of restrictive immunity also applies to the execution of State property.328 But this exception exists only in a limited number of cases and is rather narrowly defined. The travaux préparatoires of the 2004 UN Convention have thus characterized State immunity from execution as “the last bastion of State immunity.”329 Articles 18 and 19 of the 2004 UN Convention can be said to support this approach and make a distinction between pre-judgment and post-judgment measures of constraint. Article 18 (“State immunity from pre-judgment measures of constraint”) is based solely on different modalities of consent and specific earmarking of property for a particular claim.330 A number of rather narrow and uncertain requirements will evidently need to be met 147 by a victorious private claimant in order to allow for the execution of State property. In particular, the double limitation on the specific categories of “property”331 considered non-commercial and the requirement of a “connection” of the property in question with the state entity against which execution is sought mean that successful private claimants seeking to enforce an arbitral award against the property of a State often encounter several difficulties.332 A few examples will suffice to demonstrate the many problems faced by victorious private claimants under the present rules of State immunity from execution. An instructive example is Russia v. Compagnie NOGA d’Importation et d’Exporta- 148 tion.333 Under a contract from 1991, NOGA agreed to lend a certain sum to the government of the USSR; in 1992, NOGA concluded a second loan agreement with the Russian Federation. In both cases the government would supply oil products in exchange for the loan. Both contracts contained a clause for arbitration of disputes at the Arbitration Institute of the Stockholm Chamber of Commerce. The agreement included an arbitration clause providing, inter alia, that the State of Russia “waives any rights to immunity with respect to enforcement of any Arbitration sentence issued against it in relation to this Agreement.” Russia did not fulfill its obligations under the contracts and, in 1997, a final SCC award was rendered in NOGA’s favor. An application to annul the award was rejected by Swedish courts in 1998 and NOGA thereafter sought enforcement of the award in France. Õ n. 318. For a recent assessment see Fox/Webb, Law of State Immunity, pp. 490–494 (with further references). See, however, France: Cass., XXV Y.B. Com. Arb. 458–460 (2000), where an arbitration agreement governed by ICC rules was deemed to imply a waiver of immunity from execution. 328 For an overview of recent practice in Europe see Reinisch, 17 EJIL 803 (2006). 329 Report of the International Law Commission, A/46/10, p. 56. 330 Õ n. 318. Apart from such instances, Article 19 of the 2004 UN Convention (“State immunity from post-judgment measures of constraint”) adds in its relevant part that: “No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and to the extent that: […] (c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed.” 331 Õ n. 318. See Article 21 of the 2004 UN Convention (“Specific categories of property”), which catalogues different types of State property considered non-commercial in nature. 332 For a useful assessment, see notably Reinisch, 17 EJIL 803, 822–834 (2006). 333 France: CA Paris, XXVI Y.B. Com. Arb. 273–276 (2001). 326 327

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In March 2000, the Tribunal de Grande Instance de Paris granted provisional enforcement and, in May 2000, NOGA attached the bank accounts of the Russian Embassy in France, Russia’s Permanent Delegation to UNESCO and the Russian Commercial Bureau in France. In August 2000, the Cour d’appel de Paris lifted the attachment orders on the basis that the waiver in the arbitration clause was not sufficiently clear in respect of Russia’s diplomatic missions. As for the Commercial Bureau, the Court did not refuse attachment because the funds served any public purpose but, rather, because it considered that the funds of the Commercial Bureau, a separate legal entity, could not be used to satisfy the debt of a third party, the Russian Federation. Despite further attempts by NOGA to effect enforcement in other jurisdictions, the SCC award in its favor remains unsatisfied. 150 Another interesting decision was rendered by the Hong Kong Court of Final Appeal in 2011. In the 1980’s a Sarajevo company provided financing to the Democratic Republic of Congo (DRC). A dispute later arose over payment defaults with respect to that relationship. Two ICC arbitral tribunals, seated in France and in Switzerland, rendered two awards in favor of the Sarajevo company, who later transferred its interests in those awards to a US debt fund. Subsequently, the US transferee obtained an ex parte order to enforce the two awards in the courts of Hong Kong. Before the lower court, the DRC prevailed on the theory that its sovereign immunity prevented execution of the two awards. Applying the common law doctrine of restrictive sovereign immunity, the High Court of Hong Kong reversed the lower court’s finding that the underlying transaction was non-commercial in 2010.334 In 2011, however, the Court of Appeal decision was overturned by a majority decision of the Hong Kong Court of Final Appeal, holding that the DRC had not waived its immunity before the Hong Kong courts and thus endorsing the doctrine of absolute sovereign immunity as it is applied in Mainland China.335 149

2. Investment Arbitration Under ICSID Rules There are currently more than 2,500 bilateral investment treaties (BITs) in force.336 Many of these BITs include dispute settlement provisions that provide investors with a choice to either submit a dispute to ICSID arbitration or initiate proceedings under other arbitral rules. In the former case, recognition and enforcement are governed by the ICSID Convention; in the latter case, no matter which ad hoc or institutional rules govern the arbitration, awards will almost invariably be subject to recognition and enforcement under the Convention. While it is true that there are some commonalities between these distinct regimes for the execution of awards, it must be emphasized that there are nonetheless marked differences concerning the modalities for their recognition and enforcement. 152 The system of recognition and enforcement of ICSID awards is governed by Articles 53–55 of the ICSID Convention (Õ Art. VII para. 92). Unlike the Convention, the ICSID review system is “exhaustive and self-contained.”337 The first aspect of this particular regime – which sets it apart from the Convention – is enshrined in Article 53 of the ICSID Convention. It provides that “(1) [t]he award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those 151

334 Hong Kong: FG Hemisphere Associates LLC v. Democratic Republic of the Congo, [2010] HKEC 194 = XXXIV Y.B. Com. Arb. 596 (2009). 335 Hong Kong: Democratic Republic of the Congo v. FG Hemisphere Associates LLC, [2011] HKEC 747. 336 UNCTAD, Investment Promotion Provisions in International Investment Agreements, UNCTAD/ ITE/IIT/2007/2007/7 (Feb. 7, 2008) 3 (there were 2573 BITs in force as of the end of 2006). 337 Schreuer/Malintoppi/Reinisch/Sinclair, ICSID Convention, Art. 53 para. 2.

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provided for in this Convention.”338 A significant distinguishing feature of ICSID arbitration is thus that it is largely insulated from national law. This critical insular feature of the ICSID Convention finds expression in Article 54, 153 which stipulates that “(1) Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state […] (3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.”339 Submission to ICSID arbitration may thus be characterized as a waiver of immunity in proceedings before national courts for the purposes of recognition and enforcement of the award.340 Finally, Article 55 contains an important qualification by providing that “[n]othing in 154 Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.” Put differently, the waiver of jurisdictional immunity entailed by Article 54 does not as such encompass a waiver of immunity from execution under Article 55. Much like awards under the Convention, execution of ICSID awards is subject to the national law on State immunity of the forum State – and raises similar problems of execution. For this reason, Schreuer/Malintoppi/Reinisch/Sinclair have described Article 55 as “the Achilles heel of the Convention.”341 But even within this “complete, exclusive and closed jurisdictional system, insulated from national law”342 that is ICSID arbitration, problems of recognition and enforcement may also still arise, as the barrage of cases brought against Argentina makes abundantly clear. Some of the problems raised in practice from the application of Articles 53–55 of the ICSID Convention are dealt with below. In Enron Corp. Ponderosa Assets LP v. The Argentine Republic, Argentina essentially 155 contended that its obligation to pay an adverse award does not arise until a claimant has resorted to enforcement proceedings before Argentinean domestic courts. In 2008, an ICSID ad hoc annulment committee dismissed this argument in unequivocal terms, considering that “it would be inconsistent with the purpose of the ICSID Convention if an award creditor had to bring proceedings pursuant to national law enforcement mechanisms established under Article 54(1) as a prerequisite for compliance with the award by the award debtor.”343 Accordingly, the annulment committee concluded that there was no need for action on the part of the claimants pursuant to the Argentine enforcement law to which Article 54 of the ICSID Convention refers.344 338

Emphasis added. Emphasis added. See also Article 69 of the ICSID Convention (“Each Contracting State shall take such legislative or other measures as may be necessary for making the provisions of this Convention effective in its territory.”). 340 Schreuer/Malintoppi/Reinisch/Sinclair, ICSID Convention, Art. 54 para. 42. 341 Schreuer/Malintoppi/Reinisch/Sinclair, ICSID Convention, Art. 55 para. 8. 342 Broches, 2 ICSID Rev. 287, 288 (1987). 343 ICSID: Enron Creditors Recovery Corp. (formerly Enron Corp.) and Ponderosa Assets, L.P. v. Argentine Republic (ARB/01/3), Oct. 7, 2008 (unreported), available at http://icsid.worldbank.org (last visited Apr. 29, 2019), para. 68. The Committee concluded that “it would inherently undermine confidence in the ICSID system if a State against which an award has been given could make its own compliance with the award subject to the award creditor availing itself of the mechanisms under that State’s national law for enforcement of final judgments of courts.” 344 ICSID Case No. ARB/01/3, Annulment Proceeding, Decision on the Argentine Republic’s Request for a Continued Stay of Enforcement of the Award (Rule 54 of the ICSID Arbitration Rules), Oct. 7, 2008, para. 68. 339

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Less than a month after the decision in Enron, an ICSID ad hoc annulment committee reaffirmed the same position in Compania de Aguas del Aconquija and Vivendi Universal SA v. The Argentine Republic.345 In this case the annulment committee was careful to emphasize that one of the fundamental goals which the drafters of the ICSID Convention were keen to achieve was a “total divorce from the recognition and enforcement system which prevailed under domestic laws or under the 1958 New York Convention.”346 These decisions clearly confirm that ICSID awards should not, in principle, be subject to control by national courts. Articles 54(3) and 55 of the ICSID Convention, which subject the execution of adverse awards against States to the domestic law on State immunity of the forum State, provide an exception to this principle. 157 Although States generally abide by their international obligations under the ICSID Convention and pay compensation in case of adverse awards, this is not always so. Leaving aside the wider issue of the ultimate execution of ICSID awards likely to arise from the multitude of cases against a recalcitrant Argentina, it is sufficient to point to four cases where States resisted payment of adverse awards, successfully invoking a State immunity defense under Article 55, to illustrate the problems investors face in executing ICSID awards.347 However, in contrast with the Convention, private investors have an additional remedy available under the ICSID Convention to vindicate their rights. Articles 27 and 64 allow the investor’s home State to espouse the claim and exert diplomatic protection on its behalf, including before the International Court of Justice. 158 The reference to a final judgment of a domestic court puts ICSID awards on the same footing with final domestic judgments that are not subject to review. A final court decision is one against which no ordinary remedy is available. Even a judgment of a lower court may be final if it is not subject to review or if the time limits for an appeal or another remedy have expired. 159 However, the recognition and enforcement of awards is subject to any interpretation, revision and annulment. In light of the fact that ICSID awards follow a separate enforcement regime, they cannot be enforced by application of the Convention (the Convention contains a reservation in favor of more favorable treaty law; but Õ Art. VII para. 93).348 156

3. Investment Arbitration Under Non-ICSID Rules 160

While it seems that the drafters of the Convention were not contemplating disputes under public (international) law, modern trade and investment practices expect that awards rendered in state-investor arbitrations in particular will be included in the Convention’s scope of application.349 In fact, although the Convention does not 345 ICSID: Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic (ARB/97/3), Nov. 4, 2008 (unreported), available at http://icsid.worldbank.org (last visited Apr. 29, 2019). 346 ICSID Case No. ARB/97/3, Annulment Proceeding, Decision on the Argentine Republic’s Request for a Continued Stay of Enforcement of the Award rendered on Aug. 20, 2007 (Rule 54 of the ICSID Arbitration Rules), Nov. 4, 2008, paras 35–36 (emphasis added). 347 See France: TGI Paris, JDI 1981, 365; CA Paris, JDI 1990, 141; US: Liberian E. Timber Corp. v. Gov’t of the Republic of Liberia, 650 F. Supp. 73 (S.D.N.Y. 1986); UK: AIG Capital Partners Inc. v. Kazakhstan, [2005] EWHC 2239 (Comm); see generally Schreuer, State Immunity, p. 1151. 348 Berger/Kellerhals, Arbitration in Switzerland, paras 2028, 2109; Poudret/Besson, Comparative Arbitration, para. 882; Rensmann, Anationale Schiedssprüche, pp. 145–147; van den Berg, (1986) 2 Arb. Int’l 191, 213, 214. The Restatement of the Law Third specifies that the term “Convention award” does not include awards rendered in arbitrations governed by the ICSID Convention. The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1(i) (p. 12). 349 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.91.

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explicitly refer to States, it is well established that it permits enforcement against States.350 In a similar vein, the defense of State immunity is not one of the explicit grounds on which a domestic court can base a decision to refuse the recognition and enforcement of an arbitral award subject to the Convention. However, it is generally accepted that the forum State can refuse enforcement of an award on the basis of State immunity.351 The many problems successful investors face in seeking to enforce Convention awards against recalcitrant States have already been referred to in Õ paras 140 et seq.

4. No Restriction on the Arbitration’s Subject Matter Article I(1) refers to awards “arising out of differences between persons.” The 161 Convention does not impose any limitations on the nature or subject matter of the disputes underlying the arbitral awards. In light of the wording “legal relationship” in Article I(3)(2) and Article II(1), it is nonetheless generally assumed that the issues at stake will need to be of a “legal” nature.352 It is further undisputed that – based on the wording “whether contractual or not” in 162 Article I(3)(2) and Article II(1) – the scope of the Convention must be construed to include non-contractual disputes involving matters of public law (Õ para. 139) and awards arising out of tort disputes.353 This broad interpretation is further supported by Article I(3)(2), whereby States can limit the scope of application to “commercial” disputes (commercial reservation).354 In line with this broad interpretation, the Convention refrains from limiting the 163 arbitrators’ authority in any way. Awards rendered ex aequo et bono and awards determining the facts, establishing the existence of a legal relationship, or filling contractual gaps can therefore qualify as Convention awards, as long as the arbitral tribunal does not go beyond the decision-making authority granted to it by the parties.355

IV. Recognition and Enforcement According to Article I(1), the Convention shall apply to the “recognition and 164 enforcement” of arbitral awards. Hence, the Convention distinguishes between the obligation of the courts to recognize a foreign arbitral award and their obligation to enforce it. Recognition refers to the process of considering an arbitral award as final and binding, but not necessarily enforceable, since recognition does not involve any practical application of the content of the award. Depending on the relief granted, an award might be recognized without being enforced, such as in the case of a declaratory order.356 Enforcement refers to the process of effectuating the operative 350

Van den Berg, NYC, pp. 277–282; Coop/Nistal/Volterra, in: Fouret (ed.), Enforcement, pp. 73–81. Coop/Nistal/Volterra, in: Fouret (ed.), Enforcement, pp. 73–81. Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.91, 21.94; Pinsolle, Rev. arb. 2000, 657, 661. 353 Van den Berg, XXVIII Y.B. Com. Arb. 562, 575 (2003). 354 Poudret/Besson, Comparative Arbitration, para. 883. 355 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.94; van den Berg, NYC, pp. 44, 45; Gaillard/Savage, Fouchard Gaillard Goldman, para. 33; Schlosser, Recht der Schiedsgerichtsbarkeit, paras 20 et seq.; France: Cass., Rev. arb. 1990, 721, 723; Germany: KG, KGR 1996, 68, 69. 356 Berger/Kellerhals, Arbitration in Switzerland, para. 2041; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.95; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 6; Germany: LG München I, V Y.B. Com. Arb. 260, 261 (1980). 351 352

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part of the arbitral award.357 For a detailed discussion Õ Art. II paras 180–188 and Õ Art. III paras 10–16.

E. Reservations (Article I(3)) 165

166

167

168

169

Article I(3) allows Contracting States to restrict the Convention’s scope of application when signing, ratifying or acceding to the Convention, or when notifying extension under Article X (Õ Art. X paras 31 et seq.). Such a restriction can be established in two ways. First, a State may declare that the Convention will apply only to the recognition and enforcement of awards made in the territory of another Contracting State, i.e. on the basis of reciprocity (“reciprocity reservation;” Õ paras 170 et seq.). A State may also declare that it will apply the Convention “only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration” (“commercial reservation;” Õ paras 179 et seq.). While these reservations complicate the implementation of the Convention358 and are sometimes viewed as “negative aspects” of the Convention nowadays,359 they were necessary to achieve compromise in 1958, as well as ratification by a sufficiently broad array of States in the years that followed.360 Indeed, by inserting Article I(3), the drafters of the Convention responded to the concerns of certain States. At the twentyfirst session of ECOSOC in 1956, Egypt made the following comment on the draft Convention: “As regards article I, paragraph 2, the text should give Contracting States in more explicit terms the right to enforce an arbitral award, as provided in the draft Convention only for the benefit of those States which are parties to the Convention.”361 In fact, Article I(3) was an improvement vis-à-vis the Geneva Treaties whose application depended upon reciprocity; under the Convention the carve-out is only an option.362 In addition, Article I(3) should not be confused with the general reciprocity clause in Article XIV, which cannot be invoked by private parties but only applies to obligations between Contracting States (Õ para. 189, Õ para. 190 and Article XIV). In practice, the reservations have caused few problems.363 In his hypothetical draft convention van den Berg would not offer Contracting States the possibility of making reservations because the draft is “premised on more modern principle of universal applicability of treaties.”364 Abolishing the reservations in any new convention would, however, create the risk that some States might decide not to sign it. Where an award is subject to a reservation such that the Convention does not apply, domestic laws on the recognition and enforcement of foreign arbitral awards as well as other international treaties come into play.365 The reservations in Article I(3) apply only to “awards” and thus not to arbitration agreements under Article II, which contains substantive rules that are 357 Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 22; Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 93. 358 Gaillard/Savage, Fouchard Gaillard Goldman, para. 261. 359 Favre-Bulle, in: Müller/Rigozzi (eds), New Developments 2008, pp. 61, 66–67; Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, p. 161. 360 Lew/Mistelis/Kröll, Comparative Arbitration, para. 26‐50; Klein, SJZ 1961, 229, 234. 361 E/2822/Add.1, p. 2 (Õ Annex IV 1). 362 Briner/Hamilton, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 3, 12, 13. 363 Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 184. 364 Van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 653. 365 Poudret/Besson, Comparative Arbitration, paras 887–901.

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applicable independently of any recognition and enforcement procedure (but Õ Art. II paras 36–38).366

I. Reservation of Reciprocity (Article I(3)(1)) When a Contracting State has invoked its reciprocity reservation pursuant to Arti- 170 cle I(3)(1), its courts refuse to apply the Convention to the recognition and enforcement of awards not made in the territory of another Contracting State. This reservation therefore limits the principle of universality adopted by Article I(1) whereby arbitral awards made in any other State, whether signatories or not, are eligible for recognition and enforcement (Õ para. 94).367 However, by invoking the reciprocity reservation, a State does not refuse to enforce awards made in non-Contracting States; it merely refuses to apply the Convention to those awards; there may be other means of enforcement, for instance through bilateral treaties.368

1. Drafting History The reciprocity reservation already existed in the 1927 Geneva Convention (Õ An- 171 nex V 2). It was much stricter there, however, in that it required not only that an enforceable arbitral award be rendered in another Contracting State, but also that the parties be citizens of a Contracting State. The different approach taken by the New York Convention is merely to offer Contracting States the possibility of adopting the reservation and to cover awards rendered in other Contracting States; party nationality is irrelevant (Õ para. 95).369

2. Diminishing Practical Importance The sheer number of Contracting States that have invoked the reciprocity reservation 172 makes plain the importance of that provision for the success of the Convention. Roughly half of the Contracting States have invoked it. At the time of going to press, 73 out of 161 Contracting States have declared this reservation and not withdrawn it (Õ Annex II). Furthermore, a few Contracting States have made declarations to the effect that they will apply the Convention to awards made in non-Contracting States only to the extent that the latter grant reciprocal treatment to awards issued in Contracting States.370 Even though the Final Act prohibits reservations not expressly foreseen in the Convention (also Õ Art. X paras 31 et seq.),371 such reservations deviating from the terms prescribed by Article I(3) appear permissible a maiore ad minus because they are less far-reaching than the drastic solution proposed by the Convention. At the same time, however, the significance of the reciprocity reservation in 173 practice and its potential to cause problems are continuously diminishing as the number of Contracting States increases372 and as the influence of the UNCITRAL 366

Gaillard/Savage, Fouchard Gaillard Goldman, para. 261. Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.43. 368 Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 163. 369 Van den Berg, NYC, pp. 15–17. 370 Õ Annex II. These States are: Belarus, Bulgaria, Lithuania, Romania, Russia, Ukraine and Vietnam. See also Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 163. 371 See Final Act, para. 14: “The Conference decided that, without prejudice to the provisions of its articles I(3), X, XI and XIV, no reservations shall be admissible to the ‘Convention on the Recognition and Enforcement of Foreign Arbitral Awards.’”. 372 Van den Berg, 18(2) ICC Bull. 1, 13 (2007). 367

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Model Law grows: Articles 35(1) and 36(1) provide for recognition and enforcement of an arbitral award “irrespective of the country in which it was made.” In fact, the significance of the reservation may vanish altogether one day.373 At the time of going to press, seven Contracting States have already withdrawn their reciprocity reservation.374 174 In addition, there are only a few dated and isolated cases from the early years of the Convention in which the reciprocity reservation led to refusal of enforcement. For instance, ruling in 1964, the Oberlandesgericht Hamburg decided not to allow enforcement under the Convention of an arbitral award rendered in England, as the UK had not yet ratified the Convention.375 In 1974, a New York District Court held that the Convention was not applicable and therefore did not grant enforcement of an award made in the UK.376 There is, however, also a more recent Indian case from 2005 in which the reciprocity reservation prompted the High Court of Gujarat to refuse enforcement of an award. The Indian legislation implementing the Convention provides that a State can only be considered to have acceded to the Convention if the ratification by that State has previously been indicated in the Official Gazette in India, which had not been the case with regard to South Africa.377

3. Formal Interpretation of Reciprocity The wording “on the basis of reciprocity” in Article I(3)(1) leaves some room for interpretation.378 In particular, it is debatable whether a national enforcement court can rely on the mere formality that the State in which the arbitral award was issued is a Contracting State, or whether it must go further and examine in detail, in each individual case, the actual recognition and enforcement practice of the State in which the award was issued vis-à-vis arbitral awards rendered in the enforcement State.379 The question is not without practical relevance given that some Contracting States, like France, have adopted the reservation while their courts do not apply it in practice,380 while other Contracting States, such as Chile, have not declared the reservation but do apply it.381 176 The better arguments speak in favor of the formal interpretation. National courts should not be expected to conduct “reciprocity due diligence” in relation to the recognition or enforcement of each foreign arbitral award as this would conflict with the purpose of the Convention to promote and facilitate the recognition and enforce175

373 Blessing, in: Blessing (ed.), ASA Special Series No. 9, pp. 17, 22; Favre-Bulle, in: Müller/Rigozzi (eds), New Developments 2008, pp. 61, 66–67; Poudret/Besson, Comparative Arbitration, para. 886; Blackaby/ Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.45; van den Berg, 18(2) ICC Bull. 1, 27 (2007); Gaillard/Savage, Fouchard Gaillard Goldman, para. 261; Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 32. 374 These States are: Austria, Canada, Germany, Mauritius, North Macedonia, Slovenia and Switzerland. Õ Annex II for a current overview of the State of the Convention, including all reciprocity reservations. 375 Germany: OLG Hamburg, IPRspr. 1964/65, No. 275, 787 = II Y.B. Com. Arb. 233 (1977). In this case the enforcement of the award was, however, granted under the Geneva Convention of 1927. See also Germany: BGH, BGHZ 52, 184 = NJW 1969, 2093. 376 US: Splosna Plovba of Piran v. Agrelak S.S. Corp., 381 F. Supp. 1368 (S.D.N.Y. 1974) = I Y.B. Com. Arb. 204 (1976). 377 India: Swiss Singapore Overseas Enterprises Pvt. Ltd. v. M/V African Trader, XXXV Y.B. Com. Arb. 398 (2010). 378 Van den Berg, NYC, p. 14. 379 Born, International Commercial Arbitration, pp. 529 et seq. 380 Gaillard/Savage, Fouchard Gaillard Goldman, para. 261. 381 Chile: Corte Suprema, XXXIII Y.B. Com. Arb. 473–477 (2008); Corte Suprema, RDJ, Vol. XCVI (1999), No. 2, p. 82; Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 32, n. 59.

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ment of foreign arbitral awards.382 Moreover, the enforcement courts would be faced with the practical difficulty of verifying if reciprocity is actually granted.383 Instead, it should be left to the party seeking enforcement to investigate the recognition and enforcement practice of the State in which the arbitration is seated.384 It has been questioned whether declaring such a reservation is appropriate in the 177 context of the Convention, as this may go against the interests of a Contracting State’s own citizens. When the parties have chosen a “neutral” State as the seat of their arbitration, which is oftentimes the case, the arbitral award rendered in that neutral State may lack enforceability in the winning party’s home State where the losing party has assets.385 Consequently, parties must be mindful of the recognition and enforcement regime of the State they choose as the place of the arbitration and are well advised to select a State that has adopted the Convention in order to maximize their chances of securing recognition and enforcement of the award in other Contracting States.386

4. Application of Reciprocity Reservation to Article I(1)(2) The wording of Article I(3)(1) (“recognition and enforcement of awards made only in 178 the territory of another Contracting State”) is misleading in the sense that it suggests that the reciprocity reservation can be declared only with respect to the first sentence of Article I(1) (“recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought”). This reservation was drafted before Article I(1)(2) was introduced into the Convention, and the drafters then neglected to adapt Article I(3)(1) to this insertion.387 It is, however, undisputed that the reciprocity reservation applies to Article I(1)(2) by means of analogy: the courts of a Contracting State that has declared this reservation may also refuse recognition and enforcement of an arbitral award rendered in a State that does not apply the Convention to arbitral awards which are not considered as domestic awards in the State where their recognition and enforcement are sought.388

II. Reservation of Commercial Matters (Article I(3)(2)) Pursuant to the second reservation contained in Article I(3), Contracting States are 179 entitled to confine the Convention’s scope of application “only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.” This reservation is generally referred to as the “commercial reservation.”

1. Drafting History The roots of this reservation lie in Article 1(2) of the Geneva Protocol of 1923 180 (Õ Annex V 1), which contained a similar reservation. Like the reciprocity reservation, the commercial reservation reflected an effort to ensure that the Convention would find acceptance by as many States as possible. More specifically, it was a concession to those 382

Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.68 et seq. Blessing, in: Blessing (ed.), ASA Special Series No. 9, pp. 17, 22. 384 See Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 165. 385 Schlosser, Recht der Schiedsgerichtsbarkeit, para. 67. 386 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.44; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26‐51. 387 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.66. 388 Schlosser, Recht der Schiedsgerichtsbarkeit, para. 69. 383

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civil law countries that distinguish between commercial and non-commercial civil transactions and did not, at least at the time of the drafting of the Convention, recognize arbitration outside of commercial matters.389 The drafters of the Convention were worried that those States would not ratify the Convention without the commercial reservation.390

2. Little Practical Importance 181

Fewer States have adopted this reservation than the reciprocity reservation. At the time of going to press, 48 out of 161 Contracting States, or less than one third, have opted for this reservation, including the extensions. Two Contracting States have already withdrawn their commercial reservation to give the Convention the widest possible scope.391

3. Broad Interpretation of “Commercial” Article I(3) does not define the term “commercial,” but instead stipulates expressly that this is a matter left to the law of each Contracting State that makes the reservation (“considered as commercial under the national law of the State making such declaration”). Hence, it is for the enforcement courts of each Contracting State to decide for themselves whether or not a matter is commercial in nature for the purposes of this reservation.392 183 Given that national laws differ when it comes to defining a “commercial” relationship, mainly for reasons of legal history, leaving the interpretation up to each Contracting State could theoretically create difficulties and uncertainties when the law applicable to the merits and procedure differs from that of the enforcement State.393 In that regard, a uniform interpretation would be preferable de lege ferenda to avoid conflicting interpretations.394 184 In practice, the commercial reservation has not caused problems because, in the interest of uniformity, national courts in Contracting States that have declared the reservation tend to interpret broadly the “commercial” notion in light of the purposes of the Convention.395 In particular, the courts in the United States have adopted the widest interpretation of the term “commercial.”396 As early as 1973, a New York federal 182

389 E/2822/Add.4, p. 4 (Õ Annex IV 1); Schlosser, Recht der Schiedsgerichtsbarkeit, para. 73; Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 98; Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 178. 390 Van den Berg, 18(2) ICC Bull. 1, 27 (2007); van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 56. 391 Õ Annex II. These States are France and Slovenia. Canada declared that it would apply the Convention only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in the case of the Province of Quebec, where the law did not provide for such limitation. Norway made a different kind of reservation stating that it would not apply the New York Convention to “differences where the subject matter of the proceedings is immovable property situated in the State, or a right in or to such property.” See Blackaby/Partasides/ Redfern/Hunter, Redfern and Hunter, para. 11.47. 392 Austria: OGH, IPRax 2000, 429, 431 = ZfRV 1998, 23; Berger/Kellerhals, Arbitration in Switzerland, para. 2041; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.50; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26‐52; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 42 para. 9. 393 Schlosser, Recht der Schiedsgerichtsbarkeit, para. 73; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.47. 394 Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 33, 35. 395 Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 178 et seq.; Bagner, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 35; ICCA, Guide, p. 25; UNCITRAL Secretariat, Guide, Art. I para. 86; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.74. 396 Van den Berg, 18(2) ICC Bull. 1, 27 (2007); Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 35; Poudret/Besson, Comparative Arbitration, para. 886; Favre-Bulle, in: Müller/Rigozzi (eds), New Developments 2008, pp. 61, 67.

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court held that the commercial reservation excluded awards dealing with “matrimonial and other domestic relation awards, political awards and the like,” but not awards dealing with contracts to operate an electronics manufacturing industry.397 Courts also show a tendency to rely on the broad and permissive description of “commercial” made in the UNCITRAL Model Law.398 A few exceptions to the generally broad construction of the term “commercial” 185 appear in isolated court decisions from courts in India and Tunisia, both of which declared the reservation when ratifying the Convention. In a 1979 decision, the High Court of Bombay refused to qualify the contractual supply of machinery, technical assistance and know-how as commercial in nature under the law in force in India, holding that “in order to invoke the provisions of [the Convention], it is not enough to establish that an agreement is commercial. It must also be established that it is commercial by virtue of a provision of law or an operative legal principle in force in India.”399 Similarly, the High Court in Calcutta decided in 1986 that an agreement for technical cooperation does not contain any “element of transaction between the merchants and traders as understood in Indian Law.”400 In addition, a US court held in 1996 that a dispute arising out of proceedings over the disqualification of arbitration counsel for alleged violations of professional conduct had to be considered non-commercial.401 This restrictive interpretation, however, was expressly avoided by the High Court of 186 Gujarat, which found that the term commerce “is a word of the largest import and takes in its sweep all the business and trade transactions in any of their forms, including the transportation, purchase, sale and exchange of commodities between the citizens of different countries.”402 In 1994, the Indian Supreme Court held that an agreement to render consultancy services was commercial in nature. The Court effectively reversed the lower courts’ interpretation and confirmed that the term “commercial” had to be “construed broadly having regard to the manifold activities which are [an] integral part of international trade today.”403 397 US: Island Territory of Curaçao v. Solitron Devices, Inc., 356 F. Supp. 1, at 13 (S.D.N.Y. 1973) = I Y.B. Com. Arb. 200, 201 (1976); Amizola v. Dolphin Shipowner, S.A., 354 F. Supp. 2d 689, 695–696 (E.D. La. 2004) = XXXI Y.B. Com. Arb. 947–948 (2006); Bautista v. Star Cruises, 396 F.3d 1289, 1301–1303 (11th Cir. 2005) = XXX Y.B. Com. Arb. 1071, 1075–1076 (2005); Schlosser, Recht der Schiedsgerichtsbarkeit, para. 74. 398 India: RM Investment & Trading Co. Pvt. Ltd. v. Boeing Co., XXII Y.B. Com. Arb. 710, 713 (1997); Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 184; van den Berg, XXVIII Y.B. Com. Arb. 562, 575 (2003); Lew/Mistelis/Kröll, Comparative Arbitration, para. 26‐55. In conjunction with its Article 1(1), the UNCITRAL Model Law states that “[t]he term commercial should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.” 399 India: Indian Organic Chemical Ltd. v. Chemtex Fibres Inc., AIR 1978 Bom. 106 = IV Y.B. Com. Arb. 271, 273 (1979); see also the 1965 decision in Kamani Engineering Corp. v. Société de Traction, AIR 1965 Bom. 114, in which the High Court of Bombay held that technical “know-how” and “turn-key” contracts were not considered to be commercial agreements pursuant to the laws of India. 400 India: Josef Meissner GmbH & Co. v. Kanoria Chemicals & Industries, Ltd., XIII Y.B. Com. Arb. 497–503 (1988). 401 US: R3 Aerospace v. Marshall of Cambridge Aerospace Ltd., 927 F. Supp. 121 (S.D.N.Y. 1996); UNCITRAL Secretariat, Guide, Art. I para. 87. 402 India: Union of India v. Lief Hoegh & Co., AIR 1978 Gujarat 34 = IX Y.B. Com. Arb. 405, 407, 408 (1984). 403 India: RM Investment & Trading Co. Pvt. Ltd. v. Boeing Co., XXII Y.B. Com. Arb. 710, 712, 713 (1997). With respect to section 2 of the Indian Foreign Awards (Recognition and Enforcement) Act of

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There is also Tunisian Cour de Cassation precedent from 1993 interpreting the commercial reservation rather narrowly in Taieb Haddad and Hans Barett v. Société d’Investissement Kal, holding that a contract for professional services (the drawing up of plans for architectural and urbanization works) did not fall under the definition of Articles 1–4 of the Tunisian Commercial Code and that, therefore, the contract “is not by its nature commercial according to Tunisian law.”404 For this reason the court denied the application of the Convention and refused to enforce an ICC award made in Paris. This raised concerns in the international community regarding Tunisia’s compliance with the overall spirit of the Convention.405

III. Relationship Between Reservations Article I(3) does not establish a priority between the two reservations. As can be inferred from the wording in Article I(3)(2) (“[i]t may also declare”), a Contracting State can adopt both the reciprocity and the commercial reservation. 189 There have been rare cases in which courts had to deal with the interplay between the commercial reservation in Article I(3)(2) and the general reciprocity rule under Article XIV (Õ Art. XIV para. 8). For instance, in the case of Fertilizer Corp. of India v. IDI Management, the American party (IDI Management) argued before a US federal court that enforcement of an arbitral award rendered against it in India should be denied in the US because India, which had defined the term “commercial” narrowly (Õ para. 185), would not have enforced the award had it been rendered in the US in favor of IDI Management. According to IDI Management, the reciprocity required in Article XIV was therefore not given between India and the United States. IDI Management argued that Article XIV required the court to determine the extent to which India is applying the Convention. The US court rejected this line of argument as it was persuaded that the reciprocity required by the Convention is satisfied in this case given that India is a signatory to the Convention. The court stated that it was undisputed that the contract between the parties is considered commercial and that it was “satisfied that the Indian courts are not engaged in a devious policy to subvert the Convention by denying non-Indians their just awards.”406 190 The restrictive application of Article XIV and the pro-enforcement spirit reflected in the Court’s decision are laudable. Indeed, interpreting the general reciprocity rule broadly would undermine the Convention’s endeavor for uniformity because courts could refuse to enforce awards from non-Contracting States even though the enforcement State has not made the reciprocity reservation pursuant to Article I(3)(1).407 In addition, the wording and location of Article XIV in the Convention are evidence that this provision shall apply only to the rights and obligations between the Contracting States themselves and not to those between private parties.408 188

1961, the Court found it is “calculated and designed to subserve the cause of facilitating international trade and promotion thereof by providing for speedy settlement of disputes arising in such trade through arbitration and any expression or phrase occurring therein should receive, consistent with its literal and grammatical sense, a liberal construction.” 404 Tunisia: Cour de Cassation, XXIII Y.B. Com. Arb. 770, 772 (1998). 405 Bagner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 34. 406 US: Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948 (S.D. Ohio 1981) = VII Y.B. Com. Arb. 382, 385 (1982); see also US: McDermott Int’l, Inc. v. Lloyds Underwriters of London, XVIII Y.B. Com. Arb. 472 (1993) (5th Cir. 1991). 407 Pryles, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 161, 183, 184; but see Schlosser, Recht der Schiedsgerichtsbarkeit, para. 75, and Rubinstein/Fabian, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 91, 98. 408 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.76.

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Article II [Recognition of Arbitration Agreements] 1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. 2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 3. The 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, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Specific Bibliography (Article II(1)-(2)): Alqudah, Enforceability of Arbitration Clauses in Online Business-to-Consumer Contracts, (2011) 28(1) J. Int. Arb. 67; Alvarez, Article II(2) of the New York Convention and the Courts, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 67; Amro, Enforcement of Cross-Border Online Arbitral Awards and Online Arbitration Agreements in National Courts, (2016) 5(2) Slovenska arbitražna praksa 17; Arfazadeh, Arbitrability under the New York Convention: The Lex Fori Revisited, (2001) 17 Arb. Int’l 73; Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide, 2nd ed., Kluwer Law International 2018; Baldus, Der elektronisch geschlossene Vertrag mit Schiedsabrede, Peter Lang 2004; Berger/Kellerhals, International and Domestic Arbitration in Switzerland, 3rd ed., Stämpfli et al. 2015; Bernardini, Arbitration Clauses: Achieving Effectiveness in the Law Applicable to the Arbitration Clause, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 197; Bernardini, The Problem of Arbitrability in General, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 503; Bertheau, Das New Yorker Abkommen vom 10. Juni 1958 über die Anerkennung und Vollstreckung ausländischer Schiedssprüche, P. G. Keller 1965; Binder, International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions, 4th ed., Kluwer Law International 2019; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Blessing, The Law Applicable to the Arbitration Clause, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 168; Böckstiegel/Kröll/ Nacimiento (eds), Arbitration in Germany – The Model Law in Practice, 2nd ed., Kluwer Law International 2015; Boog/Moss, Arbitrability, Foreign Mandatory Law and the Lazy Myth of the Arbitral Tribunal’s Obligation to Render an Enforceable Award, 31(3) ASA Bull. 647 (2013); Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Born/Koepp, Towards a Uniform Standard of Validity of International Arbitration Agreements Under the New York Convention, in: Bachmann/Breidenbach/Coester-Waltjen/Heß/Nelle/Wolf (eds), Grenzüberschreitungen, Beiträge zum Internationalen Verfahrensrecht und zur Schiedsgerichtsbarkeit, Festschrift für Peter Schlosser zum 70. Geburtstag, Mohr Siebeck 2005, p. 59; Bredin, The New York Convention of June 10th 1958 for the Recognition and Enforcement of Foreign Arbitral Awards, JDI 1960, 1003; Brekoulakis, The Notion of the Superiority of Arbitration Agreements over Jurisdiction Agreements: Time to Abandon It?, (2007) 24 J. Int. Arb. 341; Brotóns, La reconnaissance et l’exécution des sentences arbitrales étrangères, Recueil des Cours, Vol. 184 (1984-I), p. 173; Bülow, Das UN-Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche, KTS 1959, 1; Butler, The CISG and the United Nations Convention on the Use of Electronic Communications in International Contracts, in: Schwenzer/Spagnolo (eds), State of Play, Eleven International 2012, p. 1; Castellani, The United Nations Convention on the Use of Electronic Communications in International Contracts at Ten: Practical Relevance and Lessons Learned,

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New York Convention

3 J.L. Soc’y & Dev. 132 (2016); Choi, Choice of Law Rules Applicable for International Arbitration Agreements, 11(2) Asian Int’l Arb. J. 105 (2015); Contini, International Commercial Arbitration: The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 8 Am. J. Comp. L. 283 (1959); Czernich, New Yorker Schiedsübereinkommen – UN-Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche – Kurzkommentar, LexisNexis 2008; Departmental Advisory Committee on Arbitration Law, 1996 Report on the Arbitration Bill, (1997) 13(3) Arb. Int’l 275; Di Pietro, Incorporation of Arbitration Clauses by Reference, (2004) 21 J. Int. Arb. 439; Di Pietro, Validity of Arbitration Clauses Incorporated by Reference, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 355; Eiselen, The Interaction between the Electronic Communications Convention and the United Nations Convention on the International Sale of Goods, in: Boss/Kilian (eds), The United Nations Convention on the Use of Electronic Communications in International Contracts, An In-Depth Guide and Sourcebook, Kluwer Law International 2008, p. 33; Eiselen, Integration of the UN Electronic Communications Convention and the United Nations Convention on Contracts for the International Sale of Goods, in: Schwenzer/Atamer/Butler (eds), Current issues in the CISG and arbitration, Eleven International 2014, p. 145; Epping, Die Schiedsvereinbarung im internationalen privaten Rechtsverkehr nach der Reform des deutschen Schiedsverfahrensrechts, C. H. Beck 1999; Estrella Faria, The United Nations Convention on the Use of Electronic Communications in International Contracts – An Introductory Note, 55 ICLQ 689 (2006); Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Gamauf, Aktuelle Probleme des ordre public im Schiedsverfahren, insbesondere im Hinblick auf Eingriffsnormen, ZfRV 2000, 41; Gebauer, Uniform Law, General Principles and Autonomous Interpretation, 5 Unif. L. Rev. 683 (2000); Geimer, Internationales Zivilprozessrecht, 7th ed., Otto Schmidt 2014; Gentinetta, Die lex fori internationaler Handelsschiedsgerichte, Stämpfli 1973; Gildeggen, Internationale Schiedsvereinbarungen in Allgemeinen Geschäftsbedingungen vor deutschen Gerichten, Lang 1991; Goutal, La clause compromissoire dans les connaissements: la Cour de cassation française et la Cour suprême des Etats-Unis adoptent des solutions opposées, Rev. arb. 1996, 605; Gusy, The Validity of an Arbitration Agreement Under the New York Convention, (2002) 19 J. Int. Arb. 363; Haas, Die Anerkennung und Vollstreckung ausländischer und internationaler Schiedssprüche, Duncker & Humblot 1991; Haas, Zur formellen und materiellen Wirksamkeit des Schiedsvertrages, IPRax 1993, 382; Haas, Schiedsgerichte in Erbsachen und das New Yorker Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche, SchiedsVZ 2011, 289; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Haloush, The Authenticity of Online Alternative Dispute Resolution Proceedings, (2008) 25 J. Int. Arb. 355; Hanotiau, Note – Tribunal de Commerce de Bruxelles 5 octobre 1994 – Société Van Hopplynus v. Société Coherent Inc., Rev. arb. 1995, 317; Hanotiau, What Law Governs the Issue of Arbitrability?, (1996) 12 Arb. Int’l 391; Hanotiau, Non-Signatories in International Arbitration: Lessons from Thirty Years of Case Law, in: van den Berg (ed.), International Arbitration 2006: Back to Basics?, ICCA Congress Series No. 13, Kluwer Law International 2007, p. 341; Hascher, European Convention on International Commercial Arbitration of 1961 – Commentary, XVII Y.B. Com. Arb. 711 (1992); Hascher, European Convention on International Commercial Arbitration of 1961 – Commentary, XX Y.B. Com. Arb. 1006 (1995); Hascher, European Convention on International Commercial Arbitration of 1961 – Commentary, XXXVI Y.B. Com. Arb. 504 (2011); Heller, Zur Vollstreckung eines jugoslawischen Schiedsspruchs in Österreich, IPRax 1989, 315; Herrmann, The Arbitration Agreement as the Foundation of Arbitration and its Recognition by the Courts, in: van den Berg (ed.), International Arbitration in a Changing World, ICCA Congress Series No. 6, Kluwer Law International 1994, p. 41; Herrmann, Does the World Need Additional Uniform Legislation on Arbitration?, (1999) 15 Arb. Int’l 211; Hettenbach, Das Übereinkommen der Vereinten Nationen über die Verwendung elektronischer Mitteilungen bei internationalen Verträgen, Mohr Siebeck 2008; Hilberg, Das neue UN-Übereinkommen zum elektronischen Geschäftsverkehr und dessen Verhältnis zum UN-Kaufrecht – Wegweiser in Sachen E-Commerce? (Teil 1), IHR 2007, 12; Hill, On-Line Arbitration: Issues and Solutions, (1999) 15 Arb. Int’l 199; ICCA, ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges, 2011, available at http:// www.arbitration-icca.org/publications/NYC_Guide.html (last visited Apr. 29, 2019); Kaiser, Das europäische Übereinkommen über die internationale Handelsschiedsgerichtsbarkeit vom 21. April 1961, Polygraphischer Verlag 1967; Kaplan, Is the Need for Writing as Expressed in the New York Convention and the Model Law Out of Step with Commercial Practice?, (1996) 12 Arb. Int’l 27; Kaplan, New developments on written form, in: United Nations (ed.), Enforcing Arbitration Awards under the New York Convention: Experience and Prospects, 1999, available at https://uncitral.un.org/sites/uncitral.un. org/files/media-documents/uncitral/en/nycday-e.pdf (last visited Apr. 29, 2019), p. 17; Kaufmann-Kohler, Arbitration Agreements in Online Business to Business Transactions, in: Briner/Fortier/Berger/Bredow (eds), Law of International Business and Dispute Settlement in the 21st Century – Liber Amicorum KarlHeinz Böckstiegel, Heymanns 2001, p. 355; Kessedjian, Note – Cour de cassation (1re Ch. civile)

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Recognition of Arbitration Agreements

11 octobre 1989, Rev. arb. 1990, 136; Khatchadourian, The Application of the 1958 New York Convention in Qatar, 1(1) BCDR Int’l Arb. Rev. 49 (2014); Klein, Das Europäische Übereinkommen über die internationale Handelsschiedsgerichtsbarkeit, ZZP 76 (1963), 342; Klein, De la forclusion en matière d’arbitrage international – Reflexions sur un recent arrêt, 13(2) ASA Bull. 132 (1995); Kröll, Die Schiedsvereinbarung im Verfahren zur Anerkennung und Vollstreckbarerklärung ausländischer Schiedssprüche, ZZP 117 (2004), 453; Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Kropholler, Internationales Einheitsrecht, Paul Siebeck 1975; Kunz, Enforcement of Arbitral Awards under the New York Convention in Switzerland – An overview of the current practice and case law of the Swiss Supreme Court, 34(4) ASA Bull. 836 (2016); Lachmann, Handbuch für die Schiedsgerichtspraxis, 3rd ed., Otto Schmidt 2008; Landau, The Requirement of a Written Form for an Arbitration Agreement: When “Written” Means “Oral”, in: van den Berg (ed.), International Commercial Arbitration: Important Contemporary Questions, ICCA Congress Series No. 11, Kluwer Law International 2003, p. 19; Landau/ Moollan, Art. II and the Requirement of Form, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 189; Lederer, Article II(2) of the New York Convention and Modern Means of Electronic Communication: Are Letters and Telegrams an Archaic Relic from the Past?, SchiedsVZ 2017, 245; Lew/ Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Lindacher, Schiedsklauseln und Allgemeine Geschäftsbedingungen im internationalen Handelsverkehr, in: Lindacher/Pfaff/Roth/Schlosser/Wieser (eds), Festschrift für Walther J. Habscheid zum 65. Geburtstag, 6. April 1989, Gieseking 1989, p. 167; Mallmann, Die Bedeutung der Schiedsvereinbarung im Verfahren zur Anerkennung und Vollstreckbarerklärung ausländischer Schiedssprüche, SchiedsVZ 2004, 152; Markert/Burghardt, Navigating the Digital Maze – Pertinent Issues in E-Arbitration, 27(3) J. Arb. Stud. 3 (2017); Mazzotta, The Written Form Requirement of an Arbitration Agreement in Light of New Means of Communication, in: Andersen/Schroeter (eds), Sharing International Commercial Law Across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill 2008, p. 326; Mbaye, Arbitration Agreements: Conditions Governing Their Efficacy, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 94; Mezger, Case Note: Cass., Oct. 17, 1961, Rev. crit. dr. int. pr. 1962, 133; Mezger, Das Europäische Übereinkommen über die Handelsschiedsgerichtsbarkeit, RabelsZ 29 (1965), 231; Mezger, Du consentement en matière «d’electio juris» et de clause compromissoire (à propos d’un arrêt de la Cour fédérale allemande du 25 mai 1970), Rev. crit. dr. int. pr. 1971, 37; Moller, Schiedsverfahrensnovelle und Vollstreckung ausländischer Schiedssprüche, NZG 1999, 143; Moller, Schiedsverfahrensnovelle und Europäisches Übereinkommen über die internationale Handelsschiedsgerichtsbarkeit, NZG 2000, 57; MünchKommZPO: see Rauscher/Wax/Wenzel; Musielak/Voit (eds), Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz, 16th ed., Franz Vahlen 2019; Nolting, Mangelnde Feststellung des für Formwirksamkeit der Schiedsklausel und Schiedsfähigkeit maßgeblichen Rechts, IPRax 1987, 349; Ortiz, Arbitration and IT, (2005) 21 Arb. Int’l 343; Otto, Das Schriftformerfordernis bei internationalen Schiedsgerichtsvereinbarungen, IPRax 2003, 333; M. R. P. Paulsson, The 1958 New York Convention Article II: Fit for Modern International Trade?, 2(1) BCDR Int’l Arb. Rev. 117 (2015); M. R. P. Paulsson, The 1958 New York Convention in Action, Kluwer Law International 2016; M. R. P. Paulsson, The 1958 New York Convention from an Unusual Perspective: Moving Forward by Parting with it, 5(2) Indian J. Arb. L. 23 (2016); Perales Viscasillas/Ramos Muñoz, CISG & Arbitration, in: Büchler/Müller-Chen (eds), Private Law – national – global – comparative, Festschrift für Ingeborg Schwenzer zum 60. Geburtstag, Stämpfli 2011, p. 1355; Poudret, Un statut privilégié pour l’arbitrage aux tiers?, 22(2) ASA Bull. 390 (2004); Poudret/Besson, Comparative Law of International Arbitration, 2nd ed., Sweet & Maxwell 2007; Poudret/Cottier, Remarques sur l’application de l’article II de la Convention de New York, 13(3) ASA Bull. 383 (1995); Rauscher/Wax/Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017; Reiner, The Form of the Agent’s Power to Sign an Arbitration Agreement and Article II(2) of the New York Convention, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 82; Reithmann/Martiny (eds), Internationales Vertragsrecht, 8th ed., Otto Schmidt 2015; Reymond, La nouvelle loi suisse et le droit de l’arbitrage international, Réflexions de droit comparé, Rev. arb. 1989, 385; Robert, La Convention de New York du 10 juin 1958 pour la reconnaissance et l’exécution des sentences arbitrales étrangères, Rev. arb. 1958, 70; Rubins, Group of Companies Doctrine and the New York Convention, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 449; Sabater, Survivals and New Arrivals, in: van den Berg (ed.), International Arbitration: The Coming of a New Age?, ICCA Congress Series No. 17, Kluwer Law International 2013, p. 96; Samuel, Jurisdictional Problems in International Commercial Arbitration – A Study of Belgian, Dutch, English, French, Swedish, Swiss, US and West German Law, Schulthess Polygraphischer Verlag

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New York Convention

1989; Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2nd ed., Mohr Siebeck 1989; Schlosser, Case Note: HG Zürich, Aug. 25, 1992, ZEuP 1994, 685; K. Schmidt, Präklusion und Einlassung auf die schiedsgerichtliche Verhandlung zur Hauptsache – Vertragsdenken und Prozeßdenken in der jüngeren Praxis, in: Habscheid/Schwab (eds), Beiträge zum internationalen Verfahrensrecht und zur Schiedsgerichtsbarkeit, Festschrift für Heinrich Nagel zum 75. Geburtstag, Aschendorff 1987, p. 373; Schmidt-Ahrendts/Höttler, Anwendbares Recht bei Schiedsverfahren mit Sitz in Deutschland, SchiedsVZ 2011, 267; Schroeter, Mandatory Private Treaty Application? On the Alleged Duty of Arbitrators to Apply International Conventions, in: Shaughnessy/Tung (eds), The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer, Kluwer Law International 2017, p. 295; Schwab/Walter, Schiedsgerichtsbarkeit, 7th ed., C. H. Beck, Helbing & Lichtenhahn 2005; Schwarz, La forme écrite de l’article II, al. 2 de la Convention de New York, SJZ 1968, 49; Schwenzer (ed.), Schlechtriem & Schwenzer, Commentary on the UN Convention on the International Sale of Goods (CISG), 4th ed., Oxford University Press 2016; Schwenzer/Tebel, The Word is not Enough – Arbitration, Choice of Forum and Choice of Law Clauses Under the CISG, 31(4) ASA Bull. 740 (2013); Sieg, Internationale Gerichtsstands- und Schiedsklauseln in Allgemeinen Geschäftsbedingungen, RIW 1998, 102; Sinclair, The Assignment of Arbitration Agreements, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 381; Solomon, Recognition and enforcement of foreign arbitral awards, The application of the New York Convention by national courts, in: Schmidt-Kessel (ed.), German National Reports on the 19th International Congress of Comparative Law, Mohr Siebeck 2014, p. 55; Solomon, § 2, International Commercial Arbitration: The New York Convention, in: Balthasar (ed.), International Commercial Arbitration, C. H. Beck/Hart/Nomos 2016, p. 45; Stein/ Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; Strong, What Constitutes an “Agreement in Writing” in International Commercial Arbitration? Conflicts Between the New York Convention and the Federal Arbitration Act, 48 Stan. J. Int’l L. 47 (2012); Tautschnig, Legal Challenges and Opportunities for the Next Generation of Online Arbitration, AAYB 2015, 87; Thorn, Termingeschäfte an Auslandsbörsen und internationale Schiedsgerichtsbarkeit, IPRax 1997, 98; Tsakiri, The New York Convention’s Field of Application with respect to the Enforcement of the Arbitration Agreement, 36(2) ASA Bull. 364 (2018); UNCITRAL, UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), 2016, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/2016_guide_ on_the_convention.pdf (last visited Apr. 29, 2019); UNCITRAL Secretariat, Explanatory Note on the United Nations Convention on the Use of Electronic Communications in International Contracts, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/06-57452_ebook.pdf (last visited Apr. 29, 2019); van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, New York Convention of 1958, Commentary Cases Reported in Volume XII (1987), XII Y.B. Com. Arb. 409 (1987); van den Berg, New York Convention of 1958 Consolidated Commentary Cases Reported in Volumes XVII (1992) – XIX (1994), XIX Y.B. Com. Arb. 475 (1994); van den Berg, The New York Convention: Its Intended Effects, Its Interpretation, Salient Problem Areas, in: Blessing (ed.), The New York Convention of 1958, ASA Special Series No. 9, 1996, p. 25; van den Berg, Consolidated Commentary Cases Reported in Volumes XXII (1997) – XXVII (2002), XXVIII Y.B. Com. Arb. 562 (2003); van Houtte, Consent to Arbitration Through Agreement to Printed Contracts: The Continental Experience, (2000) 16 Arb. Int’l 1; von Hülsen, Die Gültigkeit von internationalen Schiedsvereinbarungen, J. Schweitzer Verlag 1973; Vorobey, CISG and Arbitration Clauses: Issues of Intent and Validity, 31 J.L. & Com. 135 (2012–2013); Wackenhuth, Ersetzbarkeit der Formerfordernisse des Art. 2 Abs. 2 des UN-Übereinkommens durch Klageerhebung und rügelose Einlassung vor dem Schiedsgericht?, RIW 1985, 568; Wackenhuth, Zur Behandlung der rügelosen Einlassung in nationalen und internationalen Schiedsverfahren, KTS 1985, 425; Wackenhuth, Die Schriftform für Schiedsvereinbarungen nach dem UN-Übereinkommen und Allgemeine Geschäftsbedingungen, ZZP 99 (1986), 445; Walder, Die Vollmacht zum Abschluss einer Schiedsabrede, insbesondere im internationalen Verhältnis, in: Forstmoser/Giger/Heini/Schluep (eds), Festschrift für Max Keller zum 65. Geburtstag, Schulthess 1989, p. 677; Walter, Das Schiedsverfahren im deutsch-italienischen Rechtsverkehr, RIW 1982, 693; Walter, Case Note: BGH, Jan. 26, 1989, X ZR 23/87, JZ 1989, 590; Wegen/Wilske, The “In-Writing-Requirement” for Arbitration Agreements – An Anachronism?, IDR 2004, 77; Wei, Rethinking the New York Convention: A Law and Economics Approach, Intersentia 2013; Wilske/Scheidle, Seals, Stamps, and Signatures in International Arbitration Agreements, 4(1) Contemp. Asia Arb. J. 37 (2011); Wolff, Case Note: BGH, Mar. 1, 2007, III ZB 7/06, ZZP 120 (2007), 371; Wolff, Judicial Assistance by German Courts in Aid of International Arbitration, 19 Am. Rev. Int’l Arb. 145 (2008); Wolff, Party Autonomy to Agree on Non-Final Arbitration?, 26(3) ASA Bull. 626 (2008); Wolff, E-Arbitration Agreements and E-Awards – Arbitration Agreements Concluded in an Electronic Environment and Digital Arbitral Awards, in: Piers/Aschauer (eds), Arbitration in the Digital Age: The Brave New World of Arbitration, Cambridge 2018, p. 151; Wolff, The UN Convention on the Use of Electronic Communications in International Contracts – an Overlooked Remedy for Outdated Form Provisions Under the New York

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Convention?, in: Fach Gómez/López Rodríguez (eds), 60 Years of the New York Convention: Key Issues and Future Challenges, Kluwer Law International 2019, p. 101; Yu, Written Arbitration Agreements – What Written Arbitration Agreements?, (2012) 32(1) C.J.Q. 68; Zeiler/Siwy (eds), The European Convention on International Commercial Arbitration: A Commentary, Kluwer Law International 2018; Zöller (ed.), Zivilprozessordnung, 32nd ed., Otto Schmidt 2018. Specific Bibliography (Article II(3)): Anzorena, The Incapacity Defence Under the New York Convention, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 615; Berger, The Creeping Codification of the New Lex Mercatoria, 2nd ed., Kluwer Law International 2010; Bermann, The “Gateway” Problem in International Commercial Arbitration, 37 Yale J. Int’l L. 1 (2012); Bernardini, Arbitration Clauses: Achieving Effectiveness in the Law Applicable to the Arbitration Clause, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 197; Bigel/ Soupizet/Fox, The New Law of Arbitration in France: New Features to Reaffirm Paris as a Venue for International Arbitration, 25(1) Int’l L. Practicum 92 (2012); Bishop/Coriell/Medina Campos, The ‘Null and Void’ Provision of the New York Convention, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 275; Black, Black’s Law Dictionary, 6th ed., West Publishing 1990; Blackaby/Partasides/ Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Blessing, The Law Applicable to the Arbitration Clause, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 168; Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany – The Model Law in Practice, 2nd ed., Kluwer Law International 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Craig/Park/Paulsson, International Chamber of Commerce Arbitration, 3rd ed., Oceana Publications 2000; Czernich, New Yorker Schiedsübereinkommen – UN-Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche – Kurzkommentar, LexisNexis 2008; Derains, The ICC Arbitral Process Part VIII. Choice of the Law Applicable to the Contract and International Arbitration, 6(1) ICC Bull. 10 (1995); Farnsworth, Contracts, 4th ed., Aspen Publishers 2004; Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Graffi, The Law Applicable to the Validity of the Arbitration Agreement: A Practitioner’s View, in: Ferrari/Kröll (eds), Conflict of Laws in International Arbitration, Sellier 2011, p. 19; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Hanotiau, Complex Arbitrations: Multiparty, Multicontract, Multi-Issue and Class Actions, Kluwer Law International 2006; Hanotiau, The Parties to the Arbitration Agreement, in: Lévy/Derains (eds), Liber Amicorum en l’honneur de Serge Lazareff, Editions Pedone 2011, p. 323; Hascher, European Convention on International Commercial Arbitration of 1961 – Commentary, XXXVI Y.B. Com. Arb. 504 (2011); ICCA, ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges, 2011, available at http://www.arbitration-icca.org/ publications/NYC_Guide.html (last visited Apr. 24, 2019); Kröll, 50 Jahre UN-Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche – Standortbestimmung und Zukunftsperspektive, SchiedsVZ 2009, 40; Kröll, The Arbitration Agreement in Enforcement Proceedings of Foreign Awards, in: Kröll/Mistelis/Perales Viscasillas/Rogers (eds), International Arbitration and International Commercial Law: Synergy, Convergence and Evolution, Liber Amicorum Eric Bergsten, Kluwer Law International 2011, p. 317; Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Kühner, Das neue französische Schiedsrecht, SchiedsVZ 2011, 125; Kleiman, Paris First Instance Court President Upholds ‘Pathological’ ICC Arbitration Clause, available at http://www.internationallawoffice. com/newsletters/detail.aspx?g=144f1e59-463d-4989-9920-a7be2feb3f4a (last visited Apr. 24, 2019); Lamm/Sharpe, Inoperative Arbitration Agreements Under the New York Convention, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 297; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Markert, Arbitrating in the Financial Crisis: Insolvency and Public Policy versus Arbitration and Party Autonomy – Which Law Governs?, 2(2) Contemp. Asia Arb. J. 217 (2009); Markert/Bigel, Estoppel in France and Germany: The Introduction of Foreign Legal Features in Continental Laws of Arbitration?, 15 NYSBA Int’l Chap. News 25 (2010); McIlwrath/Savage, International Arbitration and Mediation: A Practical Guide, Kluwer Law International 2010; Mezger, Das Europäische Übereinkommen über die Handelsschiedsgerichtsbarkeit, RabelsZ 29 (1965), 231; Mistelis (ed.), Concise International Arbitration, 2nd ed., Kluwer Law International 2015; Müller/Keilmann, Beteiligung am Schiedsverfahren wider Willen?, SchiedsVZ 2007, 113; MünchKommZPO: see Rauscher/Wax/Wenzel; Oldenstam/von Pachelbel, Country Report Sweden, in: Weigand/ Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford

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University Press 2019, p. 766; Park, Non-Signatories and the New York Convention, 2(1) Disp. Resol. Int’l 84 (2008); Poudret/Besson, Comparative Law of International Arbitration, 2nd ed., Sweet & Maxwell 2007; R. Hunter, Impecuniosity of the Parties and its Effect on Arbitration – An English Perspective, in: German Institution of Arbitration (ed.), Financial Capacity of the Parties, A Condition for the Validity of Arbitration Agreements?, Peter Lang 2004, p. 107; Rauscher/Wax/Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017; Reithmann/Martiny (eds), Internationales Vertragsrecht, 8th ed., Otto Schmidt 2015; Rogers, The Vocation of the International Arbitrator, 20 Am. U. Int’l L. Rev. 957 (2005); Rützel/Wegen/Wilske, Commercial Dispute Resolution in Germany, 2nd ed., C. H. Beck 2016; Sanders, The making of the Convention, in: United Nations (ed.), Enforcing Arbitration Awards under the New York Convention: Experience and Prospects, 1999, available at https://uncitral.un.org/ sites/uncitral.un.org/files/media-documents/uncitral/en/nycday-e.pdf (last visited Apr. 24, 2019), p. 3; Schütze (ed.), Institutionelle Schiedsgerichtsbarkeit, 3rd ed., Heymanns 2018; Schwab/Walter, Schiedsgerichtsbarkeit, 7th ed., C. H. Beck, Helbing & Lichtenhahn 2005; Solomon, § 2, International Commercial Arbitration: The New York Convention, in: Balthasar (ed.), International Commercial Arbitration, C. H. Beck/Hart/Nomos 2016, p. 45; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; Steindl, Learned Lawyers Attest: It is Advantageous To Be Right in (an Austrian) Court, (2010) 27(4) J. Int. Arb. 427; Treitel/Peel, The Law of Contract, 14th ed., Sweet & Maxwell 2015; van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, The New York Convention: Its Intended Effects, Its Interpretation, Salient Problem Areas, in: Blessing (ed.), The New York Convention of 1958, ASA Special Series No. 9, 1996, p. 25; van den Berg, The New York Convention: Summary of Court Decisions, in: Blessing (ed.), The New York Convention of 1958, ASA Special Series No. 9, 1996, p. 46; van den Berg, The New York Convention of 1958: An Overview, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 39; Wagner, Poor Parties and German Forums: Placing Arbitration under the Sword of Damocles?, in: German Institution of Arbitration (ed.), Financial Capacity of the Parties, A Condition for the Validity of Arbitration Agreements?, Peter Lang 2004, p. 9; Wegen/Wilske (eds), Getting the Deal Through – Arbitration 2017, 12th ed., Law Business Research 2017; Wilske/Fox, Good Faith Prohibits A Party from Taking Contradictory Positions Regarding the Admissibility of Arbitration in the Same Matter, 14 IBA Arb. Committee Newsl. 26 (Sep. 2009); Wilske/Krapfl, Pathological Designation of Arbitration Institutions: Two Recent Decisions On A Contract Drafter’s Nightmare, 9(3) Int. A.L.R. 80 (2006); Wilske/Krapfl, Arbitration Clause Prevails in the Event of Conflicting Jurisdiction and Arbitration Clauses, 13 IBA Arb. Committee Newsl. 25 (Mar. 2008); Wilske/Shore/Ahrens, The “Group of Companies Doctrine” – Where Is It Heading?, 17 Am. Rev. Int’l Arb. 73 (2006); Wong, Is the Prodigal Child Coming Home? U.S. Courts, Interim Measures, and the New York Convention, 2(1) Contemp. Asia Arb. J. 83 (2009); Zeiler/Siwy (eds), The European Convention on International Commercial Arbitration: A Commentary, Kluwer Law International 2018. Table of Contents A. Overview of Article II(1) and (2) ................................................................................. B. Spirit and Purpose of Article II(1) and (2) ................................................................ C. Drafting History of Article II(1) and (2).................................................................... I. Predecessor Provisions........................................................................................... II. Genesis....................................................................................................................... 1. Absence of Provisions on the Recognition of Arbitration Agreements in Preparatory Drafts........................................................................................ 2. Preliminary Discussion About Incorporating Provisions on the Recognition of Arbitration Agreements from May 20 to 26, 1958 (7th and 9th Meeting) ...................................................................................... 3. Considerations in the Context of the Recognition and Enforcement of Arbitral Awards from May 27 to 29, 1958 (11th and 13th Meeting)... 4. Consideration and Adoption of Provisions on the Validity of Arbitration Agreements on June 5, 1958 (21st Meeting) ........................ III. UNCITRAL Recommendation of July 7, 2006 ................................................ 1. Need for Modernization .................................................................................. 2. Means of Modernization ................................................................................. 3. Substance of Modernization ........................................................................... D. Scope of Application ....................................................................................................... I. Recognition of Arbitration Agreements as a Main Issue (Pre-Award Phase)......................................................................................................................... 1. Territorial Aspect (Article I(1)) .....................................................................

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Recognition of Arbitration Agreements a) Foreign Subsequent Award ...................................................................... b) Domestic Subsequent Award................................................................... c) Nationality of the Subsequent Award Not yet Determined ............. 2. Reservations Under Article I(3)..................................................................... a) Reservation of Reciprocity........................................................................ b) Reservation of Commercial Matters ...................................................... II. Recognition of Arbitration Agreements as a Preliminary Issue (PostAward Phase)........................................................................................................... E. Recognition of Arbitration Agreements (Article II(1)) ........................................... I. Arbitration Agreement .......................................................................................... 1. Agreement of the Parties ................................................................................. a) Law Governing the Agreement Conclusion and Its Scope............... aa) Governing Law ...................................................................................... bb) Scope ........................................................................................................ (1) Conclusion and Interpretation of the Arbitration Agreement........................................................................................ (2) Constituent Elements of the Arbitration Agreement ............ (3) Remedy for Defective Arbitration Agreements in the Course of the Proceedings ........................................................... (a) Conclusion of a New Arbitration Agreement .................. (b) Cure of Deficiencies................................................................ (c) Preclusion and Similar Procedural Means ........................ (4) Termination of the Arbitration Agreement ............................. b) Arbitral Clause in a Contract or Arbitration Agreement (Article II(2))............................................................................................... c) Non-Contractual Arbitration................................................................... 2. Differences in Respect of a Defined Legal Relationship........................... a) Differences ................................................................................................... b) Defined Legal Relationship ...................................................................... 3. Submission to Arbitration ............................................................................... II. The Arbitration Agreement’s Recognizability .................................................. 1. Agreement in Writing (Article II(1), (2)).................................................... a) Classification of the “in writing” Requirement ................................... aa) Legal Character...................................................................................... (1) Uniform Rule .................................................................................. (2) Concluding Character of the “in writing” Requirement in Article II(1)...................................................................................... (a) Minimum and Maximum Rule............................................ (b) No Proof of Arbitration Agreement Conclusion by Other Means............................................................................. bb) Rationale of the “in writing” Requirement ..................................... (1) Providing Evidence ........................................................................ (2) Providing a Warning..................................................................... cc) Relation Between Contract Conclusion and Form ....................... dd) Contractual Elements Requiring Written Form ............................ ee) Form Requirement in Different Stages of the Arbitration.......... b) Details on the “in writing” Requirement .............................................. aa) Arbitral Clause in a Contract or Arbitration Agreement............ bb) Signed by the Parties (Article II(2) Option 1) ............................... cc) Contained in an Exchange of Letters or Telegrams (Article II(2) Option 2) ....................................................................... (1) Purpose ............................................................................................. (2) Exchange .......................................................................................... (3) Means of Transmission................................................................. (4) Signatures Dispensable.................................................................. dd) Unlisted Options ................................................................................... (1) Non-Exhaustive Character of Article II(2)............................... (a) Wording .................................................................................... (b) Historical and Systematic Interpretation ........................... (c) Ratio Legis................................................................................. (d) 2006 UNCITRAL Recommendation .................................. (2) Requirements of “in writing” Under the Unlisted Options .

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New York Convention (a) General Approach................................................................... 112 (b) Recourse to Option I Article 7 of the Model Law........... 114 (3) Text of Option I Article 7 of the Model Law .......................... 116 (4) Record in Any Form (Option I Article 7(3) of the Model Law)................................................................................................... 117 (5) Electronic Communication (Option I Article 7(4) of the Model Law)...................................................................................... 120 (6) Exchange of Statements of Claim and Defense (Option I Article 7(5) of the Model Law) ................................................... 122 (7) Reference to Any Document Containing an Arbitration Clause (Option I Article 7(6) of the Model Law)................... 123 ee) Impact of the Electronic Communications Convention..............123a (1) Modernization of Form Requirements .....................................123b (2) Legal Effects of the Electronic Communications Convention on Article II .............................................................. 123c (a) Amendment of or Clarification to Article II ....................123d (aa) No Domestic Solution ...................................................123d (bb) Comprehensive Application......................................... 123f (b) Consideration Within the Autonomous Interpretation of Article II ...............................................................................123h ff) Factual Situations .................................................................................. 124 (1) Unilaterally Written Form ........................................................... 125 (2) Electronic Communication .......................................................... 129 (a) Signed by the Parties (Article II(2) Option 1) .................129a (b) Contained in an Exchange of Letters or Telegrams (Article II(2) Option 2).......................................................... 130 (c) Accessibility of the Information so as to Be Useable for Subsequent Reference Under Article II(2)’s Unlisted Options ..................................................................... 131 (3) General Terms and Conditions .................................................. 132 (a) Scope of Uniform Law........................................................... 133 (b) Parties’ Signatures or Exchange of Letters or Telegrams 136 (aa) Reference .......................................................................... 137 (bb) Reasonable Opportunity to Take Note of the General Terms’ and Conditions’ Content ................ 140 (c) Reference in a Contract Under Option I Article 7(6) of the Model Law as Incorporated in Article II(2) .............. 144 (4) Referenced Documents Other than General Terms and Conditions ....................................................................................... 145 (a) Contract Addendum, Extension, Novation or Settlement ................................................................................. 145 (b) Bill of Lading and Charter Party ......................................... 147 (5) Third Parties Not Having Concluded the Arbitration Agreement........................................................................................ 150 (a) Third Party Beneficiary.......................................................... 150 (b) Legal Successor ........................................................................ 152 (c) Group of Companies.............................................................. 155 (6) Power of Attorney/Agency .......................................................... 156 c) Remedying the Lack of Form by Failure to Object............................ 157 2. Subject Matter Capable of Settlement by Arbitration............................... 158 3. The Arbitration Agreement’s Validity.......................................................... 164 4. European Convention ...................................................................................... 168 a) Relation Between the New York Convention and the European Convention................................................................................................... 168 b) Recognition of Arbitration Agreements (Article I(2)(a) of the European Convention).............................................................................. 170 aa) Requirements Other than Form ........................................................ 170 bb) Form Requirements.............................................................................. 172 (1) Autonomous Form Requirement (Article I(2)(a) Option 1 of the European Convention)...................................................... 173 (2) More Favorable Form Requirements Under National Laws (Article I(2)(a) Option 2 of the European Convention)....... 174

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Recognition of Arbitration Agreements

1

Article II

(3) Remedy for Defective Arbitration Agreements in the Course of the Proceedings (Article V(2)(1) of the European Convention)....................................................................................... 176 III. Burden of Proof.......................................................................................................176a IV. More Favorable National Law on the Recognition of Arbitration Agreements (Article VII(1)) ...................................................... 177 IV. Effects of Recognition of the Arbitration Agreement..................................... 180 1. Recognition v. Validity..................................................................................... 181 2. Effects in Court Proceedings .......................................................................... 182 3. Effects in Arbitral Proceedings....................................................................... 187 F. Action Before State Courts (Article II(3)).................................................................. 189 I. Overview ................................................................................................................... 189 II. Spirit and Purpose .................................................................................................. 191 III. Drafting History ...................................................................................................... 193 IV. Scope of Applicability of Article II(3)................................................................ 202 1. Agreement Providing for Arbitration in Another State ........................... 204 2. Agreement Providing for Arbitration Within the Forum State ............. 208 3. Agreement Involving Foreign Parties ........................................................... 214 V. Competent Court .................................................................................................... 217 1. Court of a Contracting State........................................................................... 218 2. Seized of an Action in a Matter in Respect of Which the Parties Have Made an Agreement............................................................................ 219 a) Scope of Application of the Arbitration Agreement .......................... 223 aa) Governing Law for Interpretation of the Arbitration Agreement .............................................................................................. 227 bb) Article VI(2) of the European Convention..................................... 236 cc) Personal Scope of the Arbitration Agreement ............................... 243 (1) Authority/Agency........................................................................... 244 (2) Legal Successor ............................................................................... 249 (3) Group of Companies..................................................................... 251 (4) Third Party Beneficiaries.............................................................. 257 (5) Estoppel ............................................................................................ 259 dd) Factual Scope of the Arbitration Agreement.................................. 261 b) Dispute Requirement................................................................................. 262 c) Provisional Measures................................................................................. 266 d) Provisional Measures Under the European Convention................... 268 VI. Request of One of the Parties .............................................................................. 270 1. Party Requesting Referral to Arbitration ..................................................... 273 2. Waiver and Time Limits.................................................................................. 274 a) Time Limits Imposed by Domestic Laws ............................................. 277 b) Time Limits Imposed by Article VI(1) of the European Convention 280 VII. Court Decision......................................................................................................... 284 1. Prerequisites for Referral to Arbitration ...................................................... 286 a) Burden of Proof .......................................................................................... 287 b) Governing Law for Validity of the Arbitration Agreement.............. 289 c) Doctrine of Separability ............................................................................ 294 d) Court’s Standard of Review...................................................................... 299 2. Reasons to Refuse Referral to Arbitration ................................................... 303 a) Agreement Null and Void........................................................................ 304 b) Agreement Inoperative.............................................................................. 309 c) Agreement Incapable of Being Performed ........................................... 311 3. Referral to Arbitration...................................................................................... 317 a) No Court Discretion .................................................................................. 322 b) Article VI(3) of the European Convention .......................................... 324

A. Overview of Article II(1) and (2) Article II obliges the Contracting States to recognize arbitration agreements as defined in 1 detail in its first paragraph (Õ paras 40 et seq.). The most critical requirement for Wolff

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Article II 2–5

New York Convention

recognition is that arbitration agreements must be in writing as further defined in the provision’s second paragraph (Õ paras 73 et seq.). In accordance with the 2006 UNCITRAL Recommendation, the written form can, however, be adjusted to modern business needs. Article II provides for recognition of arbitration agreements; it does not invalidate such agreements (Õ para. 181). Recognition first and foremost is reflected in an objection against the state courts’ competence to adjudicate the matter in dispute. This results from the provision’s third paragraph which will be dealt with separately below (Õ paras 189 et seq.).

B. Spirit and Purpose of Article II(1) and (2) Article II was only included in the draft Convention in the last days of the 1958 Conference. A convention on the recognition and enforcement of arbitral awards was deemed incomplete without provisions on the recognition of the underlying arbitration agreements. Article II aims to fill this gap by providing for a stable basis for the recognition of arbitration agreements. 3 Article II(2)’s “in writing” requirement was a child of its time, as can be deduced from its reference to contract conclusion “by exchange of letters or telegrams.” Adjusting the form requirement to today’s business needs is one of the challenges faced when interpreting the provision. While it may have served to warn the parties of the risks of submitting to arbitration, today’s understanding of the “in writing” requirement is limited to providing (some kind of) evidence for the existence of the arbitration agreement (Õ paras 78 et seq., Õ paras 118 et seq.). 2

C. Drafting History of Article II(1) and (2) 4

This section deals with the drafting history of Article II(1) and (2). The history of the Article’s third paragraph will be outlined in Õ paras 193 et seq.

I. Predecessor Provisions 5

The recognition of arbitration agreements was already subject matter of the 1923 Geneva Protocol (Õ Annex V 1). While the wording of Article 1(1) of the Geneva Protocol does not match Article II(1) of the Convention, the content of both provisions is basically the same. However, two substantial deviations need to be emphasized. First, while Article II(1) of the Convention refers to “a defined legal relationship, whether contractual or not” to limit the scope of arbitration agreements to be recognized, Article 1(1) of the Geneva Protocol applies an even stricter limitation. The Geneva Protocol covers only arbitration agreements in respect of differences arising in connection with the contract in relation to which the parties have agreed on arbitration. Second and even more important, the Geneva Protocol does not require the arbitration agreement to meet certain form standards. It therefore not only lacks an “in writing” requirement like under Article II(1) of the Convention, but also its definition as under Article II(2) of the Convention.

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Recognition of Arbitration Agreements

6–8

Article II

II. Genesis 1. Absence of Provisions on the Recognition of Arbitration Agreements in Preparatory Drafts Article II is probably the article with the most turbulent drafting history. Although 6 the preliminary work for the Convention spanned more than five years, the incorporation of provisions on the recognition of arbitration agreements was not discussed before the first day of the Conference, i.e. less than three weeks before the adoption of the Convention. Initially, neither the 1953 ICC draft1 nor the 1955 draft of the ECOSOC Committee on the Enforcement of International Arbitral Awards2 dealt with the recognition of arbitration agreements.

2. Preliminary Discussion About Incorporating Provisions on the Recognition of Arbitration Agreements from May 20 to 26, 1958 (7th and 9th Meeting) During the first days of the Conference, both the Polish and the Swedish delegation 7 proposed the insertion of an additional article according to which Contracting States shall recognize the validity of arbitration clauses.3 While the Polish proposal was closer to the 1923 Geneva Protocol, the Swedish draft adopted a more general approach in recognizing as valid any arbitration agreement, irrespective of the parties and States involved. The Turkish delegate accurately remarked that the Swedish proposal apparently did not aim to resolve conflicts of laws, but to establish a uniform law.4 Many delegates appreciated the completion of the Convention by adding such a 8 provision, but most considered it to be outside the scope of the draft Convention and thus beyond the Conference’s competence.5 A number of options were discussed as to how to cope with the competence issue: by dealing with the issue in an annex to the Convention,6 by providing that every State which ratified the Convention would be deemed to have adhered to the 1923 Protocol by that very act,7 by inviting States to adhere to the 1923 Protocol8 or by not addressing the recognition of arbitration agreements at all.9 Some delegations, however, had expressed their views in favor of an inclusion of such provisions in the body of the Convention.10 On May 26, 1958, the Conference decided that it was competent to elaborate a clause concerning the validity of arbitral agreements which, however, should not be inserted into the Convention itself.11 It moreover decided that a working group should draft a clause of that nature.12 1

Reprinted in E/C.2/373 (Õ Annex IV 1) and in 9(1) ICC Bull. 32 (1998). E/2704, Annex, p. 2 (Õ Annex IV 1). 3 Poland: E/CONF.26/7 (Õ Annex IV 1); Sweden: E/CONF.26/L.8 (Õ Annex IV 1). 4 E/CONF.26/SR.9, p. 4 (Õ Annex IV 1). 5 See E/CONF.26/SR.7, pp. 8 et seq. (Õ Annex IV 1) and E/CONF.26/SR.9, pp. 2 et seq. (Õ Annex IV 1). 6 See E/CONF.26/SR.7, p. 11 (Õ Annex IV 1) and E/CONF.26/SR.9, pp. 11, 13 (Turkey) (Õ Annex IV 1); E/CONF.26/SR.9, p. 9 (Peru), p. 11 (Switzerland, pointing out that delegations which were not authorized to sign an article of that nature would then at least sign the Convention proper and leave the signature of the annex until later), p. 12 (Japan) (Õ Annex IV 1). 7 See E/CONF.26/SR.9, p. 4 (Belgium) (Õ Annex IV 1). 8 See E/CONF.26/SR.9, p. 8 (France) (Õ Annex IV 1). 9 See E/CONF.26/SR.9, p. 6 (El Salvador, India) (Õ Annex IV 1). 10 E/CONF.26/SR.9, pp. 11 et seq. (Ceylon and Sweden) (Õ Annex IV 1). 11 E/CONF.26/SR.9, p. 12 (Õ Annex IV 1). 12 E/CONF.26/SR.9, p. 13 (Õ Annex IV 1). 2

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Article II 9–11 9

New York Convention

On the fringes of the above-mentioned discussion, the German delegation suggested that the words “in writing” be defined: there could obviously be no recognition of a purely verbal agreement, but neither could there be a requirement in the strict sense that both parties sign the same document. Such a requirement would be at variance with the needs and usages of international trade.13 Germany also submitted a proposal to that effect.14

3. Considerations in the Context of the Recognition and Enforcement of Arbitral Awards from May 27 to 29, 1958 (11th and 13th Meeting) While Working Party No. 2, entrusted with formulating provisions on the validity of arbitral agreements (Õ para. 8), observed its mandate, issues revolving around the validity of such agreements were discussed at some length as a preliminary issue for the recognition and enforcement of arbitral awards. These discussions referred to the draft provisions which later became Articles IV(1)(b) and V(1)(a) of the Convention. In this context, form requirements for arbitration clauses – which later were implemented in Article II(1) and (2) – were also discussed. 11 Article III(a) of both the ICC draft15 and the Commission draft16 made recognition and enforcement contingent on the existence of a written arbitration agreement between the parties named in the award. However, none of these drafts defined the “in writing” requirement further. The same holds true for the Netherlands redraft17 on which the Conference based its subsequent discussion.18 While this redraft received considerable acclaim, the “in writing” requirement was challenged by the delegations of France, Switzerland and Israel. France perceived the “in writing” requirement as excessive and suggested a more liberal attitude in commercial matters. Since the arbitration clause was often no more than a mere reference tacitly accepted by the other party, it was going a little too far to require written proof.19 Switzerland shared these views since under its laws the agreement of the parties could likewise be proven even if there was no written agreement.20 Israel, finally, believed that the Convention should provide only for minimum requirements common to the procedures of all countries. As some countries might not legally require the production of the arbitration agreement, an international convention should not be more exacting.21 Israel therefore proposed to 10

13

E/CONF.26/SR.9, p. 3 (Õ Annex IV 1). E/CONF.26/L.19 (Õ Annex IV 1): “The words ‘in writing’ mentioned in the preceding paragraph may also mean that one of the parties has agreed in written form and the other party has consented, or that one of the two parties has confirmed an oral agreement and the other party has not contradicted.” 15 Reprinted in 9(1) ICC Bull. 32, 35 (1998) = E/C.2/373 (Õ Annex IV 1). 16 Report of the Committee on the Enforcement of International Arbitral Awards, E/2704, Annex, p. 1 (Õ Annex IV 1). Cf. the Committee’s reasoning in E/2704, para. 30 (p. 8) (Õ Annex IV 1): “The Committee was aware that in the practice of international trade an agreement to arbitrate may be made by exchange of letters or telegrams. So long as the agreement is genuine and has been reduced to written form, the Committee thought it should be considered valid for the purpose of this paragraph. Similarly, the Committee did not intend to exclude common form submissions (‘[contracts] type’) and other standard forms.” 17 E/CONF.26/L.17 (Õ Annex IV 1). 18 Cf. E/CONF.26/SR.11, p. 13 (Õ Annex IV 1) (“the President suggested that the Conference should decide at the next meeting whether the amendments submitted by the Netherlands (E/CONF.26/L.17) would serve as a working basis. It was so agreed.”) and E/CONF.26/SR.12, p. 2 (Õ Annex IV 1) (“The President recalled the decision, taken at the preceding meeting, to use the Netherlands amendments (E/ CONF.26/L.17) as the basis of discussion.”), respectively. 19 E/CONF.26/SR.11, p. 7 (Õ Annex IV 1). 20 E/CONF.26/SR.11, p. 9 (Õ Annex IV 1). 21 E/CONF.26/SR.11, p. 10 (Õ Annex IV 1). 14

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Recognition of Arbitration Agreements

12–14

Article II

delete any references to an “in writing” requirement.22 Similarly, the three-power working paper proposed by France, Germany and the Netherlands,23 as well as the Working Party No. 3 proposal,24 omitted any form requirements. The Netherlands redraft had also proposed a definition of “in writing.” According 12 to its draft Article III(2), “[a]greement in writing shall be held to include exchange of letters or telegrams.”25 While the United Kingdom opposed this definition as inadequate and surely better not to clarify,26 the representative of the Hague Conference on Private International Law argued that it was not customary in international commerce to have documents signed by the two parties, even in very important transactions. An agreement which required a clause in writing would not meet present-day needs and would not be acceptable in international commerce.27 Japan proposed that the absence of an arbitration clause “in writing, including an exchange of letters or cables,” should hinder the recognition and enforcement of an award.28

4. Consideration and Adoption of Provisions on the Validity of Arbitration Agreements on June 5, 1958 (21st Meeting) On June 5, 1958, Working Party No. 2 (Õ para. 8) submitted the text of an 13 additional three-article protocol on the validity of arbitration agreements.29 In parallel, the Netherlands submitted a new draft article condensing and replacing the proposed additional protocol.30 The structure of this newly proposed article anticipated the final text of Article II. The Conference accepted the Netherlands’ motion to reconsider the decision not to include the recognition of arbitration agreements in the Convention itself.31 As one of the delegations still emphasizing the Conference’s lack of competence, Israel 14 proposed the addition of a clause allowing any Contracting State to make a reservation not to apply the new article and to limit it to recognition “for the purposes of articles III and IV.”32 Both proposals, however, were rejected.33 Italy pointed out that non-contractual commercial matters might also be covered by an arbitration agreement, e.g. the question of damages resulting from a collision at sea.34 It therefore successfully proposed the replacement of the reference to disputes “in respect of such contract” in the Netherlands’ draft with “in respect of a determined legal relationship, or contract, relating to subject-matter capable of arbitration.”35 The Conference also adopted the United Kingdom’s proposal to delete the latter two words of “recognize as valid.”36 Finally, paragraph 1 of the Netherlands’ draft was adopted subject to these amendments.37

22

E/CONF.26/L.31 (Õ Annex IV 1). E/CONF.26/L.40 (Õ Annex IV 1); raised to question in this regard by Turkey (E/CONF.26/SR.14, p. 5 [Õ Annex IV 1]). 24 E/CONF.26/L.43, p. 1 (Õ Annex IV 1). 25 E/CONF.26/L.17, p. 1 (Õ Annex IV 1). 26 E/CONF.26/SR.13, p. 9 (Õ Annex IV 1). 27 E/CONF.26/SR.13, p. 11 (Õ Annex IV 1). 28 E/CONF.26/SR.14, p. 7 (Õ Annex IV 1), affirming Bulgaria (p. 9). 29 E/CONF.26/L.52 (Õ Annex IV 1). 30 E/CONF.26/L.54 (Õ Annex IV 1) and E/CONF.26/SR.21, p. 17 (Õ Annex IV 1). 31 E/CONF.26/SR.21, p. 17 (Õ Annex IV 1). 32 E/CONF.26/SR.21, p. 18 (Õ Annex IV 1). 33 E/CONF.26/SR.21, p. 20 (Õ Annex IV 1). 34 E/CONF.26/SR.21, p. 18 (Õ Annex IV 1). 35 E/CONF.26/SR.21, p. 20 (Õ Annex IV 1). 36 E/CONF.26/SR.21, p. 20 (Õ Annex IV 1). 37 E/CONF.26/SR.21, p. 20 (Õ Annex IV 1). 23

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Article II 15–17 15

New York Convention

The Working Party’s draft had basically defined “in writing” in the words which later became Article II(2).38 According to the Netherlands’ draft, “[t]he expression ‘agreement in writing’ includes exchange of letters or telegrammes between the parties and confirmation in writing by one of the parties without contestation by the other party.”39 Referring to this proposal, Italy suggested that the provision should indicate that the exchange of letters or telegrams did not exhaust all the possibilities. Signed minutes of a conversation might also constitute an agreement in writing.40 Neither the USSR nor the United Kingdom, however, could accept an uncontested unilateral document as an agreement in writing.41 The Belgian proposal to delete the “in writing” definition entirely was unsuccessful.42 Finally, the Conference adopted the Working Party’s draft in its 21st meeting on June 5, 1958 and rejected the uncontested unilateral document alternative.43 The final wording of Article II(1) and (2) was accomplished by the Drafting Committee on June 6, 1958.44

III. UNCITRAL Recommendation of July 7, 2006 16

The form requirement for arbitration agreements in Article II(2) is the only New York Convention provision the revision of which was ever seriously considered. Although UNCITRAL’s considerations ultimately did not lead to amendments to the Convention, the importance of the Recommendation of July 7, 2006 for the understanding of Article II(2) demands a short outline of its drafting history.45

1. Need for Modernization 17

On June 10, 1998, the Commission held a special commemorative New York Convention Day in order to celebrate the 40th anniversary of the Convention. In the aftermath of this event, the UNCITRAL Secretariat presented the Commission in 1999 with a number of possible topics for consideration including the requirement of written form for arbitration agreements.46 This form requirement was perceived as outdated47 and not in line with international trade practice,48 especially with regard to modern means of communication and electronic commerce.49 Moreover, national courts did not interpret and apply the written form requirement uniformly, leading to legal uncertainty in a number of factual situations.50 In its 32nd session in May/June 1999, the Commission recognized these issues needed to be given a high priority and entrusted Working

38

E/CONF.26/L.52, p. 1 (Õ Annex IV 1). E/CONF.26/L.54, p. 1 (Õ Annex IV 1). 40 E/CONF.26/SR.21, p. 20 (Õ Annex IV 1). 41 E/CONF.26/SR.21, pp. 20 et seq. (Õ Annex IV 1) (UK: “In common law, the failure to do something could not constitute estoppel”). 42 E/CONF.26/SR.21, p. 21 (Õ Annex IV 1). 43 E/CONF.26/SR.21, p. 21 (Õ Annex IV 1). 44 E/CONF.26/L.61, pp. 1 et seq. (Õ Annex IV 1). 45 For a full record of travaux préparatoires in chronological order, Õ Annex IV 2. 46 A/CN.9/460, paras 20 et seq. (pp. 6 et seq.) (Õ Annex IV 2). 47 A/54/17, para. 344 (p. 41) (Õ Annex IV 2). 48 A/CN.9/460, para. 26 (p. 8) (Õ Annex IV 2); A/CN.9/WG.II/WP.108/Add.1, para. 7 (p. 3) (Õ Annex IV 2). 49 A/CN.9/460, paras 22 et seq. (pp. 6 et seq.) (Õ Annex IV 2); A/54/17, para. 345 (p. 41) (Õ Annex IV 2). 50 A/CN.9/460, paras 24 et seq. (pp. 7 et seq.) (Õ Annex IV 2); A/54/17, para. 346 (p. 41) (Õ Annex IV 2); A/CN.9/WG.II/WP.110, para. 17 (pp. 8 et seq.) (Õ Annex IV 2). 39

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Recognition of Arbitration Agreements

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Article II

Group II with the consideration of the form requirement as a priority item.51 Working Group II kept itself busy with this high priority item until late 2005, debating both the means and the substance of the desired modernization back and forth.52

2. Means of Modernization The Working Group’s intention was to update Article 7 of the Model Law on the 18 question of form while preserving enforceability of such agreements under the New York Convention.53 A wide range of instruments suitable for the modernization of Article II(2) was discussed, including a new convention, an additional protocol to the existing Convention, binding and non-binding interpretative tools and more liberal model legislation coming into play as an alternative enforcement regime under Article VII(1).54 Those preferring a binding instrument considered it the only effective means to achieve uniformity in applying the Convention. Others countered that amending the Convention was likely to exacerbate the existing lack of harmony since adopting a binding instrument would take several years. There was also a tendency to leave the New York Convention untouched as one of the greatest achievements in international arbitration to avoid opening Pandora’s box.55 At an early stage of the discussions an interpretative instrument became the 19 preferred means of implementation56 (though this did not hinder the Working Group from re-discussing the topic from scratch again57 and again58 and again59). Initially, a report of the Secretary-General seems to have succumbed to the misunderstanding that in the light of its mission, UNCITRAL itself could create a binding interpretative instrument in accordance with Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties.60 The Working Group, however, recognized that an interpretative instrument issued by a body other than the States party to the New York Convention would not be considered legally authoritative.61 Finally the Working Group agreed on a (non-binding) recommendation62 which the Commission later adopted.63

3. Substance of Modernization The Working Group originally planned to have the operative part of the recommen- 20 dation substantially modeled on the revised text of Article 7(2) of the Model Law.64 51

A/54/17, para. 350 (p. 42) and para. 380 (p. 46) (Õ Annex IV 2). For remarkably critical comments, see A/CN.9/609/Add.4 (United Kingdom) (Õ Annex IV 2) and A/CN.9/609/Add.5 (France) (Õ Annex IV 2). 53 A/CN.9/606, para. 3 (p. 2) (Õ Annex IV 2). 54 A/54/17, paras 347 et seq. (pp. 41 et seq.) (Õ Annex IV 2); A/CN.9/WG.II/WP.108/Add.1, paras 17 et seq. (pp. 6 et seq.) (Õ Annex IV 2); A/CN.9/485, para. 60 (pp. 15 et seq.) (Õ Annex IV 2). 55 See A/CN.9/468, para. 92 (p. 19) (Õ Annex IV 2); A/CN.9/508, paras 43 et seq. (pp. 11 et seq.) (Õ Annex IV 2). 56 A/CN.9/WG.II/WP.110, paras 27 et seq. (pp. 12 et seq.) (Õ Annex IV 2); A/CN.9/485, paras 60 et seq. (pp. 15 et seq.) (Õ Annex IV 2). 57 34th session: A/CN.9/487, para. 43 (pp. 13 et seq.) (Õ Annex IV 2). 58 36th session: A/CN.9/508, paras 43 et seq. (pp. 11 et seq.) (Õ Annex IV 2). 59 44th session: A/CN.9/592, para. 84 (p. 18) (Õ Annex IV 2). 60 A/CN.9/WG.II/WP.110, paras 30 et seq. (pp. 13 et seq.) and paras 42 et seq. (pp. 16 et seq.) (Õ Annex IV 2). 61 A/CN.9/485, para. 62 (p. 17) (Õ Annex IV 2); A/CN.9/WG.II/WP.118, para. 30 (p. 12) (Õ Annex IV 2). But see also the renewed discussion in A/CN.9/487, para. 60 (p. 16) (Õ Annex IV 2). 62 A/CN.9/592, para. 88 (p. 19) (Õ Annex IV 2). 63 A/61/17, para. 181 (pp. 30 et seq.) (Õ Annex IV 2). 64 A/CN.9/WG.II/WP.110, para. 48 (p. 19) (Õ Annex IV 2); A/CN.9/485, para. 61 (p. 17) (Õ Annex IV 2); A/CN.9/508, para. 41 (p. 11) (Õ Annex IV 2). 52

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Article II 21–23

New York Convention

Concerns, however, were expressed that it was necessary to avoid any implication that the declaration was seeking to impose a new interpretation of the New York Convention or that it was declaring what the meaning of the provision as incorporated into national laws was.65 In that context, the point was also raised that the Model Law provisions being considered by the Working Group differed significantly from Article II(2) of the Convention.66 After the Secretariat had repeatedly pointed to the option of promoting a liberal approach to the form requirement of Article II(2) through the more-favorablelaw provision in Article VII(1),67 it proposed the adoption of a recommendation according to which Article VII(1) should be applied to the recognition of the validity of arbitration agreements.68 In its 44th session in 2006, the Working Group decided that the recommendation should include both Article II(2) and VII(1).69 21 The draft recommendation received favorable comments from a number of States.70 When considering the revised Article 7 of the Model Law, the Commission observed in its 39th session that state courts tended to interpret the New York Convention in light of the provisions of the Model Law and that the revised draft would indicate to States that the written form requirement contained in Article II(2) should be interpreted in a more liberal manner.71 Later in the same session, the Commission changed the name of the instrument from “declaration” to “recommendation”72 and finally adopted it at its 834th meeting on July 7, 2006.73

D. Scope of Application 22

Article II’s ambit depends on whether the provision is invoked separately (Õ paras 23 et seq.) or as a preliminary issue for recognition and enforcement of an arbitral award (Õ para. 39).

I. Recognition of Arbitration Agreements as a Main Issue (Pre-Award Phase) 23

The scope of application of Article II becomes decisive whenever the recognition of an arbitration agreement as such is at issue (Õ paras 182 et seq.). Difficulties arise since Article I, which governs the Convention’s ambit, refers in its paragraphs 1 and 3(1) solely to the recognition of arbitral awards. It remains silent on the recognition of arbitration agreements dealt with in Article II. If understood literally, Article I(1) would either never (if read as exhaustively setting out the Convention’s scope of application) 65 A/CN.9/487, paras 60 et seq. (pp. 16 et seq.) (Õ Annex IV 2); A/CN.9/WG.II/WP.118, para. 28 (pp. 11 et seq.) (Õ Annex IV 2). 66 A/CN.9/508, para. 45 (p. 12) (Õ Annex IV 2). 67 A/CN.9/WG.II/WP.118, paras 31 et seq. (pp. 12 et seq.) (Õ Annex IV 2); A/CN.9/WG.II/WP.139, paras 24 et seq. (pp. 15 et seq.) (Õ Annex IV 2); see also (in the context of Article 7 of the Model Law) Proposal by the Mexican Delegation, A/CN.9/WG.II/WP.137, Annex I, para. II.3 (p. 3) (Õ Annex IV 2). For a summary of issues when applying Article VII(1), see A/CN.9/607, para. 10 (pp. 5 et seq.) (Õ Annex IV 2). 68 A/CN.9/WG.II/WP.139, para. 37 (p. 22) (Õ Annex IV 2). 69 A/CN.9/592, para. 88 (p. 19) (Õ Annex IV 2). 70 A/CN.9/609, p. 7 (Italy) (Õ Annex IV 2); A/CN.9/609/Add.1, p. 4 (China) (Õ Annex IV 2); A/CN.9/ 609/Add.2, p. 2 (Germany) (Õ Annex IV 2); critical A/CN.9/609/Add.3, p. 3 (Belgium) (Õ Annex IV 2). 71 A/61/17, para. 166 (p. 27) (Õ Annex IV 2). 72 A/61/17, para. 180 (p. 30) (Õ Annex IV 2). 73 A/61/17, para. 181 (pp. 30 et seq.) (Õ Annex IV 2).

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or always (if read as restricting the scope of application as to arbitral awards) allow Article II to apply. The lack of harmonization between Articles I and II is due to their drafting history:74 the Convention was originally limited to the recognition and enforcement of arbitral awards; the extension to arbitration agreements was adopted only in the last week before adoption of the Convention (Õ paras 13 et seq.). Article II undisputedly does not apply to any arbitration agreement without restric- 24 tion.75 The only question is which restriction applies. The term “recognition” used in Article II(1) relates to foreign matters so that it seems natural at first glance to apply the provision to arbitration agreements governed by a foreign law, i.e. by a law other than the one of the forum State. Such an interpretation would keep the recognition of arbitration agreements and the recognition and enforcement of arbitral awards separated, thus following the model of the Geneva Treaties. Linking Article II to the law governing the arbitration agreement would, however, employ a criterion different from the criteria under Article I(1). This would invoke the risk of unsolicited inconsistencies: an arbitration agreement could then have to be recognized under Article II although the subsequent award based on it would not fall under the terms of Article I and could therefore remain unenforced under the then applicable domestic law and vice versa. It is not sensible to grant arbitration agreements protection irrespective of whether a subsequent award will benefit from the Convention. To minimize such divergences, the scope of Article II needs to be tied to Article I.76 25 This holds true both for the territorial aspect (Õ paras 26 et seq.) and for the reservations made by the respective States (Õ paras 36 et seq.).

1. Territorial Aspect (Article I(1)) a) Foreign Subsequent Award Article II applies if a subsequent award will be foreign in terms of Article I, i.e. if it 26 will be made in the territory of a State other than the forum State (Article I(1)(1), Õ Art. I paras 94 et seq.) or if the forum State will not consider the award as domestic (Article I(1)(2), Õ Art. I paras 114 et seq.).77 If – as is usual – the law of the forum State determines the State in which an award is made by the place of arbitration (Õ Art. I paras 99 et seq.), an arbitration agreement providing for a place of arbitration outside the forum State is capable of recognition under Article II.78 In these cases, the ambits of Articles II and III et seq. are in perfect accordance. The nationality of the parties and any additional international element (cf. Arti- 27 cle 1(3)–(4) of the Model Law) are as irrelevant for the recognition of arbitration 74 Report of the Secretary-General: study on the application and interpretation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/168, para. 16; Bertheau, New Yorker Abkommen, p. 26; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.125; Tsakiri, 36(2) ASA Bull. 364, 366 (2018); van den Berg, NYC, p. 56. 75 Concurring Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 77. 76 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.125; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 41; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 78. 77 Switzerland: HG Zürich, ZEuP 1994, 682, 683; Tribunal cantonal, Canton de Vaud, 13(1) ASA Bull. 64, 67 (1995); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.126; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.221; Poudret/Cottier, 13(3) ASA Bull. 383, 385 (1995); Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 80. 78 Italy: Cass., sez. un., I Y.B. Com. Arb. 192 (1976); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.126; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.221; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 41 et seq.; van den Berg, NYC, pp. 56 et seq.

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agreements as they are for the recognition and enforcement of arbitral awards (Õ Art. I paras 132 et seq., Õ Art. I para. 134). Although this will rarely happen in practice, parties to an arbitration agreement which is domestic in every respect can therefore seek recognition of their agreement abroad.79 Any implementing national legislation which makes recognition of foreign arbitration agreements under Article II contingent on such additional criteria (like section 202 cl. 2 of the US Federal Arbitration Act80) violates the Contracting State’s obligation.81 b) Domestic Subsequent Award It follows from the aim to harmonize the scope of Articles II and III et seq. (Õ paras 24 et seq.) that Article II does not apply to arbitration agreements on the basis of which a “domestic” award will be rendered.82 In terms of Article I, “domestic” awards are those which are made in the forum State (Article I(1)(1), Õ Art. I paras 94 et seq.) or which are considered as domestic awards (Article I(1)(2), Õ Art. I paras 114 et seq.). 29 This position is prevailing but not undisputed. Some courts and commentators advocate that a uniform recognition of arbitration agreements generally requires the application of Article II in all Signatory States worldwide, including the State where the arbitration is to take place. Otherwise it could happen that an international arbitration agreement is not enforced in a country although the ensuing award would have to be enforced in other Contracting States.83 This position is to be rejected from the outset insofar as it extends to all arbitration agreements. Otherwise a State would effectively give up its legislatory freedom as to stricter (form) requirements for purely domestic 28

79 Italy: Cass., sez. un., I Y.B. Com. Arb. 190 (1976); Cass., sez. un., IV Y.B. Com. Arb. 284 paras 2 et seq. (1979); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.221; Tsakiri, 36(2) ASA Bull. 364, 369 (2018); van den Berg, NYC, pp. 58 et seq. 80 The provision reads: “An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless that relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states.” Cf. for detailed criteria US: Ledee v. Ceramiche Ragno, 684 F.2d 184, 186 et seq. (1st Cir. 1982) = IX Y.B. Com. Arb. 471, 473 para. 3 (1984); Mirza v. Cachet Hotel Group Ltd. Cayman L.P., XLIII Y.B. Com. Arb. 687 paras 21 et seq. (2018) (C.D. Cal. 2017); Sedco, Inc. v. Petroleos Mexicanos Mex. Nat’l Oil Co., 767 F.2d 1140, 1144 et seq. (5th Cir. 1985) = XII Y.B. Com. Arb. 539, 541 para. 2 (1987); Williams v. Deutsche Bank AG, 2006 U.S. Dist. LEXIS 75426, *11 et seq. (N.D. Tex. 2006) = XXXII Y.B. Com. Arb. 683, 685 et seq. paras 3 et seq. (2007); for such criteria see also Israel: Alia – The Royal Airlines Plc (Royal Jordanian) v. Tiulei Hagalil Transport (1987) Ltd., XL Y.B. Com. Arb. 444 paras 44 et seq. (2015). 81 Concurring Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 80. Cf. van den Berg, NYC, p. 59, proposing to apply Article I by way of analogy which, however, only causes rather than prevents the violation of Article II (it is for the very reason that Article I applies analogously that a national law cannot restrict the scope determined therewith). See also Born, International Commercial Arbitration, pp. 332 et seq.; Poudret/Besson, Comparative Arbitration, para. 490. More liberal Report of the Secretary-General: study on the application and interpretation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/168, para. 18 (selection often made by the legislator). 82 Switzerland: BG, Digest of CAS Awards I 1986–1998, pp. 585, 588; BG, 26(2) ASA Bull. 329, 332 (2008); Czernich, Kurzkommentar, Art. II para. 6; Denkschrift der Bundesregierung, BT-Drucks. III/2160, p. 24; Gentinetta, Lex fori, pp. 286 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.130; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.221; Poudret/Besson, Comparative Arbitration, para. 489; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 42; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 82; von Hülsen, Gültigkeit, p. 46; concurring Austria: OGH, JBl 1974, 629 = I Y.B. Com. Arb. 183 (1976); France: Cass., Rev. arb. 1990, 134 et seq. = XV Y.B. Com. Arb. 447, 448 para. 3 (1990); CA Versailles, Rev. arb. 1991, 291 = XVII Y.B. Com. Arb. 488 (1992); Italy: Tribunale di Milano, XVII Y.B. Com. Arb. 539, 540 para. 1 (1992); with similar conclusion Switzerland: BG, BGE 110 II 54 = XI Y.B. Com. Arb. 532, 533 paras 1 et seq. (1986). 83 Van den Berg, NYC, p. 61; see also Tsakiri, 36(2) ASA Bull. 364, 371 (2018).

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arbitration agreements. This is not a sensible effect for a convention on foreign arbitral awards that limits its ambit in Article I to non-domestic awards.84 This argument, in turn, is countered by the proposal to apply Article II in the State in 30 which the award will be rendered only if the arbitration agreement entails some kind of international element.85 Such international element should be given if at least one of the parties is a foreign national or the underlying transaction is international.86 It is true that such limitation does away with the objection of a fully absorbed competence for purely domestic agreements (Õ para. 29). It may also be desirable not to exclude the situs State from global protection of arbitration agreements. The Convention, however, does not give any grounds for such an interpretation. On the contrary, party nationality and the internationality of the underlying transaction are irrelevant under Article I (Õ para. 27, Õ Art. I para. 134).87 The international character of an arbitral award being made a decisive criterion had been suggested by the ICC draft but has not been adopted as a relevant notion by the New York Convention. No argument can be made that international arbitration agreements were to be recognized under the Geneva Protocol (Õ Annex V 1) and that the 1958 Conference only intended to expand and improve the Geneva Protocol’s provisions on arbitration agreements.88 The New York Convention entirely replaced the Geneva Protocol (Article VII(2)). It did not just implement a more recognition-friendly regime, as can be seen in its additional requirement of written form (Õ para. 5). Even if domestic protection of international agreements could be established under the Convention, the criteria for such internationality would be necessarily uncertain in light of the different set of criteria employed by Article I. Finally, the risk that an arbitration agreement is not recognized even though a later award based on it could be enforceable abroad (Õ para. 29) is not a compelling argument either. If the arbitration agreement is invalid under domestic law, a subsequent award is likely to be subjected to setting-aside proceedings in its country of origin. Article V(1)(e) will then regulate the award’s enforceability abroad. According to another proposal, an arbitration agreement remains within the scope of 31 Article II even if the place of arbitration is later moved.89 Freezing the qualifications necessary for Convention protection in such a manner, however, is not laid out in the Convention: if the Convention’s protection is maintained in case of an inbound movement of the place of arbitration, the same would need to apply to an outbound movement. Recognition of an arbitration agreement falling under the terms of Article I cannot, however, be denied (Õ para. 26) even if the agreement did not enjoy the Convention’s protection earlier. Although Article II’s ambit does not include “domestic” arbitration agreements, each 32 Contracting State is free to voluntarily extend the Convention’s scope of application in its national law.90 Article II then applies by virtue of the State’s domestic law, not by virtue of international law. 84

Cf. van den Berg, NYC, p. 63. Austria: OGH, JBl 1974, 629 = I Y.B. Com. Arb. 183 (1976); India: Gas Authority of India, Ltd. v. SPIE-CAPAG, S.A., XXIII Y.B. Com. Arb. 688, 698 et seq. paras 27 et seq. (1998); see also Born, International Commercial Arbitration, p. 319; Czernich, Kurzkommentar, Art. II para. 7; van den Berg, NYC, pp. 63 et seq. 86 Born, International Commercial Arbitration, p. 320; van den Berg, NYC, p. 71. 87 See also Poudret/Besson, Comparative Arbitration, para. 490. 88 In that sense Born, International Commercial Arbitration, p. 320 with n. 519. 89 Schlosser, in: Stein/Jonas (eds), ZPO, 21st ed., 1994, before sect. 1044 para. 23. 90 As an example, see section 206 cl. 1 of the US Federal Arbitration Act. See also Poudret/Besson, Comparative Arbitration, para. 490. Concurring Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 82. 85

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c) Nationality of the Subsequent Award Not yet Determined In the most difficult case, the nationality of a future award based on the arbitration agreement cannot yet be determined, i.e. the arbitration agreement does not allow one to conclude as to whether or not an award rendered pursuant to it will be made in the territory of a State other than the forum State (Article I(1)(1), Õ Art. I paras 94 et seq.) or whether or not the forum State will not consider the award as domestic (Article I(1)(2), Õ Art. I paras 114 et seq.). Under such circumstances, using the criteria of Article I(1) by way of analogy fails by definition. 34 Since the Convention only provides for the applicability test under Article I(1) and such test fails if the nationality of a future award is indeterminable, one needs to resort to second-best criteria. Some propose some kind of international element – foreign nationality of at least one of the parties, trans-border transaction etc. –,91 but these criteria are generally without relevance under the Convention (Õ para. 27, Õ para. 30, Õ Art. I para. 134). They should therefore not be invoked directly.92 35 The scopes of Article II and Articles III et seq. need to be harmonized to the greatest extent. In terms of consistency, the risk of recognizing an arbitration agreement although a subsequent award would be not protected by the Convention is the lesser evil than vice versa. Recognition of arbitration agreements in borderline cases is the more arbitration-friendly approach and thus in line with the general aim of the Convention to increase effectiveness of arbitration.93 It follows from these considerations that Article II needs to be applied if a subsequent award will possibly fall under the scope of the Convention.94 This will usually be the case if the agreement embraces some sort of international element (Õ para. 34),95 but also covers a greater range of factual situations. In the end, only arbitration agreements without any likelihood of a subsequent award protected by the Convention will not be available for recognition (assumption of applicability). 33

2. Reservations Under Article I(3) 36

Harmonizing the ambits of Article II and Articles III et seq. requires not only resorting to the territorial criteria under Article I(1), but also to the reservations under Article I(3). This result, which is hardly ever objected to,96 is correct for two reasons: 91 Austria: OGH, JBl 1974, 629 = I Y.B. Com. Arb. 183 (1976); India: Gas Authority of India, Ltd. v. SPIE-CAPAG, S.A., XXIII Y.B. Com. Arb. 688, 698 paras 27 et seq. (1998); Italy: Tribunale di Milano, XVII Y.B. Com. Arb. 539, 540 para. 2 (1992); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.218 et seq.; Tsakiri, 36(2) ASA Bull. 364, 373 (2018); van den Berg, NYC, pp. 69 et seq.; van den Berg, XXVIII Y.B. Com. Arb. 562, 606 (2003). 92 Poudret/Besson, Comparative Arbitration, para. 490. 93 Cf. for this aim the Final Act of the Conference, 330 U.N.T.S. 4, 10 (1959), first recital. 94 Germany: BGH, NJW-RR 2011, 548, 549 para. 25; BGH, NJW-RR 2011, 1350, 1352 para. 29; OLG Hamm, IPRspr. 1994, No. 185, 416, 417 = XXII Y.B. Com. Arb. 707, 708 para. 2 (1997); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 6; Czernich, Kurzkommentar, Art. II para. 12; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 42 para. 10; Wackenhuth, ZZP 99 (1986), 445, 448; see also Poudret/Besson, Comparative Arbitration, para. 490 (“not excluded”); for likeliness: Switzerland: BG, BGE 122 III 139, 141 et seq.; Epping, Schiedsvereinbarung, pp. 20 et seq.; Hausmann, in: Reithmann/ Martiny (eds), Internationales Vertragsrecht, para. 8.222. 95 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.128. 96 Affirmative US: Andros Compania Maritima S.A. v. André & Cie., S.A., III Y.B. Com. Arb. 293, 294 (1978) (S.D.N.Y. 1977); Ledee v. Ceramiche Ragno, VIII Y.B. Com. Arb. 416, 417 para. 2 (1983) (D.P.R. 1981); Ledee v. Ceramiche Ragno, 684 F.2d 184, 187 (1st Cir. 1982) = IX Y.B. Com. Arb. 471, 473 (1984); Czernich, Kurzkommentar, Art. II para. 8; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.131; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 42; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 83; Tsakiri, 36(2) ASA Bull. 364, 370 (2018); van den Berg, NYC, p. 60; see also US: Nat’l Iranian Oil Co. v. Ashland Oil,

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first, not applying Article I(3) would bring about unsolicited inconsistencies with the scope of application for arbitral awards (Õ para. 24). Second, the actual lack of harmonization with Article I(3) was only caused by Article II’s last-minute inclusion in the Convention (Õ para. 23). The report of the Working Party had explicitly linked the ambit of the proposed additional protocol on the validity of arbitration agreements with the respective final formulation of the Convention.97 The travaux préparatoires contain no indication that the re-inclusion of such provision in the body of the Convention should dissolve that link. a) Reservation of Reciprocity If the forum State has declared the reservation of reciprocity under Article I(3)(1), an 37 arbitration agreement can – by way of analogous application of Article I(3)(1) – be recognized under Article II only if a subsequent award will be made in the territory of another Contracting State.98 This is easy to specify if the State in the territory of which the award will be made is already determined. If the nationality of a future award cannot be assessed yet, an arbitration-friendly approach demands the application of Article II as long as the subsequent award will possibly be rendered in another Contracting State (assumption of applicability, Õ para. 35).99 b) Reservation of Commercial Matters The commercial reservation under Article I(3)(2) also applies to the recognition of 38 arbitration agreements under Article II.100 Contrary to the reciprocity reservation, which only applies by way of analogy, Article I(3)(2) is not restricted to awards and therefore directly applicable.101 If the forum State has declared the commercial reservation, its courts can recognize an arbitration agreement only if the legal relationship between the parties is considered as commercial under the national law of the forum State.102

II. Recognition of Arbitration Agreements as a Preliminary Issue (Post-Award Phase) No applicability issue arises in the post-award phase, i.e. if the recognition and 39 enforcement of an award already rendered is at stake and the validity of an arbitration Inc., 817 F.2d 326, 335 (5th Cir. 1987) = XIII Y.B. Com. Arb. 591, 602 para. 21 (1988); dissenting (without reflecting the state of discussion) M. R. P. Paulsson, 2(1) BCDR Int’l Arb. Rev. 117, 124 (2015). 97 E/CONF.26/L.52, p. 1, asterisk footnote (Õ Annex IV 1). 98 Cf. US: Ledee v. Ceramiche Ragno, 684 F.2d 184, 185 et seq. (1st Cir. 1982) = IX Y.B. Com. Arb. 471, 473 para. 3 (1984); Nat’l Iranian Oil Co. v. Ashland Oil, Inc., 817 F.2d 326, 335 (5th Cir. 1987) = XIII Y.B. Com. Arb. 591, 602 para. 21 (1988); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.132; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.224; Nolting, IPRax 1987, 349, 350 et seq.; Poudret/Besson, Comparative Arbitration, para. 489; van den Berg, NYC, p. 60; dissenting US: Fuller Co. v. Compagnie des Bauxites de Guinee, 421 F. Supp. 938, 941 n. 3 (W.D. Pa. 1976); Born, International Commercial Arbitration, p. 344; von Hülsen, Gültigkeit, pp. 47 et seq. 99 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.132; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.224; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 79; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 83. 100 US: Sumitomo Corp. v. Oshima Shipbuilding Co., 477 F. Supp. 737, 741 et seq. (S.D.N.Y. 1979) = VI Y.B. Com. Arb. 245, 246 para. 2 (1981); Bertheau, New Yorker Abkommen, p. 29; Nolting, IPRax 1987, 349, 351; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 79. 101 UNCITRAL Secretariat, Guide, Art. II para. 3; for application by way of analogy Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.225. 102 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.133; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.225.

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agreement is to be examined as a preliminary question within Article V(1)(a) or other grounds under Article V. In such cases, the recognition and enforcement of the award is governed by the Convention if the prerequisites set out in its Article I are fulfilled.103

E. Recognition of Arbitration Agreements (Article II(1)) 40

Article II(1) presupposes an arbitration agreement (Õ paras 41 et seq.) meeting a number of additional prerequisites for recognition, such as form requirements which would serve as conditions for the agreement’s validity under national law (Õ paras 72 et seq.).

I. Arbitration Agreement 41

Article II’s basic requirement is an arbitration agreement. The provision sets out a relatively low, easy-to-satisfy standard and thus covers a broad scope of agreements.

1. Agreement of the Parties a) Law Governing the Agreement Conclusion and Its Scope 42 aa) Governing Law. The conclusion of the party agreement is governed by the same

law as its validity (for details, Õ paras 227 et seq. and Õ paras 164 et seq.). In short, the uniform conflict of law rule of Article V(1)(a) is to be applied mutatis mutandis to ensure a coherent standard during all stages of the arbitration. Thus, in the first instance the choice of law prevails, assuming there is a valid agreement on such choice of law under the law chosen.104 In the second instance, if the parties refrained from choosing a law, the law of the country where the award was made applies. If that country cannot yet be determined, in particular if the agreement does not indicate a place of arbitration, the conflict of law rules of the lex fori, i.e. of the court before which recognition of the arbitration agreement is sought, apply (Õ para. 235). This result is in accordance with Article VI(2)(1) of the European Convention. The law governing the conclusion of an arbitration agreement applies even if no arbitration agreement has been concluded under that law (Õ para. 68).

43

bb) Scope. (1) Conclusion and Interpretation of the Arbitration Agreement. The law governing the conclusion of the agreement encompasses the requirements for party consent,105 including interpretation of the parties’ declarations,106 failures of 103 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 5; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.124; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.219; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 43a. 104 Cf. Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.208; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.239 et seq.; see as an example Article 10(1) of the Rome I Regulation (which does not, however, apply to arbitration agreements according to its Article 1(2)(e)). 105 Germany: KG, KGR 1996, 68, 70; Bertheau, New Yorker Abkommen, p. 36; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.212; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.266; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 72; van den Berg, NYC, pp. 290 et seq. 106 Germany: KG, KGR 1996, 68, 70; India: National Thermal Power Corp. v. The Singer Co., XVIII Y.B. Com. Arb. 403, 406 para. 8 (1993); Geimer, IZPR, para. 3806; Haas/Kahlert, in: Weigand/

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intent,107 inclusion of arbitration agreements in general terms and conditions (Õ paras 132 et seq.) and contract conclusion in a digital environment108. The law applicable to the arbitration agreement (Õ para. 42) likewise governs its interpretation as to its factual scope (for details, Õ para. 261). Another factor controlled by the law governing the agreement conclusion (Õ para. 42) 44 is the identity of the parties bound by such agreement. While in the standard cases doubts will seldom arise in practice, the governing law needs to be consulted e.g. for third party beneficiaries (Õ paras 257 et seq.).109 Although a divergent view has been taken for nonsignatories (Õ paras 251 et seq.),110 there is no reason to exclude their commitment under the arbitration agreement from the law governing the arbitration agreement.111 This law also determines whether an arbitration clause in a bill of lading binds its holder.112 The law under which the contract was concluded does not govern the power of 45 attorney in case a proxy concluded the agreement. The law applicable to this issue is determined by the conflict of law rules of the forum State, i.e. of the country in which recognition of the arbitration agreement is sought.113 For the law governing the form of a power of attorney, Õ para. 156. The law to which the parties have subjected the arbitration agreement or, failing any 46 indication thereon, the law of the country where the award was made (Õ paras 227 et seq.) likewise does not extend to the capacity to resort to arbitration. It is rather governed by the law applicable to the respective party as can be drawn from Article V(1)(a) by way of analogy.114 In this respect, the Convention contains a uniform conflict of law rule.115 (2) Constituent Elements of the Arbitration Agreement. The scope of the regime 47 governing the conclusion of an arbitration agreement is limited to the constituent elements of such agreement (Õ paras 58 et seq.).116 In contrast, contractual agreements Baumann (eds), Practitioner’s Handbook, para. 21.217; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 57. 107 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.266. 108 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 153 et seq. 109 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.213. 110 In favor of the lex fori’s conflict of law rules: Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.240; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 85; van den Berg, XIX Y.B. Com. Arb. 475, 493 (1994). 111 Germany: BGH, SchiedsVZ 2014, 151, 152 et seq. paras 20 et seq. = XXXIX Y.B. Com. Arb. 401 paras 9 et seq. (2014) (at least if the non-signatory has concluded the arbitration agreement as an agent for one of the parties); BGH, MDR 2019, 631, 632 para. 11 = BeckRS 2018, 40831 (at least if the nonsignatory has the right to choose between litigation and arbitration); OLG Düsseldorf, RIW 1996, 239; ICCA, Guide, p. 60; US: Haasbroek v. Princess Cruise Lines, Ltd., XLIII Y.B. Com. Arb. 696 para. 29 (2018) (S.D. Fla. 2017). 112 Goutal, Rev. arb. 1996, 605, 606 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.213; see also UK: Federal Bulk Carriers, Inc. v. C. Itoh & Co. Ltd., 1989 WL 649805, p. 3. 113 Germany: OLG Celle, SchiedsVZ 2004, 165, 167 = XXX Y.B. Com. Arb. 528, 530 et seq. paras 5 et seq. (2005); OLG Hamburg, IPRspr. 1990, No. 237, 513, 517 = XV Y.B. Com. Arb. 455, 461 para. 11 (1990); see also Italy: Cass., sez. un., X Y.B. Com. Arb. 464, 465 paras 3 et seq. (1985); CA Napoli, VIII Y.B. Com. Arb. 380 paras 1 et seq. (1983); Geimer, IZPR, para. 3792; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.239; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.266; see also Germany: LG Hamburg, RIW 1978, 124, 125 = III Y.B. Com. Arb. 274, 275 (1978); Walder, in: Forstmoser et al. (eds), Festschrift Keller, pp. 677, 681. 114 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.200; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 77; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 56; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 126. 115 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.200. 116 Austria: OGH, IPRax 1989, 302, 303 = XV Y.B. Com. Arb. 367, 368 paras 3 et seq. (1990); Heller, IPRax 1989, 315, 316.

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on procedural issues like the place of the arbitration, the language of the proceedings or the number of arbitrators are governed by the law of the country where the arbitration takes place, as can be inferred from Article V(1)(d).117 The law governing the interpretation of the arbitration agreement (Õ para. 43) also plays a role in determining whether the constituent elements of such agreement are met:118 while these criteria form part of the Convention’s uniform substantive law provisions and are subject to autonomous interpretation (Õ para. 58, Õ para. 68), the law governing the interpretation of the arbitration agreement is called upon to determine whether these criteria are met. This is of practical importance if a contract contains both a choice of forum clause and an arbitration clause. It is upon the law governing the arbitration clause to designate by way of interpretation whether the choice of forum clause or the arbitration clause prevails.119 48 Both laws interact if the arbitral tribunal cannot be constituted as provided for in the arbitration agreement.120 Examples are the designation by name of an arbitrator who has died in the meantime or who is unwilling or unable to assume the arbitrator’s office, if the agreed upon arbitral institution does not exist121 or if a non-existing tribunal of second instance has been stipulated122. In such cases the law governing the agreement’s conclusion (Õ para. 42) determines the arbitration agreement’s interpretation. Initially, the first step must be to determine whether the arbitration agreement can be construed in a way that allows the tribunal’s constitution (e.g. by finding that the parties agreed on an existing institution by way of supplementary interpretation123) under that law. If no such interpretation is possible, the procedural impacts of such agreement need to be determined in a second step under the law governing the proceedings (Article V(1)(d)). 49

(3) Remedy for Defective Arbitration Agreements in the Course of the Proceedings. If the counterparty fails to object to arbitral proceedings initiated on the basis of a defective arbitration agreement, such conduct may constitute the conclusion of a new arbitration agreement (Õ para. 50), it may cure the defective agreement (Õ para. 51) or reliance on the defect may be precluded (Õ paras 52 et seq.). Although the effects may be similar, the categories differ in their prerequisites and legal consequences. They therefore need to be carefully distinguished.

117 Geimer, IZPR, para. 3805; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.209; van den Berg, NYC, pp. 289 et seq. 118 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.217. 119 Cf. UK: Paul Smith Ltd. v. H & S International Holdings Co., XIX Y.B. Com. Arb. 725, 726 paras 2 et seq. (1994); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.217; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.201; for the substantive issue, see Brekoulakis, (2007) 24 J. Int. Arb. 341. 120 For these situations, see Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.217. 121 See, e.g., Germany: BGH, BGHZ 125, 7, 12 et seq. = NJW 1994, 1008, 1009 et seq. 122 Austria: OGH, IPRax 1989, 302 = XV Y.B. Com. Arb. 367 (1990). 123 See, e.g., France: TGI Paris, Rev. arb. 1990, 521, 522; Germany: BGH, NJW 2011, 2977, 2978 para. 2; KG, BB 2000, Beil. 8, pp. 13, 14 et seq. (“German Central Chamber of Commerce”) = XXVI Y.B. Com. Arb. 328 (2001) = CLOUT Case No. 373; OLG Dresden, OLG-NL 1995, 63, 64 = XXII Y.B. Com. Arb. 266, 267 et seq. paras 2 et seq. (1997); US: Tennessee Imps., Inc. v. Filippi, 745 F. Supp. 1314, 1326 (M.D. Tenn. 1990) = XVII Y.B. Com. Arb. 620, 632 paras 24 et seq. (1992); Bulgarian Chamber of Commerce and Industry, Arbitration Court: Bulgarian sport organisation v. Greek sport organization (Case No. 151/ 1984), XV Y.B. Com. Arb. 63, 64 (1990); see also Schiedsgericht des Deutschen Kaffeeverbands an der Handelskammer Hamburg: Panamanian buyer v. Papua New Guinean seller, XIX Y.B. Com. Arb. 48 et seq. para. 1 (1994).

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(a) Conclusion of a New Arbitration Agreement. Actually conducting arbitration 50 on the basis of a defective arbitration agreement can imply the conclusion of a new arbitration agreement. Whether it in fact does depends on the prerequisites of the law governing the arbitration agreement (Õ para. 42).124 Usually that law will require at least implied mutual consent which, in turn, requires that all parties have the will to conduct the arbitration regardless of the existing defective arbitration agreement.125 If a new arbitration agreement has been concluded under these rules, Article II’s “in writing” requirement (Õ paras 73 et seq.) must be met to gain protection under this provision126 if Article VII does not apply (Õ paras 177 et seq.). (b) Cure of Deficiencies. Under some domestic arbitration laws, the failure to object 51 to the defective arbitration agreement in due course cures such agreement, at least with regard to certain deficiencies.127 Such a cure remedies the deficiency as such, i.e. the lack of conformity is deemed to be eliminated. As opposed to the conclusion of a new agreement (Õ para. 50), the curing effect requires neither knowledge of the agreement’s deficiencies nor the will to conclude a new agreement.128 Such cure under domestic law may play a role as a more favorable law within Article VII (Õ paras 177 et seq.). While it cures the invalidity of form under national law, it does not form part of Article II’s uniform law provisions that apply regardless of the law governing the arbitration agreement.129 A failure to object will in particular not cure a lack of form under Article II (Õ para. 157). (c) Preclusion and Similar Procedural Means. It is common that a party having 52 acted specifically with regard to the arbitration agreement cannot later rely on its deficiencies. National procedural laws contain legal concepts like preclusion, estoppel, good faith, etc. which differ as to their respective prerequisites. It is a matter of dispute whether Article II excludes or allows application of such concepts130 and, in case they are allowed, whether the Convention contains a uniform standard or leaves room for the lex fori’s standard.131 This question is discussed in detail in the context of recognition and enforcement of arbitral awards (Õ Art. V paras 47 et seq.). The most reasonable view distinguishes between preclusion based on contradictory 53 behavior and that based on grounds of procedural efficiency. The prohibition of 124 Germany: KG, KGR 1996, 68, 70; Switzerland: BG, BGE 111 Ib 253 = XII Y.B. Com. Arb. 511, 513 et seq. paras 7 et seq. (1987); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.242; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 141. 125 See Germany: KG, KGR 1996, 68, 70; OLG Hamburg, NJW-RR 1999, 1738, 1739 = XXV Y.B. Com. Arb. 714, 715 para. 2 (2000); K. Schmidt, in: Habscheid/Schwab (eds), Festschrift Nagel, pp. 373, 375 et seq.; Wackenhuth, KTS 1985, 425, 430 et seq. 126 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.242; Solomon, in: Schmidt-Kessel (ed.), German National Reports, pp. 55, 67. 127 See, e.g., section 1031(6) of the German Code of Civil Procedure (regarding non-compliance with form requirements); for the equivalent provision under Polish law see Germany: OLG München, SchiedsVZ 2013, 62, 64 = XLI Y.B. Com. Arb. 476 para. 22 (2016). 128 Germany: BGH, BGHZ 48, 35, 45 = NJW 1967, 2057, 2059; KG, KGR 1996, 68, 70. 129 Cf. Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.244; apparently dissenting Germany: OLG München, SchiedsVZ 2013, 62, 64 = XLI Y.B. Com. Arb. 476 paras 20 et seq. (2016). 130 Pro exclusion: Germany: OLG Frankfurt, IPRspr. 2006, No. 212, 477, 478 = XXXII Y.B. Com. Arb. 351, 353 para. 3 (2007); Italy: Cass., sez. un., XX Y.B. Com. Arb. 739, 741 para. 4 (1995); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.244; Klein, 13(2) ASA Bull. 132, 137 et seq. (1995); pro allowance: US: Exportkhleb v. Maistros Corp., XVIII Y.B. Com. Arb. 550, 553 et seq. para. 7 (1993) (S.D.N.Y. 1992); Overseas Cosmos, Inc. v. NR Vessel Corp., 1997 WL 757041 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1096, 1098 paras 6 et seq. (1998). 131 Cf. van den Berg, NYC, pp. 184 et seq.

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contradictory behavior (venire contra factum proprium) as a generally recognized subcategory of good faith is directly enshrined in the Convention (Õ Art. V para. 48).132 A party acts in a contradictory manner for example if it had previously relied on the arbitration agreement’s validity and later contests this very validity. Another example is the party now contesting the arbitration agreement having previously assured the other party that it would not do so. The Convention’s prerequisites for contradictory behavior are to be determined by way of autonomous interpretation (for details, Õ Art. V paras 48 et seq.). If the arbitration agreement complies with the form requirements under the applicable lex arbitri, a party cannot contest the arbitration agreement’s validity during the arbitral proceedings (Õ para. 181). Its participation in the arbitral proceedings therefore does not amount to reliance on the arbitration agreement’s validity. Such party consequently does not act contradictorily if it invokes Article II’s more demanding form requirements for recognition.133 54 Factual situations which do not meet the venire contra requirements can lead to preclusion under the recognition court’s lex fori (Õ Art. V paras 49 et seq.).134 In most instances, such preclusion will protect procedural efficiency. Standard examples are provisions like Article 16(2) of the Model Law, according to which an objection against the tribunal’s jurisdiction must be raised within a certain timeframe. Missing this deadline usually results in the final loss of the respective objection,135 regardless of whether that party is contradicting its own behavior. It is ultimately the recognition court’s lex fori which decides with which objections and under which prerequisites a party is precluded (cf. Article III cl. 1).136 Waiver will often137 but – as Article 16(2) of the Model Law shows – not always require that the party knew or could have known about the defect. The lex fori, however, will often build on the remedies provided by the lex arbitri, particularly if they are time-bound (like Article 16(2) of the Model Law). 132 Germany: BGH, SchiedsVZ 2008, 196, 197 para. 12; BayObLG, XXX Y.B. Com. Arb. 568, 572 para. 5 (2005); KG, SchiedsVZ 2013, 112, 117 = XXXVIII Y.B. Com. Arb. 384 para. 27 (2013); OLG Hamburg, IV Y.B. Com. Arb. 266, 267 para. 2 (1979); OLG Hamm, SchiedsVZ 2013, 182, 184; OLG Schleswig, IPRspr. 2000, No. 185, 409, 412 = XXXI Y.B. Com. Arb. 652, 657 para. 10 (2006); OLG Oldenburg, Feb. 1, 2005, 9 SchH 03/04 (unreported), available at http://www.disarb.org (last visited Apr. 29, 2019); Greece: CA Athens, XIV Y.B. Com. Arb. 638 paras 1 et seq. (1989); US: Shaheen Natural Res. Co. v. Sonatrach, X Y.B. Com. Arb. 540, 542 et seq. paras 4 et seq. (1985) (S.D.N.Y. 1983); Transrol Navegacao v. Redirekommanditselskaber Merc Scandia XXIX, XVIII Y.B. Com. Arb. 499, 503 et seq. paras 12 et seq. (1993) (S.D.N.Y. 1991); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 21; Haas, IPRax 1993, 382, 384; Gusy, (2002) 19 J. Int. Arb. 363, 371; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.245; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.322; Kröll, ZZP 117 (2004), 453, 483; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 10; van den Berg, NYC, p. 185; Voit, in: Musielak/Voit (eds), ZPO, sect. 1031 para. 18; Wackenhuth, RIW 1985, 568, 569; see also Germany: BayObLG, NJW-RR 2003, 719, 720 = XXIX Y.B. Com. Arb. 761, 766 para. 10 (2004); Switzerland: BG, BGE 121 III 38, 45 = XXI Y.B. Com. Arb. 690, 697 para. 13 (1996). 133 Apparently dissenting OLG Hamm, SchiedsVZ 2013, 182, 184. 134 Apparently dissenting Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.244; in favor of the law governing the arbitration agreement US: Haasbroek v. Princess Cruise Lines, Ltd., XLIII Y.B. Com. Arb. 696 para. 31 (2018) (S.D. Fla. 2017). 135 Cf. Voit, in: Musielak/Voit (eds), ZPO, sect. 1040 para. 13. 136 Apparently dissenting Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 paras 53 et seq. (lex arbitri) and Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 165 (law governing the arbitration agreement, but see also para. 107: preclusion developed as a globally uniform rule). See also OLG Düsseldorf, IPRspr. 1971, No. 161, 491, 492 = II Y.B. Com. Arb. 237 (1977) (no cure of a lack of form by appearance of a party before the tribunal; without discussion of the applicable law). In favor of a Contracting State’s obligation to give effect to the principle of estoppel which, however, has no basis in the Convention, Born, International Commercial Arbitration, p. 692. 137 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.10(a), (d) (p. 226).

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This is even more obvious if the lex arbitri already provides that a failure to act results in a loss of the right to rely on the defect (like Article 4 of the Model Law which, however, has little relevance for arbitration agreements). (4) Termination of the Arbitration Agreement. The law governing the agreement’s 55 conclusion (Õ para. 42) also governs its counterpart, i.e. the time limitation or other termination of the agreement.138 This includes whether or not the arbitration agreement can be terminated for reasons of unreasonable hardship,139 whether or not the termination of the main contract simultaneously terminates the arbitration agreement140 and whether or not an agreed deadline for filing legal action terminates the arbitration agreement’s effect.141 The only exception is where the arbitration agreement ceases to have effect for procedural reasons like missing the deadline under Article 8(1) of the Model Law.142 This issue is governed by the law containing the respective procedural provision, usually the court’s lex fori.143 b) Arbitral Clause in a Contract or Arbitration Agreement (Article II(2)) As Article II(2) clarifies, an arbitration agreement can take the shape of a clause in a 56 contract or of a separate contract. This requirement follows directly from the Convention and supersedes varying national laws. c) Non-Contractual Arbitration The Convention covers only arbitration agreements and thus excludes non-con- 57 tractual sources for arbitration from its scope.144 Generally, the applicable law (Õ para. 42) defines the consensus threshold above which an agreement is to be assumed.145 National law’s discretion in this regard should, however, be seen as limited by the Convention: “agreement” in the sense of the Convention necessarily requires some sort of consensus. The applicable national law can therefore not extend Article II’s scope to strictly unilaterally ordered arbitrations. The State in which recognition is sought is, on the other hand, free to recognize arbitration without privity. Such recognition derives directly from national law in any event and not from the Convention.146

138 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.223; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.275. 139 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.221. 140 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.223; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.275; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 91. 141 India: Gas Authority of India, Ltd. v. SPIE-CAPAG, S.A., XXIII Y.B. Com. Arb. 688, 708 et seq. paras 45 et seq. (1998); UK: Comdel Commodities Ltd. v. Siporex Trade S.A., XIV Y.B. Com. Arb. 725, 728 et seq. paras 2 et seq. (1989); US: Hanskar Shipping Co. v. Iron Ore Co. of Can., IX Y.B. Com. Arb. 465, 466 paras 1 et seq. (1984) (S.D.N.Y. 1980); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.224; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.275; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 91. 142 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.275 (incorrectly referring to Article V of the European Convention); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 91. 143 For the lex fori, see Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.275 (incorrectly referring to Article V of the European Convention); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 91. 144 Geimer, IZPR, para. 3961. 145 Dissenting (autonomous interpretation) Haas, SchiedsVZ 2011, 289, 291 with incorrect reference to Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. I para. 2. 146 Cf. Geimer, IZPR, para. 3961.

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2. Differences in Respect of a Defined Legal Relationship Article II(1) requires the parties to submit differences (Õ paras 60 et seq.) in respect of a defined legal relationship (Õ paras 65 et seq.) to arbitration. This criterion qualifies as uniform substantive law, i.e. it derives directly from the Convention, is interpreted autonomously and supersedes diverging national law.147 59 Whether an agreement enjoys recognition under Article II(1) does not depend on the scope of such arbitration agreement. Whether the agreement broadly covers any disputes within the defined legal relationship or whether it is narrowly limited to particular issues can, however, become relevant in the context of Article II(3), Article V(1)(c) and other effects of recognition (Õ paras 180 et seq.). For details on the scope of the agreement, Õ para. 261. 58

a) Differences Difference means dispute.148 There is, however, no uniform view as to the exact meaning of this term. While a (correct) view deems the difference criterion essentially meaningless,149 some common law courts have denied the existence of a difference if both the facts and the law are undisputed between the parties and the sole reason for court proceedings is to pave the way to enforcement. Consequently, these courts have refused to apply Article II(3), reasoning that state court litigation is faster and cheaper absent any dispute (including any dispute about the scope of the arbitration agreement150).151 This view leads to the paradoxical result that cases in which the arbitration agreement undisputedly covers the claim end up in litigation while an objection against the arbitration agreement’s interpretation may lead to arbitration. Even more importantly, such an interpretation of the term “difference” does not respect the express will of the parties who have agreed to exclude state court litigation and not to have the state court decide (on an ex ante basis) about the most appropriate dispute resolution mechanism. The paternalistic approach chosen by these courts is hardly compatible with party autonomy as one of the key features of international arbitration as recognized by the Convention.152 61 Article II’s wording also supports this understanding. In contrast to a referral to arbitration according to Article II(3), arbitration agreements are to be recognized under Article II(1) regardless of a specific dispute (Õ para. 59). The nature of a specific dispute can therefore not be decisive for such recognition. The issue discussed in Õ para. 60 thus only remains if the arbitration agreement itself refers to the nature of the dispute, 60

147 Austria: OGH, X Y.B. Com. Arb. 418, 419 et seq. paras 5 et seq. (1985); see also Italy: Cass., XI Y.B. Com. Arb. 519 para. 2 (1986); Czernich, Kurzkommentar, Art. II para. 3; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.136. 148 Hong Kong: Guangdong Agriculture Company Ltd. v. Conagra International (Far East) Ltd., XVIII Y.B. Com. Arb. 187, 190 para. 8 (1993) = CLOUT Case No. 41 (on Article 8 of the Model Law); van den Berg, NYC, p. 147. 149 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.138. 150 UK: Al-Naimi v. Islamic Press Agency Inc., [1999] CLC 212, 214. 151 Australia: John Francis Davies v. Peter Hodgetts, XXIII Y.B. Com. Arb. 619, 621 para. 3 (1998); UK: Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., XVIII Y.B. Com. Arb. 446, 450 et seq. paras 10 et seq. (1993); Halki Shipping Corp. v. Sopex Oils Ltd., XXIII Y.B. Com. Arb. 802, 809 et seq. paras 20 et seq. (1998); S.L. Sethia Liners Ltd. v. State Trade Corp. of India Ltd., XIV Y.B. Com. Arb. 710, 713 paras 4 et seq. (1989); Toepfer International G.m.b.H. v. Molino Boschi SRL, XXIII Y.B. Com. Arb. 774, 780 et seq. para. 11 (1998); US: Cox v. Fremont County Pub. Bldg. Auth., 415 F.2d 882, 886 (10th Cir. 1969); Richard P. Ieyoub, Attorney General ex rel. State of La. v. Am. Tobacco Co., XXIII Y.B. Com. Arb. 1068, 1070 para. 6 (1998) (W.D. La. 1997). 152 Similarly Born, International Commercial Arbitration, p. 340.

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namely in the rather hypothetical event of an arbitration agreement limiting itself to cases of undisputed facts and law. In such cases there is also no reason to deny the parties’ selection of arbitration as an equivalent alternative to state court litigation. The term “differences” actually designates the matter that can be brought before an 62 arbitral tribunal rather than before a court. However, it does not limit Article II(1)’s scope.153 Thus, the “differences” which can be submitted to arbitration are generally those capable of being brought to court. They comprise actions for affirmative relief, for a declaratory judgment and for a change of legal status or legal rights. Article II(1) allows “all or any differences” to be submitted to arbitration. It 63 acknowledges the parties’ freedom to agree on a broader or narrower scope of their arbitration agreement. The stipulation that arbitration agreements are to be recognized regardless of their scope forms part of the uniform substantive law that is to be interpreted autonomously and which prevails over deviating national law.154 Article II(1) explicitly covers differences “which have arisen or which may arise” 64 between the parties. It thereby continues the equation of arbitration agreements on current (“compromis”) and on future disputes (“clause compromissoire”) introduced by Article 1(1) of the Geneva Protocol (Õ Annex V 1). This provision forms part of the Convention’s uniform law provisions, abandoning the former reluctance of a number of countries to recognize arbitration agreements on future disputes. Under Article II(1), Contracting States must recognize arbitration agreements regardless of the time of their conclusion.155 b) Defined Legal Relationship The arbitration agreement needs to extend to differences arising out of “a defined 65 legal relationship” in order to be recognizable under Article II(1). This requirement is characterized as autonomous substantive law that is to be interpreted independently from national law regardless of whether the domestic law foresees higher or lower requirements in this regard.156 Article VII(1), however, allows the invocation of a more advantageous national enforcement regime, but only in its entirety (Õ Art. VII paras 59 et seq.). The defined legal relationship requirement aims to protect the parties. The parties are to be safeguarded from a limitless submission to arbitration, the scope of which they might not realize.157 It can be seriously questioned whether not acknowledging the parties’ contractual autonomy is the more proportionate means as compared to, e.g., a form requirement for limitless agreements.158 However, de lege lata the requirement forms part of the Convention and cannot be ignored even though it is of little practical relevance159. 153

Cf. Czernich, Kurzkommentar, Art. II para. 14. Apparently dissenting M. R. P. Paulsson, NYC in Action, p. 87 (courts will apply “their” rules of interpretation). 155 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.142; van den Berg, NYC, p. 133. 156 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.139; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.457; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 52, 55. 157 Belgium: CA Bruxelles, Aug. 29, 2018, 2016/AR/2048, XLIV Y.B. Com. Arb. ___ para. 11 (2019); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 8; Bertheau, New Yorker Abkommen, p. 28; Czernich, Kurzkommentar, Art. II para. 15; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.139; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.355. 158 Cf. Born, International Commercial Arbitration, pp. 295 et seq. 159 Belgium: CA Bruxelles, Aug. 29, 2018, 2016/AR/2048, XLIV Y.B. Com. Arb. ___ para. 10 (2019); UNCITRAL Secretariat, Guide, Art. II para. 28. 154

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Agreements are also to be recognized if the legal relationship is not defined but definable.160 The parties are adequately cautioned then. The relationship is not even definable if the agreement includes any and all future disputes between the parties.161 In most other cases a defined legal relationship can be assumed: it is sufficient if the arbitration clause is contained in a framework agreement and spans disputes arising out of the additional contracts concluded thereunder.162 Since the defined legal relationship is not limited to a defined contract, it suffices that all disputes between the parties within a given sphere are covered, e.g. all disputes related to the membership in an association, all disputes arising out the consignment of a certain commodity or all disputes related to joint stock exchange activities.163 The situation is less clear for agreements covering all disputes arising out of a defined business connection or out of any future consignments. In light of the slight need for protection (Õ para. 65) and the fact that the parties usually have a more or less defined business relationship, the better arguments militate for the recognition of such agreements.164 67 Article II(1) explicitly covers differences arising from relationships, whether contractual or not. Non-contractual relationships include tort claims (e.g. damages resulting from a collision at sea, Õ para. 14), unjust enrichment claims (e.g. resulting from a null and void contract) or negotiorum gestio (agency without authority).165 Whether a given arbitration agreement covers non-contractual claims is of relevance not for Article II(1), but rather potentially for Article V(1)(c) (Õ Art. V paras 204 et seq.). The exact scope of an arbitration agreement needs to be determined under the law governing the conclusion and interpretation of such an agreement (Õ para. 43).166 66

3. Submission to Arbitration 68

Article II(1) requires the differences to be submitted to arbitration. The parties do not need to use the term “arbitration” to obtain recognition. They need to make clear, however, that the dispute shall be finally and bindingly resolved by a private tribunal rather than by a state court.167 While the submission to arbitration forms part of the Convention’s autonomous substantive law which is to be defined and interpreted independently from any national law,168 the compliance of a given arbitration agreement with the Convention’s concept of “arbitration” needs to be examined according to the law applicable to the interpretation of the agreement (Õ paras 42 et seq.). The latter 160 Czernich, Kurzkommentar, Art. II para. 15; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.139. 161 Belgium: CA Bruxelles, Aug. 29, 2018, 2016/AR/2048, XLIV Y.B. Com. Arb. ___ paras 14 et seq. (2019); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 8. 162 Czernich, Kurzkommentar, Art. II para. 15; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.355. 163 Cf. Voit, in: Musielak/Voit (eds), ZPO, sect. 1029 para. 16 (regarding equally worded German national law). 164 But see Belgium: CA Bruxelles, Aug. 29, 2018, 2016/AR/2048, XLIV Y.B. Com. Arb. ___ para. 10 (2019) (relationship not sufficiently circumscribed by the business purpose and the legal purpose of the football associations involved as parties). 165 Australia: Hi-Fert Pty Ltd. v. Kiukiang Maritime Carriers, XXIII Y.B. Com. Arb. 606, 617 et seq. paras 29 et seq. (1998); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 8; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.140; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.355; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, paras 2.25 et seq.; van den Berg, NYC, p. 148. 166 Van den Berg, NYC, p. 150. 167 Germany: LG Heidelberg/OLG Karlsruhe, II Y.B. Com. Arb. 239 (1977); Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.141. 168 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.135, 21.141.

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holds true although that law is to be determined in accordance with Article V(1)(a), which in turn only applies if the parties have indeed agreed on arbitration: this approach is the best way to avoid an artificial splitting-up of topics which are closely related.169 For details on the differentiation between arbitration and other, non-binding dispute resolution mechanisms, Õ Art. I paras 12 et seq. Some clauses entail a right to choose between arbitration and litigation. Such clauses 69 do contain a submission to arbitration as required by Article II(1) that is contingent, however, on the respective choice.170 Once arbitration has been chosen, the arbitration agreement is perfected as both parties are bound to the arbitration and its outcome. While clauses with a right to choose qualify as arbitration agreements under Article II(1), their validity needs to be determined under the national law which governs them (Õ paras 165 et seq.).171 Other clauses assign only parts of a dispute to an arbitral tribunal while the other 70 parts are to be decided by state courts. It is doubtful whether such clauses are sensible. Legally, however, an arbitration agreement can also be tailored narrowly (Õ para. 63), at least if the matters in dispute are separable.172 Some assume that an arbitration agreement cannot split the dispute in a way that both the arbitral tribunal and the state court answer a part of the questions of law which are decisive for the dispute in their entirety.173 According to some courts and authors, interwoven matters which create the risk of conflicting decisions174 or matters where multi-party arbitration would be advisable175 also cannot be split. While such clauses may well be incapable of being performed, Article II(3) shows that this reasoning does not question the clauses’ qualification as arbitration agreements. The better arguments therefore militate for a broad understanding of Article II(1)’s submission to arbitration requirement, including clauses that cover only a part of a dispute. The validity of such arbitration agreements is to be determined under the national law governing them (Õ paras 165 et seq.).176 Time and again clauses stipulate that the parties can bring the matter to the state 71 court of first instance after the award has been rendered. Such clauses deny the final character of the arbitral award that is essential for the entire process from the outset. Such clauses therefore do not constitute a submission to arbitration as required by Article II(1). They cannot be recognized as arbitration agreements and subsequent 169 Gildeggen, Schiedsvereinbarungen in AGB, pp. 131 et seq.; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.240; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 72; see also Article 10(1) of the Rome I Regulation (which does not, however, apply to arbitration agreements according to its Article 1(2)(e)). 170 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.202; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 48. 171 Cf. (assuming an arbitration agreement) Germany: BGH, NJW 1976, 852 et seq.; BGH, BGHZ 115, 324, 325 = NJW 1992, 575, 576 = XIX Y.B. Com. Arb. 200, 202 para. 3 (1994); US: SMG Swedish Mach. Group, Inc. v. Swedish Mach. Group, Inc., XVIII Y.B. Com. Arb. 457, 458 et seq. paras 2 et seq. (1993) (N.D. Ill. 1991); Walter, JZ 1989, 590; dissenting (assuming no arbitration agreement) UK: Fowler v. Merrill Lynch Pierce Fenner and Smith, Inc., X Y.B. Com. Arb. 499, 503 para. 3 (1985). 172 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.218. 173 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.203. 174 Cf. France: CA Paris, Rev. arb. 1990, 150, 155 = XVI Y.B. Com. Arb. 540, 542 paras 3 et seq. (1991); UK: Lonrho Ltd. v. The Shell Petroleum Co. Ltd., IV Y.B. Com. Arb. 320, 322 para. 4 (1979); dissenting India: Josef Meissner GmbH & Co. v. Kanoria Chemicals & Industries, Ltd., XIII Y.B. Com. Arb. 497, 501 et seq. paras 3 et seq. (1988); Netherlands: Rechtbank Alkmaar, VIII Y.B. Com. Arb. 398, 399 (1983); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.218; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.203. 175 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.218. 176 Cf. Germany: BGH, NJW 1960, 1462; BGH, NJW-RR 2008, 659 et seq. = SchiedsVZ 2008, 40.

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decisions cannot be recognized and enforced as arbitral awards under the Convention.177 Such clauses may, however, be enforced as conciliation agreements.178

II. The Arbitration Agreement’s Recognizability 72

Not every agreement qualifying as an arbitration agreement (Õ paras 41 et seq.) is to be recognized under Article II(1). Rather, the agreement needs to be valid (Õ paras 164 et seq.), in writing (Õ paras 73 et seq.) and its subject matter capable of settlement by arbitration (Õ paras 158 et seq.). The latter two prerequisites are not simply part of the arbitration agreement’s validity (Õ para. 181). An agreement which is not in writing may well be valid and binding for the parties, though it will not be recognized according to Article II(1). While the lack of arbitrability under the law governing the arbitration agreement invalidates it (Õ paras 161 et seq.), the lack of arbitrability under the lex fori is a prerequisite for recognition beyond the agreement’s validity (Õ para. 160).

1. Agreement in Writing (Article II(1), (2)) 73

The “in writing” requirement is not only one of the most practically important, but also one of the most disputed elements of the Convention. The discussion often tends to be confusing. To provide the necessary guidance, the following discussion will start with a characterization of the “in writing” requirement (Õ paras 74 et seq.). It will continue with details on the requirement’s concept (Õ paras 91 et seq.) and conclude with some remarks on remedying the lack of form by failure to object (Õ para. 157). a) Classification of the “in writing” Requirement

74 aa) Legal Character. All considerations need to start with the law which governs the “in

writing” requirement (Õ paras 75 et seq.). As will be shown, the “in writing” requirement is of conclusive character so that it leaves room neither for form provisions under domestic law (Õ para. 76) nor for other means of proof (Õ para. 77).

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(1) Uniform Rule. The “in writing” requirement forms part of the Convention’s uniform substantive law.179 This is – apart from some older Italian decisions180 – 177 France: CA Paris, Rev. arb. 1995, 263, 267; Germany: LG Heidelberg/OLG Karlsruhe, II Y.B. Com. Arb. 239 (1977); Wolff, 26(3) ASA Bull. 626, 636 (2008); dissenting BGH, BGHZ 171, 245, 248 et seq. paras 13 et seq. = SchiedsVZ 2007, 160, 161 et seq. paras 13 et seq. (for the notion of an arbitration agreement under German law); Gaillard/Savage, Fouchard Gaillard Goldman, para. 489. 178 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.218 (mediation agreement); Wolff, ZZP 120 (2007), 371, 377. 179 Austria: OGH, XXI Y.B. Com. Arb. 521, 522 para. 4 (1996); France: CA Paris, Rev. arb. 1987, 482, 485 = XIII Y.B. Com. Arb. 466, 469 para. 15 (1988); Germany: OLG Hamm, IPRspr. 1994, No. 185, 416, 417 = XXII Y.B. Com. Arb. 707, 708 para. 2 (1997); OLG Schleswig, IPRspr. 2000, No. 185, 409, 412 = XXXI Y.B. Com. Arb. 652, 657 para. 10 (2006) (in translation omitting “substantive”); Italy: Cass., XII Y.B. Com. Arb. 497, 498 para. 1 (1987); Spain: TS, XI Y.B. Com. Arb. 531 para. 1 (1986); Switzerland: BG, BGE 110 II 54 = XI Y.B. Com. Arb. 532, 533 para. 4 (1986); BG, BGE 111 Ib 253 = XII Y.B. Com. Arb. 511 para. 2 (1987); Gaillard/Savage, Fouchard Gaillard Goldman, para. 616; Gildeggen, Schiedsvereinbarungen in AGB, pp. 45 et seq.; Haas, IPRax 1993, 382, 383; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.143; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.300; Mbaye, in: van den Berg (ed.), 40 Years of NYC, pp. 94, 96; Poudret/Cottier, 13(3) ASA Bull. 383, 387 (1995); Schlosser, Recht der Schiedsgerichtsbarkeit, para. 370; Schramm/ Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 73 et seq.; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 7; van den Berg, NYC, pp. 173 et seq.; von Hülsen, Gültigkeit, p. 53; Wackenhuth, ZZP 99 (1986), 445, 452. 180 Italy: Cass., sez. un., II Y.B. Com. Arb. 247, 248 (1977); Cass., sez. un., III Y.B. Com. Arb. 278, 279 (1978); Cass., sez. un., VI Y.B. Com. Arb. 233, 235 para. 2 (1981); CA Milano, IV Y.B. Com. Arb. 284, 286

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undisputed and can be derived from the fact that the Convention itself embraces a definition of this requirement.181 Although not extensively discussed, the “in writing” requirement’s uniform law character was noted at an early stage during the 1958 New York Conference (Õ para. 7). The uniform law character is confirmed by the distinction drawn by Article I(2)(a) of the European Convention (Õ Annex V 3) which contrasts a definition similar to that under Article II(2) of the Convention with one referring to form provisions under domestic law (Õ paras 172 et seq.).182 (2) Concluding Character of the “in writing” Requirement in Article II(1). 76 (a) Minimum and Maximum Rule. While it is widely accepted that the “in writing” requirement replaces more demanding form provisions under national law with the same purpose as the “in writing” requirement (Õ para. 75, Õ para. 166, “maximum rule”),183 it is a matter of dispute as to whether less demanding national form provisions are also replaced by Article II (“minimum rule”).184 In fact, the requirement’s classification as uniform law (Õ para. 75) already implies that form requirements are governed by Article II rather than by any national legislation.185 The wording “shall include” in Article II(2) is not decisive here.186 While it indicates the non-conclusive character of Article II(2)’s definition (Õ para. 105), it cannot alter the uniform character of Article II(1)’s “in writing” requirement. It is true that the Convention follows a recognition-friendly approach and leaves room for more favorpara. 3 (1979); CA Venezia, XII Y.B. Com. Arb. 493, 494 para. 1 (1987); abandoned by Italy: Cass., XII Y.B. Com. Arb. 497, 498 para. 4 (1987). 181 Van den Berg, NYC, p. 173. 182 Van den Berg, NYC, pp. 176 et seq. 183 France: CA Paris, Rev. arb. 1987, 482, 485 = XIII Y.B. Com. Arb. 466, 469 para. 15 (1988); Greece: Areios Pagos, XXIII Y.B. Com. Arb. 654, 656 et seq. paras 3 et seq. (1998); Italy: Cass., sez. un., VII Y.B. Com. Arb. 342, 343 et seq. (1982); Cass., X Y.B. Com. Arb. 480, 482 para. 2 (1985); Cass., sez. un., XXI Y.B. Com. Arb. 610, 611 para. 2 (1996); Spain: TS, XIII Y.B. Com. Arb. 512, 513 para. 1 (1988); Switzerland: BG, BGE 110 II 54, 57 et seq. = XI Y.B. Com. Arb. 532, 533 para. 4 (1986); BG, BGE 111 Ib 253, 255 = XII Y.B. Com. Arb. 511 para. 2 (1987); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 17; Bertheau, New Yorker Abkommen, pp. 30 et seq.; Born, International Commercial Arbitration, pp. 667 et seq.; Choi, 11(2) Asian Int’l Arb. J. 105, 113 (2015); Czernich, Kurzkommentar, Art. II para. 20; Geimer, IZPR, para. 3794; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.154; ICCA, Guide, p. 43; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.292; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 108; Strong, 48 Stan. J. Int’l L. 47, 76 (2012); Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 9; Wackenhuth, ZZP 99 (1986), 445, 452; van den Berg, NYC, p. 178. 184 Pro: Austria: OGH, JBl 1974, 629 = I Y.B. Com. Arb. 183 (1976); OGH, XXI Y.B. Com. Arb. 521, 522 para. 4 (1996); France: CA Paris, Rev. arb. 1987, 482, 486 = XIII Y.B. Com. Arb. 466, 469 para. 15 (1988); Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409, 412 = XXXI Y.B. Com. Arb. 652, 657 para. 10 (2006); Norway: CA Hålogaland, XXVII Y.B. Com. Arb. 519, 522 para. 5 (2002); Switzerland: BG, BGE 111 Ib 253 = XII Y.B. Com. Arb. 511, 512 para. 2 (1987); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.293; Lew/Mistelis/Kröll, Comparative Arbitration, para. 6‐43; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 52; van den Berg, NYC, pp. 178 et seq.; Wackenhuth, ZZP 99 (1986), 445, 452; Walter, RIW 1982, 693, 699; see also Italy: CA Milano, XVIII Y.B. Com. Arb. 415, 416 et seq. paras 3 et seq. (1993); Switzerland: BG, BGE 110 II 54 = XI Y.B. Com. Arb. 532, 533 et seq. paras 4 et seq. (1986); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.159 (tendency towards minimum rule); contra: Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 18; Bertheau, New Yorker Abkommen, pp. 31 and 36; Born, International Commercial Arbitration, pp. 670 et seq.; Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 355, 371 = (2004) 21 J. Int. Arb. 439, 448; ICCA, Guide, pp. 43 et seq.; Mezger, Rev. crit. dr. int. pr. 1962, 133, 138 et seq. (retracted in Rev. crit. dr. int. pr. 1971, 37, 60 n. 1). 185 Concurring Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 50, 52; see also Kunz, 34(4) ASA Bull. 836, 840 (2016). 186 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 50; dissenting van den Berg, NYC, p. 179.

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able national laws, but this results exclusively from Article VII, which also applies to arbitration agreements (Õ para. 178). Accepting less demanding form provisions within Article II would circumvent Article VII’s limitations, in particular its aversion to cherry-picking (Õ para. 179).187 77

(b) No Proof of Arbitration Agreement Conclusion by Other Means. Article II’s “in writing” requirement is a substantive prerequisite for the recognition of an arbitral agreement. It does not merely call for the party relying on Article II(1) to prove the arbitration agreement’s conclusion, be it by evidencing that the agreement had been concluded in writing or otherwise.188 French authors who import the French understanding of “in writing” into the Convention maintain the contrary view.189 However, it finds support neither in the Convention’s drafting history190 nor in its wording. Contrary to Article V(1), Article II does not impose an obligation to furnish proof. It rather provides a definition in Article II(2) that would be too detailed for a mere example of how to furnish proof.191 Article II likewise does not entail rules on how the agreement in writing is to be evidenced, in particular whether an agreement in writing, the original copy of which has been destroyed or lost, may be evidenced by other means. These evidentiary questions are to be determined under the recognition court’s lex fori (cf. Article III cl. 1).

78

bb) Rationale of the “in writing” Requirement. The rationale of the “in writing” requirement is being discussed relatively sparsely although understanding it is of key importance for coherent and sensible answers to particular cases. The “in writing” requirement could basically aim to provide evidence for the conclusion of the arbitration agreement between the parties and/or its contents (Õ para. 118),192 to provide a warning to the parties before they enter into an arbitration agreement193 or, lastly, to both provide evidence and a warning194. The Convention’s drafting history remains silent in this regard.

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(1) Providing Evidence. Providing evidence is a purpose Article II’s written form requirement pursues. This follows from a systematic reading with Article IV(1)(b), according to which the agreement or a certified copy thereof needs to be supplied as proof (Õ Art. IV para. 27) with the application for recognition and enforcement.195 187 Van den Berg, NYC, pp. 179 et seq.; Wackenhuth, ZZP 99 (1986), 445, 452; similarly Lew/Mistelis/ Kröll, Comparative Arbitration, para. 6‐44. 188 Van den Berg, NYC, pp. 180 et seq. 189 Bredin, JDI 1960, 1003, 1017; Robert, Rev. arb. 1958, 70, 75. 190 Van den Berg, NYC, p. 181. 191 Van den Berg, NYC, p. 181. 192 Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 456 para. 9 (2013); Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 para. 10 (2013) = CLOUT Case No. 1417; Herrmann, in: van den Berg (ed.), International Arbitration in a Changing World, pp. 41, 44; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 168; Reiner, in: van den Berg (ed.), 40 Years of NYC, pp. 82, 84 et seq. 193 Alvarez, in: van den Berg (ed.), 40 Years of NYC, pp. 67, 73; van den Berg, NYC, p. 173 (purpose is to ensure that a party is aware that he is agreeing to arbitration). 194 Switzerland: BG, BGE 110 II 54, 58 et seq. = XI Y.B. Com. Arb. 532, 534 para. 10 (1986); HG Zürich, XVIII Y.B. Com. Arb. 442, 444 para. 9 (1993); Born, International Commercial Arbitration, pp. 660 et seq.; Gildeggen, Schiedsvereinbarungen in AGB, pp. 53 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.169; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.291; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 373; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 97; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 74; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 7; Wackenhuth, ZZP 99 (1986), 445, 453 et seq.; see also Kaplan, (1996) 12 Arb. Int’l 27, 29. 195 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.169.

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Both provisions require written form. Article IV clearly does not pursue a warning rationale; it rather demands specific proof of the conclusion of the arbitration agreement. It would therefore be inconsistent to exclude the purpose to provide evidence from Article II’s form requirement. Although the legitimacy of such a specific evidence requirement is not beyond doubt, 80 it can be supported by sensible reasoning. A valid arbitration agreement forms the basis of the arbitral proceedings. If no valid arbitration agreement has been concluded, the claim must be brought to the state court. All parties have a legitimate interest in gaining clarity about the competent forum to hear the case at an early stage. A written agreement provides significantly more clarity than a (disputed) oral agreement and therefore serves a legitimate purpose. Option I Article 7(3) of the Model Law, according to which an arbitration agreement is in writing if its content is recorded in any form, confirms this reasoning. (2) Providing a Warning. No indication can be derived from the Convention’s 81 wording, drafting history196 or systematic reading that the “in writing” requirement aims to provide a warning. Such purpose can only be assumed if an arbitration agreement contains a relevant danger that justifies a warning. In fact, an arbitration agreement excludes state court jurisdiction (see Article II(3)). It therewith denies the parties access to justice before the state courts which would in many cases provide a neutral and learned decision. The arbitration agreement finally replaces this forum with arbitral proceedings that, if not properly dealt with, can be lengthy, expensive and result in an incorrect decision on substance. This is the downside of the flexibility inherent to arbitration (which, if used properly, constitutes one of its major advantages). The mere existence of such a danger, however, does not justify a form requirement. 82 The binding nature of contracts always entails a risk. That does not, however, justify the imposition of form requirements providing a warning. The danger rather needs to be relevant, i.e. sufficiently serious to justify denying the recognition of an agreement concluded by the parties within the scope of their private autonomy. Whether the danger associated with an arbitration agreement could be assessed as relevant back in 1958 is difficult to say, given that neither Article II’s wording nor its genesis entail any indications in this regard. However, a historical rationale, if it could be established, is not as such decisive for today’s understanding in any event. At least nowadays the risk associated with an arbitration agreement cannot be 83 assessed as relevant.197 While arbitration may have been a more or less uncommon means of dispute resolution in the post-war years, the particularities of which businesses involved in international trade were not familiar with, this view cannot be maintained in today’s globalized world. The law of arbitration has evolved. Thanks to the 1958 New York Convention and in particular the 1985 Model Law, national arbitration laws have become more and more standardized. This convergence includes those jurisdictions that – like Switzerland, France and the United Kingdom – refrained from adopting the Model Law. The practice of international arbitration has also become more and more predictable, as evidenced by the increasing number of best practice regulations. But not only has the risk associated with arbitration diminished, arbitration has become the 196

See van den Berg, NYC, p. 173. Cf. A/CN.9/468, para. 88 (p. 18) (Õ Annex IV 2); Born, International Commercial Arbitration, p. 661; Herrmann, in: van den Berg (ed.), International Arbitration in a Changing World, pp. 41, 44; Herrmann, (1999) 15 Arb. Int’l 211, 215; Landau, in: van den Berg (ed.), Important Contemporary Questions, pp. 19, 47; Lew/Mistelis/Kröll, Comparative Arbitration, para. 7‐9; Reiner, in: van den Berg (ed.), 40 Years of NYC, pp. 82, 85; dissenting Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 97. 197

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standard dispute resolution mechanism for cross-border disputes; it now is the rule rather than the exception. Parties nowadays are familiar with the concept of arbitration.198 They are not in need of protection against the remaining risk. As the Mexican delegation phrased it during the deliberations leading to the 2006 Recommendation, a contract involving a transaction worth a hundred million dollars may be concluded verbally, but the arbitration agreement relating to that contract must be in writing.199 There are no grounds for protecting the parties better against submission to arbitration than against the multi-million dollar obligation.200 84 This assessment is perfectly in line with recent developments in legal instruments on international arbitration. The second option of Article 7 of the 2006 Model Law fully abandons form requirements for arbitration agreements. Its first option, which maintains the “in writing” requirement, deems it sufficient if the arbitration agreement’s content is recorded in any form (Article 7(2) of the Model Law). For agreements involving electronic communication it is deemed decisive that their content is “useable for subsequent reference” (Article 7(3) of the Model Law). Both provisions are not reconcilable with the idea that arbitration involves a relevant danger that justifies a form requirement. 84a Since the “in writing” requirement has no intention to protect the parties from prematurely entering into an arbitration agreement, their individual need for protection is consequently irrelevant for the form standard set out by Article II. In particular, it is of no consequence whether the arbitration agreement has been entered into by seasoned businessmen or by people with little experience.201 Distinguishing the form standards by the individual need for protection would also be difficult to reconcile with the requirements of legal certainty, which is particularly important for form requirements.202 85

cc) Relation Between Contract Conclusion and Form. The discussion about the “in writing” requirement, which is already sufficiently complex in itself, is often overloaded with issues relating to contract conclusion.203 In fact, the conclusion of an arbitration 198 See Mexico: A/CN.9/WG.II/WP.137, Annex, para. II.1 (p. 3: arbitration is now more widely accepted than when the New York Convention and the Model Law were negotiated) (Õ Annex IV 2); A/CN.9/468, para. 88 (p. 18: it was further noted that current arbitration practice was different from what it was in 1958 in that arbitration was now widely accepted for resolution of international commercial disputes and could be regarded as usual rather than as an exception that required careful consideration by the parties before choosing something other than litigation before the courts) (Õ Annex IV 2). 199 A/CN.9/WG.II/WP.137, Annex, para. II.1 (p. 3) (Õ Annex IV 2). 200 See A/CN.9/468, para. 89 (p. 18) and para. 98 (p. 21) (Õ Annex IV 2); see also Blessing, in: van den Berg (ed.), 40 Years of NYC, pp. 168, 172 et seq.; Herrmann, in: van den Berg (ed.), International Arbitration in a Changing World, pp. 41, 46; dissenting Wegen/Wilske, IDR 2004, 77, 79. In this regard, some argue that a strict form requirement will frustrate the parties’ legitimate expectations (A/CN.9/WG. II/WP.108/Add.1, para. 8 [p. 3] [Õ Annex IV 2]; A/CN.9/WG.II/WP.137, Annex, para. II.1 [p. 3] [Õ Annex IV 2]). This aspect, however, does not seem to be the heart of the issue. If Article II imposes a strict form requirement, any party expectation to the contrary can hardly be legitimate. 201 Dissenting Switzerland: BG, BGE 110 II 54, 59 = XI Y.B. Com. Arb. 532, 535 para. 10 (1986); Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.178; Hausmann, in: Reithmann/ Martiny (eds), Internationales Vertragsrecht, para. 8.291; M. R. P. Paulsson, 2(1) BCDR Int’l Arb. Rev. 117, 132 (2015) (even establishing a “presumption of formal validity of the arbitration clause” if the parties are seasoned businessmen). 202 Cf. Czernich, Kurzkommentar, Art. II para. 22; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 109. 203 See, e.g., A/CN.9/WG.II/WP.108/Add.1, para. 12 (pp. 4 et seq.) (Õ Annex IV 2), where factual situations are outlined allegedly evidencing typical examples of form issues while cases (i) to (l) in fact relate to matters outside the form requirement (cf. A/CN.9/468, para. 95 [p. 20] [Õ Annex IV 2]; see also A/CN.9/WG.II/WP.110, para. 22 [p. 10] [Õ Annex IV 2]); for a decision mixing contract conclusion and form see Brazil: Superior Tribunal de Justiça, XXXIII Y.B. Com. Arb. 371, 376 para. 9 (2008); clearer

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agreement and its form are two separate issues.204 Only once the agreement has been concluded does its form need to be considered. That both issues are to be discussed distinct from each other is evidenced by the fact that they are governed by different laws: while either the law chosen by the parties or the law at the place of arbitration typically applies to the conclusion of the agreement (Õ para. 42), the “in writing” requirement forms part of the Convention’s uniform law which is to be interpreted autonomously (Õ para. 75). It is said that meeting the form requirement creates a strong presumption for the 86 agreement’s formation.205 This is true in the sense that an agreement will usually exist where the written form is met. This conclusion is, however, of merely factual rather than of legal nature. Whether the parties can be deemed to have consented to arbitration where a written agreement exists depends on whether such a rule exists under the applicable national law. Article II, which does not govern the contract conclusion, can consequently not create such a legal assumption. dd) Contractual Elements Requiring Written Form. According to Article II(1), it is 87 the arbitration agreement that needs to be in writing. Therefore, the constituent elements of the arbitration agreement need to meet the form requirement.206 Neither the main contract (the governing law of which needs separate determination) nor procedural agreements like on the place of arbitration, the constitution of the arbitral tribunal or the language of the proceedings (which are governed by the lex arbitri) need to be in writing under Article II. The constituent elements of the arbitration agreement are conclusively stipulated by Article II(1).207 This provision leaves no room for national law requiring other elements for an arbitration agreement. Extending the scope of an arbitration agreement that meets Article II’s form 88 requirements is an issue of practical relevance. Such extension can relate to the contract’s subject matter or term; but an entirely new contract referencing the old contract’s arbitration agreement can also be concluded. The extension obviously complies with Article II if it itself is made in writing. If it is not, a slight modification distinction in Brazil: Superior Tribunal de Justiça, XXXIII Y.B. Com. Arb. 371, 379 para. 21 (2008) (“Art. II(2) […] does not [provide an] exempt[ion] from a minimum of material proof of the contracting parties’ consent to the arbitration agreement.”). 204 See A/61/17, para. 153 (p. 26, in relation to Article 7 of the Model Law) (Õ Annex IV 2); A/CN.9/ WG.II/WP.110, para. 11 (p. 6) (Õ Annex IV 2); A/CN.9/485, para. 22 (p. 7) (Õ Annex IV 2); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 22; Born, International Commercial Arbitration, pp. 739 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.148; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 72. 205 Van den Berg, NYC, p. 177. The reverse conclusion cannot be drawn since form requirements for contracts always necessitate a contract to be concluded (dissenting M. R. P. Paulsson, NYC in Action, p. 81: meeting of minds must have a bearing on the interpretation of “in writing”). 206 Austria: OGH, IPRax 1989, 302, 303 = XV Y.B. Com. Arb. 367, 368 paras 3 et seq. (1990); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 12; Czernich, Kurzkommentar, Art. II para. 23; Epping, Schiedsvereinbarung, p. 62; Gildeggen, Schiedsvereinbarungen in AGB, p. 87; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.152; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.299; Herrmann, in: van den Berg (ed.), International Arbitration in a Changing World, pp. 41, 46; Schlosser, Recht der Schiedsgerichtsbarkeit, paras 257 et seq.; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 93; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 98; dissenting (form requirement also for procedural agreements under German law) Lachmann, Handbuch, para. 343 and Born, International Commercial Arbitration, p. 716 (same regardless of the applicable law). 207 Gildeggen, Schiedsvereinbarungen in AGB, pp. 87 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.152; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.299; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 261; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 93; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 7.

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of the parties’ rights and duties under a contract cannot call for a written confirmation of the arbitration agreement. On the other hand, an oral reference to an arbitration clause concluded in an entirely different contract does not do justice to Article II(2)’s requirement of a contract signed by the parties or contained in an exchange of documents, and to the purpose of these options in safeguarding evidence (Õ paras 79 et seq.).208 While the unlisted options under Article II(2) (Õ para. 123) pursue a less demanding purpose (Õ para. 118), the scope of the form requirement cannot depend on which alternative is employed to meet it. 89 When drawing the borderline, the extent to which the parties have originally submitted their disputes to arbitration must be taken into account. If the disputes arising out of the contract extension are of a kind similar to those that could arise out of the original contract, the contract extension does not require written form under Article II.209 However, if the parties create rights and duties that are not similar to the pre-existing ones, a new arbitration agreement is basically being concluded, which requires written form. An exception applies only if the original contract explicitly stipulates that it may be referenced in future agreements.210 Such clause already manifests the parties’ will to broaden its scope so that no extension in writing is needed. 90

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ee) Form Requirement in Different Stages of the Arbitration. Article II’s “in writing” requirement originally applies at the pre-award stage where the recognition of arbitration agreements is at stake. As can be seen from Article V(1)(a)’s explicit reference to “the agreement referred to in article II,” the “in writing” requirement likewise claims effect at the post-award stage.211 This is – with the exception of some older Italian court decisions (Õ para. 75) – undisputed. b) Details on the “in writing” Requirement Before the “in writing” requirement will be dealt with in specific situations (Õ paras 124 et seq.), the general understanding of Article II(2)’s textual requirements needs some consideration. Following its unclear initial words “an arbitral clause in a contract or an arbitration agreement” (Õ paras 92 et seq.), Article II(2) lists two options, i.e. “signed by the parties” (Õ paras 94 et seq.) and “contained in an exchange of letters 208 Seemingly dissenting Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 15; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.308; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 111; for supplementary agreements not expressly referring to the arbitration clause: Israel: Darie Engineering Ltd. v. Alstom International SAS, XXXIX Y.B. Com. Arb. 413 para. 23 (2014), overruled by Israel: Darie Engineering Ltd. v. Alstom International SAS, XXXIX Y.B. Com. Arb. 413 paras 103 et seq. (2014); Spain: TS, XXVI Y.B. Com. Arb. 858, 860 paras 7 et seq. (2001). 209 For all contract amendments Belgium: Tribunal de Commerce de Bruxelles, Rev. arb. 1995, 311, 314; Italy: Cass., sez. un., IV Y.B. Com. Arb. 286, 288 paras 3 et seq. (1979); Japan: Yokohama District Court, VIII Y.B. Com. Arb. 394, 396 para. 5 (1983); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.192; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.308; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 373; see also US: Becker Autoradio U.S.A., Inc. v. Becker Autoradiowerk GmbH, 585 F.2d 39, 44 (3d Cir. 1978) = V Y.B. Com. Arb. 272, 273 et seq. para. 2 (1980); Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 102; dissenting (arbitration clause in a contract extended by conduct requires written form) US: Roberts Irrigation Co. v. Hortau Corp., XLII Y.B. Com. Arb. 591 paras 20 et seq. (2017) (W.D. Wis. 2016); Nissan N. Am., Inc. v. Jim M’Lady Oldsmobile, Inc., 486 F.3d 989, 994 et seq. (7th Cir. 2007). 210 Belgium: Tribunal de Commerce de Bruxelles, Rev. arb. 1995, 311, 314; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.177 (more generous in para. 21.192); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.308; see also US: Becker Autoradio U.S.A., Inc. v. Becker Autoradiowerk GmbH, 585 F.2d 39, 45 et seq. (3d Cir. 1978) = V Y.B. Com. Arb. 272, 273 et seq. para. 2 (1980). 211 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.145; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.292.

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or telegrams” (Õ paras 97 et seq.). Finally, a question essential for the understanding of Article II(2) is whether the provision covers further unlisted options, which requires that it is non-exhaustive (Õ paras 103 et seq.). aa) Arbitral Clause in a Contract or Arbitration Agreement. According to Arti- 92 cle II(2)’s wording, an agreement in writing includes “an arbitral clause in a contract or an arbitration agreement.” The meaning of this phrase is clear: Article II(2) treats arbitration agreements equally, regardless of whether they form part of a contract or are separate agreements. The wording, however, is somewhat unfortunate since “arbitration agreement” is usually used as the generic term for both variations (including in Option I Article 7(1)(2) of the Model Law and in this commentary).212 The French and the Spanish versions, both equally authentic according to Article XVI(1), avoid this linguistic inaccuracy.213 Another ambiguity in Article II(2)’s wording is what needs to be “signed by the 93 parties or contained in an exchange of letters or telegrams.” The provision could be read in a way that only the “arbitration agreement” is referenced by this requirement. Although such an understanding would be covered by the wording of the English version and the provision has indeed been understood that way by some courts,214 Article II(2) cannot be read this way. It would be senseless to establish demanding “in writing” requirements just for the self-contained arbitration contract while leaving the form requirement for arbitration clauses (which play a predominant role in practice) basically undefined. Since the need for evidence (Õ paras 79 et seq.) is the same in all cases, Article II(2)’s definitions apply to all arbitration agreements.215 This understanding is also reflected in Article II(2)’s equally authentic French and Spanish versions, which employ the plural for “signed.”216 bb) Signed by the Parties (Article II(2) Option 1). Article II(2)’s first option 94 requires the arbitration agreement to be signed by the parties. The purpose of this signature requirement goes beyond determining the identity of the parties and their intent (which it shares with option 2) and also comprises attributing the declaration’s creation to the party with an increased degree of reliability (but Õ para. 129b).217 The 212 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.147; van den Berg, NYC, p. 190. 213 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.147; van den Berg, NYC, p. 190. 214 US: Sphere Drake Ins. v. Marine Towing, Inc., 16 F.3d 666, 669 et seq. (5th Cir. 1994) = XX Y.B. Com. Arb. 937, 941 et seq. paras 9 et seq. (1995); Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., XXIII Y.B. Com. Arb. 1029, 1031 et seq. para. 4 (1998) (S.D.N.Y. 1997); Tuca v. Ocean Freighters, Ltd., XXXI Y.B. Com. Arb. 1474, 1479 para. 15 (2006) (E.D. La. 2006); sympathizing Landau, in: van den Berg (ed.), Important Contemporary Questions, pp. 19, 70 et seq. 215 US: Bothell v. Hitachi Zosen, 97 F. Supp. 2d 1048, 1051 et seq. (W.D. Wash. 2000) = XXVI Y.B. Com. Arb. 939, 943 para. 8 (2001); Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., 186 F.3d 210, 215 et seq. (2d Cir. 1999) = XXIVa Y.B. Com. Arb. 900, 905 et seq. paras 10 et seq. (1999); Standard Bent Glass Corp. v. Glassrobots Oy, 333 F.3d 440, 449 et seq. (3d Cir. 2003) = XXIX Y.B. Com. Arb. 978, 988 paras 23 et seq. (2004); Alvarez, in: van den Berg (ed.), 40 Years of NYC, pp. 67, 72; Born, International Commercial Arbitration, pp. 678 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.144; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.300; Otto, IPRax 2003, 333, 334; van den Berg, NYC, p. 191; see also US: Freaner v. Lutteroth Valle, XXXIX Y.B. Com. Arb. 559 para. 38 (2014) (S.D. Cal. 2013) (“appears logically and grammatically correct”). 216 Landau/Moollan, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 189, 249 (also referring to the provision’s drafting history); dissenting van den Berg, NYC, pp. 192 et seq. 217 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 166. For further purposes of a signature (which, however, depend on their context and underlying rationale) and their intercultural implications see Wilske/Scheidle, 4(1) Contemp. Asia Arb. J. 37, 40 (2011).

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signatures need to be handwritten;218 a facsimile does not provide equivalent evidence and can therefore not replace a handwritten signature.219 A copy of a signature given elsewhere is obviously insufficient.220 A simple electronic signature that merely consists of the party’s name (as in standard emails or web-based declarations) does not qualify as a signature under Article II(2)’s first option,221 at least if not both the identity of the party and its intention are proven in fact (Õ para. 129b). The signature must cover the arbitration agreement. However, an arbitration clause does not need to be signed separately; signatures covering the entire contract are sufficient.222 Any other requirement would be difficult to meet in practice and could only be justified if Article II(2) pursued a warning purpose (which it does not, Õ paras 81 et seq.). It would also make little sense for Article II(2) to distinguish separate arbitration agreements from arbitral clauses in a contract if these arbitral clauses were to be signed separately just like separate arbitration agreements. A signature in an “for internal use only” section of a contract form does not cover the agreement but serves only internal purposes.223 The signature does not need to conclude the document; an arbitration agreement in an annex to a signed contract suffices if that contract references the arbitration agreement.224 95 A blank signature above which an arbitration agreement was only later included also meets Article II(2)’s form requirement.225 Whether an arbitration agreement was concluded in such cases is subject to the law governing the arbitration agreement (Õ paras 42 et seq.). The arbitration agreement needs to be signed by all parties to the dispute.226 Oral or tacit acceptance does not meet the form requirement.227 If not all of the parties to the arbitration agreement have signed it, an agreement in writing exists only between the signatories. Whether an arbitration agreement was concluded at all in these cases is to be determined under the law governing the arbitration agreement (Õ paras 42 et seq.). 218 Italy: Cass., sez. un., V Y.B. Com. Arb. 267, 268 para. 3 (1980); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 14; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.172. 219 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 14; Czernich, Kurzkommentar, Art. II para. 29; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.302; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 373; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 97; Wackenhuth, ZZP 99 (1986), 445, 453; dissenting von Hülsen, Gültigkeit, p. 54. 220 Germany: BayObLG, NJW-RR 2003, 719 = XXIX Y.B. Com. Arb. 761, 764 et seq. para. 7 (2004); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.303. 221 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 166 et seq. 222 Italy: Cass., sez. un., V Y.B. Com. Arb. 267, 268 paras 1 et seq. (1980); Cass., sez. un., XIX Y.B. Com. Arb. 694, 696 para. 4 (1994); Cass., XXII Y.B. Com. Arb. 715, 720 para. 10 (1997); Cass., sez. un., XXVI Y.B. Com. Arb. 816, 820 para. 11 (2001); Switzerland: BG, XV Y.B. Com. Arb. 509, 511 para. 3 (1990); OG Basel-Land, XXI Y.B. Com. Arb. 685, 686 para. 3 (1996); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 14; Czernich, Kurzkommentar, Art. II para. 30; Epping, Schiedsvereinbarung, p. 63; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.173; ICCA, Guide, p. 45; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.302; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 97; Schramm/Geisinger/ Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 80; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 101; van den Berg, NYC, p. 192. 223 Germany: LG Krefeld, IPRspr. 2011, No. 302, 808, 809. 224 US: Agroeng’g v. Am. Custom Serv., Inc., XXII Y.B. Com. Arb. 990, 992 para. 4 (1997) (E.D.N.Y. 1996); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.174. 225 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 14; Czernich, Kurzkommentar, Art. II para. 30; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.173; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.302; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 97. 226 Germany: BGH, NJW-RR 2011, 548, 549 para. 27; BGH, NJW-RR 2011, 1350, 1352 para. 31. 227 Germany: BayObLG, NJW-RR 2003, 719, 720 = XXIX Y.B. Com. Arb. 761, 765 para. 8 (2004); Epping, Schiedsvereinbarung, p. 65; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.301; van den Berg, NYC, p. 196; Wackenhuth, ZZP 99 (1986), 445, 464.

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The signatures do not need to be given by parties present at the same time at the 96 same place. The arbitration agreement can also be signed later or elsewhere,228 even in the course of already initiated arbitral proceedings (e.g. terms of reference establishing the tribunal’s jurisdiction).229 The law governing the arbitration agreement (Õ paras 42 et seq.) is to be consulted as to the maximum time span allowing for contract conclusion.230 Contrary to the second option, the countersigned contract does not need to be sent back to the other party in order to comply with the written form requirement.231 Contract formation here is again subject to the law governing the arbitration agreement (Õ paras 42 et seq.). If multiple copies of the agreement exist, the form requirement is met if each party only signs the copy (or copies) destined for the other party (or parties).232 These copies do not need to be sent to the other party as required by Article II(2)’s second option. cc) Contained in an Exchange of Letters or Telegrams (Article II(2) Option 2). 97 (1) Purpose. Article II(2)’s second option requires the arbitration agreement to be contained in an exchange of letters or telegrams. This alternative’s purpose was to make allowances for the then-current practices of international trade of concluding contracts by correspondence.233 (2) Exchange. The provision’s second option requires an exchange of documents. 98 Such exchange can happen between attendees as well as over long distance.234 One and the same document can be given back and forth or two different documents can be exchanged.235 An oral or tacit acceptance is never sufficient under Article II(2)’s second 228 Germany: OLG Köln, RIW 1992, 760 = XIX Y.B. Com. Arb. 856, 857 para. 4 (1994) (on Article I(2)(a) of the European Convention); Italy: Cass., sez. un., IX Y.B. Com. Arb. 429, 431 para. 4 (1984); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.173; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.302; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 97. 229 Australia: Commonwealth Development Corp. v. Austin John Montague, XXVI Y.B. Com. Arb. 744, 748 et seq. paras 12 et seq. (2001); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 21; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.302; Kröll, ZZP 117 (2004), 453, 482; Mallmann, SchiedsVZ 2004, 152, 158; Schramm/Geisinger/Pinsolle, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 80. 230 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.173 n. 539. 231 Germany: OLG Köln, EuZW 1992, 711, 712 = XIX Y.B. Com. Arb. 856, 857 para. 4 (1994) (on Article I(2)(a) of the European Convention); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 14; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.171; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.302; Schlosser, in: Stein/ Jonas (eds), ZPO, Annex to sect. 1061 para. 96. 232 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 14; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.172; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.303; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/ Otto/Port (eds), NYC, p. 80; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 101; Wackenhuth, ZZP 99 (1986), 445, 453. 233 Bülow, KTS 1959, 1, 3; Denkschrift der Bundesregierung, BT-Drucks. III/2160, p. 24; van den Berg, NYC, p. 191. During the Conference, the German representative noted that “a requirement that both parties should sign the same document […] would be at variance with the needs and usages of international trade” (E/CONF.26/SR.9, p. 3 [Õ Annex IV 1]). The representative of the Hague Conference on Private International Law “drew the attention of the Conference to the fact that it was not customary in international commerce to have documents signed by the two parties, even in very important transactions. An agreement which required a clause in writing would not meet present-day needs and would not be acceptable in international commerce.” (E/CONF.26/SR.13, p. 11 [Õ Annex IV 1]). 234 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.179; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 7. 235 Germany: LG Zweibrücken, IV Y.B. Com. Arb. 262, 263 (1979); Switzerland: OG Basel-Land, IV Y.B. Com. Arb. 309, 310 para. 3 (1979); US: Sphere Drake Ins. v. Marine Towing, Inc., XIX Y.B. Com. Arb. 792, 795 et seq. para. 13 (1994) (E.D. La. 1992); Haas/Kahlert, in: Weigand/Baumann (eds),

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option,236 even if trade usages to that effect or an ongoing business relationship between the parties exist:237 the provision requires documents materialized before delivery (letters or telegrams) to be exchanged.238 Moreover, the 1958 Conference rejected the Netherlands’ proposal to include a confirmation in writing by one of the parties without contestation by the other party.239 For the very same reason, a written confirmation of an oral agreement does not meet the form requirements.240 In these cases, however, the written form can still be completed later (regardless of the agreement’s validity, which is governed by its respective law);241 Article II(2)’s second option does not require the contract to be concluded by exchange of letters or telegrams, but rather (only) that it be contained in such exchange. This has been accepted by the courts in cases where the party which had not exchanged a document later sends an invoice referring to the first document242 or relies on the arbitration agreement’s effect in state court proceedings.243 Practitioner’s Handbook, para. 21.180; Poudret/Besson, Comparative Arbitration, para. 189; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 100; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 81; dissenting Poudret/Cottier, 13(3) ASA Bull. 383, 390 et seq. (1995). 236 Germany: LG Bremen, IPRspr. 1964/65, No. 284, 808, 809 = II Y.B. Com. Arb. 233 (1977); Italy: Cass., sez. un., XX Y.B. Com. Arb. 739, 740 paras 3 et seq. (1995); CA Napoli, I Y.B. Com. Arb. 193 (1976); Spain: TS, XXVII Y.B. Com. Arb. 546, 549 para. 7 (2002); Switzerland: BG, BGE 111 Ib 253, 255 = XII Y.B. Com. Arb. 511, 512 para. 5 (1987); OG Basel-Land, IV Y.B. Com. Arb. 309, 310 para. 3 (1979); Epping, Schiedsvereinbarung, p. 65; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.184; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.306; Poudret/Besson, Comparative Arbitration, para. 205; Samuel, Jurisdictional Problems, p. 97; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 100; van den Berg, NYC, pp. 198, 206; Wackenhuth, ZZP 99 (1986), 445, 464; see also US: Maritima De Ecologia, S.A. de C.V. v. Sealion Shipping Ltd., 2011 U.S. Dist. LEXIS 41148, *9 et seq. (S.D.N.Y. 2011) = XXXVI Y.B. Com. Arb. 467 paras 5 et seq. (2011); dissenting Netherlands: Rechtbank Rotterdam, I Y.B. Com. Arb. 194 (1976); UK: Zambia Steel & Building Supplies Ltd. v. James Clark & Eaton Ltd., XIV Y.B. Com. Arb. 715, 722 paras 18 et seq. (1989) (on section 7 of the Zambia Arbitration Act 1995). 237 Germany: BayObLG, NJW-RR 2003, 719, 720 = XXIX Y.B. Com. Arb. 761, 764 para. 8 (2004); OLG Düsseldorf, IPRspr. 2014, No. 272, 730, 732; Netherlands: Hof Den Haag, X Y.B. Com. Arb. 485, 486 (1985); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 15; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.184; Solomon, in: Schmidt-Kessel (ed.), German National Reports, pp. 55, 66; van den Berg, NYC, p. 198; Wackenhuth, ZZP 99 (1986), 445, 465 et seq. 238 See van den Berg, NYC, p. 196. 239 E/CONF.26/SR.21, p. 21 (Õ Annex IV 1); see also van den Berg, NYC, p. 196. 240 Germany: OLG Düsseldorf, IPRspr. 1971, No. 161, 491, 492 = II Y.B. Com. Arb. 237, 238 (1977); OLG Frankfurt, IPRspr. 2006, No. 212, 477, 479 = XXXII Y.B. Com. Arb. 351, 353 et seq. (2007); LG Hannover, VII Y.B. Com. Arb. 322, 323 para. 1 (1982); Italy: Cass., sez. un., I Y.B. Com. Arb. 190 (1976); Cass., XVII Y.B. Com. Arb. 554, 557 paras 5 et seq. (1992); Cass., sez. un., XX Y.B. Com. Arb. 739, 740 para. 2 (1995); Spain: TS, XXVII Y.B. Com. Arb. 528, 529 et seq. para. 3 (2002) and XXVI Y.B. Com. Arb. 854, 856 paras 7 et seq. (2001); Epping, Schiedsvereinbarung, p. 65; Gildeggen, Schiedsvereinbarungen in AGB, p. 61; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.184; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.305, 8.306; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 380; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 95; von Hülsen, Gültigkeit, p. 58. 241 Germany: BGH, NJW 1983, 1267, 1268 (on Article I(2)(a) of the European Convention); Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.184; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 106; see also Italy: CA Napoli, I Y.B. Com. Arb. 193 (1976). 242 Italy: CA Firenze, IV Y.B. Com. Arb. 289, 290 et seq. para. 3 (1979); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 15; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.307; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 100; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 82; van den Berg, NYC, pp. 196 et seq.; dissenting Italy: Cass., sez. un., XXVI Y.B. Com. Arb. 816, 820 et seq. paras 11 et seq. (2001); van den Berg, NYC, p. 202. 243 Italy: Cass., sez. un., IX Y.B. Com. Arb. 429, 431 para. 4 (1984); Cass., XVI Y.B. Com. Arb. 588, 590 para. 3 (1991).

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The exchanged documents, if there is not only one (Õ para. 98), must either match or 99 one needs to make reference to the other. An implied reference to the arbitration agreement is sufficient; express reference is unnecessary.244 In one way or another, the exchanged documents must establish the arbitration agreement in an uncontested way.245 This can also be done by reference to a third document that includes an arbitration agreement, e.g. an agreement concluded earlier, an offer or a letter of confirmation.246 Whether the arbitration agreement is established is to be assessed under the law governing the arbitration agreement (Õ para. 42).247 No arbitration agreement will usually be established if the first document contains no arbitration clause (or, as the case may be, a choice of forum clause) and the second one does contain such a clause.248 In this case, an arbitration agreement will only be established if a third document confirms the arbitration clause.249 Article II(2)’s form requirement is already met if the exchanged documents establish 100 the constituent elements of the arbitration agreement (Õ para. 87).250 If the documents differ as to stipulations in the main contract or as to procedural agreements on the place of arbitration, the language of the proceedings and the like, the effects on the arbitration agreement’s validity need to be evaluated under the law governing the arbitration agreement (Õ para. 42). (3) Means of Transmission. Article II(2) only mentions the exchange of letters or 101 telegrams. Since telexes and faxes, like telegrams, are transmitted electronically and materialize when received, the provision applies by analogy to these means of transmission (Õ para. 130). The same holds true for email and other means of transmission including web applications that do not inevitably lead to a materialized document (Õ paras 130 et seq.).

244 Italy: Cass., XXII Y.B. Com. Arb. 715, 720 paras 10 et seq. (1997); Switzerland: OG Basel-Land, XXI Y.B. Com. Arb. 685, 686 para. 3 (1996); Born, International Commercial Arbitration, pp. 686 et seq.; Epping, Schiedsvereinbarung, p. 64; Gildeggen, Schiedsvereinbarungen in AGB, pp. 51 et seq.; Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.183; Hausmann, in: Reithmann/ Martiny (eds), Internationales Vertragsrecht, para. 8.307; van den Berg, NYC, p. 199 (same reasoning as for the signature below a contract including an arbitration clause); Wackenhuth, ZZP 99 (1986), 445, 460 et seq. 245 Germany: OLG München, SchiedsVZ 2010, 50, 51 = XXXVI Y.B. Com. Arb. 273 para. 10 (2011); Switzerland: CJ, SJZ 1968, 56, 57 = I Y.B. Com. Arb. 199 (1976); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.183; Haas, SchiedsVZ 2011, 289, 295, Hausmann, in: Reithmann/ Martiny (eds), Internationales Vertragsrecht, para. 8.307; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 8; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 100; Schwarz, SJZ 1968, 49, 51; Wackenhuth, ZZP 99 (1986), 445, 460 et seq. 246 India: Smita Conductors Ltd. v. Euro Alloys Ltd., XXVII Y.B. Com. Arb. 482, 486 para. 4 (2002); Italy: CA Firenze, IV Y.B. Com. Arb. 289, 290 et seq. para. 3 (1979); Spain: TS, XXVII Y.B. Com. Arb. 540, 542 para. 4 (2002); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.306; seemingly dissenting Italy: CA Napoli, I Y.B. Com. Arb. 193 (1976). 247 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.183; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.307. 248 Cf. Germany: AG Singen, IPRax 1984, 276, 277; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.307. 249 Austria: OGH, X Y.B. Com. Arb. 418, 419 para. 4 (1985); Italy: CA Firenze, IV Y.B. Com. Arb. 289, 290 et seq. para. 3 (1979); Internationales Schiedsgericht der Bundeskammer der Gewerblichen Wirtschaft in Österreich: Case SCH-4366, RIW 1995, 590; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.183. 250 US: Podar Bros. v. I.T.A.D. Assocs., 636 F.2d 75, 77 (4th Cir. 1981) = VII Y.B. Com. Arb. 379, 380 et seq. paras 2 et seq. (1982); Gildeggen, Schiedsvereinbarungen in AGB, p. 80; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.183; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.307.

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102

(4) Signatures Dispensable. The “in writing” requirement does not call for the parties’ signatures if the arbitration agreement is contained in an exchange of letters or telegrams,251 even if one and the same document is exchanged.252 Article II(2) explicitly requires signatures only for the first, not for the second option.253 Moreover, telegrams are never signed so that letters cannot sensibly be required to be signed under this provision.254 Calling for signatures would finally also be at odds with the purpose of accommodating business needs (Õ para. 97).255

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dd) Unlisted Options. The requirements set out by the two alternatives of Article II(2) for meeting written form are demanding and in practice are one of the major obstacles for the recognition of arbitration agreements. It is therefore of key importance that these two alternatives are not conclusive; Article II(2) rather leaves room for unlisted options of “in writing” (Õ paras 104 et seq.). This, however, raises the question as to how the “in writing” requirement in those unlisted options is to be understood (Õ paras 112 et seq.).

104

(1) Non-Exhaustive Character of Article II(2). It is disputed among courts and scholars whether Article II(2) constitutes an exhaustive256 or a non-exhaustive257 enumeration. The importance of this issue calls for closer scrutiny utilizing all means of interpretation. As a preliminary remark, Article II(2)’s (non-)exhaustive character is unrelated to the understanding that it contains a minimum standard (Õ para. 76).258 251 Austria: OGH, X Y.B. Com. Arb. 418, 419 para. 4 (1985); Germany: LG Hamburg, II Y.B. Com. Arb. 235 (1977); LG Zweibrücken, IV Y.B. Com. Arb. 262, 263 (1979); Netherlands: Rechtbank Rotterdam, I Y.B. Com. Arb. 194 (1976); Switzerland: BG, BGE 121 III 38, 45 = XXI Y.B. Com. Arb. 690, 695 et seq. paras 10 et seq. (1996); OG Basel-Land, IV Y.B. Com. Arb. 309, 310 para. 3 (1979); OG Basel-Land, XXI Y.B. Com. Arb. 685, 686 para. 3 (1996); CJ, SJZ 1968, 56 = I Y.B. Com. Arb. 199 (1976); US: Sphere Drake Ins. v. Marine Towing, Inc., XIX Y.B. Com. Arb. 792, 794 et seq. paras 9 et seq. (1994) (E.D. La. 1992); Report of the Secretary-General: study on the application and interpretation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/168, para. 21; Born, International Commercial Arbitration, pp. 680 et seq.; Epping, Schiedsvereinbarung, pp. 63 et seq.; Haas, Anerkennung und Vollstreckung, p. 168; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.304; ICCA, Guide, p. 45; Poudret/Besson, Comparative Arbitration, para. 188; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 7; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 100; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 81; van den Berg, NYC, p. 194; von Hülsen, Gültigkeit, p. 57; ambiguously Brazil: Superior Tribunal de Justiça, XXXIII Y.B. Com. Arb. 371, 376 para. 9 and 379 para. 21 (2008) (discussing the absence of signatures on telexes in the context of Article II(2) while in fact relying on a lack of evidence for the conclusion of the arbitration agreement). 252 Germany: LG Zweibrücken, IV Y.B. Com. Arb. 262, 263 (1979); Switzerland: OG Basel-Land, IV Y.B. Com. Arb. 309 para. 3 (1979); US: Sphere Drake Ins. v. Marine Towing, Inc., XIX Y.B. Com. Arb. 792, 794 et seq. paras 4 et seq. (1994) (E.D. La. 1992); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.182; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 81; critical Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 104. 253 UNCITRAL Secretariat, Guide, Art. II para. 57; van den Berg, NYC, p. 194. 254 Czernich, Kurzkommentar, Art. II para. 31; Gaillard/Savage, Fouchard Gaillard Goldman, para. 619; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.304; Schlosser, in: Stein/ Jonas (eds), ZPO, Annex to sect. 1061 para. 100. 255 Concurring UNCITRAL Secretariat, Guide, Art. II para. 57. 256 Australia: HIH Casualty & General Insurance Ltd. (in liquidation) v. R J Wallace, [2006] NSWSC 1150 para. 135; US: Chloe Z Fishing Co. v. Odyssey Re (London) Ltd., 109 F. Supp. 2d 1236, 1245 et seq. (S.D. Cal. 2000) = XXVI Y.B. Com. Arb. 910, 918 et seq. paras 15 et seq. (2001). 257 Canada: Proctor v. Schellenberg, 2002 MBCA 170 para. 18 = XXVIII Y.B. Com. Arb. 745, 750 et seq. para. 13 (2003); Hong Kong: Jiangxi Provincial Metal & Minerals Import & Export Corp. v. Sulanser Co. Ltd., XXI Y.B. Com. Arb. 546, 549 para. 8 (1996); Singapore: Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd., XXXII Y.B. Com. Arb. 489, 493 para. 4 (2007); Born, International Commercial Arbitration, pp. 674 et seq. 258 Dissenting Landau/Moollan, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 189, 244.

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Regardless of whether the “in writing” requirement comprises unlisted options beyond the two options explicitly listed in the provision’s wording (i.e. its [non-]exhaustive character), the provision could be understood to allow or exclude the application of more favorable national law (i.e. its minimum standard character). (a) Wording. According to Article II(2)’s English version, an agreement in writing 105 “shall include” the above-mentioned two options. This wording can be understood in a non-exhaustive way, leaving room for additional unlisted options;259 the same applies to the authentic Russian version.260 In contrast, the other official language versions provide for an exhaustive enumeration.261 Since all versions are equally authentic under Article XVI(1) and the potential meaning of the term comprises the potential meanings in all authentic languages (Õ Art. XVI para. 7), Article II(2)’s wording allows for both an exhaustive and a non-exhaustive meaning.262 (b) Historical and Systematic Interpretation. Just like the wording, the historical 106 and systematic interpretation is not too productive. During the 1958 Conference, it was submitted “that paragraph 2 should indicate that an exchange of letters or telegrams did not exhaust all the possibilities” (Õ para. 15).263 The Conference did not follow this proposal; it was not even voted on. As often, the travaux préparatoires do not provide details as to why the Conference did not comment on this thought. It therefore leaves open the question as to whether the provision was already considered to be nonexhaustive or whether the Conference decided against making it non-exhaustive. It may be invoked, as an indication for the exclusive character of Article II(2), that its 107 second option was included to accommodate business needs, i.e. to facilitate the conclusion of an arbitration agreement as compared to the requirement of signatures (Õ para. 97). If Article II(2) was non-exhaustive, no second option would have had to be included in order to lower the form requirements. Similarly, if Article II(2) is understood as non-exhaustive, the provision’s first option would appear as a rather superfluous example: what else should be in writing if not a document signed by the parties? (c) Ratio Legis. The most important means of interpretation is the provision’s 108 purpose. The “in writing” requirement solely aims at providing evidence for the conclusion of the arbitration agreement (Õ paras 79 et seq.). This purpose does not call for a limitation to the two options explicitly referenced in Article II(2). Moreover, Article II(2) demonstrates openness towards business needs, in particular 109 the use of modern means of communication. This becomes evident in Article II(2)’s

259 US: Freaner v. Lutteroth Valle, XXXIX Y.B. Com. Arb. 559 para. 44 (2014) (S.D. Cal. 2013); A/ CN.9/468, para. 97 (p. 21) (Õ Annex IV 2); A/CN.9/592, para. 87 (p. 19) (Õ Annex IV 2); A/CN.9/607, para. 7 (p. 5) (Õ Annex IV 2); Departmental Advisory Committee on Arbitration Law, 1996 Report on the Arbitration Bill, (1997) 13(3) Arb. Int’l 275, 282; Gusy, (2002) 19 J. Int. Arb. 363, 369; Haas, SchiedsVZ 2011, 289, 297; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.187; Herrmann, in: van den Berg (ed.), International Arbitration in a Changing World, pp. 41, 45; Landau, in: van den Berg (ed.), Important Contemporary Questions, pp. 19, 68 et seq.; Rubins, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 449, 454; further Õ n. 257; dissenting US: Chloe Z Fishing Co. v. Odyssey Re (London) Ltd., 109 F. Supp. 2d 1236, 1245 et seq. (S.D. Cal. 2000) = XXVI Y.B. Com. Arb. 910, 918 para. 15 (2001); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 95. 260 Born, International Commercial Arbitration, p. 672 with n. 209; Departmental Advisory Committee on Arbitration Law, 1996 Report on the Arbitration Bill, (1997) 13(3) Arb. Int’l 275, 282 para. 34. 261 A/CN.9/592, para. 87 (p. 19) (Õ Annex IV 2); A/CN.9/607, para. 7 (p. 5) (Õ Annex IV 2). 262 Seemingly dissenting Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 355, 358 = (2004) 21 J. Int. Arb. 439, 442; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 50. 263 E/CONF.26/SR.21, p. 20 (Õ Annex IV 1).

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second option that for this very reason explicitly includes the exchange of telegrams (Õ para. 97) although they do not provide for overly reliable evidence. Since today’s business needs are not accommodated by telegrams,264 it does justice to Article II(2)’s inclination towards modern means of communication to include email and similar technology that is not covered by the provision’s two explicit options. 110 Finally, a non-exhaustive reading of Article II(2) is in line with the Convention’s general aim to facilitate recognition and enforcement of awards and recognition of arbitration agreements. The more technology progressed and the less businesses in fact concluded contracts by employing the means outlined in Article II(2), the higher the “in writing” requirement’s hurdle became. The Convention’s overall target therefore demands an interpretation of Article II(2) that does not freeze the form requirement in a state that may have been workable back in 1958. The form requirement needs to be open to evolving business practice as is internationally acknowledged by legal instruments like the UNCITRAL Model Law on Electronic Commerce, the UNCITRAL Model Law on Electronic Signatures and the United Nations Convention on the Use of Electronic Communications in International Contracts (Õ paras 123a et seq.). Therefore, the better arguments militate in favor of a non-conclusive understanding of Article II(2).265 111

(d) 2006 UNCITRAL Recommendation. On July 7, 2006, UNCITRAL issued a recommendation according to which it “[r]ecommends that article II, paragraph 2, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, be applied recognizing that the circumstances described therein are not exhaustive” (No. 1 of the Recommendation, Õ Annex III).266 As not all Member States of the Convention adopted this Recommendation (and were not supposed to do so), it is not a binding legal instrument and as such cannot be considered decisive for Article II(2)’s interpretation.267 However, the Recommendation confirms the correct reading of that provision, i.e. its non-exhaustive character (Õ para. 110). Being issued by UNCITRAL, the Recommendation furthermore carries significant weight in promoting Article II(2)’s non-exhaustive understanding and in contributing to its uniform application.268 In 2007, the year after the Recommendation had been issued, the UNCITRAL Secretariat invited governments to submit comments on the impact that the Recommendation may be expected to have in their jurisdiction 264 See Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 75: “Article II(2) is one of the provisions of the Convention that has aged the least gracefully.” See further Kaplan, (1996) 12 Arb. Int’l 27; Kaplan, in: United Nations (ed.), Experience and Prospects, p. 17. 265 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.187 (relying on “arbitration clauses based on other forms of autonomy”); dissenting Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 50. 266 For the Recommendation’s drafting history Õ paras 17 et seq. 267 Seemingly dissenting Landau/Moollan, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 189, 239 and 244 who apparently suggest that the Recommendation forms a subsequent agreement as required under Article 31(3)(a) of the Vienna Convention on the Law of Treaties. This provision, however, requires a “subsequent agreement between the parties.” The UNCITRAL’s resolution cannot substitute such a party agreement, at the very least because not all Signatory States to the New York Convention are represented in the UNCITRAL Commission. 268 Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 456 para. 10 (2013); Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 para. 11 (2013) = CLOUT Case No. 1417; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 76; but see also Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 355, 364 (“of great help but not enough to solve the problem”); M. R. P. Paulsson, 5(2) Indian J. Arb. L. 23, 30 (2016) (“status […] is not clear”); for an example of a court’s consideration of the Recommendation, see Germany: BGH, BGHZ 187, 126, 130 para. 9 = SchiedsVZ 2010, 332, 333 para. 9 = XXXVI Y.B. Com. Arb. 282 para. 9 (2011).

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in relation to the implementation of the New York Convention and the need to promote its uniform interpretation.269 The vast majority of the States’ comments were positive.270 (2) Requirements of “in writing” Under the Unlisted Options. (a) General Ap- 112 proach. The mere finding that Article II(2) is to be understood in a non-exhaustive way does not yet shed light on how to determine the unlisted options’ requirements for “in writing.”271 It is clear, however, that similarity with the two listed options cannot be the decisive criterion. This would not allow for a broader understanding accommodating today’s business needs (Õ para. 109). It is similarly clear from Article II(2)’s character as uniform law (Õ para. 75) that the gap cannot be filled by recourse to national law on written form.272 Some guidance can be derived from Article II(2)’s purpose to provide evidence 113 (Õ paras 79 et seq.). Any means of communication which provides for evidence (at least to the extent that telegrams do, Õ para. 109) would therefore meet the form requirement. This broad scope, however, is limited by the requirement’s wording. While, for example, a voice or video recording can be a means to provide evidence, such recording cannot be understood as being within the meaning of “in writing.” (b) Recourse to Option I Article 7 of the Model Law. The “in writing” require- 114 ment’s wording and purpose does not in itself allow for operable criteria to determine the borderline in unclear cases. Further guidance can, however, be received from Option I Article 7 of the Model Law which stipulates in its paragraph 2 and defines in its paragraphs 3 to 6 an “in writing” requirement for arbitration agreements.273 Although the definitions in Option I Article 7 of the Model Law cannot be legally binding for defining Article II(2)’s “in writing” requirement, both contain stipulations on the same subject matter, pursue the same purpose,274 qualify as international legal instruments drafted by the same United Nations body and are based on a broad

269 Recommendation regarding the interpretation of article II, paragraph (2), and article VII, paragraph (1), of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (“New York Convention”), Compilation of comments by Governments, Note by the Secretariat, A/CN.9/661, p. 2. 270 Recommendation regarding the interpretation of article II, paragraph (2), and article VII, paragraph (1), of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (“New York Convention”), Compilation of comments by Governments, Note by the Secretariat, A/CN.9/661 including A/CN.9/661/Add.1 to 3 (although a number of comments raises doubts as to the States’ correct understanding of the Recommendation’s subject matter). 271 Concurring Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.188; but see Rubins, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 449, 454 (“plain meaning of the phrase ‘agreement in writing’”); Lederer, SchiedsVZ 2017, 245, 246 (“[No. 1 of the UNCITRAL Recommendation] implies that the exchange of emails is deemed to be comprised by Art. II(2) NYC”). 272 Born, International Commercial Arbitration, p. 676; dissenting Haas, SchiedsVZ 2011, 289, 297; Samuel, Jurisdictional Problems, p. 83. 273 Cf. Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 456 para. 9 (2013); Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 para. 10 (2013) = CLOUT Case No. 1417; M. R. P. Paulsson, NYC in Action, p. 85; Strong, 48 Stan. J. Int’l L. 47, 80 (2012); Vorobey, 31 J.L. & Com. 135, 153 (2012–2013); irresolute Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/ Port (eds), NYC, pp. 78 et seq. (“There are arguments on both sides of the issue”); dissenting Born, International Commercial Arbitration, p. 691 (referring to the “at least three possible approaches to the written form requirement” although Article 7 of the 1985 Model Law has been revised and Option II Article 7 of the 2006 Model Law foresees no form requirement at all; on substance, however, Born mirrors Option 1 Article 7 of the Model Law); Geimer, in: Zöller (ed.), ZPO, sect. 1061 para. 22a. 274 Haas, SchiedsVZ 2011, 289, 298.

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consensus amongst nations275. This close connection justifies falling back on the definitions provided by Option I Article 7 of the Model Law in the context of Article II(2) of the Convention as well.276 This approach, however, is limited by the wording’s broadest meaning (Õ para. 113). 115 The recourse to Option I Article 7 of the Model Law for a more detailed and operable understanding of Article II(2)’s “in writing” requirement follows from the provision’s autonomous interpretation. The 2006 UNCITRAL Recommendation (Õ para. 111) does not determine but merely confirms this interpretation. It therefore does no harm that the Working Group’s original plans to have the operative part of the Recommendation substantially modeled on the revised text of Article 7(2) of the Model Law could not prevail (Õ para. 20). In addition, even the Recommendation’s drafting history does not entail a clear position: the Commission simply observed that the revised Article 7 of the Model Law would indicate that the written form requirement contained in Article II(2) should be interpreted in a more liberal manner (Õ para. 21). Finally, the Recommendation’s ninth recital explicitly refers to the revised Article 7 of the Model Law.277 This again evidences the proximity between both provisions. 115a Recourse to Option I Article 7 of the Model Law for an authentic understanding of Article II(2)’s unlisted options cannot be opposed with the consideration that such interpretation would assume written form, e.g. in case of letters confirming a prior oral agreement (Õ para. 98), where the drafters and the Contracting States acceding to the Convention had expected the form requirement not to be met.278 The understanding of a State acceding to the Convention is not decisive for Article II’s interpretation. While the drafting history has to be considered when interpreting the Convention, it is only one of several factors (and not even the strongest, Õ Prel. Rem. para. 91). Focusing only on the historic understanding of the Contracting State would jeopardize any development of the Convention over time and any evolving interpretation. This cannot be sensible if, at the same time, relevant factors have changed, including the development of means of communication and the degree to which arbitration has become a common dispute resolution mechanism in international trade (Õ para. 83). 116

(3) Text of Option I Article 7 of the Model Law. Option I of Article 7 of the Model Law as adopted by the Commission at its thirty-ninth session in 2006 reads as follows: Article 7. Definition and form of arbitration agreement (1) 1“Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. 2An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (2) The arbitration agreement shall be in writing. 275 See Germany: BGH, NJW 2007, 772, 775 para. 29 = SchiedsVZ 2006, 161, 164 para. 29 = XXXII Y.B. Com. Arb. 328 para. 27 (2007); Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.18; Strong, 48 Stan. J. Int’l L. 47, 79 (2012). 276 See ICCA, Guide, pp. 49 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.167 (for Option I Article 7(4) of the Model Law). For the 1985 Model Law, see Switzerland: BG, BGE 121 III 38 = XXI Y.B. Com. Arb. 690, 695 para. 9 (1996); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 15; Gaillard/Savage, Fouchard Gaillard Goldman, para. 618; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.304; Herrmann, in: van den Berg (ed.), International Arbitration in a Changing World, pp. 41, 44; Ortiz, (2005) 21 Arb. Int’l 343, 353; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 105. 277 Strong, 48 Stan. J. Int’l L. 47, 80 (2012). 278 In that sense Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 113.

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(3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means. (4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “electronic communication” means any communication that the parties make by means of data messages; “data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. (5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. (6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract. (4) Record in Any Form (Option I Article 7(3) of the Model Law). Option I 117 Article 7(3) of the Model Law requires the arbitration agreement to be recorded in any form. The provision’s drafting history does not provide much guidance on how to understand this requirement.279 As compared with the 1985 Model Law requirement “means of telecommunication which provide a record of the agreement,” “recorded in any form” is arguably to be understood in a broader sense to also cover a tape-recorded conversation.280 While the Model Law drafters were free to define “in writing” as they wished for use within the Model Law,281 when loaning the definition to Article II(2) it additionally needs to be covered by the meaning of “in writing” (Õ para. 113, Õ para. 114). For the purposes of Article II(2), a recording only suffices if characters are recorded which can be read directly or by use of technical means. Audio, video, holographic or similar recording of an oral agreement cannot be understood as being “written.” It is the arbitration agreement’s content that is to be recorded under Option I 118 Article 7(3) of the Model Law. The recording’s object has shifted; under Article 7(2)(2) of the 1985 Model Law it was the agreement itself that was to be recorded. As evidenced by the last part of the new provision (“whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means”), the agreement’s conclusion itself is no longer bound by a form requirement. The arbitration agreement’s content (that requires recording) comprises the constituent elements of an arbitration agreement (Õ para. 87); additional procedural stipulations like the place of arbitration or the language of the proceedings do not need to be recorded. With the Model Law revision, the rationale underlying the form requirement (Õ paras 78 et seq.) has also narrowed from evidencing the meeting of minds to evidencing the agreement’s content.282 This shift significantly alleviated the form requirements. It is, however, in line with the fact that Article II(2)’s second option 279

See Binder, UNCITRAL Model Law Jurisdictions, p. 138. See Binder, UNCITRAL Model Law Jurisdictions, p. 138. 281 Cf. Herrmann, (1999) 15 Arb. Int’l 211, 216 (“a lawyer’s delight of a fiction: For the purpose of this law, Easter bunny means Santa Claus”). 282 A/61/17, para. 153 (p. 25 et seq.) (Õ Annex IV 2); A/CN.9/592, paras 57 et seq. (pp. 12 et seq.) (Õ Annex IV 2); A/CN.9/606, para. 8 (pp. 3 et seq.) (Õ Annex IV 2); Landau/Moollan, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 189, 219 et seq.; see also Landau, in: van den Berg (ed.), Important Contemporary Questions, pp. 19, 43. 280

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does not require the contract to be concluded by exchange of documents, rather that the agreement be contained in such exchange (Õ para. 98). 119 According to the wording of Option I Article 7(3) of the Model Law, any recording of the arbitration agreement’s content seems to satisfy the “in writing” requirement. However, the provision cannot be construed literally. It would render the “in writing” requirement meaningless if the party relying on it could satisfy it by producing an internal file note. Moreover, Option I Article 7(5) of the Model Law would otherwise make no sense since the statement of claim will already record the arbitration agreement while the provision also calls for a statement of defense. Hence, Option I Article 7(3) of the Model Law is to be restricted by an additional requirement: unless both parties have mandated the recording, it needs to be timely transmitted to the party or parties who did not record its contents. An internal file note will suffice just as little as a confirmation transmitted years after the arbitration agreement had been concluded. (5) Electronic Communication (Option I Article 7(4) of the Model Law). Option I Article 7(4) of the Model Law provides for a hypertrophic definition of “in writing” if electronic communication is used. It literally transposes the United Nations Convention on the Use of Electronic Communications in International Contracts (ECC, Õ paras 123a et seq.). The main definition of Option I Article 7(4) of the Model Law (accessibility useable for subsequent reference) matches Article 9(2) ECC; the definitions of “electronic communication” and “data message” have their sources in Article 4(b) and (c), respectively, of that Convention. Since the 2006 Model Law’s drafters have explicitly made reference to the Electronic Communications Convention,283 further guidance on the interpretation of Option I Article 7(4) of the Model Law can be derived from that Convention’s travaux préparatoires284.285 121 Article 20(1) ECC – we have come full circle – explicitly references the New York Convention’s “in writing” requirement to which the Electronic Communications Convention shall apply (Õ paras 123d et seq.). Finally, the Electronic Communications Convention is also referenced in the 2006 Recommendation’s ninth recital.286 For the interplay between Option 1 Article 7 of the Model Law and the Electronic Communications Convention, also Õ para. 123i. 120

122

(6) Exchange of Statements of Claim and Defense (Option I Article 7(5) of the Model Law). Option I Article 7(5) of the Model Law deals with the exchange of statements of claim and defense. The provision does not grant formal validity to an arbitration agreement that had already previously been concluded orally or by conduct.287 This results from the provision’s requirement to have the very arbitration agreement be contained in the exchange of statements of claim and defense alleging and not denying its existence. Whether or not this exchange constitutes an arbitration agreement is governed exclusively by the law applicable to the arbitration agreement, which will often require more than just the lack of an objection by the opposing party (Õ para. 50). If the exchange constitutes an arbitration agreement under these rules, the “in writing” requirement is met according to Option I Article 7(5) of the Model Law.

283

A/61/17, para. 158 (pp. 26 et seq.) (Õ Annex IV 2). Available at https://uncitral.un.org/en/texts/ecommerce/conventions/electronic_communications/ travaux (last visited Apr. 29, 2019). 285 Binder, UNCITRAL Model Law Jurisdictions, p. 141. 286 Mazzotta, in: Andersen/Schroeter (eds), Festschrift Kritzer, pp. 326, 340. 287 Dissenting Binder, UNCITRAL Model Law Jurisdictions, p. 107. 284

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123–123c Article

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(7) Reference to Any Document Containing an Arbitration Clause (Option I 123 Article 7(6) of the Model Law). Option I Article 7(6) of the Model Law also requires careful distinguishing between the conclusion of the arbitration agreement and its form. It is exclusively the law governing the arbitration agreement (Õ para. 42) under which it is to be determined whether reference to a document containing an arbitration clause makes that clause part of the contract. The New York Convention or the Model Law, respectively, only comes into play once the referenced arbitration clause has been validly included in the contract. Under Option I Article 7(6) of the Model Law, the mere reference to any document suffices to satisfy the form requirement regardless of the reference’s own form. The requirement that the referencing contract is in writing as formerly contained in Article 7(2)(3) of the 1985 Model Law has been abandoned; the drafting history confirms that the contract containing the reference can also be concluded orally, by conduct or by other means not in writing.288 The reference’s freedom of form considerably broadens the concept of “in writing.” ee) Impact of the Electronic Communications Convention. The United Nations 123a Convention on the Use of Electronic Communications in International Contracts (Electronic Communications Convention or ECC) has undertaken to adjust outdated form requirements to the needs of the digital age, including those of the New York Convention. The Electronic Communications Convention has been adopted by the United Nations General Assembly on November 23, 2005,289 entered into force on March 1, 2013 and currently has eleven members.290 (1) Modernization of Form Requirements. The Electronic Communications Con- 123b vention implements the key principles of technological neutrality and functional equivalence. Technological neutrality avoids technology-specific notions and replaces them with the underlying general conditions.291 Functional equivalence implements technological neutrality by singling out the functions that paper-based form requirements serve and providing criteria for electronic communication to meet these functions.292 Based on these principles, Article 9(2) ECC defines when an electronic communication is in writing (“if the information contained therein is accessible so as to be usable for subsequent reference”). Article 9(2) ECC can apply to Article II if Article II(2)’s definition of “in writing” is understood as non-exhaustive (Õ paras 104 et seq.). Under Article 9(3) ECC, an electronic communication fulfills the requirement that a declaration be signed by a party as under Article II(2) option 1 “if: (a) A method is used to identify the party and to indicate that party’s intention in respect of the information contained in the electronic communication; and (b) The method used is either: (i) As reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or (ii) Proven in fact to have fulfilled the functions described in subparagraph (a) above, by itself or together with further evidence” (Õ para. 129b). (2) Legal Effects of the Electronic Communications Convention on Article II. 123c Article 9 ECC can unfold its legal effect either as an amendment of (or clarification to) 288

A/CN.9/606, para. 17 (p. 6) (Õ Annex IV 2). Resolution adopted by the General Assembly, A/RES/60/21. 290 Parties: Azerbaijan, Cameroon, Congo, the Dominican Republic, Fiji, Honduras, Montenegro, Paraguay, the Russian Federation, Singapore and Sri Lanka. For an up-to-date status, see https:// uncitral.un.org/en/texts/ecommerce/conventions/electronic_communications/status (last visited Apr. 29, 2019). 291 UNCITRAL Secretariat, Explanatory Note on the ECC, para. 154. 292 UNCITRAL Secretariat, Explanatory Note on the ECC, para. 51. 289

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Article II (Õ paras 123d et seq.) or, more importantly, within Article II’s autonomous interpretation (Õ paras 123h et seq.). (a) Amendment of or Clarification to Article II. (aa) No Domestic Solution. The Electronic Communications Convention applies to electronic communications in connection with the formation or performance of a contract to which the New York Convention applies (Article 20(1) ECC), namely an arbitration agreement.293 The Working Group that drafted the Electronic Communications Convention did not mean to formally amend the New York Convention. It rather thought that Article 20(1) ECC “aimed at providing a domestic solution for a problem originating in international instruments,” namely that a Contracting State would incorporate in its legal system a provision that directed its judicial bodies to apply the Electronic Communications Convention in the context of other international conventions.294 123e This view is irreconcilable with the notion of autonomous law295 which is to be interpreted in and out of itself without recourse to notions derived from national law296 as explicitly reiterated in Article 5(1) ECC.297 The Electronic Communications Convention can affect Article II only on the level of international law. Whether Article 9 ECC amends Article II298 or clarifies its interpretation depends on whether Article II’s interpretation leads to a different result when taking recourse to Article 9 ECC.299

123d

123f (bb) Comprehensive Application. A State party to the New York Convention is bound

to apply the Electronic Communications Convention once it has entered into force for it.300 The application is not limited to arbitral awards (and their underlying arbitration agreements, Õ paras 26 et seq.) from another State party to the Electronic Communications Convention. This follows from the interpretation of Article 20(1) ECC: the provision’s rationale is to offer substantive rules that allow the New York Convention and others to operate effectively in an electronic environment301 while – from the perspective of the Working Group (Õ para. 123d) – obviating the need to amend individual international conventions.302 Since the New York Convention applies to foreign arbitral awards irrespective of their country of origin absent a reciprocity reservation under Article I(3)(1), the scope of a convention cannot lag behind without failing to obviate the need to amend the New York Convention.303 The Electronic 293 UNCITRAL Secretariat, Explanatory Note on the ECC, para. 5; Otto, in: Kronke/Nacimiento/Otto/ Port (eds), NYC, p. 175. 294 Report of the Working Group on Electronic Commerce on the work of its forty-third session, A/CN.9/ 548, para. 49; see also Mazzotta, in: Andersen/Schroeter (eds), Festschrift Kritzer, pp. 326, 339 et seq. 295 Dissenting Eiselen, in: Schwenzer/Atamer/Butler (eds), Current issues, pp. 145, 153; Hettenbach, Übereinkommen, p. 67. 296 Gebauer, 5 Unif. L. Rev. 683, 686 (2000); Kropholler, Internationales Einheitsrecht, pp. 235 et seq., 240 et seq.; Schwenzer/Hachem, in: Schwenzer (ed.), Schlechtriem & Schwenzer, Art. 7 para. 8. 297 Wolff, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 101, 109 et seq. 298 See Mazzotta, in: Andersen/Schroeter (eds), Festschrift Kritzer, pp. 326, 343; Otto, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, pp. 175 and 451; dissenting Castellani, 3 J.L. Soc’y & Dev. 132, 137 et seq. (2016). Article 9 ECC does not, however, create an alternative enforcement regime that could apply under Article VII(1) (dissenting Amro, (2016) 5(2) Slovenska arbitražna praksa 17, 25; Schramm/ Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 85). 299 Wolff, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 101, 109. 300 Wolff, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 101, 111 et seq. 301 UNCITRAL Secretariat, Explanatory Note on the ECC, para. 289; Report of the Working Group on Electronic Commerce on the work of its forty-third session, A/CN.9/548, para. 51. 302 UNCITRAL Secretariat, Explanatory Note on the ECC, para. 288; Estrella Faria, 55 ICLQ 689, 692 (2006). 303 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 168; Wolff, in: Fach Gómez/ López Rodríguez (eds), 60 Years of NYC, pp. 101, 111.

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Communications Convention’s aversion to reciprocity is further evidenced by the fact that Article 19(1)(a) ECC likewise requires a reservation for reciprocity.304 A similar issue of synchronization exists regarding the diverging scopes of applica- 123g tion of the New York Convention and the Electronic Communications Convention. The Electronic Communications Convention applies to contracts between parties whose places of business are in different states (Article 1(1) ECC). For the New York Convention, however, the parties’ places of business are irrelevant (Õ Art. I para. 95); it ties in only with the foreign nature of the arbitral award (Article I(1)). Similarly, the Electronic Communications Convention does not apply to consumer contracts (Article 2(1)(a) ECC) while the New York Convention contains no such limitation. Article 20 ECC’s drafting history is inconclusive.305 Its purpose to obviate the need to amend other conventions (Õ para. 123f), however, demands that the Electronic Communications Convention applies to all arbitration agreements under the New York Convention regardless of the requirements under Articles 1, 2 ECC.306 This result does not violate legitimate interests of the parties involved. Article 9 ECC does not, in particular, touch on consumer interests.307 (b) Consideration Within the Autonomous Interpretation of Article II. Apart 123h from being a treaty that amends (or clarifies) the form requirements under Article II (Õ paras 123d et seq.), the Electronic Communications Convention can also play a role in the autonomous interpretation of these form requirements. The potential impact of this approach exceeds the treaty-amending effect, not only in light of the limited number of States party to the Electronic Communications Convention (Õ para. 123a). A consideration within the New York Convention’s autonomous interpretation also remains unaffected by a State’s declaration limiting the Convention’s scope of application (Article 19 ECC), by a State’s opt-out declaration under Article 20(4) ECC or by the Convention’s inapplicability to electronic communications made before it entered into force (Article 24 ECC).308 The drafters of the Electronic Communications Convention were hesitant to attribute 123i to the Convention the force to authentically interpret the Conventions referred to in Article 20(1) ECC.309 The proper interpretation of the New York Convention, however, does not depend on the views of another convention’s drafters. In fact, Article II’s autonomous interpretation in cases involving electronic communications should be guided by Article 9 ECC for similar reasons for which recourse can be made to Article 7 of the Model Law (Õ paras 114 et seq.): both the New York Convention and the Electronic Communications Convention fall into the ambit of UNCITRAL and reflect an international consensus. Article II(2)’s inclusion of telegrams demonstrates the Convention’s openness towards contemporary communication technology310 and en304 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 168 et seq.; Wolff, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 101, 111 et seq. 305 For details, see Wolff, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 101, 112 et seq. 306 Hettenbach, Übereinkommen, p. 68; Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 167 et seq.; Wolff, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 101, 113; dissenting Alqudah, (2011) 28(1) J. Int. Arb. 67, 69; Lederer, SchiedsVZ 2017, 245, 247; similarly for the relation between the ECC and the CISG Butler, in: Schwenzer/Spagnolo (eds), State of Play, pp. 1, 3; Eiselen, in: Boss/Kilian (eds), ECC, pp. 333, 335; Hilberg, IHR 2007, 12, 19. 307 For details, see Wolff, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 101, 112 et seq. 308 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 169 et seq.; Wolff, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 101, 115. 309 Report of the Working Group on Electronic Commerce on the work of its forty-third session, A/ CN.9/548, para. 51; UNCITRAL Secretariat, Explanatory Note on the ECC, para. 289. 310 Concurring Markert/Burghardt, 27(3) J. Arb. Stud. 3, 24 (2017).

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abling outdated form provisions to operate effectively in an electronic environment is precisely what the Electronic Communications Convention aims to achieve.311 This result finally is in harmony with the finding that Option 1 Article 7 of the Model Law likewise shapes Article II’s authentic interpretation: since Option 1 Article 7 of the Model Law and the Electronic Communications Convention employ a harmonized wording and are moreover interconnected by the UNCITRAL Recommendation, it would be inconsistent not to make use of all these elements.312 124

ff) Factual Situations. Having discussed the general meaning of the listed (Õ paras 94 et seq. and Õ paras 97 et seq.) and unlisted (Õ paras 103 et seq.) options of Article II(2)’s “in writing” requirement, whether the “in writing” requirement is met now needs to be considered for a number of factual situations.313 Since Article II(2)’s non-exhaustive character (Õ paras 104 et seq.) and the recourse to Option I Article 7 of the Model Law as a means for interpreting the Convention’s “in writing” requirement (Õ paras 114 et seq.) have not yet been established in international court practice, which of Article II(2)’s options will lead to an arbitration agreement in writing will be determined for each setting.

(1) Unilaterally Written Form. The oral or tacit acceptance of a written offer neither suffices for Article II(2)’s signature requirement (Õ paras 94 et seq.) nor for its exchange of documents requirement (Õ paras 97 et seq.). However, if the written offer contains the arbitration agreement, it meets the recording requirement under Option I Article 7(3) of the Model Law (Õ paras 117 et seq.). This alone will establish written form even if the offer is accepted orally or by conduct, e.g. by delivery of the ordered goods. 126 In a similar situation, the written offer containing an arbitration agreement is not accepted in writing, but the other party refers in writing to the contract in subsequent correspondence, including in an invoice or a letter of credit mentioning, for example, its date or contract number.314 These facts not only constitute written form taking recourse to Option I Article 7(3) of the Model Law (Õ para. 125) but, according to the prevailing view, also meet the requirement of Article II(2)’s exchange of documents test (Õ para. 98). 127 A written confirmation by one of the parties does not meet the requirements of Article II(2)’s listed options if the contract has not been concluded in writing (Õ para. 98). This holds true even if the parties maintain an ongoing business relationship (Õ para. 98) or if the contract is deemed to have been concluded as stipulated in a commercial letter of confirmation under the law governing the arbitration agreement (Õ para. 42).315 An exchange of documents under Article II(2) can only be assumed if the other party subsequently confirms or accepts the offer (Õ para. 98). A written 125

311 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 169 et seq.; Wolff, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 101, 115 et seq. 312 Mazzotta, in: Andersen/Schroeter (eds), Festschrift Kritzer, pp. 326, 334 (“not mutually exclusive”). 313 Including the factual situations established by A/CN.9/WG.II/WP.108/Add.1, para. 12 (pp. 4 et seq.) (Õ Annex IV 2). 314 Cf. A/CN.9/WG.II/WP.108/Add.1, para. 12 (b) (p. 4) (Õ Annex IV 2). 315 Germany: OLG Düsseldorf, IPRspr. 1971, No. 161, 491, 492 = II Y.B. Com. Arb. 237, 238 (1977); LG Hannover, VII Y.B. Com. Arb. 322, 323 et seq. paras 1 et seq. (1982); LG München I, V Y.B. Com. Arb. 260 paras 4 et seq. (1980); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 19; Gildeggen, Schiedsvereinbarungen in AGB, pp. 52, 77 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.184; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.317; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 380; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 95; von Hülsen, Gültigkeit, p. 58; Wackenhuth, ZZP 99 (1986), 445, 464.

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confirmation will, however, satisfy the requirements of Option I Article 7(3) of the Model Law (Õ para. 117) and thus constitute written form under Article II(2)’s unlisted options (Õ paras 114 et seq.) if timely sent to the other party to the arbitration agreement (Õ para. 119). It may happen that neither of the parties signs or exchanges a document but the 128 written communication of a third party evidences the arbitration agreement. This includes brokers who issue the text evidencing what the parties have agreed upon, including the arbitration clause.316 The primary issue to be determined under the law applicable to the arbitration agreement (Õ para. 42) is whether such agreement has been concluded. A broker’s power of attorney is governed by a separate legal regime (Õ para. 45). Since both parties have not signed the contract and the documents have not been exchanged between the parties, written form cannot be established under either of the two options listed in Article II(2). The requirements of Article II(2)’s unlisted options, however, are met if the broker timely transmits the confirmation to both parties or both parties have mandated the communication (Õ paras 119 et seq., Õ para. 156). (2) Electronic Communication. Electronic communication has become more and 129 more essential in today’s business world. As defined by the United Nations Convention on the Use of Electronic Communications in International Contracts (Õ paras 123a et seq.), electronic communication comprises electronic data interchange, electronic mail, telegram, telex, telecopy or other means allowing for information to be generated, sent, received or stored by electronic, magnetic, optical or similar means. (a) Signed by the Parties (Article II(2) Option 1). An electronically concluded 129a arbitration agreement can likewise be signed by the parties as required under Article II(2) option 1. It is clear that an electronic signature must identify its creator and indicate its intention. Beyond these basic requirements, however, the conditions for an electronic signature are not set in stone, as a look into domestic law confirms: in the European Union, Article 25(2) eIDAS Regulation317 provides for the full legal equivalence of qualified electronic signatures and handwritten signatures. Qualified electronic signatures are highly regulated and must ultimately trace back to a supervisory body.318 On the other end of the scale, the United States in its 1999 Uniform Electronic Transactions Act and its 2000 Electronic Signatures in Global and National Commerce Act has refrained from stipulating any reliability test and implemented an evidentiary concept: the party relying on an electronic signature bears the burden of proof if the identity of the signature’s holder or its consent is disputed. Under these rules, the electronic signature’s reliability remains relevant only for meeting that burden.319 Article 9(3) ECC (Õ para. 123b), which authentically interprets Article II(2)’s signa- 129b ture requirement (Õ paras 123h et seq.), has steered a middle course: Article 9(3)(a) ECC requires the communication to identify the party and to indicate its intention while Article 9(3)(b) ECC adds a reliability test. The method used to identify the party and its intention must be “as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement” (Article 9(3)(b)(i) ECC). The technology-neutral approach (Õ para. 123b) chosen by this provision can easily adapt to 316

Cf. A/CN.9/WG.II/WP.108/Add.1, para. 12 (c) (p. 4) (Õ Annex IV 2). Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC, OJ 2014 No. L 257, p. 73. 318 For details, see Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 159. 319 For details, see Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 159 et seq. 317

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future developments in communication technology. However, it comes at the price of diminished legal certainty and predictability: since all circumstances of a given case are to be taken into account, it cannot be abstractly determined whether a given communication meets Article 9(3)(b)(i) ECC’s reliability test. Depending on the given case, a party’s qualified electronic signature, its scanned handwritten signature and even its typewritten name under an email could all meet the signature requirement. It is upon the competent court or arbitral tribunal to determine this question. Article 9(3)(b)(ii) ECC adds an exception to the reliability test if party identity and intention are proven in fact. No party can therefore invoke the reliability test to repudiate its signature where both its identity and intent can be proven otherwise.320 130

(b) Contained in an Exchange of Letters or Telegrams (Article II(2) Option 2). Article II(2)’s second option explicitly references the exchange of letters or telegrams as constituting written form. Email, fax and similar means of communication are neither letters nor telegrams. Article II(2)’s second option can, however, be applied by way of analogy to telex (teleprinter),321 fax (telecopy)322 and email323 (Õ para. 101), including files attached to an email324.325 Like telegrams, other means of electronic communication

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UNCITRAL Secretariat, Explanatory Note on the ECC, para. 164. Austria: OGH, JBl 1974, 629, 630 = I Y.B. Com. Arb. 183 (1976); OGH, X Y.B. Com. Arb. 417 (1985); France: CA Paris, Rev. arb. 1987, 482, 486 = XIII Y.B. Com. Arb. 466, 469 para. 16 (1988); Italy: Tribunale di Savona, X Y.B. Com. Arb. 455, 456 para. 3 (1985); Spain: TS, XIII Y.B. Com. Arb. 512, 513 para. 2 (1988); TS, XXVI Y.B. Com. Arb. 851, 852 para. 9 (2001); Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 456 para. 9 (2013); Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 para. 10 (2013); Switzerland: BG, BGE 111 Ib 253, 255 = XII Y.B. Com. Arb. 511, 512 et seq. (1987); BG, XV Y.B. Com. Arb. 509, 510 para. 1 (1990); BG, BGE 121 III 38, 43 = XXI Y.B. Com. Arb. 690, 696 para. 8 (1996); CJ, XII Y.B. Com. Arb. 502, 504 paras 6 et seq. (1987); US: Oriental Commercial & Shipping Co. v. Rosseel, N.V., 609 F. Supp. 75, 78 (S.D.N.Y. 1985); Report of the Secretary-General: study on the application and interpretation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/168, para. 19; A/CN.9/WG.II/ WP.139, para. 22 (p. 14) (Õ Annex IV 2); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.304; Mazzotta, in: Andersen/Schroeter (eds), Festschrift Kritzer, pp. 326, 329; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 101; van den Berg, NYC, p. 204; van den Berg, XII Y.B. Com. Arb. 409, 428 (1987). 322 France: Cass., XX Y.B. Com. Arb. 660, 661 paras 3 et seq. (1995); Germany: OLG München, SchiedsVZ 2011, 337, 338; Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 456 para. 9 (2013); Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 para. 10 (2013); A/CN.9/WG.II/WP.139, para. 22 (p. 14) (Õ Annex IV 2); Gaillard/Savage, Fouchard Gaillard Goldman, para. 618; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.304; Mbaye, in: van den Berg (ed.), 40 Years of NYC, pp. 94, 97; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 101; van Houtte, (2000) 16 Arb. Int’l 1, 4. 323 Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 456 paras 9 et seq. (2013); Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 paras 10 et seq. (2013) = CLOUT Case No. 1417; US: Chloe Z Fishing Co. v. Odyssey Re (London) Ltd., 109 F. Supp. 2d 1236, 1250 (S.D. Cal. 2000) = XXVI Y.B. Com. Arb. 910, 923 para. 32 (2001); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 15; Alqudah, (2011) 28(1) J. Int. Arb. 67, 70; Born, International Commercial Arbitration, pp. 687 et seq.; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.304; Hill, (1999) 15 Arb. Int’l 199, 200 et seq.; ICCA, Guide, p. 50; Lederer, SchiedsVZ 2017, 245, 246; Moller, NZG 1999, 143, 145; van den Berg, XXVIII Y.B. Com. Arb. 562, 588 et seq. (2003); Wei, Rethinking the NYC, pp. 72 et seq.; see also US: Bitumenes Orinoco, S.A. v. New Brunswick Power Holding Corp., 2007 U.S. Dist. LEXIS 10138, *32 (S.D.N.Y. 2007) = XXXII Y.B. Com. Arb. 991, 993 et seq. paras 4 et seq. (2007); dissenting Norway: CA Hålogaland, XXVII Y.B. Com. Arb. 519, 522 para. 6 (2002); restrictively Czernich, Kurzkommentar, Art. II para. 32 (requiring electronically signed email); for the restrictive court practice in Qatar see Khatchadourian, 1(1) BCDR Int’l Arb. Rev. 49, 51 (2014). 324 Germany: OLG Stuttgart, IHR 2016, 236, 238; Czernich, Kurzkommentar, Art. II para. 32. 325 See A/CN.9/468, para. 101 (p. 22) (Õ Annex IV 2) on electronic means of communication as defined in Article 2 of the Model Law on Electronic Commerce. 321

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are not physically transmitted and do not authenticate the sender’s identity.326 Email, however, unlike other means of electronic communication, does not inevitably lead to a materialized document. The “in writing” requirement’s purpose to provide evidence (Õ paras 79 et seq.), however, is satisfied if the content is perpetuated regardless of where the perpetuation takes place. Therefore it cannot be decisive whether the electronically transmitted information materializes automatically or manually.327 Moreover, requiring an automatically materializing document would create difficulties with fax devices that do not print the document but convert it to a computer file format. Since the sender will never know about the technology employed by the receiver, deeming it relevant would be irreconcilable with the protection of legal transactions. This cannot be different for email. The analogy is further supported by Article II(2)’s explicit reference to telegrams that demonstrates the Convention’s openness to modern means of communication (Õ para. 109).328 This reference cannot be read as excluding means that were only invented later. Finally, Article I(2)(a) of the European Convention (Õ Annex V 3) clarifies the equal standing of letters, telegrams and communication by teleprinters.329 In a web-based environment, Article II(2) option 2 likewise applies to so-called click- 130a wrap and browse-wrap declarations regardless of whether they employ means of encryption or authentication.330 Click-wrap requires the user to click a button labelled “ok,” “agree” or similarly before the web application proceeds further. For browse-wrap, the user downloads a file or otherwise accesses a website under the terms displayed thereon without clicking a button. Declarations are exchanged under Article II(2) option 2 if the website operator makes an offer that the customer accepts by clicking a button (click-wrap) or downloading a file (browse-wrap) or through similar means that are reported back to the website operator.331 No declarations are exchanged if the website operator only invites the customer to submit an offer that the website operator accepts by conduct including delivery of the goods or if, in case of browse-wrap, no message is returned to the website operator.332 (c) Accessibility of the Information so as to Be Useable for Subsequent Reference 131 Under Article II(2)’s Unlisted Options. The unlisted options under Article II(2) allow for a more comprehensive coverage of electronic communications than the listed options. Option I Article 7(4) of the Model Law and, with identical wording, Article 9(2) ECC explicitly accept electronic communication as long as the information contained therein is 326 Austria: OGH, JBl 1974, 629, 630 = I Y.B. Com. Arb. 183 (1976); US: Chloe Z Fishing Co. v. Odyssey Re (London) Ltd., 109 F. Supp. 2d 1236, 1250 (S.D. Cal. 2000) = XXVI Y.B. Com. Arb. 910, 923 para. 32 (2001); Tautschnig, AAYB 2015, 87, 91; see also Alvarez, in: van den Berg (ed.), 40 Years of NYC, pp. 67, 74. But see for a requirement to ensure that the message is attributable to the sender, Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.304. Dissenting (email much more secure than telegram) Wei, Rethinking the NYC, p. 73. 327 Hill, (1999) 15 Arb. Int’l 199, 201 et seq.; see also Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.181; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.303; Kaufmann-Kohler, in: Briner et al. (eds), Liber Amicorum Böckstiegel, pp. 355, 359 et seq.; Reymond, Rev. arb. 1989, 385, 397; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 101; dissenting Schlosser, Recht der Schiedsgerichtsbarkeit, para. 373. 328 See US: Chloe Z Fishing Co. v. Odyssey Re (London) Ltd., 109 F. Supp. 2d 1236, 1250 (S.D. Cal. 2000) = XXVI Y.B. Com. Arb. 910, 923 para. 32 (2001); Kaufmann-Kohler, in: Briner et al. (eds), Liber Amicorum Böckstiegel, pp. 355, 360 et seq. 329 Cf. Austria: OGH, X Y.B. Com. Arb. 417 para. 1 (1985); van den Berg, NYC, p. 204. 330 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 171. 331 Haloush, (2008) 25 J. Int. Arb. 355, 363 et seq.; Wei, Rethinking the NYC, p. 76; dissenting Alqudah, (2011) 28(1) J. Int. Arb. 67, 71; Lederer, SchiedsVZ 2017, 245, 247. 332 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 171.

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accessible so as to be useable for subsequent reference (Õ paras 120 et seq.). This also allows for the assumption of written form for the purposes of Article II(2) (Õ paras 114 et seq., Õ paras 123h et seq.). 132

(3) General Terms and Conditions. General terms and conditions containing an arbitration clause are of considerable relevance in practice. Three factual situations are mainly encountered in practice: general terms and conditions can either be embedded in the main contract or included by reference, be it on the back of a contract document or in a separate document.

(a) Scope of Uniform Law. As a starting point, two legal categories have to be distinguished, i.e. the conclusion of the arbitration agreement and its form (as a requirement for recognition, Õ para. 181).333 This distinction is reflected in Option I Article 7(6) of the Model Law but similarly applies to the form requirements explicitly outlined in Article II(2) (Õ paras 85 et seq.). Some national laws allow for general terms and conditions to become part of the contract only if specific requirements are met. These requirements aim to limit the imparity between the party introducing the general terms and the other party and possibly also to protect consumers. The law governing the conclusion of the arbitration agreement (Õ para. 42) determines the prerequisites for general terms and conditions becoming part of the contract. In contrast, whether reference to general terms and conditions containing an arbitration agreement meets the “in writing” requirement is to be assessed independently and to be determined by autonomous interpretation of Article II(2). 134 A considerable number of authors, however, deems inclusion of general terms and conditions in the contract to be generally governed by Article II(2)’s autonomous law.334 The reasons given are that Article II(2)’s unifying effect would otherwise be greatly undermined and uncertainty as to determination and contents of the applicable law would be the result.335 According to that view, Article II(2) largely meets the concerns of the national legislatures that aim to protect the weaker party and to ensure that it has the freedom to consent.336 Article II(2) is accordingly to be interpreted as autonomously governing the inclusion of general terms and conditions, thus superseding any more demanding requirement under national law.337 135 However, this view cannot be followed to a large extent. Said requirements are preempted by Article II(2) only if the national law postulates a more demanding form requirement for the inclusion of general terms and conditions in a contract (Õ para. 166). This will, however, only seldom be the case; the most prominent exception is Article 1341(2) of the Italian Civil Code, which calls for a specific 133

333 Cf. A/CN.9/WG.II/WP.139, para. 30 (p. 18) (Õ Annex IV 2); Poudret/Besson, Comparative Arbitration, para. 213. 334 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 17; Baldus, Der elektronisch geschlossene Vertrag, pp. 72 et seq.; Epping, Schiedsvereinbarung, pp. 140 et seq.; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.267, 8.292; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 174; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/ Otto/Port (eds), NYC, p. 89; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 9; for cumulative application of Article II(2)’s autonomous requirements and the law governing the arbitration agreement Czernich, Kurzkommentar, Art. II para. 47. 335 Epping, Schiedsvereinbarung, p. 137; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 174; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 89; van den Berg, NYC, p. 209. 336 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 89; van den Berg, NYC, p. 209. 337 Van den Berg, NYC, p. 209.

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acceptance by the other party in order to be effective.338 National laws mostly protect the other party to the contract by other means than form requirements. While it is true that Article II(2) ousts provisions under national law which have the same purpose as Article II’s “in writing” requirement (Õ para. 166), the provisions on the inclusion of general terms and conditions pursue a different purpose. They indeed aim to limit the imparity between the parties (Õ para. 133), but that is not the same as Article II(2)’s rationale to provide evidence (Õ paras 79 et seq.). Article II therefore does not oust provisions on the inclusion of general terms and conditions under national law.339 The other view would result in different rules being applied to the inclusion of an arbitration clause in general terms and conditions: the courts at the place of arbitration who operate outside the scope of the New York Convention would apply the law governing the arbitration agreement while foreign courts would apply autonomous rules under Article II.340 This inconsistency weighs heavier than the inconvenience of determining the applicable national law (Õ para. 134). (b) Parties’ Signatures or Exchange of Letters or Telegrams. General terms and 136 conditions usually do not raise specific issues of form if they are directly contained in the main contract. Otherwise, Article II(2)’s form requirements are mostly deemed to be met if some kind of written reference to the general terms and conditions exists (Õ paras 137 et seq.) and the other party could reasonably take note of the general terms’ and conditions’ content (Õ paras 140 et seq.). (aa) Reference. If the arbitration agreement is not contained in the main contractual 137 document (i.e. the document signed or the offer exchanged) but rather in a third document, the main contractual document needs to include a reference in writing341 to that third document in order to comply with one of the listed options under Article II(2). This follows both from the wording of the provision and from its rationale: Article II(2) refers to an arbitral clause “in” a contract and to an agreement contained “in” an exchange of letters or telegrams. Without a reference, the arbitration agreement contained in a separate document would neither be “in” the contract nor “in” the exchanged letter or telegram.342 And it would not correspond to the rationale of Article II(2)’s listed options to provide evidence for the conclusion of the arbitration agreement and its contents (Õ paras 79 et seq.) if such reference were not itself made in writing. However, the reference does not need to be included above a signature343 if only it makes the referenced document part of the contract under the law governing the arbitration 338 See van den Berg, NYC, pp. 211 et seq.; apparently dissenting (Article 1342(2) of the Italian Civil Code to be considered as a question of validity under Article II(3)) Italy: Cass., XLIII Y.B. Com. Arb. 481 para. 14 (2018). 339 Germany: OLG Düsseldorf, IPRax 1997, 115, 117 and IPRax 1997, 118, 120 et seq. (for futures; with dissenting case note Thorn, IPRax 1997, 98 et seq.); Gildeggen, Schiedsvereinbarungen in AGB, pp. 141 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.214. 340 Wolff, in: Piers/Aschauer (eds), Arbitration in the Digital Age, pp. 151, 165. 341 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 19; Gildeggen, Schiedsvereinbarungen in AGB, pp. 62 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.174; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.312; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 170; Sieg, RIW 1998, 102, 106; Wackenhuth, ZZP 99 (1986), 445, 456; dissenting UK: Zambia Steel & Building Supplies Ltd. v. James Clark & Eaton Ltd., XIV Y.B. Com. Arb. 715, 722 paras 18 et seq. (1989); Abdullah M Fahem & Co. v. Mareb Yemen Insurance Co., XXIII Y.B. Com. Arb. 789, 791 paras 6 et seq. (1998). 342 Van den Berg, NYC, p. 210; see also Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.312. 343 Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409, 411 = XXXI Y.B. Com. Arb. 652, 656 para. 6 (2006); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.312.

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agreement. The arbitration agreement needs to be covered by the reference;344 “all other terms and conditions for supply” may not meet that requirement.345 138 There is much debate about whether the reference needs to specifically refer to the arbitration agreement contained in the general terms and conditions (“specific reference”)346 or whether a reference to the entire document (“general reference”) suffices347. Since arbitration clauses can easily be hidden in general terms and conditions, it is true that a general reference does not effectively warn the other party.348 Warning the parties, however, is not part of Article II(2)’s mission (Õ paras 81 et seq.). It may be legitimate to protect the party that does not introduce the general terms and conditions, but this is to be achieved by the relevant national law on inclusion of general terms and conditions (Õ paras 133 et seq.). The mere evidentiary purposes of Article II(2) are complied with by a general reference. This is in line with the fact that no party needs to be made aware of an arbitration clause contained in the body of a contract under Article II(2) (Õ para. 94), even if that clause qualifies as general terms and conditions. 139 It is often proposed that the reference to general terms and conditions must, in principle, be explicit.349 However, Article II(2)’s wording neither requires such express reference nor does such requirement conform with the general acceptance of implied agreements.350 The same rationale applies here as to the documents exchanged under Article II(2) option 2, which likewise do not need to explicitly refer to each other (Õ para. 99). Instead of defining the borderline between explicit and implied consent (which may be difficult in a given case), the form requirement’s evidentiary purpose (Õ paras 79 et seq.) advocates a reading according to which Article II(2) requires nothing but a sufficiently clear reference. Some assume an exception if the parties had 344 US: Coimex Trading (Suisse) S.A. v. Cargill Int’l S.A., 2005 U.S. Dist. LEXIS 6589, *3 et seq. (S.D.N.Y. 2005) = XXXI Y.B. Com. Arb. 1090, 1093 et seq. paras 6 et seq. (2006); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 100; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 93. 345 India: Alimenta S.A. v. National Agricultural Co-Operative, [1987] INSC 6. 346 France: Cass., Rev. arb. 1990, 134, 139 = XV Y.B. Com. Arb. 447, 448 para. 3 (1990); Italy: Cass., sez. un., I Y.B. Com. Arb. 190 (1976); Cass., XXII Y.B. Com. Arb. 734, 735 para. 2 (1997); CA Brescia, VIII Y.B. Com. Arb. 383, 384 et seq. para. 3 (1983); Switzerland: OG Basel-Land, XXI Y.B. Com. Arb. 685, 686 et seq. paras 7 et seq. (1996); Czernich, Kurzkommentar, Art. II para. 36; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 173; van den Berg, NYC, p. 216 (for general terms and conditions on the back of the contract); see also US: Japan Sun Oil Co. v. M/V MAASDIJK, XXII Y.B. Com. Arb. 884, 886 et seq. paras 5 et seq. (1997) (E.D. La. 1994). 347 France: TGI Strasbourg, II Y.B. Com. Arb. 244 (1977); Germany: BGH, II Y.B. Com. Arb. 242 (1977); BayObLG, NJW-RR 1999, 644, 645; Italy: Cass., XXXVII Y.B. Com. Arb. 255 para. 8 (2012); Switzerland: BG, XV Y.B. Com. Arb. 509, 511 para. 3 (1990); OG Basel-Land, XXI Y.B. Com. Arb. 685, 687 para. 6 (1996); US: Polytek Eng’g Co. v. Jacobson Cos., XXIII Y.B. Com. Arb. 1103, 1106 para. 8 (1998) (D. Minn. 1997); Standard Bent Glass Corp. v. Glassrobots Oy, 333 F.3d 440, 446 et seq. (3d Cir. 2003) = XXIX Y.B. Com. Arb. 978, 984 et seq. paras 14 et seq. (2004); Verolme Botlek B.V. v. Lee C. Moore Corp., XXI Y.B. Com. Arb. 824, 827 para. 7 (1996) (N.D. Okla. 1995); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 19; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.311; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 379; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 112 et seq.; van den Berg, NYC, p. 221 (in case of ongoing business relationship); Wackenhuth, ZZP 99 (1986), 445, 458 et seq. (with an exception for ongoing business relations). 348 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.176; van den Berg, NYC, p. 218. 349 France: Cass., Rev. arb. 1990, 134, 138 et seq. = XV Y.B. Com. Arb. 447, 448 para. 3 (1990); Germany: OLG München, NJW-RR 1996, 1532; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.312; see also France: Cass., XX Y.B. Com. Arb. 660, 661 para. 5 (1995). 350 Born, International Commercial Arbitration, pp. 686 et seq.; van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 25, 41; see also US: Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, 584 F.3d 513, 555 (3d Cir. 2009) = XXXV Y.B. Com. Arb. 485 para. 106 (2010).

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an ongoing business relation.351 While such relation may lower the requirements for inclusion of general terms and conditions under the applicable law (Õ para. 42), it cannot alleviate the form requirement: without reference the inclusion cannot be evidenced as required by Article II(2), regardless of what relationship the parties had.352 (bb) Reasonable Opportunity to Take Note of the General Terms’ and Conditions’ 140 Content. Most courts and authors require not only a reference to the general terms and conditions including the arbitration agreement, but also that the other party had a reasonable opportunity to take note of the general terms’ and conditions’ content.353 According to this position, the “in writing” requirement under Article II(2)’s two explicitly listed options is only met if the general terms and conditions have been transmitted to the other party at the latest at the time of the contract conclusion.354 This will usually be done together with the offer,355 but can also be accomplished between offer and acceptance. If the general terms and conditions have already been transmitted on the occasion of an earlier contract conclusion, they do not need to be transmitted again.356 Exceptions are discussed if the offer contains an explicit reference to an arbitration 141 clause in general terms and conditions which have not been transmitted (though the existence of a duty to inquire is doubtful if the arbitration clause is not fully reproduced in the reference)357 and if terms and conditions drafted by professional associations or 351 France: Cass., XX Y.B. Com. Arb. 660, 661 para. 4 (1995); Di Pietro, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 355, 359 et seq. = (2004) 21 J. Int. Arb. 439, 442 et seq.; dissenting Netherlands: Hof Den Haag, X Y.B. Com. Arb. 485, 486 (1985); Gildeggen, Schiedsvereinbarungen in AGB, pp. 76 et seq.; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.315, 8.316; van den Berg, NYC, p. 221; Wackenhuth, ZZP 99 (1986), 445, 465 et seq. 352 See also Binder, UNCITRAL Model Law Jurisdictions, p. 134 (no defined legal relationship). 353 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 19; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.311, 8.313; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 170 et seq.; van den Berg, NYC, p. 210. 354 France: Cass., Rev. arb. 1990, 134, 138 et seq. = XV Y.B. Com. Arb. 447, 448 para. 3 (1990); Germany: BGH, NJW 1984, 2763, 2764 et seq. = X Y.B. Com. Arb. 427, 430 para. 7 (1985); OLG München, NJW-RR 1996, 1532; US: Bothell v. Hitachi Zosen, 97 F. Supp. 2d 1048, 1053 (W.D. Wash. 2000) = XXVI Y.B. Com. Arb. 939, 944 para. 17 (2001); Haas, Anerkennung und Vollstreckung, p. 171; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.313; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 171; Schlosser, ZEuP 1994, 685, 692 et seq.; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 9; Sieg, RIW 1998, 102, 106; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 108; van den Berg, NYC, p. 220; Voit, in: Musielak/ Voit (eds), ZPO, sect. 1031 para. 18; Wackenhuth, ZZP 99 (1986), 445, 458 et seq.; dissenting Gentinetta, Lex fori, p. 318. 355 Germany: BGH, II Y.B. Com. Arb. 242, 243 (1977); OLG Schleswig, IPRspr. 2000, No. 185, 409, 412 = XXXI Y.B. Com. Arb. 652, 656 et seq. para. 8 (2006); Spain: TS, X Y.B. Com. Arb. 493, 494 para. 6 (1985); US: Ferrara S. p. A. v. United Grain Growers Ltd., 441 F. Supp. 778 (S.D.N.Y. 1977) = IV Y.B. Com. Arb. 331, 332 (1979); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 113. 356 France: Cass., Rev. arb. 1990, 134, 141 = XV Y.B. Com. Arb. 447, 448 para. 3 (1990); Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409, 411 et seq. = XXXI Y.B. Com. Arb. 652, 656 et seq. para. 8 (2006); Spain: TS, XIII Y.B. Com. Arb. 512, 513 para. 2 (1988); Switzerland: BG, BGE 121 III 38, 45 et seq. = XXI Y.B. Com. Arb. 690, 697 para. 10 (1996); CJ, 15(4) ASA Bull. 667, 672 (1997) = XXIII Y.B. Com. Arb. 764, 768 et seq. para. 19 (1998); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 19; Gildeggen, Schiedsvereinbarungen in AGB, p. 71; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.315; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 171; Wackenhuth, ZZP 99 (1986), 445, 459; see also Switzerland: BG, BGE 110 II 54, 59 = XI Y.B. Com. Arb. 532, 534 para. 9 (1986). 357 Switzerland: OG Basel-Land, XXI Y.B. Com. Arb. 685, 687 para. 6 (1996); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.310, 8.314; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 173; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 113; van den Berg, NYC, pp. 220 et seq.; similarly Switzerland: BG, BGE 110 II 54 = XI Y.B. Com. Arb. 532, 534 paras 8 et seq. (1986).

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similar third persons which are publicly available are included by reference.358 Reference to self-drafted general terms and conditions which had not been transmitted is not deemed to be sufficient, even if the arbitration clause contained therein is common in the respective business.359 142 The reasonable opportunity to take note of the general terms’ and conditions’ content is also denied if the general terms and conditions are drafted neither in the language of the contract nor in a global language360 or if they are not sufficiently transparent361. 143 The better arguments advocate that a reasonable opportunity to take note of the general terms’ and conditions’ content does not form part of Article II(2)’s form requirement.362 Such opportunity aims to protect the party that did not introduce the general terms and conditions. It forms part of the rules on inclusion of general terms and conditions, as can be seen from the fact that this requirement normally also applies to general terms and conditions other than arbitration agreements. The inclusion of general terms and conditions in the contract, however, is subject to the law governing the arbitration agreement rather than to the autonomous provisions of Article II(2) (Õ para. 135). Article II(2) is concerned only with issues of form in order to provide evidence. This rationale requires an opportunity to take note just as little as it requires that all parties have read and understood an arbitration clause contained in a contract (Õ paras 94 et seq.). 144

(c) Reference in a Contract Under Option I Article 7(6) of the Model Law as Incorporated in Article II(2). Option I Article 7(6) of the Model Law – to which recourse is to be taken for assessing Article II(2)’s unlisted options (Õ paras 114 et seq.) – is significantly more liberal than Article II(2)’s listed options. In particular, the reference to the general terms and conditions in the contract (Õ paras 137 et seq.) does not require written form itself (Õ para. 123). The extent to which the other party needs to have the opportunity to take note of the general terms’ and conditions’ content is determined by the law governing the arbitration agreement rather than by Article II(2) itself (Õ para. 143).

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(4) Referenced Documents Other than General Terms and Conditions. (a) Contract Addendum, Extension, Novation or Settlement. Reference to documents containing arbitration agreements also occurs where no general terms and conditions are involved. One factual situation raised by the UNCITRAL Secretary-General is where the original contract contains a validly concluded arbitration clause, but there is no arbitration clause in an addendum to the contract, an extension of the contract, a 358 Italy: Cass., X Y.B. Com. Arb. 473, 475 para. 4 (1985); CA Venezia, VII Y.B. Com. Arb. 340, 341 para. 3 (1982); Switzerland: HG Zürich, XVIII Y.B. Com. Arb. 442, 443 paras 9 et seq. (1993); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 19; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.316; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 171; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 379. 359 France: Cass., Rev. arb. 1990, 134, 138 et seq. = XV Y.B. Com. Arb. 447 paras 2 et seq. (1990); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.316; differently for general terms and conditions which have not been objected to later US: Copape Produtos de Pétroleo LTDA. v. Glencore Ltd., 2012 WL 398596 at *6 (S.D.N.Y. 2012). 360 Czernich, Kurzkommentar, Art. II para. 38; Gildeggen, Schiedsvereinbarungen in AGB, pp. 81 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.176; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.314; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 114; for English-language terms in a German-language contract see Switzerland: HG Zürich, ZEuP 1994, 682, 684; dissenting Italy: Cass., XXII Y.B. Com. Arb. 715, 720 para. 11 (1997). 361 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.314; Lindacher, in: Lindacher et al. (eds), Festschrift Habscheid, pp. 167, 173. 362 Similarly Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 73.

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contract novation or a settlement agreement relating to the contract (such a “further” contract may have been concluded orally or in writing).363 Another factual situation is a collective bargaining agreement containing an arbitration clause that is referenced in an employment contract.364 A two-tiered test is to be applied to these factual situations: first, does the second 146 agreement require written form under Article II(2) at all? This depends on the relation between the first agreement’s arbitration clause and the subject matter of the second agreement (Õ paras 88 et seq.). Second, if the second agreement needs to be in writing, does it sufficiently reference the first agreement’s arbitration clause? The same rules apply here as for including general terms and conditions, i.e. the reference itself needs to be in writing under Article II(2)’s explicitly listed options (Õ paras 137 et seq.)365 while any reference suffices under Option I Article 7(6) of the Model Law as incorporated in the unlisted options of Article II(2) (Õ para. 144). (b) Bill of Lading and Charter Party. Arbitration agreements are common in the 147 context of bills of lading. While some national arbitration laws provide for privileged inclusion of arbitration agreements in bills of lading,366 any arbitration agreement needs to comply with Article II(2)’s form prerequisites in order to enjoy protection under the Convention. Recognition may, however, be facilitated by superseding conventions.367 If the bill of lading contains an arbitration clause or incorporates by reference 148 (Õ paras 137 et seq.) the terms of a charter party containing an arbitration clause, Article II(2)’s form requirements need to be met. For meeting the requirements of party signatures or exchange of documents, the carrier’s signature on the bill of lading does not suffice, even if tacitly accepted by the shipper.368 The agreement will only be in writing under one of the listed options of Article II(2) if the shipper also signs the bill of lading or returns a confirmation.369 However, Option I Article 7(6) of the Model Law as incorporated in Article II(2) (Õ paras 114 et seq.) is already complied 363

A/CN.9/WG.II/WP.108/Add.1, para. 12 (g) (p. 4) (Õ Annex IV 2). US: Alvarado Vera v. Cruise Ships Catering & Servs. Int’l, N.V., XL Y.B. Com. Arb. 528 para. 10 (2015) (11th Cir. 2014); Sierra v. Cruise Ships Catering & Servs. Int’l, N.V., XLI Y.B. Com. Arb. 636 para. 6 (2016) (11th Cir. 2015); Imam Shah v. Blue Wake Shipping, XLII Y.B. Com. Arb. 633 para. 16 (2017) (W.D. La. 2016); Pagaduan v. Carnival Corp., 709 Fed. Appx. 713, 717 (2d Cir. 2017) = XLIII Y.B. Com. Arb. 652 para. 14 (2018). 365 Dissenting US: Eres, N.V. v. Citgo Asphalt Ref., 2010 U.S. Dist. LEXIS 47691, *28 (S.D. Tex. 2010) = XXXV Y.B. Com. Arb. 540 para. 31 (2010); for references in writing see US: Alvarado Vera v. Cruise Ships Catering & Servs. Int’l, N.V., XL Y.B. Com. Arb. 528 para. 10 (2015) (11th Cir. 2014); SBMH Group DMCC v. Noadiam USA, LLC, XLIII Y.B. Com. Arb. 646 para. 30 (2018) (S.D. Fla. 2017); Sierra v. Cruise Ships Catering & Servs. Int’l, N.V., XLI Y.B. Com. Arb. 636 para. 7 (2016) (11th Cir. 2015). 366 Example: section 1031(4) of the German Code of Civil Procedure in its pre-2013 version. 367 For the United Nations Convention on the Carriage of Goods by Sea of Mar. 31, 1978 (1695 U.N.T.S. 3 (1999), the “Hamburg Rules”), see Gildeggen, Schiedsvereinbarungen in AGB, pp. 74 et seq.; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.318, 8.319; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 384; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 118. 368 Switzerland: BG, BGE 110 II 54, 57 et seq. = XI Y.B. Com. Arb. 532, 533 et seq. paras 4 et seq. (1986); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.197; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.318; Kessedjian, Rev. arb. 1990, 136, 139; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 384; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 118; dissenting Greece: CA Athens, XIV Y.B. Com. Arb. 634, 635 para. 2 (1989). 369 France: Cass., Rev. arb. 1990, 617; Epping, Schiedsvereinbarung, pp. 65 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.197; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.318; Kessedjian, Rev. arb. 1990, 136, 139; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 384; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 118; see also Italy: Cass., sez. un., XXVII Y.B. Com. Arb. 506, 508 para. 4 (2002); dissenting Switzerland: BG, BGE 121 III 38, 45 = XXI Y.B. Com. Arb. 690, 696 et seq. paras 10 et seq. (1996). 364

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with under these circumstances if the arbitration agreement has been concluded under the law governing it (Õ para. 144).370 149 If the bill of lading is endorsed to a subsequent holder, the endorser’s signature does not perfect the written form as required by Article II(2)’s explicitly listed options. The reason is that this second signature relates to the endorsement contract with the endorsee rather than to the arbitration clause concluded with the shipper.371 Reference to Option I Article 7(6) of the Model Law (Õ paras 114 et seq.) allows for recognition only if the arbitration agreement has been validly concluded and its contents are recorded (Õ para. 144). However, if the bill of lading already contains an arbitration agreement in writing (Õ para. 148), an endorsement valid under the national law governing it transfers the written arbitration agreement to the endorsee (Õ para. 153).372 (5) Third Parties Not Having Concluded the Arbitration Agreement. (a) Third Party Beneficiary. Under most national laws, contracts can include arbitration clauses that are also valid for third party beneficiaries who have not become party to the contract. The rationale is that such a contract gives rise only to rights and not to duties of the third party. If that third party by definition only benefits from the contract, in the overall view it is not burdened if the enforcement of its rights is bound to arbitration. 151 While a contract for the benefit of a third party certainly meets the “in writing” requirement under Option I Article 7(3) of the Model Law as incorporated in Article II(2) (Õ paras 114 et seq.), it is acknowledged that such a contract can also meet written form under the two listed options of Article II(2).373 This view is supported by the fact that the third party beneficiary does not become party to the contract so that it neither needs to sign nor to exchange documents. 151a These rules likewise apply to investment arbitration conducted under bi- or multilateral investment treaties. Such treaties, concluded between States, give the investors of one State substantive rights that protect their investments in the other State. The treaties likewise foresee that investors claiming a violation of these rights can initiate arbitral proceedings against the State. If the arbitration agreement underlying such investment arbitrations were only to be perfected by the State’s offer (to all investors in the treaty) and the investor’s acceptance (by requesting arbitration),374 Article II(2)’s listed options 150

370 See India: Owners & Parties Interested in the Vessel M.V. Baltic Confidence v. State Trading Corp. of India, XXVII Y.B. Com. Arb. 478, 479 et seq. paras 2 et seq. (2002); UNCITRAL Secretariat, Guide, Art. II para. 21. 371 Italy: Cass., sez. un., V Y.B. Com. Arb. 267, 268 para. 3 (1980); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.197; an exception applies if the endorsement explicitly references the arbitration agreement (India: Owners & Parties Interested in the Vessel M.V. Baltic Confidence v. State Trading Corp. of India, XXVII Y.B. Com. Arb. 478, 480 paras 3 et seq. (2002); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.319). 372 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.319; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 118. 373 US: Borsack v. Chalk & Vermilion Fine Arts, Ltd., XXIII Y.B. Com. Arb. 1038, 1042 et seq. paras 13 et seq. (1998) (S.D.N.Y. 1997); Black & Veatch Int’l Co. v. Wartsila NSD N. Am., Inc., XXV Y.B. Com. Arb. 878, 881 para. 7 (2000) (D. Kan. 1998); see also US: Todd v. S.S. Mut. Underwriting Ass’n (Berm.), XXXVI Y.B. Com. Arb. 370 para. 64 (2011) (E.D. La. 2011); but see Germany: KG, SchiedsVZ 2013, 112, 116 = XXXVIII Y.B. Com. Arb. 384 para. 16 (2013) (employing Article VII(1)); apparently dissenting Outokumpu Stainless USA, LLC v. Converteam SAS, 902 F.3d 1316, 1327 (11th Cir. 2018) = XLIII Y.B. Com. Arb. 765 para. 42 (2018). 374 In that sense Germany: BGH, SchiedsVZ 2019, 46, 48 para. 17; US: Republic of Ecuador v. Chevron Corp., XXXVI Y.B. Com. Arb. 451 paras 11, 13 (2011) (2d Cir. 2011) (for the Ecuador-US BIT which stipulates that an “agreement in writing” for purposes of Article II NYC is created when a foreign company gives notice in writing to a BIT signatory and submits an investment dispute to arbitration [para. 12]).

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for an agreement in writing would be difficult to construe: since no documents have previously been exchanged between State and investor, the arbitration agreement would need to be included in the request for arbitration and be signed by (or on behalf of) the investor (Õ para. 96; for Article II(2)’s unlisted options, Õ paras 117 et seq.). However, if the treaty can already be qualified as a contract to the benefit of the investors (Õ para. 44), the treaty includes the arbitration agreement and will also be signed by the States so that an agreement in writing exists that even corresponds to Article II(2)’s listed options.375 (b) Legal Successor. National law usually binds legal successors to arbitration 152 agreements to the same extent that their predecessor was bound, both in cases of universal succession (merger, death) and singular succession (assignment). This transfer takes place regardless of the successor’s knowledge and intention. The main idea behind this view is that the dispute resolution mechanism becomes attached to the claim and cannot be divorced by unilaterally assigning the claim. Contrary to the findings of some courts, the same rationale, namely to uphold the 153 arbitration agreement, must be applied to the recognition of arbitration agreements under Article II(2) as well. It is therefore sufficient that the arbitration agreement had once been concluded in writing; later successions do not need to comply with Article II(2)’s form requirements.376 “Signed by the parties” is therefore to be read as “signed by the parties at the time of concluding the contract.” The same reasoning applies to the transfer of the entire contract including rights and duties.377 In contrast, a party joining a contract which includes an arbitration clause is not 154 exempt from the “in writing” requirement. Unlike in case of assignment (Õ paras 152 et seq.), the arbitration clause will stay in force for the original parties to the contract and is therefore not in need of protection. It would not be reconcilable with Article II(2)’s form requirement for relevant extensions of a contract pre-existing between the parties (Õ para. 89) to not require written form if a new party joins the contract. Moreover, if the contract had been concluded between three parties, the “in writing” requirement would have to be adhered to by all parties (Õ para. 95). There is no reason to assess the subsequent accession differently. Thanks to the most liberal approach taken by Option I Article 7(3) of the Model Law (Õ paras 117 et seq.), which de facto allows for accession without form requirements, the relevance of this issue will ultimately be limited.

375 Germany: OLG Hamm, SchiedsVZ 2013, 182, 183 (also holding that the claimant behaves contradictorily if it relies on the lack of a written arbitration agreement for claims not covered by the BIT); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 104. For the Algiers Accords that constituted the Iran-United States Claims Tribunal (Õ Art. I para. 90), see US: Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc., 887 F.2d 1357, 1363 (9th Cir. 1989) = XV Y.B. Com. Arb. 605, 607 et seq. paras 9 et seq. (1990). 376 US: Basargin v. Shipowners’ Mut. Prot. & Indem. Ass’n, XXII Y.B. Com. Arb. 894, 896 para. 6 (1997) (D. Alaska 1995); Nanko Shipping, Guinea v. Alcoa, Inc., XLIII Y.B. Com. Arb. 772 para. 18 (2018) (D.D.C. 2018); Outokumpu Stainless USA, LLC v. Converteam SAS, XLII Y.B. Com. Arb. 661 para. 94 (2017) (S.D. Ala. 2017) (not discussed in detail); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.189; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.309; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 111; dissenting Italy: CA Salerno, XXI Y.B. Com. Arb. 576, 578 para. 5 (1996); Russia: Moscow District Court, XXIII Y.B. Com. Arb. 745, 748 para. 11 (1998). 377 US: Technetronics, Inc. v. Leybold AG, XIX Y.B. Com. Arb. 843, 848 para. 14 (1994) (E.D. Pa. 1993); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.309; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 373; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 111; dissenting Italy: Cass., sez. un., XI Y.B. Com. Arb. 518 (1986).

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(c) Group of Companies. The group of companies doctrine originates from French law (Õ paras 251 et seq.). Since it treats the non-signatory company like an additional party to the arbitration agreement, the non-signatory needs to adhere to the “in writing” requirement just as an original additional party to the contract or a party subsequently joining the contract does (Õ para. 154).378

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(6) Power of Attorney/Agency. Form requirements for a power of attorney to conclude an arbitration agreement are not governed by Article II(2) but rather by the substantive law applicable under the lex fori’s conflict of law rules.379 These rules, however, may stipulate that the power of attorney shares the main contract’s form requirement that again would be the written form prescribed under Article II(2).380 A broker sending confirmations to both parties to the contract can have a power of attorney for both parties (Õ para. 128). Article II(2)’s exchange of document requirement is then met if each party returns a confirmation to the broker.381 Generally for the law governing the power of attorney Õ para. 45.

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c) Remedying the Lack of Form by Failure to Object Article II(2) does not provide for any means of curing an arbitration agreement’s lack of form, i.e. for a remedy that eliminates the lack of form (Õ para. 51).382 However, the prohibition of venire contra, which is enshrined in the Convention itself, can preclude a party from relying on a lack of form if such reliance contradicts that party’s previous conduct (Õ para. 53).383 In other factual situations, including those in which only procedural efficiency is at stake, the party may be precluded from reliance on the lack of form under the recognition court’s lex fori (Õ para. 54).384

2. Subject Matter Capable of Settlement by Arbitration 158

An arbitration agreement is only to be recognized under Article II(1) if it concerns “a subject matter capable of settlement by arbitration.” This capability describes the

378 Poudret, 22(2) ASA Bull. 390, 394 et seq. (2004); Poudret/Besson, Comparative Arbitration, para. 258 (concerning Swiss law); dissenting Hanotiau, in: van den Berg (ed.), Back to Basics?, pp. 341, 348 et seq.; ICCA, Guide, p. 59; Rubins, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 449, 454 (understanding Article II(2) as non-exhaustive); Sinclair, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 381, 388. 379 Austria: OGH, XXI Y.B. Com. Arb. 521, 523 para. 8 (1996); Italy: Cass., sez. un., X Y.B. Com. Arb. 464, 465 para. 5 (1985); CA Napoli, VIII Y.B. Com. Arb. 380 para. 1 (1983); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 16; Czernich, Kurzkommentar, Art. II para. 24; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.239; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.320; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 79; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 19; van den Berg, NYC, p. 226; dissenting (uniform law) Germany: LG Hamburg, RIW 1978, 124, 126 = III Y.B. Com. Arb. 274, 275 (1978); Reiner, in: van den Berg (ed.), 40 Years of NYC, pp. 82, 88 et seq.; see also (on the burden of proof for a sufficient power of attorney) Austria: OGH, XXXII Y.B. Com. Arb. 254, 257 et seq. (2007); leaving open the question Germany: LG Hamburg, XII Y.B. Com. Arb. 487, 488 para. 1 (1987). 380 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.320; van den Berg, NYC, p. 223. 381 Germany: LG Hamburg, II Y.B. Com. Arb. 235 (1977); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 15; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.183; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.320; dissenting Germany: OLG Köln, IPRax 1993, 399, 400 = XXI Y.B. Com. Arb. 535, 536 et seq. para. 3 (1996). 382 Dissenting (cure under domestic law) Greece: CA Athens, XIV Y.B. Com. Arb. 638 paras 1 et seq. (1989). 383 Dissenting Italy: Cass., sez. un., XX Y.B. Com. Arb. 739, 741 para. 4 (1995). 384 US: Slaney v. Int’l Amateur Athletic Fed’n, 244 F.3d 580, 591 para. 4 (7th Cir. 2001) = XXVI Y.B. Com. Arb. 1091, 1098 et seq. para. 12 (2001).

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subject matter’s arbitrability that also serves as a ground for denial of recognition and enforcement under Article V(2)(a) and is explained there in detail (Õ Art. V paras 418 et seq.). While Article V(2)(a) explicitly designates the law of the enforcement country as 159 applicable to arbitrability, Article II(1) is silent on the governing law. Accordingly, nearly every conceivable position as to which law governs arbitrability has been taken:385 the Convention itself by way of uniform law,386 the law governing the arbitration agreement (Õ para. 42),387 the lex fori,388 both the law governing the arbitration agreement and the lex fori,389 the lex arbitri390 or the domestic law to be determined under the lex fori’s conflict of law rules.391 As a first step, Article V(2)(a) needs to be applied analogously so that arbitrability is 160 to be determined under the lex fori in the pre-award stage as well. The reason for this is twofold: first, applying the lex fori safeguards consistency in the pre- and the post-award stage.392 It would not be sensible to enforce an arbitration agreement even though a subsequent award would not enjoy protection under Article V(2)(a). Second, the rationale behind Article V(2)(a)’s stipulation to have the arbitrability governed by the lex fori lies in that State’s public interest (Õ Art. V para. 421). If a State decides to withhold specific matters from arbitration and to have them exclusively decided by the state courts, this rationale must apply equally in regard to arbitration agreements and to arbitral awards. As a second step, the subject matter covered by the arbitration agreement also needs 161 to be arbitrable under the law governing the arbitration agreement (Õ para. 42). An arbitration agreement is invalid to the extent that the subject matters covered lack arbitrability, which invokes the law governing the arbitration agreement according to Article V(1)(a).393 This position is challenged by the argument that Article II distinguishes between the subject matter’s arbitrability in paragraph 1 and the agreement’s 385

For an overview, see Hanotiau, (1996) 12 Arb. Int’l 391, 398 et seq. US: Meadows Indem. Co. v. Baccala & Shoop Ins. Servs., Inc., 760 F. Supp. 1036, 1041 et seq. (E.D.N.Y. 1991) = XVII Y.B. Com. Arb. 686, 690 et seq. paras 7 et seq. (1992); in favor of uniform law limits on the lex fori Born/Koepp, in: Bachmann et al. (eds), Festschrift Schlosser, pp. 59, 72 et seq. 387 Belgium: CA Bruxelles, XIV Y.B. Com. Arb. 618, 619 paras 3 et seq. (1989); Tribunal de Commerce de Bruxelles, Rev. arb. 1995, 311, 315 et seq.; Hanotiau, Rev. arb. 1995, 317, 322 et seq. 388 Belgium: Cass., XXXI Y.B. Com. Arb. 587, 591 para. 6 and 593 et seq. paras 11 et seq. (2006); Tribunal de Commerce de Bruxelles, XXV Y.B. Com. Arb. 673, 675 para. 5 (2000); Switzerland: Kantonsgericht Zug, GVP 2006, 179, 183; US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 639 (1985) = XI Y.B. Com. Arb. 555, 565 paras 23 et seq. (1986); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 11; Arfazadeh, (2001) 17 Arb. Int’l 73, 80 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.205; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.356; Hanotiau, in: van den Berg (ed.), 40 Years of NYC, pp. 146, 167; ICCA, Guide, pp. 63 et seq.; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 299; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 75; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 72 et seq.; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 1; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 125; van den Berg, NYC, pp. 152 et seq. 389 Bernardini, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 503, 516 et seq.; Bertheau, New Yorker Abkommen, pp. 38 et seq.; Brotóns, Recueil des Cours, Vol. 184 (1984-I), pp. 173, 243; Gamauf, ZfRV 2000, 41, 47; Nolting, IPRax 1987, 349, 352; Schmidt-Ahrendts/Höttler, SchiedsVZ 2011, 267, 276; von Hülsen, Gültigkeit, p. 138; Voit, in: Musielak/Voit (eds), ZPO, sect. 1030 para. 10. 390 Berger/Kellerhals, Arbitration in Switzerland, para. 183; M. R. P. Paulsson, NYC in Action, p. 90; Poudret/Besson, Comparative Arbitration, para. 336. 391 Contini, 8 Am. J. Comp. L. 283, 296 (1959). 392 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.357; van den Berg, NYC, p. 152. 393 Italy: CA Genova, XXI Y.B. Com. Arb. 594, 599 et seq. para. 13 (1996); Switzerland: BG, 11(1) ASA Bull. 58, 62 et seq. (1993) = BGE 118 II 353, 355 = XX Y.B. Com. Arb. 766, 767 para. 1 (1995); Bernardini, 386

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validity in paragraph 3 (Õ Art. V para. 426). According to that view, arbitrability as a jurisdictional requirement cannot invalidate the arbitration agreement as a contractual requirement (Õ Art. V para. 426). This distinction, however, ignores that the arbitral tribunal’s jurisdiction is entirely of contractual origin. It is true that differences seem to exist between non-arbitrability and other grounds for invalidity.394 Lack of arbitrability, however, results in the very same effects as other grounds for invalidity, i.e. in a lack of valid submission to arbitration, and therefore cannot be classified differently.395 Article II’s distinction between invalidity and lack of arbitrability does not preclude this argument. This is established by the difference in the burdens of proof for lack of arbitrability and for other grounds for invalidity (Õ paras 176a et seq.), which justifies the explicit wording to that effect in Article II(1). 162 Applying the law governing the arbitration agreement cumulatively to the arbitrability of the subject matter is also not opposed by considerations of practicability. It has been countered that a court is less suitable for deciding on the arbitrability under the law of another country.396 However, the explicit stipulation in Article V(1)(a) obliges the court to apply the law governing the arbitration agreement to its validity. This will often be a foreign law. It cannot be less suitable for the court to apply foreign law on arbitrability than on other grounds for invalidity. It has also been argued that the law of the place of arbitration that usually governs the arbitration agreement has little in common with the subject matter in dispute, since it is often chosen for reasons of neutrality.397 While the latter holds true, in the standard cases the parties have chosen the law by determining the place of arbitration and need to stick to that choice.398 The mere fact that a foreign court is reviewing the arbitration agreement cannot validate an agreement which is invalid under the law applicable to it.399 163 Overall, whether the subject matter of the arbitration agreement is capable of settlement by arbitration is to be determined cumulatively under the lex fori (Article V(2)(a)) and under the law governing the arbitration agreement, i.e. the law to which the parties have subjected the arbitration agreement or, failing any indication thereon, under the law of the country where the award was made (Article V(1)(a)). To that extent, Article II(1) is a uniform conflict of law rule.400

3. The Arbitration Agreement’s Validity 164

A systematic reading of Article II(1) and (3) seems to imply that the arbitration agreement’s validity does not serve as a prerequisite for recognition under Article II(1); in fact its invalidity seems to be of importance only as an objection against such an agreement’s invocation before state courts before which the dispute is brought. If that reading were correct, any Contracting State would be obliged to recognize an invalid arbitration agreement outside the scope of Article II(3). An obligation to, e.g., use the

in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 503, 504; Bernardini, in: van den Berg (ed.), 40 Years of NYC, pp. 197, 198; Denkschrift der Bundesregierung, BT-Drucks. III/2160, p. 24. 394 The arbitration agreement is void only in regard to the matter lacking arbitrability while it remains in force for arbitrable matters (Õ Art. V para. 425), which, however, can also be the effect of other grounds for invalidity which affect only a part of the arbitration agreement. 395 This applies at least to what the Convention considers as “validity” in terms of Article II(3). 396 Van den Berg, NYC, p. 153. 397 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.203. 398 Voit, in: Musielak/Voit (eds), ZPO, sect. 1030 para. 10. 399 Voit, in: Musielak/Voit (eds), ZPO, sect. 1030 para. 10. 400 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.202 et seq.

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State’s powers to assist arbitral proceedings (Õ para. 184) even where no valid arbitration agreement is present would, however, seem quite far-reaching and difficult to reconcile with Article II(3)’s restriction to valid arbitration agreements, which for the post-award phase resumes in Article V(1)(a). The better arguments therefore militate in favor of the view that Article II(3) only confirms a general prerequisite for recognition under Article II. The States are free to recognize invalid arbitration agreements,401 but Article II does not mandate such recognition. The same holds true for arbitration agreements not capable of being performed. In analogy to Article V(1)(a), the arbitration agreement’s validity is governed by the law to which the parties have subjected the arbitration agreement or, failing any indication thereon, by the law of the country where the award will be made (Õ paras 227 et seq.). The distinction between the conclusion of the arbitration agreement and its validity is irrelevant for the applicable law (Õ paras 42 et seq.) but relevant for the burden of proof (Õ paras 176a et seq.). The validity of the parties’ agreement comprises grounds such as unconscionability, malicious deceit, etc.402 As an exception, the law governing the validity of the arbitration agreement does not apply within the scope of Article II’s uniform law requirements. This holds particularly true for form requirements that are conclusively governed by Article II(1) and (2) (Õ para. 76). This provision also ousts regulations under domestic law which have the same purpose as Article II’s “in writing” requirement.403 Domestic law provisions on the inclusion of general terms and conditions will usually not aim to preserve evidence for the submission to arbitration, but rather to limit its user’s power. Contrary to the opinions of some courts and authors, they will therefore not be ousted by Article II (Õ para. 135). The law governing the validity of the arbitration agreement also does not extend to matters with a separate jurisdictional basis like, again, form (Õ paras 73 et seq.), arbitrability (Õ paras 158 et seq.) or the parties’ capacity to resort to arbitration (Õ para. 46). The law governing the arbitration agreement’s validity likewise determines the legal consequences of invalidity. This applies to the questions as to whether a lack of consent in the main contract also affects the arbitration clause contained therein or whether such a clause is understood as a separate agreement to this effect (doctrine of separability).404 It also governs the question as to whether or not the invalidity of parts of an arbitration agreement taints the entire arbitration agreement.405 For the – disputed – question as to whether a violation of the recognition court’s public policy invalidates the arbitration agreement under an analogous application of Article V(2)(b), Õ para. 307 and Õ Art. V para. 519a.

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Cf. references in Wolff, 19 Am. Rev. Int’l Arb. 145, 165 et seq. (2008). Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.219 et seq.; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.266; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 72. 403 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 17; Gildeggen, Schiedsvereinbarungen in AGB, p. 141; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.266; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 9. 404 Bermuda: Sojuznefteexport v. Joc Oil Ltd., XV Y.B. Com. Arb. 384, 403 et seq. paras 28 et seq. (1990); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.222; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.268; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 96; differently van den Berg, NYC, p. 146 (lex fori). 405 France: CA Paris, Rev. arb. 1990, 863, 865 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.226; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.268; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 73. 402

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4. European Convention a) Relation Between the New York Convention and the European Convention 168 While the New York Convention comprises an explicit provision on the recognition of arbitration agreements in its Article II, the term “arbitration agreement” as defined in Article I(2)(a) of the European Convention is a condition precedent for the European Convention’s ambit under its Article I(1)(a) (Õ Art. VII para. 78). The European Convention does, however, contain a tacit obligation to recognize arbitration agreements that meet the requirements of its Article I(2)(a).406 Since Article X(7) of the European Convention leaves the validity of the New York Convention unaffected, recognition of an arbitration agreement which falls under both Conventions can generally be sought under either one (Õ Art. VII para. 82).407 169 If an arbitration agreement is to be scrutinized incidentally within a proceeding on the recognition and enforcement of an arbitral award, the Conventions’ relation to each other is in dispute. Since the European Convention does not foresee selfcontained provisions on the recognition and enforcement of arbitral awards, recourse to Article I(2)(a) of the European Convention can only be taken from another enforcement regime, i.e. the New York Convention408 or domestic law409. This is confirmed by Article X(7) of the European Convention which leaves other arbitration conventions untouched and thus allows for a request for recognition and enforcement of an arbitral award to be based on the New York Convention. b) Recognition of Arbitration Agreements (Article I(2)(a) of the European Convention) 170 aa) Requirements Other than Form. The European Convention’s scope – which includes the recognition of arbitration agreements (Õ para. 168) – differs from the New York Convention’s ambit as it is limited to arbitration agreements on disputes arising from international trade and to persons with a diverging place of residence or seat at the time of contract conclusion (Article I(1)(a) of the European Convention, for details, Õ Art. VII para. 78). Unlike Article II(1) of the New York Convention (Õ paras 65 et seq.), Article I(2)(a) of the European Convention does not limit arbitration agreements to defined legal relationships.410 171 Within its ambit, the European Convention’s requirements for recognition of arbitration agreements are similar to those under the New York Convention. The law governing the arbitration agreement is to be determined under Article VI(2) of the European Convention, which names a third tier in case the country in which the award is to be made cannot yet be determined (for details, Õ para. 242). According to 406 Gildeggen, Schiedsvereinbarungen in AGB, p. 100; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.323; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 398. 407 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.253; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.329; Wackenhuth, ZZP 99 (1986), 445, 450 et seq. 408 Germany: BGH, IPRspr. 1970, No. 133, 455, 456 = II Y.B. Com. Arb. 236 (1977); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. II para. 23; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.254; Haas, IPRax 1993, 382, 383; Hausmann, in: Reithmann/ Martiny (eds), Internationales Vertragsrecht, para. 8.363; Mallmann, SchiedsVZ 2004, 152, 155 et seq.; van den Berg, NYC, pp. 95 et seq.; Wackenhuth, ZZP 99 (1986), 445, 450 et seq. 409 Germany: OLG Köln, IPRax 1993, 399, 400 = XXI Y.B. Com. Arb. 535, 537 para. 5 (1996); Moller, NZG 1999, 143, 145; Moller, NZG 2000, 57, 71; Gildeggen, Schiedsvereinbarungen in AGB, p. 99. 410 Adolphsen, in: MünchKommZPO, Annex 2 to sect. 1061, European Convention, Art. I para. 9; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.247; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.362; von Hülsen, Gültigkeit, pp. 32 et seq.

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Article VI(2)(1) of the European Convention, the parties’ capacity to resort to arbitration is governed by the law applicable to them (for details, Õ para. 243). The arbitrability provision in Article VI(2)(2) of the European Convention corresponds to Article V(2)(a) of the New York Convention (for details, Õ Art. V paras 418 et seq.). bb) Form Requirements. The form requirements for arbitration agreements in 172 Article I(2)(a) of the European Convention differ considerably from those stipulated by Article II of the New York Convention. The definition in Article I(2)(a) of the European Convention is divided into two parts, the first of which belongs to the European Convention’s uniform substantive law (Õ para. 173). Its second part refers to less demanding requirements under the national laws of the States involved (Õ paras 174 et seq.). (1) Autonomous Form Requirement (Article I(2)(a) Option 1 of the European 173 Convention). Article I(2)(a) option 1 of the European Convention closely matches the explicitly listed options under Article II(2) of the New York Convention so that reference can be made to Õ paras 73 et seq. Communication by teleprinter is explicitly referenced; other means of transmission are covered by way of analogy (Õ para. 130).411 Oral or tacit acceptance of a written offer does not suffice (Õ para. 95, Õ para. 98).412 An arbitration agreement in general terms and conditions can be included by general reference (Õ para. 138),413 which itself needs to be in writing (Õ para. 137).414 Written acceptance can be included in submissions made to courts or arbitral tribunals.415 Unlike Article II(2)’s “including” (Õ para. 105), Article I(2)(a) of the European Convention does not include permissive language that allows a non-exhaustive understanding of the provision’s “in writing” requirements.416 (2) More Favorable Form Requirements Under National Laws (Article I(2)(a) 174 Option 2 of the European Convention). According to the second option of Article I(2)(a) of the European Convention, in relations between States whose laws do not require that an arbitration agreement be made in writing, the form requirement is also met if the arbitration agreement complies with the form authorized by these laws. Which States Article I(2)(a) of the European Convention designates is a matter of dispute. According to the prevailing view, these are the States referred to in Article I(1)(a) of the European Convention, i.e. the States of residence or seat.417 411 Hascher, XVII Y.B. Com. Arb. 711, 720 para. 21 (1992); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.324; Poudret/Besson, Comparative Arbitration, para. 190; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 399. 412 Adolphsen, in: MünchKommZPO, Annex 2 to sect. 1061, European Convention, Art. I para. 12. 413 Adolphsen, in: MünchKommZPO, Annex 2 to sect. 1061, European Convention, Art. I para. 14; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.324. 414 Cf. Germany: OLG Hamburg, RIW 1979, 482, 483 with case note Mezger = V Y.B. Com. Arb. 262, 263 et seq. para. 4 (1980). 415 Germany: BGH, NJW 1983, 1267, 1268 (on Article I(2)(a) of the European Convention); OLG Köln, RIW 1992, 760 = XIX Y.B. Com. Arb. 856, 857 para. 4 (1994); ICC: Seller v. Buyer (Case No. 6531), XVII Y.B. Com. Arb. 221, 222 et seq. para. 6 (1992); Adolphsen, in: MünchKommZPO, Annex 2 to sect. 1061, European Convention, Art. I para. 11. 416 Nonetheless in favor of a broad understanding Hascher, XXXVI Y.B. Com. Arb. 504 para. 25 (2011). 417 Adolphsen, in: MünchKommZPO, Annex 2 to sect. 1061, European Convention, Art. I para. 13; Baldus, Der elektronisch geschlossene Vertrag, p. 85; Epping, Schiedsvereinbarung, p. 68; Gentinetta, Lex fori, p. 319; Gildeggen, Schiedsvereinbarungen in AGB, pp. 103 et seq.; Hausmann, in: Reithmann/ Martiny (eds), Internationales Vertragsrecht, para. 8.326; Kaiser, Das europäische Übereinkommen, p. 40; Mezger, RabelsZ 29 (1965), 231, 248; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 376; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 14; von Hülsen, Gültigkeit, p. 63; Voit, in: Musielak/ Voit (eds), ZPO, sect. 1031 para. 19; dissenting (States include those where the award will be made and

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New York Convention

Notably, the State where recognition is sought is not part of the “relation.” This cannot be explained by the parties’ need to have clarity on the arbitration agreement’s validity at the time of its conclusion,418 since Article I(2)(a) of the European Convention does not invalidate arbitration agreements (Õ para. 181). Any other solution, however, would need to include at least three States, resulting in an even less plausible test. 175 According to Article I(2)(a) option 2 of the European Convention, the arbitration agreement needs to cumulatively meet the form requirements under the substantive laws of the States involved.419 No referral to the law of a third country must be made, even if it led to the agreement’s validity.420 176

(3) Remedy for Defective Arbitration Agreements in the Course of the Proceedings (Article V(2)(1) of the European Convention). Unlike the New York Convention (Õ para. 54), Article V(2)(1) of the European Convention stipulates the preclusion of pleas to the tribunal’s jurisdiction, including those based on a lack of a written arbitration agreement. A party which has not timely objected during the proceedings cannot rely on the defect in subsequent recognition proceedings unless the defect is to be considered on the court’s own motion421.

III. Burden of Proof The party relying on the arbitration agreement bears the burden of proof for all requirements under Article II(1), namely the agreement’s conclusion (Õ paras 41 et seq.), that it involves a submission of differences in respect of a defined legal relationship (Õ paras 58 et seq.) to arbitration (Õ paras 68 et seq.), that the agreement is in writing (Õ paras 73 et seq.) and its subject-matter is arbitrable (Õ paras 158 et seq.).422 This complies with the general rule that each party must demonstrate and prove on what it relies, i.e. what is favorable to it. 176b Conversely, the party resisting recognition of the arbitration agreement must invoke its invalidity (Õ paras 164 et seq.). This results from Article II(3)’s allocation (Õ paras 287 et seq.) which, for the sake of consistency within Article II, must be employed likewise for other measures of recognition.423 Although a lack of form or arbitrability are grounds for invalidity under the lex arbitri, they serve as prerequisites 176a

where recognition will be sought) Klein, ZZP 76 (1963), 342, 346; Hascher, XVII Y.B. Com. Arb. 711, 720 et seq. para. 22 (1992) and XX Y.B. Com. Arb. 1006, 1015 para. 22 (1995). 418 Dissenting Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.326. 419 Germany: BGH, IPRspr. 1970, No. 133, 455, 456 = II Y.B. Com. Arb. 236 (1977); OLG Hamburg, RIW 1979, 482, 483 = V Y.B. Com. Arb. 262 et seq. paras 4 et seq. (1980); BayObLG, NJW-RR 2003, 719, 720 = XXIX Y.B. Com. Arb. 761, 765 para. 9 (2004); Adolphsen, in: MünchKommZPO, Annex 2 to sect. 1061, European Convention, Art. I para. 13; Gildeggen, Schiedsvereinbarungen in AGB, p. 105; Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.247; Hausmann, in: Reithmann/ Martiny (eds), Internationales Vertragsrecht, para. 8.327; Kaiser, Das europäische Übereinkommen, p. 38; Mezger, RabelsZ 29 (1965), 231, 248 et seq.; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 376; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 14; seemingly dissenting Germany: OLG Köln, IPRax 1993, 399, 400 = XXI Y.B. Com. Arb. 535, 537 para. 6 (1996). 420 Gildeggen, Schiedsvereinbarungen in AGB, p. 105; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.327; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 376. 421 Beisteiner, in: Zeiler/Siwy (eds), European Convention, Art. V paras 19 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.251. 422 Cf. The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.6(a) (p. 186). 423 Cf. The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.6(b) (p. 186).

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for recognition of the arbitration agreement under Article II(1) (Õ para. 72, Õ para. 181),424 which the party relying on the arbitration agreement has to prove.425

IV. More Favorable National Law on the Recognition of Arbitration Agreements (Article VII(1)) Article VII(1) plays a key role in overcoming Article II(2)’s – traditionally understood 177 as restrictive – form requirements. In fact, the 2006 Recommendation (Õ Annex III) had chosen a two-pronged approach. Its first prong is the non-exhaustive character of Article II(2) (Õ para. 111), its second is Article VII(1)’s applicability. Reliance on more favorable national law, in particular with regard to the form requirements for arbitration agreements, will further facilitate such agreements’ enforcement. This applies to national laws like Swedish law that never imposed written form requirements on arbitration agreements.426 UNCITRAL’s Model Law will have an even further-reaching effect given that the liberalized form provisions of both options of Article 7 of the 2006 Model Law will lower or even relinquish the form requirements under national law in the long run. The principle of freedom of form under Article 11 CISG is not suitable as a more favorable law since, as the more general law, it is superseded by national laws stipulating the form of arbitration agreements.427 The Recommendation’s second prong (as opposed to the first) nevertheless mainly confirms what had already been acknowledged before. While Article VII(1) on its face is restricted to the recognition and enforcement of 178 arbitral awards, it applies to the recognition of arbitration agreements by way of analogy (for details, Õ Art. VII paras 45 et seq.). The purpose of Article VII to facilitate (rather than to impede) enforcement of arbitral awards similarly covers arbitration agreements. Article VII(1)’s limited wording can be explained with the last-minute introduction of Article II (Õ paras 13 et seq.). Broadening Article VII(1)’s scope also complies with the 2006 Recommendation (Õ para. 177). Like for the recognition and enforcement of arbitral awards (Õ Art. VII paras 59 et 179 seq.), Article VII(1) does not allow for cherry-picking when seeking recognition of arbitration agreements. Arbitration agreements can therefore be recognized either under the New York Convention or under other recognition regimes. Less demanding form requirements under national law in particular cannot be implemented in the framework of the Convention’s enforcement regime.

IV. Effects of Recognition of the Arbitration Agreement If the prerequisites of Article II(1) and (2) are met, the Contracting State must 180 recognize the arbitral agreement. The courts are not left with discretion.428 This 424

Concurring van den Berg, NYC, p. 155. Apparently dissenting van den Berg, NYC, p. 155 (“merely a question of system and has no legal consequences”). 426 For a survey on the form requirements under the lex arbitri of 90 jurisdictions see Yu, (2012) 32(1) C.J.Q. 68, 72 et seq. 427 Germany: OLG Stuttgart, IHR 2016, 236, 238; Schwenzer/Tebel, 31(4) ASA Bull. 740, 750 (2013); dissenting Perales Viscasillas/Ramos Muñoz, in: Büchler/Müller-Chen (eds), Festschrift Schwenzer, pp. 1355, 1370. 428 UNCITRAL Secretariat, Guide, Art. II para. 12; see also Switzerland: BG, BGE 110 II 54, 57 = XI Y.B. Com. Arb. 532, 533 para. 2 (1986). 425

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New York Convention

recognition basically means that the agreement will be treated as a valid arbitration agreement in the Contracting State. Article II(1) is self-executing, i.e. recognition takes place irrespective of an implementing national law.429

1. Recognition v. Validity 181

The recognition of an arbitration agreement needs to be distinguished from its validity. Since recognition and validity are not entirely governed by the same set of rules, they can diverge: Invalid arbitration agreements can be recognized and valid agreements can be denied recognition. If, e.g., the law governing the validity of the arbitration agreement demands a stricter form than Article II, an agreement complying only with the latter is invalid but must nevertheless be recognized under the Convention (Õ para. 135, Õ para. 166). If, on the other hand, an agreement meets the lower form requirements under the law applicable to the agreement’s validity but is not in writing, it is valid (and thus binding for the parties) but will not be recognized under the Convention.430 The Convention does not invalidate such arbitration agreements.

2. Effects in Court Proceedings Article II(1) obliges the Contracting State to recognize the arbitration agreement. The provision’s addressees are the Contracting States’ courts that must recognize the arbitration agreement comprehensively in every procedural situation. The recognition of an arbitration agreement under Article II typically becomes relevant in the following factual situations. 183 If a claim is brought before a court of the Contracting State although such claim is subject to an arbitration agreement to be recognized under Article II, the parties are to be referred to arbitration in accordance with Article II(3). This provision is annotated in more detail in Õ paras 189 et seq. 183a Article II(3) does not govern the effects of an arbitration agreement on interim measures requested from a state court (Õ para. 267). Whether an arbitration agreement also excludes such requests for interim measures is determined by the lex fori (Õ para. 266; cf. Article 9 of the Model Law). Although reliance on the law governing the arbitration agreement would allow an arbitration agreement to have a coherent effect in all jurisdictions, this law is not called upon to govern this question.431 It is exclusively on the lex fori to decide whether and under which conditions access to the state courts can be excluded;432 this competence cannot be delegated to another law. Article 1(2) of the Model Law, according to which Article 9 of the Model Law applies regardless of the place of arbitration, confirms this view. 184 If the court is approached with a request to assist arbitral proceedings, such request must not be denied for lack of a valid arbitration agreement if such agreement is to be recognized under Article II. This holds true for all auxiliary court proceedings that the 182

429 US: La. Safety Ass’n of Timbermen – Self Insurers Fund v. Certain Underwriters at Lloyd’s, London, 587 F.3d 714, 724 et seq. (5th Cir. 2009). 430 Germany: BGH, NJW-RR 1993, 1519, 1520; Born, International Commercial Arbitration, pp. 657 et seq. (distinguishing requirements for validity and “jurisdictional conditions”); Czernich, Kurzkommentar, Art. II para. 2; at least ambiguous Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.291 (“Article II makes the validity of an arbitration agreement subject to meeting the form requirements established by it”); Poudret/Besson, Comparative Arbitration, para. 188 (“condition of validity”). 431 Dissenting Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.394; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 84. 432 Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 91.

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lex fori433 provides for,434 namely recognition and enforcement of tribunal-ordered interim measures (cf. Article 17h of the Model Law) or issuing an anti-arbitration435 or an anti-suit injunction436. An arbitration agreement that is to be recognized under Article II(1) must also not be treated as invalid in respect of further remedies that are available under the lex fori if the place of arbitration is abroad or has not yet been determined. As an example, section 1025(2), (3) of the German Code of Civil Procedure makes available in that way the remedies for the appointment of an arbitrator (cf. Article 11 of the Model Law), the challenge of an arbitrator (cf. Article 13 of the Model Law), the termination of the mandate of an arbitrator (cf. Article 14 of the Model Law) and for assistance in taking evidence (cf. Article 27 of the Model Law). If recognition and enforcement of a foreign award is requested, the recognition of the 185 underlying arbitration agreement may be of relevance particularly within Article V(1)(a) (Õ Art. V paras 108 et seq.). The recognition of arbitration agreements under Article II does not play a role in proceedings for setting aside or recognition and enforcement of domestic awards: the arbitration agreement on which such awards are based is not covered by Article II (Õ para. 28). If a party applies for a declaratory decision on the (in-)validity of an arbitration 186 agreement, the court must not deny such application for lack of a valid arbitration agreement if such agreement is to be recognized under Article II.437

3. Effects in Arbitral Proceedings Some tribunals and authors suggest that not only courts but also “international arbitra- 187 tors” are bound to apply Article II.438 The supporters of this position argue that arbitrators need to determine the borderline between their competence and the courts’ competence, which is inter alia drawn by Article II.439 However, the better arguments militate against this position: Article II does not bind tribunals. First, Article II explicitly addresses only

433 In favor of the lex arbitri Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.394; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 84. 434 Cf. Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 90. 435 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.29 (pp. 395 et seq.); ICCA, Guide, p. 37. 436 Cf. The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.1(d) (p. 149), § 2.29 (pp. 395 et seq.). 437 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 44; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 89; see also The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.13(a) (p. 242). 438 Bulgarian Chamber of Commerce and Industry, Arbitration Court: Lebanese Company v. Two Bulgarian State Enterprises, IV Y.B. Com. Arb. 191 (1979); Hamburger Freundschaftliche Arbitrage: German (F.R.) seller v. Dutch buyer, III Y.B. Com. Arb. 212 (1978); Netherlands Arbitrage Instituut: American (N.Y.) seller v. Norwegian buyer, VI Y.B. Com. Arb. 142 (1981); Hausmann, in: Reithmann/ Martiny (eds), Internationales Vertragsrecht, para. 8.223; similarly Born, International Commercial Arbitration, p. 667 (arguing that “it would make no sense to treat issues of formal validity differently” from other rules concerning the validity of arbitration agreements, therewith contradicting his own finding [pp. 657 et seq.] that Article II’s form requirement is not an issue of validity); Lew/Mistelis/Kröll, Comparative Arbitration, para. 6‐48; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 47 (if only courts bound by Article II come into question for ruling on the validity of arbitration agreement and award); van den Berg, NYC, pp. 189 et seq.; dissenting (arbitrators not directly bound by the Convention but indirectly by the arbitration agreement) Schroeter, in: Shaughnessy/Tung (eds), Liber Amicorum Karrer, pp. 295, 308 et seq. 439 Van den Berg, NYC, p. 189.

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New York Convention

the Contracting States and their courts, respectively.440 Second, the tribunal’s competence is based on a valid arbitration agreement, irrespective of its recognizability. If the parties have submitted their dispute to arbitration in conformance with the applicable law, the tribunal is duly vested with powers. It would act contrary to its obligations if it denied its competence for the sole reason that foreign courts – which may after all not even be concerned with this issue441 – could possibly not recognize the arbitration agreement. 188 The tribunal’s duty to render an enforceable award cannot prevail as an argument here.442 This doctrine can only apply where the tribunal has discretion that it lacks in a clear legal situation like the one at hand.443 Moreover, the award based on a valid arbitration agreement will be enforceable in the forum State in any event. The parties can, however, oblige the tribunal to render an award enforceable in a third country. The tribunal is then bound to Article II by way of party agreement. Such agreement, admittedly, will rarely be found in explicit form in practice and will only be accomplished by interpretation of the agreement in very exceptional cases.

F. Action Before State Courts (Article II(3)) I. Overview Article II(3) has a unique function that does not directly deal with the recognition and enforcement of foreign arbitral awards. Rather, expanding on the Protocol on Arbitration Clauses of September 24, 1923 (the “Geneva Protocol,” Õ Annex V 1),444 the drafters of the Convention decided to include in the Convention itself a provision requiring courts to recognize and give effect to arbitration agreements. 190 Accordingly, if a party sues in a court of a Contracting State in breach of an enforceable arbitration agreement, upon the request of one of the parties the court must give effect to the obligation contained in that agreement that the parties will resolve such dispute by way of arbitration rather than litigation.445 Thus, Article II(3) gives force to the obligation Contracting States have assumed under Article II(1) to recognize arbitration agreements and is a necessary prerequisite for the success of arbitration as an international dispute settlement mechanism.446 189

II. Spirit and Purpose 191

Despite the Convention’s title, the starting point of the Convention is actually the recognition and enforcement of arbitration agreements.447 Since the basis for any 440 Netherlands Oils, Fats and Oilseeds Trade Association: Dutch private company (seller) v. Tunisian private company (buyer), III Y.B. Com. Arb. 225, 226 (1978); Poudret/Besson, Comparative Arbitration, para. 72 (but see para. 185); Schroeter, in: Shaughnessy/Tung (eds), Liber Amicorum Karrer, pp. 295, 300 et seq.; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 39. 441 Cf. the line of argument referred to by van den Berg, NYC, p. 188. 442 Dissenting Sabater, in: van den Berg (ed.), The Coming of a New Age?, pp. 96, 100 et seq. 443 For more details, see Boog/Moss, 31(3) ASA Bull. 647, 654 et seq. (2013); Wolff, in: Arroyo (ed.), Arbitration in Switzerland, ch. 18 part XII para. 34. 444 Geneva Protocol on Arbitration Clauses in Commercial Matters, 27 L.N.T.S. 157 (1924). The Geneva Protocol ceases to have effect as between Contracting States to the New York Convention (Article VII(2) NYC). 445 US: McCreary Tire & Rubber Co. v. CEAT, S.p.A., 501 F.2d 1032, 1038 (3d. Cir. 1974) = I Y.B. Com. Arb. 203, 204 (1976) (“The Convention forbids the courts of a contracting state from entertaining a suit which violates an agreement to arbitrate.”). 446 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐34. 447 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.07.

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arbitration and arbitral award is the underlying arbitration agreement, this provision confirms the binding character of arbitration agreements and provides a means of encouraging their performance.448 The purpose of this provision is accordingly to facilitate and stabilize international 192 business transactions by promoting the enforcement of arbitration agreements in international contracts.449 As one of the goals of the Convention, enforcing bargainedfor arbitration agreements promotes the use of arbitration as a means of resolving international commercial disputes and facilitates international trade and investment.450

III. Drafting History The drafting history of this provision has its roots in the Geneva Protocol of 1923 193 (Õ Annex V 1) concluded under the auspices of the League of Nations. This Protocol was supplemented and expanded by the Convention on the Execution of Foreign Arbitral Awards of September 26, 1927 (the “Geneva Convention,” Õ Annex V 2), also concluded under the auspices of the League of Nations. After World War II, the International Chamber of Commerce (ICC) came to the 194 conclusion that the system established by the Geneva Convention no longer met the requirements of international trade (Õ Prel. Rem. paras 48 et seq.).451 For this reason the ICC had presented to the United Nations Economic and Social Council (ECOSOC) a new preliminary draft convention in 1953.452 An ad hoc committee was established by ECOSOC in 1954 to study the matter and make proposals, including, if it sees fit, a draft convention.453 Using the ICC preliminary draft as a working paper in its deliberations, this committee adopted a draft convention on March 15, 1955 (the “ECOSOC draft”).454 The ECOSOC draft did not contain any express reference to the Geneva Protocol 195 (Õ Annex V 1),455 and some governments commented on the omission of a provision 448 See Australia: Comandate v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192 = XXXII Y.B. Com. Arb. 224, 250–251 (2007) (“The aim of the Convention is to accord respect and recognition to the autonomy of the parties in the choice of arbitration.”). 449 See US: Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 620 (8th Cir. 1997). See also US: Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15 (1974) (“The goal of the Convention […] was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.”); Germany: BGH, BGHZ 187, 126, 130 para. 9 = SchiedsVZ 2010, 332 = XXXVI Y.B. Com. Arb. 282 (2011) („Durch das UNÜ sollte die Durchsetzung von Schiedsvereinbarungen international erleichtert werden“ Trans.: “Through the New York Convention the enforcement of arbitration agreements should be internationally facilitated.”); Born, International Commercial Arbitration, pp. 1282–1283. 450 See US: David L. Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245, 250 (2d Cir. 1991) (“The goal of the Convention is to promote the enforcement of arbitral agreements in contracts involving international commerce so as to facilitate international business transactions on the whole.”). See also id., at 248: (“Enforcement of international arbitral agreements promotes the smooth flow of international transactions by removing the threats and uncertainty of time-consuming and expensive litigation.”); Australia: Comandate v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192 = XXXII Y.B. Com. Arb. 224, 230 (2007) (enforcement of arbitration agreements in international transactions is necessary to protect the expectations of the international business community and the confidence placed in the courts to hold people to their bargains); ICCA, Guide, pp. 14–15. 451 E/2704: E/AC.42/4/Rev.1, para. 13 (Õ Annex IV 1). 452 Van den Berg, NYC, p. 7. 453 E/2704: E/AC.42/4/Rev.1, para. 1 (Õ Annex IV 1). The members of the ad hoc committee were representatives from Australia, Belgium, Ecuador, Egypt, India, Sweden, the USSR and the UK. Id., at para. 2. 454 E/2704: E/AC.42/4/Rev.1, paras 15–16 (Õ Annex IV 1). 455 Nor did the ICC draft contain any express reference to the Geneva Protocol.

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recognizing the validity of arbitration agreements that would serve to prevent a party from “sabotaging” an arbitration agreement by bringing disputes before a state court instead.456 Representatives from several jurisdictions, including Sweden, the UK and India, had suggested that the new convention should clarify that recognition of a valid arbitration agreement would compel courts to stay litigation pending completion of the arbitration process.457 Although the representative of Sweden had proposed an article similar to Article 1 of the Geneva Protocol, providing that Contracting States would undertake to recognize the validity of written arbitration agreements, this proposal was not adopted.458 196 Between May 20 and June 10, 1958 the United Nations Conference on International Commercial Arbitration (the “NY Conference”) was held at the UN Headquarters in New York in order to finalize a convention on the basis of the ECOSOC draft. Representatives from Poland and Sweden suggested amending the draft convention to also address the recognition of arbitration agreements.459 However, at least initially, the NY Conference preferred not to deal with arbitration agreements in the Convention (Õ paras 7–8).460 197 After further debate on this issue,461 at the ninth meeting of the NY Conference on May 26, 1958, the Conference President462 appointed a Working Party to prepare a draft text for a protocol concerning arbitration agreements.463 The Swedish delegation proposed a draft for the Working Party’s consideration, which contained a provision very similar to Article 4 of the Geneva Protocol.464

456 E/CONF.26/2, para. 25 (Õ Annex IV 1). See, e.g., E/2822/Add.1, p. 1 (Sweden) (Õ Annex IV 1); E/2822/Add.2, p. 1 (Greece) (Õ Annex IV 1). 457 E/AC.42/SR.4, p. 3 (Õ Annex IV 1). 458 E/2704: E/AC.42/4/Rev.1, paras 18–19 (Õ Annex IV 1). 459 E/CONF.26/7 (Poland) (Õ Annex IV 1) (essentially suggesting that Contracting States shall recognize arbitration agreements concluded between parties residing in different Contracting States as valid); E/CONF.26/L.8 (Sweden) (Õ Annex IV 1) (essentially suggesting that Contracting States shall recognize arbitration agreements in writing as valid). Although neither of these suggested amendments contained an express obligation to refer the parties to arbitration on the basis of their arbitration agreement, the idea behind these proposed amendments was for Contracting States to hold parties to their arbitration agreements. See E/CONF.26/SR.9, pp. 2–3 (Õ Annex IV 1) (“The principle purpose of the Polish amendment was to make international transactions more secure. The recognition of the validity of arbitration clauses would prevent commercial companies from evading arbitrations to which they had agreed. The Polish proposal was prompted by the same consideration as the Swedish one […]”). 460 Sanders, in: United Nations (ed.), Experience and Prospects, p. 3. 461 See, e.g., E/CONF.26/SR.9, p. 11 (Õ Annex IV 1), reporting the comments of Sir Claude Corea, representative of Ceylon (“With regard to the competence of the Conference, he thought that no useful purpose could be served by a restrictive interpretation of the terms of reference laid down by [ECOSOC]. The Convention would not achieve its ends if it did not contain some provisions on the validity of arbitral agreements and arbitral clauses. The Convention admittedly had to deal with the ‘recognition and enforcement’ of arbitral awards, but the question of the validity of arbitral agreements from which all arbitral proceedings stemmed, was an inseparable part of the same transaction. […] In conclusion, he pointed out that such a clause should be included in the Convention itself.”). 462 The Conference President was Mr. Willem Schurmann of the Netherlands. See E/CONF.26/SR.1, p. 2 (Õ Annex IV 1). 463 E/CONF.26/SR.9, pp. 2–13 (Õ Annex IV 1). The Working Party consisted of representatives from Belgium, the Federal Republic of Germany, Poland, Sweden, Turkey, the USSR, and the UK. See E/CONF.26/SR.9, p. 14 (Õ Annex IV 1). 464 E/CONF.26/C.3/L.1 (Õ Annex IV 1). The draft text stated (under Article III) the following: “The courts of any Contracting State to which the present Protocol applies, on being seized of a dispute regarding a contract containing an arbitration agreement which is valid by virtue of article I and capable of being carried into effect, shall refer the parties on the application of either of them to the decision of the arbitrators. Such reference shall not prejudice the competence of the judicial tribunals in case the agreement cannot proceed or becomes inoperative.” For the text of Article 4 of the Geneva Protocol, Õ Annex V 1.

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On June 5, 1958, the Working Party submitted a draft protocol containing a referralto-arbitration provision based on the Swedish draft proposal.465 The representative from the Netherlands (Pieter Sanders) then moved that, rather than adopting a separate protocol, a condensed text should be adopted as a further article in the Convention itself.466 This was voted upon and agreed,467 and a preliminary text taken mostly from the Working Party’s draft protocol was adopted as a new article, subject to further modifications by the Drafting Committee.468 Slightly revised versions of this text were included as Article II in the draft Convention as approved by the Drafting Committee on June 6, 1958469 and June 9, 1958.470 Finally, on the last day of the NY Conference, Article II was amended to delete the words “of its own motion” from paragraph 3, which would have allowed the court to sua sponte refer the parties to arbitration. It was thought that this wording would weaken the Convention and impede on the freedom of the parties to mutually consent to litigation despite the arbitration agreement should they so desire.471 As a creation of contract, the parties to an arbitration agreement should be permitted to rescind the arbitration agreement by mutual consent. Removal of this wording made it clear that referral to arbitration would only occur if requested by one of the parties. The final text of the Convention was approved on the same day, June 10, 1958. Thus, it was not agreed until the last days of the NY Conference that the Convention should apply to both arbitration agreements and to arbitral awards as complementary aspects of arbitration. This last-minute development has been cited as a reason for some of the uncertainties surrounding the application of Article II.472

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199 200

201

IV. Scope of Applicability of Article II(3) Although the Convention deals with which arbitral awards can be enforced under its 202 provisions, it does not indicate which arbitration agreements come under its scope if enforcement of such an agreement is sought pursuant to Article II(3). The problem of how the recognition of arbitration agreements would relate to “foreign” awards under the Convention had already been perceived in 1955,473 but this was not resolved in the 465

E/CONF.26/L.52 (Õ Annex IV 1). E/CONF.26/L.54 (Õ Annex IV 1); E/CONF.26/SR.21, p. 17 (Õ Annex IV 1). 467 E/CONF.26/SR.21, p. 17 (Õ Annex IV 1). 468 E/CONF.26/SR.21, pp. 17–23 (Õ Annex IV 1); E/CONF.26/L.59 (Õ Annex IV 1). The text of paragraph 3 of this draft article was as follows: “The courts of Contracting States, if seized of an action relating to a contract which includes an arbitration agreement referred to in paragraph 1 and capable of execution shall, of their own motion or at the request of one of the parties, refer the parties concerned to arbitrators for decision. Such action shall not prejudice the competence of the courts if, for any reason, the arbitration agreement, arbitral clause or arbitration [sic] has become null and void or inoperative.” 469 E/CONF.26/L.61, pp. 1–2 (Õ Annex IV 1). 470 E/CONF.26/8, pp. 1–2 (Õ Annex IV 1) (“The 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, shall, of its own motion or at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”). Id., at 2. 471 E/CONF.26/SR.24, pp. 8–9 (Õ Annex IV 1). 472 See van den Berg, NYC, p. 56; Lew/Mistelis/Kröll, Comparative Arbitration, para. 6‐34. 473 See the comments of the representative of the UK to the ECOSOC committee in this regard: “To recognize the validity of arbitration agreements and then to enforce awards based on such agreements; such was the sequence of the [Geneva] Protocol and [Geneva] Convention. It has been argued with some force that the New York Draft should either have been linked with the Protocol of 1923 or have included provisions similar to those of the Protocol. […] The essential difficulty is that the Protocol of 1923, and therefore, the Convention of 1927, are confined to ‘international’ agreements and awards based on such 466

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text of the Convention. It has been convincingly remarked that this omission was due to the haste in which Article II was drafted and adopted at the end of the NY Conference in 1958.474 Morover, other provisions of the Convention were not amended to take account of the last-minute addition of Article II.475 203 Since the Convention is silent on the scope of its application to arbitration agreements, in particular whether the arbitration agreement must have a relation to a foreign State, national implementing legislation and the courts have been called to resolve this issue.476 Most countries that have signed or adhered to the Convention have national legislation setting out the requirements for a valid arbitration agreement,477 but such legislation rarely specifies which arbitration agreements qualify for referral to arbitration under the Convention.478 Therefore, the scope of the Convention in relation to arbitration agreements must regularly be deduced from the provisions defining its scope in relation to awards and from the object and purpose of the Convention.479 Indeed, the Convention must be interpreted in the light of its object and purpose (Õ Prel. Rem. paras 75–90).480

1. Agreement Providing for Arbitration in Another State 204

As mentioned above (Õ para. 202), it was not specified in the Convention which types of arbitration agreements come within the scope of Article II(3). It is evident, however, that the Convention was intended to apply to international arbitration agreements.481 This is also evident from a statement of Professor Bülow, the representative of the Federal Republic of Germany at the NY Conference – in reference to a proposal from Sweden482 – that an arbitration agreement should come within the scope

agreements. The present Draft relates simply to ‘foreign’ awards. It might be possible to devise some compromise whereby ‘recognition’ of arbitration agreements and the consequent ouster of the jurisdiction of the courts could be confined to ‘international’ agreements, although it will not be easy to define such agreements.” E/2822/Add.4, p. 9 (Õ Annex IV 1). 474 Van den Berg, NYC, p. 56 (“Article II was drafted in a race against time, with, as consequence, the omission of an indication as to which arbitration agreements the Convention would apply.”); Lew/ Mistelis/Kröll, Comparative Arbitration, para. 6‐34 (“Article II, which deals with the enforcement of arbitration agreements, was included at the last minute without specifying clearly the exact scope of its terms.”). 475 ICCA, Guide, p. 27. 476 Van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 25, 33. 477 For example, Germany: 10th Book of the German Code of Civil Procedure (ZPO), in particular section 1031; UK: Arbitration Act 1996, in particular §§ 5–8; US: Federal Arbitration Act, in particular § 202; Switzerland: Chapter 12 of the Swiss Private International Law Act, in particular Article 178. 478 Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656, para. 42. 479 Lew/Mistelis/Kröll, Comparative Arbitration, para. 6‐34 (The scope of the Convention in relation to arbitration agreements has to be deduced from the provisions defining it in relation to awards and the underlying rationale of the New York Convention); Born, International Commercial Arbitration, p. 320 (“The better view is that the scope of the textually unlimited Article II, as applied to arbitration agreements, should be defined by reference to the Convention’s purposes. That is, Article II(1) and II(3) should not be interpreted to apply to purely domestic arbitration agreements, and should instead apply to ‘international’ arbitration agreements.”). 480 See Article 31(1) of the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969). 481 Born, International Commercial Arbitration, pp. 314–320; ICCA, Guide, p. 23. 482 This was a proposal for amendments to the draft convention, which eventually became Article II(1). The Swedish proposal suggested that this paragraph should read as follows: “Every Contracting State shall recognize as valid any agreement in writing, concerning existing or future disputes, under which the parties agree to submit to arbitration all or some of such disputes as may arise between them on any matter susceptible of arbitration.” E/CONF.26/L.8 (Õ Annex IV 1).

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of the Convention if an arbitral award which would be made in accordance with such agreement would be recognized and enforced under the Convention.483 In keeping with this intention, where an arbitration agreement provides for arbitra- 205 tion in a State other than the forum State, Article II(3) is generally applied by analogy to Article I, which makes the Convention applicable to arbitral awards made in the territory of a State other than where recognition and enforcement of the award is sought.484 Therefore, Article II applies where the place of arbitration is in a (Contracting) State other than the forum State, subject to any of the reservations that States may have made under Article I(3).485 If the arbitration agreement is assessed before the place of arbitration has been 206 fixed, an analogous application of the scope of application from Article I is problematic. In such a case, application of Article II depends on whether the national court determines that a foreign place of arbitration (and therefore an award within the scope of the Convention) appears likely or is at least not excluded.486 There is broad consensus that arbitration agreements which would likely lead to an award enforceable under the Convention are within the scope of the Convention (Õ para. 35).487 The court must interpret the intent of the parties on this issue insofar as possible. If 207 in doubt as to whether Article II(3) should apply, the course most in harmony with the spirit and purpose of the Convention is to apply Article II(3) in such cases and stay or dismiss the litigation in favor of arbitration, provided the other requirements of Article II(3) are met.

2. Agreement Providing for Arbitration Within the Forum State Although Article II(3) does not explicitly state that it applies only to international 208 arbitration agreements, it is clear from the purpose and scope of the Convention that

483 E/CONF.26/SR.9, p. 3 (Õ Annex IV 1) (“There could be no question of merely repeating the corresponding clause of the 1923 Protocol because the decisive factors in the two instruments were basically different. On the other hand, the clause proposed by Sweden […] could not be left as it stood, but must be connected in some way with arbitral procedure. The Swedish proposal might therefore be amplified with the words ‘[in] so far as the arbitral award which would be made in accordance with such agreement would be recognized and enforced under this Convention.’”). See also E/CONF.26/L.19 (Õ Annex IV 1). 484 Van den Berg, NYC, p. 57; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.126; van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 25, 34 (“This interpretation is generally followed by the courts in the Contracting States […].”). 485 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 41–42; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.126; van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 50 (“[T]he courts apply almost unanimously Article II(3) of the Convention to an arbitration agreement providing for arbitration in another (Contracting) State.”). 486 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.222; Poudret/Besson, Comparative Arbitration, para. 490 (“We also think it preferable to apply the Convention where it is not excluded that the envisaged arbitration will take place abroad. This is namely the case where it is the task of an international institution such as the ICC to determine the seat.”). 487 Lew/Mistelis/Kröll, Comparative Arbitration, para. 6‐35 (“[…] Article II only applies to those arbitration agreements which will probably lead to an award covered by the Convention, i.e. where the arbitration is to be in a different contracting state irrespective of the country where the parties are resident. By contrast, agreements providing for arbitration in the state itself or in a non-contracting state would usually not be covered.”); ICCA, Guide, p. 24 (“If the arbitration agreement does not provide for the seat of the arbitration, the court must apply the Convention if it is likely that the future award will be held to be foreign or non-domestic in accordance with Article I(1).”); Kröll, SchiedsVZ 2009, 40, 42; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.222.

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210

211

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Article II(3) was not intended to apply to purely domestic arbitration agreements.488 Accordingly, the question arises whether an agreement providing for arbitration within the forum State can be considered an international arbitration agreement that should fall within the scope of the Convention. Following the reasoning above (Õ paras 204–205), if the future award pursuant to the arbitration agreement would be deemed a non-domestic award per Article I(1) (Õ Art. I paras 114–121), then Article II(3) would be applicable even if the seat of the arbitration is in the forum State (Õ para. 26).489 Whether Article II(3) can be applied in such a case will depend on the implementing legislation of the forum (Õ para. 203) and how the courts interpret such legislation. Possible criteria for the application of Article II(3) in such cases could be (i) the foreign nationality of at least one of the parties, or (ii) international elements connected with the contract to which the arbitration agreement relates.490 For instance, legislation in the United States provides that a court may order that arbitration be held in accordance with the agreement at any place provided for therein, whether that place is in the United States or not.491 French law adopts an approach comparable to that in the United States in this respect.492 The international arbitration provisions in the French Code of Civil Procedure apply to all international arbitration agreements,493 regardless of the location of the arbitral seat.494 The majority opinion seems to be that Article II(3) should not apply if the place of arbitration is in the forum State.495 However, given that one of the main purposes of the Convention is to facilitate the enforcement of arbitration agreements in international transactions and ensure that such agreements are not frustrated by court litigation, this can only be uniformly achieved if such arbitration agreements are enforceable under Article II(3) in all Contracting States, including where the arbitration is to take place.496 Applying the object and purpose of the Convention, it would appear that as long as some international factor is present (such as the arbitration agreement in an international transaction or with foreign parties), the arbitration agreement should also be enforceable under Article II(3) within the forum State (Õ para. 30).497 488 Born, International Commercial Arbitration, p. 320; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.218; van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 65 (“It is clear that Art. II(3) does not apply to purely domestic arbitration agreements.”). 489 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.126, 21.129; ICCA, Guide, p. 24. 490 See van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 65. 491 Section 206 of the Federal Arbitration Act, 9 U.S.C. 201 et seq. (The relevant part reads: “A court having jurisdiction under this Chapter may direct that arbitration be held in accordance with the agreement at any place therein provided for, whether that place is within or without the United States. […]”). 492 Born, International Commercial Arbitration, p. 347. 493 Article 1504 of the French Code of Civil Procedure defines an international arbitration agreement as one that concerns interests of international trade. According to established case law, any type of crossborder transaction is sufficient. Kühner, SchiedsVZ 2011, 125, 126; Bigel/Soupizet/Fox, 25(1) Int’l L. Practicum 92 (2012). 494 See Kühner, SchiedsVZ 2011, 125, 126; Bigel/Soupizet/Fox, 25(1) Int’l L. Practicum 92 (2012). 495 Poudret/Besson, Comparative Arbitration, paras 489–490. 496 See van den Berg, NYC, p. 61; Born, International Commercial Arbitration, pp. 319–320. 497 See ICCA, Guide, p. 24 (“If the arbitration agreement provides for a seat in the forum State, the court […] may apply the Convention if the arbitration agreement is international due to the nationality or domicile of the parties or to foreign elements present in the transaction”). But see Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.221, 8.222 (arguing that in the interest of a uniform determination of the sphere of application for arbitration agreements and arbitral awards, Article II should only be applied to arbitration agreements which – from the point of view of the state court at the objection phase – would likely lead to an arbitral award that would be considered a “foreign”

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Thus, it has been argued that arbitration agreements should come within the scope of 213 the Convention if they are “international,” which would presumably include agreements involving parties of different nationalities or domiciles, international trade, investment or other cross-border activities.498 Most national arbitration regimes adopt a liberal definition of “international” arbitration agreements.499 As stated by one commentator, “[t]he better view is that the scope of the textually unlimited Article II, as applied to arbitration agreements, should be defined by reference to the Convention’s purposes. That is, Article II(1) and II(3) should not be interpreted to apply to purely domestic arbitration agreements, and should instead apply to ‘international’ arbitration agreements.”500 We find merit in this position. To consider the issue from the opposite angle, at least in cases where it is evident that there is no international aspect to the arbitration agreement in question, Contracting States would not be obliged under the Convention to apply Article II(3).

3. Agreement Involving Foreign Parties Arbitration agreements between parties from different States are the classic 214 examples of international arbitration agreements. They are often concluded in international transactions in order to provide for a neutral dispute resolution mechanism that avoids jurisdictional hazards and risks of local bias. As such, it would follow the spirit and purpose of the Convention to apply Article II to such arbitration agreements. For instance, in the United States the scope of Article II extends to cases where the 215 arbitration agreement has an international component such as the foreign nationality of a party.501 In this regard, a corporation is considered a citizen of the United States if it is

award under the Convention in the forum State. He argues that this would generally not be the case for any arbitration agreement providing for arbitration in the forum State). 498 Born, International Commercial Arbitration, pp. 315, 319–320, 337–338; van den Berg, NYC, p. 63. 499 Born, International Commercial Arbitration, p. 320. See, e.g., Article 1504 of the French Code of Civil Procedure (an arbitration is international when interests of international trade are at stake [“Est international l’arbitrage qui met en cause des intérêts du commerce international”]); Article 1(3) of the Model Law (liberally defining when an arbitration is international, i.e., generally when the parties, at the time of the conclusion of the arbitration agreement, have their places of business in different States, or when either the place of arbitration or the place where a substantial part of the commercial obligations to be performed is situated outside of the State in which the parties have their places of business, or when the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country); see The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 1.1(v) (p. 13) (“An ‘international arbitration agreement’ is an agreement to arbitrate a dispute arising out of a legal relationship of a commercial nature that is reasonably related to one or more foreign States”). 500 Born, International Commercial Arbitration, p. 320. He also views this as “consistent with the Convention’s purposes of encouraging the use of arbitration in international trade and investment, while not intruding on purely domestic matters.” Id. 501 See US Federal Arbitration Act, 9 U.S.C. 202. In the US, Article II(3) applies if: (1) there is an agreement in writing to arbitrate the subject of the dispute; (2) the agreement provides for arbitration in the territory of a Contracting State; (3) the agreement arises out of a commercial legal relationship (whether contractual or not); and (4) a party to the agreement is not an American citizen, or the commercial relationship has some reasonable relation with one or more foreign States. If a court resolves these questions in the affirmative, it must refer the parties to arbitration unless it finds the agreement null or void, inoperative or incapable of being performed. US: Ledee v. Ceramiche Ragno, 684 F.2d 184, 186–187 (1st Cir. 1982) = IX Y.B. Com. Arb. 471, 473 (1984); Sedco, Inc. v. Petroleos Mexicanos Mex. Nat’l Oil Co., 767 F.2d 1140, 1144–1145 (5th Cir. 1985) = XII Y.B. Com. Arb. 539, 541 (1987); Smith/ Enron Cogeneration, Ltd. v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 92 (2d Cir. 1999) = 1999 U.S. App. LEXIS 32097 = XXV Y.B. Com. Arb. 1088, 1091–1092 (2000).

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incorporated or has its principal place of business in the United States.502 Under US implementing legislation for the Convention, an arbitration agreement entirely between citizens of the United States does not come under the Convention unless the commercial relationship underlying the agreement involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign States (but Õ Art. I para. 124, Õ Art. I para. 126; Õ para. 27).503 216 Under Article I(1)(a) of the European Convention (Õ Annex V 3) the scope of its application does not depend on the citizenship of the parties to an arbitration agreement, but rather on their habitual place of residence or seat (Õ paras 170–171; Õ Art. VII paras 74 et seq.). However, it requires both that the arbitration agreement be for “settling disputes arising from international trade” and be between parties with their “habitual place of residence or their seat in different Contracting States.” This seems to be unnecessarily narrow and would apparently exclude, for instance, application of the European Convention to arbitration agreements in international transactions between parties that have their seat in the same State.504

V. Competent Court 217

When a party is sued in state court, the issue in terms of Article II(3) is not whether the court chosen by the plaintiff is the proper court to adjudicate the dispute pursuant to domestic rules of civil procedure. Rather, the issue is whether the court has jurisdiction to hear the claim once a party raises the objection of an existing arbitration agreement between the parties.

1. Court of a Contracting State 218

A court should be understood as any organ of the State whose function is to administer justice through the application of laws to controversies parties bring before it, whatever its name.505

2. Seized of an Action in a Matter in Respect of Which the Parties Have Made an Agreement 219

The language “a matter in respect of which the parties have made an agreement” in Article II(3) refers to the disputes or controversies between the parties that come within their arbitration agreement.506 Whether the particular dispute brought before the state court is one that the parties agreed to arbitrate must necessarily be ascertained by reference to the scope of the arbitration agreement (Õ paras 223–226).507 502

Federal Arbitration Act, 9 U.S.C. 202. Federal Arbitration Act, 9 U.S.C. 202. For example, a New York court applied the Convention to an arbitration agreement between two US parties which provided for arbitration in New York. The court found that since the contract in question concerned employment as a branch manager in Italy, it was a commercial agreement that “contemplated performance abroad.” US: Fabergé Int’l, Inc. v. Di Pino, 109 A.D.2d 235, 238 (1985) = XII Y.B. Com. Arb. 536 (1987). 504 See Born, International Commercial Arbitration, p. 321. 505 For instance, the Moscow Arbitrazh Court or the Arbitration Court of Turkmenistan would qualify as a “court” within the meaning of the Convention, despite their possibly misleading names. 506 Australia: Comandate v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192 = XXXII Y.B. Com. Arb. 224, 250 (2007) (“It is the matter, the differences between the parties, the controversy between the parties, which, under the agreement, the parties have agreed to submit to arbitration.”). 507 Australia: Comandate v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192 = XXXII Y.B. Com. Arb. 224, 251 (2007). 503

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Article II(3) is applicable to all court proceedings in a Contracting State that are in 220 conflict with the parties’ arbitration agreement. This includes court proceedings based on a claim under a contract that contains an arbitration clause. It also applies if a defendant files a counterclaim in state court proceedings that is covered by an arbitration agreement between the parties,508 or seeks to offset such claim.509 Article II(3) generally does not apply to court proceedings for interim or provisional 221 relief because these proceedings do not prejudice the jurisdiction of the arbitral tribunal to decide the merits of the case (Õ paras 266–267).510 Similarly, Article II(3) also does not apply to court proceedings in support of 222 arbitration (such as assistance in the taking of evidence), especially if such procedures are explicitly provided for in the relevant arbitration law,511 or to other measures relating to the arbitral process that do not prejudice the jurisdiction of the arbitral tribunal.512 a) Scope of Application of the Arbitration Agreement The scope of the arbitration agreement is fixed by the intent of the parties in drafting 223 their arbitration agreement.513 The scope will depend upon the wording (and its intended meaning) employed by the parties in the arbitration agreement.514 Thus, the scope is a question of contract interpretation, and is ascertained with regard to the text of the arbitration agreement, the surrounding circumstances, and the purpose and object of the transaction.515 There are generally three categories of claims that are potentially within the scope of 224 an arbitration agreement: these are contractual claims, tort claims, and statutory claims.516 In determining whether a claim falls within the scope of the arbitration See, e.g., English Arbitration Act 1996, § 9(1). Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.259. 510 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 100 with further references. See also Article 9 of the Model Law (“It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.”). 511 See, e.g., Article 27 of the Model Law; Articles 184 and 185 of the Swiss Private International Law Act; Article 1449 together with Article 1506(1) of the French Code of Civil Procedure (previously Article 1493 of the French Code of Civil Procedure). 512 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 101; see Article 13(3) of the Model Law. 513 Germany: OLG Düsseldorf, SchiedsVZ 2004, 161, 162; BGH, NZG 2002, 83–84 = NJW-RR 2002, 387–388; US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 639 (1985) = 105 S. Ct. 3346 = XI Y.B. Com. Arb. 555, 565 paras 23 et seq. (1986) (“Thus, as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.”). It should be noted that here, as in many US decisions, “arbitrability” refers to whether the particular dispute falls within the scope of the arbitration agreement. See also, Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.228. 514 India: Renusagar Power Co. Ltd. v. General Electric Co., X Y.B. Com. Arb. 431, 442 (1985). 515 Australia: Comandate v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192 = XXXII Y.B. Com. Arb. 224, 240 (2007). 516 See Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.64; ICCA, Guide, p. 20. See also Article II(1) (“[…] which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.”). See US: In re Bruce Terminix Co., 988 S.W.2d 702, 703, 706 (Tex. 1998) (per curiam) (the mere pleading of tort claims does not preclude the application of the arbitration clause so long as the claims “touch upon” matters covered by the written contract containing the arbitration clause); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 639 (1985) = 105 S. Ct. 3346 = XI Y.B. Com. Arb. 555, 565 paras 23 et seq. (1986) (holding that antitrust claims under federal statute were subject to arbitration. The court pointed out: “By agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in 508 509

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agreement, the courts look at the terms of the arbitration agreement and the factual allegations made to the court.517 The courts should also take into consideration any subsequent agreements which might have expanded or limited the arbitration agreement’s original scope.518 225 In conducting this inquiry, the courts of many jurisdictions, including Germany,519 Switzerland,520 England,521 and the US,522 interpret the scope of application of an arbitration agreement broadly.523 Comparable views can be found in most countries which have adopted a pro-arbitration policy.524 This approach – once it has been ascertained that the parties actually agreed on arbitration – is in line with the goals of the Convention in promoting arbitration and facilitating international transactions. 226 Moreover, in the absence of a clear intention to the contrary it is reasonable to presume that parties wish to have all disputes arising out of their contract decided by

an arbitral, rather than a judicial, forum. It trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.”). Id., at 628. See also US: Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) (securities law); Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220 (1987) (RICO statute). 517 US: Ascension Orthopedics, Inc. v. Curasan AG, 2006 WL 2709058 (W.D. Tex. 2006) = XXXII Y.B. Com. Arb. 871 (2007); Canada: Woolcock v. Bushert, 2004 CanLII 35081 = 246 D.L.R. (4th) 139. 518 Germany: BGH, NZG 2002, 83–84 = NJW-RR 2002, 387–388. 519 Germany: OLG Düsseldorf, SchiedsVZ 2004, 161, 162 („Eine Abrede, die Meinungsverschiedenheiten oder Streitigkeiten aus einem Vertrag allgemein einem Schiedsgericht zuweist, ist grundsätzlich weit auszulegen.“ Trans.: “An agreement that generally submits differences or disputes arising out of a contract to arbitration is in principle to be interpreted broadly.”); BGH, NZG 2002, 83–84 = NJW-RR 2002, 387–388; BGH, NJW 1970, 1046–1047; OLG Hamburg, IPRspr. 1990, No. 237, 513 = RIW 1989, 574 = XV Y.B. Com. Arb. 455, 463 (1990). 520 Switzerland: BG, 22(2) ASA Bull. 344, 350–351 (2004) („Steht […] das grundsätzliche Vorliegen einer Schiedsabrede fest, so besteht kein Anlass zu einer besonders restriktiven Auslegung; diesfalls ist im Gegenteil davon auszugehen, dass die Parteien eine umfassende Zuständigkeit des Schiedsgerichts wünschten, wenn sie eine Schiedsabrede getroffen haben.“ Trans.: “Once it is established that an arbitration agreement has been concluded there is no reason for a particularly restrictive interpretation; on the contrary, it is to be presumed that by entering into an arbitration agreement the parties wanted to give wide jurisdiction to the arbitral tribunal.”). 521 UK: Premium Nafta Products Ltd. v. Fili Shipping Co. Ltd., [2007] UKHL 40 = [2007] Bus. L.R. 1719, 1726 (House of Lords, per Hoffmann), upholding Fiona Trust & Holding Corp. v. Privalov, [2007] EWCA Civ 20. 522 US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 639 (1985) = 105 S. Ct. 3346 = XI Y.B. Com. Arb. 555, 565 paras 23 et seq. (1986), citing US: Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (“[A]s a matter of federal law, any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.”); David L. Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245, 250 (2d Cir. 1991); Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 847 (2d Cir. 1987); Ascension Orthopedics, Inc. v. Curasan AG, 2006 WL 2709058 (W.D. Tex. 2006) = XXXII Y.B. Com. Arb. 871, 874 (2007) (“[A]ny doubt about the scope of an arbitration clause must be resolved in favor of arbitration and […] the Court should enforce an arbitration clause unless it can be said with ‘positive assurance’ that the clause is not susceptible to an interpretation that covers the dispute.”); Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading, Inc., 252 F.3d 218, 225 (2d Cir. 2001) (stating that “[w]hen parties use expansive language in drafting an arbitration clause, presumably they intend all issues that ‘touch matters’ within the main agreement to be arbitrated […].”). But see US: Cape Flattery Ltd. v. Titan Mar., LLC, 647 F.3d 914 (9th Cir. 2011) (finding that the wording “[a]ny dispute arising under this Agreement” should be interpreted narrowly, as opposed to wording such as “arising out of or relating to” the agreement, which should be interpreted broadly). 523 But see Gaillard/Savage, Fouchard Gaillard Goldman, para. 481; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.237, critical of a general principle of interpretation in favor of arbitration. 524 Lew/Mistelis/Kröll, Comparative Arbitration, para. 7‐62.

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one and the same tribunal.525 In order to give effect to such reasonable expectations, in the absence of evidence of other specific intentions or limitations, arbitration agreements should generally be interpreted to encompass all claims in connection with the contract, irrespective of whether they are claims in contract, tort, or of statutory nature.526 However, this does not relieve a court from its duty to critically examine the scope of an arbitration agreement and the evidenced intentions of the parties if the matter of the dispute seems only remotely related to the underlying contract. aa) Governing Law for Interpretation of the Arbitration Agreement. The primary 227 conflict-of-laws rules in the Convention for arbitration agreements are contained in Article V(1)(a). These provide that recognition and enforcement of an arbitral award may be refused if the arbitration agreement was “not valid under the law to which the parties have subjected it or failing any indication thereon, under the law of the country where the award was made” (i.e., regularly the law of the place of arbitration).527 Although the rules in Article V(1)(a) for determining the law applicable to arbitration 228 agreements are mentioned in the Convention only in connection with the enforcement of an award, the prevailing view is that these rules also apply to the pre-award stage by analogy (Õ para. 42).528 The fact that no reference to these conflict rules was made in Article II is not to be interpreted e contrario, but may rather be considered another omission due to the last-minute insertion of provisions relating to arbitration agreements in the Convention (Õ para. 201).529 A minority view, which considers these rules to be applicable only at the award 229 enforcement stage of an arbitration,530 is unsatisfying. According to this view, at the 525 Germany: BGH, NJW 1970, 1046–1047; UK: Premium Nafta Products Ltd. v. Fili Shipping Co. Ltd., [2007] UKHL 40 = [2007] Bus. L.R. 1719, 1726 (House of Lords, per Hoffmann), upholding UK: Fiona Trust & Holding Corp. v. Privalov, [2007] EWCA Civ 20 (“In my opinion the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction.”). 526 Lew/Mistelis/Kröll, Comparative Arbitration, para. 7‐67. 527 This is aptly described by van den Berg as the primary rule of party autonomy and the subsidiary rule of territoriality. Van den Berg, NYC, p. 291. 528 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 56; van den Berg, NYC, pp. 126–127; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.239; Lew/Mistelis/Kröll, Comparative Arbitration, para. 6‐55; Born, International Commercial Arbitration, pp. 494, 499, 565–566; Switzerland: BG, 14(2) ASA Bull. 255, 259–261 (1996) = XXII Y.B. Com. Arb. 800, 804–805 (1997) (“[P]reliminary issues concerning the validity of an arbitration agreement may not be decided according to the lex fori. Hence, where the New York Convention applies, reference should be made, for all issues which concern the validity of an arbitration agreement and are not regulated by the Convention itself, to the law to be determined according to Art. V(1)(a) of the New York Convention.”); Poudret/Besson, Comparative Arbitration, para. 299. 529 Van den Berg, NYC, pp. 126–127. 530 See, e.g., US: Rhone Mediterranee Compagnia Francese di Assicurazioni e Riassicurazoni v. Lauro, 712 F.2d 50, 53 (3d Cir. 1983) (noting that the ambiguity in Article II(3) with respect to governing law contrasts with the choice of law rule of Article V, dealing with enforcement of awards, and suggesting that this ambiguity was deliberate); Sea Bowld Marine Group LDC v. Oceanfast Pty, Ltd., 432 F. Supp. 2d 1305, 1312–1313 (S.D. Fla. 2006) = XXXII Y.B. Com. Arb. 719 (2007) (applying federal law for determining the scope of the arbitration clause, despite a choice of Australian law); Chloe Z Fishing Co. v. Odyssey Re (London) Ltd., 109 F. Supp. 2d 1236, 1253–1254 (S.D. Cal. 2000) (finding that despite a choice of English law and London as place of arbitration, “federal law applies to the Court’s preliminary inquiry as to the scope of the arbitration clauses.”); Coenen v. R.W. Pressprich & Co., 453 F.2d 1209, 1211 (2d Cir. 1972) (“Once a dispute is covered by the [Federal Arbitration] Act, federal law applies to all questions of [the arbitration agreement’s] interpretation, construction, validity, revocability, and enforceability.”); Bernardini, in: van den Berg (ed.), 40 Years of NYC, pp. 197, 200.

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stage of deciding whether to recognize an arbitration agreement, national courts should apply their own substantive law but at the enforcement stage of an award they should apply the conflict rules of Article V(1)(a).531 230 The majority view is to be favored since if courts must apply the conflict rules of Article V(1)(a) to the arbitration agreement at the enforcement stage it makes sense to apply the same rules at the pre-award stage. This avoids the undesirable result that an arbitration agreement may first be found valid at the pre-award stage and then invalid at a later stage.532 Applying Article V(1)(a) and Article II(3) together at all stages of the arbitration also conforms to the Convention’s structure and purpose of unifying the treatment of arbitration agreements.533 Accordingly, the conflict rules contained in Article V(1)(a) should also apply when national courts must consider whether to refer parties to arbitration under Article II(3).534 231 If the parties have specified a law to govern the arbitration agreement or arbitration clause,535 then that is the governing law for purposes of interpretation of the arbitration agreement itself.536 If however – as is usually the case – no choice of law was specifically made for the arbitration agreement but the parties have chosen a law to govern the underlying main contract, the question of which law should be employed to interpret the arbitration agreement in relation to the dispute arises. At least two alternatives are apparent: (i) the law referenced in the general choice-of-law clause or (ii) the law of the seat of the arbitration.537 232 In such a case, there is a strong tendency to regard the choice of law governing the main contract as equally applicable to the arbitration agreement unless there is agreement to the contrary.538 Although commentators are divided on this question, 531 See Born, International Commercial Arbitration, pp. 496–497 (describing and rejecting this minority view). 532 See Born, International Commercial Arbitration, pp. 494, 497. 533 Van den Berg, NYC, pp. 127, 286; Born, International Commercial Arbitration, pp. 494, 499; Lew/ Mistelis/Kröll, Comparative Arbitration, para. 6‐32; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 43 para. 2. 534 See Born, International Commercial Arbitration, pp. 498–499, 566; Hausmann, in: Reithmann/ Martiny (eds), Internationales Vertragsrecht, para. 8.239. 535 One consequence of the separability doctrine, which provides that an international arbitration agreement is presumptively separable from the underlying contract (Õ para. 296), is that the arbitration agreement may be governed by a law different than that governing the main contract. 536 Gaillard/Savage, Fouchard Gaillard Goldman, para. 426; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.269. 537 See Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 3.11. See Gaillard/Savage, Fouchard Gaillard Goldman, para. 429 (“Where the parties have not chosen a law governing the arbitration, the seat of the arbitration is undoubtedly considered to be the most significant factor in the determination of the applicable law. That, after all, is the place where the arbitration agreement is to be performed.”). Netherlands: Gerechtshof Den Haag, XXIX Y.B. Com. Arb. 798, 799 (2004) (“[…] the arbitration clause must be ascertained under the applicable law, in casu, New York law as the parties had agreed that arbitration would take place in New York.”). Apart from these two alternatives, national courts, arbitral tribunals, and commentators have identified and adopted a wide variety of choice-of-law approaches, adding to uncertainty in this area. See Born, International Commercial Arbitration, pp. 487–488. See also Blessing, in: van den Berg (ed.), 40 Years of NYC, pp. 168, 169. 538 Lew/Mistelis/Kröll, Comparative Arbitration, paras 6‐24, 6‐59; Czernich, Kurzkommentar, Art. II para. 44; Derains, 6(1) ICC Bull. 10, 16–17 (1995); Born, International Commercial Arbitration, pp. 515–517, 581–583; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.14 Comment d (p. 257) (noting that a very strong case may be made for the notion that, absent a choice of law in the arbitration clause itself, a general contractual choice-of-law clause was intended to apply to the arbitration clause as well); Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 120. But see Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.383 (“If parties agreed to a choice of law in the main agreement containing the arbitration clause, this choice of law generally does not constitute a choice of law in respect of the arbitration agreement.”); Hausmann, in: Reithmann/Martiny

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courts and arbitral tribunals frequently consider that a choice of law in the main contract also extends to the arbitration agreement, irrespective of the separability of the arbitration agreement.539 This recognizes that parties who have made a choice of law for the main contract 233 generally expect that this will apply to the entire contract, including any arbitration clause.540 Moreover, it is reasonable to interpret a general choice of law as also applicable to the arbitration clause since choice of law is an expression of party intent and if the parties intended a different law to apply to the arbitration clause they would presumably specify this, in particular since it is contrary to usual expectations. Thus, absent clear indications to the contrary, a general choice of law should be viewed as a choice of law for the entire contract, including the arbitration agreement.541 If the parties have failed to make a choice of law, either expressly or impliedly, then 234 the arbitration agreement is governed by the law of the place of arbitration (i.e., the (eds), Internationales Vertragsrecht, para. 8.240 (arguing that the objectives of the main agreement and the arbitration agreement are too different to justify the view that an express choice of law in the main agreement tacitly applies to the arbitration agreement contained therein); van den Berg, NYC, p. 293. 539 See Poudret/Besson, Comparative Arbitration, paras 297, 300; Germany: OLG Frankfurt, SchiedsVZ 2007, 217; BGH, NJW 1964, 591, 592 („Nach allgemeinen Erfahrungssätzen wird man allerdings davon ausgehen können, daß [der Parteiwille] regelmäßig dahin gerichtet ist, die Schiedsgerichtsvereinbarung demselben Recht zu unterstellen wie das zu regelnde materielle Rechtsverhältnis. Das muß aber nicht so sein. Vielmehr ist es beim Vorliegen besonderer Umstände sehr wohl möglich daß die Beteiligten für den Hauptvertrag ein anderes Statut wählen als für die Schiedsgerichtsabrede.“ Trans.: “According to general experience one can presume that the intent of the parties is usually to apply the same law to the arbitration agreement that applies to the substantive legal relationship. However, that is not necessarily so. Rather, in special circumstances it is certainly possible that the parties choose a different law for the main contract than for the arbitration agreement.”); ICC: Deutsche Schachtbau- und Tiefbohrgesellschaft mbH (DST) v. The Government of the State of R’as Al Khaimah (UAE) (Case No. 3572), XIV Y.B. Com. Arb. 111, 115 (1989); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 72; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 224 (“In practice, choice-of-law clauses in the main contract are often understood to apply to the arbitration clause contained within.”); US: Todd v. S.S. Mut. Underwriting Ass’n (Berm.), 2011 WL 1226464 (E.D. La. 2011) (English law designated by the parties in choice-of-law clause governs the scope of the arbitration agreement). 540 Czernich, Kurzkommentar, Art. II para. 44. See Born, International Commercial Arbitration, pp. 491, 590 (noting that it is very unusual for parties to agree to choice-of-law clauses in their arbitration agreement itself but international commercial contracts frequently contain choice-of-law clauses applicable to the contract generally). 541 See US: Motorola Credit Corp. v. Uzan, 388 F.3d 39, 51 (2d Cir. 2004) (declining a request to apply a uniform federal law in the face of a general choice-of-law provision electing Swiss law to govern the underlying contract. The court stated: “[W]here the parties have chosen the governing body of law, honoring their choice is necessary to ensure uniform interpretation and enforcement of that agreement and to avoid forum shopping. This is especially true of contracts between transnational parties, where applying the parties’ choice of law is the only way to ensure uniform application of arbitration clauses within the numerous countries that have signed the New York Convention.”) Id. Graffi, in: Ferrari/Kröll (eds), Conflict of Laws, p. 35 (“Rarely will the parties think of the law applicable to the arbitration agreement when making a choice of law for the main contract. This may be the case, for example, where the parties are aware that under the law governing the main contract the arbitration agreement would be invalid, illegal or incapable of being performed. In all other instances, the law applicable to the main contract will either implicitly or expressly be deemed by the parties to apply to the arbitration agreement as well.”). But see Born, International Commercial Arbitration, pp. 494–495, 542–549, 590–594 who argues for application of the “validation principle,” meaning that from potentially applicable laws the law that upholds the arbitration agreement is the one that applies and that this reflects the parties’ intention that their arbitration agreement would be valid and effective: “[T]he better interpretation of general choice-of-law clauses is that the law chosen by such provision extends to the parties’ separable arbitration agreement when it would give effect to that agreement, but not otherwise” Id., at 590. See also, Singapore: BCY v. BCZ, [2016] SGHC 249 (holding that the governing law of the main contract will govern the arbitration agreement unless the consequence would be to negate the arbitration agreement, as the parties had evinced an intention to be bound to arbitrate their disputes); UK: Sulamerica CIA Nacional De Seguros SA v. Enesa Engenharia SA, [2012] EWHC 42 (Comm).

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law of the country where the award will be made).542 This gives effect to Article V(1)(a)’s default choice-of-law rule (Õ Art. V paras 111–112). Similarly, in the United States, the Restatement takes the view that if the parties cannot be found to have subjected their arbitration agreement to any particular law, the arbitration agreement will be governed by the law of the seat of arbitration.543 In the United States, however, if the parties failed to make a choice of law US courts will often apply US federal law, in particular for determining the preliminary issue of whether a particular dispute is within the scope of the arbitration agreement.544 235 If the place of arbitration is unknown, the court must seek to determine the intent of the parties in this regard. If the place of arbitration cannot be determined, then the court must apply the conflict-of-laws provisions of the lex fori.545 This corresponds to the approach taken under Article VI(2) of the European Convention (Õ Annex V 3), which gives priority to the law chosen by the parties, then looks to the law of the arbitral seat, and finally refers to the conflict-of-laws rules of the lex fori as a last resort.546 bb) Article VI(2) of the European Convention. The European Convention (Õ Annex V 3) is one of the few legal instruments containing a special rule dealing with the law applicable to an arbitration agreement.547 As with Article V(1)(a) of the New York Convention, Article VI(2)(a) of the European Convention recognizes that the parties are free to choose the law to apply to their arbitration agreement (Õ Art. V para. 113). Accordingly, if the parties have made a choice of law for their arbitration agreement, that law controls the issues of its existence and validity. This provision concerns the existence and material validity of the arbitration agreement, as well as its scope.548 237 If the parties have not made a choice of law, Article VI(2)(b) of the European Convention specifies that the law of the country “in which the award is to be made” controls. Unlike the comparable provision in Article V(1)(a) of the New York Convention, this wording does not presume that an award has already been made. 238 Some authors have argued that if the parties have not made a specific choice of law for the arbitration agreement, the distinction between the substance of the dispute 236

542 Van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 53; Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409, 412 = RIW 2000, 706 = XXXI Y.B. Com. Arb. 652, 660 (2006); Schwab/ Walter, Schiedsgerichtsbarkeit, ch. 43 para. 1; Born, International Commercial Arbitration, p. 495. 543 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.14(b) (p. 254), § 2.15(b) (p. 276). 544 See Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, paras 3.28 et seq.; US: InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003) (applying “federal common law [, which] incorporates general principles of contract […] law.”). In one US circuit court decision, the issue presented to the court was: “Whether, in interpreting an arbitration agreement that falls within the New York Convention […] but that contains no choice-of-law provision, we should apply a federal common law rule of decision or, through the use of choice-of-law principles, determine what appropriate state law should govern.” The court held that in order to ensure uniform enforcement of arbitration agreements federal law applied. US: Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co., 500 F.3d 571, 580 (7th Cir. 2007). See also US: Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, 584 F.3d 513, 524 (3d Cir. 2009) = XXXV Y.B. Com. Arb. 485 (2010); Smith/Enron Cogeneration, Ltd. v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 96 (2d Cir. 1999) = 1999 U.S. App. LEXIS 32097 = XXV Y.B. Com. Arb. 1088 (2000); David L. Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245, 250 (2d Cir. 1991). 545 Applying, e.g., the usual “closest connection” or “center of gravity” test as a conflict rule will in most cases lead to the application of the law of the main contract. Thus, in such case the law of the main contract would be considered applicable to the arbitration clause as well. 546 See Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.242. 547 Lew/Mistelis/Kröll, Comparative Arbitration, para. 6‐27. 548 Germany: OLG Frankfurt, NJW 1986, 2202, 2203. Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.276.

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and the arbitral procedure for settling the dispute opposes the idea that a general choice of law should be considered an indication of the parties’ implied intent concerning the law applicable to the arbitration agreement.549 Again, we find the more convincing view to be that absent an express indication to the contrary, parties normally intend a general choice of law clause to apply to the arbitration clause as well. The distinction between the procedural purpose of the arbitration clause and the substantive purpose of the main contract does not appear to be a sufficient basis to overcome this presumption of intent, borne out in commercial practice. Several of the authors espousing this “distinction view” rely primarily on a decision of the German Federal Supreme Court550 and read too much into that court’s decision. In that case, the court found that no express choice of law had been made (either for the main contract or for the arbitration clause), that the contract was in French, had been concluded in Paris and provided for arbitration in Paris. The court then merely stated that there was no need to determine whether a choice of French law could be implied from these circumstances, since French law was in any event applicable pursuant to Article VI(2)(b) of the European Convention.551 Accordingly, an express or implied choice of law for the main contract may apply to the arbitration agreement, which should in most cases comport with the parties’ intentions and expectations.552 If at the time that a state court seized of the dispute examines the arbitration agreement it is not foreseeable in what country the award will be made, Article VI(2)(c) of the European Convention specifies that the applicable law is to be determined according to the conflict-of-laws rules of that court. This is another difference between Article VI(2) of the European Convention and Article V(1)(a) of the New York Convention, clarifying when the conflict laws of the lex fori apply. With regard to the capacity of the parties to enter into an arbitration agreement, Article VI(2) of the European Convention stipulates that the capacity of the parties shall be examined in accordance with the law applicable to them. In this respect, it follows the notion of Article V(1)(a) of the New York Convention (Õ Art. V paras 105 et seq.). The decisive link to the law applicable to the parties (be it the law of nationality, domicile or place of usual residence) is not determined by the European Convention. 549 Hascher, XXXVI Y.B. Com. Arb. 504, 529 (2011); see also Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.245. In the context of Article V(1)(a) NYC, Professor van den Berg takes the same view. See van den Berg, NYC, p. 293. 550 Germany: BGH, BGHZ 77, 32 = NJW 1980, 2022. 551 Germany: BGH, BGHZ 77, 32 = NJW 1980, 2022, 2024 („Eine Bestimmung des anzuwendenden Rechts […] haben die Vertragspartner im Protocole d’Accord zumindest nicht ausdrücklich getroffen. Ob der in französischer Sprache abgefaßten und in Paris geschlossenen Vereinbarung eine stillschweigende Wahl des französischen Rechts zu entnehmen ist, braucht nicht entschieden zu werden. Denn die Anwendung französischen Rechts ergibt sich jedenfalls aus Art. 6 II 1 lit. b IntSchG, wonach mangels einer Bestimmung der Parteien das Recht des Staates maßgebend ist, in dem der Schiedsspruch ergehen soll. Das ist hier das französische Recht, da in Art. 21 das Protocole d’Accord Paris als Schiedsgerichtsstand vereinbart worden ist.“ Trans.: “The parties to the Protocole d’Accord have at least not made any express choice of law. Whether a choice of French law can be implied from the agreement, which was drafted in French and concluded in Paris, does not need to be decided. This is because French law is in any event applicable pursuant to Article VI(2)(1)(b) of the European Convention, which provides that failing an indication of the parties, the law of the country in which the award is to be made applies. In this case that is French law, since in Article 21 of the Protocole d’Accord Paris was agreed as place of arbitration.”). 552 See ICC: Principal v. Distributor (Case No. 6379), XVII Y.B. Com. Arb. 212, 213–214 (1992) (holding that the parties had provided in a clause in their contract that the contract would be governed by Italian law and that therefore the validity of the arbitration clause must be ascertained according to Italian law, citing Article VI(2) of the European Convention).

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Therefore, the court dealing with the matter has to answer this question in accordance with its conflict-of-laws provisions.553 243

cc) Personal Scope of the Arbitration Agreement. The general rule, consistent with the doctrine of privity of contracts, is that only the parties who signed the instrument containing the arbitration agreement are bound to that agreement. However, arbitration may also be binding on parties who did not sign the arbitration agreement, or who signed it under a different name,554 or who are otherwise bound by the arbitration agreement under principles of agency, succession of title, or other theories.555 In such a case, the arbitration agreement becomes binding on the nonsignatory through some circumstance other than the formality of signature.556 As to whether the formal writing requirements for an arbitration agreement are met in such a case, Õ paras 150 et seq.

(1) Authority/Agency. One of the least controversial circumstances in which a nonsignatory can be bound to an arbitration agreement is through principles of agency.557 A non-signatory principal can be bound to the arbitration agreement by its agent if the principal was validly represented under the applicable agency law when the arbitration agreement was concluded.558 The applicable law must be determined according to the conflict-of-laws provisions of the lex fori (Õ para. 156).559 245 Accordingly, consistent with the principles of the applicable agency law, a number of arbitral awards and national court decisions have held that an entity may be bound as principal by an arbitration agreement which it has not signed, but which was executed on its behalf by an agent.560 246 Agency law often requires proof that the agent was granted authority, express or implied, to enter into the relevant contractual relationship on behalf of the principal.561 In this regard, national laws differ substantially on questions of necessary form (i.e., 244

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Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.365. Discrepancies between the actual name of a party and the name appearing in the arbitration agreement will generally not suffice to successfully dispute the validity of the arbitration agreement if such discrepancies can be explained or result from subsequent changes in the party’s name. Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 77; Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18, 19 = XXXI Y.B. Com. Arb. 640, 643 (2006). 555 See US: Todd v. S.S. Mut. Underwriting Ass’n (Berm.), 601 F.3d 329, 333–335 (5th Cir. 2010); Bridas S.A.P.I.C. v. Turkmenistan, 345 F.3d 347, 355–356 (5th Cir. 2003). US courts generally recognize five theories for binding non-signatories to arbitration agreements: 1) incorporation by reference, 2) assumption, 3) agency, 4) veil-piercing/alter ego, and 5) estoppel. US: Thomson-CSF, S.A. v. Am. Arb. Ass’n, 64 F.3d 773, 776–778 (2d Cir. 1995). In Germany, it is generally accepted that the partners of a German general commercial partnership (OHG) and the personally liable partner of a limited partnership (KG) are bound to arbitration agreements concluded by such partnerships. Schwab/Walter, Schiedsgerichtsbarkeit, ch. 7 para. 35. The theory of piercing the corporate veil of German corporations (“Durchgriffshaftung”) to bind a non-signatory is also accepted by some authorities in Germany (see, e.g., Schlosser, in: Stein/Jonas (eds), ZPO, sect. 1029 para. 79), but is still disputed. See Müller/Keilmann, SchiedsVZ 2007, 113, 116–117. 556 Park, 2(1) Disp. Resol. Int’l 84, 90–91 (2008). 557 Born, International Commercial Arbitration, p. 1419. 558 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 64. See US: InterGen N.V. v. Grina, 344 F.3d 134, 147 (1st Cir. 2003) (“It is hornbook law that an agent can commit its (nonsignatory) principal to an arbitration agreement.”); Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 687 (7th Cir. 2005); Restatement (Third) of Agency § 6.01 (2006). 559 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.239. 560 Born, International Commercial Arbitration, pp. 1419–1420. See, e.g., Switzerland: BG, 18(3) ASA Bull. 546, 553 (2000); BG, 14(4) ASA Bull. 646, 649 (1996); US: Keytrade USA, Inc. v. Ain Temouchent M/V, 404 F.3d 891, 896–897 (5th Cir. 2005). 561 Born, International Commercial Arbitration, p. 1420. 554

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whether the principal’s authorization must be in writing) and content (i.e., whether the authorization must expressly envisage the conclusion of an arbitration agreement).562 Typically only the principal, and not the agent, will be a party to the contract if the 247 agency relationship is disclosed.563 However, some US courts have held that an agent may invoke an arbitration agreement contained in a contract which it executed on behalf of a principal, despite the fact that the agent would not be bound to the substantive provisions of such contract.564 A related principle is that of apparent authority. According to this principle, a party 248 may be bound by another’s acts purportedly made on its behalf, even where those acts were unauthorized, if the alleged principal created the appearance of authorization such that the third party reasonably believes that authorization existed.565 (2) Legal Successor. Questions of succession in international commercial arbitration 249 arise most often in connection with companies rather than natural persons.566 It is well settled that an entity that does not execute an arbitration agreement may become a party to the arbitration agreement by way of legal succession.567 This may occur by, e.g., a company’s merger or combination with the original party to an agreement, or by operation of law.568 Most national laws provide that the merged or surviving entity 562 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.57. For instance, under French law, an authorization to an agent to settle disputes does not include the power to enter into an arbitration agreement: Article 1989 of the French Civil Code. See also Born, International Commercial Arbitration, pp. 736, 1423 (In most instances, an agency relation will either exist, or not, for both the underlying contract and the arbitration agreement). 563 Born, International Commercial Arbitration, p. 1419, n. 67 (with further references). Article 2.2.3 of the UNIDROIT Principles of International Commercial Contracts (2016) (“Where an agent acts within the scope of its authority and the third party knew or ought to have known that the agent was acting as an agent, the acts of the agent shall directly affect the legal relations between the principal and the third party and no legal relation is created between the agent and the third party.”). In Germany, for instance, where the third party was ignorant of the agent’s lack of authority but the agent acted in full knowledge of this fact, then the latter is liable to the former and may be either held to the contract or liable for damages. Section 179(1) of the German Civil Code (BGB). 564 Born, International Commercial Arbitration, p. 1422; US: Arnold v. Arnold Corp., 920 F.2d 1269, 1282 (6th Cir. 1990); Thomas v. A.R. Baron & Co., 967 F. Supp. 785, 788 (S.D.N.Y. 1997) (allowing agent to invoke arbitration agreement is in line with judicial consensus). 565 Restatement (Third) of Agency § 2.03 (2006) (“Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.”). German law recognizes a situation where an agent can bind the principal even though the latter has given neither him nor the third party any real indication of a grant of authority but tolerates it and takes no steps to correct the false impression. This is the concept of “Duldungsvollmacht” in German law. See Germany: BGH, NJW 1997, 312, 314; BGH, NJW-RR 2004, 1275, 1277. 566 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.58. 567 Born, International Commercial Arbitration, p. 1463. See, e.g., ICC: Distributor v. Manufacturer (Case No. 7337), XXIVa Y.B. Com. Arb. 149, 153 (1999) (“It is a general principal of law that a contract can bind only the parties that have entered into it. There are, however, exceptions. A party may be substituted by universal succession or singular succession. An agreement to arbitrate is therefore valid between the parties and their legal successors.”); Austria: OGH, RdW 2004, 547; OGH, SZ 68/112, also available at https://www.ris.bka.gv.at (last visited Apr. 24, 2019). 568 Born, International Commercial Arbitration, p. 1463. See, e.g., US: AT&S Transp., LLC v. Odyssey Logistics & Tech. Corp., 803 N.Y.S.2d 118 (App. Div. 2005) (sale of substantially all assets of predecessor company constituted a de facto merger and bound successor company to arbitration agreement signed by predecessor); Hanotiau, in: Lévy/Derains (eds), Liber Amicorum Lazareff, pp. 323, 324–325 (“By the effect of a universal or individual transfer (merger, demerger, succession, novation, subrogation, transfer of contract or transfer of debt), the actual parties to the arbitration clause (the new shareholders, the new owner of the company, the heirs, the transferees of the contract or the debt, the subrogated party) may be different from the ones who signed the clause in the first place. Again this is a very common situation.”); Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.58.

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succeeds by operation of law as a party to the contracts, including arbitration agreements, of the previous entities (Õ para. 152).569 250 Thus, arbitration agreements are usually held to bind the parties and their legal successors, unless drafted in such a way as to exclude successors.570 (3) Group of Companies. A controversial basis for non-signatories to be bound to an arbitration agreement is the so-called “group of companies” doctrine (Õ para. 155). In the context of a group of companies, non-signatories to an arbitration agreement may seek to take advantage of the arbitration agreement, or another party may seek to bind them to it. 252 The doctrine provides that where a company is part of a corporate group, is subject to the control of (or it controls) a corporate affiliate that has executed a contract, and is involved in the negotiation, performance or termination of that contract, then (in some circumstances) it may invoke or be subjected to an arbitration clause in the contract even though it did not execute the contract.571 253 One of the seminal cases employing this doctrine was the Dow Chemical ICC arbitration.572 The arbitrators concluded that irrespective of the distinct juridical identity of each of the group’s members, a group of companies constitutes one and the same economic reality (“une realité économique unique”) and decided that it was the mutual intention of all parties that the group companies should have been real parties to the agreement. The tribunal found that the arbitration clause in question bound all of the Dow companies which, “by virtue of their role in the conclusion, performance, or termination of the contracts containing said clauses, and in accordance with the mutual intention of all of the parties to the proceedings, appear to have been veritable parties to these contracts or to have been principally concerned by them and the disputes to which they may give rise.”573 254 According to this doctrine, a non-signatory may be bound to an arbitration agreement if it is part of a group of companies and the parties have engaged in conduct (such as negotiation, performance or termination of the relevant contract) or made statements indicating the intention, assessed objectively and in good faith, that the non-signatory be bound to the relevant contracts.574 It requires more than a simple showing of a 251

569 Born, International Commercial Arbitration, p. 1464 (with further references). Germany: BayObLG, SchiedsVZ 2004, 163, 165; Switzerland: BG, 16(3) ASA Bull. 653 (1998): US: Fyrnetics (H.K.) Ltd. v. Quantum Group, Inc., 293 F.3d 1023, 1029 (7th Cir. 2002) (successor company bound by arbitration agreement signed by entity that merged into successor company); Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.58; Gaillard/Savage, Fouchard Gaillard Goldman, para. 715. 570 See ICC: German company v. Italian company (Case No. 2626), JDI 1978, 981 (“The dominant trend in case law holds that an arbitration agreement is not only valid between the parties, but can also be relied upon against their heirs, their legatees, their assignees, and all those acquiring obligations. The only exceptions are cases where the arbitration agreement is drafted in such a way as to exclude successors and assignees.”); Born, International Commercial Arbitration, pp. 1463–1465. 571 See Born, International Commercial Arbitration, pp. 1444–1445. See also Park, 2(1) Disp. Resol. Int’l 84, 84–109 (2008); Wilske/Shore/Ahrens, 17 Am. Rev. Int’l Arb. 73, 75–78 (2006). 572 ICC: Dow Chemical v. Isover Saint Gobain (Case No. 4131), JDI 1983, 899 = IX Y.B. Com. Arb. 131 (1984). It is significant that this case dealt with the issue of whether non-signatories may be claimants in arbitration. Many consider that this is less problematic than the issue of whether a non-signatory is required to arbitrate. See, e.g., Park, 2(1) Disp. Resol. Int’l 84, 105–106 (2008). 573 ICC: Dow Chemical v. Isover Saint Gobain (Case No. 4131), JDI 1983, 899 = IX Y.B. Com. Arb. 131, 135 (1984). 574 Born, International Commercial Arbitration, pp. 1148–1149. See also UK: Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, [2010] UKSC 46 = 2010 WL 4276039 = XXXVI Y.B. Com. Arb. 357 (2011) (finding that a purpose-built trust, rather than the government of Pakistan, was the true party to the arbitration agreement. Lord Collins discusses the principle of non-signatories in French law at paras 118–122). Significantly, the Paris Court of Appeal

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non-signatory’s membership in a group of companies.575 The signatory parties as well as the non-signatory parties should have intended (or led the other parties to reasonably believe that they intended) to be bound by the arbitration clause, whereby the contours of any such requirements tend to be blurred.576 This doctrine has never been universally accepted and appears to have met with more 255 criticism than sympathy.577 After all, an important reason that groups of companies are established with distinct legal status is to disburse legal responsibility and liability.578 The doctrine has been most popular in France,579 although recent French case law seems to look only for consent and performance,580 while German law, for instance, does not know any type of group of companies doctrine which goes beyond ordinary principles of contract interpretation.581 US courts have rather relied on principles such as alter ego, agency, estoppel and third-party beneficiaries to find jurisdiction over nonsignatories.582 In England, one court explicitly found that the group of companies doctrine formed no part of English law.583 The doctrine has only been recognized in a minority of jurisdictions584 and significant doubts remain as to its existence and parameters.585 Although the rejection of the doctrine has been criticized by at least one well-known 256 authority as missing the point that the doctrine is an expression of agency principles and implied consent,586 in its generally understood form it appears to lead to a rather subsequently came to an opposite conclusion than the UK Supreme Court in the Dallah case, finding that Pakistan, by its behavior during the negotiation and termination of the contract, considered itself to be the true party to the contract despite the formalism of the trust which was the signatory to the contract containing the arbitration obligation). France: CA Paris, XXXVI Y.B. Com. Arb. 590, 593 (2011). 575 Switzerland: BG, BGE 134 III 565. 576 ICC: Case No. 11405, interim award of Nov. 29, 2001 (unreported), quoted in Hanotiau, Complex Arbitrations, para. 105 n. 142 (“[t]here is no general rule, in French international arbitration law, that would provide that non-signatory parties members of a same group of companies would be bound by an arbitration clause, whether always or in determined circumstances. What is relevant is whether all parties intended non-signatory parties to be bound by the arbitration clause. Not only the signatory parties, but also the non-signatory parties should have intended (or led the other parties to reasonably believe that they intended) to be bound by the arbitration clause […]”); see Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.50. 577 Wilske/Shore/Ahrens, 17 Am. Rev. Int’l Arb. 73, 77 (2006). 578 See Wilske/Shore/Ahrens, 17 Am. Rev. Int’l Arb. 73, 79 (2006). See US: Sarhank Group v. Oracle Corp., 404 F.3d 657, 662 (2d Cir. 2005) (“The principal reason corporations form wholly owned foreign subsidiaries is to insulate themselves from liability for the torts and contracts of the subsidiary and from the jurisdiction of foreign courts.”). 579 See, e.g., France: CA Paris, Rev. arb. 1992, 90. 580 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 66. 581 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 77. 582 US: Sarhank Group v. Oracle Corp., 404 F.3d 657, 662 (2d Cir. 2005). See, e.g., US: J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 320–321 (4th Cir. 1988) = XV Y.B. Com. Arb. 543 (1990) (“When the [allegations] against a parent company and its subsidiary are based on the same facts and are inherently inseparable, a court may refer claims against the parent to arbitration even though the parent is not formally a party to the arbitration agreement.”). 583 UK: Peterson Farms Inc. v. C Farming Ltd., [2004] All E.R. 50 = 2004 Arb. L.R. 573. 584 See Wegen/Wilske (eds), Getting the Deal Through (inquiring in question 13 of the questionnaire whether the courts and arbitral tribunals in each jurisdiction recognize extension of an arbitration agreement to a non-signatory under the group of companies doctrine). 585 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, paras 2.46, 2.50. For a discussion of the doctrine as well as the treatment of non-signatories under French law, see UK: Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, [2010] UKSC 46 = 2010 WL 4276039 = XXXVI Y.B. Com. Arb. 357 (2011). 586 See Born, International Commercial Arbitration, p. 1454 (“English and Swiss authorities declaring that the group of companies doctrine is no part of national law are rhetorically impressive in their invocations of corporate identities and party autonomy. They nonetheless miss the essential focus, and

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dangerous presumption which could bind parties to arbitration agreements against their will. The danger is that from the mere corporate group structure and the fact that a related non-signatory entity was somehow implicated in the negotiation or performance of the contract it might be presumed that such entity agreed to the arbitration clause. This seems to be an unwarranted over-extension of implied consent susceptible to abuse, which counsels against the application of such a doctrine in establishing who the real contracting parties to the arbitration agreement are.587 (4) Third Party Beneficiaries. In common law countries, in contracts for the benefit of third parties the intended beneficiary is generally subject to all the terms of the contract between the promisor and the promisee.588 In the United States, it is well settled that third-party beneficiary status does not allow the beneficiary to avoid the effect of otherwise enforceable contract provisions.589 Thus, a third-party beneficiary of a contract containing an arbitration clause can be subject to that clause and compelled to arbitrate on the demand of the signatory (Õ para. 150).590 258 A similar concept exists also in the civil law. In Germany, for instance, with contracts for the benefit of a third party, the third party directly acquires the right to demand performance of the contract.591 If such a contract contains an arbitration clause, it is accepted that the third party is also bound by such clause.592 The same applies in Austria.593 257

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(5) Estoppel. In common law jurisdictions a non-signatory can also be compelled to arbitrate under the doctrine of equitable estoppel. Equitable estoppel precludes a party from asserting rights it otherwise would have had against another when its own conduct renders assertion of those rights contrary to equity.594 In the arbitration context, the doctrine recognizes that a party may be estopped from asserting that the lack of its signature on a contract precludes enforcement of the contract’s arbitration clause, when that party has consistently maintained that the other provisions of the same contract should be enforced to its benefit.595 This doctrine is similar to the concept of venire importance, of the doctrine and arrive at unsatisfactory conclusions. Properly understood, the group of companies doctrine is a way of applying well-accepted principles of agency and implied consent to agreements to arbitrate in the context of modern, multiparty business transactions, in order that the parties’ true objectives and intentions can be ascertained.”). See also Hanotiau, in: Lévy/Derains (eds), Liber Amicorum Lazareff, pp. 323, 328. 587 See Wilske/Shore/Ahrens, 17 Am. Rev. Int’l Arb. 73, 87–88 (2006). 588 For the United States, see Farnsworth, Contracts, § 10.9, p. 54. For the United Kingdom see the Contracts (Rights of Third Parties) Act 1999. 589 US: InterGen N.V. v. Grina, 344 F.3d 134, 146 (1st Cir. 2003) = XXIX Y.B. Com. Arb. 1080 (2004) (with further references). 590 US: InterGen N.V. v. Grina, 344 F.3d 134, 146 (1st Cir. 2003) = XXIX Y.B. Com. Arb. 1080 (2004); E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 195 (3d Cir. 2001). See also UK: Nisshin Shipping Co. Ltd. v. Cleaves & Co. Ltd., [2003] EWHC 2602 (Comm); Treitel/Peel, Law of Contract, para. 14-098 (noting that under the UK Contracts (Rights of Third Parties) Act 1999 an intended beneficiary is also subject to an arbitration clause contained in the contract between the promisor and the promisee and is treated as a party to the arbitration agreement). 591 Section 328(1) of the German Civil Code (BGB). 592 Schwab/Walter, Schiedsgerichtsbarkeit, ch. 7 para. 36. 593 Austria: OGH, SZ 68/112, also available at https://www.ris.bka.gv.at (last visited Apr. 24, 2019). 594 US: Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GmbH, 206 F.3d 411, 417–418 (4th Cir. 2000) = XXV Y.B. Com. Arb. 1146, 1149–1150 (2000). 595 US: Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GmbH, 206 F.3d 411, 418 (4th Cir. 2000) = XXV Y.B. Com. Arb. 1146, 1149–1150 (2000); Am. Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (2d Cir. 1999). See The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.3 Reporters’ Note c (p. 167).

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contra factum proprium known in some civil law jurisdictions, which provides that selfcontradictory behavior constitutes an abuse of rights (Õ para. 53; Õ Art. V para. 48).596 Thus, in the United States a number of courts have held that where a non-signatory 260 seeks the benefits of a contract597 that contains an arbitration clause, the non-signatory should be estopped from avoiding the burdens of that contract, including the obligation to arbitrate any dispute arising under the contract.598 dd) Factual Scope of the Arbitration Agreement. The factual scope of the arbitration 261 agreement will apply to any arbitrable disputes which the parties intended to submit to arbitration by way of their agreement (Õ Art. V para. 204). In interpreting an arbitration clause, regard should be had to the tenor of approach internationally in construing arbitration clauses in international agreements. The prevailing view is that a liberal approach should be taken in keeping with the purposes of the Convention.599 This liberal approach is underpinned by the sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from their transaction being heard in two places, split between arbitral tribunals and national courts (Õ para. 226).600 b) Dispute Requirement The fact that there must be a dispute is inherent in the very nature of an arbitration 262 agreement by which the parties undertake to submit their “differences” or disputes to arbitration. The language of Article II(1) speaks of “differences […] in respect of a defined legal relationship, whether contractual or not […].” The word “differences” as used here is merely another word for “disputes” (Õ paras 60–62).601 Some national courts have held that national arbitration legislation was inapplicable 263 in certain cases because there was no real “dispute” between the parties, after concluding that one party’s position was either concededly or undeniably unsustainable.602 For 596 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 68. A similar estoppel concept is also known in civil law jurisdictions such as France and Germany and has been asserted in connection with the setting aside or enforcement of arbitral awards. See Markert/Bigel, 15 NYSBA Int’l Chap. News 25 (2010); see also Article 1466 of the French Code of Civil Procedure (inspired by the common law estoppel doctrine, this provision provides that a party which, knowingly and without a legitimate reason, fails to object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to avail itself of such irregularity). 597 The benefits of a contract are the rights available under the contract, while the burdens of the contract are the obligations under the contract. 598 See, e.g., US: Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 688 (7th Cir. 2005); Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GmbH, 206 F.3d 411, 418 (4th Cir. 2000) = XXV Y.B. Com. Arb. 1146, 1149–1150 (2000); Thomson-CSF, S.A. v. Am. Arb. Ass’n, 64 F.3d 773, 776 (2d Cir. 1995). 599 See Australia: Walter Rau Neusser Oel und Fett AG v. Cross Pacific Trading Ltd., [2005] FCA 1102 para. 41; Lew/Mistelis/Kröll, Comparative Arbitration, para. 7‐67. 600 Australia: Comandate v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192 = XXXII Y.B. Com. Arb. 224, 240 (2007); Walter Rau Neusser Oel und Fett AG v. Cross Pacific Trading Ltd., [2005] FCA 1102 paras 41–42; UK: Premium Nafta Products Ltd. v. Fili Shipping Co. Ltd., [2007] UKHL 40 = [2007] Bus. L.R. 1719, 1726 (House of Lords, per Hoffmann), upholding Fiona Trust & Holding Corp. v. Privalov, [2007] EWCA Civ 20; Lew/Mistelis/Kröll, Comparative Arbitration, para. 7‐67. 601 This is evident from the Convention drafters’ discussion regarding the same term in relation to Article I(1): “Mr. Sanders (Netherlands) […] proposed that the word ‘disputes’ in the English text should be replaced by ‘differences’ and the word ‘contracts’ by ‘legal relationships’ in order to bring the provision into line with the other articles approved by the Drafting Committee.” E/CONF.26/SR.23, p. 10 (Õ Annex IV 1). The term appears to be a variation of a French word for disputes: “différends.” See the French version of the standard ICC arbitration clause: “Tous différends découlant du présent contrat […];” Black (ed.), Black’s Law Dictionary, p. 456 (“Difference. In an agreement for submission to arbitration, a disagreement or dispute.”). 602 Born, International Commercial Arbitration, pp. 339–340. See also UK: Halki Shipping Corp. v. Sopex Oils Ltd., [1998] 1 Lloyd’s Rep 465 = XXIII Y.B. Com. Arb. 802 (1998); Hong Kong: Tai Hing Cotton Mill Ltd. v. Glencore Grain Rotterdam BV, [1996] 1 HKC 363.

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instance, in England under the previous Arbitration Act 1975, if a plaintiff in an action to which the defendant had applied for a stay on the basis of an arbitration agreement could show that there is no defense to the claim, the court could refuse to stay the action and at the same time enter summary judgment for the plaintiff.603 This has since been changed with the adoption of the English Arbitration Act 1996 and it can no longer be argued under English law that if there is not a genuine dispute the matter should not be referred to arbitration.604 264 There have also been cases where parties have objected to a tribunal’s jurisdiction on the basis that there was no disputed fact or issue – such as when a debt is acknowledged – and therefore nothing to refer to arbitration.605 In such a case the fact that the party has not yet been paid what is owed should be a sufficient “difference” or dispute between the parties. It should furthermore be difficult for the other party to argue that there is no dispute, since at a minimum there would be a dispute about whether there is a dispute.606 265 Courts will generally find, in the presence of an arbitration agreement, that any disagreement as to whether a dispute exists should be resolved by arbitrators.607 Accordingly, a dispute should be considered to exist so long as there is a claim alleged by one party against another.608 c) Provisional Measures The Convention contains no provision on whether a party bound by an arbitration agreement may apply to a court for provisional relief or interim measures. According to Article 9 of the Model Law, it is not incompatible with an arbitration agreement for a party to request from a state court, before or during arbitral proceedings, an interim measure of protection.609 In addition, provisions in the arbitration rules of leading institutions allow parties to apply to any competent judicial authority for interim or conservatory measures either at any time610 or else before formation of the arbitral tribunal and in appropriate circumstances thereafter.611 267 The majority opinion is that the lex fori determines if and to what extent interim relief may be granted from a court despite an arbitration agreement.612 Most Contracting States provide for concurrent competence between state courts and arbitral 266

603 See UK: Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., [1993] AC 334 = XIX Y.B. Com. Arb. 736, 742–743 (1994). 604 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 1.61 n. 69 (quoting Lord Saville: “The action of the Courts in refusing to stay proceedings where the defendant has no defence is understandable. It is, however, an encroachment on the principle of party autonomy which I find difficult to justify. If the parties have agreed to arbitrate their disputes, why should a Court ignore that bargain, merely because with hindsight one party realises that he might be able to enforce his rights faster if he goes to Court?”). 605 See McIlwrath/Savage, International Arbitration and Mediation, para. 1-017; Blackaby/Partasides/ Redfern/Hunter, Redfern and Hunter, paras 1.60, 1.61. 606 McIlwrath/Savage, International Arbitration and Mediation, para. 1-017. 607 McIlwrath/Savage, International Arbitration and Mediation, para. 1-017. 608 See Born, International Commercial Arbitration, p. 340. 609 Accordingly, national arbitration laws that are based on the Model Law will generally contain a similar provision: see, e.g., section 1033 of the German Code of Civil Procedure. In such a case, parties may also apply to state courts for interim relief at the post-award stage of the arbitral proceedings. 610 See, e.g., Article 25.3 of the DIS Rules (2018); Article 26.5 of the Swiss Rules of International Arbitration (2012); Article 24.3 of the ICDR International Arbitration Rules (2014), Article 33.5 of the Vienna Rules (2018); Article 37.5 of the SCC Rules (2017). 611 See, e.g., Article 28(2) of the ICC Rules (2017), Article 25.3 of the LCIA Rules (2014); Article 30.3 of the SIAC Rules (2016), Articles 23.1 and 23.9 of the HKIAC Rules (2018). 612 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.260.

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tribunals in this regard.613 This is because measures for interim relief, such as orders for the securing of evidence or attachment of assets, etc. do not prejudice the jurisdiction of the arbitral tribunal to decide the merits of the case.614 Several US courts have taken the minority view by applying Article II(3) to preclude pre-award attachment.615 This view is becoming increasingly disfavored, however.616 d) Provisional Measures Under the European Convention Under the European Convention (Õ Annex V 3), Article VI(4) stipulates that a party 268 to an arbitration agreement is not precluded from applying for interim relief in state courts. This means that by applying for interim measures a party does not waive the plea as to the jurisdiction of the court.617 The underlying idea is that an application for provisional measures in principle does not coincide with an intention of the applying party to circumvent arbitration.618 The expression “judicial authority” in Article VI(4) of the European Convention 269 includes both courts of law and executive authorities competent to make provisional orders under domestic laws.619 However, the European Convention does not create a substantive obligation of signatories to provide for provisional measures by courts.620 Furthermore, Article VI(4) does not in any way rule out the capability of the arbitral tribunal itself to grant provisional measures.621

VI. Request of One of the Parties The wording “at the request of one of the parties” makes clear that a party to the 270 arbitration agreement, generally the defendant in the court action, must request referral to arbitration. The courts are not permitted on their own motion to stay their proceedings or otherwise refer the parties to arbitration, since the parties are free to mutually renounce their right to arbitration and decide to litigate (Õ para. 200). Article II(3) does not specify the form required for such a request and leaves this to 271 the lex fori of the court before which the action is brought.622 For instance, under German law the request has no form requirements: It is enough that the party sufficiently indicates its intention that the dispute should not be decided by the state 613

Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.260. Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 100–101 (with further references); see UK: Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., [1993] AC 334 = XIX Y.B. Com. Arb. 736, 744 (1994) (House of Lords, per Mustill) (“[T]he purpose of interim measures of protection, by contrast, is not to encroach on the procedural powers of the arbitrators but to reinforce them, and to render more effective the decision at which the arbitrators will ultimately arrive on the substance of the dispute.”). 615 See US: McCreary Tire & Rubber Co. v. CEAT, S.p.A., 501 F.2d 1032, 1038 (3d. Cir. 1974) = I Y.B. Com. Arb. 203, 204 (1976); Cooper v. Ateliers de la Motobécane, S. A., 57 N.Y.2d 408, 416 (1982) = IX Y.B. Com. Arb. 482, 484–485 (1984) (both cases holding that the foreign attachment of property by way of injunctive relief was not reconcilable with Article II(3)). 616 See Wong, 2(1) Contemp. Asia Arb. J. 83, 94–98 (2009), discussing US cases that reject McCreary and arguing that its holding is increasingly becoming isolated as “an historical curiosity.” 617 Mezger, RabelsZ 29 (1965), 231, 270. 618 Hascher, XXXVI Y.B. Com. Arb. 504, 531 (2011). 619 Hascher, XXXVI Y.B. Com. Arb. 504, 531 (2011). 620 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 430. 621 Hascher, XXXVI Y.B. Com. Arb. 504, 531 (2011). 622 Poudret/Besson, Comparative Arbitration, para. 492; Italy: Cass, Riv. Dir. Int. Priv. Proc. 2003, 1047–1051 = XXX Y.B. Com. Arb. 599, 602 (2005) (holding that Article II(3) requires neither a prescribed formula nor an explicit petition to refer the dispute to arbitration; a request to refer the dispute to arbitration is implied in an objection that seeks the application of the arbitration agreement). 614

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court, but rather by an arbitral tribunal.623 The usual practice is to make such a request in writing at an early stage of the proceedings (Õ para. 277). 272 A request that the court refer the matter to arbitration can in some very limited circumstances be considered a violation of good faith (an example of venire contra factum proprium) and be disregarded.624 For example, it is a violation of good faith for a party to first argue in arbitral proceedings that the state courts are competent and then in state court proceedings in the same matter argue the opposite (Õ para. 53).625 The same applies if a party alleges in state court proceedings that an arbitral tribunal is the competent forum and alleges in pending or subsequent arbitral proceedings that in fact the state courts are competent.626 It has also been argued (particularly in Germany) that it is a violation of good faith if the objecting party requesting referral to arbitration cannot satisfy its obligations to pay the required cost advances for the arbitration.627

1. Party Requesting Referral to Arbitration 273

The party making the request must generally be a party to the arbitration agreement and a party to the litigation.628 It is not uncommon for the parties to a court proceeding to include, but not be limited to, the parties to an applicable arbitration agreement. In such circumstances, the arbitration agreement can be enforced only against those parties who are parties to the arbitration agreement. This has caused some to question whether the arbitration agreement could be considered inoperative in such circumstances (Õ para. 310). This also raises the question of whether a party to the court proceedings which is not, on the face of the arbitration agreement, a party to that agreement, may be entitled to enforce the arbitration agreement (Õ paras 243 et seq.).

2. Waiver and Time Limits 274

Given that arbitration is based on agreement, it is always possible for the parties to agree to waive their obligation to submit their disputes to arbitration. By failing to invoke the arbitration agreement in state court proceedings, the defendant indicates that

623

Germany: BGH, SchiedsVZ 2009, 122, 125. See Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.275. 625 Germany: BGH, BGHZ 50, 191, 196 = NJW 1968, 1928, 1928–1929; BayObLG, XXX Y.B. Com. Arb. 568, 570 (2005) (“It appears from the interpretation of Article II of the Convention that the prohibition of contradictory behavior is a legal principle implied in the Convention […]. Where, in violation of good faith, the formal invalidity of the arbitration agreement is raised [by a party who has] participated in the arbitration without raising any objection, this objection is not to be examined.”). 626 Germany: BGH, NJW-RR 2009, 1582–1583; US: Apple & Eve, LLC v. Yantai N. Andre Juice Co., 610 F. Supp. 2d 226, 231 (E.D.N.Y. 2009) (a Chinese party’s application to stay US litigation on the basis of an arbitration clause while simultaneously challenging the same arbitration clause in a Chinese court is inconsistent with the right to arbitration and amounts to a waiver of this right, making the arbitration clause null and void); see Wilske/Fox, 14 IBA Arb. Committee Newsl. 26, 27 (Sep. 2009). 627 Germany: BGH, BGHZ 50, 191, 196 = NJW 1968, 1928, 1928–1929; OLG Frankfurt, IPRax 1999, 247; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.275. 628 See US: Arthur Andersen LLP v. Carlisle, 129 S. Ct. 1896, 1901 n. 4 (2009) (noting that the parties did not contest that the term “parties” under § 3 of the Federal Arbitration Act [dealing with domestic arbitration but also applying to Convention cases residually to the extent not in conflict, see 9 U.S.C. 208] refers to parties to the litigation rather than parties to the contract, the court stated that it “would not be disposed to believe that the statute allows a party to the contract who is not a party to the litigation to apply for a stay of the proceeding.”); Italy: CA Salerno, Riv. Dir. Int. Priv. Proc. 1992, 115 = XXI Y.B. Com. Arb. 576, 578 (1996) (holding that where a contract containing an arbitration clause was concluded between two parties, a third party who was neither a party to the contract nor its assignee was not entitled to invoke the contract’s arbitration clause to object to the court’s jurisdiction under Article II(3) of the Convention). 624

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it tacitly accepts the plaintiff’s choice of referring the dispute to the state courts.629 Thus, if a party does not timely invoke the arbitration agreement, the court will retain jurisdiction of the case, unless it lacks jurisdiction for some other, independent, reason. Similarly, most authorities are of the opinion that an appearance made in arbitration 275 proceedings without objection may at least cure a formal defect in an existing arbitration agreement.630 In any case, parties may not be heard to allege the formal invalidity of the arbitration agreement if they participated in the arbitration without raising this objection.631 The Convention itself does not specify a time limit for requesting referral to 276 arbitration. Failing a provision in the Convention, this question must be determined under the law of the forum. a) Time Limits Imposed by Domestic Laws Many national arbitration laws, and the Model Law, require that a party must request 277 referral to arbitration before taking any steps relating to the merits of the case.632 For instance, under German law, an objection based on the arbitration agreement must be made prior to the beginning of the oral hearing on the substance of the dispute.633 In Sweden, the objection must be raised at least by the first occasion to plead on the merits.634 In Singapore, the objection must be made before delivering any pleading or taking any other step in the proceedings.635 The failure of a party to (timely) invoke the arbitration agreement before the court 278 can constitute a waiver or estoppel of the right to submit the dispute to arbitration.636 Courts have found that a contract right to compel arbitration may be waived where a party has failed to timely assert that right and has participated in litigating the claims in court.637 In one case, defendants filed an answer, a third-party complaint and a counterclaim in state court proceedings. In the answer the defendants did not object to the state court’s jurisdiction on the basis of the parties’ arbitration agreement. Noting that the filing of a counterclaim is an important consideration in a waiver analysis, the court found that the defendants had waived their right to arbitrate the dispute.638 In a procedural system that allows parties to plead in the alternative, such as in 279 England or the United States, it may be possible to seek arbitration and in the alternative assert counterclaims in the litigation without such conditional assertions

629 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐36; van den Berg, NYC, p. 138; Gaillard/ Savage, Fouchard Gaillard Goldman, para. 669. 630 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.244. See section 1031(6) of the German Code of Civil Procedure (“Any non-compliance with the form requirements is cured by entering into argument on the substance of the dispute in the arbitral proceedings.”); Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, paras 8.321, 8.398. 631 Germany: BayObLG, XXX Y.B. Com. Arb. 568, 570 (2005). 632 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐37; see section 9(3) of the English Arbitration Act 1996; Article 8(1) of the Model Law (the request must be made “not later than when submitting [the] first statement on the substance of the dispute […]”). 633 Section 1032(1) of the German Code of Civil Procedure. Some commentators argue that if the defendant in the court action is given a time period to file an answer to the complaint before the oral hearing, then the objection based on the arbitration agreement must generally be made within that time period. Schwab/Walter, Schiedsgerichtsbarkeit, ch. 7 para. 1; Rützel/Wegen/Wilske, Commercial Dispute Resolution in Germany, p. 22. 634 Oldenstam/von Pachelbel, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 13.49. 635 Chapter 143A, Section 6(1) of the Singapore International Arbitration Act. 636 Schwab/Walter, Schiedsgerichtsbarkeit, ch. 7 para. 1. 637 ICCA, Guide, p. 41. 638 US: Belcourt v. Grivel, S.L.R., 2009 WL 3764085 (D. Utah 2009).

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amounting to a waiver of the right to arbitrate.639 The safer route, however, is to petition the court to refer the parties to arbitration before making any other pleadings in the litigation, conditional or not. b) Time Limits Imposed by Article VI(1) of the European Convention For States that are party to the Convention and have also ratified the European Convention (Õ Annex V 3), the latter specifies a time limit for requesting the court to refer the matter to arbitration. Article VI(1) of the European Convention provides that the plea as to lack of jurisdiction of the court on the basis of an arbitration agreement must be presented by the defendant before or at the same time as the presentation of his substantive defense, depending upon whether the law of the court seized (i.e. the law of the forum) regards such plea as one of procedure or of substance. If the defendant fails to timely submit the plea, he is estopped from raising it. 281 Article VI(1) of the European Convention within its scope of application therefore complements the provision of Article II(3) and serves to expedite the proceedings.640 The European Convention is silent as to when the defendant’s substantive defense is presented. Consequently, this is a question to be answered in accordance with the respective domestic procedural laws.641 If the lex fori regards the plea as to lack of jurisdiction as one of procedural nature, the objection must be made before the substantive defense is asserted. If the lex fori regards the plea as to lack of jurisdiction as one of substantive nature, then it is sufficient for the objection to be made at the same time that the substantive defense is asserted.642 282 Despite of the strict wording of Article VI(1) of the European Convention, it has been argued that a delayed plea for referral to arbitration should be excused and still be considered by the court if the denial would lead to a violation of the right to a fair hearing.643 As this is a matter of waiver or estoppel, it seems that this would be within the equitable discretion of the judge. 283 With regard to objections to the arbitral tribunal’s jurisdiction based on the nonexistence or invalidity of the arbitration agreement, under Article V(1) of the European Convention these must be raised before the arbitral tribunal no later than the delivery of the statement of claim or defense relating to the substance of the dispute. As provided under Article V(2) of the European Convention, a failure to comply with the provisions in Article V(1) results in the pleading party being precluded from subsequently raising any such defenses that the court is not required to consider on its own motion in court proceedings concerning the substance or enforcement of the award (Õ Art. VII para. 89).644 280

VII. Court Decision 284

If the court seized of an action in a matter in respect of which the parties have concluded an arbitration agreement is requested to refer the parties to arbitration, it 639 US: Republic of Ecuador v. Chevrontexaco Corp., 376 F. Supp. 2d 334, 365 (S.D.N.Y. 2004) (In this case the defendants made their counterclaims explicitly conditional, stating that they will not seek to litigate the counterclaims unless the court decides not to refer the parties to arbitration). 640 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.279; Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.391. 641 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.391. 642 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.391. 643 Hascher, XXXVI Y.B. Com. Arb. 504, 523–524 (2011). 644 See Austria: OGH, ÖJZ 2010, 188 = JBI 2010, 255 = XXXV Y.B. Com. Arb. 328 (2010); Steindl, (2010) 27(4) J. Int. Arb. 427, 428.

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must undertake a review of the arbitration agreement. This is evident from the wording of Article II(3), which states that the court shall refer the parties to arbitration “unless it finds” that the arbitration agreement is somehow invalid.645 The court therefore conducts a factual inquiry, which is usually rather limited, in 285 order to satisfy itself that the requirements for the arbitration agreement are met. For instance, in the United States, the court’s factual inquiry is strictly limited.646 The factors a court will examine are whether: (1) there is an agreement in writing to arbitrate the dispute; (2) the agreement provides for arbitration in the territory of a Contracting State; (3) the agreement to arbitrate arises out of a commercial legal relationship; and (4) a party to the agreement is not an American citizen647 or the parties’ commercial relationship has some reasonable relation with a foreign country.648

1. Prerequisites for Referral to Arbitration There are certain preliminary considerations that must be addressed when a court is 286 requested to refer the parties to arbitration. These are discussed below. a) Burden of Proof The text of the Convention does not expressly address the burden of proof with 287 respect to an arbitration agreement. Yet, the Convention does appear to allocate the burden of proof between the parties when a party requests referral to arbitration. The party invoking the arbitration agreement bears the burden of proving that the arbitration agreement exists between the parties, meets the formal requirements, and covers the subject matter of the dispute before the court.649 This follows from the prerequisite of Article II(3) that the court must be dealing with “a matter in respect of which the parties have made an agreement within the meaning of this article.” If the court is satisfied that these requirements are met, the burden then shifts to the 288 other party to prove that the arbitration agreement is null and void, inoperative, or incapable of being performed.650 This follows from the wording of Article II(3) that the court “shall” refer the parties to arbitration “unless” the court “finds” that the arbitra645 Australia: Comandate v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192 = XXXII Y.B. Com. Arb. 224, 247 (2007) (“Certainly, the notion of the court ‘finding’ the state of affairs, referred to in Art. 8 [of the Model Law], Art. II and Sect. 7(5) [of the Australian International Arbitration Act], assumes a responsibility of the court.”). 646 US: Sedco, Inc. v. Petroleos Mexicanos Mex. Nat’l Oil Co., 767 F.2d 1140, 1149 (5th Cir. 1985) = XII Y.B. Com. Arb. 539 (1987) (“Indeed, under the Convention any factual inquiry prior to a court being required to enforce an arbitration clause is strictly limited.”); Bautista v. Star Cruises, 396 F.3d 1289, 1294–1295 (11th Cir. 2005) = XXX Y.B. Com. Arb. 1071 (2005). 647 US: Sedco, Inc. v. Petroleos Mexicanos Mex. Nat’l Oil Co., 767 F.2d 1140, 1144–1145 (5th Cir. 1985) (citing US: Ledee v. Ceramiche Ragno, 684 F.2d 184, 185–186 (1st Cir. 1982)). See also US: Bautista v. Star Cruises, 396 F.3d 1289, 1302 (11th Cir. 2005) = XXX Y.B. Com. Arb. 1071 (2005); Francisco v. Stolt Achievement MT, 293 F.3d 270, 273 (5th Cir. 2002). 648 US: Ledee v. Ceramiche Ragno, 684 F.2d 184, 186–187 (1st Cir. 1982). 649 See, e.g., Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 102; Lamm/ Sharpe, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 297, 304. See UK: JSC Aeroflot-Russian Airlines v. Berezovsky, [2013] EWCA Civ 748; Singapore: FirstLink Investments Corp. Ltd. v. GTPayment Pte. Ltd., [2014] SGHCR 12 = XXXIX Y.B. Com. Arb. 493, 494 (2014) (noting that the applicant for a stay must satisfy on a prima facie basis the existence of an arbitration agreement); US: In re Mercury Constr. Corp. v. Moses H. Cone Mem’l Hosp., 656 F.2d 933, 939 (4th Cir. 1981). 650 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 102; Lamm/Sharpe, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 297, 304; UK: Overseas Union Insurance Ltd. v. AA Mutual International Insurance Co. Ltd., [1988] 2 Lloyd’s Rep 63, 70; US: Cooper v. Ateliers de la Motobécane, S. A., 57 N.Y.2d 408, 412 (1982) = IX Y.B. Com. Arb. 482 (1984) (the Convention “eased the difficulty in enforcing international arbitration agreements by minimizing uncertainties and shifting the burden of proof to the party opposing enforcement.”).

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tion agreement is invalid, meaning that the arbitration agreement will presumptively be enforced unless the party resisting enforcement convinces the court that it is invalid. This approach accords with the generally accepted principle of actori incumbit probatio: each party bears the burden of proving the facts relied upon to support its claim or defense, i.e., the burden of proof rests on the party who advances a proposition affirmatively.651 b) Governing Law for Validity of the Arbitration Agreement As some US courts have noted, Article II(3) is somewhat ambiguous in that it contains no reference as to what law determines whether the arbitration agreement is null and void, inoperable, or incapable of being performed.652 290 As discussed above (Õ para. 227), for most challenges to the validity of the arbitration agreement, the Convention specifies the applicable law. By the terms of Article V(1)(a), if the parties agreed to a body of law to govern the validity of the arbitration agreement, that law governs. If the parties did not, the arbitration law of the place selected as the seat of arbitration regularly governs.653 The weight of authority holds that this standard in Article V(1)(a) is also applicable to arbitration agreements for purposes of Article II(3).654 Thus, most courts apply by analogy the conflict rules contained in Article V(1)(a), namely “the law to which the parties have subjected [the arbitration agreement] or, failing any indication thereon, […] the law of the country where the award was made.” This last alternative is then interpreted as the law of the country where the award will be made.655 291 While it is not settled whether a general choice-of-law clause in the underlying contract should also apply to the arbitration clause in that contract, the prevailing and preferred view is that if the parties have not specifically agreed to a law to govern their arbitration agreement, the law specified in a general choice-of-law clause applies to the arbitration agreement (Õ paras 228 et seq.).656 289

651 See Lamm/Sharpe, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 297, 304–305; Berger, Creeping Codification, Annex III, No. XII.1, p. 398; Singapore: FirstLink Investments Corp. Ltd. v. GTPayment Pte. Ltd., [2014] SGHCR 12 = XXXIX Y.B. Com. Arb. 493, 494 (2014); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.6 (p. 186) (A person seeking enforcement of an international arbitration agreement must establish prima facie the existence and scope of such agreement. A person opposing enforcement of an international arbitration agreement bears the burden of establishing the existence of one or more of the defenses to enforcement). To prevail, the person resisting enforcement must ordinarily establish a defense by a preponderance of the evidence; however, some defenses, such as fraud, may require clear and convincing evidence. Id., at Comment a (p. 187). 652 US: Rhone Mediterranee Compagnia Francese di Assicurazioni e Riassicurazoni v. Lauro, 712 F.2d 50, 52 (3d Cir. 1983). See also US: JSC Surgutneftegaz v. President & Fellows of Harvard Coll., 2005 WL 1863676 (S.D.N.Y. 2005) (noting that it is not clear under Article II whether the enforcing jurisdiction’s law applies to questions of enforceability or whether some other law controls such as the law of the place of arbitration, the substantive law to be applied to the dispute, or general principles of law). 653 See Blessing, in: van den Berg (ed.), 40 Years of NYC, pp. 168, 173 (“There is a strong tendency (also strengthened by the New York Convention) that the substantive validity of the arbitration clause should be governed by the law of the place of arbitration.”). 654 See Poudret/Besson, Comparative Arbitration, para. 299 (agreeing with the German courts and authors, the Swiss Supreme Court, an Italian court, and Professor van den Berg). 655 Van den Berg in: Gaillard/Di Pietro (eds), p. 53. 656 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 56; van den Berg, NYC, pp. 126–127; Lew/Mistelis/Kröll, Comparative Arbitration, para. 6‐55; Born, International Commercial Arbitration, pp. 515–517, 581–583 (who argues, however, for application of the “validation principle” in determining which law should apply); Switzerland: BG, XXII Y.B. Com. Arb. 800, 804–805 (1997). The traditional French approach is to assess the existence and validity of the arbitration agreement on the basis of the parties’ common intention, subject to the mandatory rules of French law

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Generally, the driving force behind most courts’ determinations of the law that 292 governs the substantive validity of the arbitration agreement appears to be a concern to uphold the validity of the arbitration agreement if possible.657 Matters regarding the form of the arbitration agreement are not to be determined 293 under the law governing the arbitration agreement, but rather under the requirements of Article II(2) (Õ paras 74 et seq.).658 c) Doctrine of Separability The doctrine of separability659 addresses the question of whether the invalidity of the 294 contract in which an arbitration agreement is found invalidates the arbitration agreement or whether the arbitration agreement remains in force notwithstanding any alleged invalidity of the main contract. It is well settled under most legal systems that an arbitration agreement is 295 presumptively separable from the underlying commercial contract with which it is associated.660 This doctrine is also specifically included in Article 16(1) of the Model Law661 and in numerous institutional arbitration rules.662 Furthermore, both Article II and Article V(1)(a) of the Convention impliedly treat arbitration agreements as separable from underlying contracts.663 Article II(2) defines a written agreement to arbitrate to include “an arbitral clause in a contract […].” Article II(3) goes on to courts at the request of one of the parties to refer the parties to arbitration unless the court finds that “said agreement” is invalid or incapable of being performed. Thus, while the separability of the arbitration agreement is not expressly mandated by the Convention it is inherent in its provisions, including Article II.664

and international public policy, without other reference to any national law. Lew/Mistelis/Kröll, Comparative Arbitration, paras 6‐65, 6‐66; Gaillard/Savage, Fouchard Gaillard Goldman, paras 435–442. 657 ICCA, Guide, p. 51; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 3.27. See Article 178(2) of the Swiss Private International Law Act (“As to substance, the arbitration agreement shall be valid if it complies with the requirements of the law chosen by the parties or the law governing the object of the dispute and, in particular, the law applicable to the principle contract, or with Swiss law.”); Born, International Commercial Arbitration, pp. 494–495, 542–549, 590–594 who argues for application of the “validation principle,” meaning that from potentially applicable laws the law that upholds the arbitration agreement is the one that applies and that this reflects the parties’ intention that their arbitration agreement would be valid and effective). 658 Van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 57. 659 The doctrine of separability is also sometimes called the doctrine of “severability,” particularly in the United States. In French it is referred to as the “autonomie” of the arbitration agreement. 660 Born, International Commercial Arbitration, pp. 349–350, 3455; Graffi, in: Ferrari/Kröll (eds), Conflict of Laws, pp. 23–27. Jurisdictions in which the separability doctrine is accepted include, inter alia, England, France, USA, Switzerland, Germany, Italy, the Netherlands, Bermuda, Japan, China, Brazil, Chile, Ecuador, Mexico, Paraguay, Bolivia, El Salvador, Venezuela, India, Canada, and Australia. See Born, International Commercial Arbitration, pp. 360–395; Bishop/Coriell/Medina Campos, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 275, 279. 661 Article 16(1) of the Model Law (“The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.”). See also Article 23(1) of the UNCITRAL Arbitration Rules (2013) (“[A]n arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null shall not entail automatically the invalidity of the arbitration clause.”). 662 See, e.g., Article 6(9) of the ICC Arbitration Rules (2017); Article 23(2) of the LCIA Rules (2014); Article 28(2) of the SIAC Rules (2016). 663 Born, International Commercial Arbitration, p. 355. 664 See Born, International Commercial Arbitration, pp. 356–357.

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The separability doctrine has the effect that the actual non-existence, invalidity, ineffectiveness, or termination of the parties’ underlying contract does not necessarily impeach the parties’ arbitration agreement.665 This enables an arbitration clause in a contract to survive the demise or invalidity of the underlying contract. As the UK House of Lords666 has explained, “[t]he arbitration agreement must be treated as a ‘distinct agreement’ and can be void or voidable only on grounds which relate directly to the arbitration agreement.”667 297 The doctrine has two principal aspects of importance. First, the doctrine allows the arbitrator to decide whether the substantive contract was void or voidable or should be rescinded without thereby destroying his or her own basis of jurisdiction. This preserves the so-called “competence-competence” or the power of the arbitrators to rule on their own jurisdiction.668 Second, it helps to ensure that the arbitration procedure, when selected by the parties to a contract, should not be subject to delay and obstruction in the courts (since experience shows that as soon as a dispute of any kind arises from a contract, objections are very often also raised against its validity).669 298 A contract that contains an arbitration agreement therefore consists of two separate contracts: the main, substantive, contract containing the commercial obligations of the parties, and the collateral contract containing the obligation to resolve any disputes arising from these commercial obligations by arbitration.670 Accordingly, where there is no challenge to the arbitration clause itself, then under most developed national arbitration legislation the courts are required to refer the parties to arbitration (assuming that is requested), which is consistent with Article II(3).671 296

665 Born, International Commercial Arbitration, p. 401; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 paras 74–75; Germany: OLG Hamburg, IPRspr. 1999, No. 178, 425 = XXIX Y.B. Com. Arb. 663, 667 (2004); OLG Koblenz, SchiedsVZ 2005, 260 = XXXI Y.B. Com. Arb. 673, 675 (2006); US: Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 71 (2010) = 130 S. Ct. 2772 (“[A] party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.”). 666 In October 2009 judicial authority was transferred from the House of Lords to the UK Supreme Court. 667 UK: Per Lord Hope of Craighead in Premium Nafta Products Ltd. v. Fili Shipping Co. Ltd., [2007] UKHL 40 = [2007] Bus. L.R. 1719, 1726 (citing the US Supreme Court in US: Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967)). 668 See Poudret/Besson, Comparative Arbitration, para. 166. If the arbitration clause and its related contract were not distinct in this manner, an arbitrator who considered the contract null and void would have to decline his own jurisdiction and would therefore be unable to examine the merits and decide on the validity of the contract. Id. This would be contrary to the purpose of arbitration and party expectations. 669 UK: Per Lord Hoffmann in Premium Nafta Products Ltd. v. Fili Shipping Co. Ltd., [2007] UKHL 40 = [2007] Bus. L.R. 1719, 1726, upholding UK: Fiona Trust & Holding Corp. v. Privalov, [2007] EWCA Civ 20. 670 Bishop/Coriell/Medina Campos, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 275, 278; UK: Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corp., [1981] AC 909, 982 (Lord Diplock); Born, International Commercial Arbitration, p. 590 (“The arbitration agreement involves the parties’ obligations to resolve their disputes according to particular procedures, in a particular place, according to a legal regime heavily influenced by the arbitral seat. In contrast, the underlying contract involves the parties’ obligations to do particular acts (e.g., deliver goods, provide services, lend money) in a particular place.”). 671 Born, International Commercial Arbitration, p. 401 (one consequence of the separability of the arbitration agreement is that “a challenge to the existence, validity, legality, or continued effectiveness of the parties’ underlying contract may (and sometimes must) be often referred to arbitration because it does not in fact affect the existence or validity of the associated, but separable, arbitration agreement.”); US: Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–446 (2006); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967). Note, however, that in the French conception of separabilty and

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d) Court’s Standard of Review Article II(3) does not specify to what degree a state court should examine the validity of the arbitration agreement. Accordingly, the question arises whether the court should undertake a full examination of the arbitration agreement or be satisfied with a prima facie review. The scope of review of the national court depends on the extent to which the negative effect of competence-competence is recognized in the forum State, i.e., the degree to which the courts of the forum State are limited in deciding on the validity of the arbitration agreement before the arbitral tribunal has had the opportunity to do so.672 Some jurisdictions such as Germany,673 Austria,674 and Switzerland (when the seat of arbitration is abroad)675 take the view that the court can carry out a full review of the validity of the arbitration agreement. One reason behind this view is that Article II(3) most often applies when the seat of arbitration is abroad, and therefore the national courts of the forum State will not have the opportunity to review an arbitral award on jurisdiction. Other jurisdictions, such as the United States, India and France, support a prima facie examination of the arbitration agreement.676 For instance, Article 1448 of the French Code of Civil Procedure states: “[w]hen a dispute subject to an arbitration agreement is brought before a court, such court shall decline jurisdiction, except if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable.”677 This “manifestly” standard is difficult to meet and means that the void or inapplicable nature of the arbitration agreement must be so clear that the court is not required to embark on any exercise of interpretation of the agreement or its scope of application.678 Although the scope of review will depend on the arbitration law of the forum, a prima facie approach seems to be more arbitration friendly.679 A similar approach is apparent in Article VI(3) of the European Convention (Õ Annex V 3), which requires competence-competence, no distinction is to be drawn between challenges directed at the main contract and challenges directed at its arbitration clause in particular. See Bermann, 37 Yale J. Int’l L. 1, 26 (2012). 672 Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 109. 673 German courts are considered to have full scope of review in examining whether an arbitration agreement is null and void, inoperative, or incapable of being performed, but only examine these criteria. See Germany: BayObLG, NJW-RR 2002, 323, 324; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/ Otto/Port (eds), NYC, pp. 99–100; Schlosser, in: Stein/Jonas (eds), ZPO, sect. 1032 para. 18a. See also Poudret/Besson, Comparative Arbitration, para. 491. 674 See Austria: OGH, ZVertriebsR 2017, 397. 675 See Switzerland: BG, BGE 121 III 38 (at reason 2b) = XXI Y.B. Com. Arb. 690, 694 (1996) (“[W]here the arbitral tribunal has its seat abroad, the Swiss state court before which an arbitration objection is raised shall decide on this objection with full power of examining its grounds, in particular the ground under Art. II(3) of the New York Convention, without limiting its examination to a prima facie examination […].”); BG, BGE 122 III 139 (at reason 2b) = 14(3) ASA Bull. 527 (1996); Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.268. Where the seat of arbitration is in Switzerland, the court only reviews the arbitration agreement for “manifest invalidity.” Switzerland: BG, BGE 121 III 38, 41 = XXI Y.B. Com. Arb. 690 (1996). 676 US: DiMercurio v. Sphere Drake Ins., Inc., 202 F.3d 71, 74 (1st Cir. 2000); India: Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., [2005] 7 S.C.C. 234 = XXXI Y.B. Com. Arb. 747 (2006); France: CA Paris, Rev. arb. 2003, 1286 with note by Gaillard = 18(2) Mealey’s Int’l Arb. Rep. D-1, D-4 (2003) = XXIX Y.B. Com. Arb. 657 (2004); Venezuela: Tribunal Supremo de Justicia, XXXVI Y.B. Com. Arb. 496 (2011) (noting that Venezuela follows the approach of prima facie review and that this is also the approach taken in Canada (Ontario) and Hong Kong). 677 Article 1448 of the French Code of Civil Procedure. 678 See Bermann, 37 Yale J. Int’l L. 1, 17 (2012). 679 See Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 110. See also Bishop/Coriell/Medina Campos, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 275, 283–286.

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courts, once arbitration proceedings have been initiated, to refrain from questioning whether the arbitration agreement was null and void or had lapsed “unless they have good and substantial reasons to the contrary.” This approach, however, does not exclude that under the appropriate circumstances, where e.g., there are indications that the arbitration agreement may be forged or suffer from similar deficiencies, a closer examination by the court is appropriate or even necessary. The court must be satisfied that the parties did indeed consent to arbitration.680

2. Reasons to Refuse Referral to Arbitration 303

Under Article II(3), assuming a request of one of the parties is made, a court may only refuse to refer the parties to arbitration if it finds that the arbitration agreement is “null and void, inoperative, or incapable of being performed.” Courts often interpret these exceptions in Article II(3) as a whole rather than clearly delineating between what can make an arbitration agreement “null and void” on the one hand and “inoperative” or “incapable of being performed” on the other.681 Courts have also not defined these terms.682 It is nonetheless helpful to distinguish between these exceptions in order to better identify them.

a) Agreement Null and Void 304 The words “null” and “void” have the same meaning, as evidenced by the use of a single word in the official French and Spanish versions of the Convention.683 They refer to cases where the arbitration agreement is affected by some invalidity from the very beginning.684 The critical issue is whether the consent of the parties to arbitrate disputes was vitiated. 305 It is rare to find an arbitration agreement invalidated based on the “null and void” exception since the arbitration agreement must meet the written form requirement of Article II(2), which if met is proof of consent, and because according to the separability doctrine (Õ paras 294 et seq.) in most countries the defense must concern the arbitration agreement specifically and not just the contract as a whole.685 Thus, in practice, the defense that an arbitration agreement is null and void for lack of consent will hardly be successful if the arbitration agreement complies with Article II(2).686 306 Examples of where the “null and void” exception would apply would be where the arbitration agreement does not refer to a defined legal relationship (in which case the existence of an “arbitration agreement” as required by Article II could already be denied), or where it has not been validly agreed to by the parties (such as due to lack of consent, duress, mistake or misrepresentation in concluding the arbitration agreement).687 This could also apply if the arbitration agreement refers the dispute to an 680 US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 639 (1985) = 105 S. Ct. 3346 = XI Y.B. Com. Arb. 555, 565 paras 23 et seq. (1986). 681 Van den Berg, NYC, p. 155; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.264. 682 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐40. 683 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐42; see also Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. II para. 8 (“The double description ‘null and void’ used in the English version should be construed in accordance with the common law countries’ practice, according to which the two terms are actually the description of a single phenomenon […].”). This is perhaps a remnant of older times when solicitors were paid by the word in drafting documents. 684 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐42; van den Berg, NYC, p. 156. 685 See Bishop/Coriell/Medina Campos, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 275, 277; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.202; van den Berg, NYC, p. 156; US: Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006). 686 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.212. 687 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐42; ICCA, Guide, p. 52.

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uncertain or non-existent arbitration institution or is otherwise too indefinite (although such examples could also be considered instances of when the arbitration agreement is incapable of being performed).688 Often whether the exception is styled “null and void” or “incapable of being performed” is merely academic matter, since courts frequently interpret these as a whole.689 In keeping with an arbitration-friendly approach, this exception should be interpreted 307 narrowly, restricting the grounds for nullity to those that are generally recognized internationally and rejecting national idiosyncrasies.690 This applies to all of the named exceptions in Article II(3). In the United States, for example, it is well established that under Article II(3) an agreement to arbitrate is “null and void, inoperative or incapable of being performed” only when it is subject to internationally recognized contract defenses such as duress, mistake, fraud or waiver and the like.691 It is disputed whether a public policy defense may be raised against the recognition and enforcement of an arbitration agreement. The US Supreme Court suggested in dicta that an arbitration agreement might be denied enforcement if it operated as a prospective waiver of a party’s US statutory rights,692 and since then courts and commentators have taken both views (Õ Art. V paras 432–437).693 In order to best advance a uniform application of Article II and the enforcement goals of the Convention, defenses based on public policy 688 See Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐42; Born, International Commercial Arbitration, p. 844 (noting that cases of arbitration provisions that are unenforceable because they are vague, indefinite, or internally contradictory could be considered “incapable of being performed” but are better regarded as instances where no agreement exists or an agreement is “null and void.”). The exception would also apply if the arbitration agreement designated a “sham” arbitral institution. In one outrageous case, it turned out that the institution named in the arbitration agreement was actually a sham institution with connections to one of the parties, conceived in an effort to defraud the other party. See Rogers, 20 Am. U. Int’l L. Rev. 957, 971 n. 44 (2005). 689 See Bishop/Coriell/Medina Campos, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 275, 277. 690 See Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐41. US: Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 960 (10th Cir. 1992). See also India: Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., [2005] 7 S.C.C. 234 = XXXI Y.B. Com. Arb. 747 (2006) (holding that courts should enforce arbitration agreements if they are not patently void). 691 See US: Bautista v. Star Cruises, 396 F.3d 1289, 1302 (11th Cir. 2005) = XXX Y.B. Com. Arb. 1071 (2005); Sea Bowld Marine Group LDC v. Oceanfast Pty, Ltd., 432 F. Supp. 2d 1305, 1318 (S.D. Fla. 2006) = XXXII Y.B. Com. Arb. 719 (2007); Chloe Z Fishing Co. v. Odyssey Re (London) Ltd., 109 F. Supp. 2d 1236, 1258–1259 (S.D. Cal. 2000) = XXVI Y.B. Com. Arb. 910 (2001); Rhone Mediterranee Compagnia Francese di Assicurazioni e Riassicurazoni v. Lauro, 712 F.2d 50, 53 (3d Cir. 1983); Ledee v. Ceramiche Ragno, 684 F.2d 184, 187 (1st Cir. 1982) (“The parochial interests of the Commonwealth [Puerto Rico], or of any state, cannot be the measure of how the ‘null and void’ clause is interpreted. Indeed, by acceding to and implementing the [Convention], the federal government has insisted that not even the parochial interests of the nation may be the measure of interpretation. Rather, the clause must be interpreted to encompass only those situations – such as fraud, mistake, duress, and waiver – that can be applied neutrally on an international scale.”). 692 US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, n. 19 (1985) = 105 S. Ct. 3346 = XI Y.B. Com. Arb. 555, 564 (1986) (stating in a footnote “We merely note that in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy.”). 693 See, e.g., for allowing a public policy defense, US: Dumitru v. Princess Cruise Lines, Ltd., 732 F. Supp. 2d 328 (S.D.N.Y. 2010); Germany: OLG München, WM 2006, 1556, 1558 (holding invalid an agreement providing for arbitration (or litigation) in California under California law with respect to mandatory provisions of German law for commercial agents); see also, Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 131. See, e.g., for refusing a public policy defense, US: Lindo v. NCL (Bah.) Ltd., 652 F.3d 1257, 1282 (11th Cir. 2011) = XXXVII Y.B. Com. Arb. 330 (2012); Escobar v. Celebration Cruise Operator, Inc., 805 F.3d 1279, 1290 (11th Cir. 2015); Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 373 (4th Cir. 2012); Born, International Commercial Arbitration, pp. 910–911; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 105.

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should be precluded at this stage.694 Article II contains no reference to public policy, and there does not seem to be a sufficient basis to allow a public policy defense against arbitration agreements in analogous application of Article V(2)(b). Rather, as long as the dispute is arbitrable it should be referred to arbitration, and any public policy defense may be raised in the award enforcement stage under Article V(2)(b), when the record will show how and why the arbitral tribunal ruled. Even defenses such as unconscionability (i.e., undue influence) have been rejected by some US courts as too indefinite to apply under the Convention.695 Although unconscionability is recognized in most jurisdictions, a claim that the arbitration agreement itself is unconscionable will often require some element of consumer protection.696 For instance, a German court held that an arbitration clause in a form franchise agreement subject to Liechtenstein law was invalid under that law since it grossly disadvantaged the franchisee in Germany who would have to travel to New York to enforce his rights, and the court therefore refused to enforce the resulting arbitral award under Article V(1)(a).697 694 In exceptional cases, a party might convince the court to recognize a public policy defense under the “incapable of being performed” clause of Article II(3). For instance, in US: Suazo v. NCL (Bah.) Ltd., 822 F.3d 543, 553 (11th Cir. 2016) = XLI Y.B. Com. Arb. 706 (2016), a cruise ship employee whose employment contract contained an arbitration agreement governed by the Convention claimed that the high cost of arbitration may prevent him from effectively vindicating his federal statutory rights. The court noted that “[w]e have never determined whether a cost-based effective vindication defense can be raised under the ‘incapable of being performed’ clause of Art. II, and we need not resolve that question today because Suazo has fallen far short of establishing that enforcing the arbitration agreement in this case will effectively deny him access to the arbitral forum;” see also US: Escobar v. Celebration Cruise Operator, Inc., 805 F.3d 1279 (11th Cir. 2015). In these cases where a public policy defense was rejected as being premature under the Convention, the party opposing referral to arbitration failed on other grounds. Similar cases have turned on an unconscionability defense. See Germany: OLG Bremen, OLGR Bremen 2009, 155; OLG Dresden, IHR 2008, 119 = XXXIII Y.B. Com. Arb. 549 (2008); OLG Celle, IPRspr. 2008, No. 207, 658 (the Subway cases); US: Vegter v. Forecast Fin. Corp., 2007 WL 417847 (W.D. Mich. 2007). 695 See, e.g., US: Bautista v. Star Cruises, 396 F.3d 1289, 1302 (11th Cir. 2005) = XXX Y.B. Com. Arb. 1071 (2005) (holding that “unconscionability” is not a recognized defense to enforcement of an arbitration agreement under the Convention since it would be impossible to develop a precise definition of this defense that would be acceptable to all of the signatory nations of the Convention); Khan v. Parsons Global Sers. Ltd., 480 F. Supp. 2d 327, 340 (D.D.C. 2007) (stating that unconscionability cannot be a recognized defense under the Convention). The defense is based on ideas of fairness and is generally understood to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably in favor of the other party. See US: Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965). The rejection of an unconscionability defense has been questioned by one leading scholar as difficult to accept if applied neutrally and non-discriminatorily since virtually all legal systems recognize unconscionability and related defenses and it is unlikely that the Convention was intended to prevent reliance on such generally accepted defenses. See Born, International Commercial Arbitration, p. 857. 696 See Born, International Commercial Arbitration, pp. 861–862. “Nevertheless, even where courts address the substance of unconscionability claims directed specifically at the arbitration agreement, judicial decisions are generally reluctant to invalidate the parties’ arbitration agreement in commercial settings.” Id., at 859. 697 Germany: OLG Bremen, OLGR Bremen 2009, 155. This case concerned franchise agreements for Subway restaurants which contained an arbitration clause providing for UNCITRAL arbitration “at a hearing to be held in New York […].” The agreements also contained a choice-of-law clause making them subject to the law of Liechtenstein, which has adopted the Austrian Civil Code. The court held that pursuant to section 897(3) of the Austrian Civil Code the arbitration clause grossly disadvantaged the German franchisor, reasoning that an individual “who sells sandwiches and salads” in Germany should not have to travel to New York to enforce his rights under the contract. See also Germany: OLG Dresden, IHR 2008, 119 = XXXIII Y.B. Com. Arb. 549 (2008) and OLG Celle, IPRspr. 2008, No. 207, 658 (both cases finding an arbitration clause in franchise agreements with Subway invalid as unconscionable under applicable law). See also US: Vegter v. Forecast Fin. Corp., 2007 WL 417847 (W.D. Mich. 2007) (arbitration clause providing for distant arbitral seat in domestic consumer case involving party without financial resources held unconscionable).

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The limited approach taken by the US courts has been criticized with the argument 308 that in the enforcement stage of the award the competent court is not limited in its review of the award to certain violations of the arbitration agreement.698 However, this criticism seems unwarranted. The approach of the US courts is to exclude any unique or special grounds for denying recognition of arbitration agreements, and this approach is within the spirit and purpose of the obligations assumed by the Contracting States.699 In light of the pro-enforcement bias of the Convention, an interpretation which excludes national idiosyncrasies and fosters uniformity accords with the view of most commentators.700 b) Agreement Inoperative In contrast to the wording “null and void,” where the arbitration agreement never 309 had legal effect, an arbitration agreement is “inoperative” where it has subsequently ceased to have effect.701 Examples of when an arbitration agreement has become inoperative include cases of waiver, revocation, repudiation, or termination of the arbitration agreement.702 An arbitration agreement becomes inoperative upon the expiry of a contractually agreed deadline for its validity, or if the parties mutually consent to litigation rather than arbitration pursuant to their arbitration agreement.703 An arbitration agreement could also become inoperative where the applicable arbitration rules or law requires that the award must be made within a certain time, after which the arbitral tribunal loses its authority.704 Arbitration agreements do not become inoperative because they are inconvenient or 310 burdensome. Nor are they inoperative if an arbitral award under the agreement might not be enforceable.705 Similarly, the arbitration agreement must be enforced notwith-

698 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.263 (“It would defy internal consistency if the validity of an arbitration agreement were assessed differently depending on whether such decision has to be taken upon a motion to compel arbitration or in the enforcement stage. For this reason it is incorrect to say that Article II(3) aims at creating a uniform international standard for reviewing defences in legal proceedings to compel arbitration.”). 699 See, e.g., Born, International Commercial Arbitration, pp. 839–840 (“In particular, only generallyapplicable rules of contract law and not rules which single arbitration agreements out for special or idiosyncratic burdens, may be invoked to challenge the validity of an international agreement subject to the Convention. These limits are justified by Article II’s reference to ordinary principles of contract law (‘null and void, inoperative or incapable of being performed’), and by the Convention’s objective of ensuring that Contracting States recognize the validity of international arbitration agreements in accordance with uniform international standards.”). 700 Van den Berg, NYC, p. 155; Born, International Commercial Arbitration, pp. 838–841; Lew/Mistelis/ Kröll, Comparative Arbitration, para. 14‐41. But see Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.263; Solomon, in: Balthasar (ed.), International Commercial Arbitration, § 2 para. 93 (suggesting that defenses should not be limited to internationally accepted grounds because the Convention does not provide any basis for establishing such an international standard with reasonable certainty, and because in the context of the recognition and enforcement of arbitral awards the review of arbitration agreements is subject to the full spectrum of requirements existing under the applicable national law). 701 See Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.202. 702 Born, International Commercial Arbitration, pp. 842–843. See, e.g., UK: Downing v. Al Tameer Estab., [2002] EWCA Civ 721 = 2002 WL 820014 (concerning an arbitration agreement becoming inoperative due to repudiation). 703 See Australia: Comandate v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192 = XXXII Y.B. Com. Arb. 224, 228 (2007). 704 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐45; see, e.g., Article 21 of the Republic of China Arbitration Law; Article 10(B) of the Turkish Act on International Arbitration No. 4686. 705 Lamm/Sharpe, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 297, 306–307.

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standing the fact that others are parties to the underlying dispute but not to the arbitration agreement, even if this creates a risk of conflicting decisions.706 c) Agreement Incapable of Being Performed The expression “incapable of being performed” refers to practical aspects of the prospective arbitration proceedings. It applies, for example, if for some reason it is impossible to establish the arbitral tribunal.707 For example, it has been held that a clause providing for arbitration “according to trade usages and the provisions on arbitration and appeal in force in [London]” was incapable of being performed because it said nothing on how to identify the arbitrators or a procedure for their appointment.708 Another example might be if a specifically chosen arbitrator dies or is otherwise unable or unwilling to arbitrate the dispute. 312 An arbitration agreement may also be incapable of being performed if it is too vaguely worded or other terms of the contract contradict the parties’ intention to arbitrate.709 An example is when the parties equally agree to both arbitration and litigation.710 In addition, designation of an arbitral institution while at the same time purporting to exclude requirements of that institution (such as ICC arbitration but without scrutiny of the award711 or without confirmation of arbitrators by the ICC International Court of Arbitration or Secretary General712) could possibly render an arbitration agreement incapable of being performed.713 313 The argument that an arbitration agreement is incapable of being performed is often made where the named arbitral institution either never existed or has ceased to exist, or even if the institution was imprecisely or falsely designated.714 Where it is not possible to discern the true intent of the parties with regard to the institution, courts have held the arbitration clause void for uncertainty.715 However, courts will often attempt to save the arbitration agreement if possible by way of contract interpreta311

706 US: Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20 (1983); Canada: City of Prince George v. A.L. Sims & Sons Ltd., XXIII Y.B. Com. Arb. 223, 224 (1998); Switzerland: BG, BGE 124 III 83 (1997) = XXIVa Y.B. Com. Arb. 727 (1999); Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐ 46. 707 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.202. 708 Italy: CA Salerno, Riv. Dir. Int. Priv. Proc. 1992, 115 = XXI Y.B. Com. Arb. 576, 578 (1996). 709 Van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 52. 710 See Craig/Park/Paulsson, ICC Arbitration, § 9.02 (p. 128) (giving the following example of such a clause: “In case of dispute (contestation), the parties undertake to submit to arbitration but in case of litigation the Tribunal de la Seine shall have exclusive jurisdiction.”); see also Wilske/Krapfl, 13 IBA Arb. Committee Newsl. 25 (Mar. 2008) (discussing a decision of the German Federal Supreme Court (Germany: BGH, SchiedsVZ 2007, 273) holding that in the event of conflicting jurisdiction and arbitration clauses in different general terms and conditions that were made part of the contract, the arbitration clause will prevail). 711 See Article 34 of the ICC Rules (2017). 712 See Article 13 of the ICC Rules (2017). 713 See France: TGI Paris, Rev. arb. 2010, 571 (the parties – Samsung Electronics Co. Ltd. and Mr. Jaffe – had agreed on arbitration under the ICC Rules of Arbitration but without confirmation of the arbitrators and without scrutiny of the arbitral award. The ICC Secretariat refused to administer the arbitration unless the parties agreed to waive their variations to the Rules. Jaffé refused to do so and the ICC accordingly ended the arbitral proceedings. Samsung then brought the case before the Paris Court of First Instance for assistance in the constitution of the arbitral tribunal pursuant to the French Code of Civil Procedure. The parties eventually agreed to ad hoc arbitration). See Kleiman, Paris First Instance Court President Upholds ‘Pathological’ ICC Arbitration Clause, available at http://www.internationallawoffice.com/newsletters/detail. aspx?g=144f1e59-463d-4989-9920-a7be2feb3f4a (last visited Apr. 24, 2019). 714 See Wilske/Krapfl, 9(3) Int. A.L.R. 80 (2006). 715 Germany: BGH, NJW 1983, 1267; Lew/Mistelis/Kröll, Comparative Arbitration, para. 8‐22.

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tion.716 As long as the imprecise designation of an arbitration institution can be interpreted to refer to one specific institution without the danger of confusion with another institution, courts will generally uphold such a clause.717 There are several German court decisions which have held that the lack of funding 314 could render the arbitration agreement incapable of being performed.718 A criticized decision by the German Federal Supreme Court allowed access to the state courts in spite of an arbitration agreement because a party lacked the financial means to go to arbitration.719 The English Court of Appeal, on the other hand, has held that an impecunious party may not rely on its own inability to carry out its part of the arbitration agreement to argue that the agreement has become incapable of being performed.720 We are of the opinion that the arbitration agreement should only be considered 315 incapable of performance if it could no longer be performed even if both parties were ready, willing and able to perform it, and that costs or the comparative expense should generally not be grounds for finding an arbitration agreement incapable of being performed. Thus, incapability of performance does not relate to the parties’ ability to perform but rather to the terms of the arbitration agreement itself.721 Where one party refuses to advance its costs, the usual way forward is that the other 316 party who does not want to terminate the arbitration agreement or sue in court for the cost advances due may enforce the agreement by advancing the non-paying side’s costs. If, however, the non-paying party is impecunious, the other party may not be interested in funding the entire proceedings in advance unless, for instance, he is seeking declaratory relief or if the other side has insurance that could pay an award. Thus, an arbitration agreement should not be considered incapable of being performed because of a party’s inability to pay its costs unless it becomes unenforceable in a bankruptcy scenario under mandatory national law.722 Similarly, the words “incapable of being performed” within the meaning of Article II(3) relate only to the arbitration agreement and not to the resulting award or whether a party would be financially capable of satisfying such an award.723

3. Referral to Arbitration The wording “refer the parties to arbitration” was taken from Article 4(1) of the 317 Geneva Protocol (Õ Annex V 1) without any further discussion.724 This wording does not mean that the court must impose arbitration, but rather that in light of the parties’ 716 Germany: BGH, NJW 2011, 2977 = SchiedsVZ 2011, 284, 285 (finding that if the parties inadvertently agreed to the jurisdiction of a non-existent institutional arbitral tribunal (or institution), the court should initially carry out a supplementary interpretation of the parties’ agreement to determine whether another arbitral tribunal is competent to decide the dispute). 717 Wilske/Krapfl, 9(3) Int. A.L.R. 80, 81–82 (2006). 718 See Germany: BGH, NJW 2000, 3720, 3721; KG, SchiedsVZ 2003, 239. Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐48 (German courts have consistently held that the lack of funding renders an arbitration agreement “incapable of being performed”). 719 Germany: BGH, NJW 2000, 3720, 3721. See Wagner, in: German Institution of Arbitration (ed.), Financial Capacity of the Parties, pp. 9–35. 720 UK: Paczy v. Haendler & Natermann GmbH, [1981] 1 Lloyd’s Rep 302, 308–309 = IX Y.B. Com. Arb. 445, 447 (1984). See R. Hunter, in: German Institution of Arbitration (ed.), Financial Capacity of the Parties, p. 107. 721 See UK: Paczy v. Haendler & Natermann GmbH, [1981] 1 Lloyd’s Rep 302, 308–309 (CA) = IX Y.B. Com. Arb. 445, 447 (1984). 722 See generally Markert, 2(2) Contemp. Asia Arb. J. 217 (2009). 723 UK: The Rena K, [1978] 1 Lloyd’s Rep 545 = [1979] 1 QB 377 = IV Y.B. Com. Arb. 323 (1979); van den Berg, NYC, p. 159. 724 Van den Berg, NYC, p. 129.

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agreement to arbitrate, the court must cease the court proceedings.725 The effect of this wording is that a court may not try the merits of the dispute when an enforceable arbitration agreement is invoked.726 318 Article II(3) does not prescribe the manner in which referral to arbitration must occur, such as dismissal, stay, or declaration of lack of jurisdiction; rather it leaves the legal systems of the Contracting States free to determine the mechanism by which the court seized of the matter divests itself of the action.727 319 Under legislation of most common law jurisdictions, including the United States,728 England,729 Scotland,730 Ireland,731 Australia,732 Canada, New Zealand and Singapore, courts are required to stay litigation commenced in violation of a valid arbitration agreement.733 Staying the litigation is the typical approach taken in common law jurisdictions since under the common law an arbitration agreement could not deprive a court of jurisdiction.734 A stay prevents a plaintiff from enforcing his claim unless by way of agreed-upon arbitration. An order staying the proceedings closes the court case administratively, allowing it to be subsequently reopened if needed.735 The court’s role is then limited to possibly providing judicial assistance in aid of arbitration.736 For instance, interim relief may be granted while all other judicial proceedings have been stayed, in order to preserve the status quo and prevent irreparable harm.737 320 In many civil law jurisdictions, including France, Germany, Switzerland, the Netherlands and Belgium, legislation requires courts to decline jurisdiction over litigation commenced in violation of a valid arbitration agreement and to dismiss such litigation entirely.738 725

Van den Berg, NYC, p. 129. Van den Berg, NYC, p. 131; Poudret/Besson, Comparative Arbitration, para. 494. 727 Italy: Cass., Riv. Dir. Proc. 2007, 1293–1294 = XXXIII Y.B. Com. Arb. 596, 597 (2008). 728 See US: Roadtechs, Inc. v. MJ Highway Tech., Ltd., 79 F. Supp. 637, 639 (E.D. Va. 2000) (explaining that although neither the Convention nor its implementing legislation in Chapter 2 of the Federal Arbitration Act (FAA) expressly confer authority to stay an action pending arbitration, the mandatory stay under § 3 of the FAA dealing with domestic arbitration is equally applicable to actions falling under the Convention pursuant to § 208 of the FAA). But see US: Tennessee Imps., Inc. v. Filippi, 745 F. Supp. 1314, 1324–1325 (M.D. Tenn. 1990) = XVII Y.B. Com. Arb. 620 (1992) (reviewing case law and concluding that either a dismissal for lack of subject-matter jurisdiction or a stay of proceedings may be appropriate under the Convention, depending upon the circumstances); McCreary Tire & Rubber Co. v. CEAT, S.p.A., 501 F.2d 1032, 1038 (3d Cir. 1974) (holding that the proper remedy in a Convention case is to refer the parties to arbitration and dismiss for lack of subject-matter jurisdiction.); section 487(2) of the Restatement (Third) of the Foreign Relations Law of the United States provides that the court must stay or dismiss the action pending arbitration. 729 See section 9(4) of the English Arbitration Act 1996. 730 See section 10(1) of the Arbitration (Scotland) Act 2010 (requiring the court to “sist” legal proceedings brought in violation of an arbitration agreement). 731 See Irish Arbitration Act 2010, section 6 (adopting the Model Law as amended in 2006) and section 24(3) (specifying that Article II(3) NYC shall be construed in accordance with Article 8 of the Model Law). 732 See Australian International Arbitration Amendment Act 2010 (legislation based on the Model Law as amended in 2006). 733 See Born, International Commercial Arbitration, pp. 1279–1280. 734 Poudret/Besson, Comparative Arbitration, para. 495. 735 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐68. In Germany, this was a reason given to justify the court’s full review of the validity of the arbitration agreement at the referral stage. In France, on the other hand, the court’s scope of review is nonetheless significantly restricted. See Lew/Mistelis/Kröll, Comparative Arbitration, paras 14‐55, 14‐56 and 14‐67. 736 See US: Borden, Inc. v. Meiji Milk Products Co., 919 F.2d 822, 826 (2d Cir. 1990). 737 US: Slinger Mfg. Co. v. Nemak, S.A., 2008 WL 4425889 at *6 (E.D. Wis. 2008); IDS Life Ins. Co. v. Sunamerica, Inc., 103 F.3d 524, 527 (7th Cir. 1996). 738 Born, International Commercial Arbitration, pp. 1280–1281; see, e.g., section 1032(1) of the German Code of Civil Procedure; Article 1448 together with Article 1506(1) of the French Code of Civil Procedure. 726

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In both civil and common law jurisdictions, the substantive effect of the court’s action 321 is to forbid the plaintiff from proceeding on the merits of its claims in national courts. Thus, for the most part, there is no real difference in practice between the civil law dismissal and the common law stay.739 a) No Court Discretion The use of the word “shall” in Article II(3) obliges the courts to refer the parties to 322 arbitration if the arbitration agreement is enforceable under the Convention. The mandatory nature of the court’s referral is of uniform application and may not be altered by any national rules.740 As US courts have observed, “there is nothing discretionary about Article II(3) of the 323 Convention.”741 If the parties are bound to arbitrate then the court is under an “unflagging, nondiscretionary duty to grant a timely motion to compel arbitration and thereby enforce the New York Convention […] even though the agreement in question requires arbitration in a distant forum.”742 b) Article VI(3) of the European Convention Article VI(3) of the European Convention (Õ Annex V 3) provides that if arbitration 324 proceedings have been initiated, parallel proceedings before the national courts are barred and such courts shall stay their ruling on the arbitrator’s jurisdiction until the arbitral award has been made, unless there are good and substantial reasons to the contrary.743 The provision serves both to forestall the danger of contradicting decisions and to prevent the respondent from eluding the arbitration agreement by appealing to a court.744 The barring effect begins with the initiation of arbitration proceedings and is therefore not dependent on the establishment of an arbitral tribunal.745 The “good and substantial reasons” exception is to ensure the compatibility with 325 Article II(3) of the New York Convention and has to be interpreted narrowly.746 This restricts the courts to a prima facie review of the existence of an arbitration agreement.747

739 Born, International Commercial Arbitration, pp. 1282–1284; Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐68; Poudret/Besson, Comparative Arbitration, para. 497 (“A stay is an indirect, but efficient method for forcing the claimant to have recourse to arbitration since he has no other way to pursue his claim.”). 740 See Born, International Commercial Arbitration, pp. 1278–1279. The word “shall” was left out in the text of Article II(3) as published in 330 U.N.T.S. 38, 39 (1959), and this text was relied upon in a number of publications and implementing acts. The omission must be considered as a printing error as the Final Act of the New York Conference of 1958 includes the word “shall.” E/CONF.26/8/Rev.1 (Õ Annex IV 1), E/CONF.26/9/Rev.1, p. 9 (Õ Annex IV 1). 741 US: Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 469 (6th Cir. 2009); Tennessee Imps., Inc. v. Filippi, 745 F. Supp. 1314, 1324–1325 (M.D. Tenn. 1990) = XVII Y.B. Com. Arb. 620 (1992); McCreary Tire & Rubber Co. v. CEAT, S.p.A., 501 F.2d 1032, 1037 (3d. Cir. 1974). 742 US: InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003) = XXIX Y.B. Com. Arb. 1080, 1084–1085 (2004). See also US: Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 469 (6th Cir. 2009); India: General Electric Co. v. Renusagar Power Co., [1987] 4 S.C.C. 137 = XIV Y.B. Com. Arb. 663, 668 (1989); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.277; van den Berg, NYC, p. 135. 743 See generally, Siwy, in: Zeiler/Siwy (eds), European Convention, Art. VI paras 23–36. 744 See Hascher, XXXVI Y.B. Com. Arb. 504, 530, 531 (2011). 745 Hascher, XXXVI Y.B. Com. Arb. 504, 530 (2011). 746 Hascher, XXXVI Y.B. Com. Arb. 504, 530 (2011); Adolphsen, in: MünchKommZPO, Annex 2 to sect. 1061, European Convention, Art. VI para. 19. 747 Lew/Mistelis/Kröll, Comparative Arbitration, para. 14‐57.

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Article III [Recognition and Enforcement of Arbitral Awards; General Rule] 1Each

Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. 2There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards. Specific Bibliography: American Bar Association, House of Delegates, Annual Meeting 2013, Resolution 107c; Aschauer, La prescription des sentences arbitrales, 23(4) ASA Bull. 593 (2005); Basler Kommentar: see Honsell/Vogt/Schnyder/Berti; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Brekoulakis, Third Parties in International Commercial Arbitration, Oxford (2010); Cuniberti, The Law Governing the Modality of Arbitral Awards, (2009) 25(3) Arb. Int’l 347; De Ly/Sheppard, ILA Interim Report on Res Judicata and Arbitration, (2009) 25 Arb. Int’l 35; Di Pietro/Platte, Enforcement of International Arbitration Awards: The New York Convention of 1958, Cameron May 2001; Escher/Reichert, Die subsidiäre Zuständigkeit des Kammergerichts Berlin nach § 1062 Abs. 2 a.E. ZPO: Globale Allzuständigkeit oder minimaler Inlandsbezug?, SchiedsVZ 2007, 71; Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Geimer, Internationales Zivilprozessrecht, 7th ed., Otto Schmidt 2014; González/Ramírez, Enforcement of International Arbitral Awards in Florida and the United States: Judicial Consistency, in: van den Berg (ed.), Legitimacy: Myths, Realities, Challenges, ICCA Congress Series No. 18, Kluwer Law International 2015, p. 881; Haas/Kahlert, New York Convention, in: Weigand/ Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Honsell/Vogt/Schnyder/Berti (eds), Basler Kommentar Internationales Privatrecht (IPRG), 3rd ed., Helbing & Lichtenhahn 2013; Hulbert, Arbitral Procedure and the Preclusive Effect of Awards in International Commercial Arbitration, 7 Int’l Tax & Bus. Law. 155 (1989); ICC, ICC Guide to National Procedures for Recognition and Enforcement of Awards under the New York Convention, 2nd ed., Special Supplement 2012, ICC Publications 2013; International Commercial Disputes Committee of the Association of the Bar of the City of New York, Lack of Jurisdiction and Forum Non Conveniens as Defenses to the Enforcement of Foreign Arbitral Awards, 15 Am. J. Int’l Arb. 407 (2004), also available at http://www.nycbar.org/pdf/report/ForeignArbitral.pdf (last visited Apr. 16, 2019); Jingzhou, One Award — Two Obstacles: Double Trouble When Enforcing Arbitral Awards in China, 4(1) Asian Int’l Arb. J. 83 (2008); Kröll/Marenkov, The Principle of Good Faith in Enforcement of Foreign Awards – The Taming of Another “Unruly Horse” in German Law, SIAR 2009, 195; Kronke/Nacimiento/ Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Loritz, Probleme der Rechtskraft von Schiedssprüchen im deutschen Zivilprozeßrecht, ZZP 105 (1992), 1; Martiny, Handbuch des Internationalen Zivilverfahrensrechts, Vol. III/1: Anerkennung ausländischer Entscheidungen nach autonomem Recht, Mohr Siebeck 1984; Martiny, Recognition and Enforcement of Money Judgments in the Federal Republic of Germany, 35(4) Am. J. Comp. L. 721 (1987); Matscher, Einige Probleme der internationalen Urteilsanerkennung und -vollstreckung, ZZP 86 (1973), 404; Mistelis (ed.), Concise International Arbitration, 2nd ed., Kluwer Law International 2015; MünchKommZPO: see Rauscher/Wax/Wenzel; Musielak/Voit (eds), Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz, 16th ed., Franz Vahlen 2019; Onyema, Formalities of the Enforcement Procedure (Articles III and IV), in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 597; Park, Respecting the New York Convention, 18(2) ICC Bull. 65 (2007); Park/Yanos, Treaty Obligations and National Law: Emerging Conflicts in International Arbitration, 58 Hastings L.J. 251 (2006); Paulsson, The New York Convention in International Practice – Problems of Assimilation, in: Blessing (ed.), The New York Convention of 1958, ASA Special Series No. 9, 1996, p. 100; M. R. P. Paulsson, The 1958 New York Convention in Action, Kluwer Law

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Article III 1

New York Convention

International 2016; Poudret/Besson, Comparative Law of International Arbitration, 2nd ed., Sweet & Maxwell 2007; Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049 (1961); Rauscher/Wax/ Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017; Reynes, Forum non conveniens: A Hidden Ground to Refuse Enforcement of Arbitral Awards in the United States, (2013) 30(2) J. Int. Arb. 165; Rosenberg/Schwab/Gottwald, Zivilprozessrecht, 18th ed., C. H. Beck 2018; Schack, Internationales Zivilverfahrensrecht, 7th ed., C. H. Beck 2017; Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2nd ed., Mohr Siebeck 1989; Schwab/Walter, Schiedsgerichtsbarkeit, 7th ed., C. H. Beck, Helbing & Lichtenhahn 2005; Schwenzer/Manner, The Claim is Time-Barred: The Proper Limitation Regime for International Sales Contracts in International Commercial Arbitration, (2007) 23(2) Arb. Int’l 293; Sheppard, Res judicata and estoppel, in: Cremades/Lew (eds), Parallel State and Arbitral Procedures in International Arbitration, Dossier of the ICC Institute of World Business Law, ICC Publications 2005, p. 219; Silberman, The New York Convention After Fifty Years: Some Reflections on the Role of National Law, 38 Ga. J. Int’l & Comp. L. 25 (2009); Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; Strong, Invisible Barriers to the Enforcement of Foreign Arbitral Awards in the United States, (2004) 21(6) J. Int. Arb. 439; van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, The New York Convention: Summary of Court Decisions, in: Blessing (ed.), The New York Convention of 1958, ASA Special Series No. 9, 1996, p. 46; van den Berg, Consolidated Commentary Cases Reported in Volumes XXII (1997) – XXVII (2002), XXVIII Y.B. Com. Arb. 562 (2003); Zöller (ed.), Zivilprozessordnung, 32nd ed., Otto Schmidt 2018. Table of Contents I. II. III. IV. V.

Overview ................................................................................................................... Spirit and Purpose .................................................................................................. Drafting History ...................................................................................................... Presumptive Obligation to Recognize and Enforce Awards ......................... Application of the Recognizing/Enforcing State’s Procedural Rules........... 1. Type of Proceedings and Manner in Which They Are Conducted ....... 2. Periods of Limitation to Bring Recognition or Enforcement Proceedings .......................................................................................................... 3. Jurisdiction/Competent Authority.................................................................. 4. Provisional Enforcement and Remedies ....................................................... VI. Limitations on the Application of the Recognizing/Enforcing State’s Procedural Rules ..................................................................................................... 1. Conditions Laid Down in the Articles Following Article III ................... 2. Prohibition on Discrimination of Foreign Awards vis-à-vis Domestic Awards .................................................................................................................. a) Prohibition on Substantially More Onerous Conditions .................... b) Prohibition on Substantially Higher Fees or Charges..........................

1 2 3 7 10 12 14 17 19 20 21 24 25 26

I. Overview 1

Article III contains two essential principles: first, it affirms and enhances the NYC’s pro-enforcement bias by obliging Contracting States to generally recognize and enforce awards (Õ paras 7–9); second, it addresses the procedures governing the recognition and enforcement of awards, which are, in principle, governed by the lex fori, i.e., the law of the territory in which recognition or enforcement of the award is sought (Õ paras 10–19). However, Article III also contains important limitations regarding the application of the lex fori to the recognition or enforcement procedure. The lex fori may not be used to circumvent “the conditions laid down in the following articles” of the NYC, i.e., in particular the limited prerequisites for recognition and enforcement listed in Article IV, and the exclusive grounds for refusal set out in Article V (Õ paras 20–23). The lex fori may also not impose substantially more onerous conditions, or higher fees or charges on foreign awards than would be imposed on domestic awards (Õ paras 24–27).

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Recognition and Enforcement of Arbitral Awards; General Rule

2–5

Article III

II. Spirit and Purpose The procedural framework for recognition or enforcement is imperative in upholding 2 the spirit and purpose of the NYC. If Contracting States could impose procedural hurdles that block, delay, or render unduly burdensome the recognition and enforcement of foreign awards, this could seriously undermine the NYC’s overarching goal of encouraging their enforceability. Even though the NYC does not unify the procedural prerequisites applying in Contracting States, Article III guarantees that Contracting States cannot sidestep the broader purposes of the Convention and impose insurmountable procedural hurdles to the recognition and enforcement of foreign awards. As explained below, it does so by obliging Contracting States to generally recognize and enforce awards (Õ paras 7–9), and by imposing limitations to the application of their lex fori (Õ paras 20–27).

III. Drafting History The initial drafts of Article III closely tracked the language of the Geneva Conven- 3 tion of 1927 on the Execution of Foreign Arbitral Awards, which provided that an “arbitral award […] shall be recognized as binding and shall be enforced in accordance with the rules of procedure of the territory where the award is relied upon” (Article 1 of the Geneva Convention, Õ Annex V 2). However, the drafters of the NYC recognized that the application of the lex fori created a risk: Contracting States could sidestep the purpose of the Convention by imposing procedural hurdles that would render the recognition and enforcement of foreign awards impracticable or unduly burdensome.1 There was much debate amongst the drafters about how best to avoid this risk. One ambitious proposal called for the NYC to incorporate its own uniform 4 procedural rules.2 The proposal set forth a number of specific provisions concerning, among other things, the judge to hear the application, the evidence to be produced, the fees to be charged, the powers of the judge with respect to interim enforcement orders, and the available legal remedies against the decision to enforce (or not to enforce) an award.3 While the desirability of uniform procedural rules was widely acknowledged, the proposal eventually proved to be unrealistic and unfeasible.4 Another proposal was that foreign awards under the NYC be recognized and 5 enforced according to the same procedure as applicable to domestic awards.5 However, the drafters feared that applying domestic procedures could be “too cumbersome or time-consuming.”6 Some delegates also pointed out that many countries had specifically chosen to have different procedures for domestic and foreign awards.7 1 See E/CONF.26/2, p. 4 (Õ Annex IV 1) (indicating that there was a concern that procedural requirements could hold back the pro-enforcement spirit of the Convention). See also Börner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 118; van den Berg, NYC, p. 234. 2 See E/2822, pp. 10–11 (Õ Annex IV 1) (proposal made by the International Law Association). 3 See E/2822, pp. 10–11 (Õ Annex IV 1). 4 See E/2822, p. 12 (Õ Annex IV 1). See also E/CONF/26/2, p. 4 para. 8 (Õ Annex IV 1); Park/Yanos, 58 Hastings L.J. 251, 263 (2006); van den Berg, NYC, pp. 234–236. 5 See E/CONF.26/SR.10, p. 5 (Õ Annex IV 1) (proposal made by the Belgian delegation); E/2822, Annex I, p. 14 (Õ Annex IV 1) (proposal made by the German delegation). See also van den Berg, NYC, pp. 235–236. 6 E/CONF.26/2, p. 4 (Õ Annex IV 1). 7 E/CONF.26/SR.10, pp. 4 et seq. (Õ Annex IV 1) (comments by the Czech, Colombian and Swedish delegations).

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Article III 6–8 6

New York Convention

Eventually, a compromise was reached: on the one hand, Contracting States apply their lex fori to the recognition and enforcement of foreign awards, but, on the other, the conditions and fees cannot be substantially more onerous than those applied to domestic awards. This approach aimed at “ensur[ing] that no additional restrictions were imposed which might impede the free enforcement of the arbitral award,”8 while at the same time avoiding “undesirable rigidity,” and allowing “for the variations which normally occurred between the procedural systems and schedules of costs of different countries.”9

IV. Presumptive Obligation to Recognize and Enforce Awards Article III contains an affirmative obligation that courts in Contracting States “shall recognize arbitral awards as binding and enforce them” under the conditions laid out in the NYC. National courts10 and commentators11 have stressed the mandatory nature of this rule, evidenced by the use of the word “shall.” Therefore, Contracting States are obliged to recognize and enforce awards – unless the requirements in Article IV are not met (Õ Art. IV paras 8 et seq.), or unless one of the exceptions applies from Article V’s exhaustive list of grounds for non-recognition and non-enforcement12 (Õ Art. V paras 85 et seq.). 8 While Article III sets forth a presumptive obligation to recognize and enforce awards where the NYC’s prerequisites are met, conversely, there is no affirmative obligation to deny recognition or enforcement.13 Therefore, as discussed in more detail elsewhere, even where the requirements in Article IV are not met, or one of the grounds for nonrecognition applies from Article V’s exhaustive list, the NYC does not prevent a Contracting State from recognizing or enforcing an award (Õ Art. IV paras 25–31 and Õ Art. V paras 74 et seq.). 7

8

E/CONF.26/SR.10, p. 2 (Õ Annex IV 1) (comments by the United Kingdom delegation). E/CONF.26/SR.10, p. 3 (Õ Annex IV 1) (comments by the US delegation). 10 See e.g., Australia: Uganda Telecom Ltd. v. Hi-Tech Telecom Pty Ltd., [2011] FCA 131; Indian Farmers Fertiliser Cooperative Ltd. v. Joseph Isaac Gutnick, [2015] VSC 724; Belize: Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd., XXXVIII Y.B. Com. Arb. 324 excerpt para. 66 (2013); Bermuda: Sojuznefteexport v. JOC Oil Ltd., XV Y.B. Com. Arb. 384, 397–398 (1990); Cayman Islands: Imbar Maratima SA v. Republic of Gabon, XV Y.B. Com. Arb. 436, 439 (1990); Russia: Federal Arbitrazh Court, Kemerovskaya Region, XXXVI Y.B. Com. Arb. 325 excerpt para. 21 (2011); Federal Arbitrazh Court, Northwestern District, XXXVI Y.B. Com. Arb. 322, 323 (2011); UAE: Court of Cassation of Abu Dhabi, 1(1) BCDR Int’l Arb. Rev. 125 (2014); UK: Gater Assets Ltd. v. NAK Naftogaz Ukrainiy, [2007] EWCA Civ 988 para. 11 = XXXIII Y.B. Com. Arb. 721 (2008); Rosseel N.V. v. Oriental Commercial Shipping (UK) Ltd., [1991] 2 Lloyd’s Rep 625 = XVI Y.B. Com. Arb. 615 (1991); US: Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH, XLIII Y.B. Com. Arb. 626, excerpt para. 16 (2018) (S.D. Fla. 2017); OJSC Ukrnafta v. Carpatsky Petroleum Corp., XLIII Y.B. Com. Arb. 664, excerpt para. 11 (2018) (S.D. Tex. 2017); AVR Communications, Ltd. v. Am. Hearing Sys., Inc., XXXIX Y.B. Com. Arb. 587, 589 (2014) (D. Minn. 2014); Admart AG v. Stephen & Mary Birch Found., 457 F.3d 302, 307 (3d Cir. 2006); Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1120 (9th Cir. 2002) = XXVII Y.B. Com. Arb. 922, 927 (2002); Chevron Corp. v. Republic of Ecuador, 949 F. Supp. 2d 57 (D.D.C. 2013) = XXXIX Y.B. Com. Arb. 550 excerpt para. 12 (2014). 11 See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. III para. 1; Born, International Commercial Arbitration, pp. 3417–3418; Geimer, in: Zöller (ed.), ZPO, sect. 1061 para. 16; Paulsson, in: Blessing (ed.), ASA Special Series No. 9, pp. 100, 105; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.289. 12 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.290. 13 See e.g., Born, International Commercial Arbitration, p. 3428. 9

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Recognition and Enforcement of Arbitral Awards; General Rule

9–10

Article III

Article III stipulates that “Contracting State[s] shall recognize awards as binding” 9 (emphasis added), triggering the question as to whether the obligation to recognize awards necessarily implies that awards have a binding effect.14 Overall, commentators have written surprisingly little on the specific issue of res judicata or preclusion under Article III. It is generally understood that the NYC does not specify the consequences or effects of recognition (including res judicata of the award); it merely specifies the prerequisites to achieve it.15 However, it would be absurd to conclude that the NYC left Contracting States free to accord international arbitral awards no, or only very limited, preclusive effect. Indeed, that would leave arbitration virtually meaningless, allowing the re-litigation of disputes without regard to the outcome of prior arbitral proceedings. Therefore, even though Article III does not expressly prescribe specific rules regarding res judicata (or preclusive) effects of awards, it has nevertheless been described as providing a “constitutional statement of principle […] mandating recognition of the ‘binding’ effects of awards.”16 The particular rules regarding res judicata (or preclusive) effects of awards in proceedings before national courts17 must be determined either (i) by reference to a national law, such as the law of the place where res judicata is sought to be accorded to the award; the law of the place where the award was made; or the law governing the arbitration agreement;18 or, alternatively, (ii) by reference to international standards.19 Such international standards – albeit difficult to discern – could be based, in each case, on a comparative analysis of the res judicata or preclusive rules in the various national laws listed above and on general principles of international law developed by international courts and tribunals.20

V. Application of the Recognizing/Enforcing State’s Procedural Rules Article III provides that recognition and enforcement of awards is to be made “in 10 accordance with the rules of procedure of the territory where the award is relied upon.”

14 On the meaning of the binding nature of the award, also Õ Art. I paras 79 et seq. On the distinction between “binding” and “final,” see e.g. Hong Kong: L v. B, [2016] HKEC 1100. 15 See Hulbert, 7 Int’l Tax & Bus. Law. 155, 190 (1989). There are two main legal theories that relate to the effects of recognition. The “equal treatment theory” posits that recognition equates a foreign award with a domestic one and, thus, that the effects of the award are determined entirely by the laws of the recognizing State. Alternatively, the “extension of effect theory” postulates that the effects of the awards are determined by the law of the State where it was made and that only those effects are extended to and adopted by the State where recognition is sought. See Geimer, IZPR, para. 2780; Martiny, Handbuch, paras 363 et seq. Compare Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. III para. 2; Loritz, ZZP 105 (1992), 1, 11; Martiny, 35(4) Am. J. Comp. L. 721, 728 (1987); Matscher, ZZP 86 (1973), 404, 408 (relating to foreign decisions in general); Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 136 (Switzerland); Schack, Internationales Zivilverfahrensrecht, para. 1443; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 123; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 904. 16 Born, International Commercial Arbitration, p. 3744. 17 See Born, International Commercial Arbitration, pp. 3773–3791 (concerning the related but different question regarding the res judicata (or preclusive) effect of awards in international arbitration proceedings). 18 See Born, International Commercial Arbitration, pp. 3767–3769; Brekoulakis, Third Parties, paras 11.26–11.41; Sheppard, in: Cremades/Lew (eds), Parallel State and Arbitral Procedures, p. 219. See also De Ly/Sheppard, (2009) 25 Arb. Int’l 35, 41 (referring to England and Commonwealth States). 19 See Born, International Commercial Arbitration, pp. 3769–3770. 20 See e.g., ICSID: Amco Asia Corp. v. Republic of Indonesia (ARB/81/1), XIV Y.B. Com. Arb. 92, 96 (1989), also available at http://icsid.worldbank.org (last visited Apr. 16, 2019) (concerning a decision on jurisdiction of May 10, 1988). See also PCIJ: Case of the Factory at Chorzow, PCIJ Series A, No. 13, p. 27 (M. Anzilotti, dissenting).

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Article III 11–12

New York Convention

It applies to both recognition and enforcement proceedings,21 and grants States wide latitude in how they regulate such proceedings,22 provided that the limits otherwise contained in Article III, discussed below (Õ paras 20–27), are observed. Indeed, the procedural framework for recognition or enforcement proceedings varies widely among Contracting States. Some countries have enacted specific legislation addressing the procedural rules applying to the recognition or enforcement of Convention awards.23 In other countries, the recognition or enforcement of foreign awards under the NYC follows the same procedures that apply to domestic awards.24 Finally, legislation in some countries provides that the recognition or enforcement of awards under the NYC is governed by the procedures applicable to foreign court judgments.25 11 The phrase “rules of procedure” is generally construed in a narrow sense, i.e., the lex fori is considered to govern only the practical procedural mechanics of award recognition and enforcement.26 This includes, for instance, the following points, which are discussed in more detail in the subsequent sections: (1) the types of proceedings and the manner in which they are conducted; (2) the limitation period applicable to bringing a recognition or enforcement action; (3) the country and court/authority that has jurisdiction to hear such proceedings; and, (4) the provisional enforcement of decisions concerning the recognition or enforcement of arbitral awards, as well as the available legal remedies against such decisions. Other issues such as, for instance, whether courts may award post-award, prejudgment interest are sometimes also said to fall under Article III.27

1. Type of Proceedings and Manner in Which They Are Conducted 12

The lex fori determines the type of proceedings that may be initiated by the party seeking recognition or enforcement. For instance, the procedural law of the lex fori determines whether exequatur proceedings are possible, or necessary, before seeking to enforce the award.28 The lex fori also determines whether the award debtor may file for

21 See e.g., Australia: Traxys Europe SA v. Balaji Coke Industry Pvt Ltd., [2012] FCA 276, para. 62; Egypt: CA Cairo, 3(1) BCDR Int’l Arb. Rev. 111, 113 (2016); Malaysia: CTI Group Inc. v. International Bulk Carriers SPA, [2017] 9 CLJ 499, 532 = XLIII Y.B. Com. Arb. 514, excerpt para. 61 (2018). See also E/ 2704: E/AC.42/4/Rev.1, p. 8 para. 28 (Õ Annex IV 1); Börner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 119–120. 22 See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. III para. 3; Börner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 120; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 58 para. 1; van den Berg, NYC, pp. 236–237. 23 See e.g., ch. 2 of the US FAA; division 2, Part 10, ch. 609 of the Hong Kong Arbitration Ordinance; ch. I, Part II of the Indian Arbitration and Conciliation Act. 24 See e.g., Egypt: CA Cairo, 3(1) BCDR Int’l Arb. Rev. 111, 113 (2016); Germany: BGH, NJW-RR 2002, 933. See also Münch, in: MünchKommZPO, sect. 1061 para. 23. For commentators suggesting that if a country has no provisions at all regarding the procedure to enforce foreign awards under the NYC, the rules concerning enforcement proceedings of domestic awards should apply, see Gaillard/Savage, Fouchard Gaillard Goldman, para. 1671; van den Berg, NYC, p. 238. 25 See e.g., section 101(2) of the English Arbitration Act; Article 46 of the Spanish Arbitration Act; Articles 61(2) and 55 of the Turkish International Private and Procedural Law. 26 See Italy: Tribunale di Napoli, IV Y.B. Com. Arb. 277, 278 (1979); Malaysia: CTI Group Inc. v. International Bulk Carriers SPA, [2017] 9 CLJ 499, 532 = XLIII Y.B. Com. Arb. 514, excerpt paras 60–61 (2018). See also Park/Yanos, 58 Hastings L.J. 251, 256 (2006); Gaillard/Savage, Fouchard Gaillard Goldman, para. 1671. 27 Van den Berg, XXVIII Y.B. Com. Arb. 562, 643 (2003). See also Börner, in: Kronke/Nacimiento/Otto/ Port (eds), NYC, p. 129. However, the question whether the award of interest is a matter of procedure or substance varies from jurisdiction to jurisdiction. See Born, International Commercial Arbitration, p. 3106. Also Õ paras 569–570. 28 See Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 205, 208 (2012). Compare Börner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 136.

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Recognition and Enforcement of Arbitral Awards; General Rule

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Article III

a preventative declaratory judgment (rather than wait until the award creditor applies for recognition and enforcement).29 The lex fori further determines the manner in which such proceedings are con- 13 ducted. For instance, the lex fori determines whether the proceedings are inter partes or ex parte.30 Some jurisdictions require inter partes (i.e., adversarial) proceedings with participation of, or at least notice to, the respondent.31 Other countries allow an application for recognition or enforcement of an award to be brought ex parte, i.e., without involvement of a respondent.32 Moreover, the lex fori governs other aspects of how the proceedings are conducted, such as the form of the request for recognition or enforcement,33 whether the proceedings are oral or written,34 whether the court may order security for court fees and costs against the party seeking recognition or enforcement,35 and the extent to which discovery is allowed.36 The lex fori further determines questions concerning the confidentiality of the court proceedings, such as whether the public has access to the court file, whether the hearings are public, and whether the recognition or enforcement decision will be published.37

29 See France: TGI Paris, Rev. arb. 1990, 693, 694–695 = XVI Y.B. Com. Arb. 543 (1991); Germany: OLG Nürnberg, KTS 1966, 111, 112; Italy: Cass., XXXI Y.B. Com. Arb. 798, 801 (2006). See also section 612 of the Austrian Civil Procedure Code (allowing for an application for the determination of the existence or non-existence of an award). See also Börner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 133–134. 30 See Peru: Corte Suprema de Justicia, XXXIII Y.B. Com. Arb. 616, 617 (2008); Malaysia: CTI Group Inc. v. International Bulk Carriers SPA, [2017] 9 CLJ 499, 532 = XLIII Y.B. Com. Arb. 514, excerpt para. 63 (2018). See also Börner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 121. 31 See e.g., section 1063 of the German ZPO; Articles 44.5, 46.10 of the Japanese Arbitration Act; Articles 61(2) and 55 of the Turkish International Private and Procedural Law. See also ICC, Guide to National Procedures, p. 12. See also e.g., Albania: Gjykata e Lartë, XLIII Y.B. Com. Arb. 399, excerpt paras 10–11 (2018). 32 See e.g., Article 83(1) of the Austrian Enforcement Act; Article 1516 of the French CPC; Article 839 of the Italian Code of Civil Procedure; Article 749(11) of the Peruvian Code of Civil Procedure. In some countries, the application may be brought ex parte, although inter partes proceedings may be required, if the court considers that the respondent should be given notice. See e.g., Rule 62.18 of the English Civil Procedural Rules. Compare Malaysia: CTI Group Inc. v. International Bulk Carriers SPA, [2017] 9 CLJ 499, 532 = XLIII Y.B. Com. Arb. 514, excerpt para. 14(2018). See also ICC, Guide to National Procedures, pp. 12, 382. 33 See e.g., Canada: Bad Ass Coffee Co. of Hawaii Inc. v. Bad Ass Enterprises Inc., XXXIV Y.B. Com. Arb. 430, 448 (2009) (requiring applicant to file a statement of claim); Kenya: Glencore Grain Ltd. v. TSS Grain Millers Ltd., XXXIV Y.B. Com. Arb. 666, 673 (2009) (requiring applicant to file an affidavit); US: Nanda v. Nanda, 2012 U.S. Dist. LEXIS 171228 (N.D. Tex. 2012) = XXXVIII Y.B. Com. Arb. 492, 495 (2013) (no motion for summary judgment). 34 See e.g., Switzerland: Appellationsgericht Basel-Stadt, XVII Y.B. Com. Arb. 581, 582 (1992). 35 See e.g., UK: Gater Assets Ltd. v. NAK Naftogaz Ukrainiy, [2007] EWCA Civ 988 paras 29–88 = XXXIII Y.B. Com. Arb. 721, 739–742 (2008). Compare Germany: OLG Hamburg, XXIX Y.B. Com. Arb. 663, 666 (2004). 36 For instance, US courts have recognized that discovery in enforcement proceedings is both limited and rare, in part because it could be used by a resisting party to indefinitely postpone judgment. See US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 305 (5th Cir. 2004); Imperial Ethiopian Gov’t v. Baruch-Foster Corp., 535 F.2d 334, 337 (5th Cir. 1976) = II Y.B. Com. Arb. 252 (1977); Lummus Global Amazonas, S.A. v. Aguaytia Energy Del Peru, S.R. LTDA, 256 F. Supp. 2d 594, 626 (S.D. Tex. 2002). 37 See e.g., Australia: Esso Australia Resources Ltd. v. Plowman, 183 C.L.R. 10 = XXI Y.B. Com. Arb. 137, 165, 169–170 (1996); UK: Hassneh Insurance Co. of Israel v. Mew, [1996] 2 Lloyd’s Rep 243, 247 = XIX Y.B. Com. Arb. 223, 226 (1994); US: Liberty Re (Berm.) Ltd. v. Transam. Occidental Life Ins. Co., 2005 U.S. Dist. LEXIS 9774 (S.D.N.Y. 2005) = XXXI Y.B. Com. Arb. 1125, 1132 (2006); Commercial Union Ins. Co. v. Lines, 239 F. Supp. 2d 351, 358 (S.D.N.Y. 2002), vacated and remanded on other grounds by 378 F.3d 204 (2d Cir. 2004).

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2. Periods of Limitation to Bring Recognition or Enforcement Proceedings Relying on Article III, national courts have sometimes applied their respective lex fori regarding limitation periods applicable to recognition or enforcement proceedings. The propriety of this practice turns on whether limitation rules are qualified as procedural or substantive. In common law systems limitation rules are generally considered as procedural issues. Thus, courts in these jurisdictions interpreting Article III have relied on their lex fori to resolve issues regarding the limitation period applicable to recognition or enforcement proceedings,38 including, for instance, the date from which the limitation periods begins to run,39 and whether the running of the period has been interrupted40 or extended.41 In jurisdictions following this approach, the failure to comply with the lex fori’s limitation laws may lead to the dismissal of the enforcement or recognition action. Logically, however, this should not affect the right to seek recognition or enforcement in another jurisdiction where the limitation period has not yet expired.42 15 To the contrary, civil law countries generally consider limitation laws to be of substantive nature.43 It has been suggested that the courts in these countries would thus apply the lex causae (i.e., the law that governs the underlying claim) rather than the lex fori, to determine the limitation period applicable to recognition or enforcement proceedings.44 However, one has to distinguish between the limitation period applying to the underlying claims decided in the award on the one hand, and the limitation period applying to the right to bring recognition or enforcement proceedings, on the other. Concerning the latter, most civil law countries, such as Germany, rightly apply the lex fori and not the lex causae (also Õ Art. V para. 415).45 14

38 See e.g., Canada: Compania Maritima Villa Nova S.A. v. Northern Sales Co., [1992] 1 F.C. 550 = XVIII Y.B. Com. Arb. 363, 376 (1993); India: Orient Middle East Lines Ltd., Bombay v. M/s Brace Transport Corp. of Monrovia, XIV Y.B. Com. Arb. 648, 656 (1989); Noy Vallesina Engineering Spa v. Jindal Drugs Ltd., 2006 (5) Bom. C.R. 155, para. 5; US: Gulf Petro Trading Co. v. Nig. Nat’l Petroleum Corp., 288 F. Supp. 2d 783, 788–789 (N.D. Tex. 2003) = XXIX Y.B. Com. Arb. 1114, 1118–1119 (2004). See also van den Berg, in: Blessing (ed.), ASA Special Series No. 9, pp. 46, 76–77. 39 See e.g., Canada: Yugraneft Corp. v. Rexx Management Corp., [2010] 1 SCR 19; UK: Good Challenger Navegante SA v. Metalexportimport SA, [2003] EWCA Civ 1668; US: Seetransport Wiking Trader Schiffahrtsgesellschaft mbH & Co. v. Navimpex Centrala Navala, 989 F.2d 572, 581 (2d Cir. 1993) = XIX Y.B. Com. Arb. 812 (1994). Compare US: China Nat’l Chartering Corp. v. Pactrans Air & Sea, Inc., 2012 U.S. Dist. LEXIS 172899 (N.D. Ill. 2012) = XXXVIII Y.B. Com. Arb. 496 excerpt para. 3 (2013); EDF Int’l S.A. v. YPF S.A., 2009 U.S. Dist. LEXIS 72696 (D. Del. 2009). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. III para. 5. 40 See e.g., Australia: Antclizo Shipping Corp. v. The Food Corp. of India, [1998] WASC 342; UK: Good Challenger Navegante SA v. Metalexportimport SA, [2003] EWCA Civ 1668; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.33. 41 See e.g., UK: Soinco SACI v. Novokuznetsk Aluminium Plant, [1998] 2 Lloyd’s Rep 337 = XXIII Y.B. Com. Arb. 795 (1998). 42 See e.g., South Africa: Laconian Maritime Enterprises Ltd. v. Agromar Lineas Ltd., [1986] 3 S.A. 511 = XIV Y.B. Com. Arb. 693, 696–697 (1989) (granting enforcement of an award that had previously been denied enforcement in the United States for being time barred). See also Netherlands: Voorzieningenrechter, Gerechtshof Amsterdam, XXXVII Y.B. Com. Arb. 277, 281 (2012). See also Cuniberti, (2009) 25(3) Arb. Int’l 347, 353; Park/Yanos, 58 Hastings L.J. 251, 261–262 (2006). 43 See e.g., France: CA Paris, JCP G 1995, II, 22367. See also Article 148(1) of the Swiss International Private Law Act. See also Born, International Commercial Arbitration, p. 2669; Cuniberti, (2009) 25(3) Arb. Int’l 347, 350; Schwenzer/Manner, (2007) 23(2) Arb. Int’l 293, 296–297. 44 See Börner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 127–128. 45 See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. III para. 5. Compare Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 130–132a (autonomous procedural law of the recognizing/enforcing State applies). But see ICC, Guide to National Procedures, p. 356 (stating that Swiss courts may refuse to enforce a foreign award on the ground that the claim(s) at issue under the

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This issue of the applicable period of limitation is of significant importance in 16 practice because national limitation laws vary considerably among the Contracting States.46 While most jurisdictions have some form of limitation period restraining the commencement of legal proceedings for recognition or enforcement,47 the time periods vary from two,48 three,49 five,50 six,51 ten,52 or up to thirty53 years. Some countries, such as Germany, have no limitation period at all.54 In certain jurisdictions, the nature of the arbitration agreement or the circumstances in which the award was rendered may affect the applicable limitation period. For example, where an arbitration agreement was made by deed or under seal, many common law countries provide for a longer limitation period.55 The specific nature of a contract or the type of award may also dictate the relevant time restrictions applicable to seeking recognition or enforcement.56

3. Jurisdiction/Competent Authority National courts have held that their respective lex fori determines whether they have 17 jurisdiction to recognize or enforce an arbitral award.57 In some countries there are either no specific jurisdictional requirements, or the NYC itself is deemed to provide a jurisdictional basis for recognition or enforcement proceedings.58 In other countries, the award have become time-barred under the substantive law applicable to them). See also Aschauer, 23(4) ASA Bull. 593, 601–602 (2005). 46 See ICC, Guide to National Procedures, pp. 423–427; UNCITRAL, Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656, para. 55. 47 See ICC, Guide to National Procedures, p. 11 (almost 80 % of the countries covered by the Report have some form of limitation period applicable to the commencement of legal proceedings for recognition and enforcement). 48 See e.g., Article 215 of the Chinese Civil Procedure Law. See also Jingzhou, 4(1) Asian Int’l Arb. J. 83, 94 (2008). 49 See e.g., section 207 of the US FAA. 50 See e.g., Article 518 of the Spanish Civil Procedure Act. 51 See e.g., section 7 of the English Limitation Act 1980. 52 See e.g., Article 2946 of the Italian Civil Code; Article 205 of the Brazilian Civil Code. 53 See e.g., section 1478 of the Austrian ABGB. 54 See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. III para. 5; Rosenberg/ Schwab/Gottwald, Zivilprozessrecht, § 182 para. 36; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 132. 55 See e.g., section 20(1) of the Australian New South Wales Limitation Act; section 7 of the English Limitation Act 1980; section 11(5)(b) of the Irish Statute of Limitations; section 4(1)(c) of the Hong Kong Limitation Ordinance. 56 See ICC, Guide to National Procedures, p. 11 (referring to the fact that most awards in Egypt are subject to a 15-year limitation period, whereas commercial awards are subject to a 10-year limit). 57 See Australia: ML Ubase Holdings Co. Ltd. v. Trigem Computer Inc., XXXI Y.B. Com. Arb. 537 (2006); Canada: TMR Energy Ltd. v. State Property Fund of Ukraine, XXIX Y.B. Com. Arb. 607, 612–620 (2004); Bad Ass Coffee Co. of Hawaii Inc. v. Bad Ass Enterprises Inc., XXXIV Y.B. Com. Arb. 430, 434–435, 444 (2009), aff’d by Bad Ass Coffee Co. of Hawaii Inc. v. Bad Ass Enterprises Inc., [2007] ABQB 581; US: Sharp Corp. v. Hisense USA Corp., 292 F. Supp. 3d 157 (D.D.C. 2017) = XLIII Y.B. Com. Arb. 678, excerpt paras 10, 15–32 (2018); OJSC Ukrnafta v. Carpatsky Petroleum Corp., XLIII Y.B. Com. Arb. 664, excerpt paras 10–14 (2018) (S.D. Tex. 2017); Cerner Middle E. Ltd. v. iCapital, L.L.C., XLIII Y.B. Com. Arb. 616, excerpt paras 31–34 (2018) (D. Or. 2017); Sonera Holding B.V. v. Çukurova Holding A.S., 750 F.3d 221 (2d Cir. 2014); First Inv. Corp. v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742 (5th Cir. 2012) = XXXVIII Y.B. Com. Arb. 509, 511 (2013); Covington Marine Corp. v. Xiamen Shipbuilding Indus. Co., 504 Fed. Appx. 298 (5th Cir. 2012) = XXXVIII Y.B. Com. Arb. 505, 507 (2013); Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukr., 311 F.3d 488, 497, 501 (2d Cir. 2002) = XXVIII Y.B. Com. Arb. 1096 (2003). 58 See UK: Rosseel N.V. v. Oriental Commercial Shipping (UK) Ltd., [1991] 2 Lloyd’s Rep 625, 629 = XVI Y.B. Com. Arb. 615, 620 (1991). See also Australia: Traxys Europe SA v. Balaji Coke Industry Pvt

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applicant must show that the respondent has some connection to the country where the award is to be recognized or enforced, including, for example, its residence, domicile or presence of assets.59 For instance, in the US, in the absence of assets,60 courts have applied a “minimum contacts” requirement, holding that “[t]he defendant must either reside within the court’s power or have acted in such a fashion so as to bring himself within the court’s power before it may issue judgments over him.”61 18 The lex fori further determines which court or judge within a given jurisdiction is competent to hear the dispute.62 National laws vary significantly on whether recognition or enforcement actions must be brought before (i) a court of first instance or a higher

Ltd., [2012] FCA 276, para. 68 (no assets required); Canada: Sociedade-de-fomento Industrial Private Ltd. v. Pakistan Steel Mills Corp. (Private) Ltd., 2014 BCCA 205 (presumption of a “real and substantial connection”). See also Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. III para. 6; ICC, Guide to National Procedures, p. 12. 59 See e.g., Article 82 of the Austrian Enforcement Act; Article 1719 of the Belgian Judicial Code; Article 267 of the Chinese Civil Procedure Law; Article 46(4) of the Japanese Arbitration Act; sections 1062(1), 1062(2) of the German ZPO. See also UAE: Court of Cassation of Dubai, 1(1) BCDR Int’l Arb. Rev. 137 (2014); Germany: OLG Köln, XXXIX Y.B. Com. Arb. 399, 400 (2014); OLG München, XXXVII Y.B. Com. Arb. 229, 230 (2012); KG, SchiedsVZ 2007, 108, 112 = XXXII Y.B. Com. Arb. 363, 369 (2007); India: Brace Transport Corp. of Monrovia (Liberia) v. Orient Middle East Lines Ltd., AIR 1994 SC 1715 paras 14–21 = XXI Y.B. Com. Arb. 552, 554–555 (1996); Ireland: Yukos Capital SARL v. OAO Tomskneft, [2014] IEHC 115; Italy: CA Milano, XXXIX Y.B. Com. Arb. 421, 422 (2014); South Africa: Balkan Energy Ltd. v. The Government of the Republic of Ghana, XLIII Y.B. Com. Arb. 552, excerpt para. 14 (2018). Compare Russia: Federal Arbitrazh Court, Moscow District, Ruling No. КГ-А40/ 7874-11, Case No. A40-133433/10-63-1152, p. 4 (upheld by Collegium of the Supreme Arbitrazh Court, Ruling No. ВАС-11492/11), Case No. А40-133433/10-63-1152 (unreported), available at http://www. consultant.ru (last visited Apr. 16, 2019). See also ICC, Guide to National Procedures, p. 12; International Commercial Disputes Committee of the Association of the Bar of the City of New York, 15 Am. J. Int’l Arb. 407, 413–415 (2004); Escher/Reichert, SchiedsVZ 2007, 71, 76; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-56; Münch, in: MünchKommZPO, sect. 1062 paras 18–19; Onyema, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 597, 601; Kröll/Marenkov, SIAR 2009, 195, 216; Voit, in: Musielak/Voit (eds), ZPO, sect. 1062 para. 6. 60 The general view in the US is that the presence of the award debtor’s assets in the enforcing State is sufficient to confer jurisdiction. See US: Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1118–1120, 1128 (9th Cir. 2002) = XXVII Y.B. Com. Arb. 922 (2002). See also González/ Ramírez, in: van den Berg (ed.), Legitimacy, pp. 881, 890. But see US: Base Metal Trading, Ltd. v. OJSC Novokuznetsky Aluminum Factory, 283 F.3d 208, 212–214 (4th Cir. 2002) = XXVII Y.B. Com. Arb. 902, 906 (2002). Compare OJSC Ukrnafta v. Carpatsky Petroleum Corp., XLIII Y.B. Com. Arb. 664 (2018) (S.D. Tex. 2017); Cerner Middle E. Ltd. v. iCapital, L.L.C., XLIII Y.B. Com. Arb. 616, excerpt paras 79–82 (2018) (D. Or. 2017). 61 US: Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). See also US: Sharp Corp. v. Hisense USA Corp., 292 F. Supp. 3d 157 (D.D.C. 2017) = XLIII Y.B. Com. Arb. 678, excerpt paras 27–32 (2018); ESAB Group, Inc. v. Zurich Ins., XXXVII Y.B. Com. Arb. 402 excerpt para. 44 (2012) (4th Cir. 2012); Frontera Res. Azer. Corp. v. State Oil Co. of Azer. Republic, 582 F.3d 393, 398 (2d Cir. 2009) = XXXIV Y.B. Com. Arb. 1186, 1191 (2009); Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1118–1120, 1128 (9th Cir. 2002) = XXVII Y.B. Com. Arb. 922 (2002); Seetransport Wiking Trader Schiffahrtsgesellschaft mbH & Co. v. Navimpex Centrala Navala, 989 F.2d 572, 579–580 (2d Cir. 1993) = XIX Y.B. Com. Arb. 812, 816 (1994); Transatl. Bulk Shipping Ltd. v. Saudi Chartering S.A., 622 F. Supp. 25, 27 (S.D.N.Y. 1985) = XI Y.B. Com. Arb. 576, 577 (1986). See also ICC, Guide to National Procedures, p. 397; M. R. P. Paulsson, NYC in Action, p. 128; Strong, (2004) 21(6) J. Int. Arb. 439. But see Park, 18(2) ICC Bull. 65, 70 (2007) (criticizing US case law because the NYC’s narrowly drafted litany of defences does not include lack of “minimum contacts”). 62 See e.g., France: TGI Paris, Rev. arb. 1990, 693 = XVI Y.B. Com. Arb. 543, 545 (1991); Germany: OLG München, XXXVII Y.B. Com. Arb. 229 (2012); Greece: CA Athens, XXXVII Y.B. Com. Arb. 234, 235 (2012); Portugal: Tribunal da Relação de Lisboa, XXXVIII Y.B. Com. Arb. 443 excerpt para. 7 (2013); Russia: Federal Arbitrazh Court, Kemerovskaya Region, XXXVI Y.B. Com. Arb. 325 excerpt para. 22 (2011); Spain: Audiencia Provincial de Sevilla, XXXVII Y.B. Com. Arb. 295, 296 (2012); TS, XXXI Y.B. Com. Arb. 834, 838 (2006).

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court;63 (ii) a single judge or a panel of judges;64 and (iii) a federal or state court (in cases of a federal State).65

4. Provisional Enforcement and Remedies The lex fori also governs the provisional enforceability of a judgment granting 19 recognition or enforcement66 and determines the post-judgment legal remedies available to the parties.67 National statutes differ significantly with respect to available remedies. Whereas most domestic laws generally allow for judicial review of lower court decisions granting or denying the recognition or enforcement of an award, some jurisdictions provide for asymmetric appeal provisions, which limit appeals to cases where enforcement has been denied (as opposed to granted).68

VI. Limitations on the Application of the Recognizing/Enforcing State’s Procedural Rules The principle embodied in Article III that, in recognition and enforcement proceed- 20 ings, a court should apply its lex fori regarding procedural issues has two limits. First, the lex fori may not derogate from “the conditions laid down in the following articles” of the NYC, namely Articles IV and V (1.). Second, the application of the lex fori shall not impose on foreign awards substantially more onerous conditions or higher fees or charges than on domestic ones (2.).

1. Conditions Laid Down in the Articles Following Article III Pursuant to Article III, the procedural rules of the State in which recognition or 21 enforcement is sought are subject to the conditions outlined in the “following articles” of the NYC. This limitation is important since it ensures that national courts, by applying their lex fori to procedural issues, are not circumventing the Convention’s goals to provide for limited preconditions that the party seeking recognition or enforcement has to meet pursuant to Article IV, and for an exhaustive list of grounds on which recognition or enforcement may be refused according to Article V. In practice, there have been few problematic cases. In the US, courts have occasionally invoked Article III to apply the doctrine of forum 22 non conveniens and dismiss enforcement actions.69 The forum non conveniens doctrine 63 See e.g., Article 267 of the Chinese Civil Procedure Law; Article 1516 of the French CPC; section 1062 of the German ZPO; Article 30 of the Portuguese Law on Voluntary Arbitration; Article 60(2) of the Turkish International Private and Procedural Law. See also Albania: Gjykata e Lartë, XLIII Y.B. Com. Arb. 399, excerpt para. 294(2018); Portugal: Tribunal da Relação do Porto and Supremo Tribunal de Justiça, XXXIX Y.B. Com. Arb. 474, 475 (2014); Spain: Tribunal Superior de Justicia de Catalunya, XLI Y.B. Com. Arb. 558, 559 (2016). 64 See e.g., Article 1719.1 of the Belgian Judicial Code (President of the Court of First Instance); Article 839 of the Italian CCP (President of the Court of First Instance). 65 See e.g., section 203 of the US FAA. 66 See e.g., Italy: CA Milano, XXIII Y.B. Com. Arb. 723, 725 (1998). See also Poudret/Besson, Comparative Arbitration, para. 856. 67 See e.g., Peru: Corte Suprema de Justicia, XXXIII Y.B. Com. Arb. 616, 616–617 (2008). 68 See e.g., Articles 1062(4), 1064(1) of the Dutch Code of Civil Procedure (concerning awards rendered in the Netherlands); Article 1523 of the French CPC (concerning international awards rendered in France). See also section 50(1)(b) of the Indian Arbitration and Conciliation Act. See also Netherlands: Voorzieningenrechter, Rechtbank Rotterdam, XXXVII Y.B. Com. Arb. 271, 273 (2012). 69 US: Thai-Lao Lignite (Thai.) Co. v. Gov’t of the Lao People’s Democratic Republic, 2011 U.S. Dist. LEXIS 87844 (S.D.N.Y. 2011) = XXXVI Y.B. Com. Arb. 491 excerpt para. 11 (2011); Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukr., 311 F.3d 488, 496 (2d Cir. 2002) =

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Article III 23

New York Convention

permits dismissal of a proceeding, if the chosen forum is “oppressive[e] and vexatio[us] to a defendant […] out of all proportion to plaintiff’s convenience,” or “inappropriate because of considerations affecting the court’s own administrative and legal problems.”70 Courts justify the application of the doctrine on the grounds that it is, allegedly, a procedural rule and that it also applies to domestic cases.71 However, the application of this doctrine to enforcement cases under the NYC has rightly been criticized for circumventing Article V.72 The doctrine is not procedural in nature, but substantive, because it is more concerned with “substantive policies and discretionary judgments.”73 Accordingly, applying the forum non conveniens doctrine to recognition or enforcement actions violates the limitation contained in Article III that the substantive requirements of the NYC are set forth exclusively in the following articles of the Convention, namely Article V (also Õ Art. V paras 25–26).74 23 Relying on Article III, some national courts have allowed the party resisting recognition or enforcement to raise a counter-claim or set-off defense pursuant to their lex fori. In particular, German courts generally accept that set-off defenses (or similar merit-based defenses) may be brought in recognition or enforcement proceedings provided that they could not have been raised in the course of the arbitration itself (e.g., because the facts post-dated the arbitral proceedings or because they do not fall within the scope of the arbitration agreement).75 This rationale, however, is incompatible with Articles III and V. According to Article III, the application of the recognizing or enforcing court’s lex fori is clearly limited to procedural issues. Allowing counter-claims or set-off defenses in recognition or enforcement proceedings exceeds the scope of Article III because counterclaims and set-off defenses materially touch upon the merits, i.e., substance, of the dispute. In fact, allowing counter-claims or set-off defenses adds grounds for refusal of recognition XXVIII Y.B. Com. Arb. 1096, 1105 (2003); CHS Europe SA v. El Attal, 2010 U.S. Dist. LEXIS 76619 (S.D.N.Y. 2010). Compare US: Belize Soc. Dev. Ltd. v. Gov’t of Belize, 5 F. Supp. 3d 25 (D.D.C. 2013) = XXXIX Y.B. Com. Arb. 574 excerpt paras 17–18 (2014); TermoRio S.A. E.S.P. v. Electrificadora del Atlantico S.A. E.S.P., 421 F. Supp. 2d 87, 104 (D.D.C. 2006) = XXXI Y.B. Com. Arb. 1457, 1473 (2006). See also The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.27 Reporters’ Note b(ii) (pp. 788 et seq.). 70 US: Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981); Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947). 71 US: Figueiredo Ferraz e Engenharia de Projeto Ltda v. Republic of Peru, 665 F.3d 384 (2d Cir. 2011) = XXXVII Y.B. Com. Arb. 346, 348 (2012); Am. Dredging Co. v. Miller, 510 U.S. 443, 454 n. 4 (1994); Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukr., 311 F.3d 488, 496 (2d Cir. 2002). 72 See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. III para. 4; Born, International Commercial Arbitration, pp. 2985–2986; Park, 18(2) ICC Bull. 65, 70 (2007); Reynes, (2013) 30(2) J. Int. Arb. 165, 168; Park/Yanos, 58 Hastings L.J. 251, 262–264 (2006). See also The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.27 Reporters’ Note b(ii) (pp. 790–791); International Commercial Disputes Committee of the Association of the Bar of the City of New York, 15 Am. J. Int’l Arb. 407, 427 et seq. (2004). Compare US: Sonera Holding B.V. v. Çukurova Holding A.S., 895 F. Supp. 2d 513 (S.D.N.Y. 2012) = XXXVIII Y.B. Com. Arb. 483, 486 (2013) (noting that great caution must be exercised when applying the doctrine of forum non conveniens in connection with the New York Convention); Melton v. Oy Nautor A.b., 1998 U.S. App. LEXIS 22100, at *4–5 (9th Cir. 1998) = XXIVa Y.B. Com. Arb. 871, 873 (1999) (Tashima, C.J., dissenting). 73 Born, International Commercial Arbitration, p. 2986. See also American Bar Association, House of Delegates, Annual Meeting 2013, Resolution 107c; Silberman, 38 Ga. J. Int’l & Comp. L. 25, 40 (2009). 74 Compare Israel: Zeevi Holdings Ltd. v. The Republic of Bulgaria, XXXIV Y.B. Com. Arb. 632, 636 (2009); Spain: TS, XXXI Y.B. Com. Arb. 834, 838 (2006). 75 See Germany: BGH, NJW-RR 2011, 213, 214; BGH, SchiedsVZ 2010, 275; BGH, SchiedsVZ 2008, 40; BGH, NJW 1990, 3210, 3211; OLG Koblenz, SchiedsVZ 2005, 260, 262 = XXXI Y.B. Com. Arb. 673, 677–678 (2006); OLG Saarbrücken, SchiedsVZ 2012, 47, 50; OLG Düsseldorf, XXXI Y.B. Com. Arb. 663, 668 (2006). See also Börner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 131–132; van den Berg, NYC, p. 214.

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Recognition and Enforcement of Arbitral Awards; General Rule

24–25

Article III

or enforcement that are not permitted under Article V. Moreover, allowing counter-claims or set-off defenses during recognition or enforcement proceedings may unduly delay the recognition or enforcement of awards. Therefore, the better view is that permitting counter-claims or set-off defenses during recognition or enforcement proceedings is contrary to Articles III and V (Õ Art. V paras 34–36a).76

2. Prohibition on Discrimination of Foreign Awards vis-à-vis Domestic Awards Article III further provides that the lex fori’s rules of procedure “shall not […] 24 impose[] substantially more onerous conditions or higher fees or charges” on foreign award recognition or enforcement proceedings than on domestic award proceedings. However, Article III does not require Contracting States to have identical recognition or enforcement regimes for foreign and domestic awards. Instead, it contemplates potentially different procedures, as long as the procedural rules and criteria applicable to foreign awards are not “substantially more onerous” than those applicable to domestic awards.77 The use of the word “substantially” suggests that slight variations in treatment between foreign and domestic awards are acceptable.78 Moreover, while Article III prohibits disfavoring foreign awards vis-à-vis domestic awards, it permits (but does not require) treating foreign awards more favorably than domestic ones.79 a) Prohibition on Substantially More Onerous Conditions Article III provides that the lex fori’s rules of procedure must not subject a party 25 seeking recognition or enforcement of a foreign award to substantially more onerous “conditions” than a party would face if it were seeking recognition or enforcement of a domestic award. Although poorly drafted, the term “conditions” in the second sentence of Article III is universally considered to refer to procedural rules and conditions governing recognition or enforcement, rather than substantive conditions and exceptions, which are set forth in Article V.80 The Dutch Supreme Court has held that 76 See US: China Three Gorges Project Corp. v. Rotec Indus., 2005 WL 1813025, at *2–3 (D. Del. 2005); Mangistaumunaigaz Oil Prod. Ass’n v. United World Trade, Inc., XXIVa Y.B. Com. Arb. 806, 808 (1999) (D. Colo. 1997); Hewlett-Packard, Inc. v. Berg, 867 F. Supp. 1126, 1132 (D. Mass. 1994); Evergreen Sys., Inc. v. Geotech Lizenz AG, 697 F. Supp. 1254, 1257 (E.D.N.Y. 1988); Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948, 963 (S.D. Ohio 1981). But see US: Compagnie Noga d’Importation et d’Exportation S.A. v. Russian Federation, 2002 WL 31106345, at *10–11 (S.D.N.Y. 2002) (granting a setoff pursuant to parties’ letter agreements), revoked on other grounds, 361 F.3d 676 (2d Cir. 2004). 77 See Italy: CA Milano, XXIII Y.B. Com. Arb. 727, 728 (1998); CA Napoli, I Y.B. Com. Arb. 193, 193 (1976); US: Zeevi Holdings Ltd. v. Republic of Bulgaria, 2011 U.S. Dist. LEXIS 38556 (S.D.N.Y. 2011). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. III para. 3; Born, International Commercial Arbitration, p. 3413; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1671; Schwab/ Walter, Schiedsgerichtsbarkeit, ch. 56 para. 2, ch. 58 para. 1; van den Berg, NYC, p. 243; Onyema, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 597, 604. 78 See Italy: Cass., XVII Y.B. Com. Arb. 529, 530 (1992) (discussed Õ para. 27). Compare Quigley, 70 Yale L.J. 1049, 1065 (1961). 79 See UK: Far Eastern Shipping Co. v. AKP Sovcomflot, XXI Y.B. Com. Arb. 699, 705 (1996); US: Comm’ns Imp. Exp. S.A. v. Republic of the Congo & Caisse Congolaise d’Amortissement, 757 F.3d 321 (D.C. Cir. 2014) = XXXIX Y.B. Com. Arb. 629, 631–632 (2014). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. III para. 3; van den Berg, NYC, p. 243; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.306. 80 See Italy: Cass., XVIII Y.B. Com. Arb. 427, 429 (1993); Kuwait: Supreme Appeal Court, XXII Y.B. Com. Arb. 748, 750 (1997); Portugal: Tribunal da Relação de Lisboa, XXXVIII Y.B. Com. Arb. 440, 442 (2013); South Africa: Pierre Fattouche v. Mzilikazi Khumalo, XXXIX Y.B. Com. Arb. 498, 499–500 (2014). See also Born, International Commercial Arbitration, pp. 3409–3410; Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 128; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 130; van den Berg, NYC, p. 239.

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Article III 26–27

New York Convention

allowing an appeal from a decision granting leave for enforcement of a foreign award constitutes a substantially more onerous condition in violation of Article III, if the same remedy is not available for an award rendered in the Netherlands.81 In contrast, a Swiss court rejected the argument that requiring full oral proceedings for enforcement of a foreign arbitral award is a more onerous condition under Article III because the same procedure applies under Swiss law to enforcement proceedings involving a domestic award.82 b) Prohibition on Substantially Higher Fees or Charges Article III further provides that the lex fori’s rules of procedure must not subject a party seeking recognition or enforcement of a foreign award to “substantially […] higher fees or charges” than a party would face if it were seeking recognition or enforcement of a domestic award. This language has been interpreted to refer to the “expenses of the proceedings for the declaration of enforcement [or recognition] of the foreign arbitral award.”83 For instance, as detailed above, the lex fori determines whether a court may order security for court fees and costs against the party seeking recognition or enforcement of a foreign award (Õ para. 13). Consistent with Article III, these costs may only be imposed if such possibility also exists in enforcement proceedings of a domestic award.84 27 In one case before the Italian Supreme Court, the Court concluded that Article III does not preclude the apportionment of costs in enforcement proceedings of foreign awards, even if the same principle does not apply to enforcement proceedings of domestic awards.85 The Supreme Court based its decision on the difference in the nature of the two enforcement proceedings in Italy: foreign award proceedings are adversarial, whereas domestic award proceedings are non-adversarial. Therefore, the Court explained, foreign award proceedings permit the apportionment of costs between the parties, while domestic awards do not. The use of the word “substantially” in Article III concedes some variation in the treatment of foreign versus domestic awards (Õ para. 24); however, the Italian Supreme Court’s rationale based on the different nature of foreign and domestic enforcement proceedings is not unproblematic and entails the risk of abusive use, thus rendering Article III a dead letter. 26

81 Netherlands: HR, XXXV Y.B. Com. Arb. 423 (2010) (this decision was rendered under the pre-2015 Dutch Code of Civil Procedure). Compare Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 200, 202 (2012); Corte Suprema de Justicia, XLI Y.B. Com. Arb. 454, 456 (2016). 82 Switzerland: Appellationsgericht Basel-Stadt, XVII Y.B. Com. Arb. 581, 582 (1992). 83 Greece: Areios Pagos, XXXIII Y.B. Com. Arb. 565, 569 (2008). See also Italy: Cass., XVII Y.B. Com. Arb. 529, 530 (1992); US: Audi-NSU Auto Union AG v. Overseas Motors, Inc., III Y.B. Com. Arb. 291 (1978) (E.D. Mich. 1977). 84 See e.g., Hong Kong: Shandong Hongri Acron Chemical Joint Stock Co. Ltd. v. Petrochina International (Hong Kong) Corp. Ltd., XXXVI Y.B. Com. Arb. 287, 289–290 (2011); UK: Diag Human SE v. The Czech Republic, [2014] EWHC 1639 (Comm). 85 Italy: Cass., XVII Y.B. Com. Arb. 529, 530 (1992). See also Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. III para. 8.

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Article IV [Formal Requirements for Recognition and Enforcement of Arbitral Awards] 1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply: a) The duly authenticated original award or a duly certified copy thereof; b) The original agreement referred to in article II or a duly certified copy thereof. 2. 1If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. 2The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. Specific Bibliography: Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide, 2nd ed., Kluwer Law International 2018; Basler Kommentar: see Honsell/Vogt/Schnyder/Berti; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Crookenden, Correction of the Name of a Party to an Arbitration, (2009) 25(2) Arb. Int’l 207; Di Pietro/Platte, Enforcement of International Arbitration Awards: The New York Convention of 1958, Cameron May 2001; Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Geimer/Schütze (eds), Internationaler Rechtsverkehr in Zivil- und Handelssachen, 56th ed., C. H. Beck 2018; Ghikas, A Principled Approach to Adjourning the Decision to Enforce Under the Model Law and the New York Convention, (2006) 22(1) Arb. Int’l 53; Haas, Die Vorlagepflichten des Vollstreckungsgläubigers nach dem New Yorker Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche von 1958 (zu OGH, 16.11.1997 – 3 Ob 320/97y), IPRax 2000, 432; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Honsell/Vogt/ Schnyder/Berti (eds), Basler Kommentar Internationales Privatrecht (IPRG), 3rd ed., Helbing & Lichtenhahn 2013; ICC, ICC Guide to National Procedures for Recognition and Enforcement of Awards under the New York Convention, 2nd ed., Special Supplement 2012, ICC Publications 2013; Kleinheisterkamp, Recognition and Enforcement of Foreign Arbitral Awards, in: Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press 2008, Online Edition, available at http://opil.ouplaw. com/home/EPIL (last visited Apr. 16, 2019); Knoepfler/Schweizer, Arbitrage international: jurisprudence suisse commentée depuis l’entrée en vigueur de la LDIP, Schulthess 2003; Krapfl, Zu den formellen Voraussetzungen des Antrags auf Vollstreckbarerklärung eines ausländischen Schiedsspruchs, IPRax 2001, 443; Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Kunz, Enforcement of Arbitral Awards under the New York Convention in Switzerland – An overview of the current practice and case law of the Swiss Supreme Court, 34(4) ASA Bull. 836 (2016); Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Mistelis (ed.), Concise International Arbitration, 2nd ed., Kluwer Law International 2015; MünchKommZPO: see Rauscher/Wax/Wenzel; Öhlberger, Vollstreckung ausländischer Schiedssprüche in Österreich und deren Formvoraussetzungen nach dem New Yorker Übereinkommen, SchiedsVZ 2007, 77; Onyema, Formalities of the Enforcement Procedure (Articles III and IV), in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 597; M. R. P. Paulsson, The 1958 New York Convention in Action, Kluwer Law International 2016; Poudret/Besson, Comparative Law of International Arbitration, 2nd ed., Sweet & Maxwell 2007; Rauscher/Wax/Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017; Sanders, Quo Vadis Arbitration? Sixty Years of Arbitration Practice, A Comparative Study, Kluwer Law International 1999; Scherer, Effects of Foreign Judgments Relating to International Arbitral Awards: Is the ‘Judgment Route’ the Wrong Road?, 4(3) JIDS 587 (2013); Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2nd ed., Mohr Siebeck 1989; Schwab/Walter, Schieds-

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Article IV 1–2

New York Convention

gerichtsbarkeit, 7th ed., C. H. Beck, Helbing & Lichtenhahn 2005; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, Consolidated Commentary Cases Reported in Volumes XXII (1997) – XXVII (2002), XXVIII Y.B. Com. Arb. 562 (2003); van den Berg, The New York Convention of 1958: An Overview, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 39. Table of Contents I. II. III. IV.

Overview ................................................................................................................... Spirit and Purpose .................................................................................................. Drafting History ...................................................................................................... Supply of Documents (Article IV(1)) ................................................................ 1. Authentication and Certification .................................................................... a) Governing Law.............................................................................................. b) Competent Authority .................................................................................. 2. Award (Article IV(1)(a)) .................................................................................. a) Duly Authenticated Original Award........................................................ b) Duly Certified Copy of the Award ........................................................... 3. Arbitration Agreement (Article IV(1)(b)) .................................................... a) No Need to Prove the Validity of the Arbitration Agreement .......... b) Original of the Arbitration Agreement ................................................... c) Duly Certified Copy of the Arbitration Agreement ............................. 4. Exemption to Supply Documents Required by Article IV ....................... 5. Timeframe to Supply Documents Required by Article IV ....................... V. Duly Certified Translation (Article IV(2))........................................................ 1. Language and Scope of the Translation........................................................ 2. Competent Authority ........................................................................................ 3. Flexible Approach Regarding Supply of Certified Translation................ VI. Deviating National Provisions .............................................................................

1 2 4 8 8 9 13 14 17 18 19 20 22 24 25 32 33 33 34 35 36

I. Overview 1

Article IV lists the requirements that a party seeking recognition or enforcement of a foreign arbitral award (hereafter the “applicant”) must satisfy. Article IV applies in all cases where recognition or enforcement of an arbitral award is sought under the NYC – irrespective of whether it is (i) the main object of the proceedings or a collateral/incidental question; and (ii) sought by the claimant, or raised by the defendant.1 As detailed below, the applicant must supply the duly authenticated original award or a duly certified copy thereof pursuant to Article IV(1)(a) (Õ paras 14–18), as well as the original arbitration agreement or a duly certified copy thereof pursuant to Article IV(1)(b) (Õ paras 19–24). Furthermore, if one or more of the aforementioned documents are in a language other than the language of the country where recognition or enforcement is sought, Article IV(2) requires the applicant to also produce certified translations thereof (Õ paras 33–35).

II. Spirit and Purpose 2

The NYC was drafted in the spirit and with the purpose of encouraging arbitration as a dispute resolution mechanism within the international commercial context by streamlining and facilitating recognition or enforcement of arbitral awards across Contracting States. Article IV serves this purpose: read together with Article V, the conditions articulated in Article IV are exhaustive, meaning that the only conditions the applicant has to comply 1 Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 150. See Born, International Commercial Arbitration, p. 3407.

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Formal Requirements for Recognition and Enforcement

3–4

Article IV

with when seeking recognition or enforcement of an award are those outlined in Article IV (provided that the procedure according to Article III is also complied with).2 By supplying Article IV’s required documents, the applicant provides evidence of the existence of the award and the underlying agreement to arbitrate, thus establishing a “presumption of enforceability of the award.”3 As detailed below, the onus then shifts to the opposing party, who must prove that recognition or enforcement should be refused based on one of the grounds enumerated in Article V (Õ para. 5). Accordingly, as detailed below, national courts have held that the applicant is not required to prove that the arbitration agreement is valid (Õ paras 20–21), nor that the award is final (Õ para. 16). National courts have further held that Article IV supersedes national legislation that imposes additional or more burdensome evidentiary requirements on the applicant (Õ para. 36). Also consistent with the spirit and purpose of Article IV, as detailed below, most 3 national courts have construed Article IV as a provision merely concerning evidentiary requirements for recognition or enforcement and not mandatory procedural requirements (Õ paras 26–27). Accordingly, most national courts have shown a flexible and pragmatic approach in determining (i) when the applicant must submit the documents required by Article IV (Õ para. 32); and (ii) whether the applicant may be exempt from providing any of the documents required by Article IV (Õ paras 25–31) or the translation thereof (Õ para. 35). Consistent with Article VII, courts have also applied national legislation that is more lenient than Article IV’s requirements (Õ para. 37).

III. Drafting History The spirit and purpose forming Article IV stemmed from frustration with the old 4 regime of recognition and enforcement of foreign arbitral awards that was arduous for the applicant and deeply entrenched by parochial policies established by States through treaties and domestic legislation.4 One of the most significant hurdles for applicants was 2 See e.g., Austria: OGH, X Y.B. Com. Arb. 418, 419–420 (1985); Germany: OLG Saarbrücken, SchiedsVZ 2012, 47; Greece: Areios Pagos, I Y.B. Com. Arb. 186 (1976); Italy: Cass., XXII Y.B. Com. Arb. 727, 730 (1997); CA Napoli, IV Y.B. Com. Arb. 275, 276 (1979); Mexico: Tribunal Superior de Justicia, IV Y.B. Com. Arb. 302, 303 (1979); Netherlands: Voorzieningenrechter, Rechtbank Utrecht, XI Y.B. Com. Arb. 521, 522 (1986); Spain: TS, XXXII Y.B. Com. Arb. 518, 524 (2007); US: Jiangsu Changlong Chems., Co. v. Burlington Bio-Med. & Scientific Corp., 399 F. Supp. 2d 165, 168 (E.D.N.Y. 2005) = XXXI Y.B. Com. Arb. 1316, 1317 (2006). Born, International Commercial Arbitration, p. 3396; Onyema, in: Gaillard/Di Pietro (eds), NYC in Practice, p. 597; Poudret/Besson, Comparative Arbitration, para. 950; van den Berg, NYC, p. 248. But see Bulgaria: Sup. Ct. of Appeal, XXV Y.B. Com. Arb. 678, 680 (2000) (authentication of the award by the arbitral tribunal and a certificate that the award had entered into force); Brazil: Superior Tribunal de Justiça, XXXIX Y.B. Com. Arb. 372 excerpt para. 3 (2014) (submission of the arbitration rules under which the award was made); Superior Tribunal de Justiça, XXXVIII Y.B. Com. Arb. 341 (2013); Peru: Corte Superior de Justicia de Lima, XXXIX Y.B. Com. Arb. 467, 468 (2014). Compare Australia: Altain Khuder LLC v. IMC Mining Inc., [2011] VSC 12 = XXXVI Y.B. Com. Arb. 242, 247–248 (2011); Kenya: Glencore Grain Ltd. v. TSS Grain Millers Ltd., XXXIV Y.B. Com. Arb. 666, 677 (2009); Austria: OGH, XXXVIII Y.B. Com. Arb. 317 excerpt para. 17 (2013). 3 Italy: Cass., XXII Y.B. Com. Arb. 727, 731 (1997). See also Australia: Transpac Capital Pte Ltd. v. Buntoro, [2008] NSWSC 671 = XXXIII Y.B. Com. Arb. 349, 352 (2008); Switzerland: CJ, 18(4) ASA Bull. 786 (2000) = XXVI Y.B. Com. Arb. 863, 865 (2001); US: Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH, XLIII Y.B. Com. Arb. 626, excerpt paras 16–18 (2018) (S.D. Fla. 2017); Verolme Botlek B.V. v. Lee C. Moore Corp., XXI Y.B. Com. Arb. 824, 826 (1996) (N.D. Okla. 1995); Spain: Tribunal Superior de Justicia de la Comunidad Valenciana, XL Y.B. Com. Arb. 483, 485 (2015). See also Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 124; M. R. P. Paulsson, NYC in Action, pp. 138–140; van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 55; van den Berg, NYC, p. 247; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.313. 4 See Kleinheisterkamp, in: Wolfrum (ed.), Max Planck Encyclopedia, key word “Commercial Arbitration, International” paras 7 et seq.

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Article IV 5–7

New York Convention

the “double exequatur” requirement, i.e., the requirement that the applicant must obtain recognition or enforcement of the award from a court at the seat before the award could be recognized or enforced elsewhere. Although Article 4 of the Geneva Convention of 1927 (Õ Annex V 2) did not expressly require a “double exequatur,” it came to be mandated de facto under the Convention.5 This practice was heavily criticized.6 Article 4 of the Geneva Convention also required the applicant to prove that the award fell within the scope of the Convention, was made in accordance with a valid arbitration agreement and had been rendered by an arbitral tribunal validly constituted according to the law of the arbitral procedure. 5 Whereas the initial drafts of what later became Article IV did not differ greatly from the onerous system of the 1927 Geneva Convention,7 the final version of Article IV considerably relaxed the requirements imposed on the applicant. Indeed, during the New York Conference of 1958, some fundamental changes – later described as a “revolution” in the drafting of the NYC8 – were proposed,9 seeking, in particular, to shift the burden of proof in such a way so as to make it “less onerous” for the applicant.10 By requiring the party resisting recognition and enforcement of the award to prove its grounds for refusal (Article V), rather than requiring the applicant to meet burdensome conditions, the NYC thus does away not only with the double exequatur requirement, it also releases the applicant from providing any additional evidence which is not listed in Article IV (also Õ Art. V paras 12 et seq.). 6 In comparison to the 1927 Geneva Convention, Article IV contains additional important changes. It is deliberately silent on the question of which law governs the authentication or certification of the documents referred to in Article IV because it was deemed “preferable to allow greater latitude” in this regard.11 The New York Conference of 1958 expressly rejected a proposal that “the consulate of the country where the award is relied upon” authenticate the award.12 As discussed below, the issue of the law applicable to authentication and certification has given rise to opposing views among national courts and scholars (Õ paras 9–12). 7 Finally, while Article 4(2) of the 1927 Geneva Convention (Õ Annex V 2) provided that a translation of the listed documents “may be demanded,” the NYC replaced this permissive language with the requirement that the applicant “shall produce” a certified translation (Article IV(2)). Nevertheless, as detailed below, most national courts have held that the absence of a certified translation does not prevent the enforcement of the arbitral award under certain circumstances (Õ para. 35).

5 Under Article 4 of the Geneva Convention of 1927 (Õ Annex V 2), the party seeking enforcement of an arbitral award had not only to provide the award and the underlying arbitration agreement but also proof that the award had become final in the country where it was made. Because most national laws did not provide for a specific certificate of “finality” other than getting an award declared enforceable in that country, this was “[p]ractically the only way to prove finality.” See Otto, in: Kronke/Nacimiento/Otto/ Port (eds), NYC, p. 145. 6 See Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 1.210; Born, International Commercial Arbitration, p. 3411; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 145; van den Berg, NYC, p. 247. 7 See E/2704: E/AC.42/4/Rev.1, Annex III (Õ Annex IV 1). 8 Van den Berg, NYC, p. 246. 9 E/CONF.26/L.17, p. 2 (Õ Annex IV 1) (amendments to the draft convention proposed by the Netherlands). 10 E/CONF.26/SR.11, p. 6 (Õ Annex IV 1). See also Sanders, Quo Vadis Arbitration?, p. 69. 11 E/2704: E/AC.42/4/Rev.1, para. 55 (Õ Annex IV 1). See also van den Berg, NYC, p. 246. 12 E/CONF.26/SR.17, p. 7 (Õ Annex IV 1).

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Formal Requirements for Recognition and Enforcement

8–10 Article

IV

IV. Supply of Documents (Article IV(1)) 1. Authentication and Certification Article IV(1) provides for two different formalities regarding the documents to be 8 supplied. Authentication concerns original documents and is the formal process by which a competent authority attests to the fact that the signatures on the document are genuine.13 Certification merely applies to copies of a document and is the formal process by which a copy is attested to be a true copy of the original.14 Article IV does not set forth the requirements for an authentication or certification to be valid, nor does it specify which authorities are competent to perform these functions. These questions depend on the law the recognizing or enforcing court applies to the authentication or certification process (Õ para. 9). a) Governing Law Article IV is silent on the law governing the authentication or certification of the 9 documents referred to in this provision.15 Some isolated authorities have held – explicitly or implicitly – that the law of the country where the award was made should govern authentication and certification (of an award in particular).16 It has been argued that such an interpretation would have the advantage of resulting in a “one-off transaction,” which removes the need for the applicant to obtain authentication or certification under the laws of each State where recognition or enforcement is sought.17 However, as detailed above, it is clear from the legislative history that the drafters of the NYC deliberately rejected such a solution (Õ para. 6). Therefore, these isolated court decisions applying the law of the country where the arbitral award was made are misinformed and should be disregarded. According to other national courts18 and several scholars,19 authentication and 10 certification procedures must comply with the law of the country where recognition 13 See Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 125; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1675; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-61; Onyema, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 597, 608; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 49; M. R. P. Paulsson, NYC in Action, p. 143; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 136; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 928; van den Berg, NYC, p. 251; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.315. 14 See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 13; Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 125; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1675; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-61; Onyema, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 597, 608; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 49; M. R. P. Paulsson, NYC in Action, p. 143; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 138; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 928; van den Berg, NYC, p. 251; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.316. 15 See Austria: OGH, XXXVIII Y.B. Com. Arb. 317, 319 (2013). See also Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 para. 25. 16 See Bulgaria: Sup. Ct. of Appeal, XXV Y.B. Com. Arb. 678, 680 (2000); India: Renusagar Power Co. Ltd. v. General Electric Co., XVI Y.B. Com. Arb. 553, 570 (1991); Italy: CA Milano, VII Y.B. Com. Arb. 338, 339 (1982). See also Article 45(2)(a) of the Bangladeshi Arbitration Act; Article 47(1)(a) of the Indian Arbitration and Conciliation Act; Article 9 of the Peruvian Arbitration Law. 17 Onyema, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 597, 609. 18 See e.g., France: TGI Strasbourg, II Y.B. Com. Arb. 244 (1977); Italy: Cass., XXI Y.B. Com. Arb. 607, 608 (1996); Mexico: Tribunal Superior de Justicia, IV Y.B. Com. Arb. 301 (1979); Spain: TS, VIII Y.B. Com. Arb. 408 (1983). Compare Germany: OLG Schleswig, SchiedsVZ 2003, 237, 238 = XXX Y.B. Com. Arb. 524, 526 (2005) (applying a German-Soviet bilateral treaty). 19 See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 11; Bredow, in: Geimer/Schütze (eds), Internationaler Rechtsverkehr, C I 3 b, Art. 4 sect. 2; Bühler/Cartier, in: Arroyo

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Article IV 11–12

New York Convention

or enforcement is sought. The proponents of this view argue that the aim of Article IV is for the court to easily verify the validity of the authenticated or certified document; and that this is only possible if the authentication or certification is done according to the lex fori.20 Following that logic, some authorities have suggested that documents authenticated or certified by authorities of, and according to the law of, a country other than the State in which recognition or enforcement is sought, must be submitted to a “double legalization,” requiring such documents to be re-authorized or re-certified according to the lex fori as well.21 11 This strict and mandatory application of the law of the country where recognition or enforcement is sought – leading to complications such as “double legalization” – runs counter to the spirit of Article IV, which is “to reduce the obligation for the party seeking recognition and enforcement of a foreign arbitral award as much as possible.”22 Article IV must be interpreted in accordance with the aim of the drafters of the NYC to not unduly limit possible options regarding the law governing authentication or certification.23 As detailed above, the NYC is deliberately silent on the governing law so as “to allow a greater latitude” in this regard (Õ para. 6). 12 Therefore, the better view is to adopt a practical and flexible approach that allows the applicant to comply either with the law of the country where the award was made or with the law of the recognizing or enforcing country.24 In effect, this approach is in line with the validation principle, i.e. the recognizing or enforcing court applies the law that leads to the validity of the authentication or certification of the documents (lex validitatis).25 Some authors contend that it would be too onerous for the recognizing or enforcing court to verify the validity of the authentication or certification granted by a foreign authority under a foreign law.26 However, the court may, in case of substantial uncertainty about the validity of the authentication or certification, seek clarification from the applicant,27 or from the arbitral institution overseeing the arbitration.28

(ed.), Arbitration in Switzerland, Art. 194 paras 25, 27; Krapfl, IPRax 2001, 443, 444; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-61; Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. IV para. 3; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 928; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 58 para. 2. 20 See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 11. 21 See Italy: CA Brescia, VIII Y.B. Com. Arb. 383, 384 (1983). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 11; Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 para. 27. 22 Switzerland: CJ, 18(4) ASA Bull. 786 (2000) = XXVI Y.B. Com. Arb. 863, 866 (2001). 23 See E/2704: E/AC.42/4/Rev.1, p. 14 para. 55 (Õ Annex IV 1). 24 See Gaillard/Savage, Fouchard Gaillard Goldman, para. 1675; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 50; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 136; van den Berg, NYC, p. 252. Compare section 9(2) of the Australian International Arbitration Act (granting flexibility by referring to the possibility that documents have “been otherwise authenticated or certified to the satisfaction of the court”). Compare UNCITRAL, Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656, para. 54. 25 See Austria: OGH, XXXVIII Y.B. Com. Arb. 317 excerpt para. 8 (2013); OGH, XXXIV Y.B. Com. Arb. 409, 412–413 (2009); OGH, ZfRV 1996, 199; OGH, II Y.B. Com. Arb. 232 (1977). See also Öhlberger, SchiedsVZ 2007, 77, 78; van den Berg, NYC, pp. 252 et seq. 26 See Krapfl, IPRax 2001, 443, 444. 27 Compare Kenya: Glencore Grain Ltd. v. TSS Grain Millers Ltd., XXXIV Y.B. Com. Arb. 666, 676 (2009). 28 UNCITRAL, Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656, para. 55.

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13 Article

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b) Competent Authority The law governing authentication or certification determines not only the proper 13 procedure to follow, but also the authority competent to authenticate or certify documents.29 National laws vary significantly on this point. Public authorities, such as a notary public or a diplomatic or consular officer, are typically considered competent to perform the authentication or certification of an award or arbitration agreement under Article IV(1).30 In some jurisdictions, foreign ministries are also authorized to authenticate or certify these documents.31 In many cases, members of arbitral institutions (e.g., the secretary general) may authenticate awards32 or certify copies thereof,33 if the arbitral proceedings were conducted under their auspices and the applicable arbitration rules provide for such powers. Also, in some jurisdictions, an arbitral tribunal or its chairperson is qualified to certify copies of its awards.34 Moreover, the US35 and other common law jurisdictions36 usually recognize the validity of documents authenticated or certified by private individuals or attorneys. Some civil law jurisdictions contain a similar rule.37 29

See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 11. See e.g., Albania: Gjykata e Lartë, XLIII Y.B. Com. Arb. 399, excerpt para. 12 (2018); Gjykata e Apelit Tirana, XLIII Y.B. Com. Arb. 413, excerpt para. 2 (2018); Australia: Transpac Capital Pte Ltd. v. Buntoro, [2008] NSWSC 671 = XXXIII Y.B. Com. Arb. 349 (2008); Brazil: Superior Tribunal de Justiça, XXXVIII Y.B. Com. Arb. 341 excerpt para. 3 (2013); Chile: Corte Suprema, XLI Y.B. Com. Arb. 441 excerpt para. 5 (2016); Switzerland: Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 824 (2004); US: Guang Dong Light Headgear Factory Co. v. ACI Int’l, Inc., 2005 U.S. Dist. LEXIS 8810 (D. Kan. 2005) = XXXI Y.B. Com. Arb. 1105, 1109–1110 (2006). 31 See e.g., Japan: Tokyo High Court, XX Y.B. Com. Arb. 742, 744 (1995). 32 See Austria: OGH, XXXIV Y.B. Com. Arb. 409, 413 (2009); OGH, RdW 2003, 385; OGH, IPRax 2000, 429 = ZfRV 1998, 23; OGH, ZfRV 1996, 199; Chile: Corte Suprema, XLI Y.B. Com. Arb. 441, 443 (2016); Germany: OLG München, XLI Y.B. Com. Arb. 476, 478 (2016). 33 See Austria: OGH, XXXVIII Y.B. Com. Arb. 317 excerpt para. 8 (2013) (a person “in a neutral position close to the arbitral tribunal” for instance the secretary of the arbitral institution); Germany: OLG Hamburg, IV Y.B. Com. Arb. 266 (1979) (Secretary of the London Metal Exchange); Hong Kong: Guangdong New Technology Import & Export Corp. Jiangmen Branch v. Chiu Shing trading as B.C. Property & Trading Co., XVIII Y.B. Com. Arb. 385, 387 (1993) (Chairman of Arbitration Award of the China International Economic and Trade Arbitration Commission); US: Cont’l Grain Co. v. Foremost Farms, Inc., 1998 WL 132805 (S.D.N.Y. 1998) = XXV Y.B. Com. Arb. 820, 821 (2000) (Director of the New York Regional Office of the American Arbitration Association). But see Kenya: Glencore Grain Ltd. v. TSS Grain Millers Ltd., XXXIV Y.B. Com. Arb. 666, 675 (2009). 34 See Austria: OGH, XXXVIII Y.B. Com. Arb. 317 excerpt para. 8 (2013); OGH, EvBl. 2012/9, 69; OGH, RdW 2003, 385; US: Bergesen v. Joseph Müller AG, 710 F.2d 928, 934 (2d Cir. 1983) = IX Y.B. Com. Arb. 487, 494 (1984). Compare Belgium: CA Bruxelles, 116 JT (1997) 319 = XXII Y.B. Com. Arb. 643, 657–658 (1997); Bulgaria: Sup. Ct. of Appeal, XXV Y.B. Com. Arb. 678, 680 (2000). See also Article 48 of the Venezuelan Law of Commercial Arbitration. But see India: Renusagar Power Co. Ltd. v. General Electric Co., XVI Y.B. Com. Arb. 553, 570 (1991) (holding that the arbitration tribunal was not vested with the public authority necessary to authenticate an award). 35 See US: Asphalt Trader Ltd. v. Taryn Capital Energy, L.L.C., XLIII Y.B. Com. Arb. 592, excerpt para. 11 (2018) (D. Utah 2016); Cont’l Grain Co. v. Foremost Farms, Inc., 1998 WL 132805, at *2 (S.D.N.Y. 1998) = XXV Y.B. Com. Arb. 820, 822 (2000); Overseas Cosmos, Inc. v. NR Vessel Corp., 1997 WL 757041, at *5 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1096, 1101–1102 (1998); Al Haddad Bros. Enters. v. M/S Agapi, 635 F. Supp. 205, 209 (D. Del. 1986) = XII Y.B. Com. Arb. 549, 551 (1987), aff’d, 813 F.2d 396 (3d Cir. 1987) (per curiam). 36 See Australia: ML Ubase Holdings Co. Ltd. v. Trigem Computer Inc., [2005] NSWSC 224 = XXXI Y.B. Com. Arb. 537, 546–547 (2006); Canada: Trans-Pacific Shipping Co. v. Atlantic & Orient Shipping Corp., [2006] 1 F.C. 154 = XXXI Y.B. Com. Arb. 601, 606 (2006); Hong Kong: Guangdong New Technology Import & Export Corp. Jiangmen Branch v. Chiu Shing trading as B.C. Property & Trading Co., XVIII Y.B. Com. Arb. 385, 387 (1993); UK: Anthony Lombard-Knight v. Rainstorm Pictures Inc., [2014] EWCA Civ 356 = XXXIX Y.B. Com. Arb. 512 excerpt para. 34 (2014). 37 See e.g., Article 1064(1) of the German ZPO and Article 56(2) of the Turkish Attorneyship Law. See also Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 471, 473 (2015). 30

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Article IV 14–15

New York Convention

2. Award (Article IV(1)(a)) Article IV(1)(a) provides that the applicant must supply either an authenticated original award or its certified copy. What qualifies as an “award” that is recognizable or enforceable under the NYC is discussed above (Õ Art. I paras 12 et seq.). For purposes of Article IV(1)(a), national courts have held that the applicant must submit the award in its entirety,38 which bears, in particular, the names and signatures of the arbitrators,39 though, not necessarily a dissenting opinion, if any.40 Some commentators have suggested that the award should also contain the names of the parties to the arbitration.41 However, even if the award states the parties’ names incompletely or incorrectly, it may nevertheless be recognized or enforced provided that the parties’ identities are clear.42 Also, if the applicant was not a party to the arbitration (i.e., the applicant’s name does not appear in the award), the applicant still can substantiate its entitlement to the award otherwise.43 15 For purposes of Article IV(1)(a), a recognition or enforcement order from one country does not suffice to authenticate or certify an arbitral award in another country (also Õ Art. I para. 47).44 This is also true of an enforcement judgment issued in a jurisdiction where the arbitral award is considered to be merged with the court’s enforcement judgment45 or where parties are permitted to seek enforcement of a foreign court’s judgment enforcing an award.46 It is clear from the plain wording of 14

38 See Austria: OGH, XXXII Y.B. Com. Arb. 259, 260 (2007) (dictum). See also van den Berg, NYC, p. 250. If the applicant requests recognition or enforcement of a partial award, only the partial award needs to be submitted. But see Italy: CA Bologna, XIX Y.B. Com. Arb. 700, 701 (1994) (the applicant should provide a prior partial award when requesting recognition or enforcement of a final award). 39 See Germany: OLG München, SchiedsVZ 2013, 230, 233; OLG Köln, ZZP 91 (1978), 318, 319–320 = IV Y.B. Com. Arb. 258, 259 (1979). Compare Germany: OLG Frankfurt, RIW 1989, 911 = XVI Y.B. Com. Arb. 546 (1991) (arbitrators having signed separate copies of the award). On the question whether the authentication of all arbitrators’ signatures is required or just of chairperson’s, see Kunz, 34(4) ASA Bull. 836, 842–843 (2016). 40 See Austria: OGH, Apr. 13, 2011, 3 Ob 154/10h (unreported), available at https://www.ris.bka.gv.at (last visited Apr. 16, 2019); OGH, XXXII Y.B. Com. Arb. 259, 262 (2007); India: General Electric Co. v. Renusagar Power Co. Ltd., XV Y.B. Com. Arb. 465, 482–483 (1990), aff’d without opinion: Renusagar Power Co. Ltd. v. General Electric Co., XVI Y.B. Com. Arb. 553 (1991); Switzerland: BG, 10(3) ASA Bull. 381, 386 (1992). Compare Germany: OLG München, SchiedsVZ 2010, 169, 171 = OLGR München 2009, 679 = XXXV Y.B. Com. Arb. 371 (2010) (recognition and enforcement are possible even if award was signed only by the majority of the arbitrators but included an explanation for the missing signature of the dissenting arbitrator). 41 See Otto, in Kronke/Nacimiento/Otto/Port (eds), NYC, p. 152. 42 See Australia: LKT Industrial Berhad v. Chun, [2004] NSWSC 820. Compare Nigeria: Nigerian National Petroleum Corp. v. Lutin Investments Ltd., [2006] 2 NWLR 506, also available at http://www. nigeria-law.org/LawReporting/2006/Nigerian National Petroleum Corporation V Lutin Investment Ltd & anr.htm (last visited Apr. 16, 2019). See also Crookenden, (2009) 25(2) Arb. Int’l 207, 208. 43 Concerning an assignment of an award, see Germany: OLG Celle, IPRspr. 2006, No. 215, 483, 484; Malaysia: Harris Adacom Corp. v. Perkom Sdn Bhd, XXII Y.B. Com. Arb. 753, 755 (1997). Compare Spain: TS, XXX Y.B. Com. Arb. 605, 608–609 (2005). See also Otto, in Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 198–199. 44 Compare van den Berg, NYC, p. 257; Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 para. 23 (suggesting that a certificate of enforceability, or leave for enforcement issued at the place of arbitration can replace the authentication requirement to the extent it is stamped with an apostille). 45 Parties opposing recognition or enforcement of an award have occasionally argued that in those jurisdictions the “merger” results in the “absorption” of the underlying award, and that therefore, the award cannot validly be recognized or enforced elsewhere, Õ Art. I paras 47 et seq. 46 See India: Harendra H. Mehta v. Mukesh H. Mehta, [1999] 97 Com.Cas. 265 = XXV Y.B. Com. Arb. 721, 730–731 (2000); US: Victrix S.S. Co. v. Salen Dry Cargo AB, 825 F.2d 709, 714 (2d Cir. 1987) = XV Y.B. Com. Arb. 534, 538 (1990); Waterside Ocean Navigation Co. v. Int’l Navigation Ltd., 737 F.2d

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16–18 Article

IV

Article IV(1)(a) that for the purpose of recognition or enforcement of an award under the NYC the applicant must supply the original arbitral award, not the foreign court’s enforcement judgment.47 Finally, as detailed above (Õ para. 4), one of the main goals of the NYC drafters was 16 to eliminate the “double exequatur” requirement – ensuring that there was no need to have the award declared enforceable in the country where it was made before being able to have it recognized or enforced elsewhere. National courts have almost unanimously followed this approach, holding that “a foreign award need not be executory in the state of origin.”48 For further developments on the elimination of the double exequatur requirement Õ Art. V para. 15. a) Duly Authenticated Original Award Pursuant to Article IV(1)(a), if the applicant provides the original award, it must be 17 authenticated. As detailed above, this means that the competent authority designated by the applicable law attests to the fact that the arbitrator’s or arbitrators’ signature(s) in the award are genuine (Õ para. 8). According to some commentators, an award need not be authenticated if it was made in the recognizing or enforcing country. Their rationale is that such an award should qualify as a “domestic written instrument” that therefore does not need to be authenticated.49 This rationale is not persuasive. First, according to Article I(1), if the award was made in the recognizing or enforcing country, the NYC applies only if the award is considered “non-domestic” in that country (Õ Art. I paras 114 et seq.). Thus, assuming the NYC applies because the arbitral award is “nondomestic,” it is difficult to understand why such a “non-domestic” arbitral award should be qualified as a “domestic written document” merely because it was made in the recognizing or enforcing State. Moreover, the purpose of authenticating an award is to corroborate for the court that the award is genuine; i.e., the arbitrators who signed it effectively made it. This purpose applies irrespective of whether the award was made in the recognizing or enforcing State or elsewhere. b) Duly Certified Copy of the Award Alternatively, pursuant to Article IV(1)(a), the applicant may supply a duly certified 18 copy of the award. As detailed above, certification guarantees that the copy of the award is a true copy of the original (Õ para. 8). There is some debate as to whether a certified copy of an unauthenticated award suffices for purposes of Article IV(1)(a). The wording of this provision is ambiguous because “a duly certified copy thereof” (emphasis added) could refer either to the “original award” or the “authenticated original 150, 154 (2d Cir. 1984); Switzerland: BG, XXXVI Y.B. Com. Arb. 337 (2011); BG, 25(4) ASA Bull. 798 (2007). Compare Germany: BGH, NJW 2009, 2826 = SchiedsVZ 2009, 285, 286 = IHR 2010, 178 = XXXV Y.B. Com. Arb. 374 (2010). 47 On the related but different question whether the applicant can seek enforcement of a recognition or enforcement judgment obtained in another country (so-called parallel entitlement approach) Õ Art. I paras 47 et seq. On this question more generally, see Scherer, 4(3) JIDS 587, 600–603 (2013). 48 Switzerland: BG, XXXIV Y.B. Com. Arb. 810, 813 (2009). See also UK: Rosseel N.V. v. Oriental Commercial Shipping (UK) Ltd., [1991] 2 Lloyd’s Rep 625 = XVI Y.B. Com. Arb. 615, 618 (1991); Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, [2009] EWCA Civ 755; US: Oriental Commercial & Shipping Co. v. Rosseel, N.V., 769 F. Supp. 514, 516 (S.D.N.Y. 1991) = XVII Y.B. Com. Arb. 696, 698 (1992). See also Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 9.171; Born, International Commercial Arbitration, pp. 3424–3425; Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. IV para. 7. But see Bulgaria: Sup. Ct. of Appeal, XXV Y.B. Com. Arb. 678, 680 (2000) (requiring authenticating of the award by the arbitral tribunal and a certificate that the award has entered into force); Chile: Corte Suprema, XXXIII Y.B. Com. Arb. 473 (2008) (requiring proof that the award is effective). 49 See Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-15.

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Article IV 19–20

New York Convention

award.” Some authors argue that Article IV(1)(a) aims to guarantee the authenticity of an award: certification of an unauthenticated award only ensures that the copy conforms to the original, but it does not address whether the original is genuine.50 Applying this rationale, some courts have not recognized or enforced an award when the applicant produced a certified copy of an unauthenticated award.51 However, the better approach is to accept certified copies of unauthenticated awards.52 Any other solution is contrary to the NYC’s and, in particular, Article IV’s spirit of avoiding excessive formalism. This interpretation of Article IV(1)(a) is also confirmed by the legislative history of the text, which shows that the authentication requirement was a late insertion, and thus, the certification requirement had been conceived prior to, and independently from, the need to authenticate awards.53

3. Arbitration Agreement (Article IV(1)(b)) 19

Pursuant to Article IV(1)(b), the applicant must also supply the original arbitration agreement or a duly certified copy thereof. It is not necessary to submit (as an original or duly certified copy) the entire contract containing the arbitration agreement.

a) No Need to Prove the Validity of the Arbitration Agreement 20 The applicant does not need to prove the validity of the arbitration agreement it provides.54 Rather, the applicant must only supply the original or duly certified copy of the arbitration agreement, and thereafter, the burden shifts to the opposing party: if the party resisting recognition or enforcement wishes to challenge the validity of the arbitration agreement, it needs to provide evidence to that effect.55 This follows from 50 See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 7; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 138. 51 See Austria: OGH, XLI Y.B. Com. Arb. 398, 401 (2016); OGH, XXXIV Y.B. Com. Arb. 409, 417 (2009); OGH, RdW 2003, 385. Compare Austria: OGH, XXXVIII Y.B. Com. Arb. 317, 319–320 (2013). 52 See Germany: BGH, NJW 2001, 1730 = XXIX Y.B. Com. Arb. 724, 726–727 (2004); OLG Rostock, BB 2000, Beil. 37, pp. 20, 22–23 = XXV Y.B. Com. Arb. 717, 718 (2000). 53 The text of the draft Convention proposed by the Working Group originally only referred to “the original award or a duly certified copy thereof.” See E/CONF.26/L.43, p. 1 (Õ Annex IV 1). A Belgian proposal to modify this text was adopted so that when the original award was supplied, it had to be duly authenticated. See E/CONF.26/SR.17, p. 7 (Õ Annex IV 1). See also van den Berg, NYC, p. 257. 54 See e.g., Bermuda: Sojuznefteexport v. Joc Oil Ltd., XV Y.B. Com. Arb. 384, 401 (1990); Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409 = XXXI Y.B. Com. Arb. 652, 655 (2006); Hong Kong: Astro v. Lippo, XLII Y.B. Com. Arb. 389 excerpt para. 107 (2017); Singapore: Galsworthy Ltd. of the Republic of Liberia v. Glory Wealth Shipping Pte Ltd., [2011] 1 SLR 727; Denmark Skibstekniske Konsulenter A/S I Likvidation v. Ultrapolis 3000 Investments Ltd., [2010] 3 SLR 661; Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd., XXXII Y.B. Com. Arb. 489, 490–491 (2007); UK: Anthony Lombard-Knight v. Rainstorm Pictures Inc., [2014] EWCA Civ 356 = XXXIX Y.B. Com. Arb. 512 excerpt para. 35 (2014); Yukos Oil Co. v. Dardana Ltd., XXVII Y.B. Com. Arb. 570, 577 (2002). Compare Spain: TS, XXXII Y.B. Com. Arb. 540, 545 (2007); Switzerland: CJ, 18(4) ASA Bull. 786 (2000) = XXVI Y.B. Com. Arb. 863, 865 (2001). See also Born, International Commercial Arbitration, p. 3402; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-59; van den Berg, XXVIII Y.B. Com. Arb. 562, 648 (2003); van den Berg, NYC, p. 250. Compare The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.4 Comment c (p. 548). 55 See e.g., Canada: Adamas Management & Services Inc. v. Aurado Energy Inc., XXX Y.B. Com. Arb. 479, 486 (2005); Italy: Cass., X Y.B. Com. Arb. 470, 471–472 (1985); South Africa: Phoenix Shipping Corp. v. DHL Global Forwarding SA (Pty) Ltd., XXXVII Y.B. Com. Arb. 290 excerpt para. 26 (2012); Spain: TS, XXXII Y.B. Com. Arb. 591, 595 (2007); TS, XXXII Y.B. Com. Arb. 525, 529 (2007); Switzerland: CJ, 18(4) ASA Bull. 786 (2000) = XXVI Y.B. Com. Arb. 863, 865 (2001); UK: Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, [2010] UKSC 46 para. 12 = XXXVI Y.B. Com. Arb. 357, 362 (2011); US: Imperial Ethiopian Gov’t v. Baruch-Foster Corp., 535 F.2d 334, 335–336 (5th Cir. 1976) = II Y.B. Com. Arb. 252 (1977); Jiangsu Changlong Chems., Co. v. Burlington Bio-Med. & Scientific Corp., 399 F. Supp. 2d 165, 168 (E.D.N.Y. 2005) = XXXI Y.B. Com.

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the combined reading of Article IV, which provides that the applicant needs to “supply” the arbitration agreement (in one of the forms prescribed by that article), and Article V, which requires the party resisting recognition or enforcement to “furnish […] proof” that the agreement was invalid (also Õ Art. V paras 42 et seq. and Õ Art. V paras 125–127).56 Some courts have nevertheless taken a different view and held that the applicant must 21 prove that the arbitration agreement is valid, and, in particular, meets the formal requirements of Article II(2).57 These decisions appear to have based their reasoning on Article IV(1)(b)’s requirement that the applicant supply the arbitration agreement “referred to in article II.” Such a view is contrary to Articles IV and V’s plain language, the NYC’s general pro-arbitration bias, and the NYC drafters’ intent. The reference in Article IV(1)(b) to the arbitration agreement “referred to in article II” is merely aimed at ensuring “a linguistically proper and consistent wording of the text of the Convention.”58 It was not intended to require the applicant to meet the burden of proving Article II’s form requirements. Therefore, the better view is to interpret Article IV(1)(b) as not obliging the applicant to prove that the arbitration agreement complies with the written form requirement of Article II(2); rather the burden is on the party challenging the validity of the arbitration agreement on Article II(2) grounds to provide evidence to that effect (also Õ Art. II paras 73 et seq.). b) Original of the Arbitration Agreement The production of the original arbitration agreement suffices under Article IV(1)(b): 22 authentication is not required.59 The wording of Article IV(1)(b) clearly indicates that the authentication requirement applies solely to the arbitral award (paragraph (1)(a)) and not the arbitration agreement (paragraph (1)(b)). If there are multiple original copies of the arbitration agreement, the applicant need only submit one to comply with Article IV(1)(b).60 An arbitral tribunal’s finding that an arbitration agreement exists does not satisfy 23 Article IV’s requirements. National courts have held that the applicant’s submission of an Arb. 1316, 1317 (2006); Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., XXVI Y.B. Com. Arb. 1066, 1069 (2001) (E.D. La. 2001); Agroeng’g v. Am. Custom Serv., Inc., XXII Y.B. Com. Arb. 990, 991 (1997) (E.D.N.Y. 1996). Compare Cayman Islands: The Republic of Gabon v. Swiss Oil Corp., XIV Y.B. Com. Arb. 621, 622 (1989). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 2; Born, International Commercial Arbitration, p. 3402; Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 124; Ghikas, (2006) 22(1) Arb. Int’l 53, 65; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-59; van den Berg, XXVIII Y.B. Com. Arb. 562, 648 (2003); van den Berg, NYC, p. 247. 56 Born, International Commercial Arbitration, p. 3402. 57 See Germany: BayObLG, NJW-RR 2003, 719 = XXIX Y.B. Com. Arb. 761, 764 (2004); OLG Celle, SchiedsVZ 2004, 165, 167 = IHR 2004, 93 = XXX Y.B. Com. Arb. 528, 531 (2005); LG München I, V Y.B. Com. Arb. 260, 261 (1980); Italy: CA Bari, XXI Y.B. Com. Arb. 571, 573 (1996); Norway: CA Hålogaland, XXVII Y.B. Com. Arb. 519 (2002); Spain: TS, XXXII Y.B. Com. Arb. 608, 611 (2007); TS, XXXII Y.B. Com. Arb. 582, 590 (2007); TS, XXX Y.B. Com. Arb. 617, 619 (2005); TS, XXXII Y.B. Com. Arb. 591, 593 (2007); TS, XXXII Y.B. Com. Arb. 571, 574 (2007); TS, XXX Y.B. Com. Arb. 605, 607 (2005); TS, XXXII Y.B. Com. Arb. 550, 553–554 (2007); TS, XXXI Y.B. Com. Arb. 834, 841–842 (2006); TS, XXVI Y.B. Com. Arb. 858, 859–860 (2001); TS, XXXII Y.B. Com. Arb. 540, 545 (2007); TS, XXXII Y.B. Com. Arb. 532, 535 (2007); TS, XXXII Y.B. Com. Arb. 518, 524 (2007); Switzerland: BG, XXVIII Y.B. Com. Arb. 835, 841 (2003); US: China Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274, 277 (3d Cir. 2003) = XXIX Y.B. Com. Arb. 1003, 1004 (2004); Guang Dong Light Headgear Factory Co. v. ACI Int’l, Inc., 2005 U.S. Dist. LEXIS 8810, at *14–15 (D. Kan. 2005) = XXXI Y.B. Com. Arb. 1105, 1111 (2006). 58 Van den Berg, NYC, p. 250. Compare E/CONF.26/L.48, p. 1 (Õ Annex IV 1), and E/CONF.26/L.61, p. 2 (Õ Annex IV 1). 59 See Austria: OGH, XXI Y.B. Com. Arb. 521, 522 (1996). See also Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 140. 60 See Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 140.

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arbitral award, within which it is held that the relevant arbitration agreement existed, is not prima facie evidence that an arbitration agreement exists for purposes of Article IV.61

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c) Duly Certified Copy of the Arbitration Agreement If the applicant is unable or unwilling to supply the original arbitration agreement, Article IV(1)(b) allows the applicant to provide a duly certified copy of the arbitration agreement instead. In practice, parties might prefer this option in order to be able to keep the original arbitration agreement in their file.62 Terms of reference established under the ICC Rules, which quote the arbitration agreement and are signed by the arbitral tribunal and the parties, should also be acceptable in lieu of a certified copy of the arbitration agreement.

4. Exemption to Supply Documents Required by Article IV Sometimes the applicant does not (or cannot) provide the award or arbitration agreement, or at least not in the authenticated or certified form prescribed by Article IV. The question, then, is whether the recognizing or enforcing court may exempt the applicant from any of the conditions laid down in Article IV. The answer varies among the Contracting States, and depends on how one construes Article IV. 26 Italian courts, for instance, have held that Article IV contains mandatory procedural prerequisites, in the absence of which the court must dismiss the recognition or enforcement application. The failure to provide any document required pursuant to Article IV leads ex officio to the dismissal of the application – even if the party resisting recognition or enforcement does not challenge the award’s, or the arbitration agreement’s, existence and authenticity.63 The dismissal is, however, without prejudice so that the applicant may submit a new application with the required documents at a later stage.64 Spanish courts have also sometimes verified, ex officio, the requirements in Article IV.65 27 National courts elsewhere almost unanimously construe Article IV as “a provision merely concerning evidence,”66 without setting forth mandatory procedural prerequi25

61 See Brazil: Superior Tribunal de Justiça, XXXVI Y.B. Com. Arb. 258 (2011); Germany: BayObLG, NJWRR 2003, 719, 720 = XXIX Y.B. Com. Arb. 761, 764 (2004); Spain: TS, XXX Y.B. Com. Arb. 605, 608–609 (2005). Compare US: Al Haddad Bros. Enters. v. M/S Agapi, 635 F. Supp. 205, 209–210 (D. Del. 1986) = XII Y.B. Com. Arb. 549, 551 (1987), aff’d, 813 F.2d 396 (3d Cir. 1987) (per curiam) (a previous court judgment referring the parties to arbitration satisfied Article IV(1)(b)’s requirement of an arbitration agreement). 62 But see van den Berg, NYC, p. 256. 63 See Italy: Cass., XXXIV Y.B. Com. Arb. 644, 648 (2009); Cass., XXI Y.B. Com. Arb. 607, 609 (1996); Cass., XVIII Y.B. Com. Arb. 419, 420 (1993); Cass., XVII Y.B. Com. Arb. 525, 527 (1992); CA Firenze, XXI Y.B. Com. Arb. 587, 588 (1996); CA Trieste, X Y.B. Com. Arb. 462, 463–464 (1985). 64 See e.g., Italy: Cass., XXXIV Y.B. Com. Arb. 644, 648 (2009). Compare Albania: Gjykata e Lartë, XLIII Y.B. Com. Arb. 399, excerpt paras 41–49 (2018). See also M. R. P. Paulsson, NYC in Action, p. 146. 65 See Spain: TS, XXXII Y.B. Com. Arb. 582, 587 (2007); TS, XXX Y.B. Com. Arb. 605, 607 (2005). But see Spain: Audiencia Provincial de Madrid, July 20, 2015 (unreported), available at http://www.poderju dicial.es/search/contenidos.action?action=contentpdf&reference=7514972&optimize=20151110 (last visited Apr. 16, 2019). See also Haas, IPRax 2000, 432, 433. 66 Germany: BGH, IPRax 2001, 458 = NJW 2000, 3650, 3651 = XXVI Y.B. Com. Arb. 771, 773 (2001). See also Germany: OLG München, XLI Y.B. Com. Arb. 472, 472–473 (2016); OLG Köln, XXIX Y.B. Com. Arb. 722, 723 (2004); Poland: SN, XLI Y.B. Com. Arb. 538, 540 (2016); Spain: Audiencia Provincial de Madrid, July 20, 2015 (unreported), available at http://www.poderjudicial.es/search/contenidos.action? action=contentpdf&reference=7514972&optimize=20151110 (last visited Apr. 16, 2019). See also Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 134, 142.

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sites for recognition or enforcement.67 They reason that recognition or enforcement should not be denied on a mere “technicality,”68 as this “would elevate form over substance.”69 Following this approach, courts in Austria,70 Canada,71 Germany,72 India,73 the Netherlands,74 Switzerland,75 and the US76 have held that the requirements in Article IV generally apply only if the existence or authenticity of an arbitral award or arbitration agreement is disputed. This more liberal approach is in line with the NYC’s objective to facilitate recognition and enforcement of foreign arbitral awards. Accordingly, if the resisting party does not challenge the existence or authenticity of 28 the arbitral award or the arbitration agreement, the court may exempt the applicant from authenticating or certifying the undisputed documents.77 Under those circum-

67 See Germany: OLG Schleswig, SchiedsVZ 2003, 237 = XXX Y.B. Com. Arb. 524 (2005); Hong Kong: Medison Co., Ltd. v. Victor (Far East) Ltd., 15(5) Mealey’s Int’l Arb. Rep. 12 (2000) = XXVI Y.B. Com. Arb. 774, 776 (2001). See also Bredow, in: Geimer/Schütze (eds), Internationaler Rechtsverkehr, C I 3 b, Art. 4 sect. 1; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 928. 68 India: General Electric Co. v. Renusagar Power Co., XV Y.B. Com. Arb. 465, 481 (1990). See also US: Belize Soc. Dev. Ltd. v. Gov’t of Belize, 5 F. Supp. 3d 25 (D.D.C. 2013) = XXXIX Y.B. Com. Arb. 574, 578 (2014). 69 Canada: Trans-Pacific Shipping Co. v. Atlantic & Orient Shipping Corp., [2006] 1 F.C. 154 = XXXI Y.B. Com. Arb. 601, 606 (2006). 70 See e.g., Austria: OGH, XXXIV Y.B. Com. Arb. 409, 416 (2009). 71 See e.g., Canada: Trans-Pacific Shipping Co. v. Atlantic & Orient Shipping Corp., [2006] 1 F.C. 154 = XXXI Y.B. Com. Arb. 601, 606 (2006). Compare US: OJSC Ukrnafta v. Carpatsky Petroleum Corp., XLIII Y.B. Com. Arb. 664, excerpt paras 19–24 (2018) (S.D. Tex. 2017). 72 See e.g., Germany: BGH, NJW 2001, 1730 = XXIX Y.B. Com. Arb. 724, 726 (2004); BGH, NJW-RR 2001, 1059 = IPRax 2001, 580 = XXIX Y.B. Com. Arb. 700, 710 (2004); BGH, NJW 2000, 3650, 3651 = XXVI Y.B. Com. Arb. 771, 773 (2001); BayObLG, NJW-RR 2003, 502, 503 = SchiedsVZ 2003, 142 = XXIX Y.B. Com. Arb. 754, 757 (2004); OLG Frankfurt, SchiedsVZ 2014, 206, 207 = XLI Y.B. Com. Arb. 480 excerpt para. 3 (2016); OLG München, SchiedsVZ 2013, 179, 180; OLG Schleswig, IPRspr. 2008, No. 200, 640, 641 = XXXIV Y.B. Com. Arb. 516, 518 (2009); OLG Schleswig, SchiedsVZ 2010, 276; OLG Hamm, SchiedsVZ 2006, 106, 108 = XXXI Y.B. Com. Arb. 685, 690 (2006); OLG Schleswig, SchiedsVZ 2003, 237 = XXX Y.B. Com. Arb. 524, 526 (2005). 73 See e.g., India: General Electric Co. v. Renusagar Power Co., XV Y.B. Com. Arb. 465, 481 (1990). 74 See e.g., Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXIV Y.B. Com. Arb. 715, 718 (2009). 75 See e.g., Switzerland: BG, XXXVII Y.B. Com. Arb. 300, 303 (2012); BG, XXXVI Y.B. Com. Arb. 340 (2011); BG, XXII Y.B. Com. Arb. 789, 792–793 (1997); CJ, 18(4) ASA Bull. 786 (2000) = XXVI Y.B. Com. Arb. 863, 865–866 (2001); HG Zürich, 8(2) ASA Bull. 183 (1990) = XVII Y.B. Com. Arb. 584, 586 (1992). 76 See e.g., US: Vento v. Crithfield, 2015 U.S. Dist. LEXIS 132576 (D.V.I. 2015) = XLI Y.B. Com. Arb. 620, 624 (2016); Belize Soc. Dev. Ltd. v. Gov’t of Belize, 5 F. Supp. 3d 25 (D.D.C. 2013) = XXXIX Y.B. Com. Arb. 574, 578 (2014); Overseas Cosmos, Inc. v. NR Vessel Corp., 1997 WL 757041, at *5 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1096, 1102 (1998); Hewlett-Packard, Inc. v. Berg, 867 F. Supp. 1126, 1130 n. 11 (D. Mass. 1994). See also The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.4 Comment a (pp. 546–547). 77 See Austria: OGH, XXXVIII Y.B. Com. Arb. 317 excerpt para. 26 (2013); Germany: OLG Hamburg, XLI Y.B. Com. Arb. 468, 470 (2016); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 471, 473 (2015); Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 468, 470 (2015); Poland: SN, XLI Y.B. Com. Arb. 538, 540 (2016); Switzerland: BG, XLI Y.B. Com. Arb. 573 excerpt para. 4 (2016); US: Overseas Cosmos, Inc. v. NR Vessel Corp., 1997 WL 757041, at *5 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1096, 1102 (1998); Hewlett-Packard, Inc. v. Berg, 867 F. Supp. 1126, 1130 n. 11 (D. Mass. 1994); UK: Anthony Lombard-Knight v. Rainstorm Pictures Inc., [2014] EWCA Civ 356 = XXXIX Y.B. Com. Arb. 512 excerpt para. 46 (2014). See also The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.4 Comment a (pp. 546–547). See also Lew/Mistelis/ Kröll, Comparative Arbitration, para. 26-62; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 139; van den Berg, NYC, p. 249.

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stances, courts have held that a photocopy or a fax of the arbitration agreement78 or a photocopy of a duly certified copy of the award79 suffices. 29 One might even go further and consider whether the applicant could be exempted from supplying the arbitration agreement altogether, provided that its existence, wording and authenticity are undisputed. As detailed below, some national statutes do not require the production of the arbitration agreement as part of a recognition or enforcement action, and these more lenient national statutes trump Article IV by virtue of the “more favorable law” rule in Article VII (Õ para. 37). Where more favorable national provisions do not come into play, there seem to be few cases addressing this issue under Article IV. However, even in the absence of more favorable national statutes, there is no principled basis for courts not to extend the same practical and liberal approach to exempt applicants from the requirement of providing the arbitration agreement where there are no disputed issues relating to it. 30 If it is thus arguable that the court may exempt the applicant from supplying the arbitration agreement altogether in certain circumstances, the same does not hold true for the production of the arbitral award. The applicant cannot be exempted from submitting the award, as it constitutes the minimum requirement for recognition or enforcement under the NYC. If the court is not in possession of the award, it is not in a position to order recognition or enforcement and, in particular, to examine, as it must, ex officio, Article V(2)’s grounds for non-recognition.80 31 Finally, some authors have argued that courts may exempt the applicant from complying with the authentication/certification requirements listed in Article IV(1) on grounds of equity – even if the other party challenges the award’s, or the arbitration agreement’s, existence and authenticity.81 Where it would be impossible or unreasonable for the applicant to obtain the authentication or certification mentioned in Article IV(1), the court may, in its discretion, excuse the applicant from doing so.82 However, this discretionary exemption has no clear basis in Article IV, it should be applied with restraint and only in exceptional cases.

78 See Nigeria: Sundersons Ltd. v. Cruiser Shipping Pte Ltd., XLI Y.B. Com. Arb. 535, 537 (2016); Poland: SN, XLI Y.B. Com. Arb. 538, 540 (2016); Switzerland: BG, XXXVII Y.B. Com. Arb. 300, 303 (2012); BG, XXII Y.B. Com. Arb. 789, 793 (1997); CJ, 15(4) ASA Bull. 667 (1997) = XXIII Y.B. Com. Arb. 764, 768–769 (1998); HG Zürich, XVII Y.B. Com. Arb. 584, 586 (1992) = 8(2) ASA Bull. 183 (1990); UK: Anthony Lombard-Knight v. Rainstorm Pictures Inc., [2014] EWCA Civ 356 = XXXIX Y.B. Com. Arb. 512 excerpt para. 46 (2014); US: Mangistaumunaigaz Oil Prod. Ass’n v. United World Trade, Inc., XXIVa Y.B. Com. Arb. 806, 811 (1999) (D. Colo. 1997). 79 See India: Renusagar Power Co. Ltd. v. General Electric Co., XVI Y.B. Com. Arb. 553, 570 (1991). 80 See Germany: OLG Köln, ZZP 91 (1978), 318 = IV Y.B. Com. Arb. 258 (1979) (refusing enforcement because the applicant provided an incomplete copy of the award in which the names of the arbitrators were missing). See also van den Berg, NYC, p. 249. 81 See van den Berg, NYC, p. 249. Compare Germany: BGH, NJW 2000, 3650 = XXVI Y.B. Com. Arb. 771, 773 (2001) (exempting an applicant from supplying the original arbitration agreement or a duly certified copy thereof in a case where “the arbitration was not based on a (private law) arbitration agreement between the parties, but rather on the Treaty.”). 82 For instance, in cases where the arbitration agreement is not contained in one single document, but is created by an exchange of documents, the applicant often faces the difficulty of having to produce originals of the letters, telegrams, or other types of medium used in the exchange, in particular those created and used by the other party. In these cases, the applicant should be exempted from providing the entire arbitration agreement and should have to submit only the correspondence (or copies thereof) it has access to. See Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 6; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 142. Compare Canada: Proctor v. Schellenberg, 2002 MBCA 170 = [2003] 2 WWR 621, 628 = XXVIII Y.B. Com. Arb. 745, 751 (2003); Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409 = XXXI Y.B. Com. Arb. 652 (2006).

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5. Timeframe to Supply Documents Required by Article IV If no exemption applies, the applicant must supply the documents mentioned in 32 Article IV “at the time of the application.” It is generally accepted that the procedural law of the recognizing or enforcing court (lex fori) determines the exact meaning and scope of this timeframe.83 As discussed above, national courts have varied in their interpretation of Article IV’s legal characterization. In some jurisdictions, Article IV has been interpreted as a set of mandatory procedural requirements for recognition or enforcement, while in others it has been interpreted as a set of evidentiary rules (Õ paras 26–27). Courts following the former approach have held that the applicant must produce the documents listed in Article IV at the moment when the action is commenced and that the failure to supply the required documents at that time will invariably lead to the action being dismissed.84 Courts following the latter approach have held that the failure to produce the documents listed in Article IV together with the application is a curable defect; consequently, they have allowed applicants to supply additional documents at a later stage.85 The latter, more flexible and pragmatic approach is consistent with the spirit of the NYC and the purpose of Article IV.

V. Duly Certified Translation (Article IV(2)) 1. Language and Scope of the Translation Article IV(2) provides that the applicant must produce a duly certified translation of 33 the award and the arbitration agreement if they are not in the official language of the recognizing or enforcing country. Translations into any other language – such as the language of the party resisting recognition or enforcement, or the language of the arbitral proceedings – are not required.86 The translations must be supplied in addition 83

See Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 134. See e.g., Italy: Cass., XXXIV Y.B. Com. Arb. 644, 648 (2009); Cass., XXIVa Y.B. Com. Arb. 698, 698–699 (1999); Cass., XIX Y.B. Com. Arb. 692, 693 (1994); CA Bologna, XIX Y.B. Com. Arb. 700, 701 (1994); CA Bari, XXI Y.B. Com. Arb. 585, 586 (1996); CA Trieste, X Y.B. Com. Arb. 462, 463–464 (1985). If a request for recognition or enforcement is dismissed merely because the documents listed in Article IV were not provided in due course, such a dismissal does not engage the res judicata rule and the applicant may file a new request for recognition or enforcement. See Italy: Cass., XXXIV Y.B. Com. Arb. 644, 648 (2009); Cass., XXVIII Y.B. Com. Arb. 810, 811 (2003). But see Italy: Cass., XVIII Y.B. Com. Arb. 419, 420 (1993). 85 See e.g., Albania: Gjykata e Lartë, XLIII Y.B. Com. Arb. 399, excerpt paras 7–8 (2018); Austria: OGH, XLI Y.B. Com. Arb. 398, 401 (2016); OGH, XXXII Y.B. Com. Arb. 259, 262 (2007); OGH, ZfRV 1992, 234; OGH, I Y.B. Com. Arb. 182 (1976); Brazil: Superior Tribunal de Justiça, XXXVIII Y.B. Com. Arb. 330, 332 (2013); Greece: CA Athens, XXXVII Y.B. Com. Arb. 234 excerpt para. 12 (2012); Hong Kong: Medison Co., Ltd. v. Victor (Far East) Ltd., XXVI Y.B. Com. Arb. 774, 776 (2001) = 15(5) Mealey’s Int’l Arb. Rep. 12 (2000); India: Renusagar Power Co. Ltd. v. General Electric Co., XVI Y.B. Com. Arb. 553, 571 (1991); South Africa: Balkan Energy Ltd. v. The Government of the Republic of Ghana, XLIII Y.B. Com. Arb. 552, excerpt para. 8 (2018); Spain: Tribunal Superior de Justicia de Catalunya, XLI Y.B. Com. Arb. 553 excerpt para. 6 (2016); Tribunal Superior de Justicia de Catalunya, XXXVII Y.B. Com. Arb. 297, 298 (2012); TS, XXXII Y.B. Com. Arb. 582, 586 (2007). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 4; Born, International Commercial Arbitration, p. 3406; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-60; Onyema, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 597, 608; van den Berg, NYC, p. 249. See also UNCITRAL, Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656, para. 59. 86 See Austria: OGH, XXXII Y.B. Com. Arb. 259, 261–262 (2007) (language chosen in the arbitration irrelevant); Greece: CA Athens, I Y.B. Com. Arb. 186 (1976) (language of the respondent irrelevant). 84

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to, and not in lieu of, the documents required under Article IV(1),87 and they must, in principle, translate the award and the arbitration agreement in their entirety,88 although courts may deem partial translations as sufficient.89

2. Competent Authority 34

As is clear from the wording of Article IV(2), the translation can be executed either by an official or sworn translator,90 or by diplomatic or consular agents.91 A translation made by any other translator is insufficient,92 unless it is certified by one of the authorities enumerated in Article IV(2).93 In such a case, the certifying authority must review the translation for its accuracy.94 In the interest of flexibility, the NYC does not specify the national origin of the competent authorities.95 Accordingly, national courts have generally accepted certification by sworn translators and diplomatic/ consular agents from either the place of arbitration96 or the place of recognition or enforcement.97 The applicant is free to choose.98

87

See Switzerland: BG, XXII Y.B. Com. Arb. 789, 792 (1997). See Austria: OGH, XXXII Y.B. Com. Arb. 259, 260, 262 (2007); Switzerland: Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 822 (2004). 89 See Switzerland: CJ, 18(4) ASA Bull. 786 (2000) = XXVI Y.B. Com. Arb. 863, 867–868 (2001); BG, XLI Y.B. Com. Arb. 573, 575 (2016); BG, XXXVII Y.B. Com. Arb. 300, 305–308 (2012). See also Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 143. More generally, on the courts’ flexible approach regarding translations, Õ para. 35. 90 See e.g., Germany: OLG Dresden, XXX Y.B. Com. Arb. 555, 556 (2005); Spain: TS, XI Y.B. Com. Arb. 523 (1986). 91 See e.g., Germany: BGH, SchiedsVZ 2003, 281 = XXIX Y.B. Com. Arb. 767, 769 (2004) (Honorary Consul). 92 See Argentina: Cámara Federal de Apelaciones de Mar del Plata, XXXV Y.B. Com. Arb. 318 paras 17–19 (2010); Austria: OGH, ZfRV 1992, 234. 93 See Korea: Sup. Ct., XXI Y.B. Com. Arb. 612, 613 (1996) (the translation does not have to be “personally done” by either an official or sworn translator or by a diplomatic or consular agent). See Onyema, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 597, 610. Compare Switzerland: OG Zug, SJZ 2000, 298 = XXIX Y.B. Com. Arb. 805, 806 (2004) (allowing for a translation to be certified by a notary public). 94 See Switzerland: OG Zug, SJZ 2000, 298 = XXIX Y.B. Com. Arb. 805, 806 (2004). See also Bühler/ Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 para. 37. But see Korea: Sup. Ct., XXI Y.B. Com. Arb. 612, 613 (1996) (“the meaning of the term ‘certified’ [does not] encompass the certification of the accuracy of the translations.”). 95 The drafters of the NYC thought that this was “too cumbersome” and it could give rise to “unnecessary difficulties.” See E/2704: E/AC.42/4/Rev.1, para. 56 (Õ Annex IV 1). See also Gaillard/ Savage, Fouchard Gaillard Goldman, para. 1675. But see Liechtenstein: OGH, XXXIX Y.B. Com. Arb. 434, 435 (2014) (requiring that the translation is from, or at least certified by, an official Liechtenstein translator). Compare Article 4(2) of the Geneva Convention of 1927 (Õ Annex V 2). 96 See Germany: OLG München, XLI Y.B. Com. Arb. 476, 478 (2016); Switzerland: OG Zug, SJZ 2000, 298 = XXIX Y.B. Com. Arb. 805, 806 (2004). See Otto, in Kronke/Nacimiento/Otto/Port (eds), NYC, p. 196. 97 See Switzerland: CJ, SJ 1977, 505 = IV Y.B. Com. Arb. 311, 312 (1979); OG Basel-Land, BJM 1973, 193 = IV Y.B. Com. Arb. 309 (1979) (certification by the consul of the state of enforcement acting in the state where the award was made). 98 See Austria: OGH, II Y.B. Com. Arb. 232 (1977); Switzerland: OG Zürich, XXIX Y.B. Com. Arb. 819, 823 (2004); Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 824 (2004). See also Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. IV para. 4; Onyema, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 597, 610–611; van den Berg, NYC, p. 260. But see Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 17; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 144; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 58 para. 2 (all of the opinion that the certification had to be made by a diplomatic/consular agent or an official/sworn translator of the country where enforcement is sought, and that a certification made by an authority from a different country would require legalization). Compare Austria: OGH, ZfRV 1996, 199 (“advisable” to seek a translation from an authority in the place where recognition and enforcement of the award is sought). 88

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3. Flexible Approach Regarding Supply of Certified Translation Whereas Article IV’s wording (“shall produce”) seems to suggest that a translation is 35 mandatory, as mentioned above (Õ para. 7), national courts have generally exercised great discretion in applying this criterion. Some courts have held that a translation is not required in cases where the court is familiar with the foreign language, and neither the court nor the opposing party requests a translation,99 positing that in such circumstances the added expense of a translation seems “unreasonably high.”100 Also, it is generally understood that the parties may agree that an unofficial (as opposed to a certified) translation will suffice.101 Finally, national courts have sometimes allowed parties to supplement their initial request for recognition or enforcement if it did not contain a complete or duly certified translation.102 These solutions are consistent with the view, discussed above (Õ para. 27), that Article IV contains only evidentiary rules and not mandatory procedural requirements.

VI. Deviating National Provisions The Contracting States’ national arbitration legislation varies regarding the formal 36 requirements for the recognition or enforcement of foreign awards.103 Most States have adopted identical or broadly similar provisions to those in Article IV.104 Some States have adopted more extensive requirements than those in Article IV – usually requiring 99 See Netherlands: Voorzieningenrechter, Rechtbank Rotterdam, XLI Y.B. Com. Arb. 522, 524–525 (2016); Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 471, 473 (2015); Voorzieningenrechter, Rechtbank Amsterdam, XXXVII Y.B. Com. Arb. 277, 279–280 (2012); Voorzieningenrechter, Rechtbank Amsterdam, XXXVII Y.B. Com. Arb. 282, 284 (2012); Voorzieningenrechter, Rechtbank Amsterdam, X Y.B. Com. Arb. 487, 488 (1985); Arrondissementrechtbank Zutphen, XXIVa Y.B. Com. Arb. 724, 725 (1999); Norway: Vardø Enforcement Court, XXVIII Y.B. Com. Arb. 821, 824 (2003); Switzerland: CJ, 18(4) ASA Bull. 786 (2000) = XXVI Y.B. Com. Arb. 863, 866 (2001); Switzerland: BG, XXXVII Y.B. Com. Arb. 300, 305–308 (2012). Compare Germany: OLG Köln, XL Y.B. Com. Arb. 425, 426 (2015); OLG Hamburg, XXXIV Y.B. Com. Arb. 494, 496 (2009); Switzerland; BG, XLI Y.B. Com. Arb. 573, 575 (2016). But see Austria: OGH, XXXII Y.B. Com. Arb. 259, 261–262 (2007); Netherlands: Voorzieningenrechter, Rechtbank Den Haag, V Y.B. Com. Arb. 269, 270 (1980). 100 Norway: Vardø Enforcement Court, XXVIII Y.B. Com. Arb. 821, 824 (2003). See also Bühler/ Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 para. 35; M. R. P. Paulsson, NYC in Action, p. 151; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 143; van den Berg, NYC, p. 259. 101 See e.g., Switzerland: BG, XXXVII Y.B. Com. Arb. 300, 305–308 (2012). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. IV para. 17; Bredow, in: Geimer/Schütze (eds), Internationaler Rechtsverkehr, C I 3 b, Art. 4 sect. 4; Kunz, 34(4) ASA Bull. 836, 847 (2016). 102 See Austria: OGH, XXXII Y.B. Com. Arb. 259, 262 (2007); China: Supreme People’s Court, XXXI Y.B. Com. Arb. 624, 627 (2006); Liechtenstein: OGH, XXXIX Y.B. Com. Arb. 434, 435–436 (2014); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 460 excerpt paras 22–23 (2015). See also Knoepfler/Schweizer, Arbitrage international, p. 479. 103 For a very comprehensive analysis of formal requirements for recognition and enforcement of foreign awards in the various Contracting States of the NYC, see ICC, Guide to National Procedures, sect. E: Evidence required. 104 See e.g., Article 1720(4) of the Belgian Judicial Code; Article 37 of the Brazilian Arbitration Law; Article 35(2) of the Canadian Commercial Arbitration Act; Article 47 of the Croatian Law on Arbitration; section 38(2) of the Danish Arbitration Act; section 54 of the Finnish Arbitration Act; Article 1515 of the French CPC; Article 46(2) of the Guatemalan Arbitration Act; Article 839 of the Italian Code of Civil Procedure; Article 37(2) of the Korean Arbitration Act; section 88, division 2, Part 10, ch. 609 of the Hong Kong Arbitration Ordinance; Article 30, ch. 143A of the Singaporean International Arbitration Act; Article 814 of the Lebanese Code of Civil Procedure; sections 38(2), 38(3) of the Malaysian Arbitration Act; Article 1461 of the Mexican Commercial Code; Article 1076(1) of the Dutch Arbitration Act; Article 35(2) of the New Zealand Arbitration Act; Article 1213 of the Polish Code of Civil Procedure; Article 65 of the Serbian Arbitration Act; Article 194 of the Swiss International Private Law Act; section 42 of the Thai Arbitration Act; Article 80(2) of the Tunisian Arbitration Code. Compare section 45 of the Norwegian Arbitration Act.

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evidence that the award is final or res judicata105 or that the original arbitration agreement is authenticated.106 However, with regard to awards falling within the scope of the NYC, Article IV supersedes any stricter national evidentiary provisions.107 Yet, a limited number of Contracting States have imposed those additional conditions even on Convention awards, thus violating their international obligations under the NYC.108 37 Finally, some countries have implemented more liberal legislation regarding evidentiary standards for the recognition or enforcement of Convention awards. For instance, the national arbitral laws of Austria,109 Colombia,110 Germany,111 Japan,112 Sweden,113 and Venezuela114 do not require the arbitration agreement to be supplied in all cases. Pursuant to the “more favorable rights” provision of Article VII(1) (Õ Art. VII paras 49 et seq.), in the countries where more liberal conditions are available to applicants, such conditions take precedence over Article IV.115 105 See e.g., sections 38(1), 38(2) of the English Arbitration Act of 1950 (which continues to apply regarding enforcement of non-NYC awards according to section 99 of the English Arbitration Act 1996); Article 171, 175 of the Romanian Law No. 105/1992 on the Regulation of the Private International Law Relationship; Article 61 of the Turkish International Private and Procedural Law (which applies to enforcement of non-NYC awards); Articles 539, 543 of the Uruguayan Code of General Procedure. 106 See Article 42 of the Panamanian Law on Arbitration and Dispute Resolution. 107 See Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 200, 202 (2012); Mexico: Tribunal Superior de Justicia, IV Y.B. Com. Arb. 302, 304 (1979); Tribunal Superior de Justicia, IV Y.B. Com. Arb. 301 (1979). See also van den Berg, NYC, p. 248. 108 See Article 67 of the Indonesian Arbitration and Dispute Resolution Act. See also section 47(1)(c) of the Indian Arbitration and Conciliation Act (requiring “such evidence as may be necessary to prove that the award is a foreign award”). Compare India: Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain (India), Nov. 27, 2008, 541/1998 (unreported), available at https://indiankanoon.org/doc/ 106881467 (last visited Apr. 16, 2019). See also Bulgaria: Sup. Ct. of Appeal, XXV Y.B. Com. Arb. 678, 680 (2000) (requiring authenticating of the award by the arbitral tribunal and a certificate stating that the award had entered into force); Qatar: Court of First Instance, XLI Y.B. Com. Arb. 545 excerpt para. 8 (2016) (requiring evidence of the award’s finality). 109 See section 614(2) of the Austrian Code of Civil Procedure. 110 See Article 111(2) of the Colombian Arbitration Act. 111 See section 1064(1) of the German ZPO. 112 See Article 46(2) of the Japanese Arbitration Act. 113 See section 56 of the Swedish Arbitration Act. 114 See Article 48 of the Venezuelan Law of Commercial Arbitration. 115 See e.g., Colombia: Corte Suprema de Justicia, XLII Y.B. Com. Arb. 370 excerpt paras 24–27 (2017); Germany: BGH, SchiedsVZ 2003, 281 = XXIX Y.B. Com. Arb. 767, 769 (2004); BayObLG, XXX Y.B. Com. Arb. 568, 571 (2005); BayObLG, SchiedsVZ 2004, 316 = XXX Y.B. Com. Arb. 563, 566 (2005); BayObLG, RIW 2001, 140 = XXVII Y.B. Com. Arb. 451 (2002); OLG Köln, XLI Y.B. Com. Arb. 484, 485 (2016); OLG Köln, XL Y.B. Com. Arb. 425, 426 (2015); OLG Frankfurt, SchiedsVZ 2014, 206, 207 = XLI Y.B. Com. Arb. 480, 482 (2016); OLG Jena, XL Y.B. Com. Arb. 422, 423 (2015); OLG München, XLI Y.B. Com. Arb. 476, 478 (2016); OLG München, XXXIX Y.B. Com. Arb. 394, 396 (2014); OLG München, XXXIX Y.B. Com. Arb. 392, 393 (2014); KG, SchiedsVZ 2013, 112 = XXXVIII Y.B. Com. Arb. 384 excerpt para. 18 (2013); OLG München, SchiedsVZ 2012, 156–159 = IPRspr. 2012, No. 291, 670–673 = XXXIX Y.B. Com. Arb. 389, 390 (2014); OLG Hamburg, XLI Y.B. Com. Arb. 468, 470 (2016); OLG München, SchiedsVZ 2012, 43, 45 = XXXVII Y.B. Com. Arb. 231, 232 (2012); OLG Karlsruhe, SchiedsVZ 2008, 47, 48 = XXXIII Y.B. Com. Arb. 541, 542–543 (2008); OLG Celle, IPRspr. 2007, No. 218, 614, 615 = XXXIII Y.B. Com. Arb. 524, 528 (2008); OLG München, OLGR München 2007, 684 = XXXIII Y.B. Com. Arb. 517, 521 (2008); OLG Celle, XXXII Y.B. Com. Arb. 372, 376 (2007); OLG München, IPRspr. 2006, No. 206, 467, 468 = OLGR München 2006, 404 = XXXIV Y.B. Com. Arb. 499, 502 (2009); OLG München, SchiedsVZ 2006, 111, 112 = XXXI Y.B. Com. Arb. 722, 725 (2006); OLG Dresden, XXXI Y.B. Com. Arb. 718, 719 (2006); OLG Hamm, SchiedsVZ 2006, 106, 108 = XXXI Y.B. Com. Arb. 685, 689–690 (2006); OLG Köln, SchiedsVZ 2005, 163 = XXX Y.B. Com. Arb. 557, 559 (2005); OLG Brandenburg, IPRspr. 2002, No. 221, 559, 560 = IPRax 2003, 349 = XXIX Y.B. Com. Arb. 747, 749–750 (2004); OLG Rostock, BB 2000, Beil. 37, pp. 20, 22–23 = XXV Y.B. Com. Arb. 717, 718 (2000). Compare Brazil: Superior Tribunal de Justiça, XLI Y.B. Com. Arb. 415, 417 (2016); Superior Tribunal de Justiça, XXXIX Y.B. Com. Arb. 372, 373 (2014) (where authentication requirement is dispensed with on the basis of an international agreement between France and Brazil, without making reference to Article VII). See also Krapfl, IPRax 2001, 443, 445.

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Article V [Grounds for Refusal of Recognition and Enforcement of Arbitral Awards] 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or b) The recognition or enforcement of the award would be contrary to the public policy of that country. Specific Bibliography (Article V (General)): Alvarez, The Implementation of the New York Convention in Canada, (2008) 25 J. Int. Arb. 669; Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide, 2nd ed., Kluwer Law International 2018; Baizeau, Waiving the Right to Challenge an Arbitral Award Rendered in Switzerland: Caveats and Drafting Considerations for Foreign Parties, 8(3) Int. A.L.R. 69 (2005); Bertheau, Das New Yorker Abkommen vom 10. Juni 1958 über die Anerkennung und Vollstreckung ausländischer Schiedssprüche, P. G. Keller 1965; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany – The Model Law in Practice, 2nd ed., Kluwer Law International 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Borris/Schmidt, Vollstreckbarkeit von Schiedssprüchen und materiell-rechtliche Einwendungen des Schiedsbeklagten, SchiedsVZ 2004, 273; Borris/Schmidt, Nochmals: Vollstreckbarerklärung von Schiedssprüchen und materiell-rechtliche Einwendungen des Schiedsbeklagten, SchiedsVZ 2005, 254; Bryant, Case Note: OLG München, May 19, 2015, 34 Sch 24/14, SchiedsVZ 2016, 120; Bülow, Zwischenstaatliche Fragen der Schiedsgerichtsbarkeit nach dem UN-Übereinkommen 1958, JBl 1961, 307; Contini, International Commercial Arbitration: The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 8 Am. J. Comp. L. 283 (1959); Dasser, International Arbitration and Setting

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Aside Proceedings in Switzerland: A Statistical Analysis, 25(3) ASA Bull. 444 (2007); Dasser, International Arbitration and Setting Aside Proceedings in Switzerland – An Updated Statistical Analysis, 28(1) ASA Bull. 82 (2010); Dasser/Roth, Challenges of Swiss Arbitral Awards – Selected Statistical Data as of 2013, 32(3) ASA Bull. 460 (2014); Dasser/Wójtowicz, Challenges of Swiss Arbitral Awards – Updated and Extended Statistical Data as of 2015, 34(2) ASA Bull. 280 (2016); Dasser/Wójtowicz, Challenges of Swiss Arbitral Awards – Updated Statistical Data as of 2017, 36(2) ASA Bull. 276 (2018); Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Garner (ed.), Black’s Law Dictionary, 8th ed., West Group 2004; Garnett/Pryles, Recognition and Enforcement of Foreign Awards under the New York Convention in Australia and New Zealand, (2008) 25 J. Int. Arb. 899; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Hayford, Reining in the Manifest Disregard of the Law Standard: The Key to Restoring Order to the Law of Vacatur, 1998(2) J. Disp. Res. 117; Heidkamp, Die Anerkennungserfordernisse im Verfahren zur Anerkennung und Vollstreckung ausländischer Schiedssprüche, IHR 2004, 17; Heilbron, Jurisdictional Issues Relating to Challenges and the New York Convention – Fictions, Failures and Finality – a Choice of Remedies, (2015)1 Tur. Com. L. Rev. 25; Hennecke/Machulskaya, Enforcement of Foreign Arbitral Awards in Russia – The More Things Change …?, 13(5) TDM (2015); ICCA, ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges, 2011, available at http://www. arbitration-icca.org/publications/NYC_Guide.html (last visited Apr. 29, 2019); International Commercial Disputes Committee of the Association of the Bar of the City of New York, Lack of Jurisdiction and Forum Non Conveniens as Defenses to the Enforcement of Foreign Arbitral Awards, 15 Am. J. Int’l Arb. 407 (2004), also available at http://www.nycbar.org/pdf/report/ForeignArbitral.pdf (last visited Apr. 29, 2019); King, Procedural Perils: China’s Supreme People’s Court on the Enforcement of Awards in International Arbitration, 17(1) Asian Int’l Arb. J. 1 (2015); Kraayvanger, Vollstreckbarerklärung eines ausländischen Schiedsspruchs: Einwendungen des Antragsgegners und Gegeneinwand der unzulässigen Rechtsausübung wegen widersprüchlichen Verhaltens, SchiedsVZ 2008, 301; Kreindler/Schäfer/Wolff, Schiedsgerichtsbarkeit, Kompendium für die Praxis, Recht und Wirtschaft 2006; Kröll, Die Schiedsvereinbarung im Verfahren zur Anerkennung und Vollstreckbarerklärung ausländischer Schiedssprüche, ZZP 117 (2004), 453; Kröll, Die Präklusion von Versagungsgründen bei der Vollstreckbarerklärung ausländischer Schiedssprüche, IPRax 2007, 430; Kröll, Treu und Glauben bei der Vollstreckbarerklärung ausländischer Schiedssprüche, IPRax 2009, 145; Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Kunz, Enforcement of Arbitral Awards under the New York Convention in Switzerland – An overview of the current practice and case law of the Swiss Supreme Court, 34(4) ASA Bull. 836 (2016); Lachmann, Handbuch für die Schiedsgerichtspraxis, 3rd ed., Otto Schmidt 2008; Mallmann, Die Bedeutung der Schiedsvereinbarung im Verfahren zur Anerkennung und Vollstreckbarerklärung ausländischer Schiedssprüche, SchiedsVZ 2004, 152; Maurer, The Public Policy Exception under the New York Convention: History, Interpretation and Application, revised ed., Juris 2013; MünchKommZPO: see Rauscher/Wax/Wenzel; Musielak/Voit (eds), Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz, 16th ed., Franz Vahlen 2019; Nazzini, Remedies at the Seat and Enforcement of International Arbitral Awards: Res Iudicata, Issue Estoppel and Abuse of Process in English Law, 7(1) Contemp. Asia Arb. J. 139 (2014); Paulsson, Enforcing Arbitral Awards Notwithstanding a Local Standard Annulment (LSA), 9(1) ICC Bull. 14 (1998); Pryles, Interlocutory Orders and Convention Awards: The Case of Resort Condominiums v. Bolwell, (1994) 10 Arb. Int’l 385; Rauscher/Wax/Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017; Robert, La Convention de New York du 10 juin 1958 pour la reconnaissance et l’exécution des sentences arbitrales étrangères, Rev. arb. 1958, 70; Sanders, The New York Convention, in: Sanders (ed.), International Commercial Arbitration, Vol. II, Martinus Njihoff 1960, p. 293; Sanders, The History of the New York Convention, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 11; Santomauro, Eine Analyse der Kehrtwende in der Präklusionsrechtsprechung des BGH – Öl für ein erloschenes Feuer?, SchiedsVZ 2016, 178; Santoro, Forum Non Conveniens: A Valid Defense under the New York Convention, 21(4) ASA Bull. 713 (2003); Scherer, Effects of International Judgments Relating to Awards, 43 Pepp. L. Rev. 637 (2016); Schwab/Walter, Schiedsgerichtsbarkeit, 7th ed., C. H. Beck, Helbing & Lichtenhahn 2005; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; Tao, Arbitration Law and Practice in China, 3rd ed., Kluwer Law International 2012; van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, Comment on Carbomin v. Ekton, XII Y.B. Com. Arb. 450 (1987); van den Berg, Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards: Explanatory Note, in: van den Berg (ed.), 50 Years of the New York Convention, ICCA Congress Series No. 14, Kluwer Law International 2009, p. 649; Varela, Arbitration and the Doctrine of Manifest Disregard, 49 Disp. Res. J. 64 (1994); Wolff, Anerkennung und Vollstreckung eines im

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Ursprungsstaat aufgehobenen Schiedsspruchs, LMK 2008, 265473; Wolff, BGH: Keine Präklusion des Einwands einer fehlenden wirksamen Schiedsvereinbarung durch unterlassenes Einlegen eines fristgebundenen Rechtsbehelfs im Ursprungsland des Schiedsspruchs, LMK 2011, 318374. Specific Bibliography (Article V(1)(a)): See Article II(3). Specific Bibliography (Article V(1)(b)): Aden, Rechtliches Gehör in Schiedsverfahren, NJW 1993, 1964; Alyoshin, Enforcement of Foreign Arbitral Awards in the Ukraine: To Be or Not to Be, (2005) 22(1) J. Int. Arb. 65; Basler Kommentar: see Honsell/Vogt/Schnyder/Berti; Bertheau, Das New Yorker Abkommen vom 10. Juni 1958 über die Anerkennung und Vollstreckung ausländischer Schiedssprüche, P. G. Keller 1965; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany – The Model Law in Practice, 2nd ed., Kluwer Law International 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Boucobza/Serinet, Les principes du procès équitable dans l’arbitrage international, JDI 2012, 41; Bucher, Die neue internationale Schiedsgerichtsbarkeit der Schweiz, Helbing & Lichtenhahn 1989; Caron/Caplan, The UNCITRAL Arbitration Rules: A Commentary, 2nd ed., Oxford University Press 2013; Chainais, Note – Société Top Bagage International v. société Wistar Entreprise Ltd., Cour de cassation (1re Ch. civ.), 23 June 2010, Rev. arb. 2011, 449; Chen, Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice, Kluwer Law International 2017; Craig/Park/Paulsson, International Chamber of Commerce Arbitration, 3rd ed., Oceana Publications 2000; Dahlberg/Öhrström, Proper Notification: A Crucial Element of Arbitral Proceedings, (2010) 27 J. Int. Arb. 539; Delvolvé/Pointon, French Arbitration Law and Practice: A Dynamic Civil Law Approach to International Arbitration, 2nd ed., Kluwer Law International 2009; Di Pietro/Platte, Enforcement of International Arbitration Awards: The New York Convention of 1958, Cameron May 2001; Estavillo-Castro, Ethics in Arbitration, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, La Ley 2010, p. 387; Fouchard, L’arbitrage commercial international, Dalloz 1965; Fouchard, Note (Cour de Cassation (2e Ch. Civ.) 30 novembre 1978), Rev. arb. 1979, 355; Fouchard, Les usages, l’arbitre et le juge, in: Fouchard/Khan/Lyon-Caen (eds), Le droit des relations économiques internationales, Etudes offertes à B. Goldman, Litec 1982, p. 67; Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Gaja, International Commercial Arbitration – New York Convention, Oceana Publications 1978–1996; Gentinetta, Die lex fori internationaler Handelsschiedsgerichte, Stämpfli 1973; Girsberger (ed.), Zürcher Kommentar zum IPRG, 2nd ed., Schulthess Verlag 2004; Greminger, Die Genfer Abkommen von 1923 und 1927 über die internationale private Schiedsgerichtsbarkeit, Winterthur 1957; Guinchard, L’arbitrage et le respect du principe du contradictoire (à propos de quelques décisions rendues en 1996), Rev. arb. 1997, 185; Haas, Die Anerkennung und Vollstreckung ausländischer und internationaler Schiedssprüche, Duncker & Humblot 1991; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Hermanns, Zur Frage der Verletzung des rechtlichen Gehörs im schiedsgerichtlichen Verfahren, IPRax 1987, 353; Honsell/Vogt/Schnyder/Berti (eds), Basler Kommentar Internationales Privatrecht (IPRG), 3rd ed., Helbing & Lichtenhahn 2013; Inoue, The Due Process Defense to Recognition and Enforcement of Foreign Arbitral Awards in United States Federal Courts: A Proposal for a Standard, 11 Am. Rev. Int’l Arb. 247 (2000); Jermini, Witnesses and the right to be heard in international arbitration: some remarks on recent decisions of the Swiss Federal Court, 22(3) ASA Bull. 605 (2004); Junker, The Public Policy Exception to Recognition and Enforcement of Foreign Arbitral Awards, 7 Cal. W. Int’l L.J. 228, 231 (1977); Karrer, Must an Arbitral Tribunal Really Ensure that its Award is Enforceable?, in: Aksen/Böckstiegel/Mustill/Patocchi/Whitesell (eds), International Law, Commerce and Dispute Resolution, Liber Amicorum in honour of Robert Briner, ICC Publishing 2005, p. 429; Knuts, Jura Novit Curia and the Right to Be Heard – An Analysis of Recent Case Law, (2012) 28 Arb. Int’l 669; Kornblum, Zur Vollstreckbarkeit ausländischer Schiedssprüche mit fehlendem Ablehnungsrecht, ZZP 91 (1978), 323; Kramer/Urbach/Jenny, The Arbitrator and the Arbitration Procedure – Equal Treatment in Multi-Party Arbitration and the Specific Issue of the Appointment of Arbitrators, AAYB 2009, 149; Kröll, Schiedsrechtliche Rechtsprechung 2003, SchiedsVZ 2004, 113; Kröll, Die Entwicklung des Schiedsrechts 2007–2008, NJW 2009, 1183; Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Kunz, Enforcement of Arbitral Awards under the New York Convention in Switzerland – An overview of the current practice and case law of the Swiss Supreme Court, 34(4) ASA Bull. 836 (2016); Kurkela/Turunen, Due process in international commercial arbitration, 2nd ed., Oxford University Press 2010; Lau/Horlach, Party Autonomy – The Turning Point?, 4(1) Disp. Resol. Int’l 121 (2010); Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Liebscher, The Healthy Award, Kluwer Law International 2003; Loquin, Les pouvoirs des arbitres internationaux à la lumière de l’évolution récente du droit de l’arbitrage international, JDI 1983, 293; Luttrell, Bias Challenges in International Commercial Arbitration: The Need for a “Real Danger” Test, Kluwer Law International 2009; Marian, Proper Notice: Common Problems in Interpreting Article V(1)(b) of the New York Convention in Light of the Lernmorniiproekt Decision of the Swedish Supreme Court, (2012) 28 Arb. Int’l 545; Martinez, Recogni-

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New York Convention

tion and Enforcement of International Arbitral Awards under the United Nations Convention of 1958: The ‘Refusal’ Provisions, 24(2) Int’l Law. 487 (1990); MünchKommZPO: see Rauscher/Wax/Wenzel; O’Hare, The Denial of Due Process and the Enforceability of CIETAC Awards under the New York Convention – The Hong Kong Experience, (1996) 13(4) J. Int. Arb. 183; Oppetit, Le refus d’exécution d’une sentence arbitrale étrangère dans le cadre de la Convention de New York, Rev. arb. 1971, 97; Pörnbacher/Dolgorukow, Reconciling Due Process and Efficiency In Arbitration: The Arbitrator’s Task of Achieving One without Sacrificing the Other, (2013) Annals Fac. L. Belgrade Int’l Ed. 50; Poudret, Expertise et droit d’être entendu dans l’arbitrage international, in: Dominicé (ed.), Études de Droit International en l’honneur de Pierre Lalive, Helbing & Lichtenhahn 1993, p. 607; Poudret/Besson, Comparative Law of International Arbitration, 2nd ed., Sweet & Maxwell 2007; Private International Law Committee, Fifth Report (Recognition and Enforcement of Foreign Arbitral Awards), H.M.S.O. 1961, p. 30; Quigley, Convention on Foreign Arbitral Awards, 58 ABA J. 821 (1972); Raeschke-Kessler/Berger, Recht und Praxis des Schiedsverfahrens, 3rd ed., RWS 1999; Rauscher/ Wax/Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017; Sanders, Quo Vadis Arbitration? Sixty Years of Arbitration Practice, A Comparative Study, Kluwer Law International 1999; Scherer, The Fate of Parties’ Agreements on Judicial Review of Awards: A Comparative and Normative Analysis of Party-Autonomy at the Post-Award Stage, (2016) 32 Arb. Int’l 437; Scherer/Silberman, Limits to Party Autonomy at the Post-Award Stage, in: Ferrari (ed.), Limits to Party Autonomy in International Commercial Arbitration, Juris 2016, p. 441; Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2nd ed., Mohr Siebeck 1989; Schwab/Walter, Schiedsgerichtsbarkeit, 7th ed., C. H. Beck, Helbing & Lichtenhahn 2005; Schwarz/Ortner, Procedural Ordre Public and the Internationalization of Public Policy in Arbitration, AAYB 2008, 133; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; Steindl, The Development of Due Process Under the New York Convention, AAYB 2008, 255; Steindl, Watch Out and Act! Recent Case Law on Due Process in Light of Austrian Law and the 1958 New York Convention, (2008) 25(4) J. Int. Arb. 513; Tschanz, Note – Tribunal fédéral suisse (1re Cour civile) 16 septembre 1988 – Société Ligier (France) et Société Diffusia (Genève) v. Société Alfa Lancia industriale (Italie), Rev. arb. 1989, 695; Tweeddale/Tweeddale, Arbitration of Commercial Disputes, Oxford University Press 2005; van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, New York Convention of 1958 Consolidated Commentary Cases Reported in Volumes XVII (1992) – XIX (1994), XIX Y.B. Com. Arb. 475 (1994); van den Berg, Refusal of Enforcement under the New York Convention of 1958: the Unfortunate Few, in: ICC (ed.), Arbitration in the Next Decade, ICC Publishing 1999, p. 75; Verbist, Challenges on Grounds of Due Process Pursuant to Article V(1)(b) of the New York Convention, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 679; Walter, Neuere Rechtsprechung des Schweizer Bundesgerichts zur Schiedsgerichtsbarkeit, SchiedsVZ 2005, 129; Walter/Domej, Internationales Zivilprozessrecht in der Schweiz, 5th ed., UTB Verlag 2012; Welser/De Berti, The Arbitrator and the Arbitration Procedure – Best Practices in Arbitration: A Selection of Established and Possible Future Best Practices, AAYB 2010, 79; Wheeless, Article V(1)(B) of the New York Convention, 7 Emory Int’l L. Rev. 812 (1993); Zürcher Kommentar: see Girsberger. Specific Bibliography (Article V(1)(c)): Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide, 2nd ed., Kluwer Law International 2018; Azeredo da Silveira/Levy, Transgression of the Arbitrators’ Authority: Article V(l)(c) of the New York Convention, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 639; Barceló III, Who Decides on the Arbitrators’ Jurisdiction? Separability and Competence-Competence in Transnational Perspective, 36 Vand. J. Transnat’l L. 1115 (2003); Berger, SetOff in International Economic Arbitration, (1999) 15 Arb. Int’l 53; Berger, Re-examining the Arbitration Agreement: Applicable Law – Consensus or Confusion?, in: van den Berg (ed.), International Arbitration 2006: Back to Basics?, ICCA Congress Series No. 13, Kluwer Law International 2007, p. 301; Blackaby/ Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Blessing, The Law Applicable to the Arbitration Clause, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 168; Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany – The Model Law in Practice, 2nd ed., Kluwer Law International 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Chen, Three Aspects of Inquiry into a Judgement – Comments on a High Court Decision in the Supreme Court of Hong Kong, (1996) 13 J. Int. Arb. 129; Coleman, Response to Professor An Chen’s “Inquiry into a Judgment”, (1996) 13 J. Int. Arb. 163; de Boisséson, Joinder of Parties to Arbitral Proceedings: Two Contrasting Decisions, in: Jolivet (ed.), Complex Arbitrations, ICC International Court of Arbitration Bulletin, Special Supplement 2003, p. 19; Derains/Schwartz, A Guide to the ICC Rules of Arbitration, Kluwer Law International 2005; Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572;

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Hanotiau, Complex Arbitrations: Multiparty, Multicontract, Multi-Issue and Class Actions, Kluwer Law International 2006; Heger, Widerklage und Aufrechnung, ZfRV 2003, 171; Holtzmann/Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary, Kluwer Law and Taxation 1989/1994; Honsell/Vogt/Schnyder/Berti (eds), International Arbitration in Switzerland: An Introduction and Commentary on Articles 176–194 of the Swiss Private International Law Statute, Helbing & Lichtenhahn/Kluwer Law International 2000; Kleinschmidt, Die Widerklage gegen einen Dritten im Schiedsverfahren, SchiedsVZ 2006, 142; Koch, Judicial activism and the limits of institutional arbitration in multiparty disputes, 28(2) ASA Bull. 380 (2010); Koller, Contemplations on Set-off and Counterclaim in International Commercial Arbitration, AAYB 2008, 59; Kronke/ Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Leboulanger, Sentence Arbitrale, Rev. arb. 1986, 469; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Loquin, Jurisprudence Française, Rev. arb. 1980, 538; McIlwrath/Savage, International Arbitration and Mediation: A Practical Guide, Kluwer Law International 2010; Mourre, The Set-off Paradox in International Arbitration, (2008) 24 Arb. Int’l 387; MünchKommZPO: see Rauscher/Wax/Wenzel; Musielak/Voit (eds), Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz, 16th ed., Franz Vahlen 2019; Pitkowitz/Schmitt, Defence Tools in Arbitration Proceedings, AAYB 2007, 183; Poudret/ Besson, Comparative Law of International Arbitration, 2nd ed., Sweet & Maxwell 2007; Rauscher/Wax/ Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017; Ritlewski, Die Lex Mercatoria in der schiedsgerichtlichen Praxis, SchiedsVZ 2007, 130; Rivkin, The U.S. Situation, in: Gaillard/Schlaepfer/Pinsolle/Degos (eds), Competition and Arbitration Law, ICC Publication No. 480/3, 1993, p. 125; Sanders, Commentary on UNCITRAL Arbitration Rules, II Y.B. Com. Arb. 172 (1977); Schwab/Walter, Schiedsgerichtsbarkeit, 7th ed., C. H. Beck, Helbing & Lichtenhahn 2005; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; Stolzke, Aufrechnung und Widerklage in der Schiedsgerichtsbarkeit, Heymanns 2006; UNCITRAL, UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), 2016, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/ en/2016_guide_on_the_convention.pdf (last visited Apr. 29, 2019); van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; von Mehren, Enforcement of Foreign Arbitral Awards in the United States, 1(6) Int. A.L.R. 198 (1998); Voser, Multi-party Disputes and Joinder of Third Parties, in: van den Berg (ed.), 50 Years of the New York Convention, ICCA Congress Series No. 14, Kluwer Law International 2009, p. 343; Zuberbühler/Müller/ Habegger (eds), Swiss Rules of International Arbitration, Commentary, 2nd ed., Schulthess 2013. Specific Bibliography (Article V(1)(d)): Arntz, Die missglückte Eskalationsklausel, SchiedsVZ 2014, 237; Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide, 2nd ed., Kluwer Law International 2018; Berger, Law and Practice of Escalation Clauses, (2006) 22 Arb. Int’l 1; Blackaby/Partasides/Redfern/ Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany – The Model Law in Practice, 2nd ed., Kluwer Law International 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Born/Šćekić, Pre-Arbitration Procedural Requirements – ‘A Dismal Swamp’, in: Caron/Schill/ Smutny/Triantafilou (eds), Practising Virtue: Inside International Arbitration, Oxford University Press 2015, p. 227; Crivellaro, The Arbitrator’s Failure to Disclose Conflicts of Interest: Is It Per Se a Ground for Annulling the Award?, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, La Ley 2010, p. 309; Froitzheim, Die Ablehnung von Schiedsrichtern wegen Befangenheit in der internationalen Schiedsgerichtsbarkeit, Heymanns 2016; Fry/Greenberg/Mazza, Secretariat’s Guide to ICC Arbitration, ICC Publications 2012; Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Jarvin, Irregularity in the Composition of the Arbitral Tribunal and the Procedure, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 729; Kneisel, Schiedsgerichtsbarkeit in Internationalen Verwaltungsunionen (1874–1914), Nomos 2009; Kreindler/Schäfer/Wolff, Schiedsgerichtsbarkeit, Kompendium für die Praxis, Recht und Wirtschaft 2006; Kröll, Recognition and Enforcement of Foreign Arbitral Awards in Germany, 5(5) Int. A.L.R. 160 (2002); Kröll, Eskalationsklauseln im internationalen Wirtschaftsverkehr – Instrument effektiven Konfliktmanagements oder zahnloser Tiger mit Konfliktpotential?, ZVglRWiss 114 (2015), 545; Kröll/Heidkamp, The German Law on the Recognition and Enforcement of Foreign Arbitral Awards, 18(3) Mealey’s Int’l Arb. Rep. 28, 33 (2003); Kronke/ Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Lachmann, Handbuch für die Schiedsgerichtspraxis, 3rd ed., Otto Schmidt 2008; Landau, Reasons for Reasons: The Tribunal’s Duty in Investor-State Arbitration, in: van den Berg (ed.), 50 Years of the New York Convention, ICCA Congress Series No. 14, Kluwer Law International 2009, p. 187; Loos/Brewitz, Hindert eine Mediationsvereinbarung

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New York Convention

an der Klage? – Wie lange?, SchiedsVZ 2012, 305; Lu, The New York Convention on the recognition and enforcement of arbitral awards: analysis of the seven defenses to oppose enforcement in the United States and in England, 23 Ariz. J. Int’l & Comp. L. 747 (2006); MünchKommZPO: see Rauscher/Wax/Wenzel; Musielak/Voit (eds), Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz, 16th ed., Franz Vahlen 2019; Rauscher/Wax/Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017; Schwab/Walter, Schiedsgerichtsbarkeit, 7th ed., C. H. Beck, Helbing & Lichtenhahn 2005; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; UNCITRAL, UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), 2016, available at https://uncitral.un.org/ sites/uncitral.un.org/files/media-documents/uncitral/en/2016_guide_on_the_convention.pdf (last visited Apr. 29, 2019); van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; Vorwerk/Wolf (eds), BeckOK ZPO, C. H. Beck (31st ed. Dec. 1, 2018); Wagner/Bühlau, Procedural Orders by Arbitral Tribunals: In the Stays of Party Agreements?, SchiedsVZ 2013, 6; Zimmermann de Meireles, More Deference for Expert Decisions?, in: TDM Special Issue on Non-Legal Adjudicators in National and International Disputes, TDM 2 (2017). Specific Bibliography (Article V(1)(e)): Arsic, International Commercial Arbitration on the Internet – Has the Future Come Too Early? (1997) 14 J. Int. Arb. 209; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Burghetto, May Courts in Latin American Countries Refuse Recognition and/or Enforcement of a Foreign Arbitral Award that Is Being Challenged at the Place of Arbitration?, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, La Ley 2010, p. 273; Burgstaller, Vollstreckung ausländischer Schiedssprüche in Österreich, ZfRV 2000, 83; Chukwumerije, Enforcement of Foreign Awards in Australia: The Implications of Resort Condominiums, 5 Austl. Disp. Res. J. 237 (1994); Gaillard/Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Garnett/Pryles, Recognition and Enforcement of Foreign Awards under the New York Convention in Australia and New Zealand, (2008) 25 J. Int. Arb. 899; Gharavi, Chromalloy: Another View, 12(1) Mealey’s Int’l Arb. Rep. 21 (1997); Gharavi, The International Effectiveness of the Annulment of an Arbitral Award, Kluwer Law International 2002; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Holtzmann/Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary, Kluwer Law and Taxation 1989/1994; Hwang/Boo/Han, National Report for Singapore, in: Bosman (ed.), ICCA International Handbook on Commercial Arbitration, Supplement No. 99, Kluwer Law International 2018; Hwang/Cheng, Relevant Considerations in Choosing the Place of Arbitration, 4(2) Asian Int’l Arb. J. 195 (2008); Kojovic, Court Enforcement of Arbitral Decisions on Provisional Relief: How Final is Provisional?, (2001) 18 J. Int. Arb. 511; Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Lane/Harding, National Report for South Africa, in: Bosman (ed.), ICCA International Handbook on Commercial Arbitration, Supplement No. 98, Kluwer Law International 2018; Lastenouse, Why Setting Aside an Arbitral Award is not Enough to Remove it from the International Scene, (1999) 16 J. Int. Arb. 2; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Liebscher, The Healthy Award, Kluwer Law International 2003; Mann, Where is an Award ‘made’?, (1985) 1 Arb. Int’l 107; McIlwrath/Savage, International Arbitration and Mediation: A Practical Guide, Kluwer Law International 2010; Melis, National Report for Austria, in: Bosman (ed.), ICCA International Handbook on Commercial Arbitration, Supplement No. 98, Kluwer Law International 2018; Mosk, The Effect of Confirming and Vacating an International Arbitration Award on Enforcement in Foreign Jurisdictions, (2001) 18 J. Int. Arb. 463; Murray, Domestic Court Implementation of Coordinative Treaties: Formulating Rules for Determining the Seat of Arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 41 Va. J. Int’l L. 859 (2000–2001); Mustill/ Boyd, Commercial Arbitration, Companion Volume to the 2nd ed., Butterworths 2001; Nariman, National Report for India, in: Bosman (ed.), ICCA International Handbook on Commercial Arbitration, Supplement No. 84, Kluwer Law International 2015; Paulsson, The Role of Swedish Courts in Transnational Commercial Arbitration, 21 Va. J. Int’l L. 211 (1981); Paulsson, The Case for disregarding local standard annulments under the New York Convention, 7 Am. Rev. Int’l Arb. 99 (1996); Paulsson, Enforcing Arbitral Awards Notwithstanding a Local Standard Annulment (LSA), 9(1) ICC Bull. 14 (1998); Pryles, Interlocutory Orders and Convention Awards: The Case of Resort Condominiums v. Bolwell, (1994) 10 Arb. Int’l 385; Qui, Enforcing Arbitral Awards Involving Foreign Parties: A Comparison of the United States and China, 11 Am. Rev. Int’l Arb. 607 (2000); Read, Delocalization of International Commercial Arbitration: Its Relevance to the New Millennium, 10 Am. Rev. Int’l Arb. 177 (1999); Sampliner, Enforcement of Nullified Foreign Arbitral Awards – Chromalloy Revisited, (1997) 14 J. Int. Arb. 3; Sanders, The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 6 Neth. Int’l L. Rev. 43 (1959); Sanders, The making of the Convention, in: United Nations (ed.), Enforcing Arbitration Awards under the New York

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Convention: Experience and Prospects, 1999, available at https://uncitral.un.org/sites/uncitral.un.org/files/ media-documents/uncitral/en/nycday-e.pdf (last visited Apr. 6, 2019), p. 3; Sutton/Gill/Gearing, Russell on Arbitration, 24th ed., Sweet & Maxwell 2015; Torgbor, National Report for Kenya, in: Bosman (ed.), ICCA International Handbook on Commercial Arbitration, Supplement No. 98, Kluwer Law International 2018; van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, Enforcement of Annulled Awards?, 9(2) ICC Bull. 15 (1998); van den Berg, Consolidated Commentary Cases Reported in Volumes XXII (1997) – XXVII (2002), XXVIII Y.B. Com. Arb. 562 (2003); van den Berg, Enforcement of Arbitral Awards Annulled in Russia, (2010) 27 J. Int. Arb. 179; Williams, National Report on New Zealand, in: Bosman (ed.), ICCA International Handbook on Commercial Arbitration, Supplement No. 98, Kluwer Law International 2018; Yesilirmak, Provisional Measures in International Commercial Arbitration, Kluwer Law International 2005. Specific Bibliography (Article V(2)(a)): Aldermann, Consumer Arbitration: The Destruction of the Common Law, 2. J. Am. Arb. 1 (2003); Alexiev, National Report for Bulgaria, in: Bosman (ed.), ICCA International Handbook on Commercial Arbitration, Supplement No. 100, Kluwer Law International 2018; Alyoshin/Odnorih/Dobosh, Arbitrability of corporate disputes under Ukrainian law, 21 IBA Arb. Committee Newsl. 77 (Feb. 2016); Arfazadeh, Arbitrability under the New York Convention: The Lex Fori Revisited, (2001) 17 Arb. Int’l 73; Aubert, L’Arbitrage en droit du travail, 18(1) ASA Bull. 2 (2000); Audit, Le nouveau régime de l’arbitrage des contrats administratifs internationaux, Rev. arb. 2010, 253; Bantekas, Arbitrability in Finance and Banking, in: Mistelis/Brekoulakis (eds), Arbitrability: International & Comparative Perspectives, Kluwer Law International 2009, p. 293; Baron/Liniger, A Second Look on Arbitrability, (2007) 19 Arb. Int’l 26; Bates, A Consumer’s Dream or Pandora’s Box: Is Arbitration A Viable Option for Cross-Border Consumer Disputes?, 27 Fordham Int’l L.J. 823 (2004); Bernardini, Arbitration Clauses: Achieving Effectiveness in the Law Applicable to the Arbitration Clause, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 197; Bernardini, The Problem of Arbitrability in General, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 503; Biamonti, Commercial Arbitration and the Italian and EC Antitrust Legislation, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, La Ley 2010, p. 189; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press 2015; Blessing, Arbitrability of Intellectual Property Disputes, (1996) 12 Arb. Int’l 191; Blessing, The Law Applicable to the Arbitration Clause, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Kluwer Law International 1999, p. 168; Böckstiegel (ed.), Acts of State and Arbitration, Heymanns 1997; Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany – The Model Law in Practice, 2nd ed., Kluwer Law International 2015; Bondaryev/Malskyy, Das Monopol der staatlichen Gerichte in gesellschaftsrechtlichen Streitigkeiten in der Ukraine, eastlex 2011, 225; Born, Bribery and an Arbitrator’s Task, Kluwer Arbitration Blog Oct. 11, 2011; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Borris, Die „Ergänzenden Regeln für gesellschaftsrechtliche Streitigkeiten“ der DIS („DIS-ERGeS“), SchiedsVZ 2009, 299; Borris, Die Schiedsfähigkeit gesellschaftsrechtlicher Streitigkeiten in der Aktiengesellschaft, NZG 2010, 481; Borris, Die „Schiedsfähigkeit“ von Beschlussmängelstreitigkeiten in der Personengesellschaft, NZG 2017, 761; Brazier, The Arbitrability of Investor-State Taxation Disputes in International Commercial Arbitration, (2015) 32(1) J. Int. Arb. 1; Brekoulakis, On Arbitrability: Persisting Misconceptions And New Areas Of Concern, in: Mistelis/Brekoulakis (eds), Arbitrability: International & Comparative Perspectives, Kluwer Law International 2009, p. 19; Brekoulakis, Law Applicable to Arbitrability: Revisiting the Revisited Law Fori, in: Mistelis/Brekoulakis (eds), Arbitrability: International & Comparative Perspectives, Kluwer Law International 2009, p. 99; Bühler/Webster, Handbook of ICC Arbitration, 3rd ed., Sweet & Maxwell 2014; Burn/ Grubb, Insolvency and Arbitration in English Law, 8(4) Int. A.L.R. 124 (2005); Carbonneau, Liberal Rules of Arbitrability and the Autonomy of Labor Arbitration in the United States, in: Mistelis/Brekoulakis (eds), Arbitrability: International & Comparative Perspectives, Kluwer Law International 2009, p. 143; Carbonneau/Janson, Cartesian Logic and Frontier Politics: French and American Concepts of Arbitrability, 2 Tul. J. Int’l & Comp. L. 193 (1994); Carbonneau/Sheldrick, Tax Liability and Inarbitrability in International Commercial Arbitration, 1 J. Transnat’l L. & Pol’y 23 (1992); Carrington, Regulating Dispute Resolution Provisions in Adhesion Contracts, 35 Harv. J. on Legis. 225 (1998); Chernykh, Arbitrability of Corporate Disputes in Ukraine, (2009) 26 J. Int. Arb. 745; Cook/Garcia, International Intellectual Property Arbitration, Kluwer Law International 2010; Courtois-Champenois, L’Arbitrage des litiges en droit du travail: à la redécouverte d’une institution française en disgrâce, Rev. arb. 2003, 349; Davis, The New New Thing: Uniform Domain-Name Dispute Resolution Policy of the Internet Corporation for Assigned Names and Number, (2000) 17(3) J. Int. Arb. 115; de Boisséson, Arbitrabilité et Droit de la Concurrence, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, La Ley 2010, p. 243; Dessemontet, Arbitration of Intellectual Property Rights and Licensing Contracts, in: Gaillard/Di

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New York Convention

Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 553; Di Pietro, General Remarks on Arbitrability Under the New York Convention, in: Mistelis/Brekoulakis (eds), Arbitrability: International & Comparative Perspectives, Kluwer Law International 2009, p. 85; Drahozal/Friel, Consumer Arbitration in the European Union and the United States, 28 N.C. J. Int’l L. & Com. Reg. 357 (2002); Eilmansberger, Die Bedeutung der Art. 81 und 82 EG für Schiedsverfahren, SchiedsVZ 2006, 5; Fortunet, Arbitrability of Intellectual Property Disputes in France, (2010) 26 Arb. Int’l 281; Fouchard, Arbitrage et faillité, Rev. arb. 1998, 471; Gaillard/Darrigade, Country Report France, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 450; Goette, Schiedsfähigkeit von Beschlussmängelstreitigkeiten in Kapitalgesellschaften, in: Jurcewicz/Pörnbacher/ Wisniewski (eds), Gesellschaftsrechtliche Streitigkeiten in der Praxis der Schiedsgerichtsbarkeit – Polnische und Deutsche Perspektiven, Wydawnictwo C. H. Beck 2017, p. 233; Greene/Julian/Bédard, Arbitrability of Antitrust Claims in the United States of America, 19 EBLR Special Edition 43 (2008); Haas, Schiedsgerichte in Erbsachen und das New Yorker Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche, SchiedsVZ 2011, 289; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Hanefeld/Schmidt-Ahrendts, Country Report Germany, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 503; Hanotiau, The Law Applicable to Arbitrability, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, Kluwer Law International 1999, p. 146; Hanotiau/Caprasse, Arbitrability, Due Process, and Public Policy Under Article V of the New York Convention, (2008) 25 J. Int. Arb. 721; Heidbrink, Die Insolvenzanfechtung im Schiedsverfahren, SchiedsVZ 2009, 258; Hilbig, Herausforderungen für die (deutsche) Schiedsgerichtsbarkeit, SchiedsVZ 2009, 247; Hollander, Report on the Concept of ‘Arbitrability’ under the New York Convention, 11(1) Disp. Resol. Int’l 47 (2017); Horn, Zwingendes Recht in der internationalen Schiedsgerichtsbarkeit, SchiedsVZ 2008, 209; Huber, Schiedsvereinbarungen im Scheidungsrecht, SchiedsVZ 2004, 280; ICCA, ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges, 2011, available at http://www.arbitration-icca.org/publica tions/NYC_Guide.html (last visited Apr. 6, 2019); Johnson/Wildhaber, Arbitrating Labor Disputes in Switzerland, (2010) 6 J. Int. Arb. 631; Karrer, Country Report Switzerland, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 826; Kaufmann-Kohler/Lévy, Insolvency and International Arbitration, in: Peter/Jeandin/Kilborn (eds), The Challenges of Insolvency Law reform in the 21st Century, Schulthess 2006, p. 257; Kleinheisterkamp, Eingriffsnormen und Schiedsgerichtsbarkeit, RabelsZ 73 (2009), 818; Kleinheisterkamp, The Impact of Internationally Mandatory Laws on the Enforceability of Arbitration Agreements, 3 WAMR 91 (2009); Kröll, 50 Jahre UN-Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche – Standortbestimmung und Zukunftsperspektive, SchiedsVZ 2009, 40; Kröll, The “Arbitrability” of Disputes Arising From Commercial Representation, in: Mistelis/Brekoulakis (eds), Arbitrability: International & Comparative Perspectives, Kluwer Law International 2009, p. 317; Kröll, Die schiedsrechtliche Rechtsprechung 2016 und 2017, SchiedsVZ 2018, 61; Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Kühner, Schiedsgerichtsbarkeit und Public Private Partnership in Frankreich, SchiedsVZ 2005, 282; Lachmann, Handbuch für die Schiedsgerichtspraxis, 3rd ed., Otto Schmidt 2008; Lazić, Cross Border Insolvency and Arbitration, in: Kröll/Mistelis/Perales Viscasillas/ Rogers (eds), International Arbitration and International Commercial Law: Synergy, Convergence and Evolution, Liber Amicorum Eric Bergsten, Kluwer Law International 2011, p. 337; Lazić, Insolvency Proceedings and Commercial Arbitration, Kluwer Law International 1998; Lazić/Schluep, Country Report Netherlands, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 631; Legler, Sind in Zukunft Patentstreitigkeiten in der Schweiz de lege lata nicht mehr schiedsfähig?, 28(2) ASA Bull. 253 (2010); Lew, Competition Laws: Limits to Arbitrators’ Authority, in: Mistelis/Brekoulakis (eds), Arbitrability: International & Comparative Perspectives, Kluwer Law International 2009, p. 241; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Liebscher, Arbitration and EC Competition Law, 2003 Int’l Arb. 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New York Convention

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Arb. 35; Spohnheimer, Gestaltungsfreiheit bei antezipiertem Legalanerkenntnis des Schiedsspruchs, Mohr Siebeck 2010; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; Stone, Public Policy in the Enforcement of New York Convention Awards: A Hong Kong Perspective, [2011] Asian DR 71; Szabados, EU Economic Sanctions in Arbitration, (2018) 35(4) J. Int. Arb. 439; Taniguchi/Nakamura, Japanese Court Decisions on Article V of the New York Convention, (2008) 25 J. Int. Arb. 857; Tapola, Enforcement of Foreign Arbitral Awards: Application of the Public Policy Rule in Russia, (2006) 22 Arb. Int’l 151; Tercier/DeVitre, The Public Policy Exception – A Comparison of the Indian And Swiss Perspectives, 5(1) Indian J. Arb. L. 7 (2016); Tosun, Révision au Fond in Turkish Arbitration Practice, 33(1) ASA Bull. 58 (2015); Trakman, Aligning State Sovereignty with Transnational Public Policy, 93(2) Tul. L. Rev. 207 (2018); UNCITRAL, UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), 2016, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/ en/2016_guide_on_the_convention.pdf (last visited Apr. 29, 2019); van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, Why Are Some Awards Not Enforceable?, in: van den Berg (ed.), New Horizons for International Commercial Arbitration and Beyond, ICCA Congress Series No. 12, Kluwer Law International 2005, p. 291; Villiers, Breaking in the ‘Unruly Horse’: The Status of Mandatory Rules of Law as a Public Policy Basis for the Non-Enforcement of Arbitral Awards, (2011) AUIntLawJl 155; von Hoffmann, Internationale Handelsschiedsgerichtsbarkeit, Metzner 1970; Walter, Das Schiedsverfahren im deutsch-italienischen Rechtsverkehr, RIW 1982, 693; Wei, Rethinking the New York Convention: A Law and Economics Approach, Intersentia 2013; Wilner, Choice of Forum and Public Policy: Some Indications of the Development in United States Law of a Distinct “International” Public Policy, 2 N.C. J. Int’l L. & Com. Reg. 29 (1977); Wilske/Mackay, The Myth of the “Manifest Disregard of the Law” Doctrine: Is this Challenge to the Finality of Arbitral Awards Confined to U.S. Domestic Arbitrations or Should International Arbitration Practitioners be Concerned?, 24(2) ASA Bull. 216 (2006); Wolff, Streitwertfestsetzung bei wertabhängiger Schiedsrichtervergütung – Schiedsrichter in eigener Sache?, SchiedsVZ 2006, 131; Wunderer, Der deutsche Ordre Public D’Arbitrage International und Methoden seiner Konkretisierung, Peter Lang 1993; Yoon/Oh, The Standards for Refusing to Enforce an Arbitral Award on Public Policy Grounds: A Korean Case Study, 6(1) Asian Int’l Arb. J. 64 (2010); Zaiwalla, Commentary on the Indian Supreme Court Judgment in Venture Global Engineering v. Satyam Computers Services Ltd., (2008) 25 J. Int. Arb. 507; Zaugg, Objective scope of res judicata of arbitral awards – Is there room for discretion?, 35(2) ASA Bull. 319 (2017); Zegers, Recognition and Enforcement of Foreign Arbitral Awards in Saudi Arabia, 1(1) BCDR Int’l Arb. Rev. 69 (2014); Zöller (ed.), Zivilprozessordnung, 32nd ed., Otto Schmidt 2018; Zeiler/Siwy (eds), The European Convention on International Commercial Arbitration: A Commentary, Kluwer Law International 2018. Table of Contents A. Overview ............................................................................................................................ 1 B. Spirit and Purpose ........................................................................................................... 4 C. Drafting History ............................................................................................................... 6 I. Overall Drafting History ....................................................................................... 6 II. Essential Changes with Regard to the Geneva Convention .......................... 11 D. General ............................................................................................................................... 19 I. Scope of Review by the National Courts........................................................... 19

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Grounds for Refusal of Recognition and Enforcement 1. The Principle: No Review of Merits ............................................................. 2. Exceptions ........................................................................................................... 3. Exhaustive Character of the List of Grounds for Refusal in Article V. a) The Approach of the Convention .......................................................... b) Additional Grounds Applied in the United States ............................. aa) Manifest Disregard of the Law .......................................................... bb) Forum Non Conveniens ....................................................................... c) Additional Grounds Applied in Australia ............................................ 4. Exceptional Admissibility of Objections Arising After the Award/ Based on Issues Not Decided in the Award................................................ a) General Remarks ........................................................................................ b) Court Decisions .......................................................................................... aa) Courts in the US, Canada and the UK ............................................ bb) German Courts...................................................................................... c) Comment...................................................................................................... II. Furnishing Proof and Burden of Proof.............................................................. 1. Burden of Pleading ........................................................................................... a) Article V(1): Grounds that Have to Be Pleaded ................................. b) Article V(2): Grounds to Be Observed by the Court Ex Officio ..... 2. Burden of Proof ................................................................................................. III. Preclusion and Waiver of Grounds for Refusal............................................... 1. Preclusion............................................................................................................ a) Applicable Law............................................................................................ aa) Autonomous Interpretation of the Convention............................. bb) Preclusion Based on the Law of the Enforcement State .............. b) Prerequisites of Preclusion ....................................................................... c) Typical Scenarios ........................................................................................ aa) Participation in Arbitral Proceedings Without Timely Objection to Defects............................................................................. (1) The Principle: Preclusion ............................................................. (2) Limits to Preclusion....................................................................... (a) Limits of Party Autonomy as Limits to Preclusion ........ (b) Differentiation Between Defects of Form and Substantive Invalidity? ........................................................... bb) No Participation in the Arbitral Proceedings................................. cc) Failure to Make Use of Legal Remedies at the Seat of the Arbitration.............................................................................................. 2. Ex-Ante Waiver.................................................................................................. 3. Ex-Post Waiver................................................................................................... IV. Court Decision......................................................................................................... 1. Recognition and Enforcement “May” Be Refused ..................................... 2. Partial Recognition and Enforcement........................................................... E. Incapacity of the Parties or Invalidity of the Arbitration Agreement, Article V(1)(a) .................................................................................................................. I. Overview ................................................................................................................... II. Spirit and Purpose .................................................................................................. III. Drafting History ...................................................................................................... 1. Incapacity as a Reason for Refusal ................................................................ 2. Invalidity of the Arbitration Agreement as a Reason for Refusal.......... IV. Incapacity of the Parties ........................................................................................ 1. Parties to the Agreement Referred to in Article II.................................... 2. Incapacity ............................................................................................................ a) Incapacity of States or State-Controlled Entities ................................ b) Governing Law for Incapacity................................................................. V. Invalidity of the Arbitration Agreement............................................................ 1. Governing Law for Validity of the Arbitration Agreement .................... a) Choice of Law.............................................................................................. b) Law of the Country Where the Award Was Made ............................ 2. Scope of Governing Law.................................................................................. 3. Burden of Proof ................................................................................................. F. Violation of Due Process, Article V(1)(b).................................................................. I. Overview ...................................................................................................................

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Article V 19 20 21 21 22 23 25 27 28 28 31 31 34 37 39 39 39 40 41 46 47 48 48 49 50 51 51 52 58 58 59 62 63 68 73 74 74 81 85 85 86 87 88 92 97 99 100 102 105 108 111 113 116 121 125 128 128

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Article V

New York Convention

II. Spirit and Purpose .................................................................................................. III. Drafting History ...................................................................................................... IV. General ...................................................................................................................... 1. Governing Law................................................................................................... a) Lex Arbitri or Law of the Arbitration Agreement .............................. b) Law of the Recognition or Enforcement Forum ................................. c) Uniform International Standard Derived from an Autonomous Interpretation of Article V(1)(b) ............................................................ 2. Causality .............................................................................................................. 3. Waiver of Procedural Irregularities............................................................... 4. Relationship Between Article V(1)(b) and Other Non-Recognition or Non-Enforcement Grounds of Article V ..................................................... a) Relationship Between Articles V(1)(b) and V(1)(d) .......................... b) Relationship Between Articles V(1)(b) and V(2)(b) .......................... V. Proper Notice of the Appointment of the Arbitrator and the Arbitration Proceedings to the Party Against Whom the Award Is Invoked (Alternative 1).......................................................................................................... 1. Notice of the Appointment of the Arbitrator............................................. 2. Notice of the Arbitration Proceedings ......................................................... 3. Failure to Give Proper Notice ........................................................................ a) Proper Form of Notification.................................................................... b) Proper Language of Notification............................................................. c) Proper Timing of Notification ................................................................ d) Proper Addressee of Notification ........................................................... VI. Inability to Present One’s Case (Alternative 2) ............................................... 1. General................................................................................................................. a) Guarantee of Equal Treatment................................................................ b) Time Limits.................................................................................................. 2. Right to Submit Evidence................................................................................ a) Admission and Means of Witness Evidence........................................ b) Admission and Means of Expert Evidence .......................................... 3. Right to Make Submissions............................................................................. a) Right to Oral Hearing ............................................................................... b) Right to Have Submissions Considered ................................................ 4. Right to Comment ............................................................................................ a) Right to Comment on Evidence and Arguments Submitted by the Other Party ........................................................................................... b) Right to Comment on Evidence Known to or Determined by the Tribunal ........................................................................................................ c) Right to Comment on Legal Arguments Introduced by the Tribunal ........................................................................................................ G. Excess of Competence or Jurisdiction, Article V(1)(c) ........................................... I. Overview ................................................................................................................... II. Spirit and Purpose .................................................................................................. III. Drafting History ...................................................................................................... IV. Excess of Competence or Jurisdiction................................................................ 1. Construction of Article V(1)(c) Against the Background of Its Language Versions ............................................................................................ 2. Excess of Jurisdiction........................................................................................ a) Factual Scope of the Arbitration Agreement ....................................... aa) Governing Law ...................................................................................... bb) Bill of Exchange..................................................................................... cc) Set-Off...................................................................................................... dd) Counterclaims........................................................................................ (1) Counterclaims in General ............................................................ (2) Counterclaims Against Third Parties ........................................ ee) Group of Contracts............................................................................... (1) Close Connection Between the Contracts ................................ (2) Contracts Containing a Choice of Forum Clause .................. (3) Amendments ................................................................................... b) Time Limits.................................................................................................. 3. Excess of Competence ......................................................................................

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129 132 136 136 137 139 141 142 145 150 151 153 155 155 156 158 159 161 164 167 169 170 170 172 174 176 177 178 179 184 187 188 191 192 196 196 197 200 201 201 203 204 205 207 209 216 216 219 222 223 229 231 232 234

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Article V

a) Application of Incorrect Rules to the Substance of the Dispute ..... 235 aa) Decisions as Amiable Compositeur .................................................. 236 bb) Decisions Based on International Legal Principles ....................... 239 b) Incorrect Application of Rules to the Substance of the Dispute ..... 244 c) Decisions Beyond the Submissions and Claims of the Parties ........ 245 4. Causality .............................................................................................................. 256 5. Preclusion/Waiver ............................................................................................. 257 V. Partial Recognition and Enforcement ................................................................ 258 1. Separability of Decision on Matters Submitted to Arbitration from Those Not so Submitted .................................................................................. 258 2. Recognition and Enforcement Insofar as Matters Were Submitted to Arbitration .......................................................................................................... 261 H. Improper Tribunal Composition or Flawed Proceedings, Article V(1)(d)......... 262 I. Overview ................................................................................................................... 262 II. Spirit and Purpose .................................................................................................. 263 III. Drafting History ...................................................................................................... 265 IV. Improper Tribunal Composition......................................................................... 269 1. Governing Rules ................................................................................................ 270 a) Party Agreement and Its Limits.............................................................. 270 b) Law of the Country Where the Arbitration Took Place ................... 275 2. Composition of the Arbitral Tribunal Not in Accordance with Governing Rules ................................................................................................ 279 a) Appointment and Challenge of Arbitrators ......................................... 280 b) Predominant Position of One of the Parties........................................ 282 c) Form of Appointment ............................................................................... 285 d) Number of Arbitrators .............................................................................. 286 e) Qualification of Arbitrators...................................................................... 291 f) Incapacity of Arbitrators........................................................................... 292 g) Impartiality .................................................................................................. 293 h) Other Issues ................................................................................................. 297 3. Causality .............................................................................................................. 300 4. Preclusion/Waiver ............................................................................................. 305 V. Flawed Proceedings ................................................................................................ 308 1. Governing Rules ................................................................................................ 309 a) Party Agreement......................................................................................... 310 b) Law of the Country Where the Arbitration Took Place ................... 312 2. Arbitral Proceedings Not in Accordance with Governing Rules ........... 313 3. Additional Criteria for Procedural Irregularities ....................................... 315 a) Causality ....................................................................................................... 316 b) Gravity .......................................................................................................... 319 c) Substantial Prejudice.................................................................................. 320 4. Preclusion/Waiver ............................................................................................. 322 5. Flawed Proceedings in Specific Procedural Situations.............................. 323 a) Commencement and Early Stages of the Proceedings....................... 324 b) Conduct of the Proceedings and Taking of Evidence........................ 329 c) Rendition of the Arbitral Award ............................................................ 338 I. Non-Binding Award, Article V(1)(e) .......................................................................... 351 I. Overview ................................................................................................................... 351 II. Spirit and Purpose .................................................................................................. 353 III. Drafting History ...................................................................................................... 355 IV. Award Not yet Binding on the Parties ..............................................................356a 1. Binding Force in General ................................................................................ 357 2. Interim Awards, Partial Awards and Interim Measures .......................... 367 a) Interim Award............................................................................................. 369 b) Partial Award............................................................................................... 371 c) Interim Measure ......................................................................................... 372 V. Award Set Aside/Suspended................................................................................. 377 1. Set Aside .............................................................................................................. 378 a) Governing Law............................................................................................ 378 b) Limitation of Grounds for Setting Aside by Article IX of the European Convention................................................................................ 392

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Article V

New York Convention

c) Preclusion of Pleas as to the Tribunal’s Jurisdiction by Article V(2) of the European Convention...................................................................... 394 d) Recognition of the Setting-Aside Decision...........................................394a 2. Suspension .......................................................................................................... 395 a) Automatic Suspension v. Judicial Suspension ..................................... 395 b) Stay of the Award’s Enforcement ........................................................... 397 3. Competent Authority ....................................................................................... 403 4. Other Events Depriving the Award of Its Binding Force ........................ 413 a) Doctrine of Merger .................................................................................... 413 b) Limitation Period for Enforcement........................................................ 415 5. Analogous Application of Article V(1)(e) in the Aftermath of the Enforcement Order ........................................................................................... 416 J. Objective Arbitrability, Article V(2)(a)....................................................................... 418 I. Overview ................................................................................................................... 418 II. Spirit and Purpose .................................................................................................. 421 III. Drafting History ...................................................................................................... 422 IV. General ...................................................................................................................... 424 1. Concept of Article V(2)(a) .............................................................................. 424 2. Distinction Between Non-Arbitrability and Substantive Invalidity....... 425 3. Subject Matter of the Difference Not Capable of Settlement by Arbitration .......................................................................................................... 427 a) Subjective Arbitrability.............................................................................. 428 b) Objective Arbitrability............................................................................... 429 aa) Definition................................................................................................ 429 bb) Arbitrability and Mandatory Laws ................................................... 432 cc) Domestic v. International Arbitrability ........................................... 438 dd) Legal Limitations on Restricting Arbitrability................................ 441 4. Under the Law of the Country Where Recognition and Enforcement Is Sought.............................................................................................................. 446 5. Duty to Determine Arbitrability .................................................................... 448 6. Discretion of the Competent Authority....................................................... 449 V. Typical Issues of Objective Arbitrability ........................................................... 450 1. Acts of State........................................................................................................ 451 2. Antitrust Law ..................................................................................................... 455 3. Consumer Law ................................................................................................... 458 4. Distributorship Contracts................................................................................ 462 5. Family and Succession Law............................................................................. 463 6. Illegality and Embargos.................................................................................... 464 7. Insolvency Law................................................................................................... 467 8. Intellectual Property Rights............................................................................. 470 9. Intra-Corporate Disputes................................................................................. 473 10. Labor Law ........................................................................................................... 476 11. Securities Law..................................................................................................... 477 12. Tax Law ............................................................................................................... 479 K. Public Policy, Article V(2)(b)........................................................................................ 480 I. Overview ................................................................................................................... 480 II. Spirit and Purpose .................................................................................................. 481 III. Drafting History ...................................................................................................... 482 1. Predecessor Provisions ..................................................................................... 482 2. Genesis ................................................................................................................. 483 IV. General Concept of Public Policy ....................................................................... 488 1. Purpose and Relevance of the Public Policy Defense ............................... 489 a) Safety-Valve Mechanism........................................................................... 490 b) Gateway for Undesirable Obstructions ................................................. 491 c) Relation Between Arbitrability and Public Policy............................... 492 2. Governing Law................................................................................................... 493 3. Standard of Public Policy ................................................................................ 494 a) Contracting State’s Sovereignty over Defining Public Policy........... 494 b) Internationalized Standards ..................................................................... 496 c) Legal Limitations for National Public Policies .................................... 499 aa) Upper Limitations................................................................................. 500

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Grounds for Refusal of Recognition and Enforcement

Article V

(1) No Infringement of Other Provisions Under the Convention ...................................................................................... 502 (2) No Devaluation of the Convention............................................ 503 (3) Threshold for Public Policy ......................................................... 504 (4) No Less Favorable Standard than for Domestic Awards...... 505 bb) Lower Limitations................................................................................. 506 d) Best Practice Standard for Public Policy............................................... 507 e) Procedural and Substantive Public Policy ............................................ 514 4. Subject Matter of the Public Policy Defense............................................... 515 a) Recognition or Enforcement Contrary to Public Policy ................... 515 b) Fact Finding by the Enforcement Court ............................................... 517 5. Causality ..............................................................................................................517a 6. Preclusion and Waiver ..................................................................................... 518 7. Foreign Court Decisions Rejecting Grounds for Denying Recognition and Enforcement........................................................................ 518a 8. Court Determination of Public Policy Inconformity and Its Legal Consequences ..................................................................................................... 519 9. No Public Policy Defense Under Article IX of the European Convention ......................................................................................................... 520 V. Typical Issues of (International) Public Policy ................................................ 521 1. Procedural Public Policy.................................................................................. 522 a) Lack of the Tribunal’s Jurisdiction ......................................................... 523 b) Aggravating Procedural Stipulations...................................................... 524 c) Constitution and Impartiality of the Tribunal .................................... 527 aa) Constitution of the Tribunal .............................................................. 527 bb) Impartiality of the Tribunal................................................................ 530 d) Due Process ................................................................................................. 537 aa) Right to Be Heard................................................................................. 539 (1) General ............................................................................................. 539 (2) Default of a Party........................................................................... 547 (3) Unacceptability of Proceedings................................................... 548 bb) Conduct of the Proceedings ............................................................... 549 cc) Taking of Evidence ............................................................................... 551 e) Procedural Fraud ........................................................................................ 553 f) Illegally Obtained Evidence...................................................................... 554 g) Res Iudicata.................................................................................................. 555 h) Award Set Aside ......................................................................................... 556 i) Unreasoned or Contradictory Award .................................................... 557 2. Substantive Public Policy................................................................................. 559 a) Fundamental Principles Pertaining to Justice or Morality ............... 560 aa) Application of Law ............................................................................... 561 (1) Ban on Révision au Fond............................................................. 561 (2) Grossly Erroneous or Arbitrary Application of Law ............. 563 bb) Specific Examples of Fundamental Principles................................ 565 (1) Statutes of Limitation .................................................................... 565 (2) Unlawful Relief ............................................................................... 566 (a) Damages .................................................................................... 567 (b) Interest....................................................................................... 569 (c) Calculation Errors ................................................................... 571 (d) Costs........................................................................................... 572 (e) Security ...................................................................................... 573 b) Rules Serving the State’s Essential Political, Social or Economic Interests......................................................................................................... 574 aa) Criminal Law ......................................................................................... 575 bb) Mandatory Commercial Laws............................................................ 578 (1) Competition Law............................................................................ 579 (2) Insolvency Law ............................................................................... 580 (3) Consumer and Minors Protection Law .................................... 581 (4) Employment and Commercial Agent Law...............................581a (5) Company Law.................................................................................581c (6) Exchange Control........................................................................... 582 (7) Import or Export Restrictions..................................................... 583

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Article V 1–3

New York Convention (8) Patent Law ....................................................................................... 583a cc) Constitutional Principles.....................................................................583b c) Duty of the State to Respect Its Obligations Under International Law................................................................................................................. 584 aa) Obligations Under International Law .............................................. 584 bb) National Policy and Interests ............................................................. 585

A. Overview1 Article V is one of the single most important provisions of the Convention. It lists the grounds on which recognition and enforcement of a foreign arbitral award may be refused. The list of grounds for refusal contained in Article V is exhaustive; no additional grounds may be established by provisions of national law (Õ para. 21).2 2 Article V is subdivided into two sections: Article V(1) contains the grounds for refusal which have to be raised by the party resisting enforcement, while Article V(2) sets out the grounds to be examined by the exequatur court ex officio.3 3 Studies conducted in Switzerland have analyzed how frequently specific grounds for refusal and setting aside are addressed in the decisions of the Swiss Supreme Court.4 Though limited to the Swiss experience, the studies may provide some indication of the practical importance of the individual grounds for refusal. According to the studies, the ground put forward most frequently was an (alleged) violation of public policy.5 As far as Article V(1) is concerned, parties resisting enforcement most often relied on Article V(1)(d), followed by lit. c and b. 1

1

We would like to thank Viola Vorbrüggen and Leonard Funk for their support with this chapter. Belgium: TPI Bruxelles, XXII Y.B. Com. Arb. 643, 647 (1997); TPI Bruxelles, b-Arbitra 2017, 287, 292; France: CA Paris, Dec. 17, 2015, RG No. 15/11667 (unreported), available at http://newyorkconven tion1958.org/index.php?lvl=notice_display&id=3452&opac_view=2 (last visited Apr. 29, 2019); Israel: Zeevi Holdings Ltd. v. The Republic of Bulgaria, XXXIV Y.B. Com. Arb. 632, 636 (2009); Luxemburg: CA, XXIVa Y.B. Com. Arb. 714, 717 (1999); Switzerland: Appellationsgericht Basel-Stadt, BJM 1991, 144 = XVII Y.B. Com. Arb. 581, 583 (1992); CJ, Mar. 22, 2013 (unreported), available at http://newyorkcon vention1958.org/index.php?lvl=notice_display&id=3687&opac_view=2 (last visited Apr. 29, 2019); BG, XLI Y.B. Com. Arb. 567 (2016); UK: Rosseel N.V. v. Oriental Commercial Shipping (UK) Ltd., [1991] 2 Lloyd’s Rep 625 = XVI Y.B. Com. Arb. 615 (1991); US: China Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274, 283 (3d Cir. 2003); Ukraine: Sup. Ct., CLOUT Case No. 1380; US: Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., XXIII Y.B. Com. Arb. 1058 (1998) (2d Cir. 1997). 3 Bertheau, New Yorker Abkommen, p. 57; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 266; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 56 para. 4. 4 See Kunz, 34(4) ASA Bull. 836 (2016); Dasser/Wójtowicz, 36(2) ASA Bull. 276 (2018); for earlier studies, see Dasser, 25(3) ASA Bull. 444 (2007), Dasser, 28(1) ASA Bull. 82 (2010), Dasser/Roth, 32(3) ASA Bull. 460 (2014) and Dasser/Wójtowicz, 34(2) ASA Bull. 280 (2016); these studies focus on the grounds for setting aside of arbitral awards rendered in Switzerland (international and domestic). 5 Dasser/Wójtowicz, 34(2) ASA Bull. 280 (2016). According to the study, only two of the arbitral awards were successfully challenged on the ground of a violation of public policy (corresponding to a success rate of 1.1 % for challenges based on a violation of public policy). Overall, approximately 7.09 % of the challenges relating to commercial (i.e. non-sports) arbitral awards before the Swiss Supreme Court were successful (out of a total of 282 cases surveyed); for a more international perspective, also Õ Art. V para. 130; for an overview concerning enforcement in Russia, see Hennecke/Machulskaya, 13(5) TDM (2015); for an analysis of the Chinese Supreme People’s Court’s decisions on enforcement see King, 17(1) Asian Int’l Arb. J. 1 (2015). 2

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Grounds for Refusal of Recognition and Enforcement

4–5 Article

V

B. Spirit and Purpose Article V is inspired by the general underlying policy found throughout the Conven- 4 tion – favor arbitrandum. It is the fundamental purpose of the Convention to facilitate the recognition and enforcement of foreign arbitral awards (also Õ Art. III paras 7 et seq.). The achievement of this aim depends to a large extent on the grounds upon which national courts can refuse recognition and enforcement. Article V eliminates many unnecessary hurdles to enforcement, thus usually making the enforcement of foreign arbitral awards considerably easier than the enforcement of judgments by foreign national courts. On the other hand, it ensures that national jurisdictions will have sufficient opportunity to verify that the basic principles of procedural and substantive justice (i.e. limitations set by public policy) are respected. The full realization of the aim of the Convention depends on the policy of the 5 national courts in the countries where recognition and enforcement are sought, since there is no supranational court watching over the uniform application of the Convention in its Member States (Õ Prel. Rem. paras 102 et seq.).6 The pro-arbitration bias of Article V has been recognized in the course of its practical application by national courts in many jurisdictions.7 In line with the spirit of the Convention, the general tendency among national courts has been to construe the grounds for refusing recognition and enforcement rather narrowly.8 For example, the public policy ground contained in Article V(2)(b) has frequently been considered limited to the narrower concept of international public policy (Õ paras 496 et seq.). Another example of the general tendency to recognize the pro-arbitration bias of Article V is the view held by national courts in many jurisdictions that in cases in which a ground for refusal of enforcement pursuant to Article V exists, the exequatur court still has discretion to nevertheless declare the award enforceable (Õ para. 74). However, there are nonetheless still some cases in which domestic courts have applied the Convention in a less than arbitration-friendly way, going as far as to create new grounds for refusing enforcement against the express wording of Article V.9 6

See also Tao, Arbitration Law and Practice in China, p. 155. Bermuda: Huawei Tech Investment Co. Ltd. v. Sampoerna Strategic Holdings Ltd., XXXIX Y.B. Com. Arb. 354 (2014); Canada: Mexico v. Cargill, [2011] O.J. No. 4320 = CLOUT Case No. 1290; ECJ: Eco Swiss China Time Ltd. v. Benetton International NV (C-126/97), [1999] ECR I-3055 para. 35 = EuZW 1999, 565 = XXIVa Y.B. Com. Arb. 629, 636 et seq. (1999): “it is in the interest of arbitration proceedings that review of arbitral awards should be limited in scope and that annulment of or refusal to recognise an award should be possible only in exceptional circumstances”. El Salvador: Corte Suprema de Justicia, CLOUT Case No. 1381; Spain: Tribunal Superior de Justicia de Catalunya, XLII Y.B. Com. Arb. 520 para. 2c (2017), where the court observed: “[…] the starting point is the assumption of the regularity, validity and effectiveness of the foreign arbitral award, which gives way only when the existence of any of the said limited grounds established for the refusal of recognition in the New York Convention is proved.” 8 Canada: Corporacion Transnacional de Inversiones, S.A. de C.V. v. STET International, S.p.A., 45 O.R. (3d) 183 = CLOUT Case No. 391 = XXVI Y.B. Com. Arb. 323 (2001); India: Renusagar Power Co. Ltd. v. General Electric Co., AIR 1994 SC 860 = XX Y.B. Com. Arb. 681, 700 (1995); Spain: Audiencia Provincial de Madrid, Sep. 24, 2009, reported by Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 29, 2019); Ukraine: Sup. Ct., CLOUT Case No. 1380; US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), I Y.B. Com. Arb. 205 (1976) (2d Cir. 1974); Copal Co. v. Fotochrome, Inc., 517 F.2d 512 (2d Cir. 1975). 9 See e.g. manifest disregard of the law (Õ para. 23) and forum non conveniens doctrines in the US (Õ para. 25); public policy exception transformed into “public policy and good morals” in Oman (Article 53 of the Arbitration Act 1997), Qatar (Article 380(4) of the Code of Civil and Commercial 7

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Article V 6–8

New York Convention

C. Drafting History I. Overall Drafting History The aims pursued in the drafting of Article V can best be illustrated by considering the corresponding provisions of Articles 1–3 of the Geneva Convention of 1927 (Õ Annex V 2), which were considered to contain too many hurdles to the enforcement of arbitral awards. The drafters of Article V aimed to correct these shortcomings.10 While the draft of the Committee set up by the United Nations Economic and Social Council (ECOSOC draft)11 remained cautious in the changes it suggested, the New York Conference advocated drastic changes on the basis of comments by national governments on the ECOSOC draft. In that respect, the comments by the Dutch government played a major role.12 The result reached in Article V is unanimously considered an improvement compared to the Geneva Convention;13 it has even been called revolutionary.14 7 The first important point of controversy was the exhaustive character of the grounds listed. The ECOSOC draft provided that recognition and enforcement “may only be refused if the competent authority in the country where recognition or enforcement is sought is satisfied […]”15 This provision led to two opposing redrafting proposals. The Pakistani government suggested replacing “may only” by “may,”16 thus questioning the exhaustive character of the grounds for refusal of enforcement. On the other hand, the Dutch redraft provided: “Recognition and enforcement may only be refused if […]”17 This redraft was adopted at the New York Conference. 8 A number of additional grounds for refusal were suggested, considered and subsequently rejected so as not to create unnecessary obstacles to the enforcement of foreign arbitral awards. One of those grounds was particularly controversial: upon the proposal of the Indian representative, the majority of the ECOSOC Committee decided in favor of adopting an additional ground for refusal not contained in the ICC draft or the Geneva Convention: “That the award is so vague and so indefinite as to be incapable of 6

Procedure) and United Arab Emirates (Article 235(vi) of the Code of Civil Procedure 1992); broad concept and application of the public policy exception in Russia, see e.g. Hennecke/Machulskaya, 13(5) TDM (2015); Maurer, Public Policy Exception, pp. 221 et seq. 10 The drafting history of Article V is found in the travaux préparatoires relating to Article IV of the ICC and ECOSOC draft, which became Article V of the current Convention. The drafting process for the different paragraphs of Article V will be set out in detail in the sections dedicated to each ground for refusal. This introduction focuses on the drafting process for the general structure of the provision. 11 E/2704/Rev.1 (Õ Annex IV 1). 12 Sanders, in: van den Berg (ed.), 40 Years of NYC, pp. 11 et seq.; van den Berg, NYC, pp. 264 et seq. The Netherlands Arbitration Institute criticized the ECOSOC draft for not constituting a large enough step forward as compared to the Geneva Convention. It suggested that only the public policy ground should be retained as a ground for refusing enforcement, so as to limit the control of the awards by exequatur courts as far as possible (E/CONF.26/4, para. 73 [Õ Annex IV 1]). This radical approach was, however, not followed at the New York Conference. It was later adopted for domestic awards by the French legislature in Article 1498 of the NCPC (Article 1498 of the NCPC reads: “Les sentences arbitrales sont reconnues en France si leur existence est établie par celui qui s’en prévaut et si cette reconnaissance n’est pas manifestement contraire à l’ordre public international”). 13 Bülow, JBl 1961, 307, 309; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 206 et seq. 14 Robert, Rev. arb. 1958, 70, 76. 15 E/2704, p. 2 (Õ Annex IV 1). 16 E/CONF.26/L.16 (Õ Annex IV 1). 17 E/CONF.26/L.17 (Õ Annex IV 1).

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recognition or enforcement” (Article IV(f) of the ECOSOC draft).18 This ground was, however, dropped at the New York Conference following heavy criticism by a number of governments.19 The rationale behind the decision to drop this ground was the concern that it might be used as a pretext to refuse enforcement and could lead to all kinds of delaying tactics.20 Various governments suggested further grounds for refusal of enforcement, all of 9 which were dismissed at the New York Conference. Italy, for example, suggested providing for refusal of enforcement where “[t]he arbitral award is incompatible with a judicial decision, applying to the same parties and the same subject matter, rendered in the territory of the State where the award is relied upon.”21 Brazil suggested adding a ground according to which “the award had not been ratified, in the country where it was made, by a competent judicial authority, and that it had not received, in the country where enforcement is sought, the sanction required by local law.”22 It is interesting to note that the ICC and ECOSOC drafts listed the non-arbitrability 10 of the subject-matter under lit. a and the incompatibility with public policy or fundamental principles of law under lit. h.23 Following the proposal by the Belgian government,24 those two provisions were merged into a single clause in the final text.25

II. Essential Changes with Regard to the Geneva Convention The essential changes from Articles 1–3 of the Geneva Convention (Õ Annex V 2) to 11 Article V can be summarized as follows: Most importantly, the burden of proof on the party requesting recognition and 12 enforcement was considerably reduced. Under Article 1 of the Geneva Convention, the party seeking enforcement had to prove a large number of conditions. Following the Dutch proposal to amend the ECOSOC draft, the drafters of Article V transformed most of these conditions into grounds for refusal of enforcement, shifting the onus of proof onto the party resisting enforcement.26 The party seeking recognition and enforcement need only produce the duly authenticated arbitral award (or a certified copy thereof) and the original arbitration agreement (or a certified copy thereof). Such documentation constitutes prima facie evidence entitling it to enforcement of the award, 18

E/2704, para. 42 (Õ Annex IV 1). See, e.g., the Comments by the Austrian government, E/2822, p. 20 (Õ Annex IV 1); Comments by the Belgian government, E/2822, p. 22 (Õ Annex IV 1); Comments by the German government, E/2822, p. 23 (Õ Annex IV 1); Comments by the Japanese government, E/2822, p. 24 (Õ Annex IV 1); Comments by the Swiss government, E/2822, pp. 25 et seq. (Õ Annex IV 1); Comments by the USSR government, E/2822, p. 26 (Õ Annex IV 1); Comments by the Japan Commercial Arbitration Association, E/CONF.26/4, para. 74 (Õ Annex IV 1). 20 See, e.g., the Comments by the Austrian government, E/2822, p. 20 (Õ Annex IV 1); Comments by the Belgian government, E/2822, p. 22 (Õ Annex IV 1); Comments by the German government, E/2822, p. 23 (Õ Annex IV 1); Comments by the Swiss government, E/2822, pp. 25 et seq. (Õ Annex IV 1); Comments by the USSR government, E/2822, p. 26 (Õ Annex IV 1); Comments by the Japan Commercial Arbitration Association, E/CONF.26/4, para. 74 (Õ Annex IV 1). Comments by the USSR government, E/2822, p. 26 (Õ Annex IV 1); Comments by the Japan Commercial Arbitration Association, E/CONF.26/4, para. 74 (Õ Annex IV 1). 21 E/CONF.26/L.38 (Õ Annex IV 1). 22 E/CONF.26/L.43 (Õ Annex IV 1). 23 Annex to the Report of the ECOSOC Committee, E/2704, p. 2 (Õ Annex IV 1). 24 Comments by the Austrian government, E/2822, p. 21 (Õ Annex IV 1). 25 Comments by the Swiss government, E/2822, p. 26 (Õ Annex IV 1). 26 Bertheau, New Yorker Abkommen, pp. 54 et seq.; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 before para. 1; van den Berg, NYC, p. 264. 19

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Article V 13–15

New York Convention

leaving it to the party resisting enforcement to provide evidence that the prerequisites of one or more of the grounds for refusing recognition and enforcement under Article V are fulfilled (Õ para. 45).27 13 The Geneva Convention did not clarify its position on the question of whether the exequatur court had to examine the positive conditions for enforcement (Article 1 of the Geneva Convention, Õ Annex V 2) and grounds for refusal (Articles 2 and 3 of the Geneva Convention) ex officio or at the request of one of the parties. This meant that this question was left to the domestic law of the country where recognition and enforcement were sought. Article V uniformly provides the same rules for all Member States, under which the party resisting recognition and enforcement has to raise the grounds contained in Article V(1), whereas the grounds contained in Article V(2) are to be examined by the exequatur court ex officio. The decision to subdivide the Article into grounds to be raised by the party resisting enforcement and grounds to be considered ex officio was finally taken at the New York Conference. In its last paragraph, Article IV of the ICC draft contained a provision according to which “the circumstances contained in (c), (d) and (e) may only be invoked by the party against whom enforcement is sought.” Upon the proposal of the representative of Sweden, the Committee considered the possibility of including a paragraph in the draft Convention providing that certain grounds for refusal should be considered only if raised by the party resisting enforcement, but decided against it. According to the Report of the ECOSOC Committee, it was considered unnecessary to make a distinction between grounds to be raised by a party and those to be raised ex officio by the exequatur court. The Committee was of the opinion that it was sufficient to provide for refusal of enforcement if the exequatur court was satisfied that any of the circumstances in Article IV warranted refusal of enforcement.28 This omission was criticized by a number of governments, including the German government, which considered that the grounds in lit. b, e and g were chiefly designed to protect the party resisting enforcement, so that it made sense for the exequatur court to consider them only if raised by the protected party.29 Following this criticism, the distinction was reintroduced during the New York Conference. 14 The grounds for refusing enforcement were limited in the drafting process: under the Geneva Convention, in addition to the grounds mentioned in the Convention, the party opposing enforcement was not prevented from raising additional grounds for refusal under the law governing the arbitration (Article 3 of the Geneva Convention). Based on a proposal already contained in the ECOSOC draft,30 Article V now contains an exhaustive list of the grounds upon which recognition and enforcement can be refused.31 15 Another improvement is the elimination of the double exequatur. Under the Geneva Convention, the party seeking enforcement had to prove that the award had become final in the country in which it was made (Article 1(d) of the Geneva Convention). This could be proven only by providing an exequatur issued in this country.32 This was considered as an unnecessary, time-consuming hurdle at the New York Conference. This hurdle was eliminated by replacing the word “final” by “binding” so as to clarify that an exequatur rendered in the country of origin was not a prerequisite for recognition and enforcement. 27

Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 264; Robert, Rev. arb. 1958, 70, 76. E/2704, paras 51, 52 (Õ Annex IV 1). 29 See the comments by the German government, E/2822, p. 23 (Õ Annex IV 1). 30 E/2704/Rev.1, p. 9 (Õ Annex IV 1). 31 Van den Berg, NYC, p. 265. Õ para. 21. 32 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 266. 28

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For the same reason, the burden of proof in relation to the award not being binding was shifted to the party resisting enforcement.33 The Dutch proposal also led to a clearer organization and a more precise definition 16 of the grounds for refusal, which were concentrated in the single provision of Article V. The Convention shows greater deference to the contractual autonomy of the 17 parties: pursuant to Article V(1)(a), the parties are free to choose the law applicable to the arbitration agreement. The law of the country where the award was made is relevant only failing such agreement. Article V(1)(d) also gives primacy to the party-agreed rules relating to the composition of the arbitral tribunal and the arbitral procedure. Again, the law of the country where the award was made is only of subsidiary relevance (also Õ para. 264, Õ paras 275 et seq.) The reference to the “principles of the law of the country in which [the award] is 18 sought to be relied upon” in addition to the public policy ground in Article 1(e) of the Geneva Convention was criticized as opening the door for a virtual retrying of the dispute.34 In order to narrow the scope of this ground for refusal, the reference to the principles of law of the country where recognition and enforcement are sought was struck out in the New York Conference, leaving only the violation of public policy as a ground for refusal of enforcement.35

D. General I. Scope of Review by the National Courts 1. The Principle: No Review of Merits In contrast to litigation before national courts, which usually involves at least two 19 instances, arbitration is principally a one-instance process. As a result, legal proceedings are shortened, which is one of the key features of arbitration and one of the main reasons why parties choose to settle their disputes through arbitration rather than in the national courts. Parties opting for arbitration know that – save limited legal remedies – they will not have the opportunity to have their case reconsidered by another court or arbitral tribunal. They are willing to accept the risks associated with this approach in return for the advantage that a final resolution of the dispute will be provided more quickly. It has therefore been one of the principal objectives of the Convention to establish an exhaustive and narrow list of grounds for refusing enforcement of an arbitral award. Key to achieving this objective is that the merits of an arbitral award are not open for review by the national courts at the enforcement stage, in principle (prohibition of a révision au fond). This is widely recognized in the practice of national courts, as well as by commentators.36 Accordingly, errors of 33 Contini, 8 Am. J. Comp. L. 283, 300 (1959); Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 267. 34 E/2822/Add.4, p. 8 (Õ Annex IV 1). 35 E/CONF.26/SR.17 (Õ Annex IV 1). 36 Brazil: Superior Tribunal de Justiça, XXXVIII Y.B. Com. Arb. 334 (2013) = CLOUT Case No. 1486; Superior Tribunal de Justiça, CLOUT Case No. 1488; China: Hubei Jingmen Intermediate People’s Court, CLOUT Case No. 1469; France: CA Paris, Rev. arb. 2007, 101; Germany: BGH, SchiedsVZ 2012, 41; LG Zweibrücken, IV Y.B. Com. Arb. 262, 262 (1979); OLG Köln, SchiedsVZ 2005, 163, 165 = XXX Y.B. Com. Arb. 557 (2005); OLG München, SchiedsVZ 2012, 156, 159 = XXXIX Y.B. Com. Arb. 389 (2014); OLG Brandenburg, SchiedsVZ 2016, 43; Italy: Cass., XXII Y.B. Com. Arb. 715, 722 (1997); Netherlands: HR, I Y.B. Com. Arb. 195, 195 (1976); Portugal: Tribunal da Relação de Lisboa, XXXVIII Y.B. Com. Arb. 443 (2013); Russia: Moscow District Court, XXIII Y.B. Com. Arb. 735

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New York Convention

judgment, whether of fact or of law, are not in themselves grounds on which the award may be refused enforcement.37

2. Exceptions 20

While the principle is generally recognized, there are gateways de facto permitting some degree of review of the merits of an award, in particular the violation of public policy (Article V(2)(b)). Some courts tend to raise certain fields of law to the level of public policy. This is most obvious with regard to competition law (Õ para. 579). In accordance with the spirit of the Convention, a restrictive approach ought to be adopted by national courts, i.e. the temptation to exercise a review on the merits with regard to competition law issues ought to be resisted. A similar risk arises in the context of the right to be heard under Article V(1)(b). In this context, the insufficient analysis (according to a national court) of the parties’ arguments (Õ para. 184), as well as the assumption of an impermissible decision by surprise (Õ para. 192), may be abused by national courts as gateways to a review of the merits.

3. Exhaustive Character of the List of Grounds for Refusal in Article V 21

a) The Approach of the Convention The list of grounds for refusal of recognition and enforcement as set forth in Article V is exhaustive, not exemplary. Article V expressly states that enforcement may be refused “only if” the requesting party furnishes evidence that one of the grounds set

(1998); Spain: Tribunal Superior de Justicia de Catalunya, XLII Y.B. Com. Arb. 520, 523 (2017); Audiencia Provincial de Madrid, June 5, 2009, reported by Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 29, 2019); Audiencia Provincial de León, May 4, 2009, reported by Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 29, 2019); Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237, 239 (1981); UK: Cukurova Holding A.S. v. Sonera Holding B.V., XXXIX Y.B. Com. Arb. 516 (2014); Ukraine: Sup. Ct., CLOUT Case No. 1330; Sup. Ct., CLOUT Case No. 1380; US: United Paperworkers Int’l Union v. Misco, Inc., 108 S. Ct. 364 (1987) = 484 U.S. 29, 38 = 98 L. Ed. 2d 286; Generica Ltd. v. Pharm. Basics, Inc., 1996 WL 535321 (N.D. Ill. 1996) = XXII Y.B. Com. Arb. 1029, 1031 (1997); Lito Martinez Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG, XXXIX Y.B. Com. Arb. 581, 583 (2014) (E.D. La. 2014); Born, International Commercial Arbitration, p. 3707; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1693; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.352; ICCA, Guide, p. 78; van den Berg, NYC, p. 269. 37 Chile: Corte Suprema, Sep. 15, 2008, reported by Cristián Conejero-Roos, a contribution by the ITA Board of Reporters, available at www.kluwerarbitration.com (last visited Apr. 29, 2019); France: CA Paris, Rev. arb. 2008, 161 = XXXIII Y.B. Com. Arb. 480 (2008); Germany: LG Zweibrücken, IV Y.B. Com. Arb. 262 (1979); India: Renusagar Power Co. Ltd. v. General Electric Co., AIR 1994 SC 860 = XX Y.B. Com. Arb. 681, 688 (1995); Italy: Tribunale di Napoli, IV Y.B. Com. Arb. 277 (1979); Russia: Moscow District Court, XXIII Y.B. Com. Arb. 735 (1998); Spain: Audiencia Provincial de Gipuzkoa, May 28, 2009, reported by Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http:// www.kluwerarbitration.com (last visited Apr. 29, 2019); cf. also US: Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 693–694 (2010), referring (with regard to the standard of review under section 10(a) FAA): to the “longstanding rule that [i]f an award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court will not set aside for error, either in law or in fact.”

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forth in Article V is fulfilled.38 The Convention does not envisage a refusal of enforcement based on other grounds.39 b) Additional Grounds Applied in the United States US Courts have generally been enforcement-friendly. However, two traditional US 22 law doctrines, the doctrines of manifest disregard of the law and of forum non conveniens, have in the past been applied as grounds for refusal of enforcement despite the exhaustive character of the grounds listed in Article V. aa) Manifest Disregard of the Law. Under US law, an arbitrator manifestly dis- 23 regards the law when (a) a case is governed by a clearly defined applicable legal principle and (b) the arbitrator consciously refused to heed it.40 According to US case law,41 manifest disregard of the law constitutes a ground for vacating a domestic arbitral award under section 10(a)(4) of the Federal Arbitration Act (FAA). Section 208 of the FAA provides that the doctrine may apply to actions brought pursuant to the Convention to the extent that it is not in conflict with sections 201–208. Because section 207 of the FAA refers to the grounds listed in the Convention, the prevailing view among US courts is that the exhaustive character of the grounds for refusal contained in Article V bars the application of this doctrine as a basis for refusing enforcement in cases falling under the regime of the Convention.42 However, in some instances courts have relied on the doctrine of manifest disregard of the law as a ground for refusing enforcement of foreign arbitral awards.43 Following the Supreme Court decision in the matter of Hall 38 Belgium: TPI Bruxelles, XXII Y.B. Com. Arb. 643, 647 (1997); Israel: Zeevi Holdings Ltd. v. The Republic of Bulgaria, XXXIV Y.B. Com. Arb. 632, 636 (2009); Luxemburg: CA, XXIVa Y.B. Com. Arb. 714, 717 (1999); Switzerland: Appellationsgericht Basel-Stadt, BJM 1991, 144 = XVII Y.B. Com. Arb. 581 (1992); UK: Rosseel N.V. v. Oriental Commercial Shipping (UK) Ltd., [1991] 2 Lloyd’s Rep 625, 628 = XVI Y.B. Com. Arb. 615 (1991); Ukraine: Sup. Ct., CLOUT Case No. 1380; US: Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., XXIII Y.B. Com. Arb. 1058 (1998) (2d Cir. 1997); Born, International Commercial Arbitration, p. 110; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1693; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.351; van den Berg, NYC, p. 269. 39 In his hypothetical draft convention on the international enforcement of arbitration agreements and awards, van den Berg suggests laying this down even more explicitly: he suggests the following wording of a new Article V(1): “Enforcement of an arbitral award shall not be refused on any ground other than the grounds expressly set forth in this article.” (van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649–666). 40 US: KT Corp. v. ABS Holdings, Ltd., 2018 WL 3435405 (S.D.N.Y. 2018) = XLIV Y.B. Com. Arb. ___ (2019). 41 US: Wilko v. Swan, 346 U.S. 427 (1953); overruled by US: Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989). 42 US: Brandeis Intsel Ltd. v. Calabrian Chems. Corp., 656 F. Supp. 160 (S.D.N.Y. 1987) = XIII Y.B. Com. Arb. 543 (1988): manifest disregard does not fall under the public policy ground; US: Nat’l Oil Corp. v. Libyan Sun Oil Co., XVI Y.B. Com. Arb. 651 (1991) (D. Del. 1990); Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 178 (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639, 649 (1992); Avraham v. Shigur Express Ltd., XVI Y.B. Com. Arb. 624 (1991) (S.D.N.Y. 1989); M&C Corp. v. Erwin Behr GmbH & Co. KG, XXII Y.B. Com. Arb. 993 (1997) (6th Cir. 1996): the exhaustive list of grounds in Article V does not include miscalculations of fact or manifest disregard of the law; US: Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., XXIII Y.B. Com. Arb. 1058 (1998) (2d Cir. 1997); George Watts & Son, Inc. v. Tiffany & Co., 248 F.3d 577, 579 (7th Cir. 2001), noting that the aforementioned concept of “manifest disregard of the law” would call into serious question the finality of arbitral awards; Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434 (11th Cir. 1998) = XXIVa Y.B. Com. Arb. 819 (1999); Saudi Iron & Steel Co. v. Stemcor USA Inc., XXIII Y.B. Com. Arb. 1082 (1998) (S.D.N.Y. 1997); Su Zhou Tian Lu Steel Co. v. Sherman Int’l Corp., 2008 WL 4790728 (W.D. Pa. 2008). 43 US: Office of Supply, Gov’t of Republic of Korea v. N.Y. Navigation Co., 496 F.2d 377, 379 (2d Cir. 1972); Am. Constr. Mach. & Equip. Corp. v. Mechanised Constr. of Pak. Ltd., 659 F. Supp. 426 (S.D.N.Y. 1987); Jam. Commodity Trading Co. v. Connell Rice & Sugar Co., XVIII Y.B. Com. Arb. 466 (1993) (S.D.N.Y. 1991).

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New York Convention

Street Associates, L.L.C. v. Mattel44, it is disputed whether the doctrine of manifest disregard of the law is still a valid ground for refusal of enforcement, even in relation to purely domestic awards.45 24 Within the scope of the Convention, the refusal of recognition and enforcement due to manifest disregard of the law would contravene the purpose of allowing the enforcement of awards where possible, i.e. where none of the grounds exhaustively set forth are applicable. In addition, an examination by the exequatur court as to whether an alleged disregard actually occurred would require a review of the arbitral award in substance (Õ para. 19). This would effectively introduce an appeals instance before domestic courts into the arbitral process46 and eliminate one of arbitration’s key features, i.e. the finality of an arbitral award.47 The determination of whether the alleged error on the part of the arbitrator(s) indeed rises to the level of a “manifest” disregard entails the risk of complicated and lengthy post-arbitration litigation,48 which would run counter to the fundamental goal of the Convention, i.e. the swift and facile enforcement of arbitral awards rendered in conformity with the Convention’s standards. For these reasons, the doctrine of manifest disregard of the law cannot be reconciled with the fundamental principles underpinning the Convention and accordingly cannot constitute a ground for refusal under Article V.49 In the authors’ view there is also no necessity for an additional control mechanism outside the grounds for refusal set forth in Article V. The cases currently discussed under the doctrine of manifest disregard will often (if not always) fall within the scope of either the public policy exception, Article V(2)(b) or will be covered by Article V(1)(c) where the arbitrators disregard the applicable substantive law entirely and act as “amiable compositeurs” without being so authorized. 25

bb) Forum Non Conveniens. Another “Trojan horse” for refusing recognition and enforcement of arbitral awards on other grounds than those listed in Article V is the doctrine of forum non conveniens. Under the forum non conveniens doctrine, a 44

US: Hall Street Assocs., L.L.C. v. Mattel, 128 S. Ct. 1396 (2008) = XXXIII Y.B. Com. Arb. 258 (2008). The First Circuit (Ramos-Santiago v. United Parcel Serv., 524 F.3d 120, 124 n. 3 (1st Cir. 2008) – obiter dictum), Fifth Circuit (Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 355 (5th Cir. 2009) = XXXIV Y.B. Com. Arb. 337 (2009)), Seventh Circuit (Affymax, Inc. v. Ortho-McNeil-Jansen Pharm., Inc., 660 F.3d 281, 284–285 (7th Cir. 2011)), Eight Circuit (Air Line Pilots Ass’n Int’l v. Trans States Airlines, LLC, 638 F.3d 572, 578 (8th Cir. 2011), Med. Shoppe Int’l, Inc. v. Turner Invs., Inc., 614 F.3d 485, 489 (8th Cir. 2010)) and the Eleventh Circuit (Frazier v. CitiFinancial Corp., 604 F.3d 1313 (11th Cir. 2010)) have taken the view that the doctrine is no longer a valid ground for vacatur. In contrast, the Fourth (Wachovia Sec., LLC v. Brand, 671 F.3d 472, 480 (4th Cir. 2012)) and Ninth Circuits (Comedy Club, Inc. v. Improv W. Assoc., 553 F.3d 1277, 1290 (9th Cir. 2009)) have continued to apply the doctrine of manifest disregard. Recently, two first instance rulings have applied the doctrine: the New York Supreme Court has denied recognition and enforcement in a decision of May 15, 2017 (Daesang Corp. v. NutraSweet Co., 58 N.Y.S.3d 873 (2017), reversed by 167 A.D.3d 1 (2018): prerequisites of manifest disregard of the law not met in the case at hand). The U.S. District Court for the District of Columbia, in its decision of June 15, 2017, has assumed without deciding that the doctrine of manifest disregard of the law continues as a separate ground for the setting aside of arbitral awards (US: Mesa Power Group, LLC v. Gov’t of Canada, 255 F. Supp. 3d 175 (D.D.C. 2017)); see also US: Crystallex Int’l v. Venezuela, XLII Y.B. Com. Arb. 629 (2017) (D.D.C. 2017): prerequisites of a manifest disregard of the law not met in the case at hand. 46 Varela, 49 Disp. Res. J. 64, 65 (1994). 47 Hayford, 1998(2) J. Disp. Res. 117, 118. 48 US: George Watts & Son, Inc. v. Tiffany & Co., 248 F.3d 577, 579 (7th Cir. 2001). 49 US: Brandeis Intsel Ltd. v. Calabrian Chems. Corp., 656 F. Supp. 160 (S.D.N.Y. 1987) = XIII Y.B. Com. Arb. 543 (1988) (additionally referring to the purpose of the Convention to provide uniform standards of interpretation); Born, International Commercial Arbitration, p. 3711. Concerning the assessment of a manifest disregard of the law under Article V(1)(c), Õ para. 244; concerning Article V(2)(b) Õ para. 563. 45

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defendant may make a motion to dismiss the action even though the plaintiff’s choice of forum meets all statutory and constitutional requirements. The motion is addressed to the court’s discretion and will only be granted infrequently, typically when the plaintiff’s forum is clearly inconvenient and an alternative exists that is a true improvement.50 US national courts have qualified the doctrine of forum non conveniens as a “procedural rule.” Accordingly, the US Court of Appeals, Second Circuit held in Monegasque de Reassurance v. Naftogaz of Ukraine that signatories to the Convention are free to apply differing procedural rules consistent with the requirement that the rules in Convention cases must not be more burdensome than those in domestic cases.51 Relying on Article III, which requires Signatory States to recognize awards in accordance with the procedural rules “in the territory where the award is relied upon,” the court held that the doctrine of forum non conveniens might be applied in domestic arbitration cases brought under the provisions of Chapter 1 of the Federal Arbitration Act.52 Consequently, the court regarded the application of the forum non conveniens doctrine to a Convention award not to be more burdensome within the meaning of Article III. Hence, the court granted the motion to dismiss, finding that the US was not the proper venue for Monegasque de Reassurance’s confirmation proceeding.53 This ruling, however, misinterprets Article III and runs counter to the exhaustive character of the grounds for refusal listed in Article V as well as to the pro-enforcement approach of the Convention (Õ paras 4 et seq.). The doctrine of forum non conveniens is not a ground for refusing enforcement under 26 Article V.54 While it may possibly qualify as a procedural rule insofar as it limits the choice between several national courts available to enforce an award within the legal system of a Signatory State,55 the national courts cannot rely on this doctrine to refer the 50 US: Frontera Res. Azer. Corp. v. State Oil Co. of Azer. Republic, 582 F.3d 393 (2d Cir. 2009) = XXXIV Y.B. Com. Arb. 1186 (2009); Garner (ed.), Black’s Law Dictionary, key word “forum non conveniens;” Santoro, 21(4) ASA Bull. 713 et seq. (2003). 51 US: Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukr., 311 F.3d 488 (2d Cir. 2002) = XXVIII Y.B. Com. Arb. 1096 (2003); see also US: Frontera Res. Azer. Corp. v. State Oil Co. of Azer. Republic, 582 F.3d 393 (2d Cir. 2009) = XXXIV Y.B. Com. Arb. 1186 (2009). 52 US: Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukr., 311 F.3d 488 (2d Cir. 2002) = XXVIII Y.B. Com. Arb. 1096 (2003); see also US: Sistem Muhendislik Insaat Ve Ticaret, A.S. v. The Kyrgyz Republic, XLII Y.B. Com. Arb. 650, 652 (2017) (S.D.N.Y. 2016): in its decision of Sep. 30, 2016, the US District Court for the Southern District of New York assumed a “broad discretion to dismiss a claim in favor of an alternative forum.” 53 See also US: Figueiredo Ferraz E Engenharia de Projeto Ltda v. Republic of Peru, 665 F.3d 384 (2d Cir. 2011) = XXXVII Y.B. Com. Arb. 346 (2012): in this case, the US Court of Appeals for the Second Circuit (in a majority vote) reaffirmed its ruling in the Monde Re case and denied recognition and enforcement on the grounds of forum non conveniens; similarly, the US Court of Appeals for the Second Circuit also refused enforcement on the basis of forum non conveniens in its decision of Aug. 24, 2012 in Zeevi Holdings Ltd. v. Republic of Bulgaria, XXXVII Y.B. Com. Arb. 420 (2012) (2d Cir. 2012); Sonera Holding B.V. v. Çukurova Holding A.S., XXXVIII Y.B. Com. Arb. 483 (2013) (S.D.N.Y. 2012). 54 US: TMR Energy Ltd. v. State Prop. Fund of Ukr., 411 F.3d 296 (D.C. Cir. 2005) = XXX Y.B. Com. Arb. 1179 (2005); Belize Soc. Dev. Ltd. v. Gov’t of Belize, 5 F. Supp. 3d 25 (D.D.C. 2013) = XXXIX Y.B. Com. Arb. 574 (2014), aff’d, 794 F.3d 99 (D.C. Cir. 2015); BCB Holdings Ltd. v. Gov’t of Belize, 110 F. Supp. 3d 233 (D.D.C. 2015) = XL Y.B. Com. Arb. 590 (2015), affirmed: 2016 WL 3042521 (D.C. Cir. 2016) = XLI Y.B. Com. Arb. 710, 712 (2016); Newco Ltd. v. Gov’t of Belize, 2016 WL 3040824 (D.C. Cir. 2016) = XLI Y.B. Com. Arb. 713 (2016); Higgins v. SPX Corp., 2006 WL 1008677 (W.D. Mich. 2006); Kronke, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 15; Born, International Commercial Arbitration, pp. 2984 et seq. 55 However, see also Born, International Commercial Arbitration, pp. 2984 et seq., pointing out that the doctrine of forum non conveniens reflects “substantive policies and discretionary judgments;” see also the criticism voiced against the procedural qualification of the doctrine by the International Commercial Disputes Committee of the Association of the Bar of the City of New York, 15 Am. J. Int’l Arb. 407 (2004), also available at http://www.nycbar.org/pdf/report/ForeignArbitral.pdf (last visited Apr. 29, 2019).

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party seeking enforcement of the arbitral award to another jurisdiction. One of the advantages of the Convention is that it provides the ability to choose the jurisdictions in which the award may be enforced. In making that choice, the applicant may take into account various considerations, such as availability of assets or efficiency of the national court system and legal framework for enforcement. There is no basis for national courts to limit the choice of available jurisdictions for enforcement under the Convention.56 With regard to the application of this doctrine within the scope of the Convention, also Õ Art. III para. 22. 27

c) Additional Grounds Applied in Australia The omission of the word “only” in section 8 of the International Arbitration Act (Cth) 1974 (IAA), which implemented Article V of the Convention in Australia, was considered by the Supreme Court of Queensland in Resort Condominiums v. Bolwell to mean that it has a general discretion outside the grounds stated in the Convention not to recognize and enforce an award that otherwise qualifies for recognition under the Convention.57 This was unanimously criticized by commentators as being contrary to the wording and purpose of Article V.58 In response to this criticism, the Australian legislature reviewed the Arbitration Act, inter alia, with regard to this question. Section 36(1) of the International Arbitration Amendment Act 2010 now provides that “recognition and enforcement of an arbitral award […] may be refused only” if one of the grounds listed in Article V is found to exist.

4. Exceptional Admissibility of Objections Arising After the Award/Based on Issues Not Decided in the Award a) General Remarks 28 Despite the prohibition of a review on the merits and the exhaustive character of the grounds for refusal of recognition and enforcement under Article V, there are two (exceptional) scenarios in which, subject to restrictive requirements, objections based on the merits have been considered admissible by certain exequatur courts. 29 The first scenario concerns cases in which an objection arises only after the award has been rendered. In the second scenario, the objection is based on issues upon which the arbitral tribunal had refused to decide, especially because it declined its jurisdiction in regard to these issues. Typical examples for such objections (under either of the above scenarios) include, in particular, the assertion of a counterclaim or a set-off defense. 30 There are two possible ways for the exequatur court to handle such objections. The first is to refuse to take the objection(s) into account, based on the principle that the Court’s role is limited to a scrutiny of the award in accordance with the exhaustive grounds for refusal listed in Article V. The second approach is to rule on the objection for reasons of procedural efficiency, so as to avoid the initiation of separate proceedings. b) Court Decisions 31 aa) Courts in the US, Canada and the UK. Exequatur courts in most jurisdictions have

been very cautious with regard to such objections. US courts generally follow the first 56

US: Belize Bank Ltd. v. Gov’t of Belize, XLI Y.B. Com. Arb. 715, 717 (2016) (D.D.C. 2016). Australia: Resort Condominiums International Inc. v. Ray Bolwell, 118 ALR 655, 675 = XX Y.B. Com. Arb. 628 (1995). 58 Garnett/Pryles, (2008) 25 J. Int. Arb. 899, 903; Pryles, (1994) 10 Arb. Int’l 385, 392 et seq.; van den Berg, NYC, p. 265. 57

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approach, refusing to hear counterclaims because the Convention merely provides for the right to resist recognition and enforcement based on the exhaustive grounds enumerated in Article V. In the words of the US District Court for the Eastern District of New York, “to allow the assertion of such claims would result in the conversion of the proceeding into a plenary trial,” running counter to “the Convention’s purpose and the summary nature of the enforcement proceedings.”59 This approach ensures speedy exequatur proceedings and encourages the use of the arbitral process. The same approach has been adopted by the Ontario Superior Court of Justice, which 32 refused to stay exequatur proceedings until the rendering of an award in another arbitration, from which the party resisting enforcement was expecting a counterclaim leading to a set off of their obligation.60 The English High Court stated that it knew of no case in which the courts had 33 refused to enforce an – otherwise valid and enforceable – arbitral award on public policy grounds because the debtor had an enforceable counterclaim against the holder of the award. It further set out that, because of the pro-enforcement bias of the Convention, extraordinary circumstances would be necessary to render the enforcement contrary to public policy in the case of the existence of a counterclaim.61 bb) German Courts. The approach of the German Federal Supreme Court is a 34 different one. The court allows the party resisting recognition and enforcement to raise defenses based on circumstances arising after the award has been rendered.62 This approach is based on particularities of German procedural law: pursuant to section 767(2) of the German Code of Civil Procedure (ZPO), a debtor may raise objections on the merits against (state court) judgments even in the course of proceedings for the enforcement of such judgments, provided that those objections are based on grounds that arose after the judgment was rendered. Under German law, the competent court in exequatur proceedings is the same as the 35 competent court in the (later) enforcement (execution) proceedings: with regard to both proceedings, the higher regional court (Oberlandesgericht) has jurisdiction. Considering that the higher regional court is competent in both proceedings and that the requirements relating to the decision-making process are substantially the same, the German Federal Supreme Court allows the party resisting recognition and enforcement to raise objections under section 767(2) of the ZPO in the exequatur proceedings that would be allowed anyway in the (later) enforcement proceedings, in order to promote procedural efficiency.63 This does not apply, however, in cases in which the claim underlying the objection falls under an arbitration agreement and one of the parties relies upon the 59 US: Geotech Lizenz AG v. Evergreen Sys., Inc., 697 F. Supp. 1248 (E.D.N.Y. 1988) = XV Y.B. Com. Arb. 562, 566 (1990); see also US: Mangistaumunaigaz Oil Prod. Ass’n v. United World Trade, Inc., XXIVa Y.B. Com. Arb. 806, 808 (1999) (D. Colo. 1997); but see US: Compagnie Noga d’Importation et d’Exportation S.A. v. Russian Federation, 2002 WL 31106345 (S.D.N.Y. 2002) = XXVIII Y.B. Com. Arb. 1025 (2003), where the court allowed set-off. 60 Canada: Abener Energia S.A. v. SunOpta Inc., 2009 CarswellONT 3449. 61 UK: Tongyuan (USA) International Trading Group v. Uni-Clan Ltd., XXVI Y.B. Com. Arb. 886, 892 (2001). 62 Germany: BGH, NJW 1990, 3210 = WM 1990, 1766; BGH, NJW-RR 1997, 1289. 63 Germany: BGH, NJW-RR 2011, 213 = SchiedsVZ 2010, 330; this issue was controversial among the lower courts prior to this decision: the Bavarian Highest Regional Court and the Stuttgart Higher Regional Court (BayObLG, NJW-RR 2001, 1363 and OLG Stuttgart, OLGR Stuttgart 2001, 50, 51 et seq.) and the Kammergericht Berlin (Germany: KG, SchiedsVZ 2011, 285) decided against admissibility; among others, the Higher Regional Courts of Hamm, Cologne, Dresden are in favor of it (OLG Hamm, NJW-RR 2001, 1362; OLG Köln, SchiedsVZ 2005, 163, 165 = XXX Y.B. Com. Arb. 557 (2005); OLG Dresden, SchiedsVZ 2005, 210, 213).

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arbitration agreement in the exequatur proceedings.64 In the latter case, a decision on the claim by the exequatur court would violate the arbitral tribunal’s competence.65 36 In the same spirit, the German Federal Supreme Court further considers that the exequatur court can hear objections that arose before the rendering of the arbitral award if the arbitral tribunal refused to decide upon them for lack of competence.66 This reasoning also applies to cases in which such objections were not raised, but where it is clear that the arbitral tribunal would have refused to decide upon them.67 36a Parties are free to exclude the consideration of the above defenses from the exequatur proceedings by means of an explicit stipulation to this effect in the arbitration agreement.68 c) Comment 37 The German approach is based on particular provisions of German procedural law (Õ para. 34).69 It therefore cannot be extended to other jurisdictions, unless identical or at least similar provisions exist in the applicable procedural law. 38 In the absence of such particular procedural provisions in the forum of the exequatur proceedings, exequatur courts are only able to decide on merits-based objections (in the two scenarios set out in Õ para. 29) under the following conditions: first, the exequatur court must have original decision-making competence under the applicable procedural law with regard to considering objections based upon new, additional circumstances (such as the existence of a counterclaim or a set-off defense). A decision on such objections goes far beyond a mere review of an arbitral award pursuant to the Convention. Second, the newly raised defenses must be either undisputed or finally adjudicated by the competent court or arbitral tribunal. Deciding on an objection based on new circumstances may require new evidentiary hearings, thus delaying recognition and enforcement of the award. This is at odds with the general purpose of the Convention to facilitate and expedite exequatur proceedings.70 This purpose is not affected, however, where the defenses are either undisputed or have already been finally 64 Germany: BGH, NJW-RR 2013, 1336; OLG München, BeckRS 2016, 20383; KG, SchiedsVZ 2011, 285; OLG Köln, SchiedsVZ 2014, 203, 205. 65 Germany: BGH, NJW-RR 2011, 213 = SchiedsVZ 2010, 330; BGH, NJW 1987, 651; BGH, NJW-RR 1996, 508; OLG Brandenburg, SchiedsVZ 2016, 43. 66 Germany: BGH, WM 1963, 196; BGH, SchiedsVZ 2010, 330; BGH, NJW-RR 2014, 953 = SchiedsVZ 2014, 31; BGH, NJW-RR 2016, 1467 = RIW 2017, 68. 67 Germany: BGH, SchiedsVZ 2010, 330; BGH, MDR 1965, 374; BGH, NJW-RR 2008, 659 = SchiedsVZ 2008, 40; BGH, NJW-RR 2008, 558; OLG Brandenburg, SchiedsVZ 2016, 43. 68 Germany: OLG München, SchiedsVZ 2016, 118; see also the case note by Bryant, SchiedsVZ 2016, 120 (pointing out that a stipulation in the arbitration agreement to exclude the consideration of set-off in the exequatur proceedings will not prevent the consideration of a set-off defense if either the claim used in the set off is undisputed, or if the arbitral tribunal has already denied its jurisdiction with regard to the set-off claim). 69 The approach of the majority of German courts has been criticized, see Borris/Schmidt, SchiedsVZ 2004, 273; Borris/Schmidt, SchiedsVZ 2005, 254. 70 For the same reason, van den Berg does not envisage jurisdiction of the exequatur court to rule on counterclaims in his hypothetical draft convention (van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 658 para. 56); cf. also: Australia: Uganda Telecom Ltd. v. Hi-Tech Telecom Pty Ltd., [2011] FCA 131 = XXXVI Y.B. Com. Arb. 252, 255 (2011). In this case, the Federal Court of Australia rejected the set-off defense raised in the exequatur proceedings, holding that “[i]n any event, there is no basis under the Act for refusing to enforce a foreign award, or for delaying or deferring the enforcement of a foreign award because the party liable under the award has a set-off or offsetting claim against the other party;” US: China Three Gorges Project Corp. v. Rotec Indus., XXXI Y.B. Com. Arb. 1231 (2006) (D. Del. 2005) (“the Court finds that the existence of outstanding receivables is not a ground for refusal to enforce an award under Article V of the Convention, and Rotec cites no Article V ground for its claim that the award should be reduced. Further, China Three Gorges brought this lawsuit as a petition to confirm an arbitral award; accordingly, the Court’s role is limited to reviewing the parties’ challenges to the

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adjudicated by the competent court or arbitral tribunal. The reasons underlying the prohibition of a review on the merits are to keep exequatur proceedings as time-efficient as possible and to protect the autonomy of the arbitral tribunal in order to encourage recourse to arbitration. Taking into account undisputed or finally adjudicated objections does not require evidentiary hearings and thus does not take up additional time. Rather, it saves the parties the effort of initiating separate proceedings with regard to the objection and thus increases overall procedural efficiency.71 Further, this approach does not call into question the decision-making autonomy of the arbitral tribunal, since the exequatur court does not review the legal reasoning of the arbitral tribunal.

II. Furnishing Proof and Burden of Proof 1. Burden of Pleading a) Article V(1): Grounds that Have to Be Pleaded The grounds listed in Article V(1) have to be specifically pleaded by the party 39 resisting enforcement.72 This includes a substantiated presentation of the relevant underlying facts.73 Insofar as a causal connection between a defect and the outcome of the arbitral proceedings is required, the party resisting enforcement also has to set out how the defect has affected the outcome of the proceedings, and how it would have pleaded if the defect had not occurred.74 The exequatur court is not allowed to raise grounds for refusal stated in Article V(1) sua sponte even if such grounds are obvious.75 b) Article V(2): Grounds to Be Observed by the Court Ex Officio The grounds for refusal set out in Article V(2) are to be observed by the court ex 40 officio at all stages of the proceedings. They do not have to be specifically pleaded by the opposing party,76 particularly with respect to the court’s assessment of a violation of public policy, Õ para. 519. When it comes to grounds that have to be observed arbitrator’s decision […]. In light of the limited nature of this proceeding, the Court concluded that the set off issue is not properly before the Court.”). 71 Börner, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 131–132. 72 Germany: OLG Brandenburg, SchiedsVZ 2016, 43; Italy: CA Genova, VIII Y.B. Com. Arb. 381, 382 (1983); Born, International Commercial Arbitration, p. 3445; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.359; Kreindler/Schäfer/Wolff, Kompendium, para. 1067; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 48; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 148. 73 Germany: OLG Brandenburg, SchiedsVZ 2016, 43; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 49; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 148. 74 Germany: OLG Karlsruhe, Nov. 29, 2001, 9 Sch 02/01 (unreported), available at http://www.disarb. org (last visited Apr. 29, 2019); OLG Celle, OLGR Celle 2004, 396, 397; Kröll, in: Böckstiegel/Kröll/ Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 49. 75 Spain: TS, Sep. 26, 2006, reported by Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 29, 2019); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.349; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 149. 76 Georgia: Sup. Ct., CLOUT Case No. 1390; Germany: OLG Brandenburg, SchiedsVZ 2016, 43; Ireland: Patrick Ryan v. Kevin O’Leary (Clonmel) Ltd., [2018] IEHC 660; Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 (2013) = CLOUT Case No. 1417; van den Berg, NYC, p. 359; Born, International Commercial Arbitration, p. 3445; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.361; Kreindler/Schäfer/Wolff, Kompendium, para. 1078; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 132; Schlosser, in: Stein/ Jonas (eds), ZPO, Annex to sect. 1061 para. 148.

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ex officio, the follow-up question arises as to whether the exequatur court is limited to the submissions of the parties or whether it may investigate on its own initiative (Õ para. 517).

2. Burden of Proof Generally, the burden of proof relating to the grounds for refusal set out in Article V(1), (2) is borne by the party resisting enforcement.77 With regard to Article V(1), this allocation of the burden of proof already follows from the wording of the provision. While Article V(2) does not explicitly allocate the burden of proof to the party resisting enforcement, it is generally recognized that the same principle applies.78 Placing the burden of proof on the party resisting enforcement is in line with the pro-enforcement bias of the Convention;79 it was a conscious departure by the drafters of the Convention from the previous regime under the Geneva Convention (Õ para. 12). 42 It is disputed, however, which party bears the burden of proof concerning the conclusion of an arbitral agreement. The majority view among German courts appears to be that the burden of proving that an arbitration agreement was concluded lies with the party applying for recognition and enforcement,80 while the party opposing enforcement only bears the burden of proof with regard to an alleged invalidity of the arbitration agreement under Article V(1)(a). The proponents of this view construe 41

77 China: Tianjin Maritime Court, CLOUT Case No. 1577; Germany: OLG Düsseldorf, XXXII Y.B. Com. Arb. 315, 318 (2007); India: Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc., CLOUT Case No. 1424 = XXXVII Y.B. Com. Arb. 244 (2012); Ireland: Patrick Ryan v. Kevin O’Leary (Clonmel) Ltd., [2018] IEHC 660; cf. Israel: Gad Chemicals Ltd. v. BIP Chemicals Ltd., CLOUT Case No. 1329; Italy: Cass., XVIII Y.B. Com. Arb. 433 (1993); Singapore: Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd., [2006] 3 SLR(R) 174, 201 et seq.; Russia: Supreme Arbitrazh Court, CLOUT Case No. 1411; Ukraine: Sup. Ct., CLOUT Case No. 1380; US: Europcar Italia S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310, 315 (2d Cir. 1998) = XXIVa Y.B. Com. Arb. 860, 865 para. 11 (1999); Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., XXX Y.B. Com. Arb. 1136, 1139 (2005) (2d Cir. 2005); CEEG (Shanghai) Solar Sci. & Tech. Co. v. Lumos LLC, XL Y.B. Com. Arb. 586 (2015) (D. Colo. 2015); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.359, 21.363; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 50; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 148, 151. 78 Germany: OLG Düsseldorf, XXXII Y.B. Com. Arb. 315 (2007); OLG Brandenburg, SchiedsVZ 2016, 43; Spain: Tribunal Superior de Justicia de Catalunya, XLII Y.B. Com. Arb. 520, 522 (2017); Ukraine: Sup. Ct., CLOUT Case No. 1380; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.363; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 151. 79 Bermuda: Huawei Tech Investment Co. Ltd. v. Sampoerna Strategic Holdings Ltd., XXXIX Y.B. Com. Arb. 354 et seq. (2014); US: Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc., XVIII Y.B. Com. Arb. 590, 592 (1993) (9th Cir. 1992); Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 297 (5th Cir. 2004); AO Techsnabexport v. Globe Nuclear Servs. & Supply, Ltd., 656 F. Supp. 2d 550 (D. Md. 2009) = XXXIV Y.B. Com. Arb. 1174 (2009); Born, International Commercial Arbitration, p. 3414. 80 Germany: LG Hamburg, RIW 1991, 419; OLG Schleswig, IPRspr. 2000, No. 185, 409 = RIW 2000, 706, 707 = XXXI Y.B. Com. Arb. 652 (2006); BayObLG, BayObLGZ 2002, 392, 394 = NJW-RR 2003, 719, 719 = XXIX Y.B. Com. Arb. 761, 764 (2004); OLG Rostock, IPRax 2002, 401, 403; OLG Brandenburg, IPRspr. 2002, No. 221, 559 = IPRax 2003, 349 = XXIX Y.B. Com. Arb. 747 (2004); OLG Celle, SchiedsVZ 2004, 165, 167 = IHR 2004, 83 = XXX Y.B. Com. Arb. 528, 532 (2005); OLG Frankfurt, IPRspr. 2006, No. 212, 477 = IPRax 2008, 517 = XXXII Y.B. Com. Arb. 351 (2007); OLG München, OLGR München 2009, 263 = XXXV Y.B. Com. Arb. 362, 363 (2010); OLG München, SchiedsVZ 2009, 340 = XXXV Y.B. Com. Arb. 383 (2010); OLG Brandenburg, SchiedsVZ 2016, 43 (stating that the party applying for recognition and enforcement also bears the burden of substantiation and proof with regard to the valid representation of the parties to the arbitration agreement); Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.359; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 150; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 30 para. 26; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 14 (but only in case the respondent did not take part in the arbitration).

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Article V(1)(a) narrowly, restricting its application to questions of invalidity due to, e.g., incapacity of one of the parties or other reasons for invalidity under the law applicable to the arbitration agreement.81 Some proponents of this view rely on the relationship between Article IV and Article V(1)(a), arguing that Article IV requiring the party seeking enforcement to “supply […] the original agreement referred to in article II or a duly certified copy thereof” means that the party applying for enforcement has to supply an arbitral agreement in the form of Article II, and that the exequatur court will accordingly check whether an arbitration agreement was concluded between the parties.82 German courts in particular consider that Article V(1)(a) presupposes that a 43 (formally) valid arbitration agreement within the meaning of Article II(1) has been concluded. Pursuant to this view, Article V(1)(a) does not encompass the question of whether the arbitral agreement has been validly concluded. With regard to this question, the general principle applies that the party wishing to rely on the arbitral award has to prove the favorable fact that an arbitral agreement has been concluded.83 The above majority view has been criticized for not distinguishing in a sufficient 44 manner between the arbitral proceedings on the one hand – in the course of which the party relying on the arbitration agreement has to prove its conclusion – and the exequatur proceedings on the other hand, in which the burden of proof concerning grounds for the refusal of enforcement is generally placed on the party resisting enforcement.84 According to this progressive view, a party applying for recognition and enforcement only has to provide the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement or a duly certified copy thereof (as well as a translation, if these documents are not in the language of the country where recognition and enforcement are sought). Upon doing so, the applicant produces prima facie evidence as to the existence of the arbitration agreement.85 It is then up to the other party to prove that recognition and enforcement should not be granted based on the defenses set out in Article V, including a defense to the effect that no arbitration agreement was concluded.86 Concerning the burden of proof under Article V(1)(a) also Õ paras 125 et seq. 81 Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409 = RIW 2000, 706, 707 = XXXI Y.B. Com. Arb. 652 (2006); BayObLG, BayObLGZ 2002, 392, 394 = NJW-RR 2003, 719, 720 = XXIX Y.B. Com. Arb. 761, 764 (2004); OLG Brandenburg, IPRspr. 2002, No. 221, 559 = IPRax 2003, 349 = XXIX Y.B. Com. Arb. 747 (2004); OLG Celle SchiedsVZ 2004, 165, 167 = IHR 2004, 83 = XXX Y.B. Com. Arb. 528 (2005); OLG München, OLGR München 2009, 263 = XXXV Y.B. Com. Arb. 362 para. 4 (2010); OLG München, SchiedsVZ 2009, 340 = XXXV Y.B. Com. Arb. 383 (2010); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 150. 82 Spain: TS, XXVII Y.B. Com. Arb. 546, 549 (2002). This view has, however, been rejected by the English Court of Appeal in its decision of Apr. 18, 2002 in the case of UK: Yukos Oil Co. v. Dardana Ltd., XXVII Y.B. Com. Arb. 570 (2002). In this case, the Court of Appeal held that the applicant only had to furnish the documents on the basis of which the arbitral tribunal had assumed its jurisdiction, while the party resisting enforcement then bore the burden of proof as to the invalidity of the arbitration agreement. 83 Germany: OLG Celle, SchiedsVZ 2004, 165, 167 = IHR 2004, 83 = XXX Y.B. Com. Arb. 528 (2005); OLG München, OLGR München 2009, 263 = XXXV Y.B. Com. Arb. 362 para. 4 (2010). 84 Kröll, ZZP 117 (2004), 453, 468; Kröll/Kraft, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1059 para. 50. 85 US: Czarina, L.L.C. v. W.F. Poe Syndicate, 359 F.3d 1286 (11th Cir. 2004) = XXIX Y.B. Com. Arb. 1200, 1204 (2004); Bertheau, New Yorker Abkommen, p. 102; Born, International Commercial Arbitration, p. 3642; Heidkamp, IHR 2004, 17, 19; Kröll, ZZP 117 (2004), 453, 462 et seq.; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 211; Sanders, in: Sanders (ed.), International Commercial Arbitration, pp. 293, 313; van den Berg, XII Y.B. Com. Arb. 450, 451 (1987); van den Berg, NYC, p. 250. 86 UK: Yukos Oil Co. v. Dardana Ltd., XXVII Y.B. Com. Arb. 570, 576 (2002); Heidkamp, IHR 2004, 17, 19; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 51; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 211; van den Berg, NYC, p. 250.

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This view appears justified in relation to cases in which the respondent participated in the arbitral proceedings. In such cases the respondent has had the opportunity to present its argument in relation to the alleged lack of an arbitration agreement. Where he has not taken this opportunity, but raises the defense under Article V(1)(a) for the first time in the exequatur proceedings, such objection is likely to be precluded in any case.87 Where the respondent has raised the defense at the outset of the arbitral proceedings, the claimant has already had to prove the existence of an arbitration agreement to the arbitral tribunal in order for the arbitral proceedings to continue. In the latter case, the claimant has already complied with its burden of proof in the arbitral proceedings.88 The exequatur court is not bound by the arbitral tribunal’s decision on the existence of an arbitration agreement. However, the fact that the claimant has already proven the existence of a valid arbitration agreement to the satisfaction of the arbitral tribunal justifies the assumption that the party resisting enforcement bears the burden of proof in this respect at the exequatur stage.

III. Preclusion and Waiver of Grounds for Refusal 46

In contrast to Article V(1), (2) of the European Convention (Õ Art. VII paras 75 et seq.), the New York Convention does not contain any explicit provisions on the preclusion or waiver of grounds for refusal of recognition and enforcement. However, it is generally accepted that under certain circumstances, a party may be precluded from relying on grounds for refusal if such grounds have not been raised in a timely manner in the arbitral proceedings or in proceedings for the setting aside of the award at the seat of the arbitration (Õ paras 47 et seq.). Moreover, the parties sometimes stipulate an explicit waiver of grounds for refusal before commencing the arbitral proceedings, in particular in the arbitration agreement. The legal consequences of such waivers are discussed below (Õ paras 68 et seq.).

1. Preclusion 47

In the context of Article V, the term “preclusion” is commonly used in a broad sense, referring to a number of different legal concepts under which a party resisting enforcement may be prevented from relying on certain grounds for refusal. This broad use of the term “preclusion” encompasses such concepts as the doctrine of estoppel, the prohibition of contradictory behavior (venire contra factum proprium) as a particular subcategory of good faith, as well as the “curing” of defects (e.g. the conclusion of a new arbitration agreement in the course of the arbitral proceedings). The main scenarios in which preclusion may occur are set out below (Õ paras 51 et seq.). a) Applicable Law

48 aa) Autonomous Interpretation of the Convention. That a party may, under certain

circumstances, be precluded from relying on grounds for refusal of recognition and enforcement follows directly from the Convention itself, namely the principle of venire contra factum proprium. Although the Convention does not refer to good faith expressis verbis, it is commonly accepted that good faith, as a general principle of international law, also underlies the Convention.89 The prohibition of contradictory behavior (venire With regard to preclusion, Õ paras 47 et seq. Kröll, ZZP 117 (2004), 453, 467. 89 Germany: BayObLG, XXX Y.B. Com. Arb. 568 (2005); OLG München, IPRspr. 2006, No. 206, 467 = OLGR München 2006, 404 = XXXIV Y.B. Com. Arb. 499 (2009); OLG Schleswig, IPRspr. 2000, No. 185, 87 88

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contra factum proprium) as a specific, generally recognized subcategory of the good faith principle therefore has a direct legal basis in the Convention.90 bb) Preclusion Based on the Law of the Enforcement State. In addition, preclusion 49 of grounds for refusal may also result from national procedural law applicable at the forum of the exequatur proceedings pursuant to Article III.91 The application of national law as a legal basis of preclusion is not at odds with the Convention: while the Convention provides an exhaustive list of grounds for refusal in Article V, thus barring its Member States from creating additional obstacles to the recognition and enforcement of foreign awards, it does not prevent the courts in its Member States from being more generous in the recognition and enforcement of foreign awards by restricting the application of grounds for refusal: even where grounds for refusal are met, the exequatur court still enjoys discretion as to whether to nevertheless recognize the award.92 The exequatur court is thus free to consider national provisions on preclusion in addition to the Convention’s legal regime. b) Prerequisites of Preclusion Preclusion under the legal regime of the Convention, i.e. based on the principle of 50 venire contra factum proprium, poses the following requirements: first, the party opposing recognition and enforcement of an arbitral award must have behaved in a contradictory manner in relation to an alleged irregularity. In other words, the party’s objection at the exequatur stage must be inconsistent with its conduct during the arbitration proceedings. Second, the party’s contradictory behavior must constitute an abuse of law. This is the case if the behavior – during the arbitral proceedings – of the party resisting enforcement has been such as to cause the other party to rely on a justified assumption that potential objections against procedural irregularities would not be raised at a later stage. c) Typical Scenarios aa) Participation in Arbitral Proceedings Without Timely Objection to Defects. 51 While the Convention does not contain an explicit provision on preclusion, it is well established in principle that a party that takes part in arbitration proceedings without raising specific objections concerning particular defects in a timely manner is barred from asserting such objections in subsequent proceedings for the recognition and enforcement of the resulting award.93 It should also be noted that most arbitration rules provide for preclusion by means of (implicit) waiver in such cases. Pursuant to these provisions, parties that proceed with the arbitration in spite of being aware of the noncompliance with certain requirements under the applicable arbitration rules and do not object to such non-compliance in a timely manner are deemed to have waived the right 409 = RIW 2000, 706, 708 = XXXI Y.B. Com. Arb. 652, 657 (2006); van den Berg, NYC, p. 185; Schwab/ Walter, Schiedsgerichtsbarkeit, ch. 44 para. 10; Lachmann, Handbuch, para. 2118; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.370; ICCA, Guide, p. 81; Kröll, ZZP 117 (2004), 453, 483. 90 Van den Berg, NYC, p. 185. 91 Kröll, IPRax 2009, 145, 147. 92 With regard to the application of more generous standards for the recognition and enforcement of awards, also Õ paras 74 et seq. 93 France: CA Paris, Rev. arb. 2001, 916, 918; CA Paris, Rev. arb. 2008, 487; Cass., Bull. civ. 2005 I No. 302, p. 252; Sweden: CA Svea, Apr. 5, 2009, T 980-06 (unreported), available at http://arbitration. practicallaw.com (last visited Apr. 29, 2019); US: Nat’l Wrecking Co. v. Int’l Bhd. of Teamsters, Local 731, 990 F.2d 957, 960 (7th Cir. 1993); Born, International Commercial Arbitration, p. 2813; Blackaby/ Partasides/Redfern/Hunter, Redfern and Hunter, para. 5.124; van den Berg, NYC, p. 266; Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 PILS para. 76.

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to object.94 Regarding preclusion under particular provisions of Article V(1) Õ paras 145 et seq., Õ para. 257, Õ paras 305 et seq., Õ para. 322. (1) The Principle: Preclusion. It is widely accepted that objections to the arbitral tribunal’s jurisdiction must be made without undue delay, generally not later than in the statement of defense or, in the case of further claims or counterclaims, as soon as such claims or counterclaims are raised during the arbitral proceedings. This follows directly from the principle of venire contra factum proprium underlying the Convention and applies independently of the lex arbitri.95 Parties that have failed to raise such objections and nevertheless participated in the arbitral proceedings – including the exchange of written memoranda by the parties – generally behave in a contradictory fashion by raising such objections at the exequatur stage.96 53 In addition to leading to preclusion for the above reasons, the failure to raise objections in the above scenario has also been construed as consent to arbitration.97 The latter has in particular been assumed in cases in which a party to proceedings under the ICC Rules of Arbitration signed terms of reference without raising an objection to the arbitral tribunal’s jurisdiction.98 Signing terms of reference (which usually quote the prima facie arbitration agreement on which the claimant relies) without objecting to the arbitral tribunal’s jurisdiction can be considered to lead to the conclusion of a new arbitration agreement even where no such agreement existed before.99 Such a new arbitration agreement is, however, subject to the competent courts’ scrutiny with regard to any potential defects.100 54 In the case law of the French Cour de Cassation, preclusion may also follow from the principle of estoppel. The prerequisites of estoppel in relation to grounds for refusal under Article V are twofold: as a first prerequisite, estoppel requires a change in the 52

94 Respective provisions can, inter alia, be found in Article 40 of the ICC Rules (2017), Article 32 of the HKIAC Rules (2018), Article 32.1 of the LCIA Rules (2014), Article 43 of the DIS Rules (2018) and 41.1 of the SIAC Rules (2016). 95 However, this principle is also explicitly stated by many domestic arbitration laws, see e.g. Article 16(2) of the Model Law (corresponds to section 1040(2) of the German Code of Civil Procedure (ZPO)); section 34 of the Swedish Arbitration Act; also sections 31, 73 of the English Arbitration Act 1996. 96 Cf. France: Cass., Rev. arb. 2015, 85, 87 (30-day time limit for challenging an arbitrator on the grounds of lack of impartiality and independence pursuant to Article 14(2) ICC Rules expired). Cf. also Spain: Tribunal Superior de Justicia del País Vasco, CLOUT Case No. 1416. 97 Germany: BayObLG, NJW-RR 2003, 719 = XXIX Y.B. Com. Arb. 761 (2004); OLG Stuttgart, XXIX Y.B. Com. Arb. 742, 744 (2004); OLG Schleswig, RIW 2000, 706, 707 et seq. = XXXI Y.B. Com. Arb. 652, 657 (2006) (the court assumed preclusion irrespective of the fact that the factual circumstances leading to the ground for the subsequent objection were unknown to the party resisting enforcement at the time of the commencement of the arbitration). Assuming consent of a party that participated in the arbitral proceedings without objecting to the arbitral tribunal’s jurisdiction – while not constituting preclusion in a legal sense – leads to the same result in such cases, effectively barring a party from relying on grounds for refusal. Cf. Slovenia: Sup. Ct., CLOUT Case No. 1173 (recognizing that the claimant’s reference (in its statement of claim) to an arbitration agreement and the respondent’s failure to contest such arbitration agreement in its reply); see also Switzerland: BG, 34(2) ASA Bull. 449 (2016) (party resisting recognition and enforcement was barred from asserting lack of jurisdiction of the arbitrator because it had argued on the merits and had thus conferred jurisdiction upon the arbitrator); see also Switzerland: BG, 34(2) ASA Bull. 482 (2016) = XLI Y.B. Com. Arb. 573, 575 et seq. (2016) (by participating in the arbitral proceedings without objection to jurisdiction, the respective party had – under the doctrine of good faith – cured existing formal shortcomings of the arbitration agreement under Article II(2)); with regard to remedying the lack of form by failure to object, Õ Art. II para. 157). 98 Gaillard/Savage, Fouchard Gaillard Goldman, para. 1228; Mallmann, SchiedsVZ 2004, 152, 157. 99 France: CA Paris, Rev. arb. 1987, 498; CA Paris, Rev. arb. 1988, 691. 100 Mallmann, SchiedsVZ 2004, 152, 158.

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position of the concerned party.101 Secondly, the concerned party’s behavior must have been such as to mislead the other party, inducing it to rely on the first party’s behavior.102 The Cour de Cassation does not explicitly state whether its consideration of the doctrine of estoppel is based on the legal regime of the Convention itself or upon national law. However, the prerequisites of preclusion, as stated in the court’s decision of February 3, 2010, are very similar to the requirements under the principle of venire contra factum proprium as discussed above (Õ paras 48 et seq.). US courts have also considered objections precluded if they were based on defects 55 known to a party during the arbitral proceedings, but which were only raised at the exequatur stage. The relevant decisions have been based on the legal concept of waiver,103 as well as estoppel.104 Similarly, the Hong Kong Court of Final Appeal considered objections based on an 56 alleged non-compliance with arbitration rules precluded in later proceedings for the recognition and enforcement of the resulting award. The court held that such objections should have been raised in the arbitral proceedings.105 German courts have based preclusion of grounds for refusal on considerations of 57 good faith, in particular the prohibition of contradictory behavior (venire contra factum proprium).106 While some German court decisions prior to 2008 had suggested that contradictory behavior on its own might be sufficient to bar a party from relying on certain grounds for refusal,107 in a 2008 decision the German Federal Supreme Court stressed that preclusion based on good faith principles requires a two-pronged approach108 similar to the one adopted by the French Cour de Cassation: as a first 101 France: Cass., Rev. arb. 2010, 93 (relating to setting aside proceedings), holding that a party was not precluded from relying on a claim for excess of jurisdiction in later annulment proceedings. In the course of the arbitral proceedings, the party had objected to the jurisdiction of the arbitral tribunal with regard to a counterclaim raised by the other party. However, the party had not specifically objected to a procedural order in which the arbitral tribunal had agreed to hear the counterclaim; it had then proceeded to plead its case on the merits. While the CA had considered that the ground of excess of jurisdiction was precluded, the Cass. stated that the party’s behavior in the arbitral proceedings had not been contradictory. In particular, the party had not adopted a different position in the course of the proceedings for the setting aside of the award. It had in particular not caused the other party to believe that it would not rely on the argument of jurisdiction in later proceedings for the setting aside of the decision. 102 France: Cass., Rev. arb. 2005, 801; Cass., Rev. arb. 2007, 134; CA Paris, Rev. arb. 2007, 929 = D. 2008, 188. 103 US: Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172 (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639, 647 et seq. (1992); AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 139 F.3d 980 (2d Cir. 1998) = XXIVa Y.B. Com. Arb. 813 (1999). 104 US: Imperial Ethiopian Gov’t v. Baruch-Foster Corp., 535 F.2d 334 (5th Cir. 1976) = II Y.B. Com. Arb. 252 (1977) (alleged lack of impartiality of presiding arbitrator brought up only months after the award had been rendered). See also US: Kirschner v. West Co., 247 F. Supp. 550 (E.D. Pa. 1965) (alleged perjury). 105 Hong Kong: Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., [1999] 2 HKC 205 = XXIVa Y.B. Com. Arb. 652, 667 (1999). See also: Hong Kong: Trade United Co. Ltd. v. FM International Ltd., XVIII Y.B. Com. Arb. 377, 383 (1993). 106 Germany: OLG Hamburg, BeckRS 2016, 00538; BayObLG, XXX Y.B. Com. Arb. 568, 571 et seq. (2005); OLG München, IPRspr. 2006, No. 206, 467 = OLGR München 2006, 404 = XXXIV Y.B. Com. Arb. 499 (2009). 107 Germany: BGH, BGHZ 50, 191 = NJW 1968, 1928 (suggesting that contradictory behavior as such may be sufficient to establish a violation of good faith); BayObLG, XXX Y.B. Com. Arb. 568, 571 et seq. (2005); OLG München, IPRspr. 2006, No. 206, 467 = OLGR München 2006, 404 = XXXIV Y.B. Com. Arb. 499 (2009). 108 Germany: BGH, NJW-RR 2008, 1083 = SchiedsVZ 2008, 196. The decision by the Federal Supreme Court concerned a factual scenario in which the party resisting enforcement had not commenced proceedings for the setting aside of the award at the seat of the arbitration within the prescribed time limit. While the factual scenario is different from the one discussed here, the considerations of the court

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prerequisite, preclusion requires that the behavior shown by the party resisting enforcement (at the exequatur stage) is contradictory to its earlier behavior. As a second prerequisite, this party’s earlier behavior must have been such as to lead the other party to justified reliance on such behavior (Vertrauenstatbestand) or appear contrary to good faith for other reasons.109 The German Federal Supreme Court relied on national German law in its decision. 58

(2) Limits to Preclusion. (a) Limits of Party Autonomy as Limits to Preclusion. Preclusion is possible only insofar as the parties are free to waive grounds for refusal. This is not the case with regard to grounds for refusal intended to protect the public interest, such as, e.g., grounds provided in Article V(2). Within Article V(2) it is necessary to differentiate between aspects of public policy concerning the safeguarding of fundamental procedural rights of the parties (such as the right to be heard) and public policy aspects safeguarding the public interest (such as, e.g., antitrust legislation). The former aspects are primarily intended to protect individual interests and can be waived by the concerned party or parties. The latter aspects protecting the public interest cannot be waived and thus cannot be precluded as a result of certain behavior of one of the parties (also Õ para. 518).110 Such grounds are not placed at the parties’ disposal; they cannot be waived expressly or impliedly by means of certain behavior of a party.

(b) Differentiation Between Defects of Form and Substantive Invalidity? It is argued that participation in arbitral proceedings without raising objections as to the arbitral tribunal’s jurisdiction, while generally leading to a preclusion of grounds for refusal, does not preclude the party resisting enforcement from asserting the substantive invalidity of the arbitration agreement pursuant to Article V(1)(a).111 According to this view, participation in the arbitral proceedings without objection may overcome any defects concerning the written form of the arbitration agreement; however, it may not preclude any objections based on the assertion that the party resisting enforcement did not validly consent to arbitration or that the arbitration agreement is invalid for other reasons of substantive law.112 60 The opposite view has also been adopted: in its decision of June 26, 2006, the Higher Regional Court of Frankfurt (Germany) considered that while failure to consent to the conclusion of an arbitration agreement might be healed by participating in the arbitration proceedings, the requirement of written form pursuant to Article II was not fulfilled under such conditions. It held that no preclusion could be assumed with regard to non-compliance with the formal requirement of written form.113 The Italian Corte di Cassazione came to a similar result, stating that the participation of the respondent in 59

concerning the prerequisites of preclusion as a result of the violation of the principle of venire contra factum proprium were of a very general nature, also encompassing the scenario at issue here. 109 Germany: BGH, NJW-RR 2008, 1083 = SchiedsVZ 2008, 196; OLG Karlsruhe, SchiedsVZ 2012, 101 = XXXVIII Y.B. Com. Arb. 379 para. 10 (2013). 110 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.368; Kröll, ZZP 117 (2004), 453, 484; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 369. 111 Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409 = RIW 2000, 706, 708 = XXXI Y.B. Com. Arb. 652 (2006); Mallmann, SchiedsVZ 2004, 152, 157. 112 Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409 = RIW 2000, 706, 708 = XXXI Y.B. Com. Arb. 652 (2006); Mallmann, SchiedsVZ 2004, 152, 157 (relying on the fact that the wording of Article V(1)(a) does not provide for the possibility of preclusion). 113 Germany: OLG Frankfurt, IPRspr. 2006, No. 212, 477 = IPRax 2008, 517 = XXXII Y.B. Com. Arb. 351, 352 (2007); quoting Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 para. 2, the court stated: “In principle, the lack of a valid arbitration agreement must be raised in the course of the foreign arbitration proceedings; if this is not done, this ground for refusal can no longer be raised in the enforcement

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the arbitral proceedings (including the appointment of an arbitrator) was not sufficient to overcome the lack of a formally valid arbitration agreement.114 Neither of the above views is convincing. Provided that the requirements of preclu- 61 sion due to estoppel or good faith are fulfilled, the party resisting enforcement is comprehensively precluded from relying on any defects it failed to object to in the course of the arbitral proceedings.115 There is no reason for differentiating, with regard to preclusion, between objections to the formal validity of an arbitral agreement on the one hand and substantive objections on the other hand. Estoppel and good faith are general principles underlying the Convention (Õ para. 61). Article V(1)(a) does not constitute a lex specialis that would be exempt from the application of either of these principles. In addition, where the principles of good faith or estoppel form part of the applicable law of the exequatur forum, the party seeking recognition and enforcement may rely on these principles under Article VII as provisions more favorable to enforcement than the provisions of the Convention (regarding this principle Õ Art. VII paras 35 et seq.). bb) No Participation in the Arbitral Proceedings. It is generally accepted that a 62 party that has not participated in the arbitral proceedings at all is not precluded from raising grounds for refusal in later exequatur proceedings.116 The doctrine of venire contra factum proprium requires contradictory behavior (Õ para. 50). A party that does not participate in the arbitral proceedings does not behave in a contradictory manner if it raises grounds for refusal in the proceedings for recognition and enforcement. Since such a party has not acted in the arbitral proceedings at all, it has not shown any behavior that could have induced the other party to assume that no grounds for refusal would be raised at a later stage.117 cc) Failure to Make Use of Legal Remedies at the Seat of the Arbitration. 63 Preclusion is further discussed in cases in which the party resisting enforcement has not made use of available legal remedies at the seat of arbitration within the time limits prescribed by national law. This scenario concerns the failure to initiate proceedings for the setting aside of final awards as well as of interim awards on jurisdiction. The failure to make use of legal remedies at the seat of the arbitration is to be 63a distinguished from cases in which the party resisting enforcement has initiated legal proceedings against, e.g., an interim award on jurisdiction, but has failed to convince the competent court that the interim award should be annulled. The competent court’s decision affirming the jurisdiction of the arbitral tribunal and upholding the decision on jurisdiction will lead to the preclusion of the jurisdictional objection in the later exequatur proceedings for the final award.118 With regard to the opposite scenario (award set aside by the courts at the seat of the arbitration), Õ paras 377 et seq. proceedings. However, preclusion does not apply to issues concerning the written form under Article II of the Convention. The requirement of written form has not been complied with in the present case.” 114 Italy: Cass., IV Y.B. Com. Arb. 296 (1979). 115 Greece: Areios Pagos, IV Y.B. Com. Arb. 269 (1979); US: Imperial Ethiopian Gov’t v. Baruch-Foster Corp., 535 F.2d 334 (5th Cir. 1976) = II Y.B. Com. Arb. 252 (1977); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 9; Kröll, ZZP 117 (2004), 453, 483. 116 Kröll, ZZP 117 (2004), 453, 484; Kröll, IPRax 2007, 430, 436; Mallmann, SchiedsVZ 2004, 152, 159; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 406. This view is also expressed by Article 4 of the UNCITRAL Model Law which requires, as a prerequisite of preclusion, that a party “proceeds with the arbitration without stating its objection.” Section 1027 ZPO is, despite its slightly different wording, to be understood in the same way, cf. Schlosser, in Stein/Jonas (eds), ZPO, sect. 1027 para. 3. 117 Kröll, ZZP 117 (2004), 453, 484; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 406. 118 Germany: BGH, NJW-RR 2016, 1464.

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Courts from several common law countries have held that the failure to initiate setting-aside proceedings at the seat of the arbitration does not preclude a party from resisting enforcement in proceedings for the recognition and enforcement of the award. According to the Hong Kong High Court, the losing party has a choice between both options.119 This was also the position adopted by the UK Supreme Court in Dallah Real Estate v. Ministry of Religious Affairs, Pakistan.120 Similarly, the Singapore Court of Appeal, citing the above decisions, held that the enforcement regime of Article 36 of the Model Law (which is modelled on the enforcement regime of Article V) affords the party resisting enforcement a choice of remedies.121 64 Several German Courts, on the other hand, had initially assumed preclusion in this scenario.122 In their decisions, they relied on case law of the German Federal Supreme Court rendered under the German arbitration law in force before the adoption of the Model Law in Germany in 1998.123 In these earlier decisions, the Federal Supreme Court had assumed preclusion on the basis of the national German arbitration law preceding the Model Law. Preclusion has also been assumed on the basis of the principle of good faith, under which the parties to an arbitration agreement have been considered obligated to make use of existing legal remedies at the seat of the arbitration.124 65 However, in its decision of April 17, 2008, the German Federal Supreme Court125 clarified that in the above scenario, preclusion based on a good faith argument can only be assumed if the following two prerequisites are met: first, the behavior of the party resisting enforcement must be contradictory. Second, such behavior must also constitute an abuse of law. This is only the case if the earlier behavior of the party resisting enforcement had been such as to cause the other party to rely on the justified assumption that potential objections would not be raised in later exequatur proceedings, or if exceptional circumstances lead to an abuse of law. Relying on German national law, the Federal Supreme Court held that no preclusion could be assumed in the case at

63b

119 Hong Kong: Paklito Investment Ltd. v. Klockner East Asia Ltd., [1993] 2 HKLR 39 = XIX Y.B. Com. Arb. 664, 672 et seq. (1994). 120 UK: Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, [2010] UKSC 46 (at para. 28), observing, inter alia, that Article VI did not “contain any suggestion that a person resisting recognition and enforcement in one country has any obligation to seek to set aside the award in the other country in which it was made;” see also Nazzini, 7(1) Contemp. Asia Arb. J. 139 (2014). 121 Singapore: PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. Astro Nusantara International BV, [2014] 1 SLR 372 = CLOUT Case No. 1662; cf. also Singapore: Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd., [2006] 3 SLR(R) 174, 198 et seq.; Newspeed International Ltd. v. Citus Trading Pte Ltd., [2003] 3 SLR(R) 1; Galsworthy Ltd. of the Republic of Liberia v. Glory Wealth Shipping Pte Ltd., [2011] 1 SLR 727, 728 et seq. 122 Germany: OLG Hamm, SchiedsVZ 2006, 106, 107 = XXXI Y.B. Com. Arb. 685 (2006) (concerning an interim decision on jurisdiction); OLG Karlsruhe, SchiedsVZ 2006, 335 = XXXII Y.B. Com. Arb. 342, 344 (2007); KG, KGR 2008, 839, 840 = IPRspr. 2008, No. 199, 638 = XXXIV Y.B. Com. Arb. 510 (2009); contra: Germany: OLG Schleswig, RIW 2000, 706, 708 = XXXI Y.B. Com. Arb. 652, 658 (2006), holding that after the adoption of the Model Law in Germany, the “old” legal regime of preclusion in such a scenario could no longer be relied upon. 123 The German Kammergericht Berlin, e.g., relied in its decision of Apr. 17, 2008 (Germany: KG, KGR 2008, 839 = XXXIV Y.B. Com. Arb. 510 (2009)) on the Federal Supreme Court’s decision of Feb. 1, 2001, Germany: BGH, NJW-RR 2001, 1059 = IPRax 2001, 580 = XXIX Y.B. Com. Arb. 700 (2004), which had been rendered under the “old” arbitration law in force before the adoption of the Model Law in Germany. 124 Germany: OLG Karlsruhe, SchiedsVZ 2006, 335 = XXXII Y.B. Com. Arb. 342 (2007); OLG Karlsruhe, SchiedsVZ 2006, 281 = XXXII Y.B. Com. Arb. 358 (2007); OLG Karlsruhe, SchiedsVZ 2008, 47 = XXXIII Y.B. Com. Arb. 541 (2008); contra: Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409 = RIW 2000, 706, 707 = XXXI Y.B. Com. Arb. 652 (2006); BayObLG, NJW-RR 2001, 431 = XXVII Y.B. Com. Arb. 445 (2002). 125 Germany: BGH, NJW-RR 2008, 1083 = SchiedsVZ 2008, 196.

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hand, since the failure to initiate setting-aside proceedings did not give rise to the justified assumption on the part of the other party that no objections would be raised in later exequatur proceedings.126 The Austrian Supreme Court came to the same conclusion with regard to grounds for refusal pursuant to Article V(2).127 A similar view has also been taken by the Swiss Supreme Court.128 The Russian Supreme Arbitrazh Court has adopted a position reminiscent of the 66 older German case law: in its decision of May 26, 2011, the Supreme Arbitrazh Court held that the failure to challenge the arbitral tribunal’s decision on jurisdiction before the competent courts at the seat of the arbitration precluded the applicant from relying on the asserted lack of jurisdiction in the proceedings for recognition and enforcement.129 The position taken by the majority of courts in the more recent case law is in line 67 with the concept that arbitral awards are subject to dual control. Where an award suffers from a defect under Article V, the losing party may, in principle, choose to attack the award in annulment proceedings at the seat of the arbitration. However, it is, in principle, not bound to do so. In particular, in cases in which the losing party does not have any assets in the country of the seat of the arbitration or where the law at the seat of arbitration does not afford effective legal remedies against the award, it may also choose to restrict its defense against the award to the proceedings for recognition and enforcement.130 Such behavior does not conflict with the prohibition of venire contra factum proprium as an underlying principle of the Convention. However, this is not without risk in practice: since the stance on preclusion is not uniform in all Contracting States, a respondent that fails to attack the award at the seat of the arbitration may find itself able to resist enforcement in some (or even most) jurisdictions, but may fail to prevent enforcement in others.131

2. Ex-Ante Waiver Occasionally, parties include language in their arbitration agreement to the effect that 68 any award resulting from proceedings based on such arbitration agreement shall be complied with without undue delay and that all rights to appeal are waived. In such cases, two questions arise: the first is a question of interpretation; it concerns 69 the actual intention of the parties. Parties agreeing on such language may desire to waive potential defenses under Article V before any arbitration proceedings are initiated 126 Germany: BGH, NJW-RR 2008, 1083 = SchiedsVZ 2008, 196; see also Germany: BGH, NJW 2011, 1290 = SchiedsVZ 2011, 105, 107 = XXXVI Y.B. Com. Arb. 273 (2011); OLG Düsseldorf, IPRspr. 2014, No. 272, 730 = NJOZ 2015, 636; OLG Köln, IPRspr. 2014, No. 291, 772. Differentiating: Germany: OLG Karlsruhe, SchiedsVZ 2012, 101 = XXXVIII Y.B. Com. Arb. 379 para. 10 (2013) (considering that the above-referenced decision of the Federal Supreme Court (BGH, NJW 2011, 1290) was to be construed narrowly, i.e. applying only to cases in which the existence of a valid arbitration agreement was at issue (Article V(1)(a)). See for a detailed discussion of the Federal Supreme Court’s decision of Dec. 16, 2010: Santomauro, SchiedsVZ 2016, 178; Wolff, LMK 2011, 318374. 127 Austria: OGH, IPRax 2006, 496 = XXX Y.B. Com. Arb. 421, 426 (2005). 128 Switzerland: BG, 30(1) ASA Bull. 72 (2012) = XXXVI Y.B. Com. Arb. 340, 342 (2011). 129 Russia: Supreme Arbitrazh Court, CLOUT Case No. 1411. 130 Kröll, IPRax 2009, 145, 148; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 406–409; see also Kraayvanger, SchiedsVZ 2008, 301; Nazzini, 7(1) Contemp. Asia Arb. J. 139 (2014); Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 PILS para. 76; see, however, the criticism voiced by Heilbron, (2015)1 Tur. Com. L. Rev. 25, 30: “The menu of alternative remedies offered to a recalcitrant party to defeat an award on the ground of a jurisdictional challenge can provide an indigestible antidote to an otherwise successful enforcement regime and an obstacle to the finality of awards.” 131 Wolff, LMK 2011, 318374 (with regard to enforcement in Germany).

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(ex-ante waiver). However, whether this is actually the parties’ intention should be subject to careful examination. Depending on the wording, such language may not be intended to constitute a waiver; rather, the promise of voluntary compliance with the award may be based on the implied assumption that the fundamental rights protected by Article V are not violated in the arbitral proceedings. It is also conceivable (depending on the exact wording and circumstances) that the parties merely intend to state that any award based on the arbitration agreement will be final, i.e. not subject to any appeal or further review;132 they may also intend to clarify the point in time when an arbitral award will become binding upon them.133 In relation to Article 28(6) of the ICC Arbitration Rules 1998, German courts have consistently adopted an interpretation to the effect that the parties did not intend to waive potential defenses under Article V.134 70 Where a careful interpretation of the parties’ stipulation leads to the conclusion that it was indeed their intention to exclude the defenses of Article V, the question remains as to whether such an ex-ante waiver is permissible under the Convention. The Canadian Supreme Court of British Columbia, e.g., held an ex-ante waiver to be valid, pursuant to which the parties had waived any right to oppose enforcement.135 However, the court also stated that, independently of the waiver, the prerequisites of the defenses on which the party resisting enforcement had sought to rely were not fulfilled.136 In 132

Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.366. Belgium: TPI Bruxelles, XXII Y.B. Com. Arb. 643 (1997). The stipulation of the parties provided: “The award of the tribunal shall be final and binding upon the parties and shall be enforced immediately after it has been rendered, unless the Tribunal has fixed an interval for its enforcement or the enforcement of any part thereof. The award shall not be subject to appeal or revision. The enforcement of the award shall be subject to the rules of enforcement of arbitration awards in the country where enforcement is sought.” 134 Article 28(6) of the ICC Arbitration Rules (1998) (now Article 35(6) of the ICC Arbitration Rules 2017) provides: “Every Award shall be binding on the parties. By submitting the dispute to arbitration under these Rules, the parties undertake to carry out any Award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made.” The Higher Regional Court of Hamburg (Germany: OLG Hamburg, BeckRS 2008, 20097, also available at http:// www.disarb.org (last visited Apr. 29, 2019)) held that an interpretation of the wording of this provision made it clear that the party resisting enforcement of an ICC award was not barred from relying on grounds for the annulment of the award pursuant to sect. 1059 of the German Code of Civil Procedure (corresponding to Article 34 of the Model Law). Similarly, the Higher Regional Court of Frankfurt did not consider Article 28(6) of the ICC Rules (1998) – now Article 35(6) of the ICC Rules (2017) – to preclude the consideration of grounds for refusal based on public policy (Germany: OLG Frankfurt, IPRspr. 2008, No. 203, 646, 647 = XXXIV Y.B. Com. Arb. 527 para. 4 (2009)). These decisions are in line with an earlier decision of the German Federal Supreme Court (BGH), which had held that Article 24(2) of the ICC Rules (1988) – the predecessor of Article 35(6) of the ICC Rules (2017) – did not bar the party resisting enforcement from relying on grounds for annulment of the award (Germany: BGH, BGHZ 96, 40, 42 = NJW 1986, 1436). Similarly, the Highest Regional Court of Bavaria held that the cited provision of the ICC Rules did not constitute an ex-ante waiver of the grounds for annulment. Rather, it constituted a waiver of any review of the award on the merits by national courts (Germany: BayObLG, BB 2000, Beil. 12, p. 16 = IPRspr. 1999, No. 184, 477). 135 Canada: Food Services of America, Inc. v. Pan Pacific Specialties Ltd., XXIX Y.B. Com. Arb. 581 (2004). The waiver agreed between the parties read as follows: “Waiver of Sect. 36 of the International Commercial Arbitration Act of British Columbia. The parties intend that any award entered by the arbitrators in this case be final and binding, subject to enforcement either in Canada and/or the United States. In this regard, both parties hereby expressly waive any entitlement they have or may have to rely upon the provisions of Sect. 36 of the International Commercial Arbitration Act of British Columbia (SBC 1986 c. 14) and any similar provision in any comparable legislation in any other jurisdiction, to seek to avoid recognition or enforcement of an arbitration award made pursuant to this Agreement.” Article 36 of the International Commercial Arbitration Act of British Columbia is based on Article 36 of the UNCITRAL Model Law, which in turn was drafted on the basis of Article V. 136 Canada: Food Services of America, Inc. v. Pan Pacific Specialties Ltd., XXIX Y.B. Com. Arb. 581, 589 (2004). 133

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another case, the Ontario Court (General Division) held that the parties had “contracted out of the provisions on the setting aside of arbitral awards provided by the Ontario International Arbitration Act,” which is based on the Model Law.137 The setting aside provision of Article 34 of the Model Law has been drafted against the background of Article V; it contains a very similar regime. The decision of the Ontario Court may therefore give some indication as to how it would have considered a waiver of the grounds contained in Article V. The decision of the Swiss Supreme Court of April 3, 2014 appears to point in the 70a same direction.138 In this case, the Supreme Court held that the wording of the arbitration agreement before it could only be understood to state the parties’ intent to waive any review of the arbitral award by state courts.139 It is, however, important to note that the Swiss Supreme Court based its decision on Article 192 PILS, which explicitly allows a waiver of annulment if none of the parties have their domicile, habitual residence or business establishment in Switzerland.140 The Swiss Supreme Court thus based its decision on a particular provision of Swiss legislation, not on legal principles underlying the Convention. While Swiss legislation explicitly recognizes such waivers (albeit not generally) as valid, other legal regimes (such as, e.g., the UK) do not.141 The respective case law of the Swiss Supreme Court can therefore not be transferred to cases in which the seat of the arbitration is elsewhere, i.e. not in Switzerland. On the other hand, it has also been suggested that ex-ante waivers are generally 71 invalid and that a party can only waive these defenses when it is aware of the actual defects that have occurred in the proceedings.142 This view is preferable, since the effects of a waiver – by which a party foregoes the protection afforded by Article V in relation to its most fundamental procedural rights – are so far-reaching that a party agreeing on such waiver should be fully aware of its factual and legal situation. A thorough assessment in this regard can only be achieved after the respective defect has occurred.143 In this regard also Õ para. 145.

137 Canada: Noble China Inc. v. Lei, 42 O.R. (3d) 69, 87. In this case, the agreement between the parties provided: “No matter which is to be arbitrated is to be the subject matter of any court proceeding other than a proceeding to enforce the arbitration award.” It appears questionable whether such wording has to be construed as an ex-ante waiver of defenses in the proceedings for recognition and enforcement. Rather, the above wording may well be construed to simply clarify the exclusion of jurisdiction of the national courts concerning all matters subjected to arbitration. The grounds for refusal of recognition and enforcement (or the grounds for the setting aside of an arbitral award) are not “matters to be arbitrated” and therefore would not necessarily be encompassed by the wording of the parties’ stipulation. 138 Switzerland: BG, 32(3) ASA Bull. 575, 577 et seq. (2014). The arbitration clause in this case provided: “The decision of the arbitration committee shall be final and binding upon both parties; neither party shall seek recourse to a law court nor other authorities to appeal for revision of this decision.” 139 Switzerland: BG, 32(3) ASA Bull. 575, 578 (2014). 140 For earlier decisions based on Article 192 PILS, see also Switzerland: BG, 24(1) ASA Bull. 92, 99 (2006); BG, 27(1) ASA Bull. 94, 99 (2009) (“The parties hereby waive any ordinary and extraordinary recourse against the decision to be rendered”); see further Baizeau, 8(3) Int. A.L.R. 69–77 (2005). 141 Sections 67 and 68 of the Arbitration Act (1996). Pursuant to schedule 1 to section 4 Arbitration Act, sections 67 and 68 are mandatory provisions. See further Baizeau, 8(3) Int. A.L.R. 69–77 (2005); Baizeau, in: Arroyo (ed.), Arbitration in Switzerland, Art. 192 PILS para. 29. 142 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.367; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 216; concerning annulment proceedings according to section 1059 of the German civil procedure code (ZPO), which corresponds to Article 34 of the UNCITRAL Model Law; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 24 para. 53. 143 It should also be taken into account that arbitration agreements are not infrequently written into contracts as “midnight clauses,” i.e. at the last stage of the drafting process. Arbitration clauses containing an ex-ante waiver are particularly unlikely to receive the necessary attention in such situations.

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In any case, the defenses contained in Article V(2), which are to be examined by exequatur courts ex officio, cannot be waived in so far as they concern issues of public interest (Õ para. 58). These issues are not placed at the parties’ disposition; they therefore cannot be waived by mutual agreement.

3. Ex-Post Waiver 73

In accordance with the above, the parties can agree to waive defenses under Article V, provided that they are aware of the defect that has occurred. However, the restrictions regarding a waiver of defenses relating to the public interest equally apply to ex-post waivers.

IV. Court Decision 1. Recognition and Enforcement “May” Be Refused The question of whether the enforcement court has the discretion to enforce an award despite the existence of one or more of the grounds for refusal of enforcement listed in Article V arises out of an inconsistency in the different language versions of the Convention (Õ Annex I). The English version of Article V reads: “Recognition and enforcement may be refused […],” implying a remaining discretion. The Chinese, Russian and Spanish versions contain a similar wording. The French text, however, implies a mandatory refusal of enforcement by providing that enforcement shall be refused only if the party opposing enforcement proves the existence of a ground for refusal of enforcement. Pursuant to Article XVI(1), the Chinese, English, French, Russian and Spanish texts are equally authentic. Which, then, is the version to follow? In cases in which the wording of a Convention does not provide a conclusive result, the drafting history and the objectives of the drafters afford valuable insights (Article 32 of the Vienna Convention on the Law of Treaties). The main argument raised against the exequatur courts having residual discretion is that such discretion would be exercised differently in different jurisdictions and that the ensuing uncertainty and unpredictability would be contrary to the purpose of the drafters to harmonize enforcement practice.144 75 However, it has to be borne in mind that the main objective of the Convention was to facilitate the recognition and enforcement of foreign arbitral awards, in particular by ensuring that exequatur courts would be limited by the grounds upon which they could refuse enforcement.145 To that purpose, the drafters carefully drafted an exhaustive list of seven grounds for refusal of enforcement, covering what they considered to be the fundamental principles of natural justice. This exhaustive list of grounds was by no means meant to prevent the courts from being more generous and deciding on a case by case basis that, in a given case, the principles of fundamental justice are not violated under the specific circumstances, despite the existence of a ground for refusal.146 In this spirit, the Hong Kong Supreme Court stated in China Nanhai Oil Joint Service Corp. v. Gee Tai Holdings Co. Ltd.147 that the residual discretion afforded by Article V allowed the national courts to consider all the circumstances of the case in order to reach a just result. 74

144

Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 205. See E/2704, para. 13 (Õ Annex IV 1). 146 See E/2704, para. 13 (Õ Annex IV 1); Gaillard/Savage, Fouchard Gaillard Goldman, para. 1694. 147 Hong Kong: China Nanhai Oil Joint Service Corp. Shenzhen Branch v. Gee Tai Holdings Co. Ltd., XX Y.B. Com. Arb. 671, 677 (1995). 145

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Furthermore, the wording of the French version is not entirely clear. It has been argued that a literal English translation of the French wording (“recognition and enforcement of the award shall not be refused […] unless […]”) does not preclude discretion.148 This view is further supported by the drafting history: while Article 2(1) of the Geneva Convention (Õ Annex V 2) provided that “enforcement shall be refused […],” the ECOSOC draft changed this wording into “may.”149 A contextual interpretation of Article V further buttresses this view: while Article V contains the word “may,” Articles III and IV contain the word “shall,” which suggests that they cannot both have the same meaning.150 The stronger arguments are therefore in favor of residual discretion.151 In this spirit, in the explanatory notes to his hypothetical draft convention van den Berg suggests clarifying the wording to the effect that “enforcement shall be refused in manifest cases only. In manifest cases, there is no room for the application of a residual power.”152 This is also the way the Convention has been interpreted by most domestic legislatures and exequatur courts in the major jurisdictions. In the US, despite the wording of section 207 of the Federal Arbitration Act,153 the US courts considered that Article V provides a discretionary standard.154 In the UK, section 103 of the Arbitration Act 1996 provides for a discretionary standard.155 This is also the view taken in Canada156 and in the Netherlands.157 In the practice of the French courts, the existence of a ground for refusal does not necessarily prevent recognition and enforcement. in spite of the wording of the French version of Article V. The domestic arbitration law (Article 1502 of the NCPC), applied by the courts on the basis of Article VII,158 allows refusal of enforcement based on a smaller range of objections than those defined in the Convention. In Germany, however, Article V is generally considered to leave no discretion to the exequatur courts, despite the use of may (“darf”) in the German translation.159 This view is based on the argument that the intent of the drafters of the Convention was to standardize and harmonize the grounds for refusal, but not to grant additional discre-

148

Paulsson, 9(1) ICC Bull. 14, 17 (1998). See E/2704 (Õ Annex IV 1); Article 2 of the Geneva Convention reads: “recognition and enforcement of the award shall be refused if […];” see also: Darwazeh, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 308. 150 See also: Darwazeh, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 308. 151 With regard to the remaining conceptual difficulty in granting discretion in cases where the award has been annulled in the country of the seat (Article V(1)(e)), Õ Art. V para. 382, as well as Scherer, 43 Pepp. L. Rev. 637 (2016). 152 Van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 660. 153 “The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.” 154 US: Chromalloy Aeroservs., Inc. v. Arab Republic of Egypt, 939 F. Supp. 907 (D.D.C. 1996) = XXII Y.B. Com. Arb. 1001 (1997). 155 UK: China Agribusiness Development Corp. v. Balli Trading, XXIVa Y.B. Com. Arb. 732 (1999); Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, [2010] UKSC 46 (at para. 126); see also Nazzini, 7(1) Contemp. Asia Arb. J. 139 (2014). 156 Canada: Schreter v. Gasmac Inc., 7 O.R. (3d) 608; Europcar Italia S.p.A. v. Alba Tours International Inc., [1997] OJ No. 133 = 23 OTC 376 = XXVI Y.B. Com. Arb. 311 (2001); Alvarez, (2008) 25 J. Int. Arb. 669, 671. 157 Netherlands: Gerechtshof Amsterdam, XXXIV Y.B. Com. Arb. 703, 713 (2009). 158 See e.g. France: CA Paris, XXII Y.B. Com. Arb. 682, 684 (1997); CA Paris, XXII Y.B. Com. Arb. 691 (1997); CA Paris, XXIII Y.B. Com. Arb. 644, 647 (1998). 159 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 4; Kröll/Kraft, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1059 para. 44; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 56 para. 3; but see for the contrary opinion: Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 147. 149

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New York Convention

tionary authority to the exequatur court.160 Furthermore, this interpretation is deemed to correspond to the intention of the German legislature.161 Another reason put forward is the aim to avoid a discrepancy under German law between the enforcement of foreign awards on the one hand and the enforcement of domestic awards on the other.162 As far as the enforcement of domestic awards is concerned, German courts must refuse the enforcement of the award where a ground for refusal has been found to exist (section 1060 (2)(1) of the ZPO). 80 However, in practice this interpretation has little impact on the enforcement-friendly attitude of the German courts, since the latter tend to interpret the grounds for refusal very narrowly. Furthermore, German courts are generally favorable to preclusion of grounds for refusal of enforcement.163 Finally, they tend to deny the existence of a ground for refusal where no causal nexus exists between the award and the procedural defect.164 The absence of a causal connection was considered by the Hong Kong Supreme Court as one of the cases in which the discretion should be exercised so as to grant enforcement despite the existence of a ground for refusal.165 German courts can thus be said to reach the same enforcement-friendly results by different means.166

2. Partial Recognition and Enforcement Where the exequatur court has found that grounds for refusal of recognition and enforcement exist under Article V, but the defects underlying such grounds only exist in relation to a part of the award, the question arises as to whether the exequatur court may still grant recognition and enforcement in relation to the part(s) of the arbitral award that are not affected by the defects. 82 Article V(1)(c) explicitly provides for partial recognition and enforcement in relation to “a difference not contemplated by or not falling within the terms of the submission to arbitration.” Where the arbitral tribunal’s decision on matters submitted to arbitration can be clearly separated from those not so submitted, Article V(1)(c) allows for the recognition and enforcement of the part of the award based on a valid submission to arbitration (Õ para. 258). 83 The principle contained in Article V(1)(c) is not limited to the scenario spelled out in this provision, but represents a general principle applicable to the other grounds for refusal contained in Article V: where a defect in the award or in the arbitral proceedings only pertains to a clearly separable portion of the award, recognition and enforcement may be refused in relation to the affected portion, while recognition and enforcement will be granted in relation to the unaffected part(s).167 Such partial enforcement is in 81

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Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.356. Denkschrift der Bundesregierung, BT-Drucks. III/2160, p. 26. 162 Wolff, LMK 2008, 265473. 163 With regard to preclusion, Õ para. 47. 164 Germany: OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019); BayObLG, XXX Y.B. Com. Arb. 568, 572 (2005); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 53; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 99; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 298. 165 Hong Kong: Paklito Investment Ltd. v. Klockner East Asia Ltd., [1993] 2 HKLR 39 = XIX Y.B. Com. Arb. 664, 673 (1994). 166 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 45. 167 France: CA Paris, Rev. arb. 1989, 280, 287 (annulment proceedings: annulment only in relation to the affected part of the award); Germany: BGH, BGHZ 96, 40 = NJW 1986, 1436 (annulment only in relation to the affected part of the award); Hong Kong: J.J. Agro Industries (P) Ltd. v. Texuna International Ltd., XVIII Y.B. Com. Arb. 396, 400 (1993), stating that “the void part must be clearly separable in order that the award may be held good for the remainder;” UK: Nigerian National Petroleum Corp. v. IPCO (Nigeria) Ltd., [2008] EWCA Civ 1157 = XXXIII Y.B. Com. Arb. 788 (2008); US: 161

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accordance with the pro-enforcement bias of the Convention. Partial enforcement is also warranted by considerations of procedural economy: if unaffected, separable parts of awards could not be recognized and enforced, new arbitral proceedings would have to be initiated, leading to an award with (largely) the same contents. The concept of partial recognition and enforcement is also in line with Recommendation 1(h) of the Final Report on Public Policy as a Bar to Enforcement of International Arbitration Awards by the International Law Association Committee on International Commercial Arbitration.168 Where a clear distinction between the part of the award that is affected by a ground 84 for refusal and the unaffected part is not possible, however, the exequatur court is not entitled to replace the affected part according to its own discretion.169

E. Incapacity of the Parties or Invalidity of the Arbitration Agreement, Article V(1)(a) I. Overview Article V(1)(a) principally concerns grounds for refusing the recognition or enforce- 85 ment of an existing arbitral award. Under this provision, the recognition and enforcement of an award may be refused if it is based on an invalid arbitration agreement or if one or both of the parties lacked capacity to conclude the arbitration agreement.170 In addition, this provision contains conflict-of-laws rules specifying which law governs (apart from questions of form, which are contained in Article II) the validity of the arbitration agreement and the capacity of the parties.

Laminoirs-Trefileries-Cableries de Lens S. A. v. Southwire Co., 484 F. Supp. 1063 (N.D. Ga. 1980) = VI Y.B. Com. Arb. 247 (1981) (recognition and enforcement denied in relation to part of interest ruling of the award); Brandeis Intsel Ltd. v. Calabrian Chems. Corp., 656 F. Supp. 160 (S.D.N.Y. 1987) = XIII Y.B. Com. Arb. 543 (1988) (citing Laminoirs v. Southwire); FIAT S.p.A. v. Ministry of Fin. & Planning of the Republic of Surin., XXIII Y.B. Com. Arb. 880 (1998) (S.D.N.Y. 1989) (award against a party that was not a signatory to the arbitration agreement: vacatur of the part of the award against the non-signatory party and enforcement of the award against the signatory party); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.373; Otto/Elwan, in: Kronke/Nacimiento/ Otto/Port (eds), NYC, pp. 413 et seq. 168 Recommendation 1(h) provides: “If any part of the award which violates international public policy can be separated from any part which does not, that part which does not violate international public policy may be recognized or enforced.” 169 Austria: OGH, IPRax 2006, 496 = XXX Y.B. Com. Arb. 421 (2005). In its decision, the Austrian Supreme Court confirmed, in principle, the possibility of partial enforcement with regard to an arbitral award partly in violation of the ordre public. However, the Court stressed that “partial enforcement can only be considered when there are sufficient grounds in the foreign arbitral award […] for a clear division between acceptable and totally unacceptable legal consequences for the domestic legal system.” The Supreme Court stated that while it was possible to distinguish between the award for the principal amount and the award for interest (which was in violation of public policy due to an annual interest rate of 107.35 %), it was not permissible for the exequatur court to determine, according to its own discretion, which interest rate below 107.35 % would not result in a violation of public policy. 170 See Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 218; see also Article 36(1)(a)(i) of the Model Law; Article 103(2)(a) of the English Arbitration Act 1996 (“Recognition or enforcement of the award may be refused if the person against whom it is invoked proves- (a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity”).

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Article V 86–90

New York Convention

II. Spirit and Purpose 86

Just as parties cannot be required to arbitrate if they have not agreed to arbitration, an arbitral award is not enforceable if the parties have not agreed to arbitrate or if their arbitration agreement is invalid. This provision accordingly permits a court to deny recognition or enforcement of an award if no arbitration agreement exists, if the arbitration agreement is invalid, or if one of the parties lacked the capacity to agree to arbitrate.

III. Drafting History 87

Article V(1)(a) refers to two grounds for refusing the recognition or enforcement of an arbitral award: incapacity of the parties, and invalidity of the arbitration agreement. These two parts of this provision evolved separately during the drafting history of the Convention. As with Article II(3) (Õ Art. II paras 200–201), Article V(1)(a) did not attain its final shape until the very last day of the United Nations Conference on International Commercial Arbitration held from May 20 until June 10, 1958 in New York (the “NY Conference”).

1. Incapacity as a Reason for Refusal The history of this provision reaches back to the Geneva Convention (Õ Annex V 2), concluded under the auspices of the League of Nations. Although Article 2(b) of the Geneva Convention had already included incapacity of a party as one of the possible grounds on which recognition and enforcement of an award could be refused, it is evident from its wording that this ground concerned proper legal representation in the arbitral proceedings and not a deficiency affecting the execution of the arbitration agreement.171 89 The draft of a modernized convention on the enforcement of international arbitral awards presented by the International Chamber of Commerce (“ICC”) in 1953 (the “ICC draft”) contained a provision that reproduced verbatim Article 2(b) of the Geneva Convention.172 The ICC draft was further developed by an ad hoc committee established by the United Nations Economic and Social Council in 1954, which adopted a second draft convention in 1955 (the “ECOSOC draft”).173 This same text of the ICC draft dealing with incapacity was discussed during the Conference that prepared the ECOSOC draft174 and slightly amended to read in Article IV(c) “that the party against whom the award is invoked, being under a legal incapacity, was not properly represented.”175 90 The representative of New Zealand commented on this provision contained in Article IV(c) of the ECOSOC draft – that the party against whom the award is invoked was “under a legal incapacity” and “not properly represented” – stating that “the draft does not specify clearly by what law these criteria are to be interpreted, and that it should be expressly provided that the law of the place where the award was 88

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See van den Berg, NYC, pp. 275–276. E/AC.42/SR.6, p. 3 (Õ Annex IV 1). This provision in the ICC draft was Article IV(c). 173 E/2704: E/AC.42/4/Rev.1, Annex (Õ Annex IV 1). 174 E/AC.42/SR.6, pp. 3–5 (Õ Annex IV 1); E/2822, Annex I, p. 22, and Annex II, pp. 19, 20, 22 (Õ Annex IV 1). 175 See E/2704, E/AC.42/R/Rev.1, Annex, p. 2 (Õ Annex IV 1). 172

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made should apply to them.”176 However, the incapacity provision was dropped from further drafts during the NY Conference, on the grounds that such cases seldom arose in practice.177 It was only on the very last day of the NY Conference, on June 10, 1958, that the 91 representative of the Netherlands, Professor Pieter Sanders, proposed modifying the draft Article V(1)(a) to include a reference to the incapacity of the parties. As grounds for his proposal, Professor Sanders put forth that the capacity of the parties could only be determined according to the law governing their personal status and not the law applicable to the award.178 Despite heavy criticism by some representatives,179 the proposed amendment was adopted by 15 votes to 7, with 11 abstentions,180 and was incorporated into the Final Act of the Convention.

2. Invalidity of the Arbitration Agreement as a Reason for Refusal The roots of the second part of Article V(1)(a) – dealing with the invalidity of the 92 arbitration agreement – can also be traced back to the Geneva Convention. According to Article 2 in connection with Article 1(a) of the Geneva Convention (Õ Annex V 2), the recognition and enforcement of an award could be refused if the award was not “made in pursuance of a submission to arbitration which is valid under the law applicable thereto.” In the 1953 ICC draft, the approach taken by the Geneva Convention was altered in a 93 decisive respect. As in the Geneva Convention, Article III(a) of the ICC draft stipulated that recognition and enforcement of an arbitral award could only be obtained if an arbitration agreement exists between the parties.181 However, it did not provide for a specific national law to be applied to the arbitration agreement or expressly require the agreement to be valid.182 That was because the committee that prepared the ICC draft deliberately construed the required “agreement” between the parties as a factual prerequisite rather than a legal one in order to avoid the “irritating discussion” on whether the arbitration agreement should be valid under the applicable law.183 176

See E/CONF.26/3, p. 2 (Õ Annex IV 1); E/2704: E/AC.42/4/Rev.1, Annex, p. 2 (Õ Annex IV 1). E/CONF.26/SR.17, p. 9 (Õ Annex IV 1). 178 The minutes of the session explain the reason for this proposal: “Mr. Sanders (Netherlands) proposed that article V, paragraph 1 (a) should read: ‘The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made;’ The first part of the amendment, a wholly new formula, would in no way prejudge the question of the capacity of the parties, which could be determined only according to the law governing their personal status and not the law applicable to the award. Apart from that, the proposed new sub-paragraph merely repeated the provision already adopted, with only such minor drafting changes as seemed to make the text both clearer and more concise.” E/CONF.26/SR.24, p. 7 (Õ Annex IV 1). 179 As soon as the amendment from the Netherlands had passed, the representative from the USSR complained that the new text of Article V(1)(a) departed too much from the text previously adopted and suggested that the Conference should reconsider the amendment. After further discussion the representative from Norway moved to reconsider the amendment but the motion was not adopted, having failed to obtain a two-thirds majority vote. See E/CONF.26/SR.24, p. 8 (Õ Annex IV 1). 180 E/CONF.26/SR.24, p. 7 (Õ Annex IV 1). 181 Article III(a) of the ICC draft states: “To obtain the recognition and enforcement [of an arbitral award] it will be necessary […] that there exists between the parties named in the award a written agreement stipulating settlement of their differences by means of arbitration.” 182 Another innovation of Article III(a) of the ICC draft was the requirement that an arbitration agreement must be in writing. 183 ICC, 9(1) ICC Bull. 32, 34 (1998) = E/C.2/373 (Õ Annex IV 1) (“If this is the basic principle [i.e., that arbitration is always voluntary and must be based on an agreement by the parties], it would seem useless to open the irritating discussion on whether the arbitration agreement should be valid ‘under the 177

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The 1955 ECOSOC draft retained the idea expressed in Article III(a) of the ICC draft,184 only slightly revising the wording.185 It was not until the NY Conference in 1958 that the provision in Article III(a) underwent profound changes to become part of the present Article V(1)(a). 95 Those changes were initiated by an earlier comment on Article III(a) of the ECOSOC draft in which Sweden expressed its opinion that if a dispute arises as to whether a valid arbitration agreement was concluded, this question should be decided according to a specific national law. Referring to Article 1(a) of the Geneva Convention, Sweden thus proposed a stipulation to the effect that in such cases, the competent courts should apply their international private law to determine the applicable national law.186 During the NY Conference, Sweden upheld its earlier position and proposed to amend Article III(a) accordingly.187 Following further proposals by the Netherlands188 and the United Kingdom189 to include in the draft Article III the requirement that the arbitration agreement is valid, changes were made to the draft Article IV(1)(a) to provide that the recognition and enforcement of an arbitral award sought may be refused if “the arbitration agreement or the arbitral clause is not valid under the law applicable to it.”190 This amendment occurred on June 4, 1958 and, except for the fact that this provision was moved to the draft Article V(1)(a), it remained untouched until June 9, 1958, the second last day of the NY Conference.191 96 On June 9, 1958 the NY Conference adopted a radically new text for Article V(1)(a). Upon the motion of the representative of the USSR, the existing provision was redrafted to define the meaning of “the law applicable.”192 The NY Conference adopted this proposal, which clarified that grounds for refusal apply if the arbitration agreement is 94

law applicable thereto’. It is, on the contrary, far simpler to provide a more general provision under which the judge called upon to enforce the award shall be satisfied that there exists an agreement stipulating settlement of disputes by arbitration, if written evidence is supplied.”). 184 E/2704: E/AC.42/4/Rev.1, Annex (Õ Annex IV 1). The drafting committee evidently followed the reasoning behind Article III(a) of the ICC draft by stating: “So long as the agreement is genuine and has been reduced to written form, the Committee thought it should be considered valid for the purpose of this paragraph.” E/2704: E/AC.42/4/Rev.1, para. 30 (Õ Annex IV 1). 185 Article III(a) of the ECOSOC draft stipulates: “To obtain the recognition and enforcement [of an arbitral award] it will be necessary […] that the parties named in the award have agreed in writing either by a special agreement or by an arbitral clause in a contract, to settle their differences by means of arbitration.” 186 E/2822/Add.1, Annex I, p. 2 (Õ Annex IV 1). Comparably, the Netherlands in 1958 sought an amendment of the ECOSOC draft to the effect that it expressly stipulates the possibility of testing the validity of the arbitration agreement under the applicable law. E/CONF.26/3/Add.1, p. 3 (Õ Annex IV 1). 187 E/CONF.26/L.8 (Õ Annex IV 1). The proposed Article III(a) stipulated: “To obtain the recognition and enforcement [of an arbitral award] it is necessary […] that the award shall have been made pursuant to a special arbitral agreement or to an arbitral clause which is valid under the law applicable to it and which has been drawn up in writing by the parties named in the award.” (emphasis added). 188 E/CONF.26/L.17 (Õ Annex IV 1). The proposed amendments stated that in order to obtain the recognition and enforcement of an award the parties must have validly agreed in writing to arbitration. 189 E/CONF.26/L.22 (Õ Annex IV 1). The suggested amendment read in part: “To obtain the recognition and enforcement mentioned in the previous Article, it is necessary: (a) That the award shall have been made pursuant to a valid agreement to arbitrate […] or to an arbitral clause which is valid under the law applicable to it […].” (emphasis added). 190 E/CONF.26/L.48 (Õ Annex IV 1). The provision was repositioned to Article IV(1)(a) of the NY Conference’s draft convention. 191 See E/CONF.26/8 (Õ Annex IV 1). 192 The USSR felt that Article V(1)(a) as it stood was not sufficiently clear and proposed an amendment to clarify it, which was then promptly adopted. E/CONF.26/SR.23, p. 14 (Õ Annex IV 1) (“Mr. Bakhtov (Union of Soviet Socialist Republics) felt that paragraph 1 (a) was not sufficiently clear. The phrase ‘the law applicable’ should be defined. He therefore proposed that paragraph 1 (a) should be redrafted to read: ‘[T]he arbitration agreement or the arbitration clause is not valid under the national law to which the

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“not valid under the national law to which the parties have subjected their agreement, or failing any indication thereon, under the law of the country where the award was made.”193 This new provision, which left it to the parties to chose the law applicable to the arbitration agreement and, in the event a choice of law was not made, referred to the law of the country where the award was made, effectively took the determination of the law applicable to the arbitration agreement out of the hands of the competent courts. It was therefore not until the last two days of the NY Conference that Article V(1)(a) assumed its final shape.

IV. Incapacity of the Parties Just as parties must have legal capacity to enter into a legally enforceable contract 97 generally, the same applies for arbitration agreements. The general rule is that any natural or legal person who has the capacity to enter into a valid contract has the capacity to enter into an arbitration agreement.194 If one of the parties lacks legal capacity, this can have consequences with respect to the enforceability of the agreement. In practice, however, the issue of capacity rarely arises in international commercial arbitration.195 In terms of the Convention, under Article V(1)(a), the incapacity of either party to 98 enter into the arbitration agreement constitutes a ground for refusal of recognition or enforcement of the award.196 This ground for refusal is treated separately under the Convention because the Convention prescribes a different conflict-of-laws rule for it.

1. Parties to the Agreement Referred to in Article II Article V(1)(a) speaks of the parties to the arbitration agreement referred to in 99 Article II. It is clear from Article I(1) that the Convention applies to “differences between persons, whether physical or legal.” In light of this, and the fact that companies and governmental agencies are the most important actors in international business and trade, courts and authorities have correctly presumed that these entities may be parties referred to in Article II (Õ Art. I para. 139).197 Thus, legal entities under public law, including States and international organizations, may be parties in this regard.198 Article V(1)(a) also applies where a party claims that it was never a party to the arbitration agreement.199 parties have subjected their agreement or, failing any indication thereon, under the law of the country where the award was made […]’.”). 193 E/CONF.26/L.63, p. 1 (Õ Annex IV 1). 194 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.31. 195 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.33; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.10 Reporters’ Note b (p. 596) (“Few American cases address claims of lack of capacity as a ground for denying recognition or enforcement of an international arbitral award.”). 196 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 218. 197 See Anzorena, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 615, 622. During the drafting of the Convention, issues of “capacity” were also discussed in connection with legal persons. Gaillard/Savage, Fouchard Gaillard Goldman, para. 1695. 198 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.92. 199 UK: Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, [2010] UKSC 46 = 2010 WL 4276039 (Lord Collins at para. 77) (“Although Article V(1)(a) […] deals expressly only with the case where the arbitration agreement is not valid, the consistent international practice shows that there is no doubt that it also covers the case where a party claims that the agreement is not binding on it because that party was never a party to the arbitration agreement.”).

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2. Incapacity The Convention does not define the term “incapacity.” What is meant is the capacity to enter into an arbitration agreement.200 Although the Convention refers to the incapacity of the “parties,” the lack of capacity of one party is sufficient for the court to deny recognition or enforcement of an award made against that party.201 101 It is clear that the Convention abandoned the earlier due process approach to incapacity that was used in the Geneva Convention202 for an approach focusing on the validity of the arbitration agreement itself, meaning that what matters for the purposes of the Convention is whether a certain party had the requisite capacity at the time of execution of the arbitration agreement.203 This is also evident from the use of the past tense, that the “parties to the agreement […] were […] under some incapacity.” Thus, the capacity of a party must exist at the moment of the conclusion of the arbitration agreement.204 100

a) Incapacity of States or State-Controlled Entities 102 It is accepted that the “incapacity defense” as referred to in Article V(1)(a) can apply to legal entities including States and state-controlled entities.205 States, state-owned entities and other public bodies are not excluded from the scope of the Convention by reason of their status. The expression “persons, whether physical or legal” in Article I(1) is generally deemed to include public law entities (Õ Art. I para. 139).206 103 In several countries there are laws prohibiting or restricting the ability of entities associated with governmental functions to enter into arbitration agreements.207 In practice, it has often occurred that a State or a state-controlled entity or organization 200 See Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 18 (the capacity to take legal action, which rests upon the capacity to contract). As pointed out by another commentator: “[T]he concept of capacity that is relevant for the purposes of the Convention concerns the contractual sphere and, particularly, the possibility of entering into a binding arbitral agreement, this agreement being separable from the main contract.” Anzorena, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 615, 621. See also ICCA, Guide, p. 84. 201 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 218; see also Article 36(1)(a)(i) of the Model Law; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.10 Reporters’ Note b (p. 596). 202 See Article 2(b) of the Geneva Convention (Õ Annex V 2). 203 Anzorena, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 615, 632. A New York court decision based on the premise that the incapacity provision in the Convention was concerned with ensuring that both parties were properly represented during the arbitration proceedings is accordingly flawed. See US: Corcoran v. Ardra Ins. Co., XVI Y.B. Com. Arb. 663, 666 (1991) (N.Y. App. Div. 1990); Anzorena, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 615, 632. 204 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 62; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 218. 205 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.92; Anzorena, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 615, 623–630. 206 ICCA, Guide, p. 85. 207 Lew/Mistelis/Kröll, Comparative Arbitration, para. 27-5. For instance, in Venezuela, Section 4 of the Commercial Arbitration Act provides that when one of the parties to the arbitration agreement is a state entity (or an entity in which the State holds a stake of at least 50 %) the arbitration agreement must be specifically approved by the relevant minister. Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.37, n. 55. In Germany the old “Act of the Reich and the Federal States Governing the Resolution of Civil Law Disputes by Means of Arbitration” dated Oct. 10, 1933 required the consent of the German Ministry of Finance in order for any arbitration agreement entered into by third parties on behalf or for the account of the German government or one of the federal States to be valid. This Act was repealed when Germany updated its arbitration law in 1998. In Hungary, according to section 17(3) of Act CXCVI of 2011 (Act on National Property), an entity that is entitled to dispose over property that is situated

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has claimed that pursuant to its own law it lacked capacity to enter into the arbitration agreement. Such a defense is hardly ever accepted208 and often is regarded as a demonstration of contradictory behavior contrary to good faith by first accepting an arbitration agreement and then attempting to avoid it by reference to one’s own law.209 Contrary to what may be the case for natural persons lacking capacity (such as minors or mentally infirm persons), a State or state-controlled entity comprehends the nature and consequences of its transactions and it would be abusive if it could rely on its own law to subsequently assert that it is not responsible for such transactions. The modern trend recognizes that State parties should not be able to invoke their 104 own incapacity after entering into an arbitration agreement. For instance, Article 177(2) of the Swiss Private International Law Act provides that: “If a party to the arbitration agreement is a State or an enterprise or organization controlled by it, it cannot rely on its own law in order to contest its capacity to be a party to the arbitration agreement or the arbitrability of a dispute covered by the arbitration agreement.”210 The same principle is reflected in Article 2(2) of the 2003 Spanish Arbitration Act.211 This is consistent with general principles of customary international law as demonstrated by Article 46 of the Vienna Convention on the Law of Treaties,212 which generally prohibits a State from invoking its internal law to argue that it was not competent to conclude a treaty, and Article 26 of the same Convention, which obliges States to perform binding treaties in good faith.213 b) Governing Law for Incapacity Article V(1)(a) specifies a choice-of-law rule for cases where it is alleged that a party 105 lacked capacity to enter into the arbitration agreement. This provision makes clear that capacity is to be determined not by the law chosen by the parties, but rather by “the law applicable to them,” or their “personal law,” which for natural persons refers to the law of their nationality or domicile.214 The applicable law in such a case is determined by the conflict-of-laws rules of the 106 forum in which recognition or enforcement of the award (or recognition of the arbitration agreement) is sought.215 In civil-law jurisdictions, a party’s personal law is

within Hungary and owned by the State is not allowed to agree to arbitration in a contract affecting such property. 208 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 220. 209 See Schwab/Walter, Schiedsgerichtsbarkeit, ch. 24 para. 5. This may be considered a form of venire contra factum proprium. See also ICCA, Guide, p. 85. 210 See also France: Cass., Rev. arb. 1964, 82, 83; Anzorena, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 615, 627; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 220. 211 Article 2(2) of the Spanish Arbitration Act, Law 60/2003, provides: “Where the arbitration is international and one of the parties is a State or a company, organisation or enterprise controlled by a State, that party shall not be able to invoke the prerogatives of its own law in order to avoid the obligations arising from the arbitration agreement.” 212 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969). 213 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969). 214 Craig/Park/Paulsson, ICC Arbitration, § 5.02 (p. 44) n. 3. As these authors point out, it would be contrary to good faith for a State party to an international contract, having freely accepted the arbitration clause, to invoke its own legislation to allege that it did not have capacity to do so. Id., at 45; see also Article 177(2) of the Swiss Private International Law Act. 215 Van den Berg, NYC, p. 276; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.10 Reporters’ Note c (p. 598); Restatement (Second) Conflict of Laws §§ 187–188, 198; Schwab/ Walter, Schiedsgerichtsbarkeit, ch. 44 para. 18.

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usually the law of their nationality.216 In common-law jurisdictions, a party’s personal law is usually the law of their domicile.217 107 For corporations, the capacity to enter into a contract is governed by the law of the place of the seat or the place of incorporation.218 For instance, in Germany the capacity of legal persons to arbitrate is regularly determined by the law of their seat, or in the case of companies from other EU Member States, the law of the place of incorporation.219

V. Invalidity of the Arbitration Agreement The second ground by which the recognition or enforcement of an award may be refused under Article V(1)(a) is if there is no valid arbitration agreement between the parties. 109 The most common basis for a claim that an arbitration agreement is invalid is that the agreement fails to comply with the necessary form requirements.220 Article V(1)(a) refers to Article II, which requires the arbitration agreement to be in writing. For details on this form requirement Õ Art. II paras 73 et seq. and for details on the “morefavorable-rights principle” of Article VII(1), which could possibly ease certain form requirements by allowing national courts to apply a more favorable national law, reference is made to Õ Art. II paras 177 et seq.; Õ Art. VII paras 45 et seq.221 Within the scope of the Convention, Article II(2) regulates the form conclusively.222 Thus more severe national form requirements are ousted by Article II(2), whereas more favorable regulations are applicable in line with the “more-favorable-rights principle” of Article VII.223 110 Often parties opposing recognition and enforcement have argued that a defect in the main agreement rendered the arbitration agreement invalid. Courts have generally dismissed this argument pursuant to the doctrine of seperability, which holds that an arbitration agreement is legally independent from the underlying contract which contains it, and the invalidity of a contract does not imply that the arbitration agreement contained therein is invalid (Õ Art. II paras 294 et seq.).224 108

216 For instance, in German law, a natural person’s legal capacity and capacity to contract depend on the law of the person’s nationality. See Article 7(1) of the Introductory Act to the German Civil Code (EGBGB). 217 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 219. 218 See Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.35. See also Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 62; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 18. At least one commentator has suggested that for practical purposes and uniformity between companies inside and outside of the EU, the law of the seat should be rejected in favor of the law of the place of incorporation in light of the decision ECJ: Überseering BV v. Nordic Construction Co. Baumanagement GmbH (C-208/00), [2002] ECR I-9919 = NJW 2002, 3614 (which held that where a company incorporated in an EU Member State establishes its administrative seat in another Member State, that other Member State is required to recognize the company’s legal capacity (and capacity to be a party to legal proceedings) which it enjoys under the laws of its State of incorporation). Schütze, in: Schütze (ed.), Institutionelle Schiedsgerichtsbarkeit, Einleitung para. 24. 219 See Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 62; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 18. 220 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 226. 221 See also Article I(2)(a) of the European Convention (Õ Annex V 3), which could also serve to ease form requirements where applicable. 222 Van den Berg, NYC, pp. 173–174. 223 Germany: BGH, SchiedsVZ 2011, 46, 48; Czernich, Kurzkommentar, Art. II para. 10. 224 US: Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 448 (2006); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967); UK: Per Lord Hope of Craighead in Premium Nafta

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1. Governing Law for Validity of the Arbitration Agreement Article V(1)(a) contains conflict-of-laws rules for determining the law governing the 111 arbitration agreement. This article provides that recognition and enforcement of an arbitral award may be refused if the arbitration agreement “is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made.” These are references to the substantive rules of the relevant law; thus, no renvoi is permitted.225 This provision of Article V(1)(a) supersedes the conflict-of-laws provisions of the 112 forum.226 According to Professor van den Berg, so far no court has questioned that the conflict rules of Article V(1)(a) are to be interpreted as internationally uniform rules, which supersede the domestic conflict rules of the country in which the award is relied upon with respect to awards governed by the Convention.227 a) Choice of Law Under the plain language of Article V(1)(a) if the parties agreed to a body of law to 113 govern the arbitration agreement, that law governs the question of its validity. Accordingly, the applicable law is in the first instance determined by the will of the parties. The parties’ choice of law need not comply with any formal requirements and may be 114 explicit or implicit.228 Generally the parties are free to choose any law to govern their arbitration agreement, as long as their choice does not violate public policy,229 and they may choose a neutral law without any connection to the dispute.230 There has been some controversy about whether a general choice-of-law clause in an 115 underlying contract also applies to the arbitration clause if no specific body of law is specified to govern such clause.231 According to the widely accepted doctrine of separability, the main contract and the arbitration agreement are two separate agreements that could be governed by different laws and therefore a general choice of law does not necessarily apply to the arbitration clause (Õ Art. II paras 295–298). In practice, if the parties made a choice of law for the main contract containing the arbitration agreement, that choice of law is usually understood to apply to the arbitration agreement as well (Õ Art. II paras 232–234).232 Products Ltd. v. Fili Shipping Co. Ltd., [2007] UKHL 40 = [2007] Bus. L.R. 1719, 1726 (citing the US Supreme Court in US: Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967); Germany: OLG Hamburg, SchiedsVZ 2013, 180, 181–182; OLG Saarbrücken, SchiedsVZ 2012, 47, 54; OLG Koblenz, SchiedsVZ 2005, 260, 261. 225 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.92, 21.382. 226 Germany: BGH, NJW 1976, 1591 = RIW 1976, 449 = II Y.B. Com. Arb. 242 (1977). 227 Van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 57. 228 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 224; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.383. 229 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 224; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.382. 230 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 225. 231 See generally, Born, International Commercial Arbitration, pp. 515–517, 581–583; Lew/Mistelis/ Kröll, Comparative Arbitration, paras 6-24, 6-59. Compare van den Berg, NYC, p. 293 (“[I]f a contract contains a general choice of law clause and provides in the arbitral clause that arbitration is to be held in a country with a different law, the latter indication must be deemed to prevail over the former.”) with Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 3.12 (“Since the arbitration clause is only one of many clauses in a contract, it might seem reasonable to assume that the law chosen by the parties to govern the contract will also govern the arbitration clause.”). 232 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 224–225; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.10 Reporters’ Note c (p. 598) (“The Restatement

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b) Law of the Country Where the Award Was Made If the parties have not made a choice of law, either explicitly or implicitly, the law of the country where the award was made applies to the arbitration agreement (Article V(1)(a)). The Convention does not specify how to determine where the award “was made”. The majority view is that the award is considered made at the place (or seat) of the arbitration (Õ Art. I paras 99–104).233 The seat of the arbitration is determined pursuant to the agreement of the parties, or failing such agreement, usually on their behalf by the arbitral tribunal234 or the arbitral institution.235 117 This corresponds to provisions in some national laws or institutional rules. For instance, Article 31(3) of the Model Law states that the award shall be deemed to have been made at the place of arbitration in accordance with Article 20(1) (as agreed upon by the parties or failing agreement, as determined by the arbitral tribunal).236 In practice, parties often either select the seat of the arbitration in their arbitration agreement or agree to institutional rules providing a mechanism for selecting the seat of arbitration early on in the process.237 118 The minority view, which had previously been taken by the English courts (Õ Art. I para. 101),238 determines where the award “was made” solely on the basis of objective criteria.239 Under this view, the arbitral award is made at the place where the last necessary action for the award to become effective occurred, i.e., where the award was signed.240 119 The majority view is to be followed. The focus should be on the intent and the expectations of the parties with regard to the seat of arbitration. Generally, unless otherwise agreed by the parties the arbitral tribunal may conduct hearings and other activities at any location it considers appropriate, but this does not imply that such a 116

follows the view that if the parties have not agreed to a law to govern their arbitration agreement (either expressly or impliedly), the law specified in a general choice-of-law clause generally determines the law applicable to the arbitration agreement. This approach facilitates a consistent interpretive framework for the entire contract, and best reflects the parties’ intent. It is fully consistent with the Conventions, which describe the applicable law as ‘the law to which the parties have subjected’ the arbitration agreement.”). 233 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.33; see Blackaby/ Partasides/Redfern/Hunter, Redfern and Hunter, para. 3.71. 234 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.33. This is in harmony with Article 20(1) of the Model Law, pursuant to which the parties may agree on the place of arbitration; failing such agreement the place of arbitration is determined by the arbitral tribunal having regard to the circumstances of the case. 235 See, e.g., Article 18(1) of the ICC Rules (2017); Article 16(1) of the Swiss Rules (2012). 236 See also Article 32(3) of the ICC Rules (2017) (“The award shall be deemed to be made at the place of the arbitration and on the date stated therein.”). 237 The particulars of such mechanisms vary depending on the institutional rules. See, e.g., Article 22 of the DIS Rules (2018) (“If the parties have not agreed upon the seat of the arbitration, then it shall be fixed by the arbitral tribunal.”); Article 18(1) of the ICC Rules (2017) (“The place of the arbitration shall be fixed by the Court, unless agreed upon by the parties”); Articles 16.1 and 16.2 of the LCIA Rules (2014) (“The parties may agree in writing the seat (or legal place) of their arbitration at any time before the formation of the Arbitral Tribunal and, after such formation, with the prior written consent of the Arbitral Tribunal. In default of any such agreement, the seat of the arbitration shall be London (England), unless and until the Arbitral Tribunal orders, in view of the circumstances and after having given the parties a reasonable opportunity to make written comments to the Arbitral Tribunal, that another arbitral seat is more appropriate.”). 238 UK: Hiscox v. Outhwaite, [1992] 1 AC 562, 594 = XVII Y.B. Com. Arb. 599, 603 (1992). This position was reversed by section 3 of the English Arbitration Act 1996. Blackaby/Partasides/Redfern/ Hunter, Redfern and Hunter, para. 3.72. 239 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.38. 240 See Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.38; UK: Hiscox v. Outhwaite, [1992] 1 AC 562, 594 = XVII Y.B. Com. Arb. 599, 603 (1992) (House of Lords, per Lord Oliver of Aylmerton).

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location is the seat of arbitration.241 To view the award as being made only where it was signed may result in the seat of arbitration for purposes of Article V(1)(a) being effectively determined by coincidence or for reasons of practicality of the arbitrators.242 This would also entail the risk that the place where an award is made within the meaning of the Convention could be determined ex post against the intent of the parties.243 In addition, enforcement issues could arise if the last signature on the award was affixed in a State that is not a party to the Convention. Only in the rare instances where the place of arbitration may not otherwise be 120 determined should the place where the award was made be deduced from various procedural indications, such as the place where the award was signed or the place where the tribunal was in session.244

2. Scope of Governing Law It is widely accepted that the parties may choose what law they want to apply to their arbitration agreement, as well as what substantive law they want to regulate their contractual relationship.245 Thus, the parties’ choice of law applicable to the arbitration agreement is not required to have an objective connection to the nationality of the parties or to the dispute, and may be either explicit or implicit.246 The scope of the governing law is limited primarily by any applicable mandatory rules and public policy standards.247 In addition, some issues do not come within the scope of governing law mentioned in Article V(1)(a). For instance, matters regarding the form of the arbitration agreement are not to be determined under the law governing the arbitration agreement but under the requirements of Article II(2) (Õ Art. II para. 166).248 In addition, as mentioned above (Õ paras 105–107), the law chosen by the parties does not govern the capacity of the parties. Although related to capacity, issues of agency and the binding effect of an arbitration agreement concluded by an agent on behalf of a principal do not come within the scope of Article V(1)(a).249 The national law determined in accordance with general conflictof-laws rules of the forum State governs issues of agency (Õ Art. II para. 156).250 Similarly, the question of the validity of a power of attorney is to be treated separately. This depends on the particular statutes regulating powers of attorney under national law determined according to the applicable conflict-of-laws rules

241 See Article 20(2) of the Model Law; Article 18(2) and (3) of the ICC Rules (2017); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.33. 242 Moreover, this could raise practical concerns such as how to determine at the enforcement stage where the last signature of the arbitrators was made, or if signed while traveling by plane or ship, how to determine where the award was made. 243 See Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.40. 244 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.36; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 31; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 225. 245 See Lew/Mistelis/Kröll, Comparative Arbitration, para. 17-18; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.382. 246 See Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.241; Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.382–21.383. 247 See Lew/Mistelis/Kröll, Comparative Arbitration, paras 17-27, 17-32. 248 Van den Berg, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 39, 57. 249 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 219; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.239. 250 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.149, 21.239; Schramm/Geisinger/Pinsolle, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 56.

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(Õ Art. II para. 156).251 The national law of the entity governs the issue of corporate or organic representation.252

3. Burden of Proof Some courts have understood the Convention to require that the issue of consent or the existence of the arbitration agreement must be proved by the party applying for the recognition or enforcement of the award, and the issue of invalidity of the arbitration agreement must be proved by the party opposing the recognition or enforcement of the award (Õ paras 42–43).253 126 This seems to overstate the requirements of the Convention. Pursuant to Article IV(1)(b), the party applying for the recognition and enforcement of an award shall supply the original arbitration agreement as referred to in Article II or a duly certified copy thereof.254 This should be understood to mean that the applicant has only the burden of producing the written arbitration agreement upon which the award rests, and not that the applicant must prove that the arbitration agreement was validly concluded (Õ Art. IV paras 20–21).255 Once the party seeking recognition or enforcement of the award has supplied the documents required under Article IV(1), it has made out a prima facie case and the burden shifts to the party opposing recognition or enforcement to establish one of the grounds in Article V (Õ paras 12, 44–45).256 This is confirmed by the drafting history of the Convention, a primary purpose of which was to discard the comprehensive requirements for recognition and enforcement that had to be proven by the applicant under the Geneva Convention (Õ Annex V 2).257 127 Thus, while Article V(1) requires that the party resisting enforcement furnish proof of one of the defenses listed, Article IV merely requires the applicant to supply the original or a certified copy of the arbitration agreement. The party opposing enforcement has the burden of convincing the court that, despite production of an arbitration 125

251 Schwab/Walter, Schiedsgerichtsbarkeit, ch. 44 para. 19; ICC: Case No. 10617, SchiedsVZ 2003, 45; van den Berg, NYC, p. 226. 252 See Anzorena, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 615, 630. 253 See Germany: OLG München, SchiedsVZ 2009, 340, 341 = XXXV Y.B. Com. Arb. 383 (2010) („Die Antragstellerin hat darzulegen und zu beweisen, dass zwischen den Parteien des Verfahrens eine schriftliche Schiedsvereinbarung geschlossen wurde.“ Trans.: “The applicant must show and prove that a written arbitration agreement was concluded between the parties to the proceedings.”); OLG Celle, SchiedsVZ 2004, 165, 167 = IHR 2004, 83 = XXX Y.B. Com. Arb. 528, 530 (2005); BayObLG, NJW-RR 2003, 719, 719 = XXIX Y.B. Com. Arb. 761, 764 (2004); Spain: TS, XXVII Y.B. Com. Arb. 546, 548 (2002); Argentina: Cámara Nacional de Apelaciones en lo Civil y Comercial Federal, XXXIII Y.B. Com. Arb. 322 (2008). 254 For whether a party can invoke more favorable national rules than those imposed under Article II for recognition and enforcement under the Convention, Õ Art. VII paras 42–48. 255 See Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 66; Poudret/Besson, Comparative Arbitration, para. 951; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 211. 256 UK: Yukos Oil Co. v. Dardana Ltd., XXVII Y.B. Com. Arb. 570, 576 (2002) (per Lord Mance: “A successful party to a New York Convention Award […] has a prima facie right to recognition and enforcement. At the first stage, a party seeking recognition and enforcement must […] produce the duly authenticated award or a duly certified copy and the original arbitration agreement or a duly certified copy. […] Once such documents have been produced, recognition or enforcement may be refused at the second stage only if the other party proves that the situation falls within one of the heads set out in Sect. 103(2)” [of the English Arbitration Act 1996, essentially the equivalent of Article V(1) and (2) of the Convention]); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.6 Reporters’ Note a (pp. 560–562). 257 See Kröll, in: Kröll et al. (eds), Liber Amicorum Bergsten, pp. 329–330.

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agreement by the applicant pursuant to Article IV(1)(b), no arbitration agreement was concluded or it was otherwise invalid.258

F. Violation of Due Process, Article V(1)(b) I. Overview Article V(1)(b) guarantees minimum requirements for a fair arbitral procedure, 128 incorporating basic notions of due process into the NYC.259 Under Article V(1)(b), a court may refuse to recognize or enforce an arbitral award, if the party against whom the award is invoked was (i) not given proper notice of the appointment of the arbitrator or of the arbitration proceedings; or (ii) otherwise unable to present its case. The first possible defense encompasses not only the failure to notify of the appointment of the arbitrator (Õ para. 155) or of the arbitration proceedings (Õ para. 156), but also the failure to do so in a “proper” fashion: timely, in adequate form and language, and to the correct addressee(s) (Õ paras 158–168). The second defense covers, in a broad and non-exhaustive fashion, all cases in which a party was “otherwise” unable to present its case (Õ paras 169–195). The second defense thus guarantees, in particular, the right to submit evidence (Õ paras 174–177); make legal or factual submissions to the tribunal (Õ paras 178–186); and comment on evidence and submissions in the case file (Õ paras 187–195). When invoking any of the defenses under Article V(1)(b), it is necessary to identify the governing law (Õ paras 136–141); establish that there is a causal nexus between the violation of due process and the final disposition of the award (Õ paras 142–144); verify that the party invoking Article V(1)(b) has not waived the alleged procedural irregularity (Õ paras 145–149); and consider the relation between this provision and other non-enforcement grounds under the NYC, particularly Article V(1)(d) and Article V(2)(b) (Õ paras 150–154).

II. Spirit and Purpose The principle of procedural fairness constitutes a fundamental basis for the integrity 129 of dispute resolution mechanisms and is thus regarded a “cornerstone” of international 258 See UK: Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, [2010] UKSC 46 = 2010 WL 4276039 (per Lord Mance at para. 30 (“The scheme of the New York Convention, reflected in ss. 101–103 of the 1996 Act may give limited prima facie credit to apparently valid arbitration awards based on apparently valid and acceptable arbitration agreements, by throwing on the person resisting enforcement the onus of proving one of the matters set out in Article V(1) and s. 103. But that is as far as it goes in law.”) and at para. 31, quoting with approval from a party’s submission (“Under […] Art V.1(a) NYC, when the issue is initial consent to arbitration, the Court must determine for itself whether or not the objecting party actually consented. The objecting party has the burden of proof […].”)); US: Czarina, L.L.C. v. W.F. Poe Syndicate, 358 F.3d 1286, 1292 (11th Cir. 2004) = XXIX Y.B. Com. Arb. 1200 (2004) (finding that once the jurisdictional prerequisites to an action to confirm an award under Article IV are satisfied, the applicant has established a prima facie case for confirmation and the burden shifts to the opposing party to prove that the award should be denied enforcement based on one of the grounds specified in Article V). See also Kröll, in: Kröll et al. (eds), Liber Amicorum Bergsten, pp. 329–332. 259 It has rightly been pointed out that the term “due process” has a specific meaning in some national legal systems and should therefore be avoided in the context of international arbitration, instead referring more neutrally to “procedural fairness.” See Born, International Commercial Arbitration, p. 3494. However, because “due process” is commonly used in the context of Article V(1)(b), in this section it is used as a synonym of, and together with, the term “procedural fairness.”

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arbitration.260 It applies to all arbitral proceedings, even if the arbitrators may use their equitable discretion in resolving the dispute (amiable compositeur).261 National arbitration statutes usually contain provisions identical or similar to Article V(1)(b);262 or they refer more generally to the parties’ right to be heard or present their case,263 the principle of “adversarial proceedings”264 or the arbitrators’ obligation to treat the parties equally.265 The European Convention of 1961 (Article IX(1)(b), Õ Annex V 3), the Panama Convention (Article 5(1)(b), Õ Annex V 4) and the Geneva Convention of 1927 (Article 2(1)(b), Õ Annex V 2, also Õ paras 132–135) also contain provisions comparable to Article V(1)(b). 130 Article V(1)(b) is one of the most frequently invoked grounds for non-recognition or non-enforcement of awards.266 Yet, courts seldom – and only in egregious cases – accept due process violations as a defense.267 Indeed, most courts apply Article V in light of the Convention’s goal of encouraging timely and efficient recognition or enforcement of arbitral awards and construe Article V’s exceptions, including the due process defense, narrowly.268 131 As detailed above, under Article V(1), the burden of proof rests on the party resisting recognition or enforcement of an arbitral award (Õ paras 41–45). Accordingly,

260 See Germany: BGH, NJW 1992, 2299; BGH, BGHZ 96, 40, 47 = NJW 1986, 1436, 1438; BGH, NJW 1983, 867; BGH, NJW 1952, 27. See also Boucobza/Serinet, JDI 2012, 41; Delvolvé/Pointon, French Arbitration Law and Practice, p. 204; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1638; Wheeless, 7 Emory Int’l L. Rev. 812 (1993). 261 See e.g., France: CA Paris, Rev. arb. 1997, 249; CA Paris, Rev. arb. 1997, 246. See also Haas, Anerkennung und Vollstreckung, p. 209; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 80; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 175. 262 See e.g., section 103(2)(c) of the English Arbitration Act; Article 45(2)(iii)–(iv) of the Japanese Arbitration Act; Article 39(1)(a)(iii) of the Malaysian Arbitration Act; Article 31(2)(c), ch. 143A of the Singaporean International Arbitration Act; section 89(2)(c), division 2, Part 10, ch. 609 of the Hong Kong Arbitration Ordinance; Article 48(1)(b) of the Indian Arbitration and Conciliation Act. See also Article 36(1)(a)(ii) of the UNCITRAL Model Law. 263 See e.g., Articles 1723(3), 1704(1)(g) of the Belgian Judicial Code. 264 See e.g., Article 1520(4) of the French CPC. 265 Concerning the conduct of arbitral proceedings generally, see e.g., Article 21(2) of the Brazilian Arbitration Law; Article 1510 of the French CPC; Article 24(1) of the Spanish Arbitration Act; Article 182(3) of the Swiss International Private Law Act. See also Article 18 of the UNCITRAL Model Law. 266 See Karrer, in: Aksen et al. (eds), Liber Amicorum Briner, pp. 429, 431; Verbist, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 679, 692. See also van den Berg, NYC, p. 297. 267 For a report of national court decisions on Article V(1)(b), see Verbist, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 679, 692 et seq. It appears from this report that courts accepted Article V(1)(b) defenses only in approximately 10% of all cases. See also Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 233; van den Berg, in: ICC (ed.), Arbitration in the Next Decade, pp. 75, 78. Compare Gaillard/Savage, Fouchard Gaillard Goldman, para. 1698; van den Berg, NYC, p. 310. 268 See e.g., Hong Kong: Pacific China Holdings Ltd. (in liquidation) v. Grand Pacific Holdings Ltd., [2012] HKCA 200 = XXXVIII Y.B. Com. Arb. 577 excerpt para. 84 (2013); US: Castro v. Tri Marine Fish Co., XLIII Y.B. Com. Arb. 638 excerpt para. 13 (2018) (W.D. Wash. 2017); OJSC Ukrnafta v. Carpatsky Petroleum Corp., XLIII Y.B. Com. Arb. 664 excerpt para. 14 (2018) (S.D. Tex. 2017); Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH, XLIII Y.B. Com. Arb. 626 excerpt paras 18–19 (2018) (S.D. Fla. 2017); TMCO Ltd. v. Green Light Energy Solutions R&D Corp., XLIII Y.B. Com. Arb. 684 excerpt paras 11–12 (2018) (N.D. Cal. 2017); Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., 82 Fed. Appx. 359 (5th Cir. 2003) = XXIX Y.B. Com. Arb. 1160, 1165 (2004); Generica Ltd. v. Pharm. Basics, Inc., 1996 WL 535321 (N.D. Ill. 1996) = XXII Y.B. Com. Arb. 1029, 1033 (1997); Fitzroy Eng’g Ltd. v. Flame Eng’g, Inc., XXI Y.B. Com. Arb. 744, 746 (1996) (N.D. Ill. 1994); Shaheen Natural Res. Co. v. Sonatrach, X Y.B. Com. Arb. 540, 542–543 (1985) (S.D.N.Y. 1983). On procedural public policy (Article V(2)(b)), see e.g., Germany: OLG Brandenburg, BB 2001, Beil. 6, p. 21 = XXIX Y.B. Com. Arb. 697, 699 (2004); Italy: Cass., XXVII Y.B. Com. Arb. 492, 496 (2002); Switzerland: BG, 34(4) ASA Bull. 1015 (2016); BG, Rev. arb. 2013, 1066; BG, 33(3) ASA Bull. 576 (2015).

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in the context of Article V(1)(b), national courts have held that the party alleging procedural unfairness must prove this defense.269

III. Drafting History Pursuant to Article 2(1)(b) of the Geneva Convention of 1927 (Õ Annex V 2), which 132 preceded the NYC, a court could refuse recognition or enforcement, if it was satisfied “[t]hat the party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented.” The early drafts of the NYC contained a similarly worded provision.270 During the discussions concerning the due process provision of the NYC, some delegations proposed that a court consider the due process defense only upon request by the party resisting recognition or enforcement of the award.271 These proposals clearly impacted the Working Party’s June 1958 draft272 and the ultimate standard adopted by what is now Article V(1)(b). The resulting difference between the due process provisions of the Geneva Convention of 1927 and the NYC is considerable. While the Geneva Convention permitted a court to refuse recognition or enforcement of an award ex officio on due process grounds, in contrast, Article V(1)(b) requires the party resisting recognition or enforcement to raise and substantiate any due process defense. This modification falls in line with the general pro-enforcement spirit and purpose of the NYC. The implications of this change for the relation between Article V(1)(b) and the public policy defense of Article V(2)(b) are discussed below (Õ paras 153–154). The Working Party also materially changed other elements of the due process 133 provision. In contrast to initial drafts and proposed amendments by various nations, the Working Party’s draft version of Article V(1)(b) omitted language regarding a respondent whose “legal incapacity” resulted in improper representation.273 The New York Conference adopted the Working Party’s June 1958 draft proposal of Article V(1)(b),274 pointing to the fact that cases of a party’s legal incapacity resulting in improper representation seldom arose in practice.275 In subsequent discussions, though, the Norwegian delegation suggested that the broad and general wording of 269 See e.g., Brazil: Superior Tribunal de Justiça, XXXVII Y.B. Com. Arb. 189 (2012); Germany: OLG Köln, XL Y.B. Com. Arb. 425 (2015); Italy: Cass., XXVII Y.B. Com. Arb. 492, 496 (2002); Cass., XXIVa Y.B. Com. Arb. 709, 713 (1999); Cass., XVIII Y.B. Com. Arb. 433, 434 (1993); Cass., XIV Y.B. Com. Arb. 675, 676 (1989); Cass., X Y.B. Com. Arb. 470, 472–473 (1985); CA Milano, XVIII Y.B. Com. Arb. 415, 417 (1993); Russia: Presidium of the Supreme Arbitrazh Court, XXXIII Y.B. Com. Arb. 650, 652–653 (2008); Spain: TS, XXXII Y.B. Com. Arb. 603, 606 (2007); TS, XXX Y.B. Com. Arb. 627, 631 (2005); TS, VIII Y.B. Com. Arb. 408, 408 (1983); Tribunal Superior de Justicia de la Comunidad Valenciana, XXXIX Y.B. Com. Arb. 501 excerpt para. 35 (2014); Switzerland: BG, 29(3) ASA Bull. 673 (2011); BG, 34(2) ASA Bull. 482 (2016); BG, 34(4) ASA Bull. 1015 (2016); BG, 33(3) ASA Bull. 576 (2015); CJ, Apr. 11, 2014 (unreported), available at http://newyorkconvention1958. org/index.php?lvl=notice_display&id=3692 (last visited Apr. 16, 2019); US: SEI Societa Esplosivi Industriali SpA v. L-3 Fuzing & Ordnance Sys., 843 F. Supp. 2d 509 (D. Del. 2012); Telenor Mobile Commc’ns AS v. Storm LLC, 524 F. Supp. 2d 332, 368 (S.D.N.Y. 2007) = XXXIII Y.B. Com. Arb. 1041, 1076 (2008); R.M.F. Global, Inc. v. Cattan, 2006 WL 544294 (W.D. Pa. 2006). 270 See E/2704: E/AC.42/4/Rev.1, Annex, p. 2 (Õ Annex IV 1). See also E/CONF.26/L.48, p. 1 (Õ Annex IV 1). 271 See E/CONF.26/L.8, p. 2 (Õ Annex IV 1). Compare E/CONF.26/L.34, p. 1 (Õ Annex IV 1). 272 See E/CONF.26/L.43, p. 1 (Õ Annex IV 1). 273 See E/CONF.26/L.43, p. 1 (Õ Annex IV 1). 274 See E/CONF.26/L.48, p. 1 (Õ Annex IV 1). 275 See E/CONF.26/L.17, p. 9 (Õ Annex IV 1).

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Article V(1)(b) should at least implicitly address potential due process violations against an improperly represented party.276 To that effect, the Norwegian delegation suggested inserting the word “proper” before “notice.” The proposed amendment was accepted by a significant majority.277 The meaning of what “proper notice” constitutes is discussed below (Õ paras 158–168). 134 Further material changes to the due process provision were proposed at the twentythird session of the New York Conference. The Dutch delegation successfully proposed replacing the words “in sufficient time to enable him to present his case” with “was otherwise unable to present his case.”278 This amendment ensured that the due process exception would cover all serious violations of due process. Indeed, the text of the Geneva Convention (Õ Annex V 2) and earlier drafts of Article V(1)(b) explicitly required the respondent to be notified only so that it would have “sufficient time” to prepare its case (although the Geneva Convention was generally interpreted as covering other cases of due process).279 The more expansive wording of the final version of Article V(1)(b) encompasses all situations in which a party was “otherwise unable to present his case;” due process violation may thus also occur in circumstances where – although a party was notified in sufficient time – other causes prevented the party from presenting its case.280 This proposal was accepted by a large majority.281 A detailed examination of situations where a party was “otherwise unable to present his case” can be found below (Õ paras 169–195). 135 One element of the due process provision that remained from its predecessor in the Geneva Convention of 1927 is the lack of specification of the law applicable to determining whether a respondent was given “proper notice” or “was otherwise unable to present his case.” In the early stages of the drafting process, the New Zealand delegation stated that “the draft does not specify clearly by what law [Article V(1)(b)’s] criteria are to be interpreted,” suggesting “that it should be expressly provided that the law of the place where the award was made should apply to them.”282 This proposal was not adopted and, as discussed below, national courts and scholars have taken divergent approaches in determining the governing law (Õ paras 136–141).

IV. General 1. Governing Law 136

What constitutes a fair process is not uniform across all Contracting States: the concepts of “due process,” “right to be heard,” “principe du contradictoire,” “rechtliches Gehör” etc. differ substantially among jurisdictions.283 Different standards may apply, for instance, in the parties’ and arbitrators’ respective home jurisdictions, the place of

276

See E/CONF.26/L.17, p. 9 (Õ Annex IV 1). See E/CONF.26/SR.17, pp. 9, 14 (Õ Annex IV 1). See also generally Martinez, 24(2) Int’l Law. 487, 499 (1990). 278 See E/CONF.26/SR.23, p. 15 (Õ Annex IV 1). 279 See Greminger, Genfer Abkommen, p. 69. Compare van den Berg, NYC, p. 297. 280 See Sanders, Quo Vadis Arbitration?, p. 315. Compare Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 26; Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 152; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1696. 281 See E/CONF.26/SR.23, p. 14 (Õ Annex IV 1) (18 in favor, 5 against, 9 abstentions). 282 E.CONF.26/3, p. 2. 283 See Gaillard/Savage, Fouchard Gaillard Goldman, para. 1559; Steindl, AAYB 2008, 255, 256, 259. 277

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arbitration, and the forum (or fora) where enforcement or recognition of the award is sought. This raises the question of what law applies to determining whether Article V(1)(b)’s requirements are met. Article V(1)(b) does not specify the law or standard applicable to determining whether procedural fairness was violated. As described below, national courts and other authorities have adopted different solutions and applied: (a) the lex arbitri or the law applicable to the arbitration agreement; (b) the law of the recognizing or enforcing forum; or (c) an international standard derived from an autonomous interpretation of Article V(1)(b). a) Lex Arbitri or Law of the Arbitration Agreement It has sometimes been suggested that the law of the arbitral procedure (lex arbitri) or 137 the law applicable to the arbitration agreement should determine Article V(1)(b)’s due process standard. One commentator proposes a two-prong test whereby the recognizing or enforcing court should first determine whether the due process requirement under the lex arbitri (law chosen by the parties or law of the seat, pursuant to Article V(1)(d)) has been met, and if so, in a second step, the court should also apply its own governing law or standard.284 Other authorities suggest that the question should be determined – analogously to Article V(1)(a) – according to the law that the parties selected to apply to the arbitration agreement or, failing any selection, the law of the arbitral seat.285 However, the choice of the arbitral seat (as lex arbitri or as the law applicable to the 138 arbitration agreement) has little relevance under Article V(1)(b). As detailed above, it is clear from the NYC’s drafting history that the delegates specifically rejected a proposal to apply the law of the country where the award was made (Õ para. 135). Moreover, a violation of the agreed arbitral procedure or law of the seat is already addressed in Article V(1)(d). To avoid redundancy, Article V(1)(b) does not replicate this reference, either expressly or implicitly.286

284

Inoue, 11 Am. Rev. Int’l Arb. 247, 256 (2000). See Martinez, 24(2) Int’l Law. 487, 499 (1990). Compare Poland: SN, III CKN 1139/00; Aden, NJW 1993, 1964, 1965. 286 Compare Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V paras 29, 31; Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.393; Kröll, in: Böckstiegel/Kröll/ Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 81. 285

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b) Law of the Recognition or Enforcement Forum National courts in France,287 Germany,288 Italy,289 Spain,290 Switzerland,291 the US,292 and elsewhere,293 apply – as a matter of principle – the law of the forum where enforcement or recognition is sought (i.e., the lex fori) to determine Article V(1)(b)’s standard of procedural fairness.294 They found that Article V(1)(b) “essentially sanctions the application of the forum State’s standards of due process”295 and that “the question whether the requirements of due process have been satisfied must be considered under […] the law of the enforcing State.”296 140 However, even when courts apply their own due process standards, i.e., the lex fori, they take into account the international character of the arbitral process, emphasizing that purely domestic standards of the recognizing or enforcing State are not applicable. Accordingly, courts have held – either expressly or implicitly – that what may be a violation of due process under the domestic law of the recognizing or enforcing State is not necessarily a violation of procedural fairness under the NYC.297 139

287

See e.g., France: CA Paris, Rev. arb. 1989, 63. See e.g., Germany: OLG Hamburg, IV Y.B. Com. Arb. 266, 267 (1979). Concerning procedural public policy (Article V(2)(b)), see Germany: OLG Jena, SchiedsVZ 2008, 44 = XXXIII Y.B. Com. Arb. 534 (2008); OLG Köln, SchiedsVZ 2005, 163 = XXX Y.B. Com. Arb. 557 (2005); OLG Bremen, BB 2000, Beil. 12, pp. 18, 19 = XXXI Y.B. Com. Arb. 640, 647 (2006); OLG Brandenburg, BB 2001, Beil. 6, p. 21 = XXIX Y.B. Com. Arb. 697, 699 (2004). 289 See e.g., Italy: CA Napoli, IV Y.B. Com. Arb. 275 (1979). 290 See e.g., Spain: TS, XXXII Y.B. Com. Arb. 532, 537 (2007). 291 See e.g., Switzerland: BG, 18(1) ASA Bull. 96 (2000). 292 See e.g., US: Yukos Capital s.a.r.l. v. OAO Samaraneftegaz, 963 F. Supp. 2d 289 (S.D.N.Y. 2013) = XXXVIII Y.B. Com. Arb. 533 excerpt para. 19 (2013); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 298–299 (5th Cir. 2004) = XXIX Y.B. Com. Arb. 1262, 1282–1283 (2004); Employers Ins. of Wausau v. Banco de Seguros del Estado, 199 F.3d 937, 942 (7th Cir. 1999); Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123, 1130 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076, 1078 (1998); Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141, 146 (2d Cir. 1992) = XVIII Y.B. Com. Arb. 596, 601 (1993); Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 975 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976); LaPine v. Kyocera Corp., 2008 WL 2168914 (N.D. Cal. 2008); Telenor Mobile Commc’ns AS v. Storm LLC, 524 F. Supp. 2d 332, 368 (S.D.N.Y. 2007) = XXXIII Y.B. Com. Arb. 1041, 1076 (2008); P.T. Reasuransi Umum Indon. v. Evanston Ins. Co., 1992 WL 400733 (S.D.N.Y. 1992) = XIX Y.B. Com. Arb. 788, 791 (1994); Compagnie des Bauxites de Guinée v. Hammermills, Inc., 1992 WL 122712 (D.D.C. 1992) = XVIII Y.B. Com. Arb. 566, 569 (1993); Geotech Lizenz AG v. Evergreen Sys., Inc., 697 F. Supp. 1248, 1253 (E.D.N.Y. 1988) = XV Y.B. Com. Arb. 562, 564 (1990). Concerning the application of the law of the recognition or enforcement forum to the standard of due process under the public policy exception of Article V(2)(b), see US: Copal Co. v. Fotochrome, Inc., 517 F.2d 512, 516 (2d Cir. 1975) = I Y.B. Com. Arb. 202 (1976). 293 See e.g., Austria: OGH, XXXVIII Y.B. Com. Arb. 322 (2013); Hong Kong: Paklito Investment Ltd. v. Klockner East Asia Ltd., [1993] 2 HKLR 39 = XIX Y.B. Com. Arb. 664, 671 (1994). But see India: International Investor KCS v. Sanghi Polyesters Ltd., 2003 (1) ALT 364 para. 26 = XXX Y.B. Com. Arb. 577, 584–585 (2005). Concerning procedural public policy (Article V(2)(b)), see e.g., Canada: Schreter v. Gasmac Inc., 7 O.R. (3d) 608; UK: Minmetals Germany GmbH v. Ferco Steel Ltd., [1999] CLC 647 = [1999] 1 All E.R. 315, 331 = XXIVa Y.B. Com. Arb. 739, 750 (1999). 294 See Quigley, 58 ABA J. 821, 825 (1972); Schwab/Walter, Schiedsgerichtsbarkeit, ch. 51 para. 1; van den Berg, NYC, p. 297. 295 US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 975 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976). 296 Germany: OLG Hamburg, IV Y.B. Com. Arb. 266, 267 (1979). 297 See Austria: OGH, IPRax 1992, 331, 332; Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 205 (2012); Switzerland: BG, 34(4) ASA Bull. 1015 (2016); US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 299 (5th Cir. 2004) = XXIX Y.B. Com. Arb. 1262, 1283 (2004); Slaney v. Int’l Amateur Athletic Fed’n, 244 F.3d 580, 591 (7th Cir. 2001) = XXVI Y.B. Com. Arb. 1091, 1100 (2001); Employers Ins. of Wausau v. Banco de Seguros del Estado, 199 F.3d 937, 944 (7th Cir. 1999); Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123, 1130 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076, 1079 (1998); Parsons & Whittemore Overseas Co. v. Société Générale 288

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For example, when considering the enforcement of foreign awards, US courts apply a so-called “minimal requirements of fairness” standard, which is different from the domestic due process standard.298 Similarly, German courts refuse to recognize or enforce an award only if the award “was rendered in proceedings that so differ from the fundamental principles of German procedural law that the decision cannot be deemed to have been rendered in proper, legally correct proceedings.”299 c) Uniform International Standard Derived from an Autonomous Interpretation of Article V(1)(b) Some authors go further and argue that Article V(1)(b) should be interpreted 141 autonomously, i.e., independently of any principles of national law.300 Under an autonomous interpretation of Article V(1)(b), it might not always be straightforward to determine what constitutes a violation of procedural fairness.301 However, this view is consistent with the overall objectives of the NYC, which are to establish a uniform set of international standards facilitating the recognition or enforcement of arbitral awards, and to prevent the application of parochial rules that would render ineffective or obstruct the arbitral process.302 Any other solution has serious downsides. On the one hand, it seems unduly burdensome for arbitral tribunals to have to assess and comply with due process standards from each potential recognition or enforcement forum. On de l’Industrie du Papier (RAKTA), 508 F.2d 969, 975 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976). Concerning procedural public policy (Article V(2)(b)), see Germany: OLG Köln, SchiedsVZ 2005, 163 = XXX Y.B. Com. Arb. 557, 560 (2005). See also Gaillard/Savage, Fouchard Gaillard Goldman, para. 1638; Kunz, 34(4) ASA Bull. 836, 849 (2016); Patocchi/Jermini, in: Basler Kommentar, Art. 194 paras 83, 84; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 51 para. 1, ch. 57 para. 9; van den Berg, NYC, p. 297. Compare US: Caja Nacional de Ahorro y Seguros v. Deutsche Rückversicherung AG, 2007 U.S. LEXIS 56197 (S.D.N.Y. 2007) = 2007 WL 2219421 = XXXIII Y.B. Com. Arb. 997, 1004 (2008); Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 308 (S.D. Tex. 1997), aff’d, 161 F.3d 314 (5th Cir. 1998) = XXIII Y.B. Com. Arb. 995 (1998); Intercarbon Bermuda, Ltd. v. Caltex Trading & Transp. Corp., 146 F.R.D. 64, 68 (S.D.N.Y. 1993) = XIX Y.B. Com. Arb. 802, 806 (1994) per curiam. 298 See e.g., US: Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141, 146 (2d Cir. 1992) = XVIII Y.B. Com. Arb. 596, 601 (1993). Similarly, US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 298–299 (5th Cir. 2004) = XXIX Y.B. Com. Arb. 1262, 1282 (2004); Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123, 1130 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076, 1079 (1998). Compare US: Sunshine Mining Co. v. United Steelworkers of Am., 823 F.2d 1289, 1295 (9th Cir. 1987). See also Inoue, 11 Am. Rev. Int’l Arb. 247 (2000). 299 On procedural public policy (Article V(2)(b)), see e.g. Germany: BGH, SchiedsVZ 2009, 66, 67; OLG Saarbrücken, SchiedsVZ 2012, 47, 50; OLG Schleswig, IPRspr. 2000, No. 185, 409 = RIW 2000, 706, 708 = XXXI Y.B. Com. Arb. 652, 660 para. 22 (2006); OLG Dresden, SchiedsVZ 2005, 210, 211; OLG Brandenburg, BB 2001, Beil. 6, p. 21 = XXIX Y.B. Com. Arb. 697, 699 (2004); BGH, NJW-RR 1991, 757, 758 = RIW 1991, 420 = XVII Y.B. Com. Arb. 513, 514 (1992). 300 See Born, International Commercial Arbitration, pp. 3504–3505. Compare Fouchard, L’arbitrage commercial international, para. 526; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1696; Gentinetta, Lex fori, p. 301; Oppetit, Rev. arb. 1971, 97, 104; Marian, (2012) 28 Arb. Int’l 545, 565. Compare UK: Irvani v. Irvani, [2000] 1 Lloyd’s Rep 412. 301 To avoid this difficulty, some proponents of an autonomous interpretation of Article V(1)(b) suggest that the courts in the recognition or enforcement forum take guidance from the general principles or minimum standards of procedural fairness contained in their lex fori when applying Article V(1)(b). See Bucher, Internationale Schiedsgerichtsbarkeit, para. 441; Fouchard, L’arbitrage commercial international, para. 527; Gaja, NYC, Part I, I.C.3; Hermanns, IPRax 1987, 353, 354. Interpreted in such a way, there is little difference between the lex fori and the autonomous interpretation approach: on the one hand, the courts applying their lex fori accept that purely domestic standards do not apply to the NYC’s due process provision; on the other hand, proponents of an autonomous interpretation of Article V(1)(b) accept that courts must take guidance from the law of the recognizing or enforcing State. See van den Berg, NYC, p. 298 (stating that the difference is “rather academic”). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 30. 302 See Born, International Commercial Arbitration, pp. 3504 et seq.

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the other hand, as shown in the following sections, national courts applying their respective procedural fairness standards of the lex fori have occasionally taken different, or even opposing, views on questions arising under Article V(1)(b). These diverging views undermine legal certainty: the parties and the arbitrators need to know what standards of due process apply under Article V(1)(b). Therefore, rather than applying their lex fori, the enforcing or recognizing courts should follow a comparative view, taking into account the autonomous international standards that have developed under the NYC.

2. Causality 142

For a violation of procedural fairness to lead to non-recognition or non-enforcement of an award, there must be a causal nexus between the violation and the outcome of the arbitration. In other words, a violation of fair arbitral procedural standards constitutes grounds for refusal of recognition or enforcement of an award, only if the award would have likely been decided differently, had the procedural irregularity not occurred.303 National courts in Germany,304 France,305 Hong Kong,306 the UK307 and the US308 require such showing of causality.309 Indeed, guarantees of procedural fairness exist to ensure a just outcome; therefore, violations of any such guarantees are only actionable if they were likely to have affected the outcome of the dispute. In line with the allocation of the burden of proof outlined above (Õ para. 131), the party resisting recognition or enforcement of an award must establish that the outcome of the arbitral proceeding (i.e., the arbitral award) would have been different in the absence of the procedural irregularity.310 303 See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 32; Born, International Commercial Arbitration, pp. 3535–3536; Delvolvé/Pointon, French Arbitration Law and Practice, p. 253; Hermanns, IPRax 1987, 353, 355; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 paras 99 et seq.; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 para. 10; van den Berg, NYC, p. 302. But see The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.11 Comment h (p. 613). 304 See e.g., Germany: BGH, SchiedsVZ 2009, 126, 127; BGH, NJW 1986, 3027, 3028 = XII Y.B. Com. Arb. 489, 490 (1987); BGH, NJW 1959, 2213, 2214; OLG Schleswig, XXIX Y.B. Com. Arb. 687, 695 (2004); OLG Hamburg, IPRspr. 1990, No. 236, 508, 510 = RIW 1991, 152 = XVII Y.B. Com. Arb. 491, 497 (1992) (upheld by BGH, IPRspr. 1990, No. 263, 508 = XXI Y.B. Com. Arb. 532 (1996)); OLG Stuttgart, RIW 1988, 480, 483 = IPRax 1987, 369; OLG Hamburg, MDR 1975, 940 = II Y.B. Com. Arb. 241 (1977). 305 See e.g., France: CA Paris, Rev. arb. 1984, 87, 92; CA Paris, Rev. arb. 1980, 83, 86. 306 See e.g., Hong Kong: Guangdong New Technology Import & Export Corp. Jiangmen Branch v. Chiu Shing trading as B.C. Property & Trading Co., XVIII Y.B. Com. Arb. 385, 388 (1993). Concerning procedural public policy (Article V(2)(b)), see Hong Kong: Polytek Engineering Co. Ltd. v. Hebei Import & Export Corp., XXIII Y.B. Com. Arb. 666, 683 (1998); Apex Tech Investment Ltd. v. Chuang’s Development (China) Ltd., [1996] 2 HKLR 155, 157. 307 Concerning annulment proceedings, see UK: Chantiers de l’Atlantique S.A. v. Gaztransport & Technigaz S.A.S., [2011] EWHC 3383 paras 292 et seq.; Compania Sud-Americana de Vapores SA v. Nippon Yusen Kaisha, [2009] EWHC 1606. 308 US: Intel Capital (Cayman) Corp. v. Hsia, 2015 U.S. Dist. LEXIS 154191 (N.D. Cal. 2015) = XLI Y.B. Com. Arb. 625 excerpt paras 4–5 (2016); Calbex Mineral Ltd. v. ACC Res. Co., 90 F. Supp. 3d 442 (W.D. Pa. 2015) = XL Y.B. Com. Arb. 563 excerpt para. 42 (2015). 309 But see concerning annulment proceedings, Switzerland: BG, 32(2) ASA Bull. 356 (2014); BG, 30(3) ASA Bull. 634 (2012); BG, 29(3) ASA Bull. 643 (2011); BG, BGE 121 III 331. See also Walter/Domej, Internationales Zivilprozessrecht, pp. 611–612; Siehr, in: Zürcher Kommentar zum IPRG, 2nd ed., para. 22. Compare Switzerland: Appellationsgericht Basel-Stadt, BJM 1991, 144 = XVII Y.B. Com. Arb. 581, 583 (1992). 310 See e.g., Germany: BGH, NJW 1959, 2213, 2214. See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 32.

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The standard required for the causal nexus between the violation of procedural 143 fairness and the outcome of the arbitration is relatively low (“very lenient,”311 “appears likely to have affected,”312 “could” or “may have affected”313).314 Sometimes a mere “possibility” of a different outcome is sufficient,315 and sometimes courts will even presume that the outcome would have been different.316 Such a low standard is justifiable because, in most cases, it would be difficult to clearly demonstrate the causal link between any one or more procedural violations and the particular outcome of an award. Accordingly, it seems reasonable, in certain limited circumstances, for a court not to recognize or enforce an award, even if the party opposing recognition or enforcement cannot establish a causal effect on the arbitral tribunal’s decision. For instance, in cases involving flagrant breaches of basic procedural guarantees (e.g., fraud, corruption and evident partiality), which taint the entire arbitral process, the recognizing or enforcing court may presume that the violation had a substantial effect on the outcome of the case.317 Some authors go further and propose entirely eliminating the causality require- 144 ment, arguing that the text of Article V(1)(b) does not contain any such requirement.318 Pursuant to this stance, any due process violation – whether it affects the outcome or not – should be taken into account under Article V(1)(b). Proponents of this view further contend that inquiring into whether the arbitral tribunal would have come to a different conclusion (had the procedural violation not occurred) amounts to a judicial review of the tribunal’s substantive decision, and thus should be prohibited.319 However, the causality requirement does not necessitate the recognizing or enforcing court to review the tribunal’s findings on the merits (which is indeed not permitted, Õ para. 19); rather, the recognizing or enforcing court merely assesses whether the procedural irregularity may have likely affected those findings. The application of a likelihood test (which follows a low standard, as discussed above, Õ para. 143) does not result in an impermissible review of the merits of the case. Therefore, the better view is that, except for certain flagrant breaches of basic procedural guarantees discussed above (Õ para. 143), showing some causal connection between the due process violation and the outcome of the award is necessary.

311

Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 99. Born, International Commercial Arbitration, p. 3536. 313 Germany: BGH, SchiedsVZ 2009, 126, 127; BGH, NJW 1959, 2213, 2214. Concerning procedural public policy (Article V(2)(b)), see Hong Kong: Apex Tech Investment Ltd. v. Chuang’s Development (China) Ltd., [1996] 2 HKLR 155, 159. See also Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 170. 314 But see concerning annulment proceedings, Portugal: Supremo Tribunal de Justiça, Dec. 10, 2015, reported by José-Miguel Júdice, a contribution by the ITA Board of Reporters, available at http://www. kluwerarbitration.com (last visited Apr. 16, 2019) (stating that it must be “beyond any doubt that the final decision would have been different”). 315 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 32. 316 Hong Kong: Apex Tech Investment Ltd. v. Chuang’s Development (China) Ltd., [1996] 2 HKLR 155, 159. See also Born, International Commercial Arbitration, p. 3536; Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 253. 317 See Belgium: TPI Bruxelles, 116 JT (1997) 394; Netherlands: Gerechtshof Den Haag, XXIII Y.B. Com. Arb. 731, 734 (1998). See also Born, International Commercial Arbitration, pp. 3536–3537. 318 See Gaillard/Savage, Fouchard Gaillard Goldman, para. 1699. Compare Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 87. 319 Netherlands: Gerechtshof Den Haag, XXIII Y.B. Com. Arb. 731, 733 (1998); Gerechtshof Amsterdam, XIX Y.B. Com. Arb. 708, 709 (1994). 312

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3. Waiver of Procedural Irregularities Violations of procedural fairness under Article V(1)(b) – like other objections under Article V(1) – may, as a general matter, be waived (Õ paras 46, 68), subject to important limitations. For instance, parties may waive or limit specific procedural due process rights,320 such as the right to submit documents after a certain deadline.321 However, parties may not grant blank or unlimited waivers of minimal due process requirements prior to arbitration.322 National courts have invalidated such advance waivers, particularly in cases of egregious breaches of procedural fairness.323 146 In addition, the parties’ conduct during the arbitration or thereafter may constitute waiver of certain objections based on procedural violations. This is particularly so if a party has failed to object to procedural irregularities during the arbitration process. 147 National courts in France,324 Germany,325 Hong Kong,326 Spain,327 Switzerland,328 the US,329 and elsewhere330 have held that a party may not raise a due process defense during recognition or enforcement proceedings, if it neither objected to the alleged due process violation during the course of the arbitration, nor sought other available 145

320 See Haas, Anerkennung und Vollstreckung, p. 218; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 233. Compare Kurkela/Turunen, Due process, p. 39. See also The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.11 Comment g (p. 611), § 4.23 (pp. 738 et seq.). On these questions more generally, see Scherer, (2016) 32 Arb. Int’l 437, 439 et seq.; Scherer/Silberman, in: Ferrari (ed.), Limits to Party Autonomy, pp. 441 et seq. 321 See Netherlands: Gerechtshof Den Haag, XXIII Y.B. Com. Arb. 731, 733 (1998). 322 Aden, NJW 1993, 1964, 1965; Haas, Anerkennung und Vollstreckung, pp. 209–210. 323 See Germany: OLG Köln, ZZP 91 (1978), 318, 321 = IV Y.B. Com. Arb. 258, 259 (1979) (the parties chose institutional arbitration rules prohibiting the disclosure of the arbitrators’ names to the parties). Concerning procedural public policy (Article V(2)(b)), see Switzerland: Bezirksgericht Affoltern am Albis, SJZ 1997, 223 = XXIII Y.B. Com. Arb. 754, 759 (1998) (the arbitration clause between two parties named as irremovable arbitrator the lawyer of one of the parties, who had drafted the contract). 324 See e.g., France: CA Paris, Rev. arb. 2008, 487; CA Paris, Rev. arb. 2007, 929 = D. 2008, 188, confirmed on this point by Cass., D. 2009, 1422 = XXXV Y.B. Com. Arb. 353 (2010). 325 See e.g., Germany: OLG Hamm, IPRax 1985, 218 = XIV Y.B. Com. Arb. 629, 632–633 (1989). Compare BayObLG, XXX Y.B. Com. Arb. 568, 573 (2005). Concerning procedural public policy (Article V(2)(b)), see Germany: OLG Karlsruhe, SchiedsVZ 2012, 101, 106 = XXXVIII Y.B. Com. Arb. 379 excerpt paras 35–37 (2013). 326 See e.g., Hong Kong: Shenzhen Nan Da Industrial and Trade United Co. Ltd. v. FM International Ltd., XVIII Y.B. Com. Arb. 377, 383 (1993). 327 See e.g., Spain: TS, XXXII Y.B. Com. Arb. 525, 530 (2007). 328 See Switzerland: BG, 31(3) ASA Bull. 659 (2013); BG, 28(4) ASA Bull. 772 (2010); BG, 28(1) ASA Bull. 124 (2010); BG, StR 34/1979, 559 = XI Y.B. Com. Arb. 538, 541–542 (1986); Camera de Esecuzione e Fallimenti Canton Ticino, XX Y.B. Com. Arb. 762, 765 (1995). 329 See e.g., US: Sural (Barb.) Ltd. v. Gov’t of the Republic of Trin. & Tobago, 2016 U.S. Dist. LEXIS 107041 (S.D. Fla. 2016) = XLII Y.B. Com. Arb. 625 excerpt paras 17–18 (2017); Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 180 (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639, 647 (1992). Concerning procedural public policy (Article V(2)(b)), see US: AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 139 F.3d 980, 982 (2d Cir. 1998) = XXIVa Y.B. Com. Arb. 813, 815 (1999). 330 See e.g., Brazil: Superior Tribunal de Justiça, XXXVII Y.B. Com. Arb. 195 excerpt paras 10–11 (2012); China: Shanghai First Intermediate People’s Court, (2016) Hu 01 Xie Wai Ren No. 12, available at http://www.pkulaw.com/pfnl/a25051f3312b07f36be2b1a010d71f60e4e83a0bc0e8400cbdfb.html (last visited Apr. 16, 2019); Russia: Federal Arbitrazh Court, Northwestern District, XXXIII Y.B. Com. Arb. 658, 664 (2008). Concerning annulment proceedings, see Costa Rica: Corte Suprema de Justicia, Mar. 5, 2015, reported by Ryan Mellske, a contribution by the ITA Board of Reporters, available at http://www. kluwerarbitration.com (last visited Apr. 16, 2019). Concerning procedural public policy (Article V(2)(b)), see Israel: Epis S.A. v. Medibar Ltd., XXXI Y.B. Com. Arb. 786 (2006); Netherlands: Arrondissementsrechtbank Zutphen, XXIVa Y.B. Com. Arb. 724, 726 (1999).

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means to redress it.331 Some institutional rules expressly provide that if a party fails to object to a particular procedure during the arbitration, said procedure cannot later be grounds for not recognizing or enforcing an award.332 However, regardless of the applicable institutional rules, courts have rejected belated due process objections based on, in particular, the grounds of estoppel,333 “abuse of right” and the principle of good faith (Õ para. 57).334 The parties’ behavior subsequent to the rendering of an award may also constitute a 148 waiver of their right to contest recognition or enforcement of an award based on procedural deficiencies of the arbitration. It has sometimes been held that a party who does not seek to set aside an award has forfeited the right to raise a procedural objection in recognition or enforcement proceedings relating to the same award.335 However, obliging a party to initiate annulment proceedings simply to raise procedural irregularities that occurred during the arbitration would increase the risk of parallel proceedings and undermine the NYC’s aim of facilitating the recognition or enforcement of awards. Therefore, a party should not be barred from making a due process defense in recognition or enforcement proceedings, even if the party did not seek annulment of the award in the courts of the arbitral seat.336 A related, but different, question is whether a party who sought annulment of the 149 award but failed to argue procedural unfairness under Article V(1)(b) is barred from doing so in parallel or subsequent recognition or enforcement proceedings regarding the same award. In these circumstances, a party that fails to avail itself of a procedural due process defense during the annulment proceedings should be estopped from doing so for the first time in related recognition or enforcement proceedings.337 331 See Bertheau, New Yorker Abkommen, p. 76; Bucher, Internationale Schiedsgerichtsbarkeit, para. 441; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-89; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 86; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.11 Comment g (p. 611). 332 See e.g., Article 37 of the AAA Rules; Article 43 of the 2018 DIS Rules; Article 40 of the 2017 ICC Rules; Article 25 of the ICDR Rules; Article 36 of the 2017 SCC Rules; Article 32 of the UNCITRAL Rules; Article 58 of the WIPO Arbitration Rules. 333 See France: CA Paris, Rev. arb. 2010, 308 = D. 2008, 180, confirmed on this point by France: Cass., D. 2009, 1422 = XXXV Y.B. Com. Arb. 353 (2010). 334 See Switzerland: BG, 28(1) ASA Bull. 124 (2010); BG, StR 34/1979, 559 = XI Y.B. Com. Arb. 538, 541–542 (1986). Compare Switzerland: BG, XLI Y.B. Com. Arb. 567 excerpt para. 11 (2016) (nonapplication of estoppel in relation to procedural public policy under Article V(2)(b)). Concerning the relationship between Articles V(1)(b) and V(1)(d), also Õ paras 153–154. 335 See UK: Minmetals Germany GmbH v. Ferco Steel Ltd., [1999] CLC 647 = [1999] 1 All E.R. 315, 331 = XXIVa Y.B. Com. Arb. 739, 750 (1999). See also Germany: OLG Karlsruhe, SchiedsVZ 2006, 335, 336 = XXXII Y.B. Com. Arb. 342, 344 (2007); OLG Hamm, SchiedsVZ 2006, 106, 108 = XXXI Y.B. Com. Arb. 685, 686 (2006). But see more recent case law cited in footnote 324. Concerning procedural public policy (Article V(2)(b)), see also (all applying German law in force before Jan. 1, 1998) Germany: BGH, NJW-RR 2001, 1059, 1061 = IPRax 2001, 580 = XXIX Y.B. Com. Arb. 700, 714 (2004); BGH, NJW 1992, 2299; BGH, IPRspr. 1990, No. 263, 508 = XXI Y.B. Com. Arb. 532, 533 (1996). 336 See Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409 = RIW 2000, 706, 708 = XXXI Y.B. Com. Arb. 652, 658 para. 16 (2006); BayObLG, NJW-RR 2001, 431, 432 = XXVII Y.B. Com. Arb. 445, 449 (2002); India: Cruz City 1 Mauritius Holdings v. Unitech Ltd., XLII Y.B. Com. Arb. 407 excerpt paras 21–26 (2017). See also The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.23 Comment d (pp. 740–741). 337 On the issue of whether the enforcing court is bound by findings regarding due process violations made by another court in prior annulment or enforcement proceedings, see British Virgin Islands: IPOC International Growth Fund Ltd. v. LV Finance Group Ltd., XXXIII Y.B. Com. Arb. 408, 420 (2008); India: International Investor KCS v. Sanghi Polyesters Ltd., 2003 (1) ALT 364 = XXX Y.B. Com. Arb. 577, 586 (2005). See also Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 255.

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4. Relationship Between Article V(1)(b) and Other Non-Recognition or NonEnforcement Grounds of Article V 150

The due process defense of Article V(1)(b) is closely related to, but distinct from, other Article V defenses, particularly Articles V(1)(d) (Õ para. 262) and V(2)(b) (Õ para. 480).

a) Relationship Between Articles V(1)(b) and V(1)(d) The interrelatedness between a violation of due process guaranteed by Article V(1)(b) and a violation of the procedural rules agreed upon by the parties under Article V(1)(d) has attracted scant commentary. On the one hand, if the parties agree on rules of procedure providing for due process rights exceeding the standard articulated in Article V(1)(b), then logically, any violation of these “additional rights” falls under Article V(1)(d), not Article V(1)(b) (also Õ paras 308 et seq.).338 152 On the other hand, if the parties agree on rules of procedure that fall short of the Article V(1)(b) due process standard, the situation is more complex. If the arbitrators were to abide by the parties’ agreement, they (arguably) would render an award that violates the procedural fairness standard under Article V(1)(b). If, however, they were to disregard the parties’ agreement setting a lower due process standard, their award (arguably) would contravene Article V(1)(d). Intuitively, the parties’ stipulations should be given priority, and it would constitute an “abuse of party autonomy” to refuse recognition or enforcement of an award on grounds of due process in cases where the tribunal strictly followed the procedures chosen by the parties.339 Indeed, the parties’ agreement to a more lenient due process standard could be construed as a tacit waiver of Article V(1)(b)’s due process defense. However, as noted above (Õ para. 145), such a waiver may be invalidated, if it results in an egregious breach of minimal procedural protections. In such cases, a party challenging an award must be allowed to invoke Article V(1)(b), even if it had previously agreed to a more lenient standard.340 151

b) Relationship Between Articles V(1)(b) and V(2)(b) 153 The due process defense in Article V(1)(b) is also closely related to the public policy defense in Article V(2)(b). In many jurisdictions, the principle of due process is correlated (at least partially) to public policy.341 Thus, the due process defense of Article V(1)(b) may overlap to some extent with the public policy exception of Article V(2)(b) (also Õ para. 514 and Õ paras 522 et seq.).342 338

Haas, Anerkennung und Vollstreckung, p. 210. Bertheau, New Yorker Abkommen, p. 75. See also Switzerland: BG, Rev. arb. 2013, 1066. Concerning procedural public policy (Article V(2)(b)), see Brazil: Tribunal Superior de Justiça, XXXVIII Y.B. Com. Arb. 338, 340 (2013). 340 See Haas, Anerkennung und Vollstreckung, p. 210; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.390. 341 See e.g., Germany: OLG München, SchiedsVZ 2012, 43, 45 = XXXVII Y.B. Com. Arb. 231, 232 (2012); OLG München, SchiedsVZ 2010, 169, 171 = OLGR München 2009, 679 = XXXV Y.B. Com. Arb. 371 excerpt para. 17 (2010); OLG Köln, BeckRS 2011, 19885; OLG München, SchiedsVZ 2006, 111, 112 = XXXI Y.B. Com. Arb. 722, 726 (2006); Poland: SN, III CKN 1139/00; Switzerland: BG, XXIX Y.B. Com. Arb. 834, 840 (2004); BG, Rev. arb. 2013, 1066; BG, 33(3) ASA Bull. 576 (2015); US: Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH, XLIII Y.B. Com. Arb. 626 excerpt paras 27–29 (2018) (S.D. Fla. 2017). See also Bertheau, New Yorker Abkommen, p. 75; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 30 para. 25; van den Berg, XIX Y.B. Com. Arb. 475, 572 (1994). 342 See Chen, Predictability, pp. 22, 103; Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 235. 339

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Pursuant to Article V(2)(b), if an award violates the recognizing or enforcing 154 country’s public policy, the courts of that country may refuse recognition or enforcement of the award ex officio (i.e., on their own motion) (Õ para. 490). In contrast, as set out above, a due process violation under Article V(1)(b) must be established by the party against whom the award is invoked (Õ para. 131). The question of whether the specific provision of Article V(1)(b) excludes due process concerns from the court’s ex officio control pursuant to the public policy exception of Article V(2)(b) is disputed amongst scholars.343 In practice, however, this debate is somewhat irrelevant since a party resisting recognition or enforcement is generally eager to raise a due process defense. Relying on Article V(2)(b), instead of Article V(1)(b), several courts have confirmed (at least implicitly) that a due process violation not argued by the challenging party may nonetheless be examined by the court ex officio, at least in certain cases.344 Indeed, in cases where the procedural fairness violation during the arbitration is such that recognizing or enforcing the award would be contrary to public policy under Article V(2)(b), the court should raise the issue ex officio.

V. Proper Notice of the Appointment of the Arbitrator and the Arbitration Proceedings to the Party Against Whom the Award Is Invoked (Alternative 1) 1. Notice of the Appointment of the Arbitrator Article V(1)(b) requires, first of all, that the parties be given notice of the arbitrator’s 155 appointment. In order to comply with this requirement, the parties must be notified of any request for the appointment of an arbitrator, any appointment of an arbitrator by the opposing side, and any confirmation of the appointment by an arbitrator or the arbitral institution.345 Proper notice of the appointment of the arbitrator must include the name(s) of the arbitrator(s), even in circumstances where the procedural rules require the name of the arbitrator to remain confidential.346 Unless the parties know the arbitrator’s identity, they cannot check the arbitrator’s impartiality and independence and are thus deprived of their fundamental right to challenge the appointment. 343 For the opinion that due process violation must be invoked by the party seeking recognition or enforcement under Article V(1)(b) and thus are excluded from the scope of the ex officio control under Article V(2)(b), see Chen, Predictability, pp. 104, 192; Fouchard, L’arbitrage commercial international, para. 528; Junker, 7 Cal. W. Int’l L.J. 228, 231 (1977); Oppetit, Rev. arb. 1971, 97, 105; Private International Law Committee, H.M.S.O. 1961, p. 30. Contra: Gaillard/Savage, Fouchard Gaillard Goldman, paras 1696 et seq.; Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 237; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 90; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 para. 8; van den Berg, XIX Y.B. Com. Arb. 475, 572 (1994); van den Berg, NYC, p. 300. 344 See e.g., Germany: OLG München, XXXIX Y.B. Com. Arb. 392 excerpt paras 6–7 (2014); OLG Stuttgart, XXIX Y.B. Com. Arb. 742, 745 (2004); OLG Hamburg, IPRspr. 1999, No. 178, 425, 427 = XXIX Y.B. Com. Arb. 663, 668 (2004); Switzerland: Camera di Esecuzione e Fallimenti, Canton Ticino, XX Y.B. Com. Arb. 762, 765 (1995). But see Germany: OLG Bremen, BB 2000, Beil. 12, p. 18 = XXXI Y.B. Com. Arb. 640, 644 (2006). Compare Austria: OGH, XXXI Y.B. Com. Arb. 583, 585 (2006); Germany: OLG Hamburg, XLI Y.B. Com. Arb. 468 excerpt paras 8–10 (2016); Switzerland: BG, Rev. arb. 2013, 1066 (stating that Article V(2)(b) is of subsidiary nature compared to Article V(1)(b)). See also Gaillard/Savage, Fouchard Gaillard Goldman, para. 1697; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 90; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 para. 8; van den Berg, NYC, p. 300. 345 See Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 excerpt paras 24–27 (2013); TS, X Y.B. Com. Arb. 493, 495 (1985). 346 See e.g., Germany: OLG Köln, ZZP 91 (1978), 318, 322 = IV Y.B. Com. Arb. 258, 260 (1979). See also Kornblum, ZZP 91 (1978), 323, 327–328; O’Hare, (1996) 13(4) J. Int. Arb. 183, 183 et seq.; van den Berg, NYC, p. 305.

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2. Notice of the Arbitration Proceedings Article V(1)(b) also requires that the parties receive proper notice “of the arbitration proceedings.” This includes first and foremost notice of the commencement of the arbitration: each party must be notified of the request for arbitration (or any equivalent submission), including the issues in dispute raised by the other party.347 Article V(1)(b) also applies to notifications of all essential steps of the proceedings,348 including notice of the date and place of hearings,349 and notice of the final award.350 However, the failure to inform the parties of an extension of the deadline for the tribunal to render the award (e.g., pursuant to Article 23(2) of the 2017 ICC Arbitration Rules) does not violate Article V(1)(b)’s notice requirement.351 157 If a party is duly notified of the arbitration proceedings, but refuses to participate in the arbitration, it cannot invoke Article V(1)(b) based solely on the fact that the award was rendered in default proceedings. Indeed, national courts in France,352 Germany,353 Italy,354 the Netherlands,355 Spain,356 Switzerland,357 the UK,358 the 156

347 See e.g., Germany: LG Bremen, XII Y.B. Com. Arb. 486 (1987); LG Zweibrücken, IV Y.B. Com. Arb. 262, 263 (1979); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXIV Y.B. Com. Arb. 715, 719 (2009); Spain: TS, IX Y.B. Com. Arb. 435, 436 (1984); UK: Kanoria v. Guinness, [2006] 2 All E.R. 413, 419–420 = XXXI Y.B. Com. Arb. 943 paras 11–13 (2006). See also Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 92. 348 See e.g., Germany: OLG Hamburg, NJW-RR 1999, 1738 = BB 1999, Beil. 4, pp. 13, 15 = XXV Y.B. Com. Arb. 714, 715–716 (2000); Italy: Cass., XXIVa Y.B. Com. Arb. 709, 713 (1999); Cass., XXII Y.B. Com. Arb. 715, 721 (1997); Cass., XVIII Y.B. Com. Arb. 433, 434 (1993); US: Geotech Lizenz AG v. Evergreen Sys., Inc., 697 F. Supp. 1248, 1253 (E.D.N.Y. 1988) = XV Y.B. Com. Arb. 562, 564–565 (1990). See also Born, International Commercial Arbitration, p. 3507; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.11(a) (p. 601). 349 See e.g., France: CA Paris, XXXVIII Y.B. Com. Arb. 373 excerpt paras 6–9 (2013); Russia: Presidium of the Supreme Arbitrazh Court, Ruling No. 10718/08, Case No. N А40-31732/07-30-319, Vestnik VAS RF, 2009, No. 5; Spain: TS, IX Y.B. Com. Arb. 435, 435–436 (1984); US: Ferrara S. p. A. v. United Grain Growers Ltd., 441 F. Supp. 778, 782–783 (S.D.N.Y. 1977) = IV Y.B. Com. Arb. 331 (1979). Compare Germany: BGH, NJW 1952, 27. 350 See e.g., Spain: TS, XXXII Y.B. Com. Arb. 603, 606 (2007); TS, X Y.B. Com. Arb. 493, 495 (1985); Kenya: OJSC Zarubezhnstroy Technology v. Gibb Africa Ltd., XLII Y.B. Com. Arb. 421 excerpt paras 44–47 (2017). 351 See Germany: BGH, NJW 1988, 3090 = RIW 1988, 642 = XV Y.B. Com. Arb. 450, 454 (1990). 352 See e.g., France: CA Paris, D. 2008, 188, confirmed on this point by Cass., D. 2009, 1422 = XXXV Y.B. Com. Arb. 353 (2010). Concerning procedural public policy (Article V(2)(b)), see France: CA Paris, Rev. arb. 1992, 634. 353 See e.g., Germany: OLG Frankfurt, BeckRS 2011, 25398, upheld by BGH, SchiedsVZ 2009, 126; OLG Hamburg, IV Y.B. Com. Arb. 266, 267 (1979); LG Zweibrücken, IV Y.B. Com. Arb. 262, 263 (1979). Compare Germany: BayObLG, NJW-RR 2001, 431 = XXVII Y.B. Com. Arb. 445, 449 (2002). 354 See e.g., Italy: Cass., XVII Y.B. Com. Arb. 545, 548 (1992); CA Firenze, IV Y.B. Com. Arb. 289, 291 (1979). 355 See Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVII Y.B. Com. Arb. 282 excerpt para. 10 (2012); Rechtbank Rotterdam, LJN: BP6101, paras 4.12–4.14. Concerning procedural public policy (Article V(2)(b)), see Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XVII Y.B. Com. Arb. 572, 574 (1992). 356 See e.g., Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 459 (2013); TS, XXXII Y.B. Com. Arb. 608, 613 (2007); TS, XXX Y.B. Com. Arb. 627, 631 (2005); TS, XXXII Y.B. Com. Arb. 532, 538 (2007); TS, X Y.B. Com. Arb. 493, 495 (1985); TS, VIII Y.B. Com. Arb. 408, 409 (1983). Concerning procedural public policy (Article V(2)(b)), Spain: Tribunal Superior de Justicia de Catalunya, XXXVII Y.B. Com. Arb. 297 excerpt para. 31 (2012). 357 See Switzerland: BG, XV Y.B. Com. Arb. 509, 512 (1990). Compare Switzerland: OG Basel-Land, BJM 1973, 193 = IV Y.B. Com. Arb. 309, 310–311 (1979). 358 See UK: Minmetals Germany GmbH v. Ferco Steel Ltd., [1999] CLC 647 = [1999] 1 All E.R. 315, 327 = XXIVa Y.B. Com. Arb. 739, 745 (1999).

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US,359 and elsewhere360 have held that a duly notified party that does not participate in, or remains inactive during, arbitration proceedings, is precluded from invoking Article V(1)(b).361 In other words, a properly notified party who fails to participate without offering a “satisfactory explanation” cannot afterwards rely on its non-participation to argue lack of due process.362 The same rationale applies not only where a party refuses to participate in the arbitration proceeding altogether, but also where it fails to file a counter-claim,363 seek an extension for a submission,364 request a postponement of a hearing,365 or apply for a suspension of the proceedings.366

3. Failure to Give Proper Notice In prescribing a mandatory notice requirement, Article V(1)(b) qualifies the notice 158 requirement with the word “proper.” A notice is “proper” when it is (a.) in adequate form, (b.) in adequate language, (c.) communicated in a timely fashion, and (d.) sent to the correct addressee(s). As detailed in the following paragraphs, national courts have typically interpreted the meaning of “proper notice” broadly and, in particular, have refused to apply specific domestic procedural requirements. a) Proper Form of Notification When determining whether notice is proper under Article V(1)(b), national courts do 159 not apply domestic requirements regarding the formalities of service of summons. National courts have held that statutory or other means of service applicable to domestic judicial proceedings do not apply to arbitral proceedings.367 They have done 359 See e.g., US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., 2006 WL 1228930 (W.D. Pa. 2006) = XXXII Y.B. Com. Arb. 713, 714 (2007); Overseas Cosmos, Inc. v. NR Vessel Corp., 1997 WL 757041 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1096, 1100–1101 (1998); Geotech Lizenz AG v. Evergreen Sys., Inc., 697 F. Supp. 1248, 1253 (E.D.N.Y. 1988) = XV Y.B. Com. Arb. 562, 565 (1990); Biotronik Mess- und Therapiegeräte GmbH & Co. v. Medford Med. Instrument Co., 415 F. Supp. 133, 141 (D.N.J. 1976) = II Y.B. Com. Arb. 250 (1977). 360 See e.g., Austria: OGH, RdW 2011, 92 = XXXVI Y.B. Com. Arb. 256 (2011); Brazil: Superior Tribunal de Justiça, XXXVII Y.B. Com. Arb. 173 (2012); China: Shandong Rizhao Intermediate People’s Court, (2017) Lu 11 Xie Wai Ren No. 2, available at http://www.pkulaw.com/pfnl/ a25051f3312b07f334f76190c389518ccc182bd6e62e0de1bdfb.html (last visited Apr. 16, 2019); Hong Kong: Qinhuangdao Tongda Enterprise Development Co. v. Million Basic Co. Ltd., [1993] 1 HKLR 173 = XIX Y.B. Com. Arb. 675, 676–677 (1994); India: Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain (India), Nov. 27, 2008, 541/1998 (unreported), paras 55–56, available at https://indiankanoon. org (last visited Apr. 16, 2019); Singapore: Hainan Machinery Import and Export Corp. v. Donald & McArthy Pte Ltd., XXII Y.B. Com. Arb. 771, 776 (1997). 361 See Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.77; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1698; Guinchard, Rev. arb. 1997, 185, 187–188; Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 82; van den Berg, NYC, pp. 306–307. 362 US: Fitzroy Eng’g Ltd. v. Flame Eng’g, Inc., XXI Y.B. Com. Arb. 744, 750 (1996) (N.D. Ill. 1994). 363 See US: Ukrvneshprom State Foreign Econ. Enter. v. Tradeway, Inc., 1996 WL 107285 (S.D.N.Y. 1996) = XXII Y.B. Com. Arb. 958, 963 (1997). 364 See Hong Kong: Qinhuangdao Tongda Enterprise Development Co. v. Million Basic Co. Ltd., [1993] 1 HKLR 173 = XIX Y.B. Com. Arb. 675, 676–677 (1994). 365 See Germany: OLG Hamm, RIW 1997, 962. 366 See US: MediVas, LLC v. Marubeni Corp., 2014 U.S. Dist. LEXIS 77698 (S.D. Cal. 2014) = XXXIX Y.B. Com. Arb. 625 excerpt paras 18, 25–27 (2014); Jiangsu Changlong Chems., Co. v. Burlington Bio-Med. & Scientific Corp., 399 F. Supp. 2d 165, 169 (E.D.N.Y. 2005) = XXXI Y.B. Com. Arb. 1316, 1319 (2006). 367 See e.g., Chile: Corte Suprema, RdJ, Vol. XCVI (1999), No. 2, p. 82; Mexico: Tribunal Superior de Justicia, IV Y.B. Com. Arb. 302, 303 (1979); Tribunal Superior de Justicia, IV Y.B. Com. Arb. 301, 301–302 (1979); Switzerland: BG, 34(4) ASA Bull. 1015 (2016). See also Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 92; van den Berg, XIX Y.B. Com. Arb. 475, 573 (1994); van den Berg, NYC, p. 303.

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so on the grounds that parties waive judicial formality requirements by agreeing to arbitrate their disputes. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters does not apply to arbitration proceedings either.368 160 Rather, courts look to the parties’ agreement or the institutional rules they have chosen,369 as well as any principles specific to international arbitration in the law governing the proceedings.370 Consequently, many different forms of service have been deemed adequate, including simple mail,371 registered mail,372 fax,373 telex,374 email,375 transmission by courier376 or by a “service agent.”377 Any form of receipt of the notice is sufficient, provided that there is evidence.378 Receipt of the notice and actual knowledge of the notified document may equally be deduced from a party’s

368 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters concluded at The Hague on Nov. 15, 1965. See Switzerland: Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 827, 831 (2004). See Born, International Commercial Arbitration, p. 2218; Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 243. 369 See e.g., Greece: CA Patras, XIV Y.B. Com. Arb. 636 (1989); Mexico: Tribunal Superior de Justicia, IV Y.B. Com. Arb. 302, 303 (1979); Russia: Collegium of the Supreme Arbitrazh Court, CLOUT Case No. 1409; Presidium of the Supreme Arbitrazh Court, Ruling No. 10718/08, Case No. N А40-31732/0730-319, Vestnik VAS RF, 2009, No. 5; Ukraine: Sup. Ct., Sep. 30, 2015, reported by Yaroslav Petrov and Anna Tkachova, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration. com (last visited Apr. 16, 2019). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 33; van den Berg, XIX Y.B. Com. Arb. 475, 573 (1994). 370 See Russia: Collegium of the Supreme Arbitrazh Court, CLOUT Case No. 1409; Spain: TS, XXXII Y.B. Com. Arb. 507, 509 (2007); Ukraine: Sup. Ct., Sep. 30, 2015, reported by Yaroslav Petrov and Anna Tkachova, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitra tion.com (last visited Apr. 16, 2019). 371 See China: Supreme People’s Court, XLI Y.B. Com. Arb. 447 excerpt paras 2–3 (2016); Switzerland: BG, XXXII Y.B. Com. Arb. 619, 624 (2007); BG, 34(4) ASA Bull. 1015 (2016); Russia: Federal Arbitrazh Court, Northwestern District, Ruling No. Ф07-7671/2017, Case No. A56-26741/2017 (unreported), available at http://kad.arbitr.ru/ (last visited Apr. 16, 2019). 372 See e.g., Germany: OLG Hamm, RIW 1997, 962, 963; Korea: Sup. Ct., XVII Y.B. Com. Arb. 568, 571 (1992); Spain: TS, XXXII Y.B. Com. Arb. 525, 530 (2007); Switzerland: BG, 34(4) ASA Bull. 1015 (2016). But see Russia: Federal Arbitrazh Court, North Caucasus District, XXXIII Y.B. Com. Arb. 673, 676 (2008). 373 See Germany: OLG Celle, XXXII Y.B. Com. Arb. 372, 381–382 (2007); China: Chengdu Intermediate People’s Court, (2017) Chuan 01 Xie Wai Ren No. 1, available at http://www.pkulaw.com/pfnl/ a25051f3312b07f335910ee1ff94d16a6cba2c7987d2eba6bdfb.html (last visited Apr. 16, 2019); Russia: Presidium of the Supreme Arbitrazh Court, Ruling No. 10718/08, Case No. N А40-31732/07-30-319, Vestnik VAS RF, 2009, No. 5; Spain: TS, XXXII Y.B. Com. Arb. 608, 612 (2007); Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 456 excerpt paras 21, 24 (2013); Switzerland: BG, 34(4) ASA Bull. 1015 (2016). 374 See Italy: Cass., XVIII Y.B. Com. Arb. 433, 435 (1993); Cass., X Y.B. Com. Arb. 470, 472 (1985); Switzerland: BG, 34(4) ASA Bull. 1015 (2016). Compare Germany: OLG Hamburg, IV Y.B. Com. Arb. 266, 267 (1979). 375 Australia: International Relief and Development, Inc. v. Godfrey Emmanuel Ladu, [2014] FCA 887; Brazil: Superior Tribunal de Justiça, XXXVIII Y.B. Com. Arb. 334 excerpt para. 31 (2013); China: Shandong Rizhao Intermediate People’s Court, (2017) Lu 11 Xie Wai Ren No. 1, available at http:// www.pkulaw.com/pfnl/a25051f3312b07f364b7746c9ead2998c63ebe3354edda2fbdfb.html (last visited Apr. 16, 2019); Chengdu Intermediate People’s Court, (2017) Chuan 01 Xie Wai Ren No. 1, available at http://www.pkulaw.com/pfnl/a25051f3312b07f335910ee1ff94d16a6cba2c7987d2eba6bdfb.html (last visited Apr. 16, 2019); Ukraine: Pechersk District Court, Kyiv, XL Y.B. Com. Arb. 492 (2015). 376 Brazil: Superior Tribunal de Justiça, XXXIX Y.B. Com. Arb. 372 excerpt para. 10 (2014). See also Alyoshin, (2005) 22(1) J. Int. Arb. 65, 70. 377 See Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 85. 378 Courts scrutinized the evidence of the purported receipt, see Australia: International Relief and Development, Inc. v. Godfrey Emmanuel Ladu, [2014] FCA 887; Ukraine: CA Dnipropetrovsk, XXXVIII Y.B. Com. Arb. 468 excerpt para. 14 (2013).

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actions.379 According to the general burden of proof under Article V(1) (Õ paras 41–45), it is for the party resisting recognition and enforcement to establish lack of proper notice, but the other party may (and often will) submit evidence that proper notice occurred.380 b) Proper Language of Notification If the parties agreed on a language for the arbitration, notice in that language is not 161 a breach of procedural fairness under Article V(1)(b), even if one of the parties does not understand it.381 The use of a different language from the one agreed upon does not constitute an actionable violation of due process, unless one of the parties does not speak that language and therefore could not understand the notice (also Õ para. 336).382 If the parties did not agree on the language of the arbitration, the use of a language 162 by the tribunal that one of the parties does not understand generally does not suffice to establish a violation of due process under Article V(1)(b): this is particularly true of English,383 but also of other languages.384 For instance, a Swiss court held that the fact that “the first invitation to participate in the arbitration proceedings” was drafted in Romanian, the language of the seat of the arbitration, did not constitute a violation of due process, even though the respondent did not understand Romanian.385 US courts have sometimes ruled otherwise.386 If a language “foreign” to either or both parties is used in application of the above- 163 mentioned principles, it is up to the parties to request or find a translator or interpreter to “fully” present their case.387 The arbitral tribunal must, however, allow the parties sufficient time to translate the documents388 or verify the accuracy of the translations provided by the other side.389 379 See Brazil: Superior Tribunal de Justiça, XXXIX Y.B. Com. Arb. 361 excerpt para. 14 (2014); Superior Tribunal de Justiça, XXXIX Y.B. Com. Arb. 367 (2014); Netherlands: Voorzieningenrechter, Rechtbank Rotterdam, XXXVII Y.B. Com. Arb. 271 excerpt paras 16–17 (2012); Switzerland: BG, XXXII Y.B. Com. Arb. 619, 625 (2007); UK: Anthony Lombard-Knight v. Rainstorm Pictures Inc., [2014] EWCA Civ 356 = XXXIX Y.B. Com. Arb. 512 excerpt para. 51 (2014); US: Anhui Provincial Imp. & Exp. Corp. v. Hart Enters. Int’l, Inc., 1996 U.S. Dist. LEXIS 6041 (S.D.N.Y. 1996) = 1996 WL 229872 = XXII Y.B. Com. Arb. 979 (1997); Geotech Lizenz AG v. Evergreen Sys., Inc., 697 F. Supp. 1248, 1253 (E.D.N.Y. 1988) = XV Y.B. Com. Arb. 562, 565 (1990). 380 See e.g., Netherlands: Voorzieningenrechter, Rechtbank Arnhem, XXXVIII Y.B. Com. Arb. 431 excerpt para. 9 (2013). Compare Sweden: Högsta domstolen, SIAR 2009, 133 = XXXV Y.B. Com. Arb. 456 excerpt para. 11 (2010). See also Marian, (2012) 28 Arb. Int’l 545, 550. 381 See Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 200 excerpt paras 55–56 (2012); Russia: Collegium of the Supreme Arbitrazh Court, CLOUT Case No. 1409; UK: Zavod Ekran OAO v. Magneco Metrel UK, Ltd., [2017] EWHC 2208 (Comm) = XLIII Y.B. Com. Arb. 576 excerpt paras 29–34 (2018); US: Yukos Capital s.a.r.l. v. OAO Samaraneftegaz, 963 F. Supp. 2d 289 (S.D.N.Y. 2013) = XXXVIII Y.B. Com. Arb. 533 excerpt para. 26 (2013). Concerning procedural public policy (Article V(2)(b)), see Spain: TS, XXXII Y.B. Com. Arb. 597, 599–600 (2007). 382 See US: CEEG (Shanghai) Solar Sci. & Tech. Co. v. Lumos LLC, 2015 U.S. Dist. LEXIS 69829 (D. Colo. 2015) = XL Y.B. Com. Arb. 586 excerpt paras 10–12 (2015). 383 See e.g., Germany: OLG Hamm, RIW 1997, 962, 963; OLG Köln, IPRax 1993, 399 = RIW 1993, 499, 501 = XXI Y.B. Com. Arb. 535 (1996); Spain: TS, XXX Y.B. Com. Arb. 627, 631 (2005). 384 See Austria: OGH, XXXIII Y.B. Com. Arb. 354, 357 (2008); Germany: OLG Hamm, IPRspr. 2008, No. 208, 654, 656 et seq. = XXXIV Y.B. Com. Arb. 536, 541 (2009); OLG Celle, XXXII Y.B. Com. Arb. 303, 307 (2007). See also Kröll, SchiedsVZ 2004, 113, 121–122; Steindl, (2008) 25(4) J. Int. Arb. 513, 517. 385 Switzerland: Appellationsgericht Basel-Stadt, BJM 1991, 144 = XVII Y.B. Com. Arb. 581, 583 (1992). See also Gaillard/Savage, Fouchard Gaillard Goldman, para. 1698. 386 US: Qingdao Free Trade Zone Genius Int’l Trading Co. v. P & S Int’l, Inc., 2009 WL 2997184 (D. Or. 2009). 387 See e.g., Germany: OLG Celle, XXXII Y.B. Com. Arb. 303, 307 (2007); Spain: TS, XXXII Y.B. Com. Arb. 540, 548 (2007). 388 See Germany: OLG Celle, XXXII Y.B. Com. Arb. 303, 307 (2007). 389 Compare Germany: BGH, WM 1977, 948, 948–949.

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c) Proper Timing of Notification Article V(1)(b)’s requirement that the parties be notified of the appointment of the arbitrator(s) and arbitration proceedings entails a requirement of timeliness. The parties must be given sufficient time to take the required procedural steps (e.g., appoint an arbitrator), and be summoned to hearings sufficiently in advance to be able to adequately prepare their case.390 165 National courts have held that insufficient notice periods are a barrier to recognition or enforcement of the award only if the aggrieved party proves that the insufficient notice period actually damaged its right of defense.391 Therefore, even if the insufficient notice period inconvenienced a party, as long as it did not prevent the party from meaningfully participating in the arbitration, the due process requirement is satisfied.392 166 As with form of notice requirements, the provisions and practices found in national statutes regarding time limits and notice periods for domestic court proceedings do not apply to international arbitration.393 In the absence of specific provisions in the parties’ agreement, the recognizing or enforcing court has wide discretion to determine whether a notice period is reasonable.394 Periods of about seven,395 twelve,396 or fourteen397 days for appointing an arbitrator and periods of about two weeks,398 twenty days,399 or more400 to appear before the tribunal have been found reasonable.401 Courts have also taken into account exceptional circumstances that may necessitate longer notice periods, such as an earthquake in the respondent’s country402 or the “thinning out” of juridical activities during the summer months.403 164

390 See e.g., Germany: BayObLG, NJW-RR 2001, 431, 431 = XXVII Y.B. Com. Arb. 445, 448 (2002); Russia: Presidium of the Supreme Arbitrazh Court, Ruling No. 10718/08, Case No. N А40-31732/07-30319, Vestnik VAS RF, 2009, No. 5. Compare Switzerland: CJ, Rev. arb. 1965, 152. See also Patocchi/ Jermini, in: Basler Kommentar, Art. 194 para. 93. 391 See e.g., Italy: Cass., XIV Y.B. Com. Arb. 675 (1989); Cass., IX Y.B. Com. Arb. 423, 425 (1984); Spain: TS, XXXII Y.B. Com. Arb. 532, 538 (2007); US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 190 F. Supp. 2d 936 (S.D. Tex. 2001) = XXVII Y.B. Com. Arb. 814, 830 (2002). Compare Hong Kong: Guangdong New Technology Import & Export Corp. Jiangmen Branch v. Chiu Shing trading as B.C. Property & Trading Co., XVIII Y.B. Com. Arb. 385, 388 (1993). See also Schwarz/Ortner, AAYB 2008, 133, 187–188. 392 Italy: Cass., XXVII Y.B. Com. Arb. 492, 496 (2002) (Article V(1)(b) “concerns the impossibility rather than the difficulty of presenting one’s case.”). See also Born, International Commercial Arbitration, pp. 2166, 3494–3495; Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 244. 393 See e.g., Italy: CA Firenze, XV Y.B. Com. Arb. 498, 499 (1990); CA Brescia, VIII Y.B. Com. Arb. 383, 385 (1983). Compare Italy: CA Napoli, IV Y.B. Com. Arb. 275 (1979). See also Gaillard/Savage, Fouchard Gaillard Goldman, para. 1246; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 84; van den Berg, XIX Y.B. Com. Arb. 475, 575 (1994). 394 See e.g., Italy: Cass., XIV Y.B. Com. Arb. 675 (1989); Cass., XII Y.B. Com. Arb. 496 (1987). 395 See Italy: CA Napoli, IV Y.B. Com. Arb. 275, 276 (1979); Switzerland: OG Basel-Land, BJM 1973, 193 = IV Y.B. Com. Arb. 309, 310 (1979). 396 See Italy: Cass., IV Y.B. Com. Arb. 279, 280 (1979). 397 See Germany: OLG Celle, XXXII Y.B. Com. Arb. 372, 381–382 (2007); Italy: Cass., XXVII Y.B. Com. Arb. 492, 495 (2002); Cass., IX Y.B. Com. Arb. 423, 425 (1984). 398 See Germany: OLG Hamm, RIW 1997, 962, 963. 399 See Italy: Cass., XII Y.B. Com. Arb. 496 (1987). 400 Italy: CA Brescia, VIII Y.B. Com. Arb. 383, 385 (1983); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXIV Y.B. Com. Arb. 715, 719 (2009). 401 See van den Berg, NYC, pp. 304–305. Concerning unusually long notice periods, see US: First State Ins. Co. v. Banco de Seguros del Estado, 254 F.3d 354, 357 (1st Cir. 2001). 402 See Italy: CA Napoli, X Y.B. Com. Arb. 461, 462 (1985). 403 See Italy: Cass., XVII Y.B. Com. Arb. 529, 532–533 (1992).

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d) Proper Addressee of Notification Article V(1)(b) specifically refers to the due process rights of the party against whom 167 the award is invoked. This party may not necessarily have signed the arbitration agreement or participated in the arbitration.404 The addressee of the notification may sometimes be difficult to locate. Therefore, 168 some national statutes405 and institutional arbitration rules406 rely on “deemed service,” a legal fiction whereby a notice is deemed to be received by a party if it is sent to its last known address. Applying different governing laws (Õ paras 136–140), some courts have found that notice by “deemed service” is sufficient for purposes of Article V(1)(b),407 whereas other courts have held that such notice violates due process.408 In this context, courts have also found that notice was proper if it was received by an authorized party representative409 (or by someone reasonably believed to be such)410 or delivered to the contractually agreed address.411 Indeed, if there is sufficient evidence that the addressee could have reasonably been expected to be aware of the notification, the mere fact that it was not directly delivered to the addressee is irrelevant for the purposes of Article V(1)(b).412

VI. Inability to Present One’s Case (Alternative 2) The second category of due process violations referred to in Article V(1)(b) concerns 169 cases in which the party was “otherwise unable to present his case” in the arbitral proceedings. The ability to present one’s case has been referred to as the “most

404 See US: Sesostris SEA v. Transportes Navales SA, 727 F. Supp. 737, 742–743 (D. Mass. 1989) = XVI Y.B. Com. Arb. 640, 643–644 (1991). See also Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 178 n. 588. 405 See rule 6.9(2) of the England and Wales’ Civil Procedure Rules. Compare Article 138 of the Swiss Code of Civil Procedure; sections 181, 188 of the German ZPO. 406 See e.g., Article 3(2) of the ICC Rules; Article 4(2) of the LCIA Rules. 407 See e.g., Germany: KG, KGR 2008, 839 = IPRspr. 2008, No. 199, 638, 639–640 = XXXIV Y.B. Com. Arb. 510, 514 (2009); Spain: Audiencia Provincial de Madrid, Oct. 5, 2006, reported by Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 16, 2019), also available at www.poderjudicial.es (last visited Apr. 16, 2019); Switzerland: BG, 34(4) ASA Bull. 1015 (2016); US: Intel Capital v. Shan Yi, XLI Y.B. Com. Arb. 639 excerpt para. 14 (2016) (E.D. Mich. 2015). Compare Australia: Uganda Telecom Ltd. v. Hi-Tech Telecom Pty Ltd., [2011] FCA 131 = XXXVI Y.B. Com. Arb. 252 excerpt paras 74, 77, 79, 90 (2011). 408 See e.g., Germany: BayObLG, NJW-RR 2001, 431 = XXVII Y.B. Com. Arb. 445, 449 (2002); Sweden: Högsta domstolen, SIAR 2009, 133 = XXXV Y.B. Com. Arb. 456 excerpt para. 11 (2010). Compare Hong Kong: Sun Tiang Gang v. Hong Kong & China Gas (Jilin) Ltd., [2016] HKEC 2128. See also Dahlberg/ Öhrström, (2010) 27 J. Int. Arb. 539, 542; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 179; Marian, (2012) 28 Arb. Int’l 545, 549. 409 Austria: Landesgericht Ried im Innkreis, XLI Y.B. Com. Arb. 393 excerpt paras 10–11 (2016); Russia: Presidium of the Supreme Arbitrazh Court, XXXIII Y.B. Com. Arb. 670, 671 (2008); US: First State Ins. Co. v. Banco de Seguros del Estado, 254 F.3d 354, 357 (1st Cir. 2001). 410 Russia: Supreme Arbitrazh Court, XXXIX Y.B. Com. Arb. 483 excerpt paras 35–36, 39 (2014). But see Hong Kong: Sun Tiang Gang v. Hong Kong & China Gas (Jilin) Ltd., [2016] HKEC 2128. 411 Korea: Sup. Ct., XVII Y.B. Com. Arb. 568, 571 (1992); Switzerland: BG, 34(4) ASA Bull. 1015 (2016); US: Ferrara S. p. A. v. United Grain Growers Ltd., 441 F. Supp. 778, 782 (S.D.N.Y. 1977), aff’d, 580 F.2d 1044 (2d Cir. 1978). Compare Russia: Federal Arbitrazh Court, Northwestern District, XXXIII Y.B. Com. Arb. 695, 697 (2008); Ukraine: Prymorskyi District Court, Odessa, XXXVIII Y.B. Com. Arb. 473 excerpt para. 12 (2013). 412 Australia: Altain Khuder LLC v. IMC Mining Inc., [2011] VSC 1, 12 = XXXVI Y.B. Com. Arb. 242 excerpt paras 131–134 (2011); Switzerland: BG, 34(4) ASA Bull. 1015 (2016), at 5.2.2.2. But see Ukraine: CA Dnipropetrovsk, XXXVIII Y.B. Com. Arb. 468 excerpt para. 15 (2013).

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fundamental due process rule.”413 The legislative history of the NYC (Õ para. 134) shows that Article V(1)(b)’s second defense is not limited to particular cases, but covers, very broadly and non-exhaustively, any case in which a party was “otherwise” (i.e., other than by lack of proper notice) unable to present its case. Whether a party has been afforded an opportunity to present its case is, in most cases, largely a question of fact.414 Some of the most frequent and recurrent factual situations are discussed hereafter.

1. General a) Guarantee of Equal Treatment 170 In contrast to other texts or legislation, including the Model Law,415 the NYC contains no express reference to the principle of equal treatment. However, it is no less certain that this principle is a part of the NYC and, in particular, of Article V(1)(b)’s due process requirement.416 Article V(1)(b) requires the tribunal to grant the parties an equal opportunity to present their respective cases, also referred to as the fundamental procedural guarantee of “equal treatment” or “equality of arms.”417 170a Equality in treatment has been described as “one of the cardinal principles of arbitration”418 and “the most fundamental rule of due process and ordre public.”419 It means that one party is treated no less favorably than any other in the arbitration.420 Even though there are surprisingly few authorities addressing the issue,421 the guarantee of equal treatment logically stems from the core idea of procedural fairness itself: no such fairness exists if the parties are not permitted to present their respective cases under equal conditions. Related to the idea of procedural fairness is the requirement of impartiality on the tribunal’s part. Although tribunal bias is more commonly challenged

413

Kurkela/Turunen, Due process, p. 38. Compare O’Hare, (1996) 13(4) J. Int. Arb. 183, 184; van den Berg, NYC, p. 298. 415 See Article 18 of the Model Law. Concerning the conduct of arbitral proceedings generally, see Article 21(2) of the Brazilian Arbitration Law; Article 1510 of the French CPC; Article 24(1) of the Spanish Arbitration Act; Article 182(3) of the Swiss International Private Law Act; Article 8 of the Turkish International Arbitration Law. 416 See Born, International Commercial Arbitration, p. 1553; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.73. 417 See e.g., Hong Kong: Paklito Investment Ltd. v. Klockner East Asia Ltd., [1993] 2 HKLR 39 = XIX Y.B. Com. Arb. 664, 669, 671 (1994). See also Kurkela/Turunen, Due process, pp. 186 et seq. 418 Estavillo-Castro, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, pp. 387, 396. 419 Kurkela/Turunen, Due process, p. 189. 420 See Born, International Commercial Arbitration, p. 3520; Delvolvé/Pointon, French Arbitration Law and Practice, pp. 253–254; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.11 Comment c (p. 602); van den Berg, NYC, p. 306. The principle of equal treatment is sometimes described as having a positive side (i.e., an arbitral tribunal may not refuse one party what it has granted to the other) and a negative side (i.e., an arbitral tribunal may not grant one party what it has refused to the other). See Kramer/Urbach/Jenny, AAYB 2009, 149, 151; Schneider/Scherer, in: Basler Kommentar, Art. 182 para. 65. Concerning annulment proceedings, see France: CA Paris, Rev. arb. 2011, 1105. 421 It has been suggested that this scarcity of authorities may be attributable to the deference accorded to the parties’ procedural autonomy (to agree upon “unequal” procedures) and the arbitrators’ procedural authority (to determine what treatment is “equal” in particular cases). See Born, International Commercial Arbitration, p. 3520. In comparison, regarding the provision of the Model Law dealing with the equal treatment principle, it has been noted during the drafting process that it “should be observed not only by the arbitral tribunal but also by the parties when laying down any rules of procedure.” UNCITRAL, Report of the Working Group on International Contract Practices on the work of its seventh session, A/ CN.9/246, para. 62. See also Report of the UNCITRAL on the work of its 18th session, A/40/17, para. 176. 414

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under Articles V(1)(d) or V(2)(b) (Õ paras 293–296 and Õ paras 530–536), courts have sometimes addressed it under Article V(1)(b)’s due process requirement.422 However, “equality” does not mean “identity.”423 Accordingly, the mere fact that 170b the parties did not have the same amount of time at the hearing,424 the same number of witnesses,425 or were otherwise treated differently in the arbitration, does not in and of itself constitute a violation of Article V(1)(b).426 Rather, a party would need to show that the difference in treatment was unjustified, affected its opportunity to present its case and thus amounted to a fundamental procedural unfairness under Article V(1)(b).427 National courts have afforded deference to tribunals’ determinations whether a treatment is “procedurally fair” in a given case.428 The question to what extent parties may agree on unequal procedures is a delicate 171 one. It concerns the interplay between two fundamental principles of international arbitration: procedural fairness, on the one hand, and the parties’ procedural autonomy, on the other hand. As discussed above (Õ para. 152), the parties’ agreement should in principle be given priority, unless it results in an egregious breach of a party’s procedural rights.429 Conversely, an equal procedure agreed upon by the parties (e.g., a chess-clock system for the hearing) might in exceptional circumstances result in a breach of the right to be heard for one of the parties.430 b) Time Limits Granting the parties’ right to present their case requires that the tribunal give 172 them sufficient time to do so. This applies not only to the notice requirement in Article V(1)(b) as discussed above (Õ paras 164–166), but equally to Article V(1)(b)’s second defense – that a party was “otherwise” unable to present its case. Yet the mere fact that an arbitral tribunal sets time limits for the parties to present their case does not amount in itself to a violation of due process.431 Therefore, provided that the deadline is appropriate and the tribunal made the deadline’s effect clear to the parties, 422 US: Fed. Deposit Ins. Corp. v. IIG Capital, LLC, XXXVIII Y.B. Com. Arb. 479 (2013) (S.D. Fla. 2011, 11th Cir. 2013). See also Born, International Commercial Arbitration, pp. 3586–3590; Luttrell, Bias Challenges, pp. 12–13. 423 Concerning annulment proceedings, see Switzerland: BG, BGE 141 III 495 (stating that the principle of equal treatment “demands that the arbitral tribunal treat the parties in a similar manner at all stages of the proceedings”). 424 See US: Gold Reserve Inc. v. Venezuela, 146 F. Supp. 3d 112 (D.D.C. 2015) = XLI Y.B. Com. Arb. 648 excerpt para. 41 (2016). See also Pörnbacher/Dolgorukow, (2013) Annals Fac. L. Belgrade Int’l Ed. 50, 54. 425 See Born, International Commercial Arbitration, p. 3233. 426 See Germany: OLG Jena, XL Y.B. Com. Arb. 422, 423 (2015); US: Abu Dhabi Inv. Auth. v. Citigroup, Inc., 6(2) Int’l J. Arab. Arb. 77, 89–90 (2014) (S.D.N.Y. 2013). See also Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 248. 427 See US: Abu Dhabi Inv. Auth. v. Citigroup, Inc., 6(2) Int’l J. Arab. Arb. 77, 89–90 (2014) (S.D.N.Y. 2013). See also Born, International Commercial Arbitration, pp. 3532–3535; Lew/Mistelis/Kröll, Comparative Arbitration, para. 25-37; van den Berg, NYC, pp. 301–302. For a discussion whether the violation of due process should also amount to material prejudice, see Born, International Commercial Arbitration, pp. 3535–3537; Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 250. 428 See US: Sural (Barb.) Ltd. v. Gov’t of the Republic of Trin. & Tobago, 2016 U.S. Dist. LEXIS 107041 (S.D. Fla. 2016) = XLII Y.B. Com. Arb. 625, 627 (2017). See also Born, International Commercial Arbitration, p. 3233; Pörnbacher/Dolgorukow, (2013) Annals Fac. L. Belgrade Int’l Ed. 50, 51. 429 See also Jana/Armer/Kranenberg, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 256. Compare Lau/Horlach, 4(1) Disp. Resol. Int’l 121, 126 (2010); Tweeddale/Tweeddale, Arbitration of Commercial Disputes, p. 260. 430 Concerning annulment proceedings, Hong Kong: Brunswick Bowling & Billiards Corp. v. Shanghai Zhonglu Industrial Co. Ltd., [2011] 1 HKLRD 707, paras 84–89. 431 See van den Berg, NYC, p. 308.

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due process is not violated if the tribunal does not grant requests for postponement or extension.432 The tribunal should, however, take into consideration exceptional circumstances and not refuse arguments or evidence submitted after the deadline if the party provides good reasons for the delay.433 173 Whether a specific time limit was sufficient for the parties to meaningfully present their case depends largely on the facts of the individual case. National courts have, for example, approved deadlines of ten,434 fourteen,435 and twenty-one436 days to file a reply. In one case, a one-week deadline to submit a statement of defense was deemed too short.437 If the parties agreed on an expedited procedure, this might also affect the deadlines tribunals set for the parties’ submissions.438 Overall, rather than merely looking at the length of a deadline, it is important to consider whether the parties were de facto in a position to present their case. For instance, even a relatively long deadline to file a submission may be deemed insufficient if the case is exceptionally complex.

2. Right to Submit Evidence 174

Article V(1)(b)’s due process requirement includes the parties’ right to submit evidence in support of their case.439 Concerning the admissibility, relevance, and weight of evidence, national courts generally respect the wide discretion granted to arbitral tribunals by national arbitration statutes440 and institutional rules (also Õ paras 329 et seq.).441 National courts are, therefore, reluctant to deny recognition or enforcement of awards on the grounds of the tribunals’ evidentiary rulings.442 In 432 See Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVII Y.B. Com. Arb. 282 excerpt para. 9 (2012); US: Century Indem. Co. v. Axa Belg., 2012 WL 4354816 (S.D.N.Y. 2012). See also Born, International Commercial Arbitration, pp. 2241–2242. Compare Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 234; Raeschke-Kessler/Berger, Recht und Praxis des Schiedsverfahrens, para. 996. 433 See e.g., India: Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., 2006 Arb. L.R. 201. See also Caron/Caplan, UNCITRAL Arbitration Rules, p. 506; Lew/Mistelis/Kröll, Comparative Arbitration, para. 21-64. 434 See Germany: OLG Hamburg, VersR 1985, 470 = RIW 1985, 490, 491–492. 435 See Italy: CA Napoli, IV Y.B. Com. Arb. 275, 276 (1979); Netherlands: Voorzieningenrechter, Arrondissementsrechtbank Rotterdam, XXIII Y.B. Com. Arb. 731, 732 (1998). 436 See Italy: Cass., IV Y.B. Com. Arb. 279, 280 (1979). 437 See Spain: TS, IX Y.B. Com. Arb. 435, 436 (1984). 438 See US: Nanda v. Nanda, XXXVIII Y.B. Com. Arb. 492, 494 (2013) (N.D. Tex. 2012). 439 Switzerland: BG, 28(2) ASA Bull. 277 (2010). See also Switzerland: BG, XV Y.B. Com. Arb. 509, 512 (1990). 440 See section 599(1) of the Austrian Code of Civil Procedure; section 34(1) of the English Arbitration Act; section 1042(4) of the German ZPO; Article 19(2) of the Model Law. 441 See Articles 24(4), 25(1) of the ICC Rules; Articles 20(2), 22(1)(f) of the LCIA Rules; Article 27(4) of the UNCITRAL Rules. 442 See e.g., Austria: OGH, XXXI Y.B. Com. Arb. 583, 584–585 (2006); France: Cass., Rev. arb. 1997, 242; CA Paris, Rev. arb. 2008, 161 = XXXIII Y.B. Com. Arb. 480, 483 (2008); CA Paris, Rev. arb. 1997, 429; US: China Nat’l Chartering Corp. v. Pactrans Air & Sea, Inc., 2012 U.S. Dist. LEXIS 172899 (N.D. Ill. 2012) = XXXVIII Y.B. Com. Arb. 496 excerpt para. 19 (2013); Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123, 1131 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076, 1081 (1998). Compare Germany: OLG München, SchiedsVZ 2012, 156 = XXXIX Y.B. Com. Arb. 389 excerpt para. 9 (2014). Concerning annulment proceedings, see Switzerland: BG, 10(3) ASA Bull. 381, 397 (1992); BG, BGE 111 Ia 259, 264; US: Hoteles Condado Beach v. Union De Tronquistas Local 901, 763 F.2d 34, 38 (1st Cir. 1985). Concerning procedural public policy (Article V(2)(b)), see Germany: OLG Köln, SchiedsVZ 2005, 163 = XXX Y.B. Com. Arb. 557, 560 (2005); US: Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 1443–1444 (11th Cir. 1998) = XXIVa Y.B. Com. Arb. 819 (1999). But see US: Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141 (2d Cir. 1992) = XVIII Y.B. Com. Arb. 596, 601–602 (1993) (refusing enforcement of an award pursuant to Article V(1)(b) where the arbitral tribunal provided certain

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particular, national courts seldom refuse recognition or enforcement of an award because the arbitral tribunal denied disclosure requests for (allegedly vital) evidence.443 If the arbitral tribunal excludes any evidence, it does not need to allow the parties to 175 comment on its reasons for exclusion in advance; rather, it has been deemed sufficient for the tribunal to address this issue in its final award.444 In line with the general causality requirement (Õ para. 131), courts have held that an arbitral tribunal’s refusal to hear evidence may violate due process, “only if that evidence could have influenced the outcome of the proceedings”445 or “[w]hen the exclusion of relevant evidence actually deprived a party of a fair hearing.”446 a) Admission and Means of Witness Evidence The wide discretion afforded to arbitral tribunals with respect to evidentiary rulings 176 applies in particular to the admission or exclusion of witness evidence. Objections to the recognition or enforcement of awards based on the tribunal’s refusal to permit witness evidence are rarely, if ever, successful because this falls within the tribunal’s discretion in managing the proceedings.447 In particular, requests for certain means of witness examination, such as cross-examination, do not have to be granted systematically.448 A party’s due process rights are also not infringed by the tribunal’s refusal to postpone instructions as to how to present evidence and subsequently penalized parties for having followed those instructions). 443 See US: Sural (Barb.) Ltd. v. Gov’t of the Republic of Trin. & Tobago, 2016 U.S. Dist. LEXIS 107041 (S.D. Fla. 2016) = XLII Y.B. Com. Arb. 625, 627 (2017); Abu Dhabi Inv. Auth. v. Citigroup, Inc., 6(2) Int’l J. Arab. Arb. 77, 89–90 (2014) (S.D.N.Y. 2013); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 300–301, 304 (5th Cir. 2004) = XXIX Y.B. Com. Arb. 1262, 1284–1285, 1289 (2004). 444 See Germany: OLG Köln, IPRax 1993, 399 = RIW 1993, 499, 501 = XXI Y.B. Com. Arb. 535 (1996). 445 Concerning procedural public policy (Article V(2)(b)), see Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18, 20 = XXXI Y.B. Com. Arb. 640, 648 (2006). 446 US: Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123, 1130 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076, 1079 (1998). See also Switzerland: BG, 32(2) ASA Bull. 356 (2014); US: Gold Reserve Inc. v. Venezuela, 146 F. Supp. 3d 112 (D.D.C. 2015) = XLI Y.B. Com. Arb. 648 excerpt paras 45 and 48 (2016). Concerning annulment proceedings, see US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 300–301 (5th Cir. 2004) = XXIX Y.B. Com. Arb. 1262, 1284–1285 (2004); Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20–21 (2d Cir. 1997); Hoteles Condado Beach v. Union De Tronquistas Local 901, 763 F.2d 34, 40 (1st Cir. 1985). 447 See decisions of three different jurisdictions regarding the same award, Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVIII Y.B. Com. Arb. 434 excerpt para. 16 (2013); UK: Cukurova Holding A.S. v. Sonera Holding B.V., [2014] UKPC 15 = XXXIX Y.B. Com. Arb. 516 excerpt para. 52 (2014); US: Sonera Holding B.V. v. Çukurova Holding A.S., 895 F. Supp. 2d 513 (S.D.N.Y. 2012) = XXXVIII Y.B. Com. Arb. 483 excerpt para. 19 (2013). See also US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 975 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976). See also Born, International Commercial Arbitration, pp. 3522–3523; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.7 (p. 566). Concerning annulment proceedings, see Germany: OLG Hamburg, Sep. 16, 2004, 6 Sch 1/04 (unreported), available at http://www.disarb.org (last visited Apr. 16, 2019), upheld by BGH, SchiedsVZ 2005, 259; Portugal: Supremo Tribunal de Justiça, Dec. 10, 2015, reported by José-Miguel Júdice, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 16, 2019); US: Hoteles Condado Beach v. Union De Tronquistas Local 901, 763 F.2d 34, 39 (1st Cir. 1985). Compare Caron/Caplan, UNCITRAL Arbitration Rules, p. 573. Concerning procedural public policy (Article V(2)(b)), see Germany: OLG Hamburg, XLI Y.B. Com. Arb. 468 excerpt para. 22 (2016). 448 See US: Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123, 1131 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076, 1081 (1998). Compare US: Laminoirs-Trefileries-Cableries de Lens S. A. v. Southwire Co., 484 F. Supp. 1063, 1067 (N.D. Ga. 1980). See also Poudret, in: Dominicé (ed.), Festschrift Lalive, pp. 607, 614. Concerning annulment proceedings, see UK: Compania Sud-Americana de Vapores SA v. Nippon Yusen Kaisha, [2009] EWHC 1606; US: Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 125 F. Supp. 3d 449 (S.D.N.Y. 2015).

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Article V 177–178

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proceedings because a witness did not appear, unless that witness was fundamentally important and was truly unable to attend the hearing.449 Equally, no violation of due process occurs if the arbitral tribunal considers it unnecessary to order a new hearing to hear the witnesses after the introduction of additional documents.450 b) Admission and Means of Expert Evidence 177 The arbitral tribunal’s substantial discretion over evidentiary matters extends to the admission and appropriate means of expert evidence. In particular, the tribunal may decide whether to accept party-nominated experts451 or to appoint independent experts.452 If the tribunal requests an opinion or other service of an expert, the parties must be informed of the expert’s name to ensure that no conflict of interest exists.453 Moreover, if the arbitral tribunal wishes to consult an expert in the absence of the parties, it has to inform the parties in advance and give them the opportunity to express their opinion on the expert’s conclusions (more generally on the right to comment, Õ paras 187–195).454 Finally, national courts have refused recognition or enforcement in cases where the parties were not given notice of an expert report nor granted an opportunity to comment thereon.455

3. Right to Make Submissions 178

Article V(1)(b)’s due process requirement is violated if a party has not had sufficient opportunity to put forward its legal and factual submissions.456 Whether a party actually makes submissions is irrelevant, as long as it was afforded a meaningful opportunity to do so.457 By way of illustration, such a meaningful opportunity does

449 See Italy: Cass., XXIVa Y.B. Com. Arb. 709, 713 (1999). Compare Kröll, in: Böckstiegel/Kröll/ Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 94. 450 Concerning procedural public policy (Article V(2)(b)), see France: CA Paris, I Y.B. Com. Arb. 184, 185 (1976). 451 See Craig/Park/Paulsson, ICC Arbitration, § 26.04 (p. 458). But see Switzerland: BG, 10(3) ASA Bull. 381 (1992) (holding that an arbitrator has to appoint an expert if he does not have the knowledge of special technical problems required to handle the case). See also Poudret, in: Dominicé (ed.), Festschrift Lalive, pp. 607, 614. 452 See Switzerland: BG, StR 34/1979, 559 = XI Y.B. Com. Arb. 538, 540–541 (1986). Compare Article 26(1)(a) of the Model Law. 453 See Haas, Anerkennung und Vollstreckung, p. 214; Fouchard, Rev. arb. 1979, 355, 357. 454 See e.g., Hong Kong: Polytek Engineering Co. Ltd. v. Hebei Import & Export Corp., XXIII Y.B. Com. Arb. 666, 682 (1998); Switzerland: BG, StR 34/1979, 559 = XI Y.B. Com. Arb. 538, 541 (1986). Concerning domestic awards, see France: CA Paris, Rev. arb. 1973, 176, 178. 455 See e.g., France: CA Paris, Rev. arb. 1984, 87, 92; Hong Kong: Paklito Investment Ltd. v. Klockner East Asia Ltd., [1993] 2 HKLR 39 = XIX Y.B. Com. Arb. 664, 671–672 (1994). Concerning annulment proceedings, see France: Cass., Rev. arb. 1979, 355. Compare Italy: Cass., XXXII Y.B. Com. Arb. 406, 406–407 (2007). Compare Austria: OGH, XXXVIII Y.B. Com. Arb. 322 excerpt paras 4–5 (2013). 456 Compare Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 26; Di Pietro/ Platte, Enforcement of International Arbitration Awards, p. 152; O’Hare, (1996) 13(4) J. Int. Arb. 183, 184; Sanders, Quo Vadis Arbitration?, p. 315; van den Berg, NYC, p. 306. 457 See Austria: OGH, RdW 2011, 92 para. 4 = XXXVI Y.B. Com. Arb. 256, 257 (2011); OGH, Feb. 22, 2007, 3 Ob 281/06d (unreported), available at https://www.ris.bka.gv.at (last visited Apr. 16, 2019); OGH, Sep. 6, 1990, 6 Ob 572/90 (unreported), available at https://www.ris.bka.gv.at (last visited Apr. 16, 2019); Canada: Schreter v. Gasmac Inc., 7 O.R. (3d) 608; Germany: OLG Hamburg, NJW-RR 1999, 1738 = BB 1999, Beil. 4, pp. 13, 15 = XXV Y.B. Com. Arb. 714, 715–716 (2000); US: Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141, 146 (2d Cir. 1992) = XVIII Y.B. Com. Arb. 596, 601 (1993). See also US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 299 (5th Cir. 2004) = XXIX Y.B. Com. Arb. 1262, 1282–1283 (2004); Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123, 1129 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076, 1078 (1998); Overseas Cosmos, Inc. v. NR Vessel Corp., 1997 WL 757041 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1096, 1100 (1998); Ukrvneshprom State

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not exist in cases where a party is prevented from appearing before the tribunal, or making submissions, due to external events (e.g., illness).458 a) Right to Oral Hearing The parties’ right to make submissions includes the right to be heard by the arbitral 179 tribunal in an oral hearing. This is sometimes regarded as “essential to the notion of a ‘fair trial.’”459 A tribunal’s refusal to hold any oral hearing – when requested by one of the parties – constitutes grounds for non-recognition or non-enforcement of the resulting award under Article V(1)(b) (Õ para. 329).460 The process of oral arguments before the tribunal marks an indispensable guarantee that a decision-maker will actually consider the arguments propounded by the parties. Absent a party’s specific request, the tribunal has discretion to conduct an oral 180 hearing or decide the case solely on the basis of documentary submissions.461 As always, the tribunal’s discretion is circumscribed by the parties’ arbitration agreement, the applicable arbitration rules, and the law governing the arbitration.462 In some specific contexts or industries, “documents only” arbitrations (conducted without oral hearings) are customary.463 National courts have rejected arguments that such proceedings are necessarily procedurally improper or inadequate.464 Parties may argue that they have been denied a fair process because they were unable 181 to attend a hearing in person. National courts have rejected such arguments in cases where the objecting party has (or could have) sent a suitable representative instead.465 Even the fact that a party faces criminal prosecution, arrest, or extradition, or otherwise fears for its safety, in the country where the arbitration takes place does not prove that party’s inability to present its case.466 However, a Canadian court has indicated that it Foreign Econ. Enter. v. Tradeway, Inc., 1996 WL 107285 (S.D.N.Y. 1996) = XXII Y.B. Com. Arb. 958, 962–963 (1997). See also Kurkela/Turunen, Due process, p. 37. 458 See e.g., British Virgin Islands: Grand Pacific Holdings Ltd. v. Pacific China Holdings Ltd., XXXV Y.B. Com. Arb. 332, 334 (2010) (obiter dictum). Compare New Zealand: Coromandel Land Trust v. MilkT Investments Ltd., [2009] NZHC 1753 (refusing to enforce an award in which an arbitrator required the hearing to proceed although the defendant had no legal representation due to lacking funds). 459 Caron/Caplan, UNCITRAL Arbitration Rules, p. 601. 460 See US: Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123, 1130 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076, 1079 (1998). Compare US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., 2006 WL 1228930 (W.D. Pa. 2006) = XXXII Y.B. Com. Arb. 713, 714 (2007). Compare also Article 24(1)(2) of the Model Law. However, the Swiss Supreme Court, albeit in annulment proceedings, has expressed a different view, holding that the right to be heard “does not imply the right to express oneself orally before the deciding authority,” even where the parties had agreed on an oral hearing in the terms of reference. See Switzerland: BG, BGE 117 II 346, 348. 461 See Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 156. Compare Article 24(1)(1) of the Model Law. 462 See Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 156; van den Berg, NYC, p. 307. 463 See Born, International Commercial Arbitration, p. 3513. 464 See Spain: TS, XXXII Y.B. Com. Arb. 555, 565 (2007). Concerning Article V(1)(d), see Germany: OLG Hamburg, NJW-RR 1999, 1738 = BB 1999, Beil. 4, pp. 13, 15 = XXV Y.B. Com. Arb. 714, 716 (2000); US: Intercarbon Bermuda, Ltd. v. Caltex Trading & Transp. Corp., 146 F.R.D. 64, 72 (S.D.N.Y. 1993) = XIX Y.B. Com. Arb. 802, 806 (1994). 465 See Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 205 excerpt paras 44–45 (2012); Germany: OLG Karlsruhe, SchiedsVZ 2006, 335, 336 = XXXII Y.B. Com. Arb. 342, 346 (2007). Compare Switzerland: OG Basel-Land, BJM 1973, 193 = IV Y.B. Com. Arb. 309, 310–311 (1979); US: Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A., 613 F. Supp. 2d 1362 (S.D. Fla. 2009) = XXXIV Y.B. Com. Arb. 1088 (2009). 466 See Australia: Uganda Telecom Ltd. v. Hi-Tech Telecom Pty Ltd., [2011] FCA 131 = XXXVI Y.B. Com. Arb. 252 excerpt paras 95–96 (2011); US: Research & Dev. Ctr. “Teploenergetika”, LLC v. EP Int’l, LLC, XLI Y.B. Com. Arb. 701 excerpt para. 44 (2016) (E.D. Va. 2016); Consorcio Rive,

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Article V 182–184

New York Convention

would likely refuse recognition or enforcement under Article V(1)(b), if a party demonstrates that it was unable to attend a hearing because it lacked the financial resources to do so.467 Also, a hearing may need to be postponed or repeated where a party cannot participate for good cause, such as health problems468 or in case of a genuine change in attorneys.469 182 No party has the right to multiple hearings, hearings of indefinite (or any prescribed) length, or any particular schedule for hearings.470 Equally, there is no right to repeat the presentation of evidence, even where a party claims that the arbitral tribunal misunderstood a witness in the initial examination.471 However, it has been suggested that a party is entitled to another hearing if it increases the sum of its claims.472 This view is not persuasive and in most cases another hearing is not necessary merely because one party increases the value of its claim. 183 As with the language in which the notice of arbitration and appointment of the arbitrators is provided, discussed above (Õ paras 161–163), the language of the oral hearing does not need to be that of the parties. In the absence of a specific agreement by the parties (Õ para. 329), the mere fact that the hearing is in a language that one of parties does not understand is not sufficient grounds for non-recognition or enforcement of the award under Article V(1)(b).473 In particular, the use of English, a common language in international arbitration, is appropriate.474 b) Right to Have Submissions Considered 184 The parties’ right to make submissions also encompasses the right to have those submissions considered. Indeed, the arbitral tribunal has a duty to hear and evaluate the parties’ submissions on an ongoing basis during the arbitration, as well as to review them and give them due consideration when rendering the award.475 For instance, the S.A. de C.V. v. Briggs of Cancun, Inc., 82 Fed. Appx. 359 (5th Cir. 2003) = XXIX Y.B. Com. Arb. 1160, 1165 (2004); Nat’l Dev. Co. v. Khashoggi, XVIII Y.B. Com. Arb. 506, 508 (1993) (S.D.N.Y. 1992). Concerning Article 5(1)(b) of the Inter-American Convention on International Commercial Arbitration, similar to Article V(1)(b) of the NYC, see US: Empresa Constructora Contex Limitada v. Iseki, Inc., 106 F. Supp. 2d 1020 (S.D. Cal. 2000) = XXVI Y.B. Com. Arb. 1164, 1165 (2001). 467 Canada: Grow Biz International, Inc. v. D.L.T. Holdings, Inc., XXX Y.B. Com. Arb. 450, 456 (2005). 468 See Poland: SN, III CKN 1139/00. See also Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 94. 469 Concerning domestic arbitration, see Germany: BGH, BeckRS 1988, 31067535. 470 Born, International Commercial Arbitration, p. 3512. 471 Concerning a domestic award, see Germany: BGH, NJW 1966, 549. 472 See Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 218. 473 See e.g., Austria: OGH, XXXIII Y.B. Com. Arb. 354, 357 (2008); Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 200 (2012); Ireland: Kastrup Trae-Aluvinduet A/S v. Aluwood Concepts Ltd., XXXV Y.B. Com. Arb. 404 para. 30 (2010); Switzerland: Appellationsgericht Basel-Stadt, BJM 1991, 144 = XVII Y.B. Com. Arb. 581, 583 (1992). Concerning procedural public policy (Article V(2)(b)), Spain: TS, XXXII Y.B. Com. Arb. 597, 600–601 (2007). See also Steindl, (2008) 25(4) J. Int. Arb. 513, 517. 474 See Spain: TS, XXX Y.B. Com. Arb. 627, 631 (2005). Concerning procedural public policy (Article V(2)(b)), see Spain: TS, XXXII Y.B. Com. Arb. 540, 548 (2007). 475 See e.g., France: CA Paris, XXIVa Y.B. Com. Arb. 296, 302 (1999); Germany: BGH, NJW 1992, 2299; BGH, BGHZ 110, 104 = NJW 1990, 2199, 2200 = XVII Y.B. Com. Arb. 503, 508 (1992); BGH, BGHZ 96, 40, 47 = NJW 1986, 1436, 1438; OLG Frankfurt, SchiedsVZ 2014, 154, 157; OLG Celle, IPRspr. 2007, No. 218, 614, 617 = XXXIII Y.B. Com. Arb. 524, 530 (2008); OLG Köln, SchiedsVZ 2005, 163 = XXX Y.B. Com. Arb. 557, 560 (2005); OLG Naumburg, SchiedsVZ 2011, 228, 229 = XXXVII Y.B. Com. Arb. 226 (2012); OLG Stuttgart, XXIX Y.B. Com. Arb. 742, 745 (2004); OLG Hamburg, IPRspr. 1990, No. 236, 508 = RIW 1991, 152 = XVII Y.B. Com. Arb. 491, 497 (1992) (upheld by BGH, IPRspr. 1990, No. 263, 508 = XXI Y.B. Com. Arb. 532 (1996)); OLG Hamburg, MDR 1975, 940 = II Y.B. Com. Arb. 241 (1977); Spain: Tribunal Superior de Justicia de Catalunya, 8 Arbitraje 216 (2015). Concerning annulment proceedings, see Switzerland: BG, 32(4) ASA Bull. 854 (2014); BG, 32(1) ASA Bull. 108 (2014); BG, 30(3) ASA Bull. 634 (2012); BG, 29(3) ASA Bull. 643 (2011); US: Hoteles Condado Beach v. Union De

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principle of due process is violated if the tribunal incorrectly determines that certain issues are not contested between the parties.476 However, there is no violation of Article V(1)(b) if a tribunal assumes that facts the parties do not explicitly contest are conceded by them.477 Whether a party’s right to be heard and to have its submissions considered includes the 185 right to have those submissions discussed in the reasoning of the award is a difficult question. Most courts recognize or enforce unreasoned, or insufficiently reasoned, awards if the parties’ agreement or the applicable procedural law does not require a reasoned award.478 Local requirements or practices in the recognition or enforcement forum concerning reasoned awards are not decisive (Õ para. 141).479 The overarching underlying issue is whether the tribunal actually considered and dealt with the parties’ submissions in reaching its decision. Indeed, absent agreement to the contrary (Õ paras 341 et seq.), parties are entitled to have the arbitrators review and deliberate over their main arguments and evidence in determining the outcome of the dispute.480 For instance, German courts have held that even though “the award must contain the tribunal’s position towards the key arguments,” it is no violation of due process if the award’s “motivation does not deal with each and every one of the arguments proposed by the respondent [as long as the tribunal] decides upon the arguments that are relevant to the reasoning underlying the tribunal’s decision.”481 Thus, recognition or enforcement may only be refused in cases where it is obvious from the reasoning of an award (or lack thereof) that the arbitral tribunal has not considered a party’s relevant legal or factual submissions.482 Tronquistas Local 901, 763 F.2d 34, 38 (1st Cir. 1985). See also Born, International Commercial Arbitration, p. 3517; Boucobza/Serinet, JDI 2012, 41. On the requirement of a reasoned award, Õ para. 185. 476 Concerning annulment proceedings, see Germany: BGH, BGHZ 96, 40, 47 = NJW 1986, 1436, 1438. 477 See Germany: OLG München, SchiedsVZ 2006, 111, 112 = XXXI Y.B. Com. Arb. 722, 727 (2006). 478 See e.g., Netherlands: Rechtbank Rotterdam, XXI Y.B. Com. Arb. 635, 640 (1996); Switzerland: BG, BGE 116 II 373, 375. Concerning annulment proceedings, see Switzerland: BG, BGE 141 III 495; BG, 32(2) ASA Bull. 367 (2014); BG, 32(1) ASA Bull. 48 (2014); BG, Sep. 17, 2013, 4A_330/2013 (unreported), http://swissarbitrationdecisions.com (last visited Apr. 16, 2019) = (briefly noted in) 32(4) ASA Bull. 861 (2014); BG, 31(4) ASA Bull. 853 (2013). Concerning procedural public policy (Article V(2)(b)), see France: CA Paris, Rev. arb. 1990, 675, 678; CA Reims, IX Y.B. Com. Arb. 400, 402 (1984). Concerning Article V(1)(d), see Germany: OLG Hamburg, IV Y.B. Com. Arb. 266, 267 (1979); Spain: TS, XI Y.B. Com. Arb. 523, 525 (1986). See also Born, International Commercial Arbitration, pp. 3528 et seq.; Poudret/Besson, Comparative Arbitration, para. 1001; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 201. 479 Concerning procedural public policy (Article V(2)(b)), Norway: Vardø Enforcement Court, XXVIII Y.B. Com. Arb. 821, 825 (2003). Compare Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18, 20 = XXXI Y.B. Com. Arb. 640, 647 et seq. (2006) (applying the requirement of Turkish law, as law of the seat, to provide reasons in the award, albeit noting that “such reasons would hardly meet the requirements of German domestic procedural public policy”). 480 Concerning annulment proceedings, see France: CA Paris, Rev. arb. 1989, 309, 315. 481 Germany: BGH, BGHZ 110, 104 = NJW 1990, 2199, 2200 = XVII Y.B. Com. Arb. 503, 508–509 (1992). See also Germany: OLG Saarbrücken, SchiedsVZ 2012, 47; OLG Naumburg, SchiedsVZ 2011, 228, 229 = XXXVII Y.B. Com. Arb. 226 (2012); OLG Frankfurt, XXXV Y.B. Com. Arb. 377, 380 (2010); OLG München, SchiedsVZ 2010, 169, 171 = OLGR München 2009, 679 = XXXV Y.B. Com. Arb. 371 (2010). Concerning procedural public policy (Article V(2)(b)), see Germany: OLG Stuttgart, XXIX Y.B. Com. Arb. 742, 745 (2004); OLG Bremen, BB 2000, Beil. 12, pp. 18, 20 = XXXI Y.B. Com. Arb. 640, 649 (2006). 482 See e.g., Germany: BGH, NJW 1992, 2299; OLG München, SchiedsVZ 2012, 43, 46 = XXXVII Y.B. Com. Arb. 231 excerpt para. 15 (2012); OLG Saarbrücken, SchiedsVZ 2012, 47, 52; Switzerland: BG, 29(3) ASA Bull. 682 (2011); BG, 30(4) ASA Bull. 808 (2012). Concerning annulment proceedings, see Switzerland: BG, BGE 141 III 495; BG, 32(2) ASA Bull. 367 (2014); BG, Sep. 17, 2013, 4A_330/2013 (unreported), http://swissarbitrationdecisions.com (last visited Apr. 16, 2019) = (briefly noted in) 32(4) ASA Bull. 861 (2014); BG, 31(4) ASA Bull. 853 (2013). See also Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 201; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 19 para. 12 (commenting on section 1054(2) of the German ZPO that “[t]he award shall be reasoned, unless the parties have agreed that no reasons must be given.”).

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Article V 186–189 186

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A similar rationale applies to the question of whether contradictory or internallyinconsistent reasons violate Article V(1)(b)’s due process requirements. Contradictions or internal inconsistencies in the arbitrators’ reasoning are, as such, not grounds for denying recognition or enforcement of an award pursuant to Article V(1)(b).483 Where an award is uncertain or unintelligible, the court may grant an application for recognition or enforcement once the award is made certain.484 However, where it is obvious from the award’s contradictory or inconsistent reasoning that the parties’ relevant submissions were not considered, recognition or enforcement of the award may be refused.485

4. Right to Comment 187

According to the principle of due process, the tribunal must grant the parties an opportunity to comment on all factual and legal circumstances that may be relevant to the tribunal’s decision-making.486

a) Right to Comment on Evidence and Arguments Submitted by the Other Party A party must be given an opportunity to comment on the evidence and arguments introduced in the proceedings by the other parties.487 The right to comment on the counterparties’ submissions is a fundamental tenet of adversarial proceedings.488 However, in accordance with the general requirement of causality (Õ para. 131), the denial of an opportunity to comment on a particular piece of evidence or argument is not prejudicial, unless the tribunal relied on this piece of evidence or argument in making its decision.489 189 In order to ensure that the parties can exercise their right to comment effectively, the arbitral tribunal must grant them access to the evidence and arguments submitted by the other side.490 Affording a party the opportunity to make submissions or to give its view without also informing it of the opposing side’s claims and arguments typically constitutes a violation of due process,491 unless specific non-disclosure rules apply (e.g., such disclosure would constitute a violation of trade secrets or applicable legal privileges).492 188

483 See Schlosser, Recht der Schiedsgerichtsbarkeit, para. 854. Compare Switzerland: BG, 20(3) ASA Bull. 473 (2002). 484 British Virgin Islands: IPOC International Growth Fund Ltd. v. LV Finance Group Ltd., XXXIII Y.B. Com. Arb. 408, 430 (2008). 485 See Switzerland: BG, 17(4) ASA Bull. 537, 541 (1999) = RSDIE 2000, 575; BG, BGE 124 II 272 = 15(2) ASA Bull. 316, 327 (1997). Concerning annulment proceedings, see Switzerland: BG, 30(3) ASA Bull. 634 (2012); BG, 29(3) ASA Bull. 643 (2011). 486 See e.g., France: CA Paris, Rev. arb. 1997, 247; Germany: BGH, NJW 1992, 2299; BGH, BGHZ 110, 104 = NJW 1990, 2199, 2200 = XVII Y.B. Com. Arb. 503, 508 (1992). Compare Germany: BGH, NJW 1959, 2213, 2213–2214; Switzerland: BG, BGE 117 II 346, 347. See also Guinchard, Rev. arb. 1997, 185, 190 et seq. 487 See Switzerland: BG, BGE 117 II 346, 347 et seq. Compare France: CA Paris, Rev. arb. 1997, 244. See also Loquin, JDI 1983, 293, 333; van den Berg, NYC, p. 307. 488 See Netherlands: Voorzieningenrechter, Arrondissementsrechtbank Rotterdam, XXIII Y.B. Com. Arb. 731, 732 (1998). Compare Di Pietro/Platte, Enforcement of International Arbitration Awards, p. 156. 489 See Germany: OLG Hamm, IPRspr. 2008, No. 206, 654, 657 = XXXIV Y.B. Com. Arb. 536, 541 (2009). 490 Compare Article 24(3)(1) of the Model Law. Also compare (concerning annulment proceedings) US: Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 125 F. Supp. 3d 449 (S.D.N.Y. 2015)). 491 See France: CA Paris, Rev. arb. 1997, 244. Compare France: CA Paris, Rev. arb. 1981, 176, 178; Germany: OLG Hamburg, MDR 1975, 940 = II Y.B. Com. Arb. 241 (1977); LG Bremen, XII Y.B. Com. Arb. 486, 487 (1987); Switzerland: BG, XV Y.B. Com. Arb. 509, 512 (1990). Concerning procedural public policy (Article V(2)(b)), see Netherlands: Gerechtshof Amsterdam, XIX Y.B. Com. Arb. 708, 709 (1994). 492 France: CA Paris, 11(4) ASA Bull. 564 (1993) = Rev. arb. 1993, 259 = XIX Y.B. Com. Arb. 658 (1994). See also Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 192.

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In practice, national courts have afforded arbitral tribunals considerable leeway in 190 setting and adjusting the procedures by which parties respond to one another’s submissions and evidence, reasoning that there were “several ways of conducting arbitral proceedings.”493 Accordingly, unless the parties have agreed otherwise, the tribunal has wide discretion in arranging the parties’ right to comment,494 permitting or excluding the introduction of new claims,495 and determining which party may have the final word.496 b) Right to Comment on Evidence Known to or Determined by the Tribunal The parties’ right to comment also extends to facts that have not been introduced in 191 the proceedings by the parties, but that the tribunal has raised sua sponte,497 provided it was entitled to do so.498 For instance, if the tribunal gained “out of court knowledge” of circumstances (e.g., through its own investigations), it may only rest its decision on those circumstances if it informed both parties in advance and afforded them the opportunity to comment thereon.499 The same rule applies to cases where an arbitrator intends to base the award on his or her own expert knowledge, unless the arbitrator was appointed for his or her special expertise or knowledge (e.g., in quality arbitration).500 Similarly, a tribunal must give the parties an opportunity to comment on facts of common knowledge if it intends to base its decision on those facts, unless the parties should have known that those facts could be decisive for the final award.501 c) Right to Comment on Legal Arguments Introduced by the Tribunal The parties’ right to comment also applies to any legal argument introduced by the 192 arbitral tribunal itself. The tribunal must inform the parties when it wishes to rest its decision on a legal argument not put forward by the parties and grant them an 493 Switzerland: BG, XV Y.B. Com. Arb. 509, 512 (1990). See also US: Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 1443 (11th Cir. 1998) = XXIVa Y.B. Com. Arb. 819 (1999); Essex Cement Co. v. Italmare, S.p.A., 763 F. Supp. 55, 58 (S.D.N.Y. 1991). Concerning domestic awards, see Germany: OLG München, OLGR München 2009, 482. See also Jermini, 22(3) ASA Bull. 605, 608 (2004). But see Germany: OLG Frankfurt, BB 1977, 17 (refusing to recognize an award because of a violation of due process where the arbitral tribunal led the parties to believe that it agreed with one party’s submissions on a certain point, “only to take the opposite view in the final award without affording that party any further opportunity to present its case on this matter”). Compare Kröll, NJW 2009, 1183, 1188. 494 See France: CA Paris, I Y.B. Com. Arb. 184 (1976); US: Gold Reserve Inc. v. Venezuela, 146 F. Supp. 3d 112 (D.D.C. 2015) = XLI Y.B. Com. Arb. 648 excerpt paras 45, 48 (2016). 495 See US: Peters Fabrics, Inc. v. Jantzen, Inc., 582 F. Supp. 1287, 1292 (S.D.N.Y. 1984). See also Born, International Commercial Arbitration, pp. 3524–3525. 496 See Chile: Corte Suprema, XLI Y.B. Com. Arb. 444, 446 (2016); Hong Kong: Pacific China Holdings Ltd. (in liquidation) v. Grand Pacific Holdings Ltd., [2012] HKCA 200 = XXXVIII Y.B. Com. Arb. 577 excerpt para. 68 (2013); UK: Margulead Ltd. v. Exide Tech., [2004] EWHC 1019 (Comm). See also Born, International Commercial Arbitration, pp. 3517–3518. 497 See France: CA Paris, Rev. arb. 1997, 246; CA Paris, Rev. arb. 1989, 62, 68; Germany: BGH, NJW 1983, 867. Compare Austria: OGH, XXXI Y.B. Com. Arb. 583, 586 (2006). Concerning procedural public policy (Article V(2)(b)), see France: CA Paris, Rev. arb. 1989, 63. Concerning domestic awards, see France: CA Paris, Rev. arb. 1989, 62, 68; Germany: BGH, NJW 1983, 867. See also Liebscher, Healthy Award, p. 256; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 195. 498 Compare Switzerland: BG, StR 34/1979, 559 = XI Y.B. Com. Arb. 538, 540 (1986). 499 See e.g., Switzerland: BG, StR 34/1979, 559 = XI Y.B. Com. Arb. 538, 541 (1986); UK: Minmetals Germany GmbH v. Ferco Steel Ltd., [1999] CLC 647 = [1999] 1 All E.R. 315, 326 = XXIVa Y.B. Com. Arb. 739, 743 (1999). Compare Hong Kong: Polytek Engineering Co. Ltd. v. Hebei Import & Export Corp., XXIII Y.B. Com. Arb. 666, 682 (1998). See also Guinchard, Rev. arb. 1997, 185, 191–192. 500 Concerning domestic awards see France: Cass., Rev. arb. 1997, 242; CA Paris, Rev. arb. 1987, 390. See also Guinchard, Rev. arb. 1997, 185, 195–196; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 195. 501 Concerning annulment proceedings, see Germany: BGH, NJW 1959, 2213, 2214.

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opportunity to comment thereon.502 Accordingly, an award should be denied recognition or enforcement if a tribunal has relied on new legal arguments which had not been made by, or discussed with, the parties. Such an award constitutes an unfair “surprise decision” that violates due process.503 For instance, the French Supreme Court found a violation of the right to be heard in an arbitration in which the tribunal based its decision on provisions of Egyptian law that had not been raised by the parties and without permitting the parties to discuss the application of such provisions.504 Another French court reasoned that due process required “that no legal or factual arguments are ex officio adopted by the arbitral tribunal without the parties being invited to comment.”505 193 Contrarily, some courts appear to regard a tribunal’s legal analysis to be largely an ex officio function.506 For instance, the German Federal Supreme Court found no violation of due process where an arbitral tribunal, without informing the parties, awarded damages based on a different doctrine than the one advanced by the claimant.507 This view is difficult to reconcile with the basic understanding of the right to be heard, which includes the parties’ right to comment on both factually and legally decisive issues. 194 According to some, arbitral tribunals should provide the parties with the texts of legal statutes and court decisions of any law “foreign” to one of the parties if they believe that that law might be relevant for their decision.508 In a similar vein, it has been suggested that an arbitral tribunal should inform the parties of the material content of trade usages and of its source of knowledge if it intends to rely thereon.509 These views seem excessive: it ought to be sufficient for the tribunal to inform the parties about its intention to rely on certain legal arguments and leave it to the parties to obtain access 502 See also Born, International Commercial Arbitration, pp. 3518 et seq.; Knuts, (2012) 28 Arb. Int’l 669, 674; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 90; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 203. But see Walter, SchiedsVZ 2005, 129, 131. 503 See UK: Malicorp Ltd. v. Government of the Arab Republic of Egypt, [2015] EWHC 361 (Comm) = XLI Y.B. Com. Arb. 585 paras 38–39 (2016). 504 France: Cass., Rev. arb. 2011, 446. See also Switzerland: BG, 31(3) ASA Bull. 659 (2013). See also Chainais, Rev. arb. 2011, 449; Knuts, (2012) 28 Arb. Int’l 669, 673. Concerning annulment proceedings, see France: Cass., Rev. arb. 2011, 680; Hong Kong: Brunswick Bowling & Billiards Corp. v. Shanghai Zhonglu Industrial Co. Ltd., [2009] HKCFI 94, paras 27–28. Compare Belgium: CA Bruxelles, 116 JT (1997) 319 = XXII Y.B. Com. Arb. 643, 665 (1997); France: CA Paris, XXXIII Y.B. Com. Arb. 480, 483 (2008). 505 See France: CA Paris, Rev. arb. 1997, 244. But see France: Président du TGI Paris, I Y.B. Com. Arb. 184, 184–185 (1976). See also commentary by Oppetit, Rev. arb. 1971, 97. 506 See e.g., Switzerland: BG, StR 34/1979, 559 = XI Y.B. Com. Arb. 538, 541 (1986); US: Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Def. Sys., Inc., 29 F. Supp. 2d 1168, 1174 (S.D. Cal. 1998). Compare France: CA Paris, Rev. arb. 1989, 691, 695, 697. See also Germany: OLG München, XLI Y.B. Com. Arb. 472 excerpt para. 14 (2016). But see, concerning annulment proceedings, Switzerland: BG, BGE 130 III 35 (holding that the tribunal should inform the parties if it “intends to base its decision on a rule or legal principle not previously mentioned and for which none of the parties could have anticipated the relevance to this particular case”); see also BG, 32(2) ASA Bull. 367 (2014); BG, 31(4) ASA Bull. 853 (2013); BG, 29(3) ASA Bull. 682 (2011); BG, 29(4) ASA Bull. 931 (2011). 507 Concerning procedural public policy (Article V(2)(b)), see Germany: BGH, NJW 1990, 3210, 3211 = WM 1990, 1766. See also Germany: OLG Stuttgart, SchiedsVZ 2011, 49, 53; OLG Stuttgart, XXIX Y.B. Com. Arb. 742, 744–745 (2004); Lithuania: Lietuvos Aukšciausiasis Teismas, XL Y.B. Com. Arb. 667 excerpt paras 31–34 (2015). Compare Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 462 excerpt paras 21–23 (2013); US: Am. Univ. of Antigua Coll. of Med. v. Leeward Constr. Co., XL Y.B. Com. Arb. 578 excerpt paras 8–10 (2015) (S.D.N.Y. 2015); OJSC Ukrnafta v. Carpatsky Petroleum Corp., XLIII Y.B. Com. Arb. 664 excerpt paras 58–61 (2018) (S.D. Tex. 2017) (holding that the fact that the tribunal used a method of calculating damages that differed from the method proposed by the parties did not present a due process violation). 508 See Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 202. 509 See Fouchard, in: Fouchard/Khan/Lyon-Caen (eds), Etudes offertes à B. Goldman, pp. 67, 86–87; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 208.

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to, and information about, the underlying sources (be it statutes, case law, usages or otherwise) provided that such sources are publicly available. Finally, there is no obligation for the arbitrators to disclose to the parties their 195 opinion on legal issues prior to rendering the final award.510 Some German scholars believe that the arbitrators should inform the parties of any change in their legal view, if they had previously disclosed their view and it is likely that the parties will wish to amend their submissions due to the change in the arbitrators’ opinion.511 However, providing the parties with the tribunal’s legal opinion before all relevant arguments and evidence are presented and heard may in itself constitute a breach of due process, as it might be perceived as a predetermination of the tribunal’s view.512

G. Excess of Competence or Jurisdiction, Article V(1)(c)513 I. Overview Article V(1)(c) consists of two parts: the first part deals with decisions which exceed 196 the arbitral tribunal’s authority. The second part provides for the partial enforcement of awards. The provision only applies where the arbitration agreement is valid as such, but the arbitral tribunal has made decisions falling outside the scope of the agreement and the issues submitted by the parties.514 Cases in which no valid arbitration agreement exists at all are covered by Article V(1)(a).515 Article V(1)(a) and Article V(1)(c) thus complement each other.516 In comparison with other grounds for refusal set out in Article V(1), objections pursuant to Article V(1)(c) are rarely invoked517 and seldom successful.518 510 See Germany: OLG Stuttgart, SchiedsVZ 2011, 49. See also Germany: OLG Naumburg, SchiedsVZ 2011, 228 = XXXVII Y.B. Com. Arb. 226 (2012). Concerning procedural public policy (Article V(2)(b)), see Germany: BGH, NJW 1990, 3210, 3211 = WM 1990, 1766; BGH, NJW 1983, 867; BGH, NJW 1959, 2213, 2214; OLG Karlsruhe and BGH, XXXVIII Y.B. Com. Arb. 379 excerpt para. 28 (2013). Concerning domestic awards, see Germany: OLG München, Jan. 22, 2007, 34 Sch 18/06 (unreported), available at http://www.disarb.org (last visited Apr. 16, 2019). See also Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 35; Tschanz, Rev. arb. 1989, 695, 708. 511 See Raeschke-Kessler/Berger, Recht und Praxis des Schiedsverfahrens, para. 658; Schlosser, in: Stein/ Jonas (eds), ZPO, Annex to sect. 1061 para. 205. Contra Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 90. 512 See Born, International Commercial Arbitration, p. 3517; Welser/De Berti, AAYB 2010, 79, 96 et seq. Compare US: Gas Natural Aprovisionamientos, Sdg, S.A. v. Atl. LNG Comp. of Trin. & Tobago, 2008 WL 4344525 (S.D.N.Y. 2008) = XXXIV Y.B. Com. Arb. 966, 974–975 (2009). 513 We would like to thank Viola Vorbrüggen and Leonard Funk for their support with this chapter. 514 US: Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A., 377 F.3d 1164, 1168 (11th Cir. 2004): “In other words, if the parties did not agree in the contracts to submit certain disputes to arbitration, then arbitral awards purporting to resolve those disputes should not be confirmed.” 515 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 37; Azeredo da Silveira/ Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639 et seq.; Born, International Commercial Arbitration, p. 3544; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1700; Kröll, in: Böckstiegel/ Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 101; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.415; Patocchi/Jermini, in: Honsell/Vogt/Schnyder/Berti (eds), International Arbitration in Switzerland, Art. 194 para. 94; Port/Bowers/Davis Noll, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 282; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 10.78; van den Berg, NYC, p. 312. 516 Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 640; Gaillard/ Savage, Fouchard Gaillard Goldman, para. 1700. 517 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.411; Patocchi/Jermini, in: Honsell/Vogt/Schnyder/Berti (eds), International Arbitration in Switzerland, Art. 194 para. 94; van den Berg, NYC, p. 312. 518 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 10.79; von Mehren, 1(6) Int. A.L.R. 198, 201 (1998).

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II. Spirit and Purpose The arbitration agreement gives comprehensive powers to the arbitral tribunal. The arbitration agreement, however, is not only the source, but also the limit to the arbitral tribunal’s authority. Article V(1)(c) ensures that these limits are not exceeded in the arbitral process.519 198 As is the case with all grounds for refusal set out in Article V (Õ para. 19), an application of Article V(1)(c) must not lead to a re-examination of the merits of the award.520 The exequatur court is therefore not permitted to examine whether the arbitral tribunal properly applied the law, but rather only whether it properly construed the scope of the arbitration agreement.521 In line with the pro-enforcement bias of the Convention, Article V(1)(c) is to be construed narrowly.522 199 While courts are not bound by the arbitral tribunal’s decision on jurisdiction under almost all arbitration laws,523 there is a presumption that the arbitral award was rendered within the limits of the arbitral tribunal’s authority.524 As a consequence, the 197

519 Born, International Commercial Arbitration, p. 3544; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.411; Patocchi/Jermini, in: Honsell/Vogt/Schnyder/Berti (eds), International Arbitration in Switzerland, Art. 194 para. 94; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/ Port (eds), NYC, p. 259; von Mehren, 1(6) Int. A.L.R. 198, 201 (1998). 520 Germany: LG Hamburg, XXV Y.B. Com. Arb. 710, 712 (2000); Spain: Tribunal Superior de Justicia de Catalunya, XLII Y.B. Com. Arb. 520, 523 (2017); UK: Lesotho Highlands Dev. Auth. v. Impregilo SpA, [2005] 3 WLR 129; US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), I Y.B. Com. Arb. 205 (1976) (2d Cir. 1974); FIAT S.p.A. v. Ministry of Fin. & Planning of the Republic of Surin., XXIII Y.B. Com. Arb. 880, 882 (1998) (S.D.N.Y. 1989); Born, International Commercial Arbitration, p. 3550; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-66; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 260; van den Berg, NYC, p. 313. 521 Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 260; Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 PILS para. 70. 522 Spain: Tribunal Superior de Justicia de Catalunya, XLII Y.B. Com. Arb. 520 para. 2c (2017); UK: Lesotho Highlands Dev. Auth. v. Impregilo SpA, [2005] 3 WLR 129; US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), I Y.B. Com. Arb. 205 (1976) (2d Cir. 1974); Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948 (S.D. Ohio 1981) = VII Y.B. Com. Arb. 382, 388 (1982); Mgmt. & Technical Consultants SA v. Parsons-Jurden Int’l Corp., XIII Y.B. Com. Arb. 611, 615 (1988) (9th Cir.1987); Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 641; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1700; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-66; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 260; van den Berg, NYC, p. 313. 523 Van den Berg, NYC, p. 312. The power of a court to scrutinize an arbitral tribunal’s decision on jurisdiction is based on the “negative” effects of the principle of Kompetenz-Kompetenz or compétencecompétence. This doctrine’s flipside, the “positive” effect, encompasses the tribunal’s authority to rule on the question of jurisdiction. As to this differentiation, see Barceló III, 36 Vand. J. Transnat’l L. 1115 (2003). The UNCITRAL Model Law, which has been adopted by numerous countries in whole or in part, refers to this principle in its Article 16(1): “The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.” Jurisdictions that have adopted the UNCITRAL Model Law tend to accord some deference to the tribunal’s determination on jurisdiction in line with Article 16(2), which is designed to support a favorable assumption with regard to the tribunal’s jurisdiction. For a discussion of the question whether – and to what extent – United States courts owe deference to an arbitral tribunal’s determination of its jurisdiction, see US: Rusoro Mining Ltd. v. Venezuela, XLIII Y.B. Com. Arb. 714 (2018) (D.D.C. 2018). 524 Bermuda: Huawei Tech Investment Co. Ltd. v. Sampoerna Strategic Holdings Ltd., XXXIX Y.B. Com. Arb. 354 et seq. (2014); Sojuznefteexport v. JOC Oil Ltd., XV Y.B. Com. Arb. 384, 430 (1990), where the Court of Appeal stated with regard to Article V(1)(c): “This defence to enforcement of a foreign award, like the others already discussed, should be construed narrowly. Once again a narrow construction would comport with the enforcement-facilitating thrust of the Convention;” Spain: Tribunal Superior de Justicia de Catalunya, XLII Y.B. Com. Arb. 520 para. 2c (2017); Canada: Corporacion Transnacional de Inversiones, S.A. de C.V. v. STET International, S.p.A., 45 O.R. (3d) 183 = CLOUT

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refusal of recognition and enforcement pursuant to Article V(1)(c) is limited to cases in which it has been proven that the arbitral tribunal has exceeded the powers conferred upon it by the arbitration agreement.525

III. Drafting History During the drafting process of Article V(1)(c) a debate arose in relation to the section 200 regarding partial enforcement of an arbitral award. Article V(1)(c) provides that even where one part of the award is in excess of the arbitral tribunal’s competence, the remaining part of the award (rendered in accordance with powers conferred upon the arbitral tribunal) may be recognized and enforced. It was argued that such separation between enforceable and unenforceable parts of the award was foreign to international law, and that providing for such separability would open the door to a review as to substance.526 For the latter reason, the Belgian representative proposed the deletion of this part.527 Other delegates, however, particularly those from India, Italy and Bulgaria, stated that the option of partial recognition should be retained, since a complete refusal of an award “merely because a small detail fell outside the scope of the arbitral agreement” could lead to unjustified hardship for the applicant.528 The proposal to delete the part of the provision concerning partial enforcement was rejected by 17 votes to 15, with 6 abstentions,529 and the entire provision was adopted by the Conference.530

IV. Excess of Competence or Jurisdiction 1. Construction of Article V(1)(c) Against the Background of Its Language Versions Under Article V(1)(c), the exequatur court can deny recognition and enforcement of 201 an arbitral award if the arbitral tribunal has exceeded its competence or jurisdiction. There is a slight difference between the English and the French language versions of Article V(1)(c). The French text contains the terms “compromis” (submission to arbitration) and “clause compromissoire” (arbitral clause), whereas the English text only uses the term “submission to arbitration.” Despite this difference in wording, it is undisputed that the application of Article V(1)(c) is not restricted to cases where the parties have issued a submission to arbitration. Rather, the provision also applies in cases in which the parties have referred to the arbitral clause as well as to any subsequent agreements.531 Case No. 391 = XXVI Y.B. Com. Arb. 323 (2001); US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), I Y.B. Com. Arb. 205 (1976) (2d Cir. 1974); Mgmt. & Technical Consultants SA v. Parsons-Jurden Int’l Corp., XIII Y.B. Com. Arb. 611, 614 et seq. (1988) (9th Cir. 1997); Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 642; Port/ Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 261; von Mehren, 1(6) Int. A.L.R. 198, 201 (1998). 525 With regard to the allocation of burden of proof, Õ paras 41 et seq. 526 E/2822, p. 23 (Õ Annex IV 1) (the text of Article V(1)(c) was located in Article IV(d) at that time). 527 E/CONF.26/SR.17, p. 9 (Õ Annex IV 1) (the text of Article V(1)(c) was part of Article IV(1)(c) at that time). 528 E/CONF.26/SR.17, pp. 9 et seq. (Õ Annex IV 1). 529 E/CONF.26/SR.17, p. 14 (Õ Annex IV 1). 530 E/CONF.26/L.48, p. 2 (Õ Annex IV 1). 531 Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 645; Patocchi/ Jermini, in: Honsell/Vogt/Schnyder/Berti (eds), International Arbitration in Switzerland, Art. 194 para. 94; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 260.

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The use of the term “submission to arbitration” in Article V(1)(c), in contrast to “agreement” in Article V(1)(a) and (d), does not lead to a different result; the term was “used in a broad sense” by the drafters.532 Aware of the controversy concerning the legal nature of agreements specifying the subject matter of the dispute and the scope of the arbitral tribunal’s authority (e.g. “terms of reference” or “acte de mission”),533 the drafters of the Convention chose a neutral wording in order to ensure the provision’s comprehensive sphere of application.534

2. Excess of Jurisdiction 203

For the purpose of the following considerations a distinction is made between an excess of jurisdiction and an excess of competence (Õ paras 234 et seq.). Whereas the jurisdiction of the arbitral tribunal is meant to refer to the issues the tribunal is authorized to consider, competence refers to the contents of the decision.535 In order to determine whether the arbitral tribunal has exceeded its jurisdiction, the factual scope of the arbitration agreement has to be identified (a). An excess of jurisdiction has also been considered in cases in which the arbitral tribunal exceeded time limits (b).

a) Factual Scope of the Arbitration Agreement 204 The factual scope of the arbitration agreement is primarily determined by the contractual terms set forth by the parties.536 Whether certain issues are within the scope of the arbitration agreement is, in most cases, a question of interpretation of the parties’ intent. Such interpretation is to be guided not only by the wording of the arbitration agreement, but also by the surrounding circumstances of the contractual relationship. Whether the parties intended the arbitration agreement to encompass certain issues will therefore often be a question of fact rather than a question of law.537 204a In principle, arbitration agreements should be construed broadly. This is in line with the (presumed) typical intent of parties to international transactions, who generally prefer to resolve disputes arising in their contractual relationship in a single forum instead of having to resort to different fora for different types of claims (e.g. contractual claims on one hand, and claims based on statutory law on the other). Against this background, the decision of the Russian Supreme Arbitrazh Court of July 25, 2011 appears unnecessarily restrictive: the court observed that the arbitration agreement only covered disputes relating to the “interpretation or operation of the contract or its breach.” The court then concluded that certain losses suffered by one party did not fall within the accordingly interpreted scope of the arbitration agreement and that the arbitral tribunal, in awarding such losses in its award, had given rise to a ground for refusal pursuant to Article V(1)(c).538 Such a restrictive interpretation of the underlying arbitration agreement should not become the default approach in respect to Article V(1)(c) as this would thwart the Convention’s overarching goal of facilitating the recognition and enforcement of arbitral awards (Õ para. 5). To the contrary, an approach to the interpretation of an arbitration agreement’s scope that is restrictive to such a degree should

532

E/2704, para. 39 (Õ Annex IV 1). Leboulanger, Rev. arb. 1986, 469, 475 et seq.; Loquin, Rev. arb. 1980, 538, 546. 534 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.412. 535 Regarding a similar distinction see Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 650. 536 Cf. Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 38. 537 Van den Berg, NYC, p. 312; cf. also Switzerland: BG, 30(1) ASA Bull. 108 para. 3 (2012). 538 Russia: Collegium of the Supreme Arbitrazh Court, CLOUT Case No. 1409. 533

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only be taken based on clear factual evidence to the effect that the parties intended for the arbitration agreement to have a narrow scope.539 aa) Governing Law. While it is generally recognized that the parties’ autonomy is of 205 paramount importance in determining the scope of the arbitral agreement,540 the governing law is by no means irrelevant in this context. The mandatory provisions of the applicable law delineate the boundaries within which the parties may agree to arbitrate certain issues.541 In addition, the applicable law may also play a role in the interpretation of the parties’ agreement.542 The choice of a specific law to govern the arbitration agreement by the parties may therefore constitute an indication that the parties intended their agreement to be construed in accordance with the prevailing view in the respective jurisdiction. Finally, where a specific intent of the parties cannot be discerned, a solution may be found in the applicable law. Article V(1)(c) does not explicitly provide which law governs the scope of the 206 arbitration agreement. A contextual interpretation of Article V suggests that, lacking any indication to the contrary in the Convention, the law governing the scope of the arbitration agreement be the same as the law applicable with regard to its validity.543 Pursuant to Article V(1)(a), the law applicable to the arbitration agreement is primarily the law chosen by the parties. If the parties have not made a choice of law in this regard, the validity of the arbitration agreement is to be determined under the law of the place where the award was made, i.e. the law of the seat of the arbitration544 (concerning the applicable law under Article V(1)(a), Õ paras 111 et seq.). bb) Bill of Exchange. Whether an arbitral tribunal has jurisdiction to decide matters 207 concerning a bill of exchange generally depends on whether such a bill of exchange is part of the underlying contract. Where a bill of exchange is part of the underlying contract, it is also subject to an arbitration agreement contained in this contract. Otherwise, since in practice bills of exchange do not contain separate arbitration agreements, the arbitral tribunal will not have jurisdiction over that matter. Pursuant to the majority view, bills of exchange are not part of the underlying contract 208 (and therefore not subject to the arbitration agreement) unless the parties have explicitly provided otherwise. In English and Hong Kong law, the principle of separability of bills of exchange from the underlying contract is widely recognized.545 Australian courts have also adopted this view.546 An express stipulation by the parties will therefore generally be necessary in order to assume that a bill of exchange is part of the underlying contract and thereby covered by the arbitration agreement contained therein.547 With regard to the burden of proof, Õ paras 39 et seq. France: Cass., Rev. arb. 1994, 116; ICC: Dow Chemical v. Isover Saint Gobain (Case No. 4131), JDI 1983, 899 = IX Y.B. Com. Arb. 131, 133 (1984); Blessing, in: van den Berg (ed.), 40 Years of NYC, pp. 168, 173 (concerning the law applicable to the arbitration agreement in general, i.e. not expressly related to the scope of the agreement under Article V(1)(c)); Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 3.33. 541 France: Cass., Rev. arb. 1997, 537. 542 Berger, in: van den Berg (ed.), Back to Basics?, pp. 301, 310. 543 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 38. 544 Born, International Commercial Arbitration, p. 3465; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 225. 545 Hong Kong: York Air Conditioning & Refrigeration Co. Inc. v. Lam Kwai Hung t/a North Sea A/C Electrical Engineering Co., [1995] 1 HKC 287; UK: Nova (Jersey) Knit Ltd. v. Kammgarn Spinnerei GmbH, [1977] 1 WLR 713 = IV Y.B. Com. Arb. 314 (1979); Coleman, (1996) 13 J. Int. Arb. 163, 166. 546 Australia: Paharpur Cooling Towers Ltd. v. Paramount (WA) Ltd., [2008] WASCA 110. 547 Coleman, (1996) 13 J. Int. Arb. 163, 166; criticizing this approach: Chen, (1996) 13 J. Int. Arb. 129, 135. 539 540

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Article V 209–212

New York Convention

cc) Set-Off. Where the respondent, relying on its own cross-claims, has declared setoff against the claim(s) brought by the claimant, the question may arise in the exequatur proceedings as to whether the arbitral tribunal had jurisdiction to decide over the crossclaim(s), or whether it exceeded its jurisdiction pursuant to Article V(1)(c) in doing so. First and foremost, this question concerns the scope of the arbitration agreement. It is therefore necessary to thoroughly examine whether the cross-claim is encompassed by the arbitration agreement between the parties. Second, certain arbitration rules expressly confer upon the arbitral tribunal jurisdiction to decide over cross-claims raised in the course of the proceedings.548 Insofar as either of the above questions can be answered in the affirmative, the arbitral tribunal is justified in assuming its jurisdiction with regard to the respondent’s cross-claim. In the following scenarios, the arbitral tribunal’s jurisdiction can be established without difficulty: – the main claim and the respondent’s cross-claim are based on the same contract (which entails an arbitration agreement), – the contract under which the cross-claim arose contains an arbitration clause which is identical to that contained in the main contract, – the parties agree on the admissibility of the cross-claim in the arbitral proceedings,549 or – the parties have agreed on arbitration rules that expressly extend the arbitral tribunal’s jurisdiction to claims raised as a set-off defense. 210 With regard to the remaining scenarios, it is more difficult to assess whether the arbitration agreement between the parties provides a sufficient jurisdictional basis for the arbitral tribunal to decide over any cross-claims asserted by way of a set-off defense. In ascertaining whether it was the parties’ intent to submit the contract under which the cross-claim is brought to the arbitration agreement, the decisive criterion is whether there is a close connection between the two relevant contracts.550 Where an arbitration agreement – like most standard arbitration clauses suggested by the major arbitration institutions – covers “all disputes arising out of or in connection with the present contract,” the wording of the arbitration agreement provides a basis for the arbitral tribunal to assume that closely connected contracts are to be covered by the arbitration agreement.551 Whether a sufficiently close connection exists has to be established by means of a thorough interpretation of the relevant contracts, taking into account the individual circumstances of the case.552 211 If the arbitration agreement does not contain a specific reference to disputes “in connection with” the contract containing the arbitration clause, this may be an indication that the parties intended to limit the agreement’s scope to this specific contract. However, in such cases, as in the above scenario, all relevant facts of the case have to be considered in order to arrive at the result intended by the parties. 212 In one case, an arbitral tribunal assumed its jurisdiction regarding a set-off defense, considering that there was a close connection between a sales agreement and a 209

548 Article 27 of the International Arbitration Rules of Zurich Chamber of Commerce (1989); Article 21(5) Swiss Rules of International Arbitration (2012) cf. Jenny, in: Arroyo (ed.), Arbitration in Switzerland, Art. 21 Swiss Rules paras 18 et seq.; but also see limiting rules: Article 19(3) of the UNCITRAL Rules (“the respondent may […] rely on a claim arising out of the same contract for the purpose of a set-off”); Article 3(2) of the ICDR Rules 2009 (“a respondent may make counterclaims or assert set-offs as to any claim covered by the agreement to arbitrate”). 549 Either expressly or impliedly, if the claimant does not object to the set-off claim that lies outside the scope of the arbitration agreement. See Berger, (1999) 15 Arb. Int’l 53, 65, with further references. 550 Berger, (1999) 15 Arb. Int’l 53, 66. 551 Berger, (1999) 15 Arb. Int’l 53, 66. 552 Berger, (1999) 15 Arb. Int’l 53, 66.

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corresponding loan agreement.553 In another case, an arbitral tribunal held that a purchase contract and a joint venture agreement constituted a legal unit since the purchase agreement only settled details, while the general stipulations had already been made in the joint venture agreement.554 A close connection may also be assumed between a main agreement and a guarantee that serves as security for this agreement.555 On the other hand, a close connection between the relevant contracts appears 213 questionable if the contract giving rise to the cross-claim contains a distinct arbitration clause providing for a different arbitral process (such as, e.g., fast-track arbitration). In such a case, it is necessary to examine whether the insertion of a different arbitration agreement into the second contract expresses the parties’ intention to have the two contracts dealt with in separate proceedings.556 This leaves the question of whether an arbitral tribunal may decide over a set-off 214 defense in situations different from those mentioned before. Generally, a cross-claim asserted by way of set-off does not fall within the scope of the arbitration agreement where no close connection to the contract containing the arbitration agreement can be assumed.557 Since the arbitral process rests entirely on the parties’ agreement to arbitrate, the scope of the arbitration cannot be extended beyond the parties’ shared intention. In case of a contravening intention of the parties, considerations of procedural economy cannot provide a sufficient basis for assuming the competence of the arbitral tribunal to consider the claim for set-off. However, it has been argued that the arbitral tribunal is also justified in assuming its 215 jurisdiction in cases in which the amount of the cross-claim raised as a set-off defense is not disputed or in which the cross-claim is already liquid (e.g. because it has been conceded or has already been finally decided by a court or arbitral tribunal). Under such (rare) circumstances, there is no reason why the arbitral tribunal should not consider the set-off defense.558 dd) Counterclaims. (1) Counterclaims in General. A counterclaim is an indepen- 216 dent claim559 and as such has to meet the relevant jurisdictional standards.560 A counterclaim is to be distinguished from a cross-claim asserted by means of a set-off defense. While some arbitration rules explicitly provide for the procedural admissibility of cross-claims asserted in a set-off (see, e.g., Article 21(5) Swiss Rules of International Arbitration 2012), such provisions do not necessarily also lead to the admissibility of counterclaims.561 The scope of provisions such as Article 21(5) Swiss Rules is to be

553 Bulgarian Chamber of Commerce and Industry, Arbitration Court: Creditor v. Debtor (Case No. 60/ 1980), XII Y.B. Com. Arb. 84 et seq. (1987) (referring to a German decision by the Federal Supreme Court of July 12, 1979). 554 ICC: Swedish Company v. Two entities from the former Yugoslavia (Case No. 5971), 13(4) ASA Bull. 728 (1995). 555 Berger, (1999) 15 Arb. Int’l 53, 67. 556 It may be an indication of such an intention of the parties if they have referred to a set of rules tailored to the particular nature of the contract. According to Berger, there is, however, a tendency in international arbitration to presume the competence of the tribunal with respect to a set-off defense arising from a different contract with a distinct arbitration agreement if no such specific and intentional reference has been made to different (separate) arbitration proceedings (Berger, (1999) 15 Arb. Int’l 53, 73). 557 UK: Econet Satellite Services v. Vee Networks, [2006] EWHC 1664; ICC: Sofidif (Case No. 5124), Interim Award No. 2 (unreported); Lew/Mistelis/Kröll, Comparative Arbitration, para. 7-68; Mourre, (2008) 24 Arb. Int’l 387, 388. 558 Mourre, (2008) 24 Arb. Int’l 387, 399. 559 Koller, AAYB 2008, 59, 81; Pitkowitz/Schmitt, AAYB 2007, 183, 201. 560 Koller, AAYB 2008, 59, 81 et seq. 561 See Jenny, in: Arroyo (ed.), Arbitration in Switzerland, Art. 21 Swiss Rules paras 27 et seq.

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Article V 217–219

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interpreted on the basis of the respective provision’s wording, systematic context, purpose and history. 217 Unless the applicable arbitration rules explicitly provide for the admissibility of (particular) counterclaims, or the claimant agrees on the admissibility of the counterclaim(s) raised by the respondent, any counterclaim has to be covered by the existing arbitration agreement between the parties.562 A counterclaim can be considered as encompassed by the arbitration agreement if the contract from which the counterclaim arises is closely connected to the contract containing the arbitration agreement563 (with regard to the interpretation of the arbitration agreement as to its scope, also Õ paras 209 et seq.). 218 For reasons of procedural economy it has been argued that, in addition to the requirement of a close connection between the relevant contracts, counterclaims should only be admitted if the counterclaims themselves are closely connected to the main claim.564 By imposing the additional requirement of a close connection between claim and counterclaim, the respondent is supposed to be prevented from raising only vaguely related counterclaims in an attempt to delay the arbitral proceedings. However, unless the parties agree on procedural rules imposing such an additional requirement,565 the better arguments militate for admitting counterclaims – insofar as they are covered by the arbitration agreement. Where the arbitration agreement covers the counterclaim, it is not up to the arbitral tribunal to deny its jurisdiction and force the parties to commence new, additional arbitral proceedings.566 Where, on the other hand, the applicable arbitration rules provide for such an additional requirement, an arbitral tribunal may well be acting in violation of both Article V(1)(c) and Article V(1)(d) if it admits a counterclaim that does not meet the stipulated prerequisites. 219

(2) Counterclaims Against Third Parties. Another important issue is whether the respondent may raise counterclaims against third parties that were not initially involved in the arbitral proceedings. The involvement of third parties in arbitral proceedings raises numerous problems: since one of the key principles on which the arbitral process is founded is the agreement of all concerned parties to submit a dispute to arbitration, no party can be forced to participate in arbitral proceedings if it has not submitted to the jurisdiction of the arbitral tribunal. The involvement of a third party in the arbitral proceedings therefore requires that the third party is – or becomes – a party 562 Koller, AAYB 2008, 59, 83; Heger, ZfRV 2003, 171, 174; Holtzmann/Neuhaus, Guide to the UNCITRAL Model Law, p. 649; Münch, in: MünchKommZPO, sect. 1046 para. 33; Pitkowitz/Schmitt, AAYB 2007, 183, 201; Poudret/Besson, Comparative Arbitration, para. 574; Blackaby/Partasides/Redfern/ Hunter, Redfern and Hunter, para. 5.95; Sanders, II Y.B. Com. Arb. 172, 206 (1977); Stolzke, Aufrechnung und Widerklage, p. 116; see also Article 19(3) of the UNCITRAL Arbitration Rules; Article 3(2) of the ICDR Rules 2009; Article 19(1) of the Commercial Arbitration Rules of the Japan Commercial Arbitration Association; section 13 of the ICAC Rules (International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry); Article 25(2) of the NAI Rules; Article 23 of the Rules of International Arbitration of the Permanent Arbitration Court at the Croatian Chamber of Commerce (1992). 563 ICC: Germany v Italy (Case No. 12363/ACS), 24(3) ASA Bull. 462, 469 (2006); Iran-US Claims Tribunal: American Bell International Inc. v. Islamic Republic of Iran, Ministry of Defense (Case No. 4148-3), X Y.B. Com. Arb. 274, 276 (1985). 564 Koller, AAYB 2008, 59, 83 (in case the decision would substantially delay the main proceedings). 565 See, e.g., Article 19(1) of the Commercial Arbitration Rules of the Japan Commercial Arbitration Association. 566 Berger, in: Zuberbühler/Müller/Habegger (eds), Swiss Rules, Art. 21 para. 36 (in favor of discretion, but stating that the tribunal should refrain from requiring a connection in addition to the connection between the contracts required for the counterclaim to be encompassed by the arbitration clause); Rivkin, in: Gaillard/Schlaepfer/Pinsolle/Degos (eds), Competition and Arbitration Law, p. 140.

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to the arbitration agreement.567 Second, where the arbitral tribunal has already been constituted, a third party joining the proceedings is deprived of its fundamental procedural right to participate in the constitution of the arbitral tribunal. On the other hand, where claims and counterclaims exist between the involved 220 parties, determining which party finds itself in the position of claimant (and thus gets to determine the parties to the arbitration as well as the claims to be decided) may not infrequently be a matter of mere swiftness in the initiation of arbitral proceedings.568 Provided that certain – albeit demanding – requirements are met, counterclaims against third parties may therefore be admitted: in light of the significance of party autonomy in arbitration, a third party may only join arbitral proceedings if all three concerned parties are parties to the same arbitration agreement. Further, it is necessary that all three parties consent to the third party joining the arbitral proceedings and that the third party, which had no influence on the appointment of the arbitrators, consents to the constitution of the arbitral tribunal.569 In a small number of arbitrations under the ICC Rules of Arbitration, arbitral tribunals have admitted counterclaims against third parties under the above prerequisites.570 Where, however, the third party is not bound by the same arbitration agreement or is 221 unwilling to join an arbitration without having had the opportunity to appoint an arbitrator, an arbitral tribunal exceeds its jurisdiction under Article V(1)(c) if it nevertheless considers a counterclaim against such a third party. ee) Group of Contracts. The jurisdiction of the arbitral tribunal may also be subject 222 to doubt in cases where there is more than one contract between the parties and not all of these contracts contain an arbitration agreement. Such cases may pose the question as to whether an arbitral tribunal has exceeded its jurisdiction by ruling on issues arising from one contract (not containing an arbitration agreement) while basing its jurisdiction on an arbitration agreement contained in another contract between the parties. The answer to this question depends on the connection between the respective contracts as intended by the parties.571 (1) Close Connection Between the Contracts. If the contracts are closely connected, 223 the arbitration agreement in one contract may also cover disputes arising from the other contract.572 Whether such a connection exists and whether this connection is a sufficient 567 Brazil: Superior Tribunal de Justiça, XXXVII Y.B. Com. Arb. 195 (2012) = CLOUT Case No. 1485. In this case, the court considered that the parties had agreed on the inclusion of a party’s subsidiaries in the arbitral proceedings, as well as on the admissibility of a counterclaim brought by such a subsidiary. The court accordingly declined to find an infringement of Article V(1)(c) and granted recognition and enforcement of the award. 568 Derains/Schwartz, Guide to the ICC Rules, p. 71; Kleinschmidt, SchiedsVZ 2006, 142, 145 et seq.; Koch, 28(2) ASA Bull. 380, 384 (2010); de Boisséson, in: Jolivet (ed.), Complex Arbitrations, pp. 20 et seq.; Voser, in: van den Berg (ed.), 50 Years of NYC, pp. 343, 357. 569 Cf. Koch, 28(2) ASA Bull. 380, 385 (2010). 570 Five such “exceptional” cases had been reported until 2005 in Silva-Romero, Brief Report on Counterclaims and Cross-claims: The ICC Perspective, in: Bond et al. (eds), Arbitral Procedure at the Dawn of the New Millennium, 2005. See also: Derains/Schwartz, Guide to the ICC Rules, p. 71; Kleinschmidt, SchiedsVZ 2006, 142, 145; McIlwrath/Savage, International Arbitration and Mediation, para. 5-024; still, however, applying a stricter standard than the one relevant for initiating arbitration in the first place: Koch, 28(2) ASA Bull. 380, 384 (2010). 571 Born, International Commercial Arbitration, p. 1374; Hanotiau, Complex Arbitrations, p. 104; Lew/ Mistelis/Kröll, Comparative Arbitration, para. 7-46; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/ Port (eds), NYC, p. 279. 572 Germany: OLG Schleswig, Oct. 19, 2000, 16 Sch 01/00 (unreported), available at http://www.disarb. org (last visited Apr. 29, 2019) (dealing with this issue under Article V(1)(a)); Netherlands: Gemeenschappelijk Hof van Justitie van Aruba, Curaçao, Sint Maarten en van Bonaire, Sint Eustatius en

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Article V 224–226

224

225

225a

226

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basis for the arbitral tribunal to assume jurisdiction in relation to all concerned contracts will depend on the circumstances of the individual case, taking into account all indications of the parties’ intent (Õ para. 210).573 In line with the favor arbitrandum (Õ paras 4 et seq.), arbitration agreements should generally – in the absence of clear indications of a contrary intent of the parties – be construed broadly (Õ paras 204 et seq.). This has also been the prevalent approach by exequatur courts, as the following case law illustrates. In a case in which the parties had first concluded a contract containing a broad arbitration clause and had not explicitly stipulated an arbitration agreement in a subsequent contract, the Higher Regional Court of Karlsruhe found that the subsequent contract was based on the prior contract and that both contracts could therefore not be considered in an isolated fashion. The arbitration agreement in the prior contract was thus considered by the court to encompass the subsequent contract as well. The court accordingly held that the arbitral tribunal had correctly assumed jurisdiction over both contracts.574 In line with this approach, the US District Court for the Northern District of California rejected an argument by the party resisting enforcement that the later contract had created “a new relationship” – without an arbitration agreement – between the parties. In this case, the parties had first concluded a joint venture agreement containing an arbitration clause and had subsequently concluded a sales contract in connection with the joint venture agreement. The court considered that this set of facts suggested a sufficiently close connection between the contracts and that the respondent had not demonstrated why the sales contract should have initiated a new relationship without an arbitration agreement between the parties.575 Similarly, the Supreme Court of Justice of El Salvador found that in a case in which the original (written) contract between the parties contained an arbitration agreement, the oral extension of such contract also fell within the scope of the arbitration agreement contained in the original contract. The court held that in light of the wording of the arbitration agreement (which purported to refer “any” future disputes between the parties to arbitration) and the circumstances of the case, the arbitration agreement had to be “interpreted as broadly as possible.”576 In a similar case, the Svea Court of Appeal also considered the criterion of a close connection between the concerned contracts to be decisive. However, the court went one step further by holding that the findings of an arbitral tribunal concerning such a connection were not subject to judicial review: the court held that the arbitral tribunal’s finding as to the connection between the contracts was an issue of the merits of the award and was therefore not to be reviewed by the court.577 This view, however, is not convincing. Whether an arbitral tribunal has jurisdiction over a dispute or specific aspects of a dispute is an issue expressly contemplated by Article V(1)(c). Whether the Saba, XLII Y.B. Com. Arb. 473 para. 24 (2017) (n.b. that the court expressly recognized the legal principle, but did not find there to be a close connection in this case); US: J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A., XV Y.B. Com. Arb. 543, 549 (1990) (4th Cir. 1988); J.A. Jones, Inc. v. Bank of TokyoMitsubishi, Ltd., N.Y. Branch, XXV Y.B. Com. Arb. 901, 904 (2000) (E.D.N.C. 1999); Hanotiau, Complex Arbitrations, p. 132; Lew/Mistelis/Kröll, Comparative Arbitration, para. 7-46; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 279. 573 One such indication may be found in a broad wording of the arbitration agreement, referring, e.g., to “all disputes in connection with” the main contract. 574 Germany: OLG Karlsruhe, SchiedsVZ 2008, 47, 48 = XXXIII Y.B. Com. Arb. 541, 546 (2008). 575 Brazil: Superior Tribunal de Justiça, CLOUT Case No. 1485; US: Dandong Shuguang Axel Corp. v. Brilliance Mach. Co., XXVII Y.B. Com. Arb. 617 (2002) (N.D. Cal. 2001). 576 El Salvador: Corte Suprema de Justicia, CLOUT Case No. 1381. 577 Sweden: CA Svea, XXVII Y.B. Com. Arb. 551, 552 (2002).

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prerequisites of assuming the arbitral tribunal’s jurisdiction are met is a question to be reviewed by the exequatur court. In particular, whether a sufficient connection exists between the relevant contracts – from a jurisdictional perspective578 – is subject to review by the exequatur court. If the exequatur court were not permitted to conduct such review, the ground for refusal under Article V(1)(c) would be futile where groups of contracts are concerned.579 In contrast, the mere fact that two contracts have the same ultimate objective is not 227 sufficient to consider an arbitration agreement contained in one such contract to cover the other contract as well.580 In order to successfully argue that a later contract (which does not contain an 228 arbitration agreement) supersedes a prior contract, the language of the subsequent contract will have to expressly provide so.581 Where two contracts between the same parties each contain arbitration agreements, 228a the parties’ intent is paramount in deciding whether disputes arising under the two contracts may be addressed in the same arbitral proceedings. If, after the disputes have arisen, the parties do not agree on the scope of jurisdiction of an arbitral tribunal established under the arbitration agreement contained in one of the contracts to address issues arising under the other contract, the intent of the parties at the time of contract conclusion is decisive in determining the scope of the arbitral tribunal’s jurisdiction. Where the parties have provided for diverging arbitration agreements in the contracts, i.e. for diverging arbitration rules and/or diverging seats of arbitration, there is a presumption that the parties wanted to arbitrate disputes arising from each of the contracts separately. Accordingly, the diverging arbitration agreements each have to be given effect by arbitrating the disputes separately.582 Where, on the other hand, the respective arbitration agreements in both contracts provide for arbitration pursuant to the same arbitration rules and at the same seat of arbitration, it may well be presumed that – failing a clear indication of a contrary intent of the parties – it was the parties’ intention to allow for consolidation and for arbitration of the disputes arising under the two contracts in the same arbitration proceedings.583 (2) Contracts Containing a Choice of Forum Clause. The above scenario has to be 229 differentiated from cases in which one of the contracts contains an arbitration agree578 UK: Cukurova Holding A.S. v. Sonera Holding B.V., XXXIX Y.B. Com. Arb. 516 (2014), where the Privy Council stated with regard to the assertion that the arbitral tribunal had exceeded its jurisdiction: “[…] the court must determine this question for itself, although it must of course have regard to the reasoning and conclusions of the Tribunal.” See also UNCITRAL Secretariat, Guide, Art. V(1)(c) para. 41. 579 Cf. UNCITRAL Secretariat, Guide, Art. V(1)(c) para. 41. 580 US: Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A., 613 F. Supp. 2d 1362 (S.D. Fla. 2009) = XXXIV Y.B. Com. Arb. 1088, 1094 (2009). 581 Brazil: Superior Tribunal de Justiça, XXXVII Y.B. Com. Arb. 189 (2012) = CLOUT Case No. 1487, where the court held that it would only consider the broad arbitration agreement between the parties waived “if the parties had performed a new formal act unequivocally demonstrating the parties’ intention to invalidate the arbitration agreement;” US: Geotech Lizenz AG v. Evergreen Sys., Inc., 697 F. Supp. 1248 (E.D.N.Y. 1988) = XV Y.B. Com. Arb. 562, 563 (1990) (the court found that the subsequent agreement did not contain any reference to the prior agreement and thus could not supersede it); Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 279. 582 Switzerland: BG, 2 Swiss Int’l Arb. L. Rep. 171 (2008) (“Ferrotitanium”). 583 Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVIII Y.B. Com. Arb. 434 (2013); Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 464 (2015); Gerechtshof Amsterdam, XLI Y.B. Com. Arb. 518 (2016); UK: Cukurova Holding A.S. v. Sonera Holding B.V., XXXIX Y.B. Com. Arb. 516 (2014); US: Sonera Holding B.V. v. Çukurova Holding A.S., XXXVIII Y.B. Com. Arb. 483 (2013) (S.D.N.Y. 2012). For a contrary assessment of the same circumstances, see: Netherlands: Gemeenschappelijk Hof van Justitie van Aruba, Curaçao, Sint Maarten en van Bonaire, Sint Eustatius en Saba, XLII Y.B. Com. Arb. 473 para. 24 (2017).

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ment, whereas the other contains a choice of forum clause, conferring jurisdiction upon national courts. In such cases – as in the above scenario – the agreements have to be interpreted according to the parties’ intent in order to determine whether the arbitration agreement also covers the contract(s) containing the choice of forum clause. In the absence of indications to the contrary, however, it can generally be assumed that the parties had valid reasons for differentiating between the two (or more) contracts concluded between them.584 The inclusion of a choice of forum clause in a specific contract will generally constitute an indication that the parties wanted to confer jurisdiction upon national courts with regard to disputes arising from this contract.585 Hence, where an arbitral tribunal has decided on a claim arising from a contract containing a choice of forum clause in favor of national courts, this may, under the above-described circumstances, constitute an excess of jurisdiction. 230 However, it has to be stressed that the interpretation of both contracts, taking into account all relevant circumstances of the case, may also lead to a different result. Particularly in cases in which the parties have concluded a joint venture or framework agreement containing an arbitration clause and have included choice of forum clauses in later contracts (such as, e.g., sales agreements under the framework contract), it may well follow from a thorough interpretation of all relevant circumstances that the parties did indeed intend to submit all their disputes to arbitration586 and that the inclusion of a forum selection clause merely resulted from the use of standard conditions or was due to an oversight. 231

(3) Amendments. The same standards are to be applied with respect to amendments to existing contracts. Whether the arbitration clause extends to a subsequent amendment of a contract accordingly has to be determined by an interpretation of the pertinent agreements, taking into account all relevant circumstances. In many cases, such an interpretation will lead to the result that the amendment was not meant to be excluded from the scope of the original arbitration agreement. However, if the parties have included a distinct arbitration or jurisdiction clause in the amendment, this may indicate that the parties intended the amendment to be subject to a separate dispute resolution mechanism. In the latter case, an arbitral tribunal dealing with the original contract would exceed its jurisdiction by considering such a (separate) amendment. Depending on the particular circumstances an interpretation may, however, also lead to the result that the arbitration clause contained in the amendment was intended to govern the original contract as well, thus overriding the original arbitration agreement.

b) Time Limits 232 The parties may limit the time available to the arbitral tribunal for rendering an award. Exceeding such time limits has been considered to constitute a ground for refusal under Article V(1)(c).587 Other courts and scholars have reached the same result

584

Cf. Born, International Commercial Arbitration, p. 1375. Hanotiau, Complex Arbitrations, p. 139. 586 Cf., e.g., Brazil: Superior Tribunal de Justiça, XXXVII Y.B. Com. Arb. 189 (2012) = CLOUT Case No. 1487; France: CA Paris, Rev. arb. 1993, 617, 619. 587 Germany: OLG Stuttgart, XXIX Y.B. Com. Arb. 742, 745 (2004); see also Germany: OLG Karlsruhe, BeckRS 2016, 13702 (considering the failure to comply with time limits in the context of Article V(1)(d), but holding that the time limit had been complied with in the case at hand); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 44; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.421; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 281. 585

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of denying recognition and enforcement in such cases, though in doing so they rely on different subsections of Article V.588 Violating the time limits for initiating arbitration (if the limit is meant to restrict 233 the arbitral tribunal’s powers and not merely as an administrative instruction589 or affecting the claim as a matter of substantive law) also compromises the enforceability of an arbitral award. This consequence is justified in view of the importance of the arbitration agreement as the basis of the arbitrators’ mandates. While there is widespread agreement on the above result, it is disputed whether the legal basis is to be found in Article V(1)(c) or in Article V(1)(a) or (d).590 Comparing the purposes of the different grounds for refusal, particularly Article V(1)(c) and (d), it is most convincing to regard a violation of the time limits established by an agreement of the parties as falling within the scope of Article V(1)(d) (in this regard, Õ para. 297 and Õ para. 347). Time limits relate to the course of the arbitral procedure as determined by the parties rather than to the authority they confer upon the arbitrators.

3. Excess of Competence Recognition and enforcement can be denied pursuant to Article V(1)(c) if the award 234 deals with a difference not contemplated by or not falling within the terms of the submission to arbitration. Article V(1)(c) thus generally applies where the arbitral award goes beyond the scope of the arbitration agreement of the parties.591 Both courts and scholars have construed the provision rather restrictively in this regard.592 Moreover, some courts have applied a presumption to the effect that the arbitral award was issued within the scope of the competence of the arbitral tribunal.593 Similarly, courts have reasoned that the arbitrators have considerable discretion in the interpretation of 588 In favor of Article V(2)(b): France: CA Paris, XXIVa Y.B. Com. Arb. 640, 641 (1999); favoring the applicability of Article V(1)(a) or (d): Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 103. 589 See Germany: BGH, BGHZ 104, 178 = NJW 1988, 3090 = XV Y.B. Com. Arb. 450 (1990); Switzerland: Appellationsgericht Basel-Stadt, IPRax 1985, 44; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 281. 590 In favor of Article V(1)(c): Germany: BGH, NJW 1976, 1591 = RIW 1976, 449, 450 = II Y.B. Com. Arb. 242, 243 (1977); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.421. Favoring the applicability of Article V(1)(a): Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 para. 5; van den Berg, NYC, p. 318. In favor of Article V(1)(d): Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 103. 591 Cf. Gaillard/Savage, Fouchard Gaillard Goldman, para. 1700; Port/Bowers/Davis Noll, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 259. 592 Canada: Corporacion Transnacional de Inversiones, S.A. de C.V. v. STET International, S.p.A., 45 O.R. (3d) 183 = CLOUT Case No. 391 = XXVI Y.B. Com. Arb. 323 (2001) (dealing with the corresponding provisions of Articles 34 et seq. of the Model Law); Germany: OLG Naumburg, SchiedsVZ 2011, 228 = XXXVII Y.B. Com. Arb. 226 (2012); US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), I Y.B. Com. Arb. 205 (1976) (2d Cir. 1974) (referring to the “enforcement-facilitating thrust of the Convention”); Nat’l Oil Corp. v. Libyan Sun Oil Co., XVI Y.B. Com. Arb. 651, 654 (1991) (D. Del. 1990); Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948 (S.D. Ohio 1981) = VII Y.B. Com. Arb. 382, 388 (1982); Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 641; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 260; van den Berg, NYC, p. 313. 593 Bermuda: Sojuznefteexport v. Joc Oil Ltd., XV Y.B. Com. Arb. 384, 429 (1990) (expressly referring to and relying on the view expressed by US court decisions); US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), I Y.B. Com. Arb. 205 (1976) (2d Cir. 1974); Mgmt. & Technical Consultants SA v. Parsons-Jurden Int’l Corp., XIII Y.B. Com. Arb. 611, 613 (1988) (9th Cir. 1987); Millicom Int’l V N.V. v. Motorola, Inc., XXVII Y.B. Com. Arb. 948, 956 (2002) (S.D.N.Y. 2002); Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 642; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-91; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 261.

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their authority.594 In line with the pro-enforcement bias of the Convention, courts tend to favor a broad interpretation of the arbitration agreement and thus of the arbitrators’ authority.595 235

a) Application of Incorrect Rules to the Substance of the Dispute An excess of competence in the sense of Article V(1)(c) may occur where the arbitral tribunal applies incorrect rules to the substance of the dispute. In particular, where the parties have agreed on a specific substantive law to be applied to the substance of the dispute and the arbitral tribunal applies a different set of rules, the arbitral tribunal acts in excess of its competence within the meaning of Article V(1)(c).596 In contrast, if the arbitral tribunal interprets the choice of law incorrectly and thus erroneously applies incorrect rules, this does not constitute a ground for refusal under Article V(1)(c).597 In the latter case, a review of the arbitral tribunal’s interpretation of the parties’ choice of law would lead to a prohibited review of the reasoning in substance (révision au fond).

aa) Decisions as Amiable Compositeur. The arbitral tribunal also exceeds its competence if it renders an award acting as amiable compositeur without being so authorized by the parties.598 It has occasionally been argued that a decision as amiable compositeur does not relate to the arbitration agreement, but merely to the reasoning of the arbitrators in substance.599 However, there is no reason to distinguish between cases where an arbitral tribunal acts as amiable compositeur and other cases in which the arbitral tribunal deviates from the agreement of the parties by applying rules different from those stipulated by the parties. It is therefore justified to apply Article V(1)(c) to decisions rendered as amiable compositeur. 237 However, it may be a question of fact as to whether an arbitral tribunal has indeed acted as amiable compositeur without having been so authorized. In a case decided by the US District Court for the Southern District of New York, the court held that the arbitrators had not decided as amiables compositeurs, since they had rendered their decision relying “upon a distinguished legal expert on the matter in issue.”600 The court further rejected the argument that the findings in the arbitral award led to the conclusion that the arbitrators had acted as amiables compositeurs. The court refused 236

594 See, e.g., US: Ministry of Def. & Support for the Armed Forces of The Islamic Republic of Iran v. Cubic Def. Sys., Inc., XXIVa Y.B. Com. Arb. 875, 877 (1999) (S.D. Cal. 1998); Millicom Int’l V N.V. v. Motorola, Inc., XXVII Y.B. Com. Arb. 948, 955 (2002) (S.D.N.Y. 2002); Born, International Commercial Arbitration, p. 3546. 595 Spain: Tribunal Superior de Justicia del País Vasco, CLOUT Case No. 1416; US: Mgmt. & Technical Consultants SA v. Parsons-Jurden Int’l Corp., XIII Y.B. Com. Arb. 611, 614 (1988) (9th Cir. 1987); Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.435. 596 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.428; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 41. 597 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.428; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 41.Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 277. 598 Germany: OLG München, XXXIX Y.B. Com. Arb. 389 (2014) (obiter); Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.425; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 39; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 277. 599 Cf. Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 653. 600 US: Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 178 (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639, 648 (1992) (the tribunal had appointed an expert in the applicable New York corporate and contract law as its adviser in accordance with the applicable procedural rules).

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to examine the findings of the arbitral tribunal in greater detail, since it considered that such a detailed examination would have amounted to a prohibited révision au fond.601 In another case in which the party resisting enforcement alleged that the arbitral tribunal had acted as amiable compositeur, the US District Court for the District of Delaware found that the award had been entirely based on legal considerations and was thus in accordance with the agreement of the parties. Accordingly, the court did not find in favor of a defense under Article V(1)(c).602 In contrast, the fact that an arbitral tribunal based its award on legal considerations 238 where it was authorized to decide as amiable compositeur does not constitute a defense under Article V(1)(c).603 In such cases the arbitral tribunal does not exceed the powers conferred upon it by the parties. bb) Decisions Based on International Legal Principles. In relation to international arbitration proceedings, the question may arise as to whether the arbitral tribunal has exceeded its competence by basing its decision on international legal principles. Such international legal principles may, for instance, comprise the UNIDROIT Principles or lex mercatoria. In determining whether the application of these principles by an arbitral tribunal constitutes an excess of competence, the following should be considered: First, two basic scenarios have to be distinguished: an arbitral tribunal merely referring to international legal principles as an aid to interpreting provisions of the applicable law (as may, e.g., be the case in relation to specific provisions of the Convention on the International Sale of Goods, CISG) will generally not lead to an excess of competence. In such a case the arbitral tribunal is still basing its decision on the applicable legal instruments and is not substituting the applicable law with principles of international law. However, where the arbitral tribunal goes beyond the use of international legal principles as interpretational aids and applies such principles instead of the otherwise applicable law, it must be examined whether the parties have authorized the arbitral tribunal to do so. Generally, where the parties have not authorized the application of international legal principles instead of national or international law, an arbitral tribunal may exceed its competence in basing its decision on such principles (in this context, it has to be taken into account whether the applicable procedural law qualifies international legal principles as law, Õ para. 243). Whether the parties have or have not empowered the arbitral tribunal in this regard is a question of interpretation. Often, where the parties intend the arbitral tribunal to apply international legal principles, they will specifically provide accordingly in the contract or in later documents (e.g. in terms of reference). In a case where the arbitral tribunal had applied the UNIDROIT Principles and the party resisting enforcement alleged that in doing so the arbitral tribunal had violated Article V(1)(c), the US District Court for the Southern District of California rejected this objection.604 The court found that the arbitration agreement between the parties expressly provided for the consideration of the UNIDROIT Principles. The application of lex mercatoria by an arbitral tribunal was not regarded as a ground for refusal of recognition and enforcement under Article V(1)(c) where the parties had

601 US: Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 178 (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639, 648 (1992). 602 US: Nat’l Oil Corp. v. Libyan Sun Oil Co., XVI Y.B. Com. Arb. 651, 655 (1991) (D. Del. 1990). 603 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.426; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 279. 604 US: Ministry of Def. & Support for the Armed Forces of The Islamic Republic of Iran v. Cubic Def. Sys., Inc., XXIVa Y.B. Com. Arb. 875, 878 (1999) (S.D. Cal. 1998).

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referred to “international law” in their agreement.605 Whether such a vague reference will generally be sufficient to empower an arbitral tribunal to apply lex mercatoria not only in the interpretation of the applicable law, but as the relevant legal framework, appears questionable. This issue requires a more differentiated approach. If the parties have explicitly authorized the arbitral tribunal to base its decision on principles of lex mercatoria, there can be no doubt that such a decision lies within the competence of the arbitral tribunal.606 In the absence of such an express authorization, the question of whether the arbitral tribunal was permitted to apply the lex mercatoria depends on how lex mercatoria is qualified. If, under the lex arbitri, the application of lex mercatoria is not regarded as a decision based on law, but rather on equity, a ground for refusal under Article V(1)(c) is given where the arbitral tribunal was not authorized to base its decision on equity rather than legal considerations.607 This distinction is also relevant if the parties merely authorize the arbitral tribunal to choose the applicable law. If the applicable procedural rules regard the application of lex mercatoria as a decision based on law,608 the application of lex mercatoria will not lead to a ground for refusal pursuant to Article V(1)(c).609 b) Incorrect Application of Rules to the Substance of the Dispute 244 The application of incorrect rules (Õ paras 235 et seq.) has to be clearly distinguished from an incorrect application or interpretation of the applicable rules. The mere fact that an arbitral tribunal misapplied the (applicable) law cannot be raised as a defense against a motion for the recognition and enforcement of an award pursuant to Article V(1)(c).610 The review of the arbitral award by the exequatur court must not lead to the court “usurping” the role of the arbitrators, i.e. reviewing the merits of the case (révision au fond) (Õ para. 19).611 Accordingly, exequatur courts have to thoroughly distinguish between objections relating to the arbitrators exceeding their authority on the one hand and objections to the substantive findings of the arbitral tribunal on the other hand.612 Even a “manifest disregard” of the applicable law by an arbitral tribunal therefore cannot 605

Germany: LG Hamburg, XXV Y.B. Com. Arb. 710, 711 (2000). Cf. Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 40; Ritlewski, SchiedsVZ 2007, 130 (135). 607 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 40; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.429. 608 This was, for instance, so held by French courts, cf. Gaillard/Savage, Fouchard Gaillard Goldman, para. 1556, with further references. 609 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.429. 610 Hong Kong: Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXVIII Y.B. Com. Arb. 752, 784 (2003); US: Stawski Distrib. Co. v. Browary Zywiec S.A., XXX Y.B. Com. Arb. 923, 928 (2005) (7th Cir. 2005); Chromalloy Aeroservs., Inc. v. Arab Republic of Egypt, 939 F. Supp. 907 (D.D.C. 1996) = XXII Y.B. Com. Arb. 1001, 1005 (1997); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 119. 611 Germany: LG Hamburg, XXV Y.B. Com. Arb. 710, 712 (2000); Italy: CA Trento, VIII Y.B. Com. Arb. 386 (1983); Luxemburg: CA, XXI Y.B. Com. Arb. 617, 623 (1996); Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237, 239 (1981); CA Svea, XXVII Y.B. Com. Arb. 551, 552 (2002); US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), I Y.B. Com. Arb. 205 (1976) (2d Cir. 1974); Nat’l Oil Corp. v. Libyan Sun Oil Co., XVI Y.B. Com. Arb. 651, 657 (1991) (D. Del. 1990); Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948 (S.D. Ohio 1981) = VII Y.B. Com. Arb. 382, 388 (1982); Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A., 613 F. Supp. 2d 1362 (S.D. Fla. 2009) = XXXIV Y.B. Com. Arb. 1088, 1094 (2009); Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 661; Born, International Commercial Arbitration, p. 3550; Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.427; van den Berg, NYC, p. 313. 612 Germany: OLG Köln, XXIX Y.B. Com. Arb. 715, 718 (2004) (finding that the objection concerned the awarded claim itself); Spain: TS, XXXII Y.B. Com. Arb. 571, 579 (2007) (the court held that the objection referred to the substance of the decision rather than to the tribunal’s competence under Article V(1)(c)); US: Gas Natural Aprovisionamientos, Sdg, S.A. v. Atl. LNG Comp. of Trin. & Tobago, 2008 WL 4344525 (S.D.N.Y. 2008) = XXXIV Y.B. Com. Arb. 966, 974–975 (2009); Born, International 606

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be raised as a defense under Article V(1)(c).613 Accordingly, the US District Court for the Southern District of Florida held that the fact that an arbitral award contravened the applicable substantive law did not constitute a ground for refusal of recognition and enforcement.614 However, the exequatur court is not prohibited from considering the substance of the award to the extent necessary in order to determine whether the arbitral tribunal has ruled on matters outside the scope of the arbitration agreement.615 c) Decisions Beyond the Submissions and Claims of the Parties Article V(1)(c) covers not only cases in which the award exceeds the scope of the 245 arbitration agreement. The provision also applies to arbitral awards going beyond the parties’ requests for relief (ultra petita).616 In order to assess whether the arbitral tribunal has exceeded its competence by awarding relief not requested by the parties, it is necessary to interpret the scope of the parties’ requests. This interpretation is not limited to the wording of the actual requests for relief. Such interpretation rather has to take into account the parties’ written and oral submissions, as well as each party’s interests.617 A violation of the principle of ne ultra petita was, e.g., found by the Paris Court of 246 Appeal in relation to an arbitral award granting double the amount of interest claimed by a party.618 On the other hand, where it is clear from a party’s submissions that the requested amount of interest is based on a typographical error or on an obvious miscalculation, an arbitral tribunal will generally not act in violation of ne ultra petita in awarding the correctly calculated amount.619 Moreover, in assessing a potential violation of ne ultra petita, the lex arbitri has to be 247 taken into account. In a case decided by the Higher Regional Court of Hamburg, the arbitral tribunal had awarded more interest than claimed by a party. The court held that the arbitral tribunal had not exceeded its competence, since the arbitral tribunal was free to award interest at its discretion under the applicable Article 49 of the English Arbitration Act 1996.620 Commercial Arbitration, pp. 3549 et seq.; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 105. 613 Luxemburg: CA, XXI Y.B. Com. Arb. 617, 623 (1996); US: Int’l Trading & Indus. Inv. Co. v. Dyncorp Aerospace Tech. AS, 763 F. Supp. 2d 12 (D.D.C. 2011); M&C Corp. v. Erwin Behr GmbH & Co. KG, XXII Y.B. Com. Arb. 993, 999 (1997) (6th Cir. 1996); Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., XXIII Y.B. Com. Arb. 1058, 1061 (1998) (2d Cir. 1997); Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 178 (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639, 649 (1992); Brandeis Intsel Ltd. v. Calabrian Chems. Corp., 656 F. Supp. 160 (S.D.N.Y. 1987) = XIII Y.B. Com. Arb. 543, 546 (1988); Port/Bowers/Davis Noll, in: Kronke/Nacimiento/ Otto/Port (eds), NYC, p. 263. Also Õ Art. V paras 23 et seq. 614 US: Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A., 613 F. Supp. 2d 1362 (S.D. Fla. 2009) = XXXIV Y.B. Com. Arb. 1088, 1094 (2009). 615 Italy: CA Trento, VIII Y.B. Com. Arb. 386 (1983); Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 661; van den Berg, NYC, p. 271. 616 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 102; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 260 and 262; Bühler/Cartier, in: Arbitration in Switzerland, Art. 194 PILS para. 67; cf. Singapore: AYH v. AYI, CLOUT Case No. 1659. This has also been disputed: UNCITRAL Secretariat, Guide, Art. V(1)(c) para. 8 referencing US: Telenor Mobile Commc’ns AS v. Storm LLC, 524 F. Supp. 2d 332 (S.D.N.Y. 2007) (where, however, the arbitration agreement had broadly empowered the tribunal to “grant any relief that they deem just and equitable.” Such wording – which is not contained in the standard arbitration clauses of the major arbitration institutions – may well be construed to empower the arbitral tribunal to award relief beyond the explicit requests for relief submitted by the parties). 617 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 102. 618 France: CA Paris, Rev. arb. 2001, 805. 619 Germany: OLG Stuttgart, XXIX Y.B. Com. Arb. 742, 745 (2004). 620 Germany: OLG Hamburg, NJW-RR 1999, 1738 = BB 1999, Beil. 4, pp. 13, 15 = XXV Y.B. Com. Arb. 714, 715 (2000).

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In spite of the principle of ne ultra petita, an arbitral tribunal may be justified, depending on the applicable (substantive) law, in granting higher damages than the nominal amount claimed. This may, in particular, be the case where the applicable law allows a court or arbitral tribunal to award punitive damages within its discretion. In this regard the US Supreme Court held that an arbitral tribunal’s award granting punitive damages beyond the amount claimed did not constitute an excess of competence.621 In the case before the Supreme Court, the agreement of the parties provided for the application of “the laws of the State of New York,” which allowed the granting of punitive damages.622 Similarly, the US Court of Appeals for the Sixth Circuit upheld an award granting statutory double damages, holding that such ruling was justified under the applicable law.623 It should, however, be noted that while the granting of punitive damages in the above cases did not constitute an excess of competence in the sense of Article V(1)(c), it may well lead to a ground for refusal of recognition and enforcement pursuant to Article V(2)(b) in jurisdictions that consider the granting of punitive damages to be contrary to public policy (Õ para. 567). 249 Where the arbitration agreement as such is silent on the allocation of costs between the parties, a decision on costs in the award will generally not constitute an excess of competence, since most arbitration laws and rules require the arbitral tribunal to decide on this issue.624 However, some arbitration agreements stipulate a specific allocation of costs. A decision on costs in an arbitral award contravening such stipulation will exceed the tribunal’s competence. 250 Where an arbitral tribunal awarded a price reduction which had not been requested as such by the parties, the competent exequatur court did not find that it had exceeded its authority, holding that the power to adjust the price was connected to the general determination of liability.625 251 In another case, a party alleged that the arbitral tribunal had exceeded its competence by correcting an award on claims for payment nunc pro tunc.626 The objecting party asserted that the arbitral tribunal had only been authorized to rule on its own authority to issue a prior order. The court nevertheless upheld the award.627 It held that, by authorizing the arbitral tribunal to render an award nunc pro tunc concerning the prior order, the parties had also empowered the arbitral tribunal to decide upon the payment claim, particularly since the party resisting enforcement had not raised any objection against this claim during the hearing.628 248

621 US: Mastrobuono v. Shearson Lehman Hutton, Inc., XXI Y.B. Com. Arb. 181, 186 (1996) (Sup. Ct. 1995). 622 US: Mastrobuono v. Shearson Lehman Hutton, Inc., XXI Y.B. Com. Arb. 181, 187 (1996) (Sup. Ct. 1995). 623 US: M&C Corp. v. Erwin Behr GmbH & Co. KG, XXII Y.B. Com. Arb. 993, 997 (1997) (6th Cir. 1996). With regard to consequential damages, see US: Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948 (S.D. Ohio 1981) = VII Y.B. Com. Arb. 382, 388 (1982). 624 Cf. US: Aasma v. Am. S.S. Owners Mut. Prot. & Indem., XXVIII Y.B. Com. Arb. 1140, 1142 (2003) (concerning a motion for vacatur of the award); Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), I Y.B. Com. Arb. 205 (1976) (2d Cir. 1974), holding that in arbitration pursuant to the ICC Rules of Arbitration no explicit stipulation as to the allocation of costs was required in the arbitration agreement. 625 Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237, 239 (1981) (confirming the preceding decision of the Court of Appeal). 626 By means of a decision nunc pro tunc an arbitral tribunal retroactively amends or corrects a prior decision. 627 Germany: BayObLG, NJW-RR 2003, 502 = SchiedsVZ 2003, 142, 144 = XXIX Y.B. Com. Arb. 754, 758 (2004). 628 Germany: BayObLG, NJW-RR 2003, 502 = SchiedsVZ 2003, 142, 144 = XXIX Y.B. Com. Arb. 754, 758 (2004).

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An award infra petita, i.e. an award which does not deal with all questions submitted 252 to the arbitral tribunal does not, in principle, give grounds for refusal of recognition and enforcement under Article V(1)(c).629 The grounds for refusal mentioned in Article V(1) are exhaustive; they are to be interpreted restrictively.630 Article V(1)(c) does not mention an award infra petita, nor does the wording “matters beyond the scope of the submission to arbitration” suggest the interpretation that such an award will constitute an excess of competence. Furthermore, the fact that Article V(1)(c) allows for recognition and enforcement in part (Õ para. 258) also supports the argument that an award that only addresses part of the submitted questions may still be enforced. However, a different view may be justified in (exceptional) circumstances, namely in cases in which only a comprehensive decision on all submitted issues can be regarded as a sensible compliance with the arbitrators’ duties under the arbitration agreement.631 In any case, where the failure of an arbitral tribunal to deal with questions submitted by the parties constitutes a violation of due process, refusal of recognition and enforcement may be justified under Article V(1)(b) (Õ para. 184). A ground for refusal of recognition and enforcement of the award is not given if the 253 arbitral tribunal has rendered its decision based on legal arguments different from the submissions of the parties.632 In line with this view, the US District Court for the Southern District of California held that the legal considerations of the arbitral tribunal were within the scope of the terms of reference signed by the parties.633 However, if an arbitral tribunal bases its award on considerations that are capable of surprising the parties, the arbitral tribunal exceeds its competence if it does not give the parties the opportunity to respond to these considerations.634 In this case, the defense under Article V(1)(c) with respect to the agreement of the parties overlaps with the scope of Article V(1)(b) concerning the parties’ right to be heard (as to Article V(1)(b), Õ para. 192). In a case where the arbitral tribunal relied on evidence not provided by the parties 254 but obtained through its own investigation, the court held that the arbitral tribunal had not exceeded its authority since the matters to which the evidence related were covered by the arbitration agreement.635 629 Luxemburg: CA, XXI Y.B. Com. Arb. 617, 624 (1996); CA, XXIVa Y.B. Com. Arb. 714, 720 (1999); UNCITRAL Secretariat, Guide, Art. V(1)(c) para. 14; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 103; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 16; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 277; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 para. 4; van den Berg, NYC, p. 320 (referring to Article 2(2) of the Geneva Convention of 1927 [Õ Annex V 2] which expressly dealt with an award not covering “all the questions submitted to the arbitral tribunal” as a defense to recognition and enforcement). 630 Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 277; van den Berg, NYC, p. 320. 631 Cf. Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 42; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 267. 632 US: Ministry of Def. & Support for the Armed Forces of The Islamic Republic of Iran v. Cubic Def. Sys., Inc., XXIVa Y.B. Com. Arb. 875, 877 (1999) (S.D. Cal. 1998); Azeredo da Silveira/Levy, in: Gaillard/ Di Pietro (eds), NYC in Practice, pp. 639, 653; Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 272. 633 US: Ministry of Def. & Support for the Armed Forces of The Islamic Republic of Iran v. Cubic Def. Sys., Inc., XXIVa Y.B. Com. Arb. 875, 877 (1999) (S.D. Cal. 1998). 634 France: Cass., Rev. arb. 2006, 653 (the court considers this issue with reference to due process); cf. also Switzerland: BG, 33(2) ASA Bull. 406 (2015) (proceedings for the setting aside of an international award rendered in Switzerland; discussion in relation to due process); Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 655; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 104 (referring to a possible violation of the right to be heard under Article V(1)(b)). 635 UK: Minmetals Germany GmbH v. Ferco Steel Ltd., [1999] CLC 647 = [1999] 1 All E.R. 315, 327 = XXIVa Y.B. Com. Arb. 739, 741 (1999).

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The arbitral tribunal exceeds its authority where it renders an award against a nonsignatory to the arbitration agreement.636 However, in such cases mere changes of a company’s name have to be distinguished. The Higher Regional Court of Bremen, e.g., held that a change in the name of a company did not change that company’s “substantive-law identity.”637 The court accordingly refused to grant a motion for vacatur of the award.

4. Causality 256

The wording of Article V(1)(c) does not explicitly require that the excess of authority must have affected the arbitral award. However, it has been argued that refusal of recognition and enforcement due to an excess of authority requires a causal connection between the defect and the outcome of the award.638 The requirement of causality is rarely addressed in court decisions on Article V(1)(c), potentially because a causal connection between a decision on matters outside the arbitral agreement and the outcome of the award will be self-evident in cases in which an arbitral tribunal exceeds its authority by deciding matters it was not supposed to decide. In such cases the very decision on matters not submitted to arbitration is part of the outcome of the award. However, the requirement of causality becomes relevant where the arbitral tribunal has exceeded its competence by applying incorrect rules to the substance of the dispute (Õ paras 235 et seq.). In such cases it will not always be evident that this defect has affected the outcome of the award. In cases involving the application of incorrect rules to the substance of the dispute, it is justified to require a causal connection between the excess of authority and the outcome of the award (concerning similar remarks on Article V(1)(b) and (d) Õ para. 142 and Õ paras 316 et seq.).

5. Preclusion/Waiver 257

It is generally accepted that the party resisting enforcement of the award may, under certain circumstances, be barred from raising a defense under Article V(1)(c) in the exequatur proceedings.639 Preclusion may, in particular, occur if the party resisting enforcement has taken part in the arbitral proceedings without objecting to the jurisdiction or competence of the arbitral tribunal when it had the opportunity to do so (as to preclusion in general, Õ paras 48 et seq.).640 The European Convention (Õ Annex V 3), for instance, expressly provides for preclusion with respect to objections to the competence of the arbitral tribunal (Õ Art. VII paras 75 et seq.). Pursuant to Article V(2) of the European Convention, a party may not raise objections to the jurisdiction of the arbitral tribunal if it has failed to raise this objection during the arbitral proceedings as required by Article V(1) of the European Convention. 636 Russia: Federal Arbitrazh Court, Urals District, XXXIII Y.B. Com. Arb. 687, 693 (2008); US: Fiat S.p.A. v. Ministry of Fin. & Planning of the Republic of Surin., 1989 WL 122891 (S.D.N.Y. 1989) = XXIII Y.B. Com. Arb. 880, 882 (1998); Port/Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 277. 637 Germany: OLG Bremen, BB 2000, Beil. 12, p. 18 = XXXI Y.B. Com. Arb. 640, 643 (2006). 638 Cf. Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.437. 639 Cf. Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.438; van den Berg, NYC, p. 266; with regard to preclusion in general, Õ paras 46 et seq. 640 Germany: OLG Koblenz, IPRspr. 2012, No. 297, 699 = NJOZ 2013, 271, 272; OLG Hamburg, BeckRS 2016, 00538; cf. also Germany: BGH, NJW 2011, 1290 = ZIP 2011, 302 = XXXVI Y.B. Com. Arb. 273, 276 (2011) (at para. 12 – obiter); Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 643; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 107; van den Berg, NYC, p. 266.

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V. Partial Recognition and Enforcement 1. Separability of Decision on Matters Submitted to Arbitration from Those Not so Submitted Article V(1)(c) empowers the exequatur court to enforce an award in part if it 258 contains matters submitted to arbitration that can be separated from matters not so submitted. The concept of partial enforcement under Article V(1)(c) represents a general underlying principle of the Convention, which also applies in relation to other grounds for refusal or recognition and enforcement under Article V (Õ paras 81 et seq.).641 The decisive prerequisite for partial recognition and enforcement is the separability 259 of the decision(s) on matters found to exceed the authority of the arbitral tribunal from the decision(s) on matters which are in accordance with the submission to arbitration. While Article V(1)(c) does not specify how exactly such separability is to be determined, a broad and generous approach is to be adopted in this regard, taking into account the underlying purpose of the Convention to facilitate the enforcement of arbitral awards.642 While it is difficult to establish a general standard or definition of separability, since the determination will largely depend on the circumstances of the individual cases, some guidance may be found in the following decisions: Where parts of an award contained a decision against a party that was not a signatory 260 to the underlying arbitration agreement, the US District Court for the Southern District of New York held that the respective parts of the award were separable from the parts binding a (different) signatory party.643 In a case where the agreement of the parties distinguished between technical and non-technical issues and only the latter were to be resolved by local arbitration in Syria (while technical matters were to be referred to international arbitration), the Trento Court of Appeal reasoned that a separation between the respective parts of the award was possible.644 On the basis of a “logical” separation, the court granted partial recognition.645

2. Recognition and Enforcement Insofar as Matters Were Submitted to Arbitration While the wording of Article V(1)(c) seems to merely permit the exequatur court to 261 enforce an award in part (“may be recognized and enforced”),646 refusal of partial recognition and enforcement should be limited to exceptional cases. While it has been argued that partial recognition and enforcement be granted only where a complete refusal of recognition and enforcement would lead to unjustified hardship,647 the better arguments militate in favor of the contrary position. According to this latter view, partial recognition and enforcement of an award is mandatory where a clear separation 641 Cf. Born, International Commercial Arbitration, p. 3434 (stating that partial enforcement is “more generally applicable as a matter of principle”). 642 Cf. Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 106; Port/ Bowers/Davis Noll, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 276. 643 US: Fiat S.p.A. v. Ministry of Fin. & Planning of the Republic of Surin., 1989 WL 122891 (S.D.N.Y. 1989) = XXIII Y.B. Com. Arb. 880, 882 (1998). 644 Italy: CA Trento, VIII Y.B. Com. Arb. 386, 387 (1983). 645 Italy: CA Trento, VIII Y.B. Com. Arb. 386, 387 (1983). 646 Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 676; Blackaby/ Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.81; van den Berg, NYC, p. 319. 647 Van den Berg, NYC, p. 319.

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is possible between the parts of the award that are covered by the arbitration agreement and those which are not.648 In favor of the latter view, it can be argued that the wording of Article V(1)(c) does not impose any requirements for partial recognition and enforcement other than separability. It would contravene the wording as well as the purpose of the Convention to allow partial enforcement only in case of incidental or minor excesses of authority.649

H. Improper Tribunal Composition or Flawed Proceedings, Article V(1)(d)650 I. Overview 262

Pursuant to Article V(1)(d), the exequatur court may deny recognition and enforcement in case the arbitral tribunal was improperly constituted or the arbitral procedure was conducted in a flawed manner. In determining whether or not the requirements of either alternative are met, the underlying agreement between the parties is determinative.651 In the absence of any specific party agreement on this point, the requirements imposed by the law of the seat of the arbitration are to be applied.652 In particular with regard to its second alternative, Article V(1)(d) overlaps with the grounds of Article V(1)(b) (also Õ paras 151 et seq.), as well as Article V(2)(b).653

II. Spirit and Purpose Under the New York Convention, the parties have considerable freedom in determining the course of the arbitration, including the composition of the arbitral tribunal. Article V(1)(d) safeguards that freedom by warranting that the agreement of the parties is respected and given effect in the country where enforcement is sought. Accordingly, under Article V(1)(d), an arbitral award based on a procedure that violates the parties’ agreement concerning the composition of the arbitral tribunal or the conduct of the proceedings may not be granted recognition and enforcement. 264 Article V(1)(d) explicitly provides that in this context the law of the place of arbitration only serves a subsidiary and supplementary function. Accordingly, national law is to be applied only where the parties did not reach an agreement or where the agreement does not cover the procedural aspect in dispute. By providing for the subsidiary application of national law, Article V(1)(d) reduces the risk of an award not being enforced due to particularities of national law.654 This is in line with the underlying pro-enforcement bias of the Convention, i.e. the general concept of facilitating, rather than impeding, the enforcement of arbitral awards (Õ Art. III paras 7 et seq.). 263

648

Born, International Commercial Arbitration, p. 3434. See also Azeredo da Silveira/Levy, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 639, 676. 650 We would like to thank Viola Vorbrüggen and Leonard Funk for their support with this chapter. 651 Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18 et seq. = XXXI Y.B. Com. Arb. 640, 645 (2006); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 108. 652 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 108; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 282. 653 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 117; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 282. 654 Cf. E/2822, p. 21 (Õ Annex IV 1). 649

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III. Drafting History During the drafting process relating to Article V(1)(d), the question of how much 265 weight was to be given to the compliance of the composition of the arbitral tribunal and of the arbitral procedure with the law of the place of arbitration was subject to extensive and controversial discussion.655 This discussion arose against the background of the corresponding provision of the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 (Õ Annex V 2). Pursuant to Article 1(2)(c) of the Geneva Convention, the enforcement of the award could be denied if the composition of the arbitral tribunal did not comply with the agreement of the parties and, cumulatively, with the requirements of the applicable law. The result of this rule was that the requirements of the law at the place of arbitration had to be complied with in every case, irrespective of the existence or non-existence of an agreement of the parties.656 By according equal weight to the parties’ agreement and the applicable law, Article 1(2)(c) of the Geneva Convention rendered a (potentially more liberal) agreement between the parties virtually irrelevant in cases where the applicable law had not been complied with. Referring to Article 1(2)(c) of the Geneva Convention, the ICC proposed a wording 266 in its draft Convention of 1953, pursuant to which an award was to be “international” and thus completely independent of the requirements of national laws.657 In 1955, the United Nations Economic and Social Council (ECOSOC) Committee on the Enforcement of International Arbitral Awards issued its draft Convention, in which it referred to the ICC proposal and adopted a skeptical stance towards the idea of an “international” award. Though generally in favor of enhancing the status of the agreement between the parties, the ECOSOC Committee was of the opinion that complete independence from national laws might imply ousting the jurisdiction of the respective State and might thus lead to injustice and abuse.658 The ECOSOC Committee suggested a new wording, pursuant to which the composition of the arbitral tribunal and the arbitral procedure had to be in accordance with the agreement of the parties to the extent that this agreement “was lawful in the country where the arbitration took place.”659 The requirement of the agreement being “lawful in the country where the arbitration 267 took place” in particular was rejected in the further drafting process, particularly by representatives from Austria and Germany. It was argued that such wording would allow refusal of recognition and enforcement due to any slight difference between the parties’ agreement and the respective law and would therefore run counter to the aim of facilitating the enforcement of awards.660 The wording was considered to “recognize party autonomy only to destroy it immediately.”661 On the other hand, a representative of Turkey argued that the provision should not convey the impression that the parties could make their agreement independent of any law.662

655

See the travaux préparatoires (Õ Annex IV 1); van den Berg, NYC, pp. 34 et seq. Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.82; van den Berg, NYC, p. 323. 657 ICC, ICC Brochure No. 174, p. 7 = 9(1) ICC Bull. 32 (1998) = E/C.2/373 (Õ Annex IV 1). 658 E/2704, paras 43 et seq. (Õ Annex IV 1). 659 E/2704, para. 45 (Õ Annex IV 1). 660 E/2822, pp. 21 et seq. (Õ Annex IV 1). 661 E/CONF.26/SR.14, p. 5 (Õ Annex IV 1). 662 E/CONF.26/SR.14, p. 5 (Õ Annex IV 1). 656

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While the wording of Article V(1)(d) eventually agreed upon was similar to the text suggested by the ICC draft Convention of 1953, the drafters did not intend the provision to be understood exactly as the ICC had proposed. In the words of the Italian delegate, “the wording was not meant to convey the idea that the parties could agree to disregard all national laws and determine some special procedure applicable to their case alone.”663 Under Article V(1)(d), national law serves a subsidiary function. Accordingly, if the parties did not reach any agreement with respect to the composition of the arbitral tribunal or the arbitral proceedings and also if a certain point is not dealt with by an existing agreement664, the law of the place of arbitration is the relevant standard.665

IV. Improper Tribunal Composition 269

The exequatur court can deny the recognition and enforcement of an arbitral award if the composition of the arbitral tribunal was not in accordance with the requirements imposed by the agreement of the parties or, in the absence of such agreement, the law of the place of arbitration.

1. Governing Rules 270

a) Party Agreement and Its Limits The correct composition of the arbitral tribunal is to be measured primarily against the agreement of the parties.666 The parties are free to agree on the procedure to be applied in the composition of the arbitral tribunal. In this respect, they have the opportunity to choose the law applicable to the appointment of arbitrators. Alternatively, the parties can agree on their own selection procedure, which is independent of and may deviate from particular provisions of the law of the seat of arbitration.667 That the parties are free to do so can be deduced by way of a contextual comparison of Article V(1)(d) to Article V(1)(a). While the latter provision expressly refers to a “law” chosen by the parties and not to an agreement in general, Article V(1)(d) subjects the composition of the arbitral tribunal to the agreement of the parties.668 Article V(1)(d) thus refers to more than a mere choice of law by the parties. Accordingly, the exequatur court is required to review the conformity of the award with such agreement of the parties itself, independently of provisions of national law.

663

E/CONF.26/SR.17, p. 10 (Õ Annex IV 1). Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 288. 665 Italy: CA Firenze, IV Y.B. Com. Arb. 294, 295 (1979). 666 Israel: The Ukrainian Ministry of Material Provisions v. Vioans Ltd., CLOUT Case No. 1172; Singapore: AMZ v. AXX, CLOUT Case No. 1660; Switzerland: BG, BGE 108 Ib 85 = JdT 1982 I 367 = IX Y.B. Com. Arb. 437, 438 (1984); US: Polimaster Ltd. v. RAE Sys., Inc., 623 F.3d 832, 836–837 (9th Cir. 2010); Calbex Mineral Ltd. v. ACC Res. Co., 90 F. Supp. 3d 442 (W.D. Pa. 2015) = XL Y.B. Com. Arb. 563 (2015); Ventura de Rendon v. Ventura, 2018 WL 4496300 (S.D. Fla. 2018) = XLIV Y.B. Com. Arb. ___ (2019); Born, International Commercial Arbitration, p. 3560; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.443; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 108; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 47; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 17; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.82; van den Berg, NYC, p. 324. 667 Switzerland: BG, BGE 108 Ib 85 = JdT 1982 I 367 = IX Y.B. Com. Arb. 437, 439 (1984); Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.443; van den Berg, NYC, p. 327. 668 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.443; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 284. 664

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Such agreement of the parties can be made expressly as well as impliedly.669 An 271 (implied) agreement on the procedural rules may, for instance, be made by the choice of a particular place of arbitration,670 leading to the application of the law of that place of arbitration (Õ para. 275). Furthermore, the parties may insert a choice of law clause into the contract. In this case, the court has to interpret the respective clause in order to determine whether it was also intended to cover the issues of tribunal composition or the arbitral procedure in general.671 Additionally, the participation of a party in the arbitral proceedings without raising any objection may be construed to be an implicit choice of the procedural law.672 The wording of Article V(1)(d) does not contain any explicit limitation on the 272 exercise of party autonomy as regards the rules applicable to the composition of the arbitral tribunal. However, it is disputed whether such choice of the parties is limited by the mandatory provisions of the law of the place of arbitration. It is argued that the parties have to observe such mandatory provisions because Article V(1)(d) is applicable to foreign awards at the exequatur stage. During the arbitral proceedings the parties’ agreement is subject to the mandatory provisions at the place of arbitration.673 Moreover, it is argued that the violation of mandatory provisions may lead to the setting aside of the award in the country of origin, which would constitute a ground for refusal under Article V(1)(e).674 However, it is more convincing to not consider the parties’ autonomy limited by 273 the mandatory provisions at the place of arbitration. As long as the award has not been set aside at its place of origin, there is no reason to disregard the agreement of the parties.675 As a consequence, the agreement of the parties should prevail even if it constitutes a violation of mandatory provisions in the country of origin.676 The latter view is supported by the wording of Article V(1)(d), which does not mention mandatory provisions at the seat of the arbitration. On the contrary, Article V(1)(d) grants priority to the agreement of the parties over the applicable national law. Furthermore, from a contextual perspective, Article V(1)(d) contains a ground for refusal distinct from that provided in Article V(1)(e). This distinction is of particular importance where the respective award has not been set aside, since in this case the requirements of Article V(1)(e) are not even fulfilled. As a result, under Article V(1)(d) the agreement of the parties prevails even over mandatory provisions at the seat of arbitration.677

669 Born, International Commercial Arbitration, p. 3561; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.447; Jarvin, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 729, 730; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 48. 670 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.447; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 48. 671 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 287. 672 Germany: BGH, BGHZ 96, 40, 42 = NJW 1986, 1436, 1437; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.447; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 48. 673 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 49; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 46 para. 3. 674 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 49. 675 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 108; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 291. 676 Switzerland: BG, BGE 108 Ib 85 = JdT 1982 I 367 = IX Y.B. Com. Arb. 437, 438 (1984); Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.443; Kröll, in: Böckstiegel/Kröll/ Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 108. 677 Born, International Commercial Arbitration, p. 3574; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.443; Lu, 23 Ariz. J. Int’l & Comp. L. 747, 759 (2006); van den Berg, NYC, p. 326.

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This does not mean, however, that the parties are entirely free to conclude agreements contrary to (mandatory) provisions of national law. While the agreement of the parties prevails over (mandatory) provisions of national law under Article V(1)(d), a violation of such mandatory provisions may meet the requirements of other sections of Article V, particularly Article V(1)(b) as well as Article V(2)(b).678 However, the potential violation of other, separate grounds for refusal under Article V cannot in itself be considered to restrict the autonomy of the parties within the scope of Article V(1)(d). The same applies with regard to possible violations of mandatory provisions of the State where recognition and enforcement of the award are sought. Such violations, while potentially relevant under Article V(2)(b), are equally irrelevant under Article V(1)(d).679

b) Law of the Country Where the Arbitration Took Place 275 In case there is no agreement between the parties, the law of the “country where the arbitration took place” is decisive with regard to the requirements of Article V(1)(d). The wording “country where the arbitration took place” is somewhat imprecise, since hearings may be conducted in different places, even in different countries, during the course of the arbitral proceedings.680 The phrase has to be read against the background of Article V(1)(a) and (e), which specifically refer to the law of the “country where the award was made,” i.e. the seat of the arbitration (Õ para. 116 and Õ para. 379). Article V(1)(d) is based on the same understanding. Under Article V(1)(d), recourse therefore has to be taken to the corresponding provisions at the seat of the arbitration in the absence of an agreement of the parties.681 276 The law at the seat of the arbitration also serves a complementary purpose with respect to those points not covered by an existing agreement between the parties.682 Where, for instance, the parties have agreed to a specific procedure for the appointment of arbitrators, but have failed to stipulate a procedure for the appointment by default (in case one party does not appoint an arbitrator), the law of the place of arbitration will be considered in order to fill this gap683 unless the parties have agreed on a specific law to be applied in case of gaps in their agreement.684 277 The question of whether the parties have reached an (express or implied) agreement – as well as the scope of such an agreement – has to be thoroughly examined in order to take account of the significance of party autonomy under Article V(1)(d). The law of the place of arbitration is only to be applied if – and to the extent – even an implied agreement of the parties cannot be found.685 It is a fundamental right of the parties to choose the arbitrators they regard most suitable, as well as the respective appointment procedure.686 The premature application of the law at the seat of the arbitration can 678 Switzerland: BG, BGE 108 Ib 85 = JdT 1982 I 367 = IX Y.B. Com. Arb. 437, 438 (1984); Haas/ Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.443; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 49; van den Berg, NYC, p. 324. 679 See as well Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 108. 680 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 288. 681 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 51; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 288; van den Berg, NYC, p. 323. 682 US: Polimaster Ltd. v. RAE Sys., Inc., XXXIV Y.B. Com. Arb. 1014 (2009) (N.D. Cal. 2009); Born, International Commercial Arbitration, p. 3576; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.449; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 51; van den Berg, NYC, p. 325. 683 Italy: CA Venezia, III Y.B. Com. Arb. 277 (1978). 684 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.449. 685 Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 PILS para. 72. 686 Born, International Commercial Arbitration, p. 3571.

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easily lead to a violation of Article V(1)(d). Recognition of an award has, for instance, been denied where the two party-appointed arbitrators, instead of choosing a third arbitrator as agreed upon by the parties, applied customary rules of the place of arbitration and continued without a third arbitrator. The Court of Appeal of Florence pointed out that the agreement of the parties prohibited any recourse to principles of the law or customary rules of the place of arbitration and refused enforcement on the ground of Article V(1)(d).687 If the parties have not made such a specific agreement, it has to be determined 278 whether they have agreed on a law (different from the law of the seat of arbitration) to govern the constitution of the arbitral tribunal. Only in case the parties have entered into neither agreement may recourse be taken to the law of the seat of arbitration.

2. Composition of the Arbitral Tribunal Not in Accordance with Governing Rules The term “composition of the arbitral tribunal” refers, inter alia, to the modalities of 279 the process of appointing the arbitrators688, but also to aspects relating to the members of the arbitral tribunal as such. The latter aspects may concern the number of arbitrators (Õ para. 286) or circumstances concerning the individual arbitrators themselves. In practice, this ground for refusal is not frequently put forward successfully, because in most cases the composition of the arbitral tribunal complies with the agreement of the parties, where such agreement exists.689 Moreover, in cases in which the composition of the arbitral tribunal deviates from the agreement of the parties, the subsequent behavior of the parties may reveal that they have mutually agreed on a modification of their original agreement.690 This can, for instance, be assumed if both parties appoint arbitrators who do not have a specific qualification originally stipulated by the parties. a) Appointment and Challenge of Arbitrators If the process of appointing the arbitrators is not in accordance with that specifically 280 agreed upon by the parties, the resulting award can be challenged under Article V(1)(d).691 687

Italy: CA Firenze, IV Y.B. Com. Arb. 294, 295 (1979). Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 111; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 289. 689 Born, International Commercial Arbitration, p. 3563; Jarvin, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 729, 731; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 282; van den Berg, NYC, p. 323. 690 Germany: OLG Dresden, CLOUT Case No. 454 = XXVIII Y.B. Com. Arb. 261 (2003) (in this case, both parties nominated arbitrators with qualifications different from those originally agreed upon. The court accordingly assumed a modification of the original agreement); Kröll, in: Böckstiegel/Kröll/ Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 112. 691 China: Hangzhou Intermediate People’s Court, Zhejiang, XXXIX Y.B. Com. Arb. 380 (2014) (in this case, the arbitration agreement provided for “arbitration before the Singapore International Arbitration Centre in accordance with the Rules of Arbitration of the International Chamber of Commerce.” The court denied recognition and enforcement of the resulting award on the grounds that SIAC had confirmed the chairman upon nomination by the party-appointed arbitrators (in accordance with SIAC Rules), but in violation of Article 8(4) of the ICC Rules of Arbitration. Pursuant to Article 8(4) of the ICC Rules, the chairperson is to be appointed by the ICC Court of Arbitration (unless the parties’ agreement provides otherwise). While the application of other arbitration rules to the process of constituting the arbitral tribunal can lead to a violation of Article V(1)(d), the result reached in the present case appears questionable because the party resisting enforcement had confirmed, during the constitution process, that it had no objection to the nominated chairman); US: Deiulemar Compagnia di Navigazione, S.p.A. v. Transocean Coal Co., XXX Y.B. Com. Arb. 990, 998 (2005) (S.D.N.Y. 2004); CEEG (Shanghai) Solar Sci. & Tech. Co. v. Lumos LLC, XLII Y.B. Com. Arb. 607 (2017) (10th Cir. 2016). 688

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For instance, the appointment process deviates from the agreement of the parties if an authority other than that provided for in the parties’ agreement appoints an arbitrator.692 In a case decided by the Hong Kong Supreme Court, it was held that an arbitral tribunal had not been properly constituted, since the arbitrators were to be appointed on the basis of a certain list, but had been chosen from a different list (albeit from a list provided by the same arbitral institution, in this case CIETAC).693 In a case decided by the US Court of Appeals for the Second Circuit, the third arbitrator had been appointed by the appointing authority in contravention of the requirements stipulated by the parties.694 The agreement of the parties provided for the participation of the authority only where the parties themselves could not agree on a third arbitrator. One party, however, had contacted the appointing authority and sought an appointment before even trying to reach an agreement with the other party. The US Court of Appeals for the Second Circuit assumed an improper composition of the arbitral tribunal.695 281 A ground for refusal can also result from irregularities with respect to the challenging of arbitrators.696 Recognition and enforcement can, e.g., be refused if a challenge is dismissed contrary to the rules applicable by virtue of the parties’ agreement.697 An irregularity was also assumed in a case where an arbitrator was removed by the wrong authority upon challenge of a party.698 The fact that a party did not actually have the opportunity to challenge an appointed arbitrator was deemed a ground for refusal – albeit not under Article V(1)(d), but under lit. b – in a case where the names of the arbitrators had not been communicated to the party.699 282

b) Predominant Position of One of the Parties According to some authors, recognition and enforcement may also be refused pursuant to Article V(1)(d) where one of the parties had a predominant position during the appointment process.700 In this context, it is uniformly recognized that such a prevalent position does not exist in cases in which a party fails to nominate an arbitrator within the applicable time limit and thus forfeits its right of appointment to the other party or to an appointing authority.701

692 US: Linley Inv. v. Jamgotchian, XLII Y.B. Com. Arb. 658 (2017) (9th Cir. 2016): In this case, the defendant argued that the sole arbitrator had not been appointed by the appointing authority designated in the arbitration agreement. The court held that on the evidence before it that this assertion was incorrect and that the arbitrator had in fact been appointed by the designated authority. It accordingly granted recognition and enforcement of the award; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 111. 693 Hong Kong: China Nanhai Oil Joint Service Corp. Shenzhen Branch v. Gee Tai Holdings Co. Ltd., XX Y.B. Com. Arb. 671, 672 (1995). 694 US: Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., XXX Y.B. Com. Arb. 1136 (2005) (2d Cir. 2005). 695 US: Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., XXX Y.B. Com. Arb. 1136, 1139 (2005) (2d Cir. 2005). 696 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 115. 697 Netherlands: Rechtbank Amsterdam, XXVIII Y.B. Com. Arb. 814, 817 (2003). 698 Germany: BayObLG, NJW-RR 2000, 360 (dealing with German law). 699 Germany: OLG Köln, ZZP 91 (1978), 318 = IV Y.B. Com. Arb. 258, 259 (1979). 700 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 114; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 291. See also, e.g., section 1034(2) of the German Code of Civil Procedure (ZPO), which prohibits arbitration agreements granting a prevalent position to one of the parties with respect to the appointment of arbitrators. 701 Germany: OLG Naumburg, May 21, 2004, 10 Sch 06/03 (unreported), available at http://www. disarb.org (last visited Apr. 29, 2019); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 114; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 291.

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Beyond the latter scenario, it is questionable whether a ground for refusal of 283 recognition and enforcement pursuant to Article V(1)(d) can be assumed where the arbitration agreement grants a predominant position to one of the parties. In cases in which the arbitral agreement itself provides one of the parties with a predominant position, it can hardly be argued that the composition of the arbitral tribunal was not in accordance with this agreement as required under Article V(1)(d). In addition, a party seeking to rely on a prevalent position of the other party as a 284 ground for refusal of recognition and enforcement will generally be precluded if it has not raised a respective objection in the course of the arbitral proceedings. Such preclusion follows from the prohibition of venire contra factum proprium, which constitutes a general principle underlying the Convention (with regard to preclusion, Õ paras 47 et seq.).702 c) Form of Appointment It does not constitute a ground for refusal if an arbitrator is appointed by telefax, 285 contrary to an arbitration agreement requiring written form. Such non-compliance with the form requirement is not sufficiently severe to justify refusal of recognition and enforcement.703 d) Number of Arbitrators The right of the parties to agree on the composition of the arbitral tribunal includes 286 the agreement on the number of arbitrators. Recognition and enforcement can, for instance, be denied where fewer arbitrators than agreed upon by the parties have rendered the award,704 unless the rules agreed upon provide for a decision by fewer arbitrators.705 The fact that the arbitral tribunal consisted of one rather than “two or more” arbitrators, as stipulated by the parties, constitutes a ground for refusal under the first alternative of Article V(1)(d).706 However, a different assessment is justified where a party fails to nominate an 287 arbitrator: recognition of an award rendered by a sole arbitrator – after the party who later challenged the award had failed to nominate a second arbitrator – was granted by the Spanish Supreme Court.707 The court held that, under these circumstances, the decision by a sole arbitrator was covered by the agreement between the parties.708 The court buttressed its decision by finding that the party which failed to nominate an arbitrator had evidently intended to frustrate the arbitration agreement.709 In a similar case, the US District Court for the District of Delaware held that the permissibility of an award by a sole arbitrator could be derived from the applicable English arbitration 702 Under German law, section 1034(2) ZPO requires a party objecting against the predominant position of the other party to move for the appointment of replacement arbitrators before the competent court within two weeks after such party has become aware of the composition of the arbitral tribunal. Where a party fails to raise the objection within the prescribed time limit, it is precluded from relying on this defect at a later stage. See further Germany: BGH, SchiedsVZ 2007, 163, 164; Lachmann, Handbuch, para. 2252 (each concerning German law, section 1059 ZPO). 703 Germany: BGH, NJW-RR 2001, 1059, 1060 = IPRax 2001, 580 = XXIX Y.B. Com. Arb. 700, 711 (2004). 704 Germany: BGH, SchiedsVZ 2008, 195, 196 = NJW 2008, 2718 = XXXIV Y.B. Com. Arb. 504 (2009); Italy: CA Firenze, IV Y.B. Com. Arb. 294, 295 (1979). 705 Germany: BGH, NJW-RR 2001, 1059, 1060 = IPRax 2001, 580 = XXIX Y.B. Com. Arb. 700, 710 (2004); OLG Köln, SchiedsVZ 2014, 203, 205 = XLI Y.B. Com. Arb. 484 (2016). 706 China: Tianjin Maritime Court, CLOUT Case No. 1577; Germany: OLG München, IPRspr. 2006, No. 206, 467 = OLGR München 2006, 404 = XXXIV Y.B. Com. Arb. 499 (2009). 707 Spain: TS, XI Y.B. Com. Arb. 527 (1986). 708 Spain: TS, XI Y.B. Com. Arb. 527 (1986). 709 Spain: TS, XI Y.B. Com. Arb. 527 (1986).

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statute (Õ para. 275).710 However, in cases in which neither the parties’ agreement nor the applicable arbitration law permit a party-appointed arbitrator to continue as sole arbitrator, continuing the arbitration with only one party-appointed arbitrator (acting as sole arbitrator) will result in a violation of Article V(1)(d).711 288 Depending on the circumstances of the individual case, in particular the specific agreement between the parties, the mere fact that the number of arbitrators rendering the award deviates prima facie from the parties’ agreement is not always a sufficient basis for assuming a ground for refusal under Article V(1)(d). For instance, the US Court of Appeals for the Second Circuit upheld an award rendered by two arbitrators of a three-member tribunal after the third arbitrator had resigned. The court considered the award by two arbitrators to be covered by the original agreement of the parties.712 In a case decided by the Higher Regional Court of Munich, the assertion that two rather than three arbitrators had rendered the award was rejected, because the third arbitrator had in fact participated in the deliberation process.713 The US District Court for the Southern District of New York rejected the challenge of an award on the grounds that the third arbitrator had been excluded from the deliberations (contrary to the parties’ agreement providing for three arbitrators). The court, referring to the “guidelines” provided by the arbitration clause, held that the rendering of the award by the majority of a three-member arbitral tribunal, without a dissenting arbitrator, did not qualify as a defense under Article V(1)(d).714 The Spanish Tribunal Superior de Justicia de Catalunya upheld an award that had been rendered by two instead of three arbitrators (as stipulated in the initial arbitration agreement). The court found that the parties had agreed, in an exchange of letters, to modify the original arbitration agreement to the effect that an award could be rendered by only two arbitrators, if they agreed on the decision (which was the case here).715 289 If the agreement of the parties refers to a set of arbitration rules with respect to the composition of the arbitral tribunal and these rules provide for discretion concerning the number of arbitrators, the eventual decision in favor of a three-member arbitral tribunal does not violate the agreement of the parties.716 290 As the above cases illustrate, the legitimacy of an award rendered by fewer arbitrators than originally agreed upon by the parties is primarily to be assessed in light of the arbitration agreement itself (also Õ para. 270). Subsidiarily, the arbitral rules717 chosen by the parties, as well as the lex arbitri718 in general are to be considered. 291

e) Qualification of Arbitrators The qualification of an arbitrator is a factor to be considered within the scope of Article V(1)(d). If an appointed arbitrator does not meet the requirements provided for 710 US: Al Haddad Bros. Enters. v. M/S Agapi, 635 F. Supp. 205 (D. Del. 1986) = XII Y.B. Com. Arb. 549, 550 (1987). 711 China: Tianjin Maritime Court, CLOUT Case No. 1577. 712 US: Zeiler v. Deitsch, XXXIII Y.B. Com. Arb. 839, 850 (2008) (2d Cir. 2007). 713 Germany: OLG München, SchiedsVZ 2010, 169, 171 = OLGR München 2009, 679 = XXXV Y.B. Com. Arb. 371 (2010). 714 US: Deiulemar Compagnia di Navigazione, S.p.A. v. Transocean Coal Co., XXX Y.B. Com. Arb. 990, 999 (2005) (S.D.N.Y. 2004). 715 Spain: Tribunal Superior de Justicia de Catalunya, XLI Y.B. Com. Arb. 560 (2016). 716 US: Shaheen Natural Res. Co. v. Sonatrach, X Y.B. Com. Arb. 540, 545 (1985) (S.D.N.Y. 1983). 717 See, e.g., concerning an award rendered by the majority of an arbitral tribunal: Rule 28.5 SIAC of the Rules (2013), Article 32.1 of the HKIAC Rules (2018), section 39.4 of the DIS Rules (2018), Article 32(1) of the ICC Rules (2017), Article 33(1) of the UNCITRAL Rules (2010) or Article 26.5 of the LCIA Rules (2014). 718 See, e.g., section 1052(2) ZPO in German law.

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in the arbitration agreement, enforcement of a resulting award can be denied. Where a party fails to make use of its right to appoint an arbitrator within the given time limit and an arbitrator is therefore appointed by default, the appointing authority is required to take into account the qualifications agreed upon by both parties to the arbitration agreement.719 This scenario, however, has to be distinguished from cases in which the defaulting party unilaterally asks the appointing authority to appoint an arbitrator with specific qualifications. In such cases the appointing authority is not bound by the unilateral request of the defaulting party.720 The defaulting party is thus barred from arguing (at the exequatur stage) that the appointing authority did not take into account the qualification it had asked the appointing authority to consider.721 f) Incapacity of Arbitrators If an arbitrator is unable to properly perform his duties due to incapacity resulting 292 from, e.g., an illness or legal issues, this may lead to the refusal of recognition and enforcement, if such incapacity has been proven.722 However, where a judge is appointed as an arbitrator, failure to obtain the required permission from the relevant supervising authority to sit as an arbitrator does not constitute a legal incapacity in the above sense and will not lead to the improper constitution of the arbitral tribunal.723 In this case, the requirement of obtaining permission merely concerns the relationship between the (prospective) arbitrator and his supervising authority; it is not pertinent in relation to the parties.724 g) Impartiality The fact that one of the arbitrators was not impartial can lead to a ground for refusal 293 under Article V(1)(d)725, if it is proven that the respective arbitrator was not impartial and participated in the rendering of the arbitral award.726 In principle, challenges to the impartiality of an arbitrator have to be put forward during the arbitration proceedings;727 Õ paras 305 et seq. In some jurisdictions, a lack of impartiality that is objected to after the award has been rendered must be of such gravity that it has affected the 719 See, e.g., Born, International Commercial Arbitration, p. 1430; Lachmann, Handbuch, para. 908; Nacimiento/Abt, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1035 para. 92 (concerning German law). See also Article 11(5) of the Model Law. 720 Cf. Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 112. 721 Germany: OLG Dresden, XXIX Y.B. Com. Arb. 673, 674 (2004); Kröll/Heidkamp, 18(3) Mealey’s Int’l Arb. Rep. 28, 33 (2003). 722 Germany: BGH, NJW 1986, 3079, 3080 (dealing with German law in force prior to the adoption of the UNCITRAL Model Law in Germany in 1998); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 114; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 291. 723 Germany: OLG Stuttgart, SchiedsVZ 2003, 84, 87; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 113; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 291. 724 Germany: OLG Stuttgart, SchiedsVZ 2003, 84, 87; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 291. 725 Germany: BGH, NJW-RR 2001, 1059, 1060 = IPRax 2001, 580 = XXIX Y.B. Com. Arb. 700, 711 (2004); BGH, BGHZ 65, 59 = NJW 1976, 109, 110 = JZ 1976, 245 (dealing with German law, section 1041 ZPO, in force prior to the adoption of the UNCITRAL Model Law in 1998); Israel: The Ukrainian Ministry of Material Provisions v. Vioans Ltd., CLOUT Case No. 1172; Born, International Commercial Arbitration, p. 3587; Lachmann, Handbuch, para. 2616. 726 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 116; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 293. 727 Switzerland: BG, 34(1) ASA Bull. 134 (2016) (in relation to proceedings for the setting aside of an international award); US: AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 139 F.3d 980 (2d Cir. 1998) = XXIVa Y.B. Com. Arb. 813, 814 (1999); Kröll, in: Böckstiegel/ Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 116.

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295b

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award and renders it contrary to public policy, thus constituting a ground for refusal under Article V(2)(b) (Õ para. 530).728 Generally, courts tend to apply high standards in the verification of partiality.729 The US District Court, Middle District of Florida, Tampa Division, e.g., considered it insufficient for a party to allege that an arbitrator had a “relationship” with the other party.730 The court required substantiated evidence in order to assume partiality.731 Similarly, the Hong Kong Court of Appeal refused to assume the partiality of an arbitrator on the basis of the assertion by one of the parties that the arbitral tribunal had disregarded “more credible evidence.” The court stated that it was not in a position to form any conclusive view as to what mistakes the arbitrators could have, but had not, avoided. The court pointed out that it had not been sufficiently assisted to draw adverse inferences and that, from the facts before it, it was not convinced of the arbitrator’s bias. According to the court, “instances in which bias may be inferred from alleged blatant errors or irrational conduct which a court could not investigate must be rare.”732 With regard to an award rendered under the auspices of the Chinese arbitration institution CIETAC, the Tokyo High Court reasoned that the fact that a party was “one of a number of government-controlled companies in China” was not sufficient in order to assume a lack of impartiality.733 Occasionally, parties resisting recognition and enforcement assert the partiality of an arbitrator because the arbitrator in question and the opposing party’s counsel are members of the same arbitral organization or because they both serve (in other cases) as arbitrators in proceedings pursuant to the same arbitral rules. Such circumstances in and of themselves do not give rise to justified doubts as to an arbitrator’s impartiality as they do not lead to a conflict of interest and are insufficient to substantiate an allegation of bias.734 In line with the strict standards to be met for the purpose of substantiating an allegation of bias, the Higher Regional Court of Jena declined to apply Article V(1)(d) in a case where the respondent alleged bias on the part of an arbitrator, asserting that “arbitrations such as the present one constituted her main source of income” and that she had mainly been appointed by State parties. The court held that these contentions as such were not sufficient to prove bias on the part of the arbitrator.735 In addition, the 728 Germany: BGH, NJW 1986, 3027, 3028 = XII Y.B. Com. Arb. 489, 490 (1987); BGH, NJW-RR 2001, 1059, 1060 = IPRax 2001, 580 = XXIX Y.B. Com. Arb. 700, 711 (2004); KG, XXXII Y.B. Com. Arb. 309, 311 (2007); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 116; Kröll/Heidkamp, 18(3) Mealey’s Int’l Arb. Rep. 28, 33 (2003); Lachmann, Handbuch, para. 2616. 729 Germany: OLG Hamm, RIW 1994, 1052 = XXII Y.B. Com. Arb. 702, 704 (1997) (allegation of partiality not supported by evidence); Netherlands: Arrondissementsrechtbank Zutphen, XXII Y.B. Com. Arb. 766 (1997) (objection regarding partiality based on mere allegations rather than submitted facts); US: Scandinavian Reins. Co. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, 75 (2d Cir. 2012) (proceedings for annulment of the award under the FAA); Landmark Ventures, Inc. v. Insightec, Ltd., 63 F. Supp. 3d 343 (S.D.N.Y. 2014); see also Born, International Commercial Arbitration, p. 3589. 730 US: HSN Capital LLC v. Productora y Comercializador de Television, S.A. de C.V., 2006 WL 1876941 (M.D. Fla. 2006) = XXXII Y.B. Com. Arb. 774, 776 (2007). 731 US: HSN Capital LLC v. Productora y Comercializador de Television, S.A. de C.V., 2006 WL 1876941 (M.D. Fla. 2006) = XXXII Y.B. Com. Arb. 774, 776 (2007). 732 Hong Kong: Logy Enterprise Ltd. v. Haikou City Bonded Area Wansen Products Trading Co., [1997] 2 HKC 481 = XXIII Y.B. Com. Arb. 660, 661 (1998). 733 Japan: Tokyo High Court, XX Y.B. Com. Arb. 742, 743 (1995) (in this case, the objection as to the lack of impartiality referred to the institution rather than to the arbitrators, although all three arbitrators were also Chinese nationals). 734 Germany: OLG Frankfurt, SchiedsVZ 2008, 96. 735 Germany: OLG Jena, XL Y.B. Com. Arb. 422, 424 (2015), noting that the respondent – as was apparent from the procedural history as provided in the award – had expressly agreed to the appointment of the arbitrator in question.

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court observed that the previously stated legal opinion of the arbitrator with regard to certain relevant points of law (here: applicability of the so-called most-favored-nationprovision to issues of jurisdiction) did not call into question that arbitrator’s impartiality.736 Issues giving rise to doubts as to an arbitrator’s impartiality have to be disclosed 296 immediately at any stage of the arbitral proceedings.737 Depending on the circumstances of the specific case, failure to disclose such circumstances as soon as the respective arbitrator becomes aware of them can aggravate the impression of bias and increase justified doubts as to the arbitrator’s impartiality.738 However, a party intending to challenge an arbitrator based on such circumstances must do so within reasonable time. Where the applicable arbitration rules provide time limits for such challenges,739 these time limits are to be observed. Failure to comply with applicable time limits or (where no specific time limits are prescribed) failure to mount the challenge within reasonable time will generally result in preclusion (Õ para. 305).740 With regard to the public policy defense in such scenarios, Õ paras 530 et seq. h) Other Issues The fact that an arbitral tribunal has not managed to issue an award within the time 297 limits provided in the agreed procedural rules does not lead to the irregular composition of the arbitral tribunal under the first alternative of Article V(1)(d), since the expiry of the time limit does not ipso facto lead to the termination of the mandate of the arbitral tribunal.741 Unless otherwise provided for by the parties, the establishment of a time limit is meant to expedite the proceedings as far as possible. The termination of the mandate of the arbitral tribunal, however, would run counter to this intention. A termination of the mandate is thus only to be assumed where the parties’ agreement (or the applicable rules) set forth the termination of the arbitrators’ mandate in case the time limit expires (with regard to time limits also Õ para. 347).

736 Germany: OLG Jena, XL Y.B. Com. Arb. 422, 424 (2015); cf. also LG Bonn, NJW 1996, 2168; OLG Hamburg, SchiedsVZ 2003, 191. 737 Most arbitration rules explicitly provide for such duties of disclosure, see, e.g., Article 11(2), (3) of the ICC Arbitration Rules (2017); Section 9(4) of the DIS Rules (2018); Rule 14(4), (5) of the SIAC Arbitration Rules (2016); see also Froitzheim, Ablehnung, pp. 147 et seq. 738 Cf., e.g. Fry/Greenberg/Mazza, Secretariat’s Guide, para. 3-393; cf. also France: CA Reims, Nov. 2, 2011, reported by Bertrand Derains and Yves Derains, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 29, 2019). The court held that the arbitrator had a duty to disclose the relevant circumstances irrespective of the arbitrator’s current position within the law firm (in this case as “of counsel”) or the amount of fees actually received by the law firm. It is to be noted, however, that this decision has been overturned on other grounds (failure of the party resisting enforcement to challenge the respective arbitrator within the time limit prescribed by the applicable ICC Arbitration Rules), see France: Cass., Rev. arb. 2015, 85, 87. With respect to duties to disclose ties with the parties to the arbitration, also related to this particular case, see also Crivellaro, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, pp. 309, 311 et seq. 739 Cf., e.g., Article 14(2) of the ICC Arbitration Rules, which provides: “For a challenge to be admissible, it must be submitted by a party either within 30 days from receipt by that party of the notification of the appointment or confirmation of the arbitrator, or within 30 days from the date when the party making the challenge was informed of the facts and circumstances on which the challenge is based if such date is subsequent to the receipt of such notification.” 740 France: CA Paris, Rev. arb. 2016, 643. 741 France: Cass., Bull. civ. 1999 II No. 31, p. 22; Germany: BGH, NJW 1988, 3090, 3091 = RIW 1988, 642 = XV Y.B. Com. Arb. 450, 452 (1990) (referring to the six-month time limit provided for in the ICC Rules in force at the time of the decision); see also Germany: OLG Koblenz, IPRspr. 2012, No. 297, 699 = NJOZ 2013, 271, 272; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 114.

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New York Convention

The Italian Supreme Court considered an arbitral tribunal improperly constituted in a case in which a respondent in arbitral proceedings had raised its counterclaim in separate arbitral proceedings before a different arbitral tribunal.742 The agreement of the parties provided for two alternative places of arbitration, depending on which of the parties acted as claimant. The Italian Supreme Court held that the second arbitral tribunal had been improperly constituted, since the counterclaim should have been raised before the first, preexisting arbitral tribunal.743 Based on the arbitration agreement and finding that each party had objected to the proceedings initiated by the other party, the court found that the parties’ common intention was to conduct only one arbitration.744 299 The mere allegation that an arbitrator did not properly apply and was not familiar with the applicable law does not provide sufficient grounds to deny the enforcement of the award.745 The failure to apply the applicable law properly is an issue relating to the merits of the case rather than to the composition of the arbitral tribunal.746 A refusal of recognition and enforcement based on an improper application of the law would cross the line to a prohibited révision au fond (Õ paras 19 et seq.). Only where the parties have specifically provided for such qualifications of the arbitrator(s) may a lack of familiarity with the applicable law constitute a ground for refusal pursuant to Article V(1)(d). However, it has to be borne in mind that the exequatur court will be limited to reviewing the qualifications of the arbitrator(s) in such cases. The court is not permitted to review the arbitral award on the merits. Depending on the point in time at which the respective arbitrator’s lack of qualification became apparent, a party seeking to resist recognition and enforcement on this ground will often face the additional hurdle of preclusion (Õ paras 46 et seq., Õ para. 305). 298

3. Causality 300

The wording of Article V(1)(d) does not, in addition to the requirements dealt with above, explicitly require that the alleged defect must have affected the award. However, German courts and authors in particular tend to require such a causal connection.747 Decisions dealing with an alleged partiality of arbitrators in particular state the requirement that the partiality must have affected the eventual award.748 The requirement of causality is also discussed in a decision by the Higher Regional Court of Karlsruhe dealing with the appointment of an arbitrator by the wrong authority.749 In this decision, the court left open the question as to whether an improper composition of 742

Italy: Cass., XXXII Y.B. Com. Arb. 390, 394 (2007). Italy: Cass., XXXII Y.B. Com. Arb. 390, 394 (2007). (After the initiation of the first arbitration in Stockholm, the other party commenced a second arbitration concerning the counterclaim in Beijing. The party which had initiated the proceedings in Stockholm objected. It could not participate in the arbitration in Beijing, since the hearing dates in Stockholm and Beijing overlapped). 744 Italy: Cass., XXXII Y.B. Com. Arb. 390, 394 (2007). 745 US: Steel Corp. of the Philip. v. Int’l Steel Servs., Inc., XXXII Y.B. Com. Arb. 789, 794 (2007) (W.D. Pa. 2006). 746 US: Venture Global Eng’g, LLC v. Satyam Computer Servs., Ltd., 233 Fed. Appx. 517 (6th Cir. 2007) = XXXIII Y.B. Com. Arb. 970, 974 (2008). 747 Germany: BayObLG, XXX Y.B. Com. Arb. 568, 572 (2005); OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019); OLG Köln, SchiedsVZ 2014, 203, 204 = XLI Y.B. Com. Arb. 484 (2016); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.453; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 99; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 53; Nacimiento, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 298. 748 Switzerland: BG, 32(2) ASA Bull. 326 (2014). 749 Germany: OLG Karlsruhe, SchiedsVZ 2008, 47 = XXXIII Y.B. Com. Arb. 541 (2008). 743

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the arbitral tribunal was to be assumed, since it had not been demonstrated that a different appointment procedure would have led to a different ruling.750 While the requirement of causality and other restrictive prerequisites such as the gravity of the violation or the prejudice caused to a party are frequently discussed in the context of the second alternative of Article V(1)(d) (flawed proceedings, Õ paras 308 et seq.), the requirement of causality is less frequently considered in relation to the first alternative of Article V(1)(d) (improper tribunal composition). It has been argued that the wording of Article V(1)(d) does not allow for different requirements between the two alternatives of the provision and that causality is therefore a necessary requirement in both alternatives.751 Taking into account, however, that the wording of Article V(1)(d) is completely silent on the issue of causality, this argument is not entirely compelling. Rather, the wording of Article V(1)(d) is open in this regard. On the contrary, it should be taken into consideration that the scenario contemplated by the first alternative of Article V(1)(d) – the improper composition of the arbitral tribunal – is different from the scenario under the second alternative (irregular proceedings). In the case of irregular proceedings, it is generally possible to determine whether or not a certain violation of procedural rules has affected the outcome of the proceedings. However, it is hardly possible to determine whether the (improper) appointment of a specific arbitrator has led to a decision that would not have been reached if another arbitrator had been appointed. The party opposing recognition and enforcement under the first alternative of Article V(1)(d) – the party bearing the burden of proof in this respect752 – cannot reasonably be expected to prove that a different outcome would have resulted from the appointment of a different arbitrator. It is virtually impossible to state (and prove) how different members of an arbitral tribunal would have ruled and how their points of view might have developed during the proceedings and discussions among the arbitrators, potentially influencing the positions of the other arbitrators as well. If it were necessary for the party opposing enforcement to prove that the improper tribunal composition did in fact lead to an outcome different from the outcome that would have been reached by a properly constituted arbitral tribunal, the first alternative of Article V(1)(d) would hardly have any effect in practice. However, the parties’ right to appoint the arbitrators they trust and consider best suited for the task is a fundamental right in arbitration. To allow violations of this fundamental right to remain largely without sanction in practice is not an acceptable result. For these reasons, the preferable view is that where an arbitral tribunal has not been properly composed, a causal connection between the improper tribunal composition and the outcome of the proceedings has to be presumed.753 The importance of a party’s right to appoint the arbitrator of its choice justifies a partial reversal of the burden of proof in this context. The party relying on the first alternative of Article V(1)(d) therefore only has to prove 750

Germany: OLG Karlsruhe, SchiedsVZ 2008, 47, 48 = XXXIII Y.B. Com. Arb. 541, 546 (2008). Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 299. 752 Germany: OLG Schleswig, XXIX Y.B. Com. Arb. 687, 693 (2004); OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019); Kröll, in: Böckstiegel/Kröll/ Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 109; Nacimiento, in: Kronke/Nacimiento/ Otto/Port (eds), NYC, p. 299. 753 Kreindler/Schäfer/Wolff, Kompendium, para. 1093 (dealing with German law, section 1059 ZPO); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 109; see also: Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 PILS para. 74: irregularity in the composition of the arbitral tribunal constitutes per se a ground for refusal of recognition and enforcement, “irrespective whether or not such irregularity eventually had an impact on the arbitral award.” 751

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Article V 304a–307

New York Convention

that the arbitral tribunal has been improperly constituted.754 It is then up to the party seeking recognition and enforcement to prove that the improper composition of the arbitral tribunal did not affect the outcome of the proceedings. 304a A similar view was adopted by the German Federal Supreme Court in its decision of December 11, 2014, where the court held that an arbitral tribunal had been improperly constituted because one of the arbitrators had been successfully challenged before the competent court (the court’s ruling was handed down after the arbitral award had been rendered). The Federal Supreme Court held that, under such circumstances, the causality requirement was already fulfilled if it was merely possible that the arbitral tribunal would have reached a different decision without the challenged arbitrator. The court further held that a causal connection between the improper tribunal constitution and the award was to be presumed, even if the award had been rendered unanimously.755

4. Preclusion/Waiver A party may be precluded from relying on the irregular composition of an arbitral tribunal as a ground for refusal if such party did not object to the composition at an earlier stage of the proceedings,756 in particular by challenging an arbitrator. The concept of preclusion is generally accepted (Õ para. 48), although it is not explicitly contained in the wording of Article V(1)(d). 306 For instance, the US District Court for the Southern District of New York held, though rather cautiously, that the objection to the composition of the arbitral tribunal is “more appropriately asserted to the arbitration panel itself.”757 The Supreme Court of Hong Kong assumed estoppel in a case in which a party did not object directly to the arbitral tribunal when the arbitrators had been appointed by means of the wrong list.758 The US Court of Appeals for the Fifth Circuit held that the party challenging the award had had “numerous opportunities” to object to the selection of arbitrators and thus assumed preclusion at the exequatur stage.759 307 In line with this reasoning, the Spanish Supreme Court considered the fact that a party participated in the appointment of the arbitral tribunal and in the arbitration to be an “unequivocal sign” that the composition of the arbitral tribunal was in accordance with that party’s intention.760 Generally, in cases in which the party opposing recognition and enforcement has participated in the appointment of the arbitral tribunal without reservation and has not raised any objections against the composition of the arbitral tribunal in a timely manner, such party will be barred from asserting any defect 305

754 Germany: OLG Köln, SchiedsVZ 2014, 203, 205 = XLI Y.B. Com. Arb. 484 (2016), cf. also Wilske/ Markert, in: Vorwerk/Wolf (eds), BeckOK ZPO, sect. 1061 para. 38. 755 Germany: BGH, NJW-RR 2015, 1087. 756 Germany: OLG München, IPRspr. 2006, No. 206, 467 = OLGR München 2006, 404 = XXXIV Y.B. Com. Arb. 499 (2009); OLG Stuttgart, BeckRS 2003, 18189, also available at http://www. disarb.org (last visited Apr. 29, 2019); Italy: Cass., XXI Y.B. Com. Arb. 602, 605 (1996); Spain: TS, XI Y.B. Com. Arb. 523 (1986); Switzerland: BG, XXXVI Y.B. Com. Arb. 340, 342 (2011); US: Imperial Ethiopian Gov’t v. Baruch-Foster Corp., 535 F.2d 334 (5th Cir. 1976) = II Y.B. Com. Arb. 252 (1977); Born, International Commercial Arbitration, pp. 3585, 3605; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.455; Jarvin, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 729, 756; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 110; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 299; Froitzheim, Ablehnung, pp. 129 et seq. 757 US: Shaheen Natural Res. Co. v. Sonatrach, X Y.B. Com. Arb. 540, 545 (1985) (S.D.N.Y. 1983). 758 Hong Kong: China Nanhai Oil Joint Service Corp. Shenzhen Branch v. Gee Tai Holdings Co. Ltd., XX Y.B. Com. Arb. 671, 672 (1995). 759 US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXIX Y.B. Com. Arb. 1262, 1281 (2004) (5th Cir. 2004). 760 Spain: TS, XXX Y.B. Com. Arb. 617, 619 (2005).

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in this regard at a later stage. In this context, time limits prescribed by the applicable arbitration rules are to be observed in order to avoid preclusion (also Õ para. 296).

V. Flawed Proceedings Pursuant to the second alternative of Article V(1)(d), recognition and enforcement of 308 an award can be denied if the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place.

1. Governing Rules Whether the arbitral proceedings are to be considered flawed in the sense of Arti- 309 cle V(1)(d) is to be determined by reference to the agreement of the parties.761 The law of seat of the arbitration only has a subsidiary and supplementary role (Õ para. 264). a) Party Agreement Within the scope of Article V(1)(d), the parties are free to agree on rules for the 310 entire arbitral procedure. As stated in relation to the composition of the arbitral tribunal (Õ para. 270) – which in this respect can hardly be separated from the “arbitral procedure” –, the parties may establish their own set of rules or refer to the rules provided by an arbitral institution or by national law.762 The agreement of the parties concerning the arbitral procedure prevails, at least 311 under Article V(1)(d), irrespective of the requirements of mandatory national law (Õ para. 273).763 As to the form of the parties’ agreement, Õ para. 271. b) Law of the Country Where the Arbitration Took Place The law of the seat of arbitration serves a subsidiary function in the context of 312 Article V(1)(d). It is to be applied absent an agreement of the parties or with respect to procedural aspects not dealt with by the parties’ agreement.764 Apart from that, the compliance of the arbitral procedure with the procedural laws of the arbitral seat is not to be reviewed by the exequatur court.765

2. Arbitral Proceedings Not in Accordance with Governing Rules The first requirement for establishing a ground for refusal under Article V(1)(d) is 313 that the arbitral procedure contravened the parties’ agreement or the (subsidiarily) applicable law (i.e. the law at the seat of the arbitration). The standard of review under 761 Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18 et seq. = XXXI Y.B. Com. Arb. 640, 645 (2006); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 108. 762 Korea: Sup. Ct., CLOUT Case No. 1294; Switzerland: BG, BGE 108 Ib 85 = JdT 1982 I 367 = IX Y.B. Com. Arb. 437, 438 (1984); Gaillard/Savage, Fouchard Gaillard Goldman, para. 1702; Jarvin, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 729, 741. 763 Switzerland: BG, BGE 108 Ib 85 = JdT 1982 I 367 = IX Y.B. Com. Arb. 437, 438 (1984); Gaillard/ Savage, Fouchard Gaillard Goldman, para. 1702; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 291. 764 Brazil: Superior Tribunal de Justiça, XXXVII Y.B. Com. Arb. 195 (2012) = CLOUT Case No. 1485; US: InterCarbon Bermuda, Ltd. v. Caltex Trading & Transp. Corp., 146 F.R.D. 64 (S.D.N.Y. 1993) = XIX Y.B. Com. Arb. 802, 803 (1994) (applying the law of the United States); Born, International Commercial Arbitration, p. 3576. 765 Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18 et seq. = XXXI Y.B. Com. Arb. 640, 645 (2006) (the court assumed that the agreed upon arbitration rules were to be given priority over Turkish law as the law of the place of arbitration); Born, International Commercial Arbitration, p. 3576.

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Article V 314–317

New York Convention

Article V(1)(d) in this regard is dependent on the individual agreement of the parties and – in the absence of such agreement or a gap therein – the applicable law. All of these factors vary greatly in practice. Whether the first prerequisite of Article V(1)(d) is met will therefore largely depend on a thorough interpretation of the parties’ agreement and the individual circumstances of the case.766 314 In this context, the term “arbitral procedure” is to be interpreted broadly, i.e. it is considered to start with the initiation of the arbitral proceedings (in particular the filing of a request for arbitration with an arbitral institution or – in ad hoc proceedings – the receipt of a notice of arbitration by the defendant party) and end with the rendering of the award.767

3. Additional Criteria for Procedural Irregularities 315

Despite the provision’s broad wording, the standard of flawed proceedings under Article V(1)(d) is high. Not every slight deviation from the applicable procedural rules can be successfully put forward in order to serve as a ground for a refusal of recognition and enforcement. On the contrary, exequatur courts expressly recognize the Convention’s approach in favor of enforcement.768 In addition, in many cases the agreement between the parties, as well as the (subsidiarily) applicable law, grant considerable discretion to the arbitral tribunal regarding the conduct of the proceedings.769 In line with the aforementioned, the US District Court for the District of Columbia reasoned that the purpose of Article V(1)(d) was not “to permit reviewing courts to police every procedural ruling made by the arbitrator.”770 The scope of review by the exequatur court is restricted by the prohibition of a révision au fond (Õ para. 19).

a) Causality In order to distinguish between such deviations from the parties’ agreement (or the subsidiarily applicable law) that will lead to a ground for refusal under Article V(1)(d) and other deviations which will not, it is necessary to apply a second criterion, namely the prerequisite of causality. 317 The requirement of causality is not expressly contained in the wording of Article V(1)(d), nor does the wording provide that a deviation from the agreed procedure must carry a 316

766 Cf. Korea: Sup. Ct., CLOUT Case No. 1294. In this case, the Korean Supreme Court refused recognition and enforcement of an award that had been rendered under the auspices of a different arbitral institution than had been stipulated in the arbitration agreement. While the arbitration agreement provided for ICC arbitration, the award had been rendered under the auspices of the Construction Industry Arbitration Commission (CIAC), Philippines. 767 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.440; Jarvin, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 729, 730; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 117; Id., 5(5) Int. A.L.R. 160, 170 (2002); Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 293; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 52. 768 Hong Kong: China Nanhai Oil Joint Service Corp. Shenzhen Branch v. Gee Tai Holdings Co. Ltd., XX Y.B. Com. Arb. 671, 678 (1995) (also referring to the discretion of the exequatur court); US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXIX Y.B. Com. Arb. 1262, 1278 (2004) (5th Cir. 2004); Compagnie des Bauxites de Guinée v. Hammermills, Inc., 1992 WL 122712 (D.D.C. 1992) = XVIII Y.B. Com. Arb. 566, 570 (1993). 769 US: Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434 (11th Cir. 1998) = XXIVa Y.B. Com. Arb. 819, 826 (1999) (referring to the AAA Rules); Born, International Commercial Arbitration, p. 3562 et seq.; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 117; Id., 5(5) Int. A.L.R. 160, 171 (2002); Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 282; van den Berg, NYC, p. 323. 770 US: Compagnie des Bauxites de Guinée v. Hammermills, Inc., 1992 WL 122712 (D.D.C. 1992) = XVIII Y.B. Com. Arb. 566, 570 (1993).

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318–319 Article

V

certain weight in order to constitute a ground for refusal.771 However, it is recognized that the procedural defect must have been “essential” to the award, meaning that it was causal to the arbitral tribunal’s decision, so that the decision would have been different without the defect.772 The requirement of causality prevents outcomes that would force the parties to commence new arbitral proceedings where such new proceedings would eventually lead to the same result.773 In this context, the exact formulation of the requirement of causality varies among courts and authors, especially with respect to distinctions as regards alternative or additional requirements such as the gravity of procedural irregularities (Õ para. 319) or substantial prejudice to one party (Õ para. 320).774 The most convincing approach, however, is to require that the procedural irregularity has affected the award, i.e. the outcome of the dispute. A party asserting a ground for refusal under Article V(1)(d) therefore has to prove that, 318 for instance, if the arbitral tribunal had followed a party’s offer of proof, this would have affected the arbitral tribunal’s decision.775 In line with this approach, the Higher Regional Court of Schleswig reasoned that no procedural irregularities could be assumed where the challenging party did not prove the award was based on the alleged defect of the arbitral tribunal not having heard all witnesses.776 Similarly, in a case where a party put forward that its right to examine witnesses had been violated, the Higher Regional Court of Stuttgart rejected the argument, holding that the party had not proved which additional questions it would have asked and how the award had been affected.777 b) Gravity As an alternative to the requirement of causality, it is also suggested to distinguish 319 between defects according to their respective gravity under the provisions of the applicable procedural law.778 However, this approach fails where national law is not applicable, e.g. because it is superseded by party agreement.779 More importantly, a determination 771 Cf. Gaillard/Savage, Fouchard Gaillard Goldman, para. 1701; Jarvin, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 729, 745. 772 Austria: OGH, Apr. 13, 2011, 3 Ob 154/10h (unreported), available at https://www.ris.bka.gv.at (last visited Apr. 29, 2019); Germany: BayObLG, XXX Y.B. Com. Arb. 568, 572 (2005); OLG München, SchiedsVZ 2010, 169, 171 = OLGR München 2009, 679 = XXXV Y.B. Com. Arb. 371 (2010); OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019); Singapore: AMZ v. AXX, CLOUT Case No. 1660; UK: China Agribusiness Development Corp. v. Balli Trading, XXIVa Y.B. Com. Arb. 732 (1999); Eastern European Engineering Ltd. v. Vijay Construction (Pty.) Ltd., [2018] EWHC 2713 (Comm); cf. also UNCITRAL Secretariat, Guide, Art. V(1)(d) paras 38 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.452; Jarvin, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 729, 745; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 109; Lachmann, Handbuch, para. 2612; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 17; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 284. 773 Germany: BayObLG, XXX Y.B. Com. Arb. 568, 572 (2005); cf. also Born, International Commercial Arbitration, p. 3565; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 109; Lachmann, Handbuch, para. 2619; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 299. 774 Cf. Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.453; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 298. 775 Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18 et seq. = XXXI Y.B. Com. Arb. 640, 645 (2006); OLG Frankfurt, SchiedsVZ 2014, 206, 208 = XLI Y.B. Com. Arb. 480, 482 (2016); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVIII Y.B. Com. Arb. 434 (2013); Õ para. 142 as well. 776 Germany: OLG Schleswig, XXIX Y.B. Com. Arb. 687, 693 (2004). 777 Germany: OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019). 778 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 53; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 57 para. 13; Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 PILS para. 75. 779 Cf. Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.454.

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Article V 320–322

New York Convention

according to the applicable national law would contravene the Convention’s objective of achieving uniform standards as to the recognition and enforcement of arbitral awards, since the relevant standards under different national laws vary and the same procedural defect may be considered material in one jurisdiction, but immaterial in another. Hence, it is preferable to autonomously examine whether a procedural irregularity was causal to the award, i.e. whether it has affected the outcome of the proceedings.780 c) Substantial Prejudice In some cases the emphasis is not put on the defect having affected the award, but on the question as to whether a party was (substantially) prejudiced by the procedural irregularity.781 Accordingly, the US District Court for the Southern District of New York held that where an award is delayed, the party challenging the award has to prove that it was prejudiced by such delay.782 As the above case illustrates, the requirement of substantial prejudice also requires a causal connection, albeit not between the defect and the award, but rather between the defect and a specific prejudice to the party opposing enforcement. This approach will lead to similar results as the causality requirement in cases in which the defect has led to a detriment within the award, since in such cases it will have affected the award. However, in cases in which the procedural defect has led to a detriment outside the award (such as, e.g., a delayed, but otherwise unaffected award), it appears questionable whether refusal of recognition and enforcement is the appropriate remedy (also Õ para. 347). Indeed, the requirement of causality appears preferable for determining whether a specific non-compliance with the parties’ agreement (or the subsidiarily applicable law) provides a sufficient ground for refusal and recognition under Article V(1)(d). 321 However, despite the varying approaches within the second alternative of Article V(1)(d) – causality, gravity or (substantive) prejudice – in many cases the same result will be reached in practice, particularly since not all court decisions thoroughly distinguish between the different views.783 320

4. Preclusion/Waiver 322

Generally, the principle of preclusion as discussed above (Õ para. 305) also applies with regard to the second alternative of Article V(1)(d). A party is thus barred from invoking the defense of flawed proceedings at the exequatur stage if it failed to raise a respective objection during the course of the arbitral proceedings.784 In line with this 780

Cf. Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.454. Canada: Food Services of America, Inc. v. Pan Pacific Specialties Ltd., XXIX Y.B. Com. Arb. 581, 586 (2004); UK: Tongyuan (USA) International Trading Group v. Uni-Clan Ltd., XXVI Y.B. Com. Arb. 886, 888 (2001); China Agribusiness Development Corp. v. Balli Trading, XXIVa Y.B. Com. Arb. 732, 736 (1999); US: Compagnie des Bauxites de Guinée v. Hammermills, Inc., 1992 WL 122712 (D.D.C. 1992) = XVIII Y.B. Com. Arb. 566, 570 (1993); P.T. Reasuransi Umum Indon. v. Evanston Ins. Co., XIX Y.B. Com. Arb. 788, 789 (1994) (S.D.N.Y. 1992); Born, International Commercial Arbitration, p. 3565. 782 US: Fiat S.p.A. v. Ministry of Fin. & Planning of the Republic of Surin., 1989 WL 122891 (S.D.N.Y. 1989) = XXIII Y.B. Com. Arb. 880, 882 (1998). 783 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.454; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 298; UNCITRAL Secretariat, Guide, Art. V(1)(d) para. 44. 784 UK: China Agribusiness Development Corp. v. Balli Trading, XXIVa Y.B. Com. Arb. 732, 737 (1999) (concerning a party that raised an objection to the applied set of arbitration rules “only at the door of the enforcing court”); US: AO Techsnabexport v. Globe Nuclear Servs. & Supply, Ltd., XXXVI Y.B. Com. Arb. 407, 411 (2011) (4th Cir. 2010); Vanquish Worldwide LLC v. United Sadat Transp. & Logistics Co., Jan. 19, 2016 (unreported) (D. Wyo. 2016), available at http://newyorkconven tion1958.org/doc_num_data.php?explnum_id=3158 (last visited Apr. 29, 2019); Born, International Commercial Arbitration, p. 3585; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, 781

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Article V

reasoning, the Swiss Supreme Court considered a party estopped from relying on the allegedly unjustified appointment of a neutral expert by the arbitral tribunal since that party had missed the opportunity to object to the appointment during the arbitral proceedings.785 Similarly, the allegation that the arbitral tribunal had rejected a request for discovery was not found to constitute a ground for refusal under Article V(1)(d).786 In this regard, the US Court of Appeals for the Fifth Circuit reasoned that a party was barred from invoking this alleged procedural defect, since the party had not only failed to raise the objection during the arbitration proceedings, but had even withdrawn its request.787

5. Flawed Proceedings in Specific Procedural Situations Since the agreement between the parties is the primary standard for ascertaining 323 whether any procedural defect has occurred, the examination of any case under Article V(1)(d) largely depends on a thorough interpretation of the parties’ agreement, taking into account all relevant circumstances of the case. While it is therefore difficult to establish general criteria in this regard, some guidance may nevertheless be obtained from the case law set out below. a) Commencement and Early Stages of the Proceedings The agreement of the parties is the primary source for determining whether the 324 circumstances of the commencement of the arbitration provide a ground for refusal of recognition and enforcement. Problems often arise in relation to pre-arbitration requirements contained, e.g., in multi-tiered dispute resolution agreements.788 In accordance with the overarching principle of party autonomy, the question as to whether such pre-arbitration requirements can bar a party from initiating arbitration (prior to having gone through the prescribed steps) is first and foremost a question of interpreting the party’s agreement. Where such interpretation does not lead to the clear and unequivocal result that the 324a parties intended the stipulated pre-arbitration requirements to be mandatory jurisdictional hurdles, non-compliance with such requirements should generally not be considered to lead to flawed proceedings in the sense of Article V(1)(d). The voluntary character of the dispute settlement mechanisms typically prescribed as pre-arbitration requirements will speak – in most cases – against the assumption that the parties intended such requirements to be mandatory. Generally, requirements to negotiate prior to the initiation of arbitral proceedings will merely be of aspirational character.789 This approach is also reflected in the relevant case law: the Higher Regional Court of Celle, e.g., did not assume flawed proceedings where a party alleged that an agreed upon “pre-arbitration proceeding” had not been conducted.790 The court held that the para. 21.455; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 110; Jarvin, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 729, 756; Nacimiento, in: Kronke/Nacimiento/ Otto/Port (eds), NYC, p. 299. 785 Switzerland: BG, XI Y.B. Com. Arb. 538, 541 (1986). 786 US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXIX Y.B. Com. Arb. 1262, 1281 (2004) (5th Cir. 2004). 787 US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXIX Y.B. Com. Arb. 1262, 1281 (2004) (5th Cir. 2004). 788 Born/Šćekić, in: Caron/Schill/Smutny/Triantafilou (eds), Practising Virtue, p. 227; Berger, (2006) 22 Arb. Int’l 1; Kröll, ZVglRWiss 114 (2015), 545; cf. also Arntz, SchiedsVZ 2014, 237; Loos/Brewitz, SchiedsVZ 2012, 305. 789 Born/Šćekić, in: Caron/Schill/Smutny/Triantafilou (eds), Practising Virtue, pp. 227, 234 et seq. 790 Germany: OLG Celle, XXXII Y.B. Com. Arb. 322, 323 (2007).

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Article V 324b–326

New York Convention

parties’ agreement merely provided that the parties try to reach a settlement prior to entering into arbitration, but did not provide for formal pre-arbitration proceedings.791 Even where the parties have unequivocally provided for pre-arbitration requirements to be mandatory, non-compliance will typically not lead to flawed proceedings pursuant to Article V(1)(d). The fundamental importance of a party’s right to have access to arbitration as the agreed method of obtaining a final and binding judicial decision militates against any premature assumptions to the effect that the parties intended the prescribed pre-arbitration requirements as jurisdictional bars (such as, e.g., conditions precedent).792 324b Where the parties have provided for the application of a specific set of arbitration rules, such reference is typically – i.e. in the absence of a clear stipulation to the contrary – to be understood as referring to the version of such arbitration rules in force at the time of initiation of the arbitral proceedings.793 This view has also been adopted by exequatur courts in the past: in a case where the parties had agreed on a certain set of rules and the arbitral tribunal applied a revised version of these rules, the English High Court held that the agreement of the parties was to be construed as referring to the current rules at the time of the arbitration.794 In a similar case, the Higher Regional Court of Frankfurt rejected the argument that the arbitral tribunal had violated Article V(1)(d) by applying the UNCITRAL Arbitration Rules in force at the time the arbitral proceedings were commenced, instead of the older version of the UNCITRAL Arbitration Rules in force at the time the underlying contract had been concluded. The court noted that the arbitration agreement did not provide for the application of the UNCITRAL Arbitration Rules as in force at the time of conclusion of the contract. It thus held that the arbitral tribunal was not bound to apply the earlier version of the UNCITRAL Arbitration Rules and that applying the arbitration rules in force at the time of commencement of the proceedings was in accordance “with general principles of procedure.”795 The court further observed that the party resisting enforcement had not shown to what extent “the UNCITRAL Rules in force at the time of the conclusion of the lease contract would have been more favorable to it,” and that it had therefore also failed to demonstrate the necessary causality of the alleged infringement for the arbitral tribunal’s decision.796 325 Unless explicitly required by the parties’ agreement or the lex arbitri,797 a party’s representative does not have to be admitted to the bar. Accordingly, a party’s representation by a person not qualified as a lawyer will generally not render the arbitral procedure irregular under Article V(1)(d), provided that the agreement of the parties does not require otherwise.798 326 In contrast, irregular arbitral proceedings can be assumed where the arbitration takes place in two separate stages, contrary to an explicit agreement of the parties providing for the dispute to be settled in one and the same arbitral proceeding.799 791

Germany: OLG Celle, XXXII Y.B. Com. Arb. 322, 323 (2007). Born/Šćekić, in: Caron/Schill/Smutny/Triantafilou (eds), Practising Virtue, pp. 227, 243, 247 et seq. 793 Many arbitration rules explicitly provide for such a “dynamic” reference, e.g. Article 6(1) of the ICC Rules (2017). 794 UK: China Agribusiness Development Corp. v. Balli Trading, XXIVa Y.B. Com. Arb. 732, 734 (1999). 795 Germany: OLG Frankfurt, SchiedsVZ 2014, 206, 207 = XLI Y.B. Com. Arb. 480, 482 (2016). 796 Germany: OLG Frankfurt, SchiedsVZ 2014, 206, 207 et seq. = XLI Y.B. Com. Arb. 480, 482 (2016). 797 Most arbitration laws do not require a party to be represented by a lawyer, much less a lawyer admitted to the bar at the seat of the arbitration. Cf. with regard to the historical reasons of this tradition: Kneisel, Schiedsgerichtsbarkeit in Internationalen Verwaltungsunionen, pp. 1, 67 et seq. 798 Germany: OLG Celle, IPRspr. 2007, No. 218, 614 = XXXIII Y.B. Com. Arb. 524, 530 (2008). 799 Switzerland: Appellationsgericht Basel-Stadt, I Y.B. Com. Arb. 200 (1976). 792

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Article V

Conversely, the consolidation of disputes concerning two contracts into one arbitra- 327 tion contrary to the parties’ agreement can be considered a reason to deny recognition of an award.800 In contrast, the US Court of Appeals for the Fifth Circuit granted enforcement where a party alleged that the arbitral tribunal irregularly consolidated claims arising out of two separate contracts, reasoning that under the applicable rules the arbitral tribunal had discretion concerning the conduct of the proceedings and the consolidation was the result of a careful analysis of the parties’ contract.801 The Higher Regional Court of Karlsruhe denied recognition of an award where a 328 party objected to the jurisdiction of the arbitral tribunal and the tribunal assumed its own jurisdiction without notifying the objecting party contrary to the applicable law.802 The court held that the tribunal thus prevented the objecting party from making use of a remedy against the decision of the tribunal so that a substantial violation of the applicable procedural rules was to be assumed.803 b) Conduct of the Proceedings and Taking of Evidence The arbitral tribunal generally enjoys considerable discretion in relation to the 329 conduct of the proceedings. However, to the extent that the parties have agreed on a specific procedure, this agreement must be observed by the arbitral tribunal. The paramount importance of the parties’ agreement is illustrated by a decision of the Higher Regional Court of Frankfurt of February 17, 2011: in this case the court denied recognition and enforcement because the arbitral tribunal had failed to comply with the parties’ agreement regarding the taking of evidence.804 A party agreement on procedure should, however, not be assumed lightly. Rather, it is necessary to distinguish with great care between – on the one hand – actual party agreements, which are binding and can only be changed or deviated from with the consent of both parties, and – on the other hand – orders on certain procedural steps issued by the arbitral tribunal after mere consultation with the parties. The latter will not be binding and can generally be changed at a later stage at the arbitral tribunal’s discretion,805 provided that the parties are treated equally. Procedural rules established in a procedural order issued by the arbitral tribunal will typically fall into the latter category, even where both parties have expressed assent to the arbitral tribunal’s proposal. The refusal of the arbitral tribunal to schedule an oral hearing constitutes a ground 329a for refusal of recognition only if the agreed upon rules or the lex arbitri provide for an obligatory hearing.806 The fact that the arbitral tribunal refused to schedule an oral

800

France: CA Versailles, Rev. arb. 1991, 326, 336. US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXIX Y.B. Com. Arb. 1262, 1278 (2004) (5th Cir. 2004). 802 Germany: OLG Karlsruhe, Mar. 3, 2005, 9 Sch 01/01 (unreported), available at http://www.disarb. org (last visited Apr. 29, 2019). 803 Germany: OLG Karlsruhe, Mar. 3, 2005, 9 Sch 01/01 (unreported), available at http://www.disarb. org (last visited Apr. 29, 2019). 804 Germany: OLG Frankfurt, SchiedsVZ 2013, 49. The decision also provides a cautionary tale concerning the wording of procedural orders. Arbitral tribunals are well advised to carefully reflect upon the precise wording of procedural orders setting out the procedural rules for the conduct of the arbitration (regarding, in particular, the taking of evidence). For a detailed discussion and practical drafting suggestions see: Wagner/Bühlau, SchiedsVZ 2013, 6; see also Wilske/Markert, in: Vorwerk/Wolf (eds), BeckOK ZPO, sect. 1042 para. 19. 805 Wagner/Bühlau, SchiedsVZ 2013, 6; Wilske/Markert, in: Vorwerk/Wolf (eds), BeckOK ZPO, sect. 1042 para. 19. 806 Germany: OLG Naumburg, NJW-RR 2003, 71, 72; BGH, NJW 1994, 2155 (both decisions deal with setting aside under German law, section 1059 ZPO); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 118. 801

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Article V 330–333

330

331

332

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hearing is not to be considered a violation of Article V(1)(d) if the arbitration rules on which the parties have agreed grant discretion to the arbitral tribunal in this respect.807 Where the arbitral tribunal did not postpone the date of the oral hearing upon the request of one party (which asserted “business problems” and did not manage to send a suitable representative), this was held not to constitute a defense against recognition and enforcement of the award.808 The re-scheduling of the hearing concerned a matter left to the arbitral tribunal’s discretion and was thus in principle not to be reviewed in substance. Nonetheless, if such a decision constitutes a violation of the absent party’s right to be heard it may lead to a defense under Article V(1)(b) (Õ paras 179 et seq.). In a case in which the arbitral tribunal had conducted the oral hearing at a place different from the place stipulated in the parties’ agreement, the English High Court held that the award was nevertheless to be enforced since the parties had not made it clear in their agreement that the location was “of critical importance.”809 The fact that an arbitral tribunal – while respecting the parties’ choice concerning the seat of arbitration – has held a meeting at a different location generally does not constitute a violation of the parties’ intent. This is different in cases in which the parties – aware of the distinction between the legal concepts of seat of arbitration and place of hearing – specifically stipulate for the hearing to be held in a certain location. Such an agreement between the parties is binding upon the arbitral tribunal. Nevertheless, such deviation from the agreed upon place of hearing does not necessarily lead to a ground for refusal of recognition under Article V(1)(d), since such violation may not affect the outcome of the proceedings. Likewise, the fact that the arbitral tribunal did not hear witnesses whose testimony had been offered by a party does not in itself establish a defense under Article V(1)(d) if the tribunal has discretion in this respect as well.810 The mere fact that the arbitral tribunal itself asked questions, contrary to the parties’ agreement, pursuant to which witnesses were to be examined by counsel, was not considered to qualify as a ground for refusal under Article V(1)(d) by the Higher Regional Court of Stuttgart.811 The court held that the party resisting enforcement had not made clear how the behavior of the arbitral tribunal had affected, i.e. deteriorated its position. This approach taken by the court also reflects the requirement of causality (Õ paras 316 et seq.) 807 Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18 et seq. = XXXI Y.B. Com. Arb. 640, 645 (2006); OLG Hamburg, XXV Y.B. Com. Arb. 714, 715 (2000); US: InterCarbon Bermuda, Ltd. v. Caltex Trading & Transp. Corp., 146 F.R.D. 64 (S.D.N.Y. 1993) = XIX Y.B. Com. Arb. 802, 804 (1994); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 118; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 294. 808 Germany: OLG Karlsruhe, SchiedsVZ 2006, 335, 336 = XXXII Y.B. Com. Arb. 342, 345 (2007) (in this case the court dealt with the issue referring to Article V(1)(b)). 809 UK: Tongyuan (USA) International Trading Group v. Uni-Clan Ltd., XXVI Y.B. Com. Arb. 886, 888 (2001). 810 Germany: OLG Naumburg, May 21, 2004, 10 Sch 06/03 (unreported), available at http://www. disarb.org (last visited Apr. 29, 2019); OLG Schleswig, XXIX Y.B. Com. Arb. 687, 694 (2004); OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019); cf. also Germany: OLG München, XXXIX Y.B. Com. Arb. 389 (2014); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVIII Y.B. Com. Arb. 434 (2013); UK: Cukurova Holding A.S. v. Sonera Holding B.V., XXXIX Y.B. Com. Arb. 516 (2014); US: Sonera Holding B.V. v. Çukurova Holding A.S., XXXVIII Y.B. Com. Arb. 483 (2013) (S.D.N.Y. 2012); cf. also US: Vanquish Worldwide LLC v. United Sadat Transp. & Logistics Co., Jan. 19, 2016 (unreported) (D. Wyo. 2016), available at http://new yorkconvention1958.org/doc_num_data.php?explnum_id=3158 (last visited Apr. 29, 2019); Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 107 (2d Cir. 2013): “[An arbitral tribunal] is not required to hear all the evidence proffered by a party, [but] must give each of the parties to a dispute an adequate opportunity to present its evidence and argument.” 811 Germany: OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019).

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Where a party alleged that the arbitral tribunal had not based its award on sufficient evidence, the Singapore High Court did not assume an improper arbitral procedure, since the objecting party had not participated in the proceedings and thus had not provided any evidence itself.812 The court held that, given the fact that the party had not made use of its opportunity to present its case, the party had “little right to criticize the way in which the arbitration had been conducted” and thus declined to assume a ground for refusal.813 In basing its decision on the party’s failure to participate in the arbitral proceedings, the court appears to have relied on the legal concept of preclusion. Generally, a party’s failure to participate in the arbitral proceedings will not lead to preclusion with regard to grounds for refusal (Õ para. 62). However, the result reached by the Singapore High Court appears correct, taking into account that the consideration of evidence by the arbitral tribunal is in principle not subject to scrutiny by the exequatur court.814 The District Court for the Southern District of New York held that the refusal of an arbitral tribunal to grant an extension of deadlines did not necessarily lead to a ground for refusal of recognition and enforcement, as long as the arbitral tribunal had a “reasonable basis” for this decision.815 The extension of deadlines is – absent an agreement of the parties or a provision in the applicable rules to the contrary – subject to the arbitral tribunal’s consideration within its discretion. The exercise of this discretion is generally not to be reviewed in substance by the exequatur court. Rather, review by the exequatur court in this regard is limited to the question as to whether the arbitral tribunal’s decision appears arbitrary or in violation of a party’s right to be heard. While the result reached by the court in this case was correct, it should be clarified that it is not for the exequatur court to review the conformity of the arbitral tribunal’s decision against the court’s standard of “reasonableness.” The proceedings are not in accordance with the agreement of the parties if the language used in the arbitration was not the one agreed upon by the parties.816 However, the use of a language other than the one originally stipulated by the parties was not considered to provide a ground for refusal under Article V(1)(d) in a case in which the representatives of both parties had subsequently agreed on the use of a different language.817 Similarly, the Higher Regional Court of Munich held that the arbitral proceedings had not been improperly conducted in Spanish where the parties had agreed on English as the language of the proceedings, while the agreed set of arbitration rules provided for the Spanish language.818 The application by the arbitral tribunal of a law other than the law chosen by the parties violates the agreement between the parties and thus constitutes a ground for 812 Singapore: Hainan Machinery Import and Export Corp. v. Donald & McArthy Pte Ltd., XXII Y.B. Com. Arb. 771, 774 (1997). 813 Singapore: Hainan Machinery Import and Export Corp. v. Donald & McArthy Pte Ltd., XXII Y.B. Com. Arb. 771, 775 (1997). 814 Germany: OLG München, XXXIX Y.B. Com. Arb. 389 (2014). 815 US: P.T. Reasuransi Umum Indon. v. Evanston Ins. Co., XIX Y.B. Com. Arb. 788, 790 (1994) (S.D.N.Y. 1992); Commercial Risk Reins. Co. v. Sec. Ins. Co. of Hartford, 526 F. Supp. 2d 424, 430 (S.D.N.Y. 2007): “[I]f the arbitrator [makes] a factual and procedural determination that under their governing rules proffered evidence is untimely […] absent evidence of misconduct that determination is beyond judicial review;” cf. also US: Landmark Ventures, Inc. v. Insightec, Ltd., 63 F. Supp. 3d 343 (S.D.N.Y. 2014): “Arbitrators must be empowered to enforce procedural deadlines.” 816 Austria: OGH, XXXIII Y.B. Com. Arb. 354, 358 (2008); Nacimiento, in: Kronke/Nacimiento/Otto/ Port (eds), NYC, p. 294. 817 Germany: OLG Celle, IPRspr. 2007, No. 218, 614 = XXXIII Y.B. Com. Arb. 524, 530 (2008). 818 Germany: OLG München, SchiedsVZ 2010, 169, 171 = OLGR München 2009, 679 = XXXV Y.B. Com. Arb. 371 (2010).

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refusal of recognition of the award pursuant to Article V(1)(d).819 However, the question of whether the arbitral tribunal applied the respective legal provisions correctly is not subject to review by the exequatur court, since such review would constitute a prohibited révision au fond (also Õ para. 244).820 c) Rendition of the Arbitral Award 338 The rendering of an arbitral award ex aequo et bono by an arbitral tribunal not authorized to do so constitutes a violation of the agreed procedural rules under Article V(1)(d), as well as an excess of competence under Article V(1)(c) (Õ paras 236 et seq.), and thus a ground for refusal of recognition and enforcement.821 339 If the arbitral tribunal grants relief not requested by either of the parties or awards a higher than requested amount – a violation of the principle of ne ultra petita –, this may constitute a defective arbitral procedure.822 However, a violation of ne ultra petita was not assumed where an arbitral tribunal awarded a minimum interest rate that had not been requested.823 The Higher Regional Court of Stuttgart reasoned that the awarding of interest was covered by the procedural rules agreed upon by the parties and the applicable law.824 Regarding awards rendered ultra petita within Article V(1)(c), Õ paras 245 et seq. as well. 340 Recognition of the award can be refused if the arbitral tribunal delegates its power to render a decision to an expert.825 The reverse scenario, in which an arbitral tribunal allegedly did not sufficiently take into consideration an expert opinion was not considered a ground for refusal by the Higher Regional Court of Koblenz, since merely the process of decision making was concerned in this case, not the arbitral procedure.826 A review of the arbitral tribunal’s decision with regard to the question of whether the

819 Germany: OLG Hamburg, NJW-RR 2000, 806 (dealing with setting aside under German law, section 1059 ZPO); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 122; Id., 5(5) Int. A.L.R. 160, 170 (2002). 820 Germany: BayObLG, XXX Y.B. Com. Arb. 568, 572 (2005); OLG Hamburg, NJW-RR 2000, 806; Italy: Cass., sez. un., XXXI Y.B. Com. Arb. 802, 805 (2006); US: Venture Global Eng’g, LLC v. Satyam Computer Servs., Ltd., 233 Fed. Appx. 517 (6th Cir. 2007) = XXXIII Y.B. Com. Arb. 970, 974 (2008); Deiulemar Compagnia di Navigazione, S.p.A. v. Transocean Coal Co., XXX Y.B. Com. Arb. 990, 999 (2005) (S.D.N.Y. 2004); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 122; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 296. 821 Germany: OLG München, SchiedsVZ 2005, 308, 309 (concerning section 1059 ZPO); OLG München, SchiedsVZ 2015, 303, 308; OLG Stuttgart, BeckRS 2003, 18189, also available at http://www. disarb.org (last visited Apr. 29, 2019); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 123; Lachmann, Handbuch, para. 2634; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 16; Bühler/Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 PILS para. 70. 822 Lachmann, Handbuch, para. 2636; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 297. 823 Germany: OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019). 824 Germany: OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019). The court held that the tribunal’s decision was justifiable under Article 74 CISG whereas a review of the decision in detail was denied with reference to the prohibition of a révision au fond. 825 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 121; Münch, in: MünchKommZPO, sect. 1059 para. 37 (concerning German law, with reference to Germany: OLG Düsseldorf, BB 1976, 251, also dealing with German law); Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 298; cf. also Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 6.136; see also Iran-US Claims Tribunal: Starrett Housing Corp. v. The Government of the Islamic Republic of Iran (Case No. 314-24-1), XIII Y.B. Com. Arb. 271, 272 (1988). 826 Germany: OLG Koblenz, OLGR Koblenz 2004, 232, also available at http://www.disarb.org (last visited Apr. 29, 2019) (concerning German law, section 1059 ZPO); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 121.

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expert’s opinion had been “sufficiently” taken into account would have led to a révision au fond827 and was thus denied by the court. The failure of an arbitral tribunal to provide reasons for the award can constitute a ground for refusal pursuant to Article V(1)(d) if the parties’ agreement, the applicable arbitration rules or the applicable law require the award to contain reasons.828 By stipulating a reasoned award or by agreeing to a set of rules requiring a reasoned award, the parties obligate the arbitrators to reveal their application of legal rules to the facts of the dispute. The requirement of a reasoned award thus safeguards the parties’ interest in a decision rendered in accordance with defined laws, as opposed to a decision ex aequo et bono.829 Where the parties have not empowered the arbitral tribunal to act in this capacity, an arbitral tribunal’s decision ex aequo et bono or as amiable compositeur will constitute an excess of competence under Article V(1)(c) or (d) (Õ para. 338). An unreasoned award makes it highly difficult, if not impossible, for the parties to ascertain whether the arbitral tribunal has exceeded its competence in this respect. Furthermore, an unreasoned decision may make it impossible to review whether the arbitral tribunal has denied a party its right to be heard, e.g. by basing its ruling on “surprise findings” (Õ para. 185). While a review of the arbitral tribunal’s reasoning must not lead to a review of the award on the merits, an exequatur court is permitted to review whether a party was denied its right to be heard as a result of an arbitral tribunal’s failure to take into account relevant submissions pertaining to its most central arguments. The giving of reasons thus safeguards the parties against arbitrary decisions830 and makes it possible to ascertain whether, in the above scenarios, an arbitral tribunal has exceeded its competence or whether a party was denied its right to be heard. Reasons also make it possible to ascertain whether an excess of competence was causal to the outcome of the arbitration. Where no reasons are provided, on the other hand, it is not possible to ascertain whether such a causal connection exists. The existence of reasons is, in the above scenarios, a precondition for the application of the causality criterion. Where no reasons for a decision are given, it is not even possible to show that the failure to provide reasons had any impact on the decision as such. In light of the importance of reasons in ascertaining the above violations and their impact on the outcome of the dispute, it is submitted that the lack of reasons (in cases where reasons are required) in itself constitutes a ground for refusal of recognition and enforcement under Article V(1)(d). Accordingly, where no reasons are provided, it is not necessary – and indeed not possible – to show that the lack of reasons had an impact on the outcome of the dispute. Regarding a possible violation of public policy, Õ para. 557. Similarly, where the applicable arbitration rules stipulate that the award must contain reasons if such reasons are requested by at least one of the parties, the failure of the arbitral tribunal to comply with such a request for reasons will lead to flawed proceedings and thus constitutes a ground for refusal.831 However, the party alleging this 827

Cf. Zimmermann de Meireles, TDM 2 (2017), p. 2. Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18 et seq. = XXXI Y.B. Com. Arb. 640, 646 (2006); France: CA Paris, Rev. arb. 1989, 328, 334; Born, International Commercial Arbitration, p. 3570; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 52; Nacimiento, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 297. Contra: Canada: Food Services of America, Inc. v. Pan Pacific Specialties Ltd., XXIX Y.B. Com. Arb. 581, 586 (2004) (holding that the issuing of reasons is not part of the arbitral proceedings and that the party seeking to rely on the failure to issue reasons has to prove that the fairness of the decision-making process under the respective rules was affected by such failure). 829 Landau, in: van den Berg (ed.), 50 Years of NYC, pp. 187, 191 (providing further “reasons for reasons”). 830 Landau, in: van den Berg (ed.), 50 Years of NYC, pp. 187, 191 et seq. 831 Italy: Cass., IX Y.B. Com. Arb. 418, 420 (1984). 828

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ground for refusal of recognition has to prove that the applicable rules require that the award contain reasons.832 In a case where an award contained only brief reasons which did not deal with the individual arguments exhaustively, the Higher Regional Court of Bremen nevertheless considered the reasons to be sufficient according to the applicable rules and common practice under these rules.833 It is not the court’s task to examine whether the reasons provided are elaborated sufficiently. Concerning the standard to be applied by the exequatur court with respect to a reasoned award, the requirements are not strict.834 The obligation of the arbitral tribunal to provide reasons must not lead to an examination by the court as to the merits of the reasons provided, since such review would constitute a révision au fond.835 With regard to a review in relation to possible violations of the right to be heard, Õ para. 186. 345 Within the scope of application of the European Convention (Õ Annex V 3, also Õ Art. VII paras 75 et seq.), the presumption contained in its Article VIII also has to be taken into account. Generally, the European Convention is applicable pursuant to its Article I(1)(a) if the parties to the arbitration agreement have their habitual place of residence or their seat in different Contracting States. In such cases, the European Convention modifies the applicable procedural law of a Contracting State.836 According to Article VIII of the European Convention, it is presumed that the parties have agreed that the arbitral award shall contain reasons unless they have expressly declared otherwise (lit. a) or have assented to an arbitral procedure under which it is not customary to give reasons for awards (lit. b). In the latter case, reasons are nevertheless to be provided if a party expressly requests that the arbitral tribunal give reasons. The term “arbitral procedure” within the meaning of Article VIII(b) of the European Convention comprises both the applicable national arbitration law as well as the arbitration rules chosen by the parties.837 Where no reasons have been given in the award and where the presumption under Article VIII of the European Convention is not rebutted, the party invoking Article V(1)(d) may thus rely on the presumption of Article VIII of the European Convention in its defense.838 346 The Higher Regional Court of Celle rejected the argument that an award had not been duly communicated, holding that communication of the award to the parties’ representative was sufficient.839 In addition, the court held that communication of the award via e-mail was sufficient under the applicable law.840 347 A further potential ground for refusal of recognition and enforcement pursuant to Article V(1)(d) is an arbitral tribunal’s failure to conduct the arbitral proceedings within the time limits stipulated by the parties (also Õ para. 232).841 However, the stipulations of 832

Spain: TS, XI Y.B. Com. Arb. 523 (1986). Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18 et seq. = XXXI Y.B. Com. Arb. 640, 646 (2006) (with reference to the practice of Turkish courts). 834 Germany: OLG München, SchiedsVZ 2015, 303, 308. 835 Belgium: CA Bruxelles, 116 JT (1997) 319 = XXII Y.B. Com. Arb. 643, 665 (1997); see also Jarvin, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 729, 749. 836 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 52; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 297. 837 Adolphsen, in: MünchKommZPO, Annex 2 to sect. 1061, European Convention, Art. VIII para. 8. 838 Adolphsen, in: MünchKommZPO, Annex 2 to sect. 1061, European Convention, Art. VIII para. 15. Cf. Italy: Cass., IX Y.B. Com. Arb. 418, 420 (1984) (vacatur of the award as a result of failure to provide reasons). 839 Germany: OLG Celle, IPRspr. 2007, No. 218, 614 = XXXIII Y.B. Com. Arb. 524, 530 (2008). 840 Germany: OLG Celle, IPRspr. 2007, No. 218, 614 = XXXIII Y.B. Com. Arb. 524, 530 (2008) (with reference to Finnish law). 841 France: Cass., Rev. arb. 2006, 126; CA Paris, Rev. arb. 1996, 101 (referring to the contractual nature of arbitration); cf. also Germany: OLG Karlsruhe, BeckRS 2016, 13702 (holding, however, that the time 833

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the parties, as well as the particular circumstances of the case, have to be carefully weighed. The mere exceeding of a given time limit will not necessarily constitute a violation of the agreed procedure that would justify refusal of recognition and enforcement. Rather, unless highly exceptional circumstances render it particularly important to the parties that the award is issued within a specific time limit, a ground for refusal based on the failure of the arbitral tribunal to comply with such a time limit can only be assumed after the lapse of a significant time span. For instance, the exceeding of a time limit by five months was considered immaterial by the Highest Regional Court of Bavaria.842 In another case where time limits were alleged to have expired, the German Federal Supreme Court nevertheless enforced the award.843 The court reasoned that since the award had already been rendered, the purpose of time limits – to protect parties from undue delay – was no longer relevant.844 In a further case decided by the US District Court for the Southern District of New York, the losing party asserted that the arbitral tribunal should have closed the hearings at an earlier point in time and that the award should have been rendered within the time limit provided by the applicable arbitration rules of the American Arbitration Association (AAA). The arbitral award had been rendered 32 days instead of 30 days after the closing of the hearing. The court held that under the applicable AAA Rules, the closing of hearings was subject to the arbitral tribunal’s discretion.845 The court thus upheld the arbitral award in this regard. The latter case in particular illustrates that the mere exceeding of a time limit – in this case by two days – will in itself often not be sufficient to justify the assumption of flawed proceedings in the sense of Article V(1)(d). In a case in which the arbitral tribunal had issued an award against a person who 348 was not a party to the arbitration agreement, the Supreme Court of British Columbia assumed a ground for refusal under Article V(1)(d), reasoning that the arbitral procedure was not in accordance with the arbitration agreement.846 In this case, however, it appears preferable to consider an excess of jurisdiction on the part of the arbitral tribunal within the meaning of Article V(1)(c) (Õ para. 219, Õ para. 255) rather than flawed arbitral proceedings pursuant to Article V(1)(d).847 In a case where two arbitrators of a three-member arbitral tribunal had deliberated 349 and eventually rendered the award while it was not clear whether the third arbitrator had resigned or had been excluded from the deliberations, the German Federal Supreme Court held that the arbitral procedure violated the applicable procedural rules. Independent of the question of whether the third arbitrator had resigned or had been excluded, the applicable rules required that a substitute arbitrator be appointed if one member of the arbitral tribunal was prevented from participating in the rendering of the award.848 limit had been complied with in the case at hand); Born, International Commercial Arbitration, p. 3568; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 124; Bühler/ Cartier, in: Arroyo (ed.), Arbitration in Switzerland, Art. 194 PILS para. 71. 842 Germany: BayObLG, XXX Y.B. Com. Arb. 568, 572 (2005). 843 Germany: BGH, NJW 1988, 3090, 3092 = RIW 1988, 642 = XV Y.B. Com. Arb. 450, 453 (1990). 844 Germany: BGH, NJW 1988, 3090, 3092 = RIW 1988, 642 = XV Y.B. Com. Arb. 450, 453 (1990). 845 US: Fiat S.p.A. v. Ministry of Fin. & Planning of the Republic of Surin., 1989 WL 122891 (S.D.N.Y. 1989) = XXIII Y.B. Com. Arb. 880, 884 (1998). 846 Canada: Javor v. Francoeur, XXIX Y.B. Com. Arb. 596, 601 (2004). 847 Cf. Singapore: PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. Astro Nusantara International BV, [2014] 1 SLR 372 = CLOUT Case No. 1662: in this case the Singapore Court of Appeals held that an arbitral tribunal had exceeded its jurisdiction by rendering an arbitral award against respondents who were not parties to the arbitration agreement and who had not consented to being joined to the arbitration. 848 Germany: BGH, NJW 2008, 2718 = XXXIV Y.B. Com. Arb. 504 (2009) (the Federal Supreme Court confirmed the decision of the Higher Regional Court of Dresden, which had primarily based its decision

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The fact that only one party has paid the costs of the arbitral proceedings does not constitute a ground for refusal of recognition under Article V(1)(d).849 The US District Court for the Southern District of Florida held that there was no evidence that the arbitrator had decided in favor of the party who had made the payment for that very reason and that, accordingly, the arbitral proceedings had not been affected.850

I. Non-Binding Award, Article V(1)(e) I. Overview Article V(1)(e) provides for three separate grounds based on which the enforcement of a foreign arbitral award may be refused. It should be noted that Article V(1) uses the language “may be refused,” thereby rendering all these three defenses not absolute, but dependent on the court’s discretion (Õ paras 74–80).851 The first ground is that the award “has not yet become binding on the parties.” The second ground is that the award “has been set aside by a competent authority of the country in which, or under the law of which, that award was made.” The third ground is that the award “has been suspended by a competent authority of the country in which, or under the law of which, that award was made.” An additional important question that arises out of this provision is what constitutes the competent authority. This commentary provides a brief overview of the spirit and purpose behind Article V(1)(e) and its drafting history. It then gives a comprehensive overview of each defense and explains how the competent authority is ascertained. 352 Article V(1)(e) has been criticized for inviting domestic enforcement standards into the realm of international law (Õ Prel. Rem. para. 67).852 In fact, domestic law does play a key role in determining the binding force of the award, in determining whether the award has been set aside or suspended and in defining the applicable competent authority. Pieter Sanders, one of the drafters of the NYC, commenting on Article V(1)(e)’s dependence on domestic arbitration laws, observed: “I compare international arbitration with a young bird. It rises in the air, but from time to time it falls back on its nest.”853 351

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The language of Article V(1)(e) can only be properly understood if it is considered in light of its spirit and purpose. The main purpose of Article V(1)(e) was to remedy the shortcomings of the Geneva Convention of 1923 (Õ Annex V 2), the most onerous of which was the double exequatur (Õ para. 355; Õ Prel. Rem. para. 46; Õ para. 15) on the fact that the award had already been set aside in its country of origin (Belarus). Nonetheless, the Higher Regional Court reasoned that the procedure had been irregular, irrespective of whether the third arbitrator had withdrawn intentionally or had dissented and had thus been excluded by the other members of the panel, cf. Germany: OLG Dresden, SchiedsVZ 2007, 327 = XXXIII Y.B. Com. Arb. 510, 514 (2008)). 849 US: Nicor Int’l Corp. v. El Paso Corp., XXIX Y.B. Com. Arb. 1140, 1155 (2004) (S.D. Fla. 2003). 850 US: Nicor Int’l Corp. v. El Paso Corp., XXIX Y.B. Com. Arb. 1140, 1155 (2004) (S.D. Fla. 2003). 851 On the detailed analyses of the discretionary character of Article V(1)(e) see: Darwazeh, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, pp. 308–310; Liebscher, Healthy Award, pp. 387–388. 852 See e.g. Paulsson, 7 Am. Rev. Int’l Arb. 99 (1996); van den Berg, NYC, p. 355. 853 Sanders, in: United Nations (ed.), Experience and Prospects, pp. 3, 4.

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353a–355 Article

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requirement.854 Under Article V(1)(e) it therefore suffices to obtain an exequatur only in the country where enforcement is sought. The fact that the enforcement of an award was suspended in the country of the seat of the arbitration therefore does not qualify as setting aside under Article V(1)(e).855 The second major shortcoming of the Geneva Convention was its requirement to 353a refuse the enforcement of awards if they were contrary to the “principles of the law” of the enforcement State (Article 1(e) Geneva Convention), which meant that the party opposing enforcement may invoke a vast range of domestic defenses (Õ Prel. Rem. para. 47). A goal of Article V was to restrict (as much as possible) the grounds on which enforcement may be refused to clearly defined grounds (Õ para. 16).856 The third important goal of Article V was to shift the burden of proving the existence of one of these grounds to the party opposing enforcement (Õ para. 356, Õ para. 12, Õ para. 41).857 These three goals also advance the NYC’s grand purpose of liberalizing the enforce- 354 ment process for foreign arbitral awards (Õ Prel. Rem. para. 17, Õ Prel. Rem. paras 88–90). However, the NYC did not completely detach the fate of the award in the enforcement State from its fate in the State of the seat of arbitration. For the time being, this link continues to exist under the NYC. The “may” in Article V allows different domestic solutions in respect to recognition and enforcement, ranging from great deference to the decisions of the courts at the seat of arbitration to total independence for the enforcement judge from the fate of the award at the seat of arbitration.

III. Drafting History The most notable development of the NYC of 1958 was the abandonment of the 355 double exequatur, which was proposed by the Dutch delegation (Õ Prel. Rem. para. 53; Õ para. 15).858 The double exequatur involves a two-step process: first, the party seeking recognition obtains a leave for enforcement from the court in the award’s country of origin; and second, the party obtains a leave for enforcement in the country where the enforcement is sought.859 The double exequatur process was a requirement under the NYC’s predecessor, the Geneva Convention of 1927 (Õ Prel. Rem. para. 46). The language in the Geneva Convention (Õ Annex V 2) that produced double exequatur effect was the requirement to prove that the award is “final” (Õ Prel. Rem. para. 46, Õ para. 15).860 The Dutch Delegation considered it to be a logical development to require an exequatur only in the country where the enforcement was being sought.861 In 854 Van den Berg, NYC, pp. 275–358; Spain: TS, XXXI Y.B. Com. Arb. 846, 850 (2006); Belgium: Cass., XXIVa Y.B. Com. Arb. 603, 611 (1999); Switzerland: BG, BGE 108 Ib 85 = IX Y.B. Com. Arb. 437, 439 (1984); Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237, 240 (1981); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, X Y.B. Com. Arb. 487, 489 (1985). 855 Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVII Y.B. Com. Arb. 277 (2012). 856 US: Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., XXIII Y.B. Com. Arb. 1058, 1061–1062 (1998) (2d Cir. 1997) (concluding that the grounds enumerated in Article V are exhaustive); Netherlands: Voorzieningenrechter, Rechtbank Den Haag, IV Y.B. Com. Arb. 305, 306 (1979); Italy: CA Napoli, IV Y.B. Com. Arb. 275, 275–276 (1979); van den Berg, NYC, p. 265. 857 Sanders, in: United Nations (ed.), Experience and Prospects, pp. 3, 4. 858 Sanders, in: United Nations (ed.), Experience and Prospects, pp. 3, 4; Austria: OGH, wbl 2013, 621 = XXXIX Y.B. Com. Arb. 347 (2014); Switzerland: BG, XXXIV Y.B. Com. Arb. 810 (2009). 859 Van den Berg, NYC, p. 333; van den Berg, XXVIII Y.B. Com. Arb. 562, 660 (2003). 860 Van den Berg, NYC, p. 333; van den Berg, XXVIII Y.B. Com. Arb.562, 660 (2003). 861 Sanders, in: United Nations (ed.), Experience and Prospects, pp. 3, 4.

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Article V 356–357

New York Convention

order to achieve this goal, the drafters of the NYC changed the word “final” to “binding.”862 As a result, under the NYC the winning party in the arbitration no longer needs to seek leave for enforcement in the award’s country of origin.863 However, the word “binding” necessitates the fulfillment of certain formal requirements, which satisfied the sentiments of some States’ delegations.864 The drafters also felt that the word “binding” achieves a good balance: on one hand, it safeguards against allowing enforcement of awards that “under applicable arbitral rules […] are still subject to an appeal which had a suspensive effect,” while on the other hand, it protects the enforcement of the awards from delay “until all the time limits provided for by the statutes of limitations had expired or until all possible means of recourse, including those which normally did not have a suspensive effect, had been exhausted and the award had become ‘final.’”865 356 Another significant change from the Geneva Convention is that the NYC places the burden of proof on the party resisting enforcement of the award (Õ para. 12, Õ para. 41). Article V(1) permits the enforcing court to consider the request by the party opposing enforcement to refuse the enforcement of the arbitral award “only if that party furnishes […] proof that […].” This shift in the burden of proof further restricted avenues for parties seeking to hinder the enforcement of the arbitral awards.

IV. Award Not yet Binding on the Parties 356a

For a discussion of the different aspects of the notion of “award” also Õ Art. I paras 93 et seq.

1. Binding Force in General 357

Article V(1)(e) is silent as to which law and criteria should apply in deciding whether the award is binding (Õ Art. I paras 80–82).866 Consensus exists with respect to only two aspects of the meaning of “binding.” First, in order to establish the binding character of the award, the party seeking the enforcement of the award is not required to obtain exequatur in the award’s country of origin (Õ Art. I para. 81).867 This accords with the drafters’ intention to eliminate “double exequatur” (Õ para. 355). Second, the award remains binding even though an action to set aside the award is pending in the award’s country of origin (Õ Art. I para. 83). Two reasons support this conclusion: (a) the language of Article V(1)(e) applies only to an award that has been set aside, not to one against which an action to set aside has been initiated; and (b) when the action to set aside has been initiated in the award’s country of origin, the enforcement court is under no obligation to even adjourn the enforcement of the award as Article VI (via the words “may, if it considers proper”) grants the enforcement court the discretion, as opposed to imposing an obligation, to adjourn the decision (Õ Art. VI para. 1). It is not required that the award is formal res judicata.868 Finally, the decision of a Spanish court869 which acknowledged the binding nature of the award, but refused 862

Van den Berg, XXVIII Y.B. Com. Arb. 562, 660 (2003). Van den Berg, XXVIII Y.B. Com. Arb. 562, 660 (2003). 864 E/CONF.26/SR.17, p. 3 (Õ Annex IV 1). 865 E/CONF.26/SR.17, p. 3 (Õ Annex IV 1). 866 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.460–21.464. 867 Gharavi, International Effectiveness, p. 61. 868 Spain: Tribunal Superior de Justicia de Madrid, XLIII Y.B. Com. Arb. 555 (2018). 869 Spain: Tribunal Superior de Justicia de Madrid, XLIII Y.B. Com. Arb. 571 (2018). 863

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357a–359 Article

V

its recognition and enforcement because it was not homologated at the seat of the arbitration as foreseen by the lex arbitri, is misguided. The court referred to its national legislation which provides for the requirement of executory force. There is no such requirement under the New York Convention. Subject to the applicable rules providing differently, it also seems clear that an award 357a must be served on the parties before it can become binding.870 Other than that, the term “binding” has been interpreted in various ways by different 358 courts.871 Three major approaches have emerged with respect to determining whether an arbitral award has a binding effect.872 The first and most common approach is to refer to the applicable arbitration law (Õ para. 359) and to examine whether the award meets all the formal requirements for becoming binding under that law. The domestic law requirements, however, should be disregarded when they produce a double exequatur effect (Õ para. 360). Under the second approach, the courts find the award not to be binding if it can be impugned by “ordinary means of recourse” (Õ para. 361) in the State where it was rendered. According to the third approach, the award is not binding if it can be challenged before a higher arbitral tribunal (Õ para. 363). The three approaches are not mutually exclusive. Most courts follow only one or two of these three approaches when interpreting the meaning of “binding.” This commentary details each of the three approaches in turn. First, most courts follow the approach that the issue of whether an award has become 359 binding is governed by the applicable arbitration law (Õ Art. I paras 81–82).873 This might mean looking into the law of the respective country,874 or focusing on the rules of the arbitral institution that rendered the award.875 Once the applicable law is established, the courts ascertain whether the award meets all the enforcement requirements of the applicable law or applicable rules.876 Generally, if the applicable arbitration law requires compliance with certain formalities for the award to become binding, these must be met for the award to be binding.877 For example, the domestic law may provide that the award becomes binding when each party receives a copy of the

870 China: Guangdong Higher People’s Court, (2006) Min Si Ta Zi No. 41, available at https://arbitration law.com/library/bunge-agribusiness-singapore-pte-ltd-v-guangdong-fengyuam-food-and-oil-group-companyltd (last visited Apr. 29, 2019). 871 See Austria: OGH, XXXIX Y.B. Com. Arb. 347 (2014). 872 Gharavi, International Effectiveness, p. 62. 873 Switzerland: Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 828 (2004); Italy: CA Napoli, IV Y.B. Com. Arb. 275, 276 (1979); Spain: TS, XXXI Y.B. Com. Arb. 846, 851 (2006). 874 Italy: CA Napoli, IV Y.B. Com. Arb. 275, 276 (1979) (holding that the binding effect of the award must be ascertained according to English law (under which the award was made) and examining English law for the definition of binding); US: Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948 (S.D. Ohio 1981) = VII Y.B. Com. Arb. 382, 387–388 (1982) (ascertaining the meaning of “binding” through an examination of the Indian Arbitration Act and Indian Supreme Court decisions when the award was made in India). 875 Spain: TS, XXXI Y.B. Com. Arb. 846, 851 (2006) (determining the binding character of the award under the ICC Rules instead of French law); Germany: OLG Celle, XXX Y.B. Com. Arb. 547, 550 (2005) (following the Stockholm Chamber of Commerce Rules on the definition of binding); US: Int’l Trading & Indus. Inv. Co. v. Dyncorp Aerospace Tech. AS, 763 F. Supp. 2d 12 (D.D.C. 2011) (consulted the ICC Rules for the definition of binding when the parties dispute was governed by the ICC Rules). 876 Germany: OLG Celle, XXXII Y.B. Com. Arb. 322, 325 (2007); France: TGI Strasbourg, II Y.B. Com. Arb. 244 (1977). 877 France: TGI Strasbourg, II Y.B. Com. Arb. 244 (1977); contra Australia: Resort Condominiums International Inc. v. Ray Bolwell, 118 ALR 655 = 9(4) Mealey’s Int’l Arb. Rep. A-1 (1994) = XX Y.B. Com. Arb. 628, 637 (1995) (“A foreign award is final and binding notwithstanding the fact that some additional formalities require to make it enforceable in the country where it was made.”).

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Article V 360–361

New York Convention

signed arbitral award,878 the award is deposited with the court,879 upon oral or written communication or upon the expiry of the time limit for legal means to challenge the award.880 The burden of proof under Article V(1)(e) is on the party opposing the enforcement (Õ para. 356); that party must therefore present to the court the applicable law upon which it is relying to argue the non-binding nature of the arbitral award.881 360 In light of the drafting history (Õ para. 355, Õ para. 15), the principle that the award must comply with domestic arbitration law becomes obsolete when this means that double exequatur is required. The tendency has developed among the courts in a great range of countries to enforce an award regardless of the fact that the law of the award’s country of origin requires a national exequatur for the arbitral award to become binding.882 A prominent example is French law, which requires an exequatur of the award by the court of first instance in order for the award to become final.883 The courts have found that under Article V(1)(e), “the binding character of the award may not be made to depend on an exequatur by the courts of the State of rendition.”884 361 Second, in determining whether an arbitral award has binding effect, some courts consider whether the award can be impugned by “ordinary means of recourse” in the State where it was rendered.885 The term “ordinary means of recourse” refers to a genuine appeal on the merits, while “extraordinary means of recourse” is mostly limited to procedural challenges (including an action to set aside) (Õ Art. I para. 80).886 878 Germany: OLG Celle, XXXII Y.B. Com. Arb. 322, 325 (2007) (the award was found binding when the claimant proved that the formal requirement of Russian Federation law, requiring that each party receives a copy of the arbitral award signed by the arbitrators, was fulfilled). 879 France: TGI Strasbourg, II Y.B. Com. Arb. 244 (1977) (the award was found binding when it complied with the formal requirement of depositing it with the court in Hamburg). 880 Switzerland: Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 828 (2004). 881 Switzerland: Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 828 (2004) (“[…] the party opposing enforcement must prove not only the alleged facts but also the existence and contents of the applicable foreign law on which it bases the non-binding nature of the arbitral award.”); Germany: OLG Köln, IPRax 1993, 399 = RIW 1993, 499 = XXI Y.B. Com. Arb. 535, 541 (1996) (burden of proof on the party opposing enforcement); US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXII Y.B. Com. Arb. 713, 717 (2007) (W.D. Pa. 2006) (the court found that it had no basis on which to ascertain the defendant’s claim that the award is not binding as the defendant failed to provide any evidence to support the claim); Switzerland: BG, BGE 108 Ib 85 = IX Y.B. Com. Arb. 437, 438 (1984) (ruling that the party opposing enforcement must prove that the award is not binding and “[t]his includes the proof of the applicable foreign law insofar as its violation is asserted.”). 882 Spain: TS, XXXI Y.B. Com. Arb. 846, 851 (2006) (“the binding character of the award may not be made to depend on an exequatur by the court of the State of rendition.”); Belgium: Cass., XXIVa Y.B. Com. Arb. 603, 609 (1999) (refusing to apply Jordanian law, according to which an arbitral award becomes binding only after having been confirmed by a court, arguing that it would reintroduce the double exequatur into the realm of the NYC); see van den Berg, XXVIII Y.B. Com. Arb. 562, 660 (2003). 883 Articles 1487 et seq., 1516 et seq. of the French Code of Civil Procedure. 884 Spain: TS, XXXI Y.B. Com. Arb. 846, 851 (2006). 885 Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, X Y.B. Com. Arb. 487, 489 (1985); Hong Kong: Société Nationale d’Opérations Pétrolières de la Côte d’Ivoire – Holding v. Keen Lloyd Resources Ltd., XXIX Y.B. Com. Arb. 776, 780 (2004); Switzerland: BG, XXIX Y.B. Com. Arb. 834, 838–839 (2004) (granting enforcement because the defendant failed to prove that ordinary means of recourse were available against the award); Germany: OLG Celle, XXXII Y.B. Com. Arb. 303, 308 (2007); Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237, 240 (1981) (holding that the award is not binding if its merits are open to appeal); Belgium: Cass., XXIVa Y.B. Com. Arb. 603, 607–611 (1999) (finding that the award is binding “when it is no longer open to recourse on the merits.” Id. at 611.); Switzerland: BG, XXXIV Y.B. Com. Arb. 810–816 (2009); Spain: TS, XXXI Y.B. Com. Arb. 846, 850–851 (2006) (finding that the award was binding when the Secretary of the ICC Court of Arbitration issued a certificate proving that no ordinary means of recourse against the award are available); US: Smagin v. Yegiazaryan, XLII Y.B. Com. Arb. 580 (2017) (C.D. Cal. 2016). 886 Van den Berg, NYC, pp. 334–335.

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361a–363 Article

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At the New York Conference of 1958, the distinction between ordinary and extraordinary means of recourse was proposed in order to ensure that an award would not be considered binding if it “was still open to the possibility of another decision.”887 According to this approach, if no ordinary means of recourse are available for the award (in other words, if all the merits of the dispute have been resolved) it is deemed to be binding, even though it may be subjected to extraordinary challenges.888 This conclusion is true only if the court defines the binding character of the award solely through this approach. An additional issue in the context of the “ordinary means of recourse” approach is whether the ordinary means of recourse must have a suspensive effect. At least one court suggested that this is not necessary and that merely establishing that the ordinary means of recourse against the award are available suffices to suspend the award.889 Under this approach, the binding effect of the award is suspended if the domestic law allows for an appeal on the merits.890 Where the law of the seat of the arbitration allows for an appeal, but also for the 361a parties to waive the latter, the award is considered binding if the parties agreed that the award shall be final and binding.891 Scholars interpret the fact that the proposal to define “binding” in terms of “ordinary 362 v. extraordinary means of recourse” was introduced, but not adopted, in different ways. Some believe that even though the drafters did not include the distinction, this does not mean that they meant to exclude it.892 Others take the view that silence means exclusion.893 Third, the award is not binding if it can be challenged before an appeals arbitral 363 tribunal, which is another arbitral tribunal within the applicable arbitral institution.894 The parties are free to agree on the particularities of such review procedure.895 What matters is whether proceedings that are pending can lead to a modification or quashing of the award. If the court defines the binding character of the award only through the 887

Van den Berg, NYC, pp. 275–385. Darwazeh, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 312 (citing Gaillard/Savage, Fouchard Gaillard Goldman, para. 1679); McIlwrath/Savage, International Arbitration and Mediation, para. 1-022. 889 Switzerland: BG, XXIX Y.B. Com. Arb. 834, 838–839 (2004) (recognizing an award where the party opposing enforcement failed to prove that ordinary means of recourse against the award were available, or that the recourse that was available had a suspensive effect, thereby suggesting that the mere availability of ordinary means of recourse is sufficient). 890 Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237, 240 (1981) (the availability of an appeal on the merits of the award to a higher jurisdiction renders the award non-binding). 891 Hong Kong: T v. C, XLI Y.B. Com. Arb. 487 (2016) referring to the AAA Rules; US: Int’l Trading & Indus. Inv. Co. v. Dyncorp Aerospace Tech. AS, XXXVI Y.B. Com. Arb. 415 (2011) (D.D.C. 2011); and Chile: Corte Suprema, XLI Y.B. Com. Arb. 444 (2016) (both referring to the ICC Rules). 892 Darwazeh, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 312–313 (citing van den Berg, NYC, p. 342). 893 Darwazeh, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 312–313 (citing Gaillard/Savage, Fouchard Gaillard Goldman, para. 1679). 894 E/CONF.26/SR.17, p. 3 (Õ Annex IV 1) (specifically states that the award should not be binding if the applicable arbitral rules provide for an appeal which can have a suspensive effect.); US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXII Y.B. Com. Arb. 713, 717 (2007) (W.D. Pa. 2006) (“Under the Convention, the term ‘binding’ means that no further appeals are available within the arbitration process itself […]”); Germany: BayObLG, NJW-RR 2003, 502 = SchiedsVZ 2003, 142 = XXIX Y.B. Com. Arb. 754, 758 (2004); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, X Y.B. Com. Arb. 487, 488–489 (1985). 895 Germany: OLG Frankfurt, IPRspr. 2008, No. 203, 646 = XXXIV Y.B. Com. Arb. 527, 529 (2009) (where the parties’ dispute was governed by the ICC Rules, according to which the parties undertook to refrain from seeking any form of recourse once the award was rendered, the parties were prevented from challenging the award and the award became binding when it was rendered); E/CONF.26/SR.3, p. 3 (Õ Annex IV 1) (emphasizing importance of freedom of contract and the necessity to give effect to parties’ agreements); See also Born, International Commercial Arbitration, pp. 3618–3619. 888

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Article V 364–365

New York Convention

“appeal within arbitral tribunal” approach, the absence of this remedy should be sufficient to establish the binding character of the award.896 However, most courts consider additional factors when defining “binding,” e.g. availability of a judicial appeal.897 364 In one case, the arbitration agreement provided each party with the right to request the review of the award and that the award enters into effect if there is such request. It was disputed whether the review process had been validly started by one of the parties. Wrongly, the recognition and enforcement court did not make a decision on this decisive question, but held that the review arbitral tribunal should decide whether it was properly seized.898 364a In academia, the “ordinary means of recourse” approach and “appeal within arbitral tribunal” approach to the definition of the term “binding” are categorized as “autonomous interpretation,” referring to the fact that the meaning of “binding” is derived from the NYC itself and its drafting history rather than from domestic law (Õ Art. I para. 80).899 However, both approaches necessitate the examination of domestic law, meaning that the use of the term “autonomous” is not accurate in either of these scenarios. Specifically, under the ordinary means of recourse approach, the enforcing court needs to examine the domestic law to see whether it allows an appeal on the merits (Õ para. 361). Likewise, under the arbitral appeal approach, the court needs to consider whether the domestic law provides for or allows such an appeal (Õ para. 363). 365 Most courts embrace one or, sometimes, two of the approaches.900 The drafting history of the NYC supports all three approaches. Specifically, the drafting history 896 US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXII Y.B. Com. Arb. 713, 717 (2007) (W.D. Pa. 2006) (opining that the binding character of the award is determined through availability of a further appeal before an appellate arbitral tribunal as opposed to a judicial appeal and finding the award, for which no arbitral appeal was available, to be binding). 897 Germany: BayObLG, NJW-RR 2003, 502 = SchiedsVZ 2003, 142 = XXIX Y.B. Com. Arb. 754, 758 (2004) (finding that “binding” means that the award cannot be annulled either by an appeals tribunal or by a state court); OLG Frankfurt, IPRspr. 2008, No. 203, 646 = XXXIV Y.B. Com. Arb. 527, 529 (2009) (finding that the award is binding when “it cannot be challenged before an appellate arbitral tribunal or by appeal to a state court”); Hong Kong: Société Nationale d’Opérations Pétrolières de la Côte d’Ivoire – Holding v. Keen Lloyd Resources Ltd., XXIX Y.B. Com. Arb. 776, 778–779 (2004) (followed the definition of “binding” as no longer open to internal appeal “(that is to say, within the relevant rules of arbitration) or by an application to the court.” Id. at 778). 898 Austria: OGH, wbl 2013, 621 = XXXIX Y.B. Com. Arb. 347 (2014); see also UK: Diag Human SE v. The Czech Republic, [2014] EWHC 1639 (Comm) = XXXIX Y.B. Com. Arb. 521 (2014) (the High Court of Justice seems to have been impressed by the fact that a Czech court considered the issue of whether the review process had been triggered to be considered by the second arbitral tribunal); for the same case with the same outcome also: France: Cass., XXXIX Y.B. Com. Arb. 386 (2014); Switzerland: Tribunal de première instance, Republique et canton de Genève, May 22, 2014 (unreported), cited in Netherlands: Gerechtshof Amsterdam, XLIII Y.B. Com. Arb. 523 (2018); Netherlands: Gerechtshof Amsterdam, XLIII Y.B. Com. Arb. 523 (2018); US: Diag Human S.E. v. Czech Republic, Ministry of Health, XLIII Y.B. Com. Arb. 655 (2018) (D.D.C. 2017); Diag Human S.E. v. Czech Republic, Ministry of Health, XXXIX Y.B. Com. Arb. 641 (2014) (D.D.C. 2014); PAO Tatneft v. Ukraine, 301 F. Supp. 3d 175 (D.D.C. 2018) = XLIII Y.B. Com. Arb. 725 (2018); however, in Luxembourg, recognition and enforcement was granted, Luxembourg: CA, XLII Y.B. Com. Arb. 428 (2017). 899 Van den Berg, NYC, pp. 275–385. 900 Spain: TS, XXXI Y.B. Com. Arb. 846, 849–850 (2006) (defines “binding” via the applicable arbitration law and acknowledging the validity of the “ordinary means of recourse” approach); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, X Y.B. Com. Arb. 487–490 (1985) (opines that the award is not binding if it is open to an appeal on the merits either before a court or appeals arbitral tribunal); Switzerland: Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 826–827 (2004) (determines the binding nature of the award by referring to the applicable arbitration law, yet noting that no other objections regarding the binding character of the awards were raised, thereby leaving open the possibility for other arguments); Switzerland: BG, XXIX Y.B. Com. Arb. 834, 838–839 (2004) (defines “binding” through the “ordinary means of recourse” approach); Hong Kong: Société Nationale d’Opérations Pétrolières de la Côte d’Ivoire – Holding v. Keen Lloyd Resources Ltd., XXIX Y.B. Com. Arb. 776, 780 (2004) (embraces the “ordinary means of recourse”

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Grounds for Refusal of Recognition and Enforcement

366–368a

Article V

establishes that (1) the award is enforceable only if it complied with formal requirements which make the award binding and (2) the award should not be binding if the applicable arbitral rules provide for an appeal which can have a suspensive effect.901 The delegates did not distinguish between a judicial appeal and an appeals tribunal. The preferable approach is thus one under which establishing one of the three grounds is sufficient to demonstrate that the award is not binding. In summary, the party opposing the enforcement of an arbitral award can success- 366 fully establish that the award is not binding if (1) the party presents the law of the award’s country of origin and demonstrates that the award failed to comply with certain formal requirements of that law in order to become binding, unless such requirement amounts to national exequatur (Õ paras 359–360); or (2) the party establishes that a legal remedy which can have a suspensive effect on the award is available, including both a judicial appeal or an appeal before an appeals tribunal (Õ paras 361–363).

2. Interim Awards, Partial Awards and Interim Measures Occasionally, arbitral tribunals may issue an interim award or an interim measure 367 prior to rendering a final award. The NYC neither defines nor in any way expressly addresses these types of awards or measures. Additionally, the terminology is sometimes poorly and inconsistently defined in international laws and rules.902 In this context, a decision that finally resolves a procedural matter which is essential 368 to the dispute as a whole, e.g. jurisdiction, time-bar defenses, joinder of parties or the applicable law, is called an interim award;903 a decision which resolves all aspects of one or several, but not all, claims is called a partial award. A decision that relates to matters ancillary to the merits of the dispute and is issued for a limited period of time or is subject to a later revision or modification is called an interim measure.904 It is therefore not correct to state that only awards deciding the dispute and rendered 368a at the end of the arbitration proceedings are awards within the meaning of the New York Convention. In one case, the arbitral tribunal had issued an award for the reimbursement of the respondent’s share of the advance on the costs of the arbitration to the claimant. The respondent had defaulted on its payment obligation and the claimant had stepped in. The recognition and enforcement court considered this a purely interlocutory act which cannot be recognized and enforced under the New York Convention.905 This is not correct. This award finally decided on the reimbursement obligation of the respondent. This is different from the cost decision at the end of the arbitration.

approach and explicitly rejects the applicable arbitration law approach); US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXII Y.B. Com. Arb. 713, 717 (2007) (W.D. Pa. 2006) (embraces only the “appeals arbitral tribunal” approach and specifically excludes judicial appeals). 901 E/CONF.26/SR.17, pp. 3, 12, 13 (Õ Annex IV 1). 902 See Lew/Mistelis/Kröll, Comparative Arbitration, para. 24-15. 903 See Lew/Mistelis/Kröll, Comparative Arbitration, para. 24-24; Hwang/Boo/Han, in: Bosman (ed.), ICCA International Handbook, p. 36. 904 See Lew/Mistelis/Kröll, Comparative Arbitration, para. 24-24 (referring to Holtzmann/Neuhaus, Guide to the UNCITRAL Model Law, p. 867, explaining that, according to the Working Group preparing the Model Law, an interim, interlocutory or provisional award is a decision that fails to definitely resolve an issue before the arbitral tribunal). 905 Russia: Presidium of the Supreme Arbitrazh Court, CLOUT Case No. 1140.

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a) Interim Award The enforceability of interim awards depends on how domestic courts of the country of enforcement interpret the NYC.906 The NYC applies only to those provisional measures that fall within the definition of a final award.907 Labeling the provisional measure as an “award” is not sufficient; the enforcement courts must analyze the essence of the measure (Õ Art. I paras 24–26).908 A judicial consensus exists that a provisional measure is an award if it resolves an issue on the merits submitted to arbitration.909 The finality (Õ Art. I para. 55) is determined in the same way as that of any other arbitral award under the NYC, with one wrinkle: the award must definitely resolve only one or some of the matters before the tribunal, which usually is an isolated and independent matter from other issues submitted to arbitration (while in the final award all issues must be resolved).910 The mere fact that an award does not conclusively resolve all issues in a dispute should have no effect on its enforceability.911 370 Domestic arbitration laws and judicial opinions of different nations are divided on the issue as to whether an interim award finally resolves an issue submitted to arbitration. The main concern lies in the fact that interim awards do not resolve distinct parts of the dispute, rather they resolve procedural matters that are so essential to the final resolution of the dispute that it is reasonable to consider such matters as a part of the dispute. However, a Colombian court refused to enforce a decision on jurisdiction based on the reasoning that it is a preliminary procedural decision that fails to resolve the merits of the dispute submitted to arbitration.912 On the other hand, under domestic laws of many countries such as Singapore, Hong Kong, Kenya, India, New Zealand and Austria, interim awards are enforceable.913 Recognizing interim 369

906 Colombia: Corte Suprema de Justicia, XXVI Y.B. Com. Arb. 755, 758–759 (2001) (noting that since the NYC does not define an award, it should be defined according to the spirit of the NYC and domestic law of the enforcing court). 907 See Australia: Resort Condominiums International Inc. v. Ray Bolwell, 118 ALR 655 = 9(4) Mealey’s Int’l Arb. Rep. A-1 (1994) = XX Y.B. Com. Arb. 628, 637 (1995); US: Publicis Communication v. True N. Communications, Inc., XXV Y.B. Com. Arb. 1152, 1153–1157 (2000) (7th Cir. 2000); Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046, 1049 (6th Cir. 1984). 908 US: Publicis Communication v. True N. Communications, Inc., XXV Y.B. Com. Arb. 1152, 1153–1157 (2000) (7th Cir. 2000) (refuting the argument that a document is unenforceable unless it bears the term “award” and explaining that a decision must be enforced if its substance and impact demonstrate that it is final). 909 Id.; Australia: Resort Condominiums International Inc. v. Ray Bolwell, 118 ALR 655 = 9(4) Mealey’s Int’l Arb. Rep. A-1 (1994) = XX Y.B. Com. Arb. 628, 640–642 (1995); Colombia: Corte Suprema de Justicia, XXVI Y.B. Com. Arb. 755, 759–761 (2001) (refusing to enforce a decision on jurisdiction based on the reasoning that it is a preliminary procedural decision that fails to resolve the merits of the dispute submitted to arbitration). 910 US: Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046, 1049 (6th Cir. 1984); Australia: Resort Condominiums International Inc. v. Ray Bolwell, 118 ALR 655 = 9(4) Mealey’s Int’l Arb. Rep. A-1 (1994) = XX Y.B. Com. Arb. 628, 640–642 (1995) (to be enforceable a decision must determine at least some issues submitted to arbitration); Ecopetrol S.A. v. Offshore Exploration & Prod. LLC, 46 F. Supp. 3d 327 (S.D.N.Y. 2014) = XL Y.B. Com. Arb. 511 (2015); Colombia: Corte Suprema de Justicia, XLI Y.B. Com. Arb. 454 (2016) (calling interim and partial awards “partial awards”). 911 US: Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046, 1049 (6th Cir. 1984) (finding that a partial award “need not conclusively resolve all matters in dispute in order to qualify as ‘final’ and eligible for confirmation.”); Australia: Resort Condominiums International Inc. v. Ray Bolwell, 118 ALR 655 = 9(4) Mealey’s Int’l Arb. Rep. A-1 (1994) = XX Y.B. Com. Arb. 628, 640–642 (1995). 912 Colombia: Corte Suprema de Justicia, XXVI Y.B. Com. Arb. 755, 758–759 (2001); see also Germany: OLG Frankfurt, SchiedsVZ 2007, 278. 913 Singapore: Hwang/Boo/Han, in: Bosman (ed.), ICCA International Handbook, p. 37 citing section 46 of the Arbitration Act 1953; section 19 of the International Arbitration Act 1995; Kenya: Torgbor, in: Bosman (ed.), ICCA International Handbook, p. 33 citing section 3(1) of the Arbitration Act 1995; South Africa: Lane/Harding, in: Bosman (ed.), ICCA International Handbook, p. 15 citing section 1 and section 26 of

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awards as enforceable facilitates the arbitration process and is justified by the language of the NYC as they finally resolve an issue that is essential to the dispute as a whole. b) Partial Award Consensus exists as to enforceability of partial awards. Partial awards, by their very 371 definition, finally and definitely resolve an issue on the merits. For example, an arbitral decision requesting a party to produce tax records was found enforceable when producing those tax records was a part of the very issue submitted to arbitration.914 The arbitral decision was also found to be sufficiently final within the meaning of the NYC as to the issue of production.915 The finality was derived from the fact that the production of tax records was necessary for determinations in the final award.916 A suggested test for bringing clarity to the issue can be an inquiry into whether a party included the issue in the prayer for relief. If so, the decision of such an issue would qualify as a partial award and thus be enforceable. c) Interim Measure Interim measures are unlikely to satisfy the generally accepted definition of an award 372 under the NYC as they do not finally resolve any point in dispute. Nonetheless, some domestic regimes provide for avenues to qualify interim measures as awards and thus enforce them. For example, the US courts tend to enforce interim measures by defining “award” mainly through finality of the decision, and finality is usually found in cases where the measure requests an act necessary to make the potential award meaningful.917 For example, in Yasuda Fire and Banco de Seguros the courts determined to be final and enforced the interim measures requiring the posting of letters of credit, which were necessary for preserving the meaningfulness of the respective final awards.918 In Island Greek the finding of finality was based on the fact that the interim measure’s requirement that the parties continue performing under the contract until the final award is issued was necessary to make the final award meaningful.919 Arguably, the approach that defines the finality of an arbitral decision through urgency and necessity to preserve the final award exceeds the boundaries of the NYC. Although it is over-

Arbitration Act No. 42 of 1965; India: Nariman, in: Bosman (ed.), ICCA International Handbook, p. 36 (noting that interim awards on applicable law and statute of limitations are enforceable); New Zealand: Williams, in: Bosman (ed.), ICCA International Handbook, p. 25 (noting that section 2 of the New Zealand Arbitration Act 1996 includes an “interim award” in the definition of an “award,” thereby subjecting it to enforcement in the same manner as an award under Article 17L(1)); Austria: Melis, in: Bosman (ed.), ICCA International Handbook, p. 21 (under Article 592(1) of the Austrian Arbitration Act 2006, decisions on jurisdiction may be made as a separate arbitral award and are thus enforceable). 914 US: Publicis Communication v. True N. Communications, Inc., XXV Y.B. Com. Arb. 1152, 1155 (2000) (7th Cir. 2000). 915 US: Publicis Communication v. True N. Communications, Inc., XXV Y.B. Com. Arb. 1152, 1153–1157 (2000) (7th Cir. 2000). 916 US: Publicis Communication v. True N. Communications, Inc., XXV Y.B. Com. Arb. 1152, 1153–1157 (2000) (7th Cir. 2000). 917 US: Publicis Communication v. True N. Communications, Inc., XXV Y.B. Com. Arb. 1152, 1153–1157 (2000) (7th Cir. 2000); Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046, 1049 (6th Cir. 1984); Yasuda Fire & Marine Ins. Co. of Europe v. Cont’l Cas. Co., 37 F.3d 345, 348 (7th Cir. 1994); Banco de Seguros del Estado v. Mut. Marine Offices, Inc., 230 F. Supp. 2d 362, 368–370 (S.D.N.Y. 2002); Hall Steel Co. v. Metalloyd Ltd., XXXIII Y.B. Com. Arb. 978, 982 (2008) (E.D. Mich. 2007) (refusing to enforce the interim measure that lacked urgency and was not essential for the vitality of the final award). 918 US: Yasuda Fire & Marine Ins. Co. v. Cont’l Cas. Co., 37 F.3d 345, 348 (7th Cir. 1994); Banco de Seguros del Estado v. Mut. Marine Offices, Inc., 230 F. Supp. 2d 362, 368–370 (S.D.N.Y. 2002). 919 US: Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046, 1049 (6th Cir. 1984).

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reaching, it nonetheless functions within the generally accepted framework that only a final decision on the merits may be called an award. Other courts take a more conservative approach to the definition of finality, which results in the non-enforceability of interim measures. For example, in Resort Condominium the interim measure ordered the respondent to refrain from using the information, the rights to which where disputed. The Australian court declined to recognize the interim measure, reasoning that it “may be rescinded, suspended, varied or reopened by the tribunal which pronounced it” and is therefore not “final” and binding upon the parties.920 Some domestic regimes take a superficial approach and require the interim measure to take the form of an award in order to be enforceable.921 However, this is hardly a valid solution to the enforcement of interim measures as the essence, not the nomenclature, determines the enforceability of a decision (Õ para. 369; Õ Art. I paras 24–26). Commentators generally approve of the approach that interim measures are not enforceable under the NYC.922 Some, however, dissented from this approach, noting that enforcing all interim measures under the NYC would be beneficial to the arbitration process923 and that neither the NYC nor its legislative history refers to the issue of finality.924 Indeed, expanding the boundaries of the NYC to encompass the enforcement of interim measures will benefit the arbitral process as a whole. Specifically, it will provide parties with a method to preserve assets and thus enable them to collect on the latter if successful in arbitration925 by preventing loss or damage to the property while the arbitration is pending,926 with improved resource and time efficiency resulting from the parties requesting interim measures directly from the arbitral tribunal, which is already familiar with the case, unlike the relevant state court.927 Moreover, an alternative interpretation of “award” is justified. Thus, if a decision “on the merits” is understood as any decision of the arbitral tribunal other than ones dealing with the organization of the proceedings, interim measures are also decisions on the merits. If finality is understood as the absence of a review on the merits, the fact that interim measures may only be issued for a limited period of time does not exclude them from the umbrella of the NYC. Awards also have, in many cases, an expiry date – their fulfillment. The fact that interim measures may be modified if new facts arise is nothing out of the ordinary considering that, in respect of awards, new facts (or evidence) may justify taking a second look at the matter and, eventually, changing the award. To date, it seems that nobody has argued that awards subject to such a possibility are not enforceable under the NYC. Accordingly, concluding that the NYC applies to interim measures is accurate. Even taking the opposite view, the next natural step in the evolution of the NYC is to amend its language to specifically include interim measures and to set safeguards for their enforcement. 920 Australia: Resort Condominiums International Inc. v. Ray Bolwell, 118 ALR 655 = 9(4) Mealey’s Int’l Arb. Rep. A-1 (1994) = XX Y.B. Com. Arb. 628, 642 (1995). 921 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 7.20 (referring to the domestic arbitration laws of Scotland and New Zealand); Torgbor, in: Paulsson/Bosman (eds), ICCA International Handbook, p. 33 citing section 3(1) of the Arbitration Act 1995. 922 Garnett/Pryles, (2008) 25 J. Int. Arb. 899, 908 (citing Chukwumerije, 5 Austl. Disp. Res. J. 237, 393 (1994)). 923 Pryles, (1994) 10 Arb. Int’l 385, 392–393; Yesilirmak, Provisional Measures, pp. 272–273. 924 Kojovic, (2001) 18 J. Int. Arb. 511, 523. 925 A/CN.9/WG.II/WP.108 para. 73 (Õ Annex IV 2). 926 A/CN.9/WG.II/WP.108 para. 73 (Õ Annex IV 2). 927 A/CN.9/WG.II/WP.108 paras 76–77 (Õ Annex IV 2).

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V. Award Set Aside/Suspended According to the language of Article V(1)(e), the enforcing court may refuse 377 enforcement of the award if the party opposing enforcement can prove that the arbitral award has been set aside or has been suspended, and that this has been done by the competent authority in the country in which the award was made. This commentary provides a detailed review of each element and then describes other events that can deprive the award of its binding force, namely the doctrine of merger and the limitation period for enforcement.

1. Set Aside a) Governing Law There are usually two possible ways to attack an arbitral award. First, the award can be set aside or suspended by the competent authority in its country of origin (Õ para. 379).928 Second, the arbitral award can be challenged in the country where its enforcement is sought (Õ para. 380). Very different regimes apply to the review of these two challenges. The NYC sets neither any standards nor any limits for the courts of the State where the award was rendered for their decision-making process as to setting aside or suspending the award.929 An application to set aside the award in its country of origin is governed by the domestic law of the seat State.930 In addition to – or as an alternative to – challenging the award in the seat State, the unsuccessful party may raise grounds for opposition when its adversary seeks the enforcement of the award.931 In such cases the NYC clearly states that the enforcing court may refuse to enforce the award only on the grounds explicitly established by Article V (Õ para. 1, Õ para. 21). If the application to set aside the award in its country of origin was successful, the language of Article V(1)(e) allows this fact to be used as a ground for opposing the enforcement under the Convention. It should be noted that a pending petition to set aside the award does not constitute a sufficient ground under Article V(1)(e) to refuse the enforcement and recognition of the award. The courts adopted two approaches to deciding whether to enforce an award set aside in its country of origin: the territorial approach (Õ paras 382–386) and the delocalized approach (Õ paras 382–386). The territorial approach grants great deference to the decisions of the courts in the award’s country of origin. The delocalized approach places 928 US: Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., XXIII Y.B. Com. Arb. 1058, 1066 (1998) (2d Cir. 1997) (concluding that, based on the history and plain language of the NYC, a party may seek the setting aside of the award in the country of its origin); Paulsson, 21 Va. J. Int’l L. 211, 242 (1981). 929 US: Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., XXIII Y.B. Com. Arb. 1058, 1066 (1998) (2d Cir. 1997) (“The Convention specifically contemplates that the state in which, or under the law of which, the award is made, will be free to set aside or modify an award in accordance with its domestic arbitral law and its full panoply of express and implied grounds for relief.”). 930 US: Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., XXIII Y.B. Com. Arb. 1058, 1066 (1998) (2d Cir. 1997). 931 Hong Kong: Paklito Investment Ltd. v. Klockner East Asia Ltd., [1993] 2 HKLR 39 = XIX Y.B. Com. Arb. 664–674 (1994); see contra: Singapore: Newspeed International Ltd. V. Citus Trading Pte Ltd., XXVIII Y.B. Com. Arb. 829, 833 (2003) (opining that the resisting party can either challenge the award before the domestic court or during enforcement proceedings, but not both); Hong Kong: Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., [1999] 2 HKC 205, para. 85 = XXIVa Y.B. Com. Arb. 652 (1999) (the unsuccessful party is precluded from challenging the award in both the domestic court and in the enforcing court and must choose one of the two remedies).

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legal control over an arbitral award in the hands of the enforcement court and allows the enforcement court to disregard the decision of the court in the award’s country of origin when deciding whether to set it aside. 382 The reasoning supporting each of the approaches is as follows. First, the territorial approach presupposes that the award derives its validity and legal effect from the respective domestic procedural law. Accordingly, if it has been set aside in its country of origin, then it no longer exists in either the country of origin or in any foreign country932 and it is deprived of legal force in all countries.933 The delocalized approach considers these conclusions flawed in light of the plain language of Article V(1)(e) (which grants the enforcement court discretion (Õ paras 74–80) to refuse the enforcement of an award that has been set aside), which implies that domestic procedural law does not always determine the destiny of an award and keeps the possibility alive that an award that has been set aside in its country of origin might still exist in another forum.934 Moreover, territorialists overlook an important nuance – unlike a domestic judgment, an international arbitration award can be issued anywhere in the world and the conduct of the arbitrator is by no means “a manifestation of the power of the State.”935 Awards should therefore lose their legal effect only if the annulment decision meets the so-called international standard annulment test. Annulments only based on particularities of domestic law (“local standard annulments”) (and therefore not in line with the grounds found e.g. in Article 34 of the Model Law) that are at odds with these standards should be ignored.936 383 Second, the territorialists argue that by agreeing to arbitrate in a particular country, the parties agree to submit to the arbitration laws of that country.937 Advocates of the delocalized approach observe that the premise on which the territorialists’ conclusion is based is far from absolute because the parties do not always consciously submit to the laws of an arbitral seat. For example, the seat of arbitration might be the choice made by an arbitral tribunal or an institution, or one of the parties to an agreement was in a weaker bargaining position and had no choice in the matter.938 Additionally, in today’s world the parties often choose the arbitral seat for reasons of convenience and without a deliberate intent to submit their arbitral award to the jurisdiction of the courts in the country of arbitral seat.939 The chosen seat of arbitration is thus often not a result of a thoughtful and voluntary decision by both parties, and granting domestic courts an absolute power to influence the award’s legal force contradicts the parties’ intention.940 384 Third, the territorialists argue that one of the NYC’s purposes was to avoid situations where two different courts (meaning a domestic court at the arbitral seat and an enforcement court) review the award. To achieve this result, the drafters of the NYC implicitly allocated the authority of the courts. Specifically, the drafters did not impose 932 Sanders, 6 Neth. Int’l L. Rev. 43, 55 (1959); Gharavi, International Effectiveness, p. 57; van den Berg, (2010) 27 J. Int. Arb. 179–198, van den Berg, 9(2) ICC Bull. 15, 16 (1998). 933 Van den Berg, 9(2) ICC Bull. 15 (1998). 934 Paulsson, 9(1) ICC Bull. 14, 20 (1998) (criticizing Prof. Sanders for not basing his support of the territorial approach on the text of Article V(1)(e)); see also: Mustill/Boyd, Companion Volume, p. 85 (an arbitral award is not integrated into the judicial system of the country where the arbitration was held). 935 Paulsson, 9(1) ICC Bull. 14, 20–21 (1998). 936 Paulsson, 9(1) ICC Bull. 14–15, 31 (1998). 937 Sampliner, (1997) 14 J. Int. Arb. 3, 160 (citing Gharavi, 12(1) Mealey’s Int’l Arb. Rep. 21 (1997)). 938 Lastenouse, (1999) 16 J. Int. Arb. 2, 43. 939 See E/CONF.26/SR.3, p. 5 (Õ Annex IV 1) (noting that often nationals of one country are not willing to accept the legal regime of the country of which their business partners are nationals. In such cases, parties choose a neutral seat of arbitration, believing that it will allow them to resolve their disputes “privately, quickly and inexpensively.” In doing so, they do not think in terms of litigation at the arbitral seat.). 940 Paulsson, 9(1) ICC Bull. 14, 20 (1998).

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any restrictions on the domestic courts’ power to review the award, while strictly restricting the reviewing role of the enforcement courts, thereby making the domestic courts the principal examiners of the award whose decision should be deferred to.941 The followers of the delocalized approach caution that undiscerning deference to domestic courts’ decisions may result in awards being discarded for a reason that violates internationally recognized standards (for example, if the award was set aside because it violated the domestic rule requiring all arbitrators to be of a particular religious confession).942 Fourth, the territorialists argue that absolute deference to domestic courts’ decisions prevents forum shopping and inconsistencies which would result from a foreign court enforcing an otherwise annulled award.943 The main response to this argument by the followers of the delocalized approach is that the possibility of inconsistent results in contemporary practice is minimal. In most cases an award that is sufficiently flawed and therefore set aside in one country will not pass the autonomous enforcement hurdles of another country. The enforcement of an award set aside in its country of origin is therefore an exceptional occurrence that does not disturb the consistency of courts’ decisions pertaining to the same award in any concrete way.944 Fifth, the followers of the territorial approach raise the notion of comity, which aims to prevent qualitative evaluation of foreign courts’ decisions by deferring to such decisions.945 The followers of the delocalized approach note that an enforcing court is faced with a need to choose to whom deference shall be given: the arbitral tribunal rendering the award or the foreign court annulling such award. The answer lies in the notion of res judicata, which prevents the re-litigation of the dispute once a final judgment resolving the dispute was rendered. The notion of res judicata is best served when deference is given to a decision of the arbitral tribunal as opposed to a subsequent court judgment, considering that the arbitral tribunal was the first body that resolved the dispute upon considering parties’ arguments, evidence and hearing the witnesses.946 An issue related to comity is the question under which circumstances an annulment decision should be ignored because the procedure or the decision did not meet certain minimum standards.947 Assuming such minimum standards considerably narrows the discretion of the recognition and enforcement court.948 The predominant approach is the territorial one.949 However, even under this approach, recognition and enforcement of an award under Article V(1)(e) should only 941

Gaillard/Savage, Fouchard Gaillard Goldman, para. 1688. Paulsson, 9(1) ICC Bull. 14 (1998). 943 Qui, 11 Am. Rev. Int’l Arb. 607, 631 (2000). 944 Paulsson, 9(1) ICC Bull. 14, 22 (1998). 945 Sampliner, (1997) 14 J. Int. Arb. 3, 161. 946 Sampliner, (1997) 14 J. Int. Arb. 3, 160. 947 Netherlands: Gerechtshof Amsterdam, XXXIV Y.B. Com. Arb. 703 (2009); Gerechtshof Amsterdam, XXXVIII Y.B. Com. Arb. 427 (2013); Voorzieningenrechter, Rechtbank Amsterdam, XXXVII Y.B. Com. Arb. 274 (2012); UK: Malicorp Ltd. v. Government of the Arab Republic of Egypt, [2015] EWHC 361 (Comm) = XLI Y.B. Com. Arb. 585 (2016); Yukos Capital S.A.R.L. v. OJSC Rosneft Oil Co., XXXIX Y.B. Com. Arb. 526 (2014); Yukos Capital S.A.R.L. v. OJSC Rosneft Oil Co., XXXVII Y.B. Com. Arb. 312 (2012); US: Thai-Lao Lignite (Thai.) Co. v. Gov’t of the Lao People’s Democratic Republic, XXXIX Y.B. Com. Arb. 592 (2014) (S.D.N.Y. 2014) with further references; US: Getma Int’l v. Republic of Guinea, XLI Y.B. Com. Arb. 630 (2016) (D.D.C. 2015). 948 US: Getma Int’l v. Republic of Guinea, XLI Y.B. Com. Arb. 630 (2016) (D.D.C. 2015). 949 US: Baker Marine Ltd. v. Chevron Ltd., 191 F.3d 194 (2d Cir. 1999) = XXIVa Y.B. Com. Arb. 909 (1999) (refusing enforcement of awards annulled by a Nigerian court); TermoRio S.A. E.S.P. v. Electranta S.P., XXXIII Y.B. Com. Arb. 955 (2008) (D.C. Cir. 2007) (refusing enforcement of an award annulled by the Council of the State of Colombia); Spier v. Calzaturificio Tecnica S.p.A., XXV Y.B. Com. Arb. 1042 (2000) (S.D.N.Y. 1999) (refusing enforcement of an award set aside by an Italian court); Germany: OLG 942

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be refused if the annulment decision (i) is based on reasons which correspond to one or several of the other grounds of Article V,950 (ii) complies with minimum procedural standards (e.g. under Article 6 ECHR),951 and (iii) could be recognized in the enforcement country.952 Only this standard allows for a harmonized international situation, which is mandatory to fulfil the purpose of the NYC. 388 Examples where the courts deviated from the general rule and enforced the award regardless of the fact that it had been set aside in the country of origin include decisions by Dutch, US and French courts.953 A Dutch court based its decision on the finding that the Russian judiciary lacked impartiality and independence.954 It should be noted that while the Dutch court properly concluded that Article V(1)(e) grants it discretion to enforce an annulled award, the court exercised its discretion improperly. Specifically, the Dutch judiciary discredited the judiciary of another Member State for due process violations and partiality based on press publications and reports of a general nature.955 However, such violation should be proven by solid evidence. If the enforcing court disregards the decision to set aside the award because it was not made by an impartial judiciary, one would expect the same level of scrutiny as the Court of Human Rights employs in matters where the judges are being accused of partiality. 389 A US court enforced an award annulled in Egypt, reasoning that the parties had agreed that the award would not be challenged in domestic courts and, in light of this, US public policy in favor of final and binding arbitration outweighed the fact that the award was set aside.956 The reasoning of this case is, however, obscure and the US courts have distanced themselves from it in subsequent decisions. 390 While refusing to recognize the setting aside of an award by the courts of the award’s country of origin is an exception for Dutch and US law, under French arbitration law it is the rule. The French courts do not consider the setting aside or annulment of an arbitral award in its country of origin to be a ground to deny enforcement. French courts adhere to the position that an international award is independent from the legal system of its country of origin and apply French international arbitration law, which excludes the setting aside of an award as a ground to refuse its enforcement.957 French Rostock, BB 2000, Beil. 37, p. 20 = XXV Y.B. Com. Arb. 717 (2000) (refusing enforcement of an award set aside by a Russian court); OLG Dresden, SchiedsVZ 2007, 327 = XXXIII Y.B. Com. Arb. 510 (2008) (refusing enforcement of an award set aside by a Belorussian court). 950 Marshall Islands: Boreta Ltd. v. Constant Finance Ltd., XLIII Y.B. Com. Arb. 519 (2018); Netherlands: HR, XLIII Y.B. Com. Arb. 529 (2018). 951 See e.g. Hong Kong: Dana Shipping and Trading SA v. Sino Channel Asia Ltd., XLII Y.B. Com. Arb. 385 (2017); Netherlands: Gerechtshof Amsterdam, XLII Y.B. Com. Arb. 461 (2017); UK: Nikolay Viktorovich Maximov v. OJSC Novolipetsky Metallurgichesky Kombinat, XLII Y.B. Com. Arb. 558 (2017); US: Getma Int’l v. Republic of Guinea, XLII Y.B. Com. Arb. 706 (2017) (D.D.C. 2017). 952 Netherlands: HR, XLIII Y.B. Com. Arb. 529 (2018). 953 Netherlands: Gerechtshof Amsterdam, XXXIV Y.B. Com. Arb. 703 paras 4–23 (2009); Netherlands: HR, XXXV Y.B. Com. Arb. 423–426 (2010) (confirming the decision of Apr. 28, 2009 by the Court of Appeals (Gerechtshof)); US: Chromalloy Aeroservs., Inc. v. Arab Republic of Egypt, 939 F. Supp. 907 (D.D.C. 1996) = XXII Y.B. Com. Arb. 1001, 1012 (1997); France: Cass., Rev. arb. 1994, 327 = XX Y.B. Com. Arb. 663–665 (1995); Read, 10 Am. Rev. Int’l Arb. 177 (1999). 954 Netherlands: Gerechtshof Amsterdam, XXXIV Y.B. Com. Arb. 703 paras 4–23 (2009). 955 See van den Berg, (2010) 27 J. Int. Arb. 179–181. 956 US: Chromalloy Aeroservs., Inc. v. Arab Republic of Egypt, 939 F. Supp. 907 (D.D.C. 1996) = XXII Y.B. Com. Arb. 1001, 1012 (1997). 957 France: Cass., XX Y.B. Com. Arb. 663–665 (1995) (enforcing an award annulled in Switzerland, reasoning that the award was an international award, was not integrated into the legal regime of Switzerland and thus continues to exist in the eyes of French courts); Cass., Rev. arb. 1993, 258 = XIX Y.B. Com. Arb. 662, 663 (1994); Cass., XXXII Y.B. Com. Arb. 299, 302 (2007) (enforcing an arbitral award annulled in England, reasoning that an award “is not anchored in any national legal order” and its validity must be determined under the laws of the enforcement court); Cass., Rev. arb. 1985, 432 =

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courts rely on the more-favorable-right provision of Article VII(1) (Õ Art. VII para. 2) to justify the application of French law to international awards.958 Some commentators consider the French approach an abuse of discretion and a violation of the NYC principles.959 However, this criticism is unwarranted when considering that the NYC, specifically in Article VII(1), allows France to rely on its domestic law. The French approach thus conforms to the letter of the NYC. Once the enforcing court receives proof that the award has been set aside in the 391 country of origin, the enforcing court has discretion as to what effect it gives to this defense. With the exception of France (Õ para. 390), the enforcing courts tend to treat a decision of a foreign court with due deference and to not enforce set aside awards.960 However, the courts might enforce an award in extraordinary circumstances,961 such as egregious violations of due process principles.962 The NYC is silent on the criteria to be followed by the enforcing court in exercising its discretion. The enforcing court usually finds guidance in domestic law on this matter.963 b) Limitation of Grounds for Setting Aside by Article IX of the European Convention In some cases the NYC and the European Convention (Õ Annex V 3) may govern 392 the enforcement of an arbitral award simultaneously. When this happens, Article IX(1) of the European Convention modifies the NYC in such a way that the enforcing court may deny the enforcement of the foreign arbitral award only if it was set aside in its country of origin based on at least one of the following grounds: (a) lack of an arbitration agreement, or (b) violation of the right to be heard, or (c) the award deals with matters outside the scope of arbitration, or (d) violation of arbitral procedure (Õ Art. VII para. 88).964 This limitation on enforcement renders the European Convention more favorable to the enforcement of arbitral awards than the NYC is. Article VII(1) thus justifies the modification (Õ Art. VII para. 5) of the NYC, under which the applicable legal regime more favorable to enforcement than the NYC prevails. The most common example of both Conventions at work is when Article IX(1) 393 obliges the enforcing court to enforce the award that was set aside by the court in the country of origin based on public policy considerations, which is not one of the grounds listed in Article IX(1) and thus should be ignored by the enforcing court.965 c) Preclusion of Pleas as to the Tribunal’s Jurisdiction by Article V(2) of the European Convention Article V(2) of the European Convention (Õ Annex V 3) places an additional 394 limitation on the enforcing court’s discretion to refuse the enforcement of the award XI Y.B. Com. Arb. 484 (1986) (enforcing an award set aside in Austria); see also Gaillard/Savage, Fouchard Gaillard Goldman, para. 1595. 958 France: Cass., XXXII Y.B. Com. Arb. 299, 300 (2007) (explaining that the most-favorable-right provision in Article VII(1) allowed the seeking of enforcement of the arbitral award in France under French law). 959 See van den Berg, (2010) 27 J. Int. Arb. 179, 187. 960 US: TermoRio S.A. E.S.P. v. Electranta S.P., XXXIII Y.B. Com. Arb. 955, 965 (2008) (D.C. Cir. 2007). 961 Netherlands: HR, XLIII Y.B. Com. Arb. 529 (2018). 962 Netherlands: Gerechtshof Amsterdam, XXXIV Y.B. Com. Arb. 703 paras 4–23 (2009). 963 Paulsson, 7 Am. Rev. Int’l Arb. 99 (1996). 964 See also Austria: OGH, IPRax 2006, 496 = XXX Y.B. Com. Arb. 421, 425–430 (2005) (citing Burgstaller, ZfRV 2000, 83, 88). 965 Austria: OGH, IPRax 2006, 496 = XXX Y.B. Com. Arb. 421, 425–430 (2005); Germany: OLG München, OLGR München 1995, 57, 59; Austria: OGH, IPRax 2000, 314, 317 = Rev. arb. 1999, 385 = XXIVa Y.B. Com. Arb. 919 (1999).

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Article V 394a–396

New York Convention

(Õ Prel. Rem. para. 67). Specifically, if the decision of the domestic court to set aside the award was based on the finding that the arbitral tribunal lacked jurisdiction and the plea as to the arbitrator’s jurisdiction was raised outside of the time limits specified in Article V(1) of the European Convention, such a decision to set aside cannot constitute a ground for refusing the enforcement of the award (Õ Art. VII para. 89). d) Recognition of the Setting-Aside Decision 394a There is no requirement that the court decision setting aside the award itself must be recognized in the country where recognition and enforcement is sought.966

2. Suspension a) Automatic Suspension v. Judicial Suspension The meaning of suspension is not clearly defined by the NYC. Nonetheless, the majority view emerged that “suspended” refers to a conscious decision by a competent authority in the country of the award’s origin.967 The reasoning behind this view is that an automatic suspension by operation of domestic law satisfies neither the language of Article V(1)(e) nor the intent and purpose of the NYC. First, giving effect to an automatic suspension would be in contradiction to the wording of Article V(1)(e), which requires an act by a competent authority and not merely a passive application of law.968 Second, giving effect to an automatic suspension would amount to a broad interpretation of Article V(1)(e), opening more avenues for refusing the enforcement of arbitral awards, which would contradict the NYC’s intent to facilitate the enforcement of arbitral awards.969 Examples of judicial decisions supporting this view include UK, US, Swiss and Swedish courts, which refused to consider the award suspended for the purposes of Article V(1)(e) where a mere application to set aside the award in the court of the country of origin automatically suspended the award.970 396 The current general view is therefore that automatic suspension fails to satisfy the language of Article V(1)(e). This leaves a suspension by a judicial act as the only candidate for suspension within the meaning of Article V(1)(e). However, the conclusion that a suspension decision necessarily indicates doubts about the award is unconvincing. A judicial decision to suspend may be superficial, e.g. if the judge suspended the award merely because the party showed that the application for setting the award aside had been filed. This is not to suggest that the enforcement judge needs 395

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Brazil: Superior Tribunal de Justiça, XLI Y.B. Com. Arb. 415 (2016). Gharavi, International Effectiveness, p. 64 (citing Gaillard/Savage, Fouchard Gaillard Goldman, para. 1690: “the Convention requires the award to be suspended by a ‘competent authority,’ which would appear to exclude a suspension operating automatically under the law of the country of origin.”); van den Berg, XXVIII Y.B. Com. Arb. 562, 661 (2003); Cayman Islands: The Republic of Gabon v. Swiss Oil Corp., XIV Y.B. Com. Arb. 621, 624 (1989) (holding that only a conscious decision to suspend the award by the competent authority can have a suspensive effect within the meaning of the NYC); Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237, 240 (1981); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, X Y.B. Com. Arb. 487, 489 (1985). 968 UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 857, 861 (2006); US: Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1155–1156 (2005) (N.D. Ill. 2005); Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237, 240 (1981). 969 Switzerland: BG, XXXIV Y.B. Com. Arb. 810, 816 (2009) (reasoning that Article V(1)(e) must be interpreted restrictively to favor the enforcement of the award, and that only such an approach would support the NYC’s intent to enable parties to easily enforce awards in third countries). 970 UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 857, 861 (2006); US: Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1155–1156 (2005) (N.D. Ill. 2005); Switzerland: BG, XXXIV Y.B. Com. Arb. 810, 814–816 (2009); Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237, 240 (1981). 967

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to delve into how much doubt about the award is behind the judicial suspension. Prima facie analysis as to whether the suspension was based on its merits or was baseless should be sufficient to decide whether any given suspension should be given effect.971 Likewise, the exclusion of automatic suspensions is not justified. An additional concern is that treating various types of suspensions unequally might produce a peculiar result, where enforcing the automatically suspended award is easier than the award against which the suspension application is pending. There is thus no argument that supports imposing limitations on the discretion of the enforcement judge in such cases; the judge may question the soundness of grounds for the suspension on a prima facie basis. b) Stay of the Award’s Enforcement An additional issue that arises with respect to suspension is whether staying the enforcement of the award at the arbitral seat can be treated as suspension within the meaning of Article V(1)(e).972 This question generates controversy when the stay is granted with respect to the enforcement attempt only, while the merits of the award remain unaffected. However, the practical consequence of such a stay is that the award is suspended at the seat of arbitration. As neither the NYC nor its drafting history provide guidance on the interpretation of the term “suspended,” such guidance may be found in the domestic arbitration laws in force at the time of the 1958 UN Conference. At that time several domestic arbitration laws, including those of Italy and Japan, allowed the enforcement court to suspend the enforcement of the award by express decision upon a party’s request while the award was subject to judicial review.973 The availability of suspension in effect provides for an option to stay the enforcement attempt while the merits of the award are being reconsidered.974 The conclusion can be drawn that the drafters of the NYC, at least, understood that the term “suspended” might include the staying of the enforcement attempt. In the years following the adoption of the NYC, the arbitration laws of countries such as Canada, Russia, Sweden, the United Kingdom and Israel adopted an approach allowing the suspension of the enforcement court’s revision of the award while the arbitrators are reconsidering the award.975 This approach in effect also validates the notion of suspension of the enforcement attempt only. What is common to the approach existing in 1958 and the one adopted subsequently is that the court grants the suspension upon considering the probability of success of the action challenging the award.976 Accordingly (just as with setting aside (Õ para. 391)), the enforcement courts have discretion when determining how much 971 See Darwazeh, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 342 (noting that doubts of the court in the country of origin are an important element when considering a suspension); Gaillard/Savage, Fouchard Gaillard Goldman, para. 1690 (defining “suspended” as indicative of the court’s suspicion about a defect in the award). 972 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 21.475–21.479; van den Berg, NYC, p. 351. 973 Burghetto, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, pp. 273, 277–278 (citing Article 830 of the Code of Civil Procedure (Italy, 1940), Article 802(2) of the Law No. 29 (Japan, 1890)). 974 Burghetto, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, pp. 273, 279. 975 Burghetto, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, pp. 273, 278 (citing the Article 34(4) of the Commercial Arbitration Act (1986), Article 34(4) of the Law of the Russian Federation on International Commercial Arbitration (1993), Article 35(1) of the Arbitration Act of 1999, Article 68(3)(a) of the English Arbitration Act of 1996, Articles 24–25 of the Israeli Arbitration Law (1968)). 976 Burghetto, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, pp. 273, 279.

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New York Convention

deference the suspension is entitled to. Since no guidance on the standards for exercising such discretion exists, the enforcement courts can consult their domestic laws, just as the courts do when the award was set aside (Õ para. 391). The logical course of action for an enforcement judge faced with the issue of suspension resulting from a stay of enforcement is therefore to apply a non-intrusive analysis of the probability of success of the action challenging the award against the background of the enforcement judge’s domestic law. Reliance on domestic law may compromise the uniformity of the NYC’s interpretation, but this is a necessary price for allowing discretion. Ways in which the interpretation issue can be addressed in the future are discussed in the Preliminary Remarks (Õ Prel. Rem. paras 102–104). 401 If the suspension is expected to be short-lived, an adjournment under Article VI (Õ Art. VI para. 1) may be a more appropriate course of action.977 402 In conclusion, Article V(1)(e) empowers the enforcing court to refuse the recognition and enforcement of an arbitral award that was suspended by an act of a competent authority. A judicial suspension of the award is generally given great deference and is subject only to prima facie analysis as to whether or not it was based on the merits. The prevailing view is that the NYC does not cover automatic suspensions by operation of law. However, the enforcement courts should not exclude automatic suspensions, but also conduct a prima facie examination of the soundness of grounds for the suspension in such cases. A suspension resulting from a stay of enforcement proceedings while the merits of the award are intact justifies an inquiry by the enforcement court into the probability of success of the challenge due to which the enforcement was stayed.

3. Competent Authority The language of Article V(1)(e) indicates that only a decision to suspend the award made “by a competent authority of the country in which, or under the law of which, that award was made” is decisive under Article V.978 Any decision in any other forum will be irrelevant.979 404 A virtually universal approach adopted by courts is that the reference to the country in which the award was made refers to the procedural body of law under which the arbitration was conducted (Õ Art. I paras 98 et seq.).980 403

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See Sutton/Gill/Gearing, Russell on Arbitration, para. 8-020. Sanders, 6 Neth. Int’l L. Rev. 43, 55 (1959) (“Here only one competent authority is meant; either the Court of the country where the award was made, or the Court of the country under the law of which the award was made.”). 979 See Born, International Commercial Arbitration, p. 2989. See US: Libancell S.A.L. v. Republic of Lebanon, XXXI Y.B. Com. Arb. 1486, 1491 (2006) (S.D.N.Y. 2006) (when an arbitral award was issued in Beirut, the US court was not a competent authority); Nicor Int’l Corp. v. El Paso Corp., XXIX Y.B. Com. Arb. 1140, 1157 (2004) (S.D. Fla. 2003) (when the Dominican Republic was not the competent authority, the Dominican court’s refusal to recognize the award did not constitute a ground for refusing the enforcement of the award under the NYC); Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A., 267 F. Supp. 2d 1335, 1347 (S.D. Fla. 2003) = 2003 U.S. Dist. LEXIS 9868 = XXIX Y.B. Com. Arb. 882, 896 (2004) (refusing to give effect to a Venezuelan annulment of an award that was made in Florida); Italy: CA Milano, XXXII Y.B. Com. Arb. 397, 399–400 (2007) (enforcing a Swiss award when the defendant brought a counter credit claim in an Italian rather than a Swiss court); US: Int’l Trading & Indus. Inv. Co. v. Dyncorp Aerospace Tech. AS, 763 F. Supp. 2d 12 (D.D.C. 2011) = XXXVI Y.B. Com. Arb. 415 (2011) (the decision to set aside the award by the Qatari court was irrelevant for Article V(1)(e) purposes when the competent authority was France). 980 US: Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 178 (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639, 641–645 (1992) (based on a thorough review of the NYC’s drafting debates, its final text and numerous court decisions on the issue, the court found that the competent authority refers to the arbitral procedural law under which the arbitration was conducted); Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A., 267 F. Supp. 2d 1335, 1347 (S.D. 978

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The most common approach for identifying the applicable procedural law is to defer 405 to the parties’ designation of the seat of arbitration and to disregard such facts as where the arbitrators met, hearings were held, the award was signed or the dispute arose.981 The parties’ designation of the arbitral seat would thus be the connecting factor for determining the relevant procedural law, i.e. the arbitration law of the arbitral seat.982 More and more legal systems have adopted this approach to the definition of an arbitral seat.983 In some cases the parties fail to contractually designate the seat of arbitration directly 406 in their arbitration agreement. However, if they have chosen institutional rules the arbitral seat can nevertheless be determined in many instances. Two types of institutional rules exist. The first type of institutional rules directly states what the seat should be. The second type of institutional rules specifies a method for determining the arbitral seat and delegates the selection of the seat either to the arbitral tribunal or to the arbitral institution.984 An intricate situation arises where the parties’ agreement neither designated the 407 arbitral seat nor identified institutional rules (ad hoc arbitration). The NYC does not provide for a solution in such cases. Domestic arbitral rules may be consulted for resolving the issue of the arbitral seat. The UNCITRAL Model Law delegates the selection of the arbitral seat to the arbitral tribunal.985 However, some domestic

Fla. 2003) = 2003 U.S. Dist. LEXIS 9868 = XXIX Y.B. Com. Arb. 882, 893–896 (2004) (“’competent authority’ is a court of the country that supplied the procedural law used in the arbitration.” Id. at 895); Steel Corp. of the Philip. v. Int’l Steel Servs., Inc., XXXIII Y.B. Com. Arb. 1125, 1130 (2008) (W.D. Pa. 2008) (holding that Singapore was the competent authority because its procedural law applied to the arbitration); M&C Corp. v. Erwin Behr GmbH & Co. KG, 87 F.3d 844, 848 (6th Cir. 1996) = XXII Y.B. Com. Arb. 993, 995 (1997) (“[…] judicial review of such an award is extremely limited and extends only to procedural aspects of the determination.”); Hong Kong: Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXVIII Y.B. Com. Arb. 752, 768–776 (2003); US: Steel Corp. of the Philip. v. Int’l Steel Servs., Inc., XXXII Y.B. Com. Arb. 789, 792 (2007) (W.D. Pa. 2006). 981 US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXIX Y.B. Com. Arb. 1262, 1273 (2004) (5th Cir. 2004) (holding that the parties’ designation of Geneva as the seat of arbitration in their agreement created a strong presumption that the procedural law of Switzerland applies to the arbitration); UK: Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., [1993] AC 334 = XIX Y.B. Com. Arb. 736 (1994) (holding that the natural conclusion is that by contractually agreeing to arbitrate in a particular country, the parties agreed that their arbitral process must be governed by the law of that country); Mann, (1985) 1 Arb. Int’l 107, 108 (“[…] an award is ‘made’ at the place at which the arbitration is held, ie, at the arbitral seat. It is by no means necessarily identical with the place or places where hearings are being held or where the parties or the arbitrators reside.”); see e.g. Article 31(3) of the Model Law; Belgium, Article 1701(5)(d) and (e) of the Judicial Code; England, sections 52(5) and 53 of the Arbitration Act; Germany, section 1054(3) ZPO; Italy, Article 828 CCP. 982 Belgium: CA Bruxelles, VII Y.B. Com. Arb. 316, 317 (1982) (“It is generally accepted that […] the arbitral procedure is governed by the law of the country in which the arbitration takes place.”); see also Born, International Commercial Arbitration, p. 2950; Article 34 of the Model Law. 983 Born, International Commercial Arbitration, p. 2950 (“The correct view is that an award is ‘made’ in the place that the parties have contractually selected […].”); US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXIX Y.B. Com. Arb. 1262, 1273 (2004) (5th Cir. 2004); Steel Corp. of the Philip. v. Int’l Steel Servs., Inc., XXXIII Y.B. Com. Arb. 1125, 1130 (2008) (W.D. Pa. 2008); Hong Kong: Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXVIII Y.B. Com. Arb. 752, 768–776 (2003); UK: Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., XIX Y.B. Com. Arb. 736 (1994). 984 Murray, 41 Va. J. Int’l L. 859, 876–678 (2000–2001) (indicating that proper international practice is to entrust the decision-making regarding the seat of arbitration to the institution that the parties contractually chose). 985 Article 20(1) of the Model Law.

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Article V 408–410

New York Convention

legislation, such as that of England,986 Japan and Sweden, allocates the power to select the arbitral seat to the domestic courts.987 If domestic arbitration statutes do not address the arbitral seat selection issues, the involvement of domestic courts might be the only reasonable avenue left since the courts will simply have no grounds on which to defer the issue of seat determination to an arbitral institution or tribunal.988 From a practical point of view, the enforcement judge will have to be convinced that the court before which the challenge action or the request for suspension is pending is competent under the domestic law. However, no international rules exist regarding the international allocation of competence of domestic courts. 408 An additional issue arises when the arbitration is conducted over the internet.989 No actual case has yet been presented on this issue. Proposed solutions include the arbitral seat being (a) a “fictitious” place designated by the parties; (b) where the arbitrator is (which is impractical if the members of an arbitral tribunal have their domiciles in different jurisdictions); or (c) the geographical location of the computer server through which the arbitral proceedings took place.990 409 The place under the law of which the award was made refers to the supposition that the parties might have contractually agreed that disputes over the award will be governed by an arbitration law that is different from the law of the arbitral seat (Õ Art. I para. 116).991 Upon examining multiple legal authorities, one US court extracted the following description of the possibility of such an agreement: “exceptional, almost unknown, purely academic invention, almost never used in practice, more theoretical than real, and once-in-a-blue-moon set of circumstances.”992 What is clear is that “under the law of which” does not refer to the substantive law applicable to the dispute.993 410 Although such agreements are rare, an English case demonstrates precisely such a situation. In Braes of Doune Wind Farm, the parties’ agreement named Glasgow, Scotland as the seat of the arbitration and named English law as the law governing the arbitral proceedings.994 The High Court of England and Wales reasoned that when “in substance the parties agree that the laws of one country will govern and control a given arbitration,” the words “the seat of the arbitration” refer to the physical location where arbitration proceedings are to be conducted.995 As a result, although 986 See UK: Halpern v. Halpern, XXXI Y.B. Com. Arb. 964, 968–974 (2006) (the English court determined the arbitral seat as England or Switzerland where the parties’ arbitration agreement failed to clearly specify the seat and chose Jewish law [which is a system of law without a connection to any State] to govern their dispute). 987 Article 2(4)(a) of the English Arbitration Act 1996; Article 8(1) of the Japanese Arbitration Law; Article 47 of the Swedish Arbitration Act; US: Ishwar Jain v. Henri Courier de Mere, 51 F.3d 686 (7th Cir. 1995) = XXI Y.B. Com. Arb. 759, 761–762 (1996) (when an arbitration agreement contains no provision for the arbitral seat, 9 U.S.C. 4 empowers a district court in which the petition to compel the arbitration is brought to designate the arbitral seat in its own district). 988 Born, International Commercial Arbitration, p. 2106. 989 Arsic, (1997) 14 J. Int. Arb. 209, 217–220. 990 Arsic, (1997) 14 J. Int. Arb. 209, 217–220. 991 Van den Berg, NYC, pp. 321–322; US: Steel Corp. of the Philip. v. Int’l Steel Servs., Inc., XXXII Y.B. Com. Arb. 789, 793 (2007) (W.D. Pa. 2006); Coutinho Caro & Co. U.S.A., Inc. v. Marcus Trading, Inc., 2000 U.S. Dist. LEXIS 8498 (D. Conn. 2000) = XXVI Y.B. Com. Arb. 894 (2001). 992 US: Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXIX Y.B. Com. Arb. 1262, 1272–1273 (2004) (5th Cir. 2004). 993 US: Newco Ltd. v. Gov’t of Belize, XLI Y.B. Com. Arb. 607 (2016) (D.D.C. 2015); India: Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc., CLOUT Case No. 1424 = XXXVII Y.B. Com. Arb. 244 (2012). 994 UK: Braes of Doune v. Alfred McAlpine Business Services, Ltd., [2008] EWHC 426, paras 6, 17. 995 UK: Braes of Doune v. Alfred McAlpine Business Services, Ltd., [2008] EWHC 426, para. 17(f).

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Article V

Scotland was named as the arbitral seat, the procedural law governing the arbitration was found to be English.996 Naming one country as the seat of arbitration while subjecting the arbitral proceedings 411 to the laws of another State significantly complicates the arbitration process. For example, the parties’ dispute might be subject to two sets of procedural rules, thereby adding another tier of rules and creating a conflict of law.997 This happens when the law of the seat contains provisions that are mandatory for all arbitration proceedings.998 In addition, any court will experience difficulty applying foreign procedural law.999 Furthermore, if judicial assistance becomes necessary during arbitral proceedings (e.g. challenge of an arbitrator or subpoenaing a witness) a disagreement might arise as to which court should have jurisdiction.1000 Similarly, conflict between judicial jurisdictions might become an issue when an award is being challenged.1001 Parties are therefore strongly advised against such agreements. However, if parties consciously enter into such an agreement, the enforcing court must follow the parties’ intention in order to enforce their right to freedom of contract. Should the agreement be ambiguous (as was the case in Braes of Doune Wind Farm), the enforcement court must search for and give effect to the true intention of the parties, as the High Court properly did (Õ para. 410). Recently, the American Law Institute brought more clarity to the issue of concurrent 412 jurisdiction by redrafting the Restatement of the Law Third on the US Law of International Commercial and Investor-State Arbitration. According to the latter, Section 4.14(d) specifies that when the parties designate a State different from the State whose procedural law applies as a seat of arbitration, the courts of both States concurrently enjoy the power to set aside or suspend the award.1002 The Reporters’ Notes explain that the Restatement addressed the issue of concurrent jurisdiction in order to validate the parties’ intent and thereby promote legal certainty, while the use of the requirement that the parties’ intention must be “unambiguous” underlines that such situations are unusual.1003 The Reporters’ Notes also describe how the issues arising from concurrent jurisdiction and inconsistent judgments must be dealt with under different scenarios.1004 This is to be distinguished from the issue of whether the parties can agree on the 412a international jurisdiction of courts under Article V(1)(e); such an agreement is not valid.1005 It is not foreseen by the New York Convention.

996

UK: Braes of Doune v. Alfred McAlpine Business Services, Ltd., [2008] EWHC 426, para. 17(f). Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 3.66. 998 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 3.66. 999 Hwang/Cheng, 4(2) Asian Int’l Arb. J. 195, 215 (2008); see UK: Naviera Maritima Peruana S.A. v. Compania Internacional de Seguros de Peru, XIII Y.B. Com. Arb. 156 (1988) (noting that administering proceedings in Peru under English law would be a virtually impossible task for the English courts). 1000 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 3.66. 1001 Hwang/Cheng, 4(2) Asian Int’l Arb. J. 195, 215 (2008). 1002 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.14(d) (p. 655). 1003 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.14 Reporters’ Note b(ii) (p. 661 lines 46–40). 1004 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.14 Reporters’ Note b(iii) (p. 662 lines 7–20). 1005 US: Int’l Trading & Indus. Inv. Co. v. Dyncorp Aerospace Tech. AS, XXXVI Y.B. Com. Arb. 415 (2011) (D.D.C. 2011). 997

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Article V 413–415

New York Convention

4. Other Events Depriving the Award of Its Binding Force a) Doctrine of Merger 413 The doctrine of merger reflects the notion that an arbitral award stops being a foreign award for purposes of the NYC when a court in the country of origin issues leave for enforcement, thereby converting the award into a court judgment of that country.1006 In a common law jurisdiction such as the United States or England and Wales, a court must confirm an award through a judgment in order to render the award enforceable, and this judicial confirmation, under the laws of these countries, merges the award into a judgment.1007 For the purposes of those domestic laws, the merger of the award into a judgment means that the award can be subjected only to the law on judgments.1008 The reasons for this practice lie in theories of contract, res judicata and the preclusion of splitting causes of action.1009 414 With rare exceptions (Õ Art. I paras 52–53),1010 most courts follow the view that the merger doctrine operates only within the award’s country of origin and does not have an extraterritorial effect (Õ Art. I paras 48–51).1011 The courts reason that the NYC does not require the award to be legally independent, does not contain any indications on the doctrine of merger and aims to facilitate the enforcement of foreign arbitral awards.1012 An award that was rendered enforceable in the country of origin and thereby underwent the merger process can thus generally be enforced abroad as an award without impediments. 415

b) Limitation Period for Enforcement The procedural rules of some countries impose time limitations during which the award must be enforced.1013 If such time has passed in the country where the enforcement of the award is being sought, it can no longer be enforced there.1014 However, statutes of limitations do not have an extraterritorial effect because they are of procedural nature and can take effect only within the territory where the legal action is 1006

Van den Berg, XXVIII Y.B. Com. Arb. 562, 661 (2003). Article 66 of the English Arbitration Act 1996; Germany: OLG Hamburg, IV Y.B. Com. Arb. 266, 268 (1979); Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, paras 11.13–11.16; 9 U.S.C. 9; Mosk, (2001) 18 J. Int. Arb. 463, 465–466. 1008 Mosk, (2001) 18 J. Int. Arb. 463, 465–466; US: Springs Cotton Mills v. Buster Boy Suit Co., 88 N.Y.S.2d 295, 297 (App. Div. 1949); Oilcakes & Oilseeds Trading Co. v. Sinason Teicher Inter Am. Grain Corp., 170 N.Y.S.2d 378, 379 (1958) (holding “A judgment entered upon an award is subject to all provision of law relating to a judgment in an action and has the same force and effect of said judgment.”). 1009 Mosk, (2001) 18 J. Int. Arb. 463, 466; Germany: OLG Hamburg, IV Y.B. Com. Arb. 266, 267–268 (1979); Germany: BGH, NJW 1984, 2763 = X Y.B. Com. Arb. 427, 428 (1985). 1010 Germany: BGH, NJW 2009, 2826 = SchiedsVZ 2009, 285 = IHR 2010, 178 = XXXV Y.B. Com. Arb. 374 (2010) (denying the enforcement of an arbitral award that was incorporated and thus merged into a judgment by a California Court, based on the reasoning that the enforcement of such merged award would lead to double exequatur and thus undermine the regime of the NYC). 1011 Mosk, (2001) 18 J. Int. Arb. 463, 468; France: CA Paris, Rev. arb. 1960, 48; India: Harendra H. Mehta v. Mukesh H. Mehta, [1999] 97 Com.Cas. 265 = XXV Y.B. Com. Arb. 721 (2000); Australia: Brali v. Hyundai Corp., 84 ALR 176 = XV Y.B. Com. Arb. 360 (1990); Netherlands: Voorzieningenrechter, Rechtbank Utrecht, XI Y.B. Com. Arb. 521, 522 (1986) (in excerpts). 1012 US: Oriental Commercial & Shipping Co. v. Rosseel, N.V., XVII Y.B. Com. Arb. 696, 698 (1992) (S.D.N.Y. 1991); India: COSID Inc. v. Steel Authority of India Ltd., XI Y.B. Com. Arb. 502, 504–505 (1986); Germany: BGH, NJW 1984, 2763 = X Y.B. Com. Arb. 427, 428 (1985); OLG Hamburg, IV Y.B. Com. Arb. 266, 267 (1979). 1013 US: Jam. Commodity Trading Co. v. Connell Rice & Sugar Co., XVIII Y.B. Com. Arb. 466, 468–469 (1993) (S.D.N.Y. 1991); Canada: Yugraneft Corp. v. Rexx Management Corp., XXXIII Y.B. Com. Arb. 433, 437–442 (2008). 1014 Canada: Yugraneft Corp. v. Rexx Management Corp., XXXIII Y.B. Com. Arb. 433, 437–442 (2008) (holding that the enforcement of the award was time-barred under Canadian procedural law). 1007

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brought.1015 The award can thus still be enforced in other Member States according to the domestic rules of procedure of that Member State.1016 Article III supports this limitation of the application of procedural rules to the territory where the enforcement action is brought (Õ Art. III. para. 14).1017

5. Analogous Application of Article V(1)(e) in the Aftermath of the Enforcement Order The situation may arise where the award has been set aside or suspended in its 416 country of origin after a foreign court had ordered its enforcement. Article V(1)(e) does not expressly cover such circumstances. As of today, only one such case has occurred in practice.1018 In the aforementioned case a French court recognized an award rendered by the tribunal with its arbitral seat in Austria.1019 Afterwards, the Vienna Higher Regional Court set the award aside.1020 The Paris Appellate Court considered the new evidence and reversed the earlier decision recognizing the award.1021 That decision was reversed in turn and the award was recognized based on the French provision allowing enforcement of awards set aside at the arbitral seat (Õ para. 390).1022 According to some commentators, reversing the enforcement order in such situations 417 is the proper course of action.1023 However, the issues of fairness which require the cancellation of enforcement must be balanced against the right to legal certainty, meaning a right to treat the court order as final and conclusive. Additionally, Article V’s use of the word “may” grants the enforcement court discretion (Õ paras 74–80) to enforce the award even if it was set aside in its country of origin, while Article VII(1) allows it to disregard the setting aside decision if the law of the enforcement court allows the enforcement, which is exactly what happened in the French case discussed above (Õ para. 416).1024 Consequently, the NYC does not require consistency in the decisions of the court at the arbitral seat and enforcement court. The right to legal certainty therefore justifies leaving the enforcement order intact after the award has been set aside or suspended at the arbitral seat and such outcome is in line with the language of Article V.

J. Objective Arbitrability, Article V(2)(a) I. Overview The concept of arbitrability as codified in Article V(2)(a) for the post-award 418 stage1025 deals with the simple question of what types of issues can be decided by 1015 Canada: Northern Sales Co. Ltd. v. Compania Maritima Villa Nova S.A., XVIII Y.B. Com. Arb. 363, 375–376 (1993) (holding that the enforceability of the award in Canada is not affected if it is time-barred under English procedural law, because an action in a Canadian court is governed by Canadian law). 1016 Japan: Okayama District Court, XXII Y.B. Com. Arb. 744, 746–747 (1997). 1017 Japan: Okayama District Court, XXII Y.B. Com. Arb. 744, 746–747 (1997). 1018 France: CA Paris, XI Y.B. Com. Arb. 484 (1986). 1019 France: TGI Paris, Rev. arb. 1983, 466. 1020 Austria: OLG Wien, VIII Y.B. Com. Arb. 365 (1983). 1021 France: CA Paris, XI Y.B. Com. Arb. 484 (1986). 1022 France: Cass., XI Y.B. Com. Arb. 484 (1986). 1023 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.473; van den Berg, NYC, p. 351. 1024 France: Cass., XI Y.B. Com. Arb. 484 (1986). 1025 Õ Art. II paras 158 et seq. for the pre-award stage.

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Article V 419–420

New York Convention

arbitration,1026 i.e. what classes of disputes are removed from arbitration and placed within the exclusive jurisdiction of the Contracting States’ courts. Although the notion of “arbitrability” is sometimes also used in a broader sense to cover the entire issue of the tribunal’s jurisdiction (including the validity and scope of the arbitration agreement),1027 in the prevailing international understanding “arbitrability” refers only to the restrictions imposed upon the parties’ freedom to submit certain types of disputes to the jurisdiction of an arbitral tribunal.1028 419 While the concept of arbitrability is the subject of considerable academic debate, in arbitral practice it rarely results in the refusal of an arbitral award’s recognition or enforcement.1029 By way of example, during the more than 40 years in which the Yearbook of Commercial Arbitration has been published, it seems to have reported less than ten cases of refusal of recognition or enforcement due to a lack of arbitrability.1030 As the range of issues considered arbitrable has been substantially widened in almost all Contracting States in recent years (Õ para. 431), it is not too far-fetched to say that most commercial disputes are arbitrable under the laws of most Contracting States nowadays.1031 420 Nevertheless, there are still areas of controversy.1032 These relate both to the general concept of the arbitrability doctrine (e.g. is arbitrability to be distinguished from substantive invalidity? Are there limits to restricting arbitrability? Õ paras 425 et seq. and Õ paras 441 et seq.), as well as to its scope of application, which differs to varying 1026 Switzerland: BG, 11(1) ASA Bull. 58 (1993) = BGE 118 II 353 = XX Y.B. Com. Arb. 766, 767 (1995). 1027 This is particularly true for the US, cf. Shore, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 4-1 et seq.; Hanotiau, in: van den Berg (ed.), 40 Years of NYC, p. 146; Carbonneau/Janson, 2 Tul. J. Int’l & Comp. L. 193, 194 et seq. (1994); Park, (1996) 12 Arb. Int’l 137 et seq.; Park, in: van den Berg (ed.), Back to Basics?, pp. 55, 125 et seq. But see The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.15 Comment a (p. 667): “[T]his Section employs the short form of ‘arbitrability’ to refer to what is often called ‘subject matter arbitrability’”. The Restatement, accordingly, rejects the usage encountered in several judicial opinions in which ‘arbitrability’ refers to various aspects of the agreement to arbitrate, and, in particular, the agreement’s existence, scope, validity, and related issues.” 1028 UNCITRAL Secretariat, Guide, Art. V(2)(a) paras 6 et seq.; Lew/Mistelis/Kröll, Comparative Arbitration, para. 9-4; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.124; Hanotiau, in: van den Berg (ed.), 40 Years of NYC, p. 146; Mistelis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 1-17. 1029 UNCITRAL Secretariat, Guide, Art. V(2)(a) para. 7; ICCA, Guide, p. 105; Poudret/Besson, Comparative Arbitration, para. 931; Di Pietro, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 5-38. 1030 According to van den Berg, 18(2) ICC Bull. 1, 19 (2007), only three cases of refusal due to lack of arbitrability had been reported until 2007, namely Belgium: CA Liège, IV Y.B. Com. Arb. 254, 256 (1979) and Cass., V Y.B. Com. Arb. 257 (1980) (termination of an exclusive distributorship agreement); Tribunal de Commerce Bruxelles, VIII Y.B. Com. Arb. 360 (1983) (same subject matter); US: Corcoran v. Ardra Ins. Co., XVI Y.B. Com. Arb. 663 (1991) (N.Y. App. Div. 1990) (difference with the liquidator of an insolvent insurer). One may also cite US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155, 162 (1st Cir. 1983) = X Y.B. Com. Arb. 519, 524 (1985) (inarbitrability of antitrust disputes), reversed by 473 U.S. 614 (1985) = XI Y.B. Com. Arb. 555 (1986); Germany: BGH, NJW 1987, 3193 = RIW 1987, 867 = XIX Y.B. Com. Arb. 653 (1994) (inarbitrability of dispute violating the time and difference plea [Termin- and Differenzeinwand]); Italy: Tribunale di Bologna, XVII Y.B. Com. Arb. 534, 536 (1992) (inarbitrability of EC competition law disputes) and Cass., XLI Y.B. Com. Arb. 503 (2016) (inarbitrability of contractual rights connected to an embargo); Bosnia and Herzegovina: Sup. Ct., XLI Y.B. Com. Arb. 403 (2016) (inarbitrability of disputes concerning real estate located in Bosnia and Herzegovina). 1031 Likewise Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.160. See also UNCITRAL Secretariat, Guide, Art. V(2)(a) para. 20: “There is broad agreement among courts of the Contracting States that a dispute whose subject matter is of a commercial nature is capable of being settled by arbitration, and an arbitral award that results from a commercial difference should not be refused enforcement pursuant to article V(2)(a).” 1032 See Mistelis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 1‐49; Brekoulakis, in: Mistelis/ Brekoulakis (eds), Arbitrability, paras 2‐1 and 2‐86: “Inarbitrability is not dead; at least, not yet.”

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degrees between the Contracting States (Õ paras 451 et seq. for typical areas where arbitrability may be an issue). Ultimately, however, its significance in recognition or enforcement proceedings should not be overestimated.

II. Spirit and Purpose Like the public policy exception in Article V(2)(b) (Õ para. 490, Õ para. 492), the 421 arbitrability doctrine as embodied in Article V(2)(a) provides Contracting States with a “safety-valve” which allows them to protect their public interests. It rests on the notion that there may be subject matters in which public interests are involved to a degree that disputes arising out of these matters should be dealt with exclusively by the courts of the Contracting States.1033

III. Drafting History Article V(2)(a) can trace its origins back to Article 1(b) of the Geneva Conven- 422 tion.1034 The first draft of Article V(2)(a) – then numbered as Article IV(a) – was not subject to any substantial changes thereafter. The only material alteration related to the reference to the “subject matter of the difference,” which was originally phrased as the “subject matter of the award.”1035 This change was first considered in the text proposed by Working Party No. 3 on June 3, 19581036 and adopted by the Conference at its 17th meeting on June 4, 1958.1037 All other alterations between the first draft and the final text were of mere editorial nature and due to the introduction of Article IV(a) into a separate second paragraph and the change of numbering. Article V(2)(a) received its current wording and numbering in the text as proposed by the Drafting Committee on June 9, 1958.1038 During the negotiation of the NYC, the French delegation suggested deleting 423 Article V(2)(a) altogether,1039 as it would tempt the competent authority of the country in which the award was sought to be relied upon to give international application to rules which were of exclusive domestic validity.1040 The Conference did not follow this suggestion, albeit without discussion; as we know today, the concerns of the French delegation were unwarranted (Õ para. 438).

IV. General 1. Concept of Article V(2)(a) Both the public policy exception in Article V(2)(b) and the arbitrability doctrine in 424 Article V(2)(a) serve the same purpose, namely to allow Contracting States to protect 1033

Cf. Born, International Commercial Arbitration, p. 945. E/2704: E/AC.42/4/Rev.1, p. 9 (Õ Annex IV 1). 1035 E/2704: E/AC.42/4/Rev.1, p. 2 (Õ Annex IV 1). 1036 E/CONF.26/L.43, p. 2 (Õ Annex IV 1). 1037 E/CONF.26/L.48, p. 2 (Õ Annex IV 1). 1038 E/CONF.26.8, p. 3 (Õ Annex IV 1). Cf. also E/CONF.26/L.61, p. 3 (Õ Annex IV 1). See for a complete list of the travaux préparatoires for Article V(2)(a) UNCITRAL Secretariat, Guide, Art. V(2)(a) (pp. 225 et seq.). 1039 E/CONF.26/L.33/Rev.1, p. 5 (Õ Annex IV 1); E/CONF.26/L.32 (Õ Annex IV 1). 1040 E/CONF.26/SR.11, p. 7 (Õ Annex IV 1). 1034

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Article V 425–426

New York Convention

their public interests (Õ para. 421). It is for good reasons, however, that Article V(2) codifies these two grounds for refusing recognition or enforcement separately.1041 While the public policy exception addresses the issue where certain results reached by arbitral tribunals contradict fundamental notions of justice, the arbitrability doctrine stipulates that the arbitral process cannot be used per se to produce a binding decision in a particular case, no matter what its results are.1042 Against the background of this structural difference it is not surprising that Article 1(b) of the Geneva Convention (Õ Annex V 2) already figured arbitrability as a distinct ground for refusal next to the public policy exception in Article 1(e), a distinction the drafters readily incorporated into the NYC. This distinction will only become more relevant the less Contracting States delineate the borders of arbitrability on the basis of criteria related to public policy (Õ para. 431).

2. Distinction Between Non-Arbitrability and Substantive Invalidity Both the NYC and most national laws draw a clear distinction between nonarbitrability on the one hand and substantive invalidity of the arbitration agreement on the other,1043 essentially in three regards. First, while issues of substantive invalidity are determined by generally applicable principles of contract law (such as unconscionability, frustration and mistake), issues of non-arbitrability are defined by specific statutory legislation or jurisprudence prohibiting the application of arbitration agreements to particular types of disputes. Second, while the former invalidates the arbitration agreement in general and irrespective of what dispute is at issue, the latter has no impact on the validity of the arbitration agreement, but merely prevents its enforcement in a certain type of dispute. Third, while issues of substantive validity are determined at the post-award stage by the law chosen by the parties (in the absence of a choice by the law of the country where the award was made (Article V(1)(a)), issues of arbitrability are determined by the law of the country where recognition or enforcement is sought (Article V(2)(a)). 426 The second and third aforementioned differences are not communis opinio. Arbitration agreements are often considered to be “null and void” insofar as they relate to a dispute that is not arbitrable,1044 which may trigger the application of Article V(1)(a) (Õ para. 447). This understanding of the arbitrability doctrine, however, is difficult to reconcile with the legal framework provided by the NYC. Article II distinguishes between the subject matter’s incapability of settlement by arbitration as an obstacle to the recognition of the arbitration agreement on the one hand (Article II(1)) and the arbitration agreement’s invalidity on the other hand (Article II(3)). In a similar vein, the provisions about the recognition and enforcement of the award distinguish between the 425

1041 Diss. van den Berg, NYC, p. 360 (“arbitrability forms part of the general concept of public policy and […] therefore Article V(2)(a) can be deemed superfluous”) with further references. 1042 Born, International Commercial Arbitration, p. 952; Arfazadeh, (2001) 17 Arb. Int’l 73, 85; Kröll, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 16-27. 1043 Cf. Born, International Commercial Arbitration, p. 948; Kröll, SchiedsVZ 2009, 40, 44 et seq.; Kröll, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 16-28; Arfazadeh, (2001) 17 Arb. Int’l 73, 79 et seq.; Mistelis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 1-33; Brekoulakis, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 2-4, 2-58, 6-54; Pamboukis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 7-17; Perales Viscasillas, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 14-3; Paschalidis, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 219, 226 et seq.; Blessing, in: van den Berg (ed.), 40 Years of NYC, p. 168. 1044 Õ para. 492 and Õ Art. II para. 161 and Bernardini, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 503, 504; Bernardini, in: van den Berg (ed.), 40 Years of NYC, pp. 197, 199; Hanotiau, in: van den Berg (ed.), 40 Years of NYC, p. 146; Paulsson, ICC Bull. Special Supplement 1999, 95, 96; Switzerland: BG, 11(1) ASA Bull. 58 (1993) = BGE 118 II 353 = XX Y.B. Com. Arb. 766, 767 (1995); Italy: CA Genova, XXI Y.B. Com. Arb. 594, 598 (1996).

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lack of arbitrability on the one hand (Article V(2)(a)) and the invalidity of the agreement on the other (Article V(1)(a)). Arbitrability under the NYC is thus a condition precedent for the tribunal to assume jurisdiction over a particular dispute (and thus a jurisdictional requirement), rather than a condition for the validity of the arbitration agreement (contractual requirement).1045

3. Subject Matter of the Difference Not Capable of Settlement by Arbitration The notion of a subject matter that is “not capable of settlement by arbitration” as 427 used in Articles V(2)(a) and II(1) – which has the same meaning in both places1046 – does not refer to factual or practical incapability of settlement, respectively;1047 those would be cases in which an arbitration agreement is “incapable of being performed” in the sense of Article II(3) (Õ Art. II paras 312 et seq.). This notion rather refers to legal incapability of settlement, i.e. cases in which a national law forbids or restricts the arbitrability of particular claims or disputes.1048 In that regard, it is necessary to distinguish between restrictions relating to subjective (Õ para. 428) and objective arbitrability (Õ paras 429 et seq.). a) Subjective Arbitrability In some Contracting States, some entities (be they natural or legal persons) are 428 categorically prohibited from submitting their disputes to arbitration (also Õ para. 451). In such cases they lack subjective arbitrability1049 or the disputes lack arbitrability rationae personae.1050 This subjective arbitrability is not governed by Article V(2)(a), but by Article V(1)(a) alt. 1 (Õ paras 97 et seq.) and thus determined by the law applicable to the contracting entity (“parties […] were, under the law applicable to them, under some incapacity”).1051 b) Objective Arbitrability aa) Definition. Even if the contracting entity is not categorically denied the right to submit 429 its disputes to arbitration, it may nevertheless be prohibited from submitting certain kinds of disputes to the jurisdiction of an arbitral tribunal. In these cases the subject-matter of the dispute lacks objective arbitrability or arbitrability ratione materiae.1052

1045 See Brekoulakis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 2-63 and Hollander, 11(1) Disp. Resol. Int’l 47, 54 (2017) for this distinction. 1046 UNCITRAL Secretariat, Guide, Art. V(2)(a) para. 3; van den Berg, NYC, p. 359; Born, International Commercial Arbitration, p. 3696. There are, however, Contracting States where differences in interpretation of arbitrability appear to exist between Articles V(2)(a) and II(1), see Hollander, 11(1) Disp. Resol. Int’l 47, 52 (2017) referencing e.g. Finland, Lebanon and Egypt. 1047 Cf. US: Saudi Iron & Steel Co. v. Stemcor USA Inc., 1997 WL 790746 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1082, 1085 (1998): The fact that another party exists whom respondent asserts is liable in connection with the dispute does not raise an issue with respect to the subject matter being capable of being settled by arbitration. 1048 Born, International Commercial Arbitration, p. 948; van den Berg, NYC, pp. 152 et seq., 368 et seq.; Hollander, 11(1) Disp. Resol. Int’l 47, 53 et seq. (2017). 1049 Cf. Bernardini, in: Gaillard/Di Pietro (eds), NYC in Practice, p. 503; Hollander, 11(1) Disp. Resol. Int’l 47, 53 (2017). 1050 Hanotiau, in: van den Berg (ed.), 40 Years of NYC, p. 146; Hanotiau/Caprasse, (2008) 25 J. Int. Arb. 721, 723; Switzerland: BG, 11(1) ASA Bull. 58 (1993) = BGE 118 II 353 = XX Y.B. Com. Arb. 766, 767 (1995). 1051 Hanotiau/Caprasse, (2008) 25 J. Int. Arb. 721, 723. 1052 Hanotiau, in: van den Berg (ed.), 40 Years of NYC, p. 146; Hanotiau/Caprasse, (2008) 25 J. Int. Arb. 721, 723; Switzerland: BG, 11(1) ASA Bull. 58 (1993) = BGE 118 II 353 = XX Y.B. Com. Arb. 766, 767 (1995).

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As there is no globally agreed-upon definition of which disputes are arbitrable – even the Model Law does not contain any such definition – the Contracting States are generally free to determine which disputes are arbitrable and which are not, subject to the limitations following from the NYC (Õ paras 441 et seq. for these limitations).1053 Contracting States use different means to define the boundaries of arbitrability. In some cases national legislation explicitly refers to the concept of “arbitrability:” a typical definition of arbitrability allows for all – or any – “claims involving an economic interest” to be submitted to arbitration;1054 other definitions rely on the parties’ capability “to compromise”1055 or to “freely dispose” of the respective rights.1056 Some Contracting States explicitly limit the boundaries of arbitration by including catalogues of inarbitrable disputes into their legislation.1057 In other cases, Contracting States implicitly limit arbitrability through legislation conferring internationally or nationally exclusive jurisdiction on national courts or specialized tribunals;1058 against the background of the pro-arbitration policy most Contracting States pursue, however, it is safe to say that such legislation usually does not intend to limit arbitrability. This is particularly true in the case of nationally exclusive jurisdiction, as such legislation merely allocates jurisdiction among different state courts in case the state courts are competent.1059 In yet other cases, Contracting States do not address arbitrability in their legislation at all; issues of arbitrability then have to be resolved by reference to the implied legislative intent, as well as the often competing policies of the NYC (pro-arbitration, Õ para. 5) and the regulatory regime at issue.1060 Against the background of the diversity both in means for defining the limits of arbitrability as well as in notions for describing the scope of arbitrability, objective arbitrability is probably best defined as jurisdiction that cannot be challenged ratione materiae.1061 431 It is safe to say that, as a general rule, more recent legislation tends to define arbitrable subjects broadly, while earlier legislation tended to be more restrictive.1062 At 430

1053 Lew/Mistelis/Kröll, Comparative Arbitration, para. 9-39; Mistelis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 1-29. 1054 Cf. Germany: section 1030(1) ZPO (“vermögensrechtlicher Anspruch”). The German legislator intended a broad interpretation: Hanefeld/Schmidt-Ahrendts, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 9.35. Likewise Switzerland: Article 177(1) IPRG. This notion is sometimes translated as “claim involving an economic interest” (Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.125; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 134), sometimes as “dispute of financial interest” (Karrer, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 14.33), or sometimes as “dispute involving property” (ICC: Supplier (European country) v. Republic of X (Case No. 6474), XXV Y.B. Com. Arb. 279, 304 (2000)). 1055 Belgium: section 1676(1) of the Judicial Code. 1056 France: section 2059 of the Code Civil; Italy: Article 806 of the Code of Civil Procedure, cf. RubinoSammartano/Rubino-Sammartano, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 10.48 et seq.; Netherlands: Article 1020(3) of the Arbitration Act, cf. Lazić/Schluep, in: Weigand/Baumann (eds), Practitioner’s Handbook, paras 11.60 et seq. 1057 Cf. e.g. Bulgaria: Article 19(1) of the Code of Civil Procedure; Alexiev, in: Bosman (ed.), ICCA International Handbook, pp. 15 et seq.; Hungary: section 4 of the Arbitration Act. See Wilske/Markert/ Bräuninger, SchiedsVZ 2017, 49, 57 for the recent reform in Russia. 1058 Cf. e.g. Uzelac, in: Kröll et al. (eds), Liber Amicorum Bergsten, p. 451; for the Netherlands Lazić/ Schluep, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 11.63; for Italy/France/Switzerland Bernardini, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 503, 521; for Bosnia and Herzegovina: Constitutional Court, XXXVII Y.B. Com. Arb. 166 (2012) and Sup. Ct., XLI Y.B. Com. Arb. 403 (2016). 1059 See e.g. the exclusive jurisdiction of the newly established Swiss Federal Patent Court which does not limit the arbitrability of patent law disputes in Switzerland, Legler, 28(2) ASA Bull. 253, 255 et seq. (2010); Stieger, GRUR Int. 2010, 574, 580. Another example is Article 24(2) of the Regulation of the European Parliament and of the Council (EU) No. 1215/2012 of Dec. 12, 2012, Õ n. 1171. 1060 Born, International Commercial Arbitration, p. 973. 1061 Cf. Pamboukis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 7-2. 1062 Born, International Commercial Arbitration, p. 960; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 348.

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the same time, the justification for the limitations on arbitrability has been gradually shifting. In the early days of international arbitration, limitations were usually justified by the sensitivity of certain public policy issues that the Contracting State felt should only be dealt with by the judicial authority of their own courts.1063 Accordingly, many of the older statutory restrictions on arbitrability delineate inarbitrable subject matters on the basis of criteria related to public policy.1064 With the growing acceptance of arbitration in recent years, this justification became less important.1065 As courts and legislatures of the Contracting States are increasingly accepting of the fact that arbitrators apply national provisions of public policy, more recent statutory restrictions on arbitrability allow e.g. for all or any “claims involving an economic interest” to be arbitrated.1066 The limited number of subject matters that are still considered inarbitrable today can usually be explained by the fact that arbitration is of consensual nature and the award therefore merely binds the parties to the arbitration agreement.1067 This excludes scenarios where third parties are concerned from the realm of arbitration, unless a Contracting State decides to extend the res judicata effect to these third parties by law. Included among the limited number of matters that affect third parties (and are therefore usually not arbitrable) are, in particular, disputes relating to family and succession law (Õ paras 463 et seq.), insolvency law (Õ paras 467 et seq.) and intellectual property rights (Õ paras 470 et seq.). bb) Arbitrability and Mandatory Laws. The distinction between arbitrable and non- 432 arbitrable issues should not be confused with the distinction between mandatory and non-mandatory laws.1068 Although both relate to a common purpose, namely the restriction of party autonomy, they pertain to two different questions: the former to the procedural law question of which decision-making body is competent to decide upon the dispute (national court or arbitral tribunal), the latter to the substantive law question of which laws the parties can derogate from. While it is safe to say that issues relating to non-mandatory laws are generally 433 arbitrable, issues relating to mandatory laws – typical examples include disputes involving employment, consumer, sales agency, or securities laws – are not necessarily non-arbitrable.1069 Indeed, the opposite is true as courts increasingly consider the public

1063

Cf. Lew/Mistelis/Kröll, Comparative Arbitration, para. 9-2. A typical example is Article 2060 of the French Code Civil, which disallows arbitration in all matters in which public policy is concerned. See Brekoulakis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 2–6 with n. 11; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.483 for further examples. Especially in the African context, public policy still remains an important criterion for non-arbitrability, Mante, (2017) 33 Arb. Int’l 275, 289. 1065 Cf. Brekoulakis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 2-1: “the argument for the arbitrability of the vast majority of commercial disputes has largely been won,” citing in para. 2–5 with n. 6 i.a. US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) = XI Y.B. Com. Arb. 555 (1986) regarding antitrust claims, France: CA Paris, Rev. arb. 1991, 478 regarding fraud allegations; UK: Privalov v. Fiona Trust Holding Corp., XXXII Y.B. Com. Arb. 654 (2007), affirmed by HL, XXXII Y.B. Com. Arb. 654, 674 (2007), regarding fraud allegations; Switzerland: BG, 11(1) ASA Bull. 58 (1993) = BGE 118 II 353 = XX Y.B. Com. Arb. 766 (1995) regarding claims arising out of illegal services; and ECJ: Eco Swiss China Time Ltd. v. Benetton International NV (C-126/97), [1999] ECR I3055 = EuZW 1999, 565 = XXIVa Y.B. Com. Arb. 629 (1999) regarding anti-competition claims. 1066 Õ n. 1053. 1067 Brekoulakis, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 2-40 et seq. 1068 Cf. Chamber of Arbitration of Milan: Shareholders in Company X srl (Italy) v. Company X srl (Italy), XXIII Y.B. Com. Arb. 93, 95 (1998); Born, International Commercial Arbitration, pp. 950 et seq. 1069 Quinke, SchiedsVZ 2007, 246, 247; Horn, SchiedsVZ 2008, 209, 217 et seq. 1064

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Article V 434–435

New York Convention

policy exception in Article V(2)(b) sufficient for securing the application of mandatory laws.1070 Accordingly, mandatory law claims are frequently arbitrated.1071 434 Despite – or may be because of – this tendency to arbitrate issues relating to mandatory laws, some courts have indicated in the past that they would not give effect to an arbitration agreement in the event that a choice-of-law and choice-of-forum clause “operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies.”1072 A typical scenario for this so-called prospective waiver doctrine would be the combination of an arbitration agreement calling for arbitration in a foreign country and a choice-of-forum clause calling for the application of a foreign law. In this setting, the application of the internationally mandatory rules – i.e. those norms that demand application even if parties submit their dispute to a foreign law1073 – that exist in one of the parties’ countries of origin depends upon whether the arbitral tribunal considers these rules as applicable to the dispute. Since the court referring the parties to arbitration has no influence on the arbitral tribunal’s decision in this regard, it is not surprising that courts are sometimes hesitant to recognize these kinds of arbitration agreements. 435 The proper vehicle for refusing to recognize the agreement in these cases is not to deny the dispute’s arbitrability, but to refuse to recognize the agreement on grounds of a violation of the forum’s public policy,1074 a defense that is applicable mutatis mutandis when deciding whether to recognize the arbitration agreement (Õ para. 519). The crucial question is when exactly a possible non-application of internationally mandatory provisions by the arbitral tribunal allows the court to refuse to recognize the agreement. While it seems undisputed that mere unspecified speculations about a possible non-application are not enough,1075 what degree of likelihood is necessary is 1070

So e.g. Germany: BGH, BGHZ 132, 278 = NJW 1996, 1753, 1754. See e.g. Germany: BGH, SchiedsVZ 2004, 259 with note Habersack (payment of individual share capital); Chamber of Arbitration of Milan: Shareholders in Company X srl (Italy) v. Company X srl (Italy), XXIII Y.B. Com. Arb. 93, 94 et seq. (1998) (pre-emptive rights of a company); Switzerland: BG, 11(1) ASA Bull. 58 (1993) = BGE 118 II 353 = XX Y.B. Com. Arb. 766 (1995) (mandatory Iraq sanctions). 1072 Cf. e.g. the US Supreme Court in its famous footnote 19 in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985) = XI Y.B. Com. Arb. 555, 564 (1986) in the antitrust context: “At oral argument, however, counsel for Mitsubishi conceded that American law applied to the antitrust claims, and represented that the claims had been submitted to the arbitration panel in Japan on that basis. […] We therefore have no occasion to speculate on this matter at this stage in the proceedings, when Mitsubishi seeks to enforce the agreement to arbitrate, not to enforce an award. Nor need we consider now the effect of an arbitral tribunal’s failure to take cognizance of the statutory cause of action on the claimant’s capacity to reinitiate suit in federal court. We merely note that, in the event the choiceof-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy.” For a recent application of this prospective waiver doctrine see US: Lindo v. NCL (Bah.) Ltd., XXXVII Y.B. Com. Arb. 330 (2012) (11th Cir. 2011). Similar Germany: BGH, NJW 1987, 3193 = RIW 1987, 867 = XIX Y.B. Com. Arb. 653 (1994) and IPRax 1992, 382 in the securities context (cf. Quinke, Börsenschiedsvereinbarungen, pp. 33–35 for a commentary and further references) and OLG München, WM 2006, 1556 with note Quinke, SchiedsVZ 2007, 246 regarding the sales agent’s compensation claim under section 89b HGB. 1073 See e.g. Article 9 of the Regulation (EC) No. 593/2008 of the European Parliament and the Council: “Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.” 1074 Quinke, SchiedsVZ 2007, 246, 248; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.495 for further examples. 1075 US: Vimar Seguros y Reaseguros, SA v. M/V Sky Reefer, 515 U.S. 528, 541 (1995) in the setting of a choice of Japanese law and foreign arbitration: “mere speculation that the foreign arbitrators might apply Japanese law which […] might reduce respondents’ legal obligations, does not in and of itself lessen 1071

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disputed. Some consider “the reasonable threat” of non-application sufficient,1076 while others argue in favor of restricting non-enforcement to cases where it is obvious that the party drafting the agreement intended to circumvent the application of mandatory norms by submitting disputes to arbitration.1077 The most convincing standard for refusing recognition of the arbitration agreement is 436 reasonable certainty that the arbitral tribunal will not apply the internationally mandatory provisions,1078 which seems to be the view of the French courts as well.1079 If the reasonable threat were to be sufficient, the decision about whether to recognize the arbitration agreement would be fraught with uncertainties. As it is usually unclear whether the arbitral tribunal will indeed not apply the relevant internationally mandatory rules at the preaward stage, the appropriate course is usually to refer the parties to arbitration.1080 If the arbitral tribunal makes an award which infringes the relevant internationally mandatory provisions and thereby violates the forum’s public policy (i.e. the forum in which the referral to arbitration was at issue, not the forum of the arbitral tribunal), this award will not be recognized in that forum and its internationally mandatory norms are thus respected. If – in the opposite scenario – the tribunal infringes internationally mandatory provisions by refusing to satisfy certain claims in its award, the claimant could call upon the forum’s courts to decide upon his claims; the courts will not be barred from deciding upon his claim, as (due to the violation of public policy) the award has no res judicata effect and the arbitration agreement will not be recognized. For sure, this approach favoring arbitration may create additional expenses for the parties as they are initially referred to the arbitral tribunal. This is, however, a consequence of their consent to arbitration and in line with the purpose of the internationally mandatory provision, which is usually not to protect against higher than usual litigation/arbitration costs.1081 From a practical perspective, a suggestion made by Kleinheisterkamp may provide a 437 satisfying solution for solving what he appropriately calls the court’s “dilemma,” i.e. being forced to decide between respecting the parties’ original intention to arbitrate and its legislature’s intention to protect specific public interests.1082 Going back to the US Supreme Court’s famous footnote 19 in Mitsubishi v. Soler (reprinted in Õ n. 1072), where the Court noted that counsel for Mitsubishi had conceded that American law applied to the antitrust claims and had represented that the claims had been submitted to the arbitration panel on that basis, Kleinheisterkamp recommends that the party requesting the referral to arbitration explicitly state that it expects and accepts that the arbitral tribunal will apply the internationally mandatory rules of the forum. The court liability under COGSA sect. 3(8).” See Born, International Commercial Arbitration, p. 982 for further references. 1076 Cf. Germany: OLG München, WM 2006, 1556 (“nahe liegende Gefahr”), commented i.a. by Quinke, SchiedsVZ 2007, 246 et seq.; Germany: OLG Stuttgart, BeckRS 2012, 18825 (“sicher zu erwarten”) followed by BGH, BeckRS 2012, 20587 = ZVertriebsR 2013, 895 (“wenn wie hier feststeht […]”); Kröll, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 16-57 et seq.; as well as Kleinheisterkamp, 3 WAMR 91 et seq. (2009) and RabelsZ 73 (2009), 818 et seq. 1077 Horn, SchiedsVZ 2008, 209, 218. 1078 Cf. Quinke, SchiedsVZ 2007, 246, 248 with 249, and in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, pp. 817, 822 et seq. 1079 Cf. France: CA Paris, Rev. arb. 2005, 675, 677, arguing that a choice-of-law clause in favor of Illinois law together with an arbitration clause in favor of a tribunal seated in the US would not prevent the arbitrator from applying French law, and that the arbitration agreement would therefore not be “manifestement nulle;” cf. Racine, Rev. arb. 2005, 680 et seq., and Kröll, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 16-73 for comments on this decision. Similar Netherlands: Gerechtshof Den Haag, XXXIX Y.B. Com. Arb. 456 (2014). 1080 Similar Kröll, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 16-75 et seq. 1081 Similar Kröll, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 16-83. 1082 Kleinheisterkamp, 3 WAMR 91, 116 (2009) and RabelsZ 73 (2009), 818, 838.

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Article V 438–440

New York Convention

can then record this acceptance and take it – presuming the consent of the party resisting arbitration – as a new choice-of-law agreement that is specifically concluded in respect of – and limited to – the question of the application of the internationally mandatory rules. This allows the court to conclude that the application of its internationally mandatory rules is not imperiled by the choice of arbitration and enables the court to refer the parties to arbitration.1083 cc) Domestic v. International Arbitrability. During the legislative process the French delegation recommended the deletion of Article V(2)(a) as it would tempt the judge of the country in which the award was sought to be relied upon to give international application to rules on arbitrability which were of exclusive domestic validity (Õ para. 18). This concern has turned out to be unwarranted, as courts and commentators in most Contracting States have adopted the use of the distinction between domestic and international public policy (Õ paras 496 et seq.) for determining the arbitrability of a dispute.1084 According to this prevailing understanding, only the Contracting State’s international notion of arbitrability is to be applied via Article V(2)(a). Prominent examples of this clear distinction include the US1085 and France.1086 The separate mentioning of non-arbitrability as a ground for refusing recognition and enforcement has thus not had the undesirable consequences the French delegation expected.1087 439 The rationale behind this distinction between arbitrability in domestic and international contexts is as follows: from the perspective of a Contracting State, determining what issues are arbitrable involves balancing two interests, namely the essentially domestic importance of reserving certain matters for the exclusive jurisdiction of the courts and the public interest in promoting trade and commerce through an effective means of dispute resolution. The results of this balancing act may be different in a domestic and in an international context.1088 The factors counseling for allowing arbitration in an international context are probably best described by the US Supreme Court in its Mitsubishi v. Soler decision: “Concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes, all require enforcement of the arbitration clause in question, even assuming that a contrary result would be forthcoming in a domestic context.”1089 440 This distinction between arbitrability in a domestic and in an international arbitration for the purposes of Article V(2)(a) is of particular importance in the context of a petition to set aside the award. Where the arbitral award shows strong connecting factors to a foreign country and the competent authority of the country in which or under the law of which the award was made is asked to set the award aside, the 438

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Kleinheisterkamp, 3 WAMR 91, 116 (2009) and RabelsZ 73 (2009), 818, 838. UNCITRAL Secretariat, Guide, Art. V(2)(a) para. 12; ICCA, Guide, pp. 105, 63; van den Berg, NYC, p. 369; Park, 12 Brook. J. Int’l L. 629, 664 et seq. (1986). 1085 Cf. US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985) = XI Y.B. Com. Arb. 555, 559 (1986), and Born, International Commercial Arbitration, pp. 964–969. 1086 Cf. France: CA Paris, Rev. arb. 1991, 478; Born, International Commercial Arbitration, pp. 962–964; Hollander, 11(1) Disp. Resol. Int’l 47, 55 (2017). 1087 Drawing the same conclusion Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 348. 1088 Lew/Mistelis/Kröll, Comparative Arbitration, paras 9-32, 9-35; Born, International Commercial Arbitration, pp. 957 et seq. 1089 US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985) = XI Y.B. Com. Arb. 555, 559 (1986). Cf. from the abundant literature on Mitsubishi and the preceding Supreme Court jurisprudence Park, 12 Brook. J. Int’l L. 629, 664 et seq. (1986) and Baron/Liniger, (2007) 19 Arb. Int’l 26, 28 et seq., including further references. 1084

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application of the domestic notion of arbitrability would allow for the refusal of recognition and enforcement in all (!) other Contracting States via Article V(1)(e).1090 dd) Legal Limitations on Restricting Arbitrability. Although the Contracting States 441 are generally free to determine which disputes are arbitrable and which are not (Õ para. 430), it is increasingly recognized that the pro-arbitration policy underlying the NYC (Õ para. 5) restricts the Contracting States’ discretion to impose limitations on arbitrability: Contracting States are permitted to stipulate non-arbitrability exceptions only to the extent that this is not in conflict with the NYC‘s basic structures and objectives.1091 These limitations, however, have to be delineated with caution. The policy underlying the arbitrability doctrine, namely to provide a “safety-valve” allowing the Contracting States to protect their public interests (Õ para. 421), counsels in favor of avoiding overly intrusive restrictions. Also Õ paras 499 et seq. regarding legal limitations for national public policies. Contracting States are undoubtedly entitled to declare particular categories of 442 disputes non-arbitrable, such as bankruptcy or criminal law disputes,1092 without the appropriateness of these categories being called into question under the NYC.1093 More difficult to answer is whether Contracting States are allowed to go one step further and declare some broad categories of issues non-arbitrable, such as all fraud claims or all claims for termination of a contract.1094 These non-arbitrability rules do not usually stipulate exceptions tailored to safeguard specific public interests, but instead constitute general rejections of the basic structure, purposes and commitments of the NYC to ensure the enforceability of international arbitration agreements.1095 It is difficult to imagine that there is a common underlying public interest in those cases that would justify such a restriction of arbitrability. However, jurisprudence and academia have yet to establish precise criteria for distinguishing between an admissible “exception” and an inadmissible “general rejection” of arbitration. The NYC further precludes Contracting States from adopting non-arbitrability rules 443 that discriminate against international agreements when compared to purely national ones. The justification for this limitation is not, however, that such arbitrability rules are contrary to the basic objectives and structural premises of the NYC, namely to treat international arbitration agreements and awards at least as favorably as domestic ones.1096 Apart from Article III cl. 2, the NYC does not contain such a general prohibition on discriminating against international arbitration agreements in comparison to national arbitration agreements. What is more, Article III cl. 2 relates only to enforcement procedure, not to the conditions under which enforcement is to take place (Õ Art. III para. 25). The admissibility of discrimination against international arbitration agreements is perfectly illustrated by Article VII(1) alt. 2, which allows any interested party to avail himself of the arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied 1090 Õ paras 377 et seq. and Õ Art. VII para. 43 for further discussion of the enforcement of awards set aside in the country of origin. 1091 One of the most prominent proponents of this interpretation of the NYC is Born, International Commercial Arbitration, pp. 611 et seq. 1092 Examples taken from Born, International Commercial Arbitration, p. 614. 1093 See The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.15 Reporters’ Note (a)(vi) (p. 675): “However, nothing would prevent Congress from declaring unspecified claims by certain persons or within a given field to be non-arbitrable.” (emphasis added). 1094 Examples taken from Born, International Commercial Arbitration, pp. 614 et seq. 1095 Born, International Commercial Arbitration, pp. 614 et seq. 1096 Cf. Born, International Commercial Arbitration, p. 615.

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New York Convention

upon, but which refers only to those laws and treaties relating to the recognition and enforcement of foreign awards (Õ Art. VII para. 51). The NYC therefore does not obligate Contracting States to extend the applicability of their more liberal enforcement regimes for domestic awards to foreign awards. The superior view is that discriminating against international arbitration agreements in comparison to national ones in terms of arbitrability is inadmissible, which follows from the consideration that there is no conceivable public policy that could justify such discrimination. If a Contracting State allows domestic arbitration in respect of a certain subject matter (e.g. employment disputes) and disallows international arbitration in respect of the same subject matter, this prohibition can only be justified by the differences between international and national arbitration proceedings – but allowing this justification would contradict the very policy underlying the NYC, namely that international arbitration is not per se an inappropriate method of dispute resolution. In any event, this discrimination does not seem to occur frequently in practice since Contracting States have rather pursued the opposite approach of allowing arbitration in international contexts to a greater degree than in purely domestic ones (Õ paras 438 et seq.). 444 The NYC does not preclude Contracting States from adopting rules precluding arbitrability that are inconsistent with the international practice of such rules. If this were otherwise, the arbitrability doctrine could not serve its purpose of providing a “safety-valve” which allows the Contracting States to protect their public interests (Õ para. 421). Those who argue the opposite concede that Article V(2)(a)’s purpose counsels against such a limitation of the arbitrability doctrine but suggest that the superior view would be to derive structural limitations on the extent to which individual Contracting States may exercise this exceptional right in an idiosyncratic manner (i.e. in a manner that is out of step with arbitrability rules in other jurisdictions) from the NYC itself.1097 However, what one Contracting State calls “idiosyncratic” may be entirely normal for the next – and (unfortunately!) the NYC does not provide any guidelines for distinguishing between the two, just as the Model Law does not. 445 If a Contracting State uses its discretion to impose limitations on arbitrability in a manner incompatible with the NYC, it may violate its obligations under the NYC vis-àvis the other Contracting States and may be held responsible on the basis of the applicable rules of public international law. However, unless the law of the Contracting State where recognition and enforcement is sought mandates a different result, the limitation on arbitrability remains effective, i.e. allows the competent authority to refuse recognition and enforcement.

4. Under the Law of the Country Where Recognition and Enforcement Is Sought Article V(2)(a) mandates that in cases where recognition and enforcement is sought, the arbitrability of the dispute is to be determined by the law of the country where the arbitral award is sought to be recognized or enforced. The laws of the Contracting States on arbitrability differ to varying degrees (Õ para. 430, Õ paras 451 et seq.). 447 Those that consider objective arbitrability to be a pre-condition for the validity of an arbitration agreement (Õ para. 426 and Õ Art. II para. 161) sometimes argue that the competent authority at the enforcement stage would not only have to determine the arbitrability on the basis of the laws of the country where the arbitral award is sought to be recognized but also – applying Article V(1)(a) mutatis mutandis – according to the law to which the parties have subjected it or, failing any indication thereon, under the law of 446

1097

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Born, International Commercial Arbitration, p. 616.

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the country where the award was made.1098 Those that qualify arbitrability as a separate procedural precondition for the recognition of the arbitration agreement – which is the superior view, Õ para. 426 – determine arbitrability exclusively under the law of the country where the arbitral award is sought to be recognized and enforced.1099

5. Duty to Determine Arbitrability While Article V(1) only allows recognition and enforcement to be refused “at the 448 request of the party,” Article V(2) stipulates no such restriction. According to Article III cl. 1, the procedural law of the lex fori governs the issue of whether the competent authority has a duty to determine arbitrability ex officio (iura novit curia) or only upon a party’s request (Õ para. 519). It seems to be standard practice in Contracting States that arbitrability has to be determined by the competent authority ex officio;1100 also Õ para. 2, Õ para. 13, Õ para. 40. The lex fori is likewise decisive for whether the competent authority – if it applies Article V(2)(a) ex officio – has to investigate the supporting facts or may rely on the parties’ submissions (Õ para. 517), as Article V(2) does not contain the respective restriction stipulated in Article V(1) (“if that party furnishes to the competent authority […] proof that”).

6. Discretion of the Competent Authority Article V(2) does not force the competent authority to refuse recognition and 449 enforcement in cases of inarbitrability. Instead, it “may” refuse (Õ paras 74 et seq.), save any requirements under the lex fori according to Article III. This discretion emphasizes the pro-enforcement policy of the NYC.1101 It not only encompasses the issue of whether to enforce and recognize the award in its entirety, but extends to the issue of whether (and when) only parts of the award may be enforced and recognized (Õ paras 81 et seq.), namely in cases where only some of several claims awarded lack arbitrability (partial inarbitrability). Usually, if these claims can be decided separately from the non-arbitrable issues, the arbitrable claims should be enforced and recognized.1102

V. Typical Issues of Objective Arbitrability The following outline is an overview of typical issues where objective arbitrability 450 may be called into question. It is not intended to be a comprehensive guide on the arbitrability of certain types of disputes in the respective jurisdictions.1103 1098 Cf. Bernardini, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 503, 516; Poudret/Besson, Comparative Arbitration, para. 907. 1099 Cf. Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 313; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.203. Germany: BGH, IPRax 1985, 218 = XIV Y.B. Com. Arb. 629, 631 (1989); OLG Hamm, IPRax 1985, 218 = XIV Y.B. Com. Arb. 629, 631 (1989). 1100 Luxembourg: CA, XXIVa Y.B. Com. Arb. 714, 719 (1999); US: Nitron Int’l Corp. v. Panagia Mar., Inc., 1999 U.S. Dist. LEXIS 5318 (S.D.N.Y. 1999) = XXV Y.B. Com. Arb. 924, 926 (2000); Italy: Cass., sez. un., IV Y.B. Com. Arb. 284, 285 (1979); Switzerland: Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 828 (2004). Cf. also UNCITRAL Secretariat, Guide, Art. V(2)(a) para. 4; Bernardini, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 503, 516; Paulsson, ICC Bull. Special Supplement 1999, 95, 96; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 48; Arfazadeh, (2001) 17 Arb. Int’l 73, 84; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 56 para. 4; Mistelis, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 573, 584. 1101 UNCITRAL Secretariat, Guide, Art. V(2)(a) para. 2. 1102 Hanotiau, in: van den Berg (ed.), 40 Years of NYC, pp. 146, 156. 1103 For further examples see Hollander, 11(1) Disp. Resol. Int’l 47, 61 et seq. (2017) and for the African perspective Mante, (2017) 33 Arb. Int’l 275, 285 et seq.

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1. Acts of State The question of whether purely private law claims against a Contracting State or its public entities are arbitrable can be one of subjective arbitrability (Õ para. 428), if it relates to the general capacity of Contracting States or their public entities to enter into arbitration agreements, or one of objective arbitrability in the sense of Article V(2)(a), if it relates to a certain type of dispute. 452 The arbitrability of purely private law claims against a Contracting State or its public entities is usually1104 not called into question nowadays.1105 Some Contracting States generally consider such disputes arbitrable, but stipulate exceptions;1106 other Contracting States consider these disputes inarbitrable, but provide for exceptions in which such disputes may be arbitrated.1107 If certain disputes involving public entities are considered arbitrable, follow-up questions may arise, such as whether the civil courts or the administrative courts shall have jurisdiction in arbitration-related matters (e.g. for preliminary measures, appointment of arbitrators or setting aside of arbitral awards)1108 or whether the general provisions on arbitration proceedings must be modified for an arbitration involving public entities.1109 453 Courts have sometimes denied arbitrability on the basis of the so-called Acts of State doctrine in cases where the dispute involves sovereign rights. As formulated by the US Supreme Court, this doctrine mandates that every sovereign State “is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.”1110 454 Referring to this doctrine, the US District Court for the District of Columbia held in the well-known LIAMCO case that where the subject matter of the dispute is the nationalization of assets and the rate at which compensation should be paid, this decision was for the courts to make, because otherwise the arbitral tribunal would have to rule on the validity of the nationalization law, which – in the LIAMCO case – vested exclusive determination of any compensation in a special committee provided for 451

1104

But see for Hungary Varga/Csernus, GAR Dec. 6, 2011. Cf. with further references the country list in Wald/Kalicki, (2009) 26(4) J. Int. Arb. 557, 560 et seq.; see also by way of example Lebanon: Mahmassani, in: Fernández-Ballesteros/Arias (eds), Liber Amicorum Bernardo Cremades, pp. 759, 765, and Turkey: Rumpf, SchiedsVZ 2008, 165, 166. 1106 E.g. in Germany there is no prohibition on public entities submitting disputes to arbitration; the arbitrability of such disputes is determined according to the general provision on arbitrability in section 1030 ZPO, which applies by analogy, by virtue of the reference in section 173 of the German Administrative Procedure Code; for a detailed description see Niggemann/Jonglez de Ligne, SchiedsVZ 2011, 80, 87 et seq.; Schill, DÖV 2010, 1013; cf. also KG, XXXV Y.B. Com. Arb. 369, 370 (2010): “[T]he fact that defendant is a State does not prevent a declaration of enforceability, because this is a private law claim that affects neither sovereign rights nor the international rights of the defendant;” cf. also Ad hoc arbitration: Commune X. v. Y. SA, 29(2) ASA Bull. 338, 341 (2011): “[…], la resolution des litiges portent sur des contrats de droit public par le biais de l’arbitrage est généralement admise, […].” 1107 E.g. France: Niggemann/Jonglez de Ligne, SchiedsVZ 2011, 80, 81 et seq.; Kühner, SchiedsVZ 2005, 282. 1108 Cf. France: Tribunal des conflits, Rev. arb. 2010, 275 with notes Audit, Rev. arb. 2010, 253 and Niggemann/Jonglez de Ligne, SchiedsVZ 2011, 80; for Switzerland McGregor, 29(2) ASA Bull. 279 (2011); for Germany Niggemann/Jonglez de Ligne, SchiedsVZ 2011, 80, 87 et seq. 1109 Cf. for Germany Schill, DÖV 2010, 1013, 1016 and J. Schäfer, SchiedsVZ 2009, 336, 337. 1110 US: Underhill v. Hernandez, 168 U.S. 250, 253 (1897). See the Hickenlooper Amendment to the Foreign Assistance Act of 1964 for exceptions to the Act of State Doctrine. 1105

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in the same law.1111 The court has been criticized for confusing the right of a State to nationalize and the method of settlement of disputes as agreed upon by that State and a foreign private party: while a State has the right to nationalize within its own territory, it does not have the right to “revoke” its commitment to arbitrate by treating the dispute over the nationalization as inarbitrable ex post, since the arbitration agreement would otherwise be worthless. Accordingly, nowadays courts and legislatures in most Contracting States reject claims that disputes involving issues of sovereignty are inherently non-arbitrable.1112

2. Antitrust Law In the early years of antitrust legislation, disputes arising out of these laws (namely 455 disputes involving cartels, abuses of a dominant position and mergers) were usually considered not arbitrable,1113 i.e. the antitrust realm was considered so vital to the successful functioning of a free economy that its disputes could not be lodged with arbitral tribunals.1114 Since the mid-1980s, courts have increasingly accepted the arbitrability of antitrust 456 law issues, beginning with the famous Mitsubishi decision of the US Supreme Court: as national courts in the US would have “the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the antitrust laws has been addressed,” antitrust claims could be arbitrated.1115 Although this so-called “second look doctrine”1116 is flawed, as it is based on the assumption that either the arbitration will take place in the US, thus allowing for an action to vacate the award there (which would allow refusal elsewhere via Article V(1)(e)), or that the enforcement will take place in the US, neither of which is necessarily the case,1117 the broadening of the scope of arbitrability has been welcomed.1118 Today, antitrust law disputes are generally considered to be arbitrable,1119 including those governed by EU law.1120 The earlier, more restrictive arbitrability doctrine is nowadays confined to those matters for which 1111 US: Libyan Am. Oil Co. v. Socialist People’s Libyan Arab Jamahirya, 482 F. Supp. 1175, 1178 (D.D.C. 1980) = VI Y.B. Com. Arb. 248, 250 (1981), vacated 684 F.2d 1032 (D.C. Cir. 1981) = VII Y.B. Com. Arb. 381 (1982). 1112 Born, International Commercial Arbitration, p. 1026. See Turck, (2001) 17 Arb. Int’l 327 and Böckstiegel (ed.), Acts of State and Arbitration, 1997, for further references. 1113 US: Am. Safety Equip. Corp. v. J.P. Maguire & Co., 391 F.2d 821 (2d Cir. 1968); Italy: Tribunale di Bologna, XVII Y.B. Com. Arb. 534, 536 (1992). See Born, International Commercial Arbitration, pp. 975 et seq. for further references. 1114 Cf. US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155, 162 (1st Cir. 1983) = X Y.B. Com. Arb. 519, 524 (1985). 1115 US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 638 (1985). 1116 Õ para. 434 for the related “prospective waiver” argument. 1117 Lew/Mistelis/Kröll, Comparative Arbitration, para. 9-47; Born, International Commercial Arbitration, p. 981 with n. 202; Mistelis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 2-34. 1118 See Born, International Commercial Arbitration, pp. 975 et seq. for further references to jurisprudence. 1119 Cf. Radicati di Brozolo, (2011) 27 Arb. Int’l 1, 3; New Zealand: The Government of New Zealand v. Mobil Oil New Zealand Ltd., XIII Y.B. Com. Arb. 638, 650 et seq. (1988); Australia: Stericorp Ltd. v. Stericycle Inc., XXXI Y.B. Com. Arb. 549, 556 (2006); Switzerland: BG, BGE 118 II 193 = XVIII Y.B. Com. Arb. 143, 148 (1993). 1120 Cf. ECJ: Eco Swiss China Time Ltd. v. Benetton International NV (C-126/97), [1999] ECR I-3055 = EuZW 1999, 565 = XXIVa Y.B. Com. Arb. 629 (1999); Germany: BGH, BGHZ 46, 365 = NJW 1967, 1178; Italy: CA Bologna, XVIII Y.B. Com. Arb. 422, 425 (1993); France: CA Paris, Rev. arb. 1993, 645, 650. See Weitbrecht, SchiedsVZ 2018, 159; Eilmansberger, SchiedsVZ 2006, 5, 8 et seq.; Liebscher, 2003 Int’l Arb. L. Rev. 84 et seq.; Liebscher, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 523, 529 et seq.; van Houtte, 23(3) ASA Bull. 431 et seq. (2005); Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 357; Lew, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 12-42 et seq.; Biamonti, in: Fernández-Ballesteros/

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New York Convention

regulatory bodies have been assigned exclusive jurisdiction, such as the approval of mergers and acquisitions or the granting of exemptions from antitrust laws.1121 457 A matter that remains unsettled is the scope of the “second look” for arbitrable disputes at the enforcement or setting aside stage, respectively. The ECJ has provided courts with some guidelines for exercising the discretion afforded by Article V(2),1122 though these are far from precise guidelines for conducting a review of such an award.1123 At the stage of setting aside or refusing enforcement of the arbitral award, the issue that is usually subject to discussion nowadays is not the lack of arbitrability, but whether an alleged infringement of competition law qualifies as a violation of public policy;1124 also Õ para. 579.

3. Consumer Law The reluctance of the Contracting States to allow arbitration in the area of consumer disputes has probably remained unchanged to the greatest extent. 459 In the EU, for example, provisions in standard form consumer contracts are considered arbitrable but unfair if they require the consumer to take disputes exclusively to arbitration “not covered by legal provisions.”1125 It is not yet settled whether this means that arbitration agreements in standard form contracts are invalid per se or whether it is merely agreeing upon sole jurisdiction in favor of arbitral tribunals that decide as amiable compositeur in standard form contracts that is prohibited.1126 Some EU Member States implemented this provision by adopting legislation that deems arbitration clauses in standard form contracts unfair under certain conditions;1127 others confine themselves to imposing special form requirements for consumer contracts.1128 460 Other Contracting States also regulate the use of consumer arbitration agreements, e.g. by flatly prohibiting them, restricting them to post-dispute scenarios, submitting 458

Arias (eds), Liber Amicorum Bernardo Cremades, pp. 189, 191 et seq.; de Boisséson, in: FernándezBallesteros/Arias (eds), Liber Amicorum Bernardo Cremades, pp. 243, 245 et seq. for further details. 1121 Born, International Commercial Arbitration, p. 985. 1122 ECJ: Eco Swiss China Time Ltd. v. Benetton International NV (C-126/97), [1999] ECR I-3055 paras 32 et seq. = EuZW 1999, 565 = XXIVa Y.B. Com. Arb. 629, 636 et seq. (1999): “where questions of Community law are raised in an arbitration resorted to by agreement, the ordinary courts may have to examine those questions, in particular during review of the arbitration awards, which may be more or less extensive depending on the circumstances […] [A] national court to which application is made for annulment of an arbitration award must grant that application if it considers that the award in question is in fact contrary to Article 81 EC (ex Article 85), where its domestic rules of procedure require it to grant an application for annulment on failure to observe national rules of public policy”. This applies mutatis mutandis to a decision on recognition and enforcement, Netherlands: Voorzieningenrechter, Gerechtshof Den Haag, XXXI Y.B. Com. Arb. 808, 816 (2006). 1123 Cf. Eilmansberger, SchiedsVZ 2006, 5, 15; Radicati di Brozolo, 2004 Int’l Arb. L. Rev. 23, 26 et seq. 1124 Cf. Radicati di Brozolo, (2011) 27 Arb. Int’l 1, 11 et seq.; US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 638 (1985) = XI Y.B. Com. Arb. 555, 563 (1986); cf. also Greene/ Julian/Bédard, 19 EBLR Special Edition 43, 53 et seq. (2008), also Õ paras 435 et seq. 1125 Lit. q of the Annex to the European Council Directive on Unfair Terms in Consumer Contracts, 93/13/EEC, cf. e.g. Bantekas, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 15-25. According to the European Commission’s Recommendation on the Principles Applicable to the Bodies Responsible for Out-of-Court Settlement of Consumer Disputes (98/257/CE), the use of arbitration agreements may not deprive consumers of their right to bring the matter before the courts unless they expressly agree to do so in full awareness of the facts and only after the dispute has materialized. See Quinke, Börsenschiedsvereinbarungen, pp. 220–227 for a description of the Recommendation’s content. 1126 See Quinke, Börsenschiedsvereinbarungen, pp. 209–213 for the different interpretations in Germany. 1127 See Born, International Commercial Arbitration, p. 1019. 1128 E.g. section 1031(5) ZPO. See Born, International Commercial Arbitration, pp. 1018–1021 for further examples.

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them to special form requirements or allowing the consumer to terminate the agreement unilaterally before the first oral hearing of the arbitral tribunal.1129 The US represents an exception in this regard, as the Supreme Court has repeatedly considered consumer disputes arbitrable without any restrictions,1130 despite substantial criticism from lower courts, legislatures and commentators.1131 The Bureau of Consumer Financial Protection recently used its authority established under section 1028(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 to prohibit or impose conditions or limitations on the use of pre-dispute arbitration agreements in contracts for consumer financial products or services.1132 It introduced a rule in July 2017 that inter alia prohibited certain providers of certain consumer financial products and services from using pre-dispute arbitration agreements that bar the consumer from filing or participating in a class action; however, in November 2017 the President signed a joint resolution passed by Congress disapproving this rule, which therefore has no force or effect.1133 In a significant number of scenarios (e.g. in the EU, Õ para. 459) restrictions on 461 consumer arbitration agreements are not discussed under the notion of “arbitrability,” i.e. these claims usually remain arbitrable. Instead, the arbitration agreement is (depending upon the individual legislation) considered to be “null and void,” “inoperative” or “incapable of being performed” in the sense of Article II(3); recognition and enforcement would thus be refused under Article V(1)(a). Whether these singular restrictions are in compliance with Article II is subject to debate; the critical issue is whether and to what extent restrictions of this kind comport with the NYC’s requirement that agreements to arbitrate be subject to the same rules of validity as other categories of contracts.1134

4. Distributorship Contracts In some Contracting States, disputes about an agent’s claims arising out of their 462 principal’s unilateral termination of an exclusive distributorship contract are considered not arbitrable.1135

5. Family and Succession Law A significant number of Contracting States restrict the arbitrability of family and 463 succession law issues, though to varying degrees. In Germany, for example, divorce and issues relating to (child) custody are not arbitrable, while spouses’ claims relating to the matrimonial property regime and maintenance claims are considered arbitrable by the 1129 See for country reports Aldermann, 2. J. Am. Arb. 1 (2003); Bates, 27 Fordham Int’l L.J. 823 (2004); Drahozal/Friel, 28 N.C. J. Int’l L. & Com. Reg. 357 (2002); Born, International Commercial Arbitration, pp. 1014 et seq.; Bernardini, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 503, 520. 1130 E.g. US: Green Tree Fin. Corp. v. Randolph, 531 U.S. 79 (2000); Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265 (1995). 1131 See Sternlight, 56 U. Miami L. Rev. 831 (2002); Carrington, 35 Harv. J. on Legis. 225 (1998) and Born, International Commercial Arbitration, pp. 1018–1021 for further references. 1132 H.R. 4173 (2010). See also section 1414(e) for restrictions on pre-dispute arbitration agreements in contracts relating to residential mortgage loans and extensions of credit under an open end consumer credit plan. 1133 See https://www.consumerfinance.gov/arbitration-rule/ (last visited Apr. 12, 2019) for further information. 1134 See Born, International Commercial Arbitration, p. 1023 for further details. 1135 Belgium: CA Liège, IV Y.B. Com. Arb. 254, 256 (1979); Cass., V Y.B. Com. Arb. 257, 258 (1980); Cass., XXXI Y.B. Com. Arb. 587, 593 (2006); Cass., XXXIX Y.B. Com. Arb. 352 (2014); see Hanotiau/ Caprasse, (2008) 25 J. Int. Arb. 721, 725 et seq. and Verbist, (2005) 22 J. Int. Arb. 427 for commentaries.

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majority opinion.1136 In a similar vein, French law prohibits arbitration in matters relating to divorce and judicial separation.1137 In the Netherlands, disputes relating to the law of succession and matrimonial property regimes are arbitrable,1138 while Switzerland permits arbitration regarding marital property as well as in disputes between heirs.1139

6. Illegality and Embargos In cases where the subject matter of the dispute involves allegations of criminal conduct (in particular fraud, bribery or corruption), courts and arbitral tribunals have sometimes denied the arbitrability of the dispute by arguing that only the courts of the Contracting States would be competent to decide whether certain conduct was illegal or not.1140 As a general rule, however, issues of illegality are not an issue of arbitrability but of the validity of the arbitration clause.1141 If, for example, arbitration law stipulates the arbitrability of all disputes in relation to property, a dispute of this kind does not lose its arbitrability by the mere fact that an allegation of criminal conduct is involved. The contract may be invalid due to a violation of statutory prohibitions relating to bona mores (such as the prohibition of fraud, bribery and corruption).1142 According to the now1143 generally accepted doctrine of severability, however, this illegality does not in principle invalidate the arbitration clause in the contract as well.1144 465 Only where the public policy embodied in the provision of criminal law allegedly violated mandates that the dispute be exclusively heard by a state court are arbitral tribunals incompetent to hear the dispute. While the prosecution of criminal conduct undoubtedly falls into the exclusive jurisdiction of the courts,1145 the established public policy of discouraging international commercial corruption by itself is usually not considered to be sufficient to constitute inarbitrability, as there is no indication that arbitral tribunals are more likely to uphold contracts than courts. Accordingly, civil 464

1136 See for further references Wagner, in: Bachmann et al. (eds), Festschrift Schlosser, pp. 1025 et seq.; Huber, SchiedsVZ 2004, 280, 281 et seq.; Haas, SchiedsVZ 2011, 289 et seq.; Mankowski, ZEV 2014, 395, 397 et seq.; Kröll, SchiedsVZ 2018, 61. For Germany see recently BGH, NJW 2017, 2115, 2117 with note Wolff, LMK 2017, 393840: the testator may not unilaterally impose arbitration on disputes about obligatory shares in an inheritance. 1137 Article 2060 of the French Code Civil. 1138 Lazić/Schluep, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 11.64. 1139 Karrer, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 14.33. 1140 Cf. Born, International Commercial Arbitration, pp. 362–365, 441, 989. Comprehensively Mistelis, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 573 et seq.; Sabater/Rezende, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 19, 31 et seq. 1141 Cf. Born, Kluwer Arbitration Blog Oct. 11, 2011; Paschalidis, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 219, 226 et seq.; Õ para. 425 and Õ para. 426 for the relationship between non-arbitrability and substantive invalidity. 1142 Cf. in Germany: section 134 BGB. 1143 For the early days see Judge Gunnar Lagergren’s famous words in the award of 1963 in the context of bribery, republished in ICC: Argentine Engineer v. British Company (ICC Case No. 1110), XXI Y.B. Com. Arb. 47 (1996): “I am convinced that a case such as this, involving such gross violations of good morals and international public policy, can have no countenance in any court […] nor in any arbitral tribunal.” 1144 Cf. Lew/Mistelis/Kröll, Comparative Arbitration, para. 9-68; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.151; Mistelis, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 573, 588 et seq.; Switzerland: Karrer, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 14.33. 1145 Mistelis, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 1-6.

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claims in connection with corruption, bribery and related wrongdoings (liability ex delicto) are nowadays considered arbitrable both by arbitral tribunals1146 and courts.1147 These principles apply mutatis mutandis to disputes involving allegations of a violation 466 of embargoes or trade sanctions.1148 Public policy considerations included in the embargo or trade sanction may only constitute the non-arbitrability of the claim if they require the submission of relevant disputes to the courts of the Contracting States.1149

7. Insolvency Law The rules on the impact of a party’s insolvency on the arbitration agreement and any 467 awards rendered against the insolvent party vary greatly between Contracting States. It is safe to say that there is a coherent legislative practice insofar as that all issues that concern the administration of the proceedings as such (i.e. opening, administration and closing of insolvency proceedings; appointment of an administrator) are usually not arbitrable.1150 These non-arbitrable issues are sometimes referred to as “pure” or “core” insolvency issues.1151 A diverse practice exists, however, as to insolvency’s effect on arbitration agreements 468 and awards regarding claims against or by an insolvent party.1152 Two principles are in direct confrontation in this scenario, namely the insolvency policy exerting an inexorable pull towards centralization on the one hand, and arbitration policy advocating a decentralized approach towards dispute resolution on the other hand.1153 In some Contracting States the insolvency of a party renders the arbitration agreement unenforceable and discontinues existing arbitration proceedings which the aforementioned is a party to;1154 in other Contracting States arbitration agreements and proceedings are merely suspended pending the insolvency proceedings and the trustee is permitted to set aside arbitration agreements and awards under certain circumstances; in yet other

1146 Cf. ICC: Establishment of Middle East country X v. South Asian construction company (Case No. 4145), XII Y.B. Com. Arb. 97, 100 (1987); ICC: Supplier (European country) v. Republic of X (Case No. 6474), XXV Y.B. Com. Arb. 279, 307 et seq. (2000). 1147 Cf. Italy: CA Firenze, III Y.B. Com. Arb. 279, 280 (1978); US: Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402 (1967); UK: Privalov v. Fiona Trust Holding Corp., XXXII Y.B. Com. Arb. 654, 661 (2007), affirmed by HL, XXXII Y.B. Com. Arb. 654, 674 (2007); Switzerland: BG, BGE 119 II 380, 384; see Born, International Commercial Arbitration, pp. 990 et seq. for further references. The opposite (yet incorrect, cf. Born, International Commercial Arbitration, pp. 972, 991) view was taken by the Supreme Court of Pakistan (Pakistan: HUBCO v. WAPDA, (2000) 16 Arb. Int’l 439): non-arbitrable where prima facie evidence of criminal conduct exists. 1148 Cf. Mistelis, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 573, 586 et seq. 1149 Mistelis, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 573, 586; cf. Switzerland: BG, 11(1) ASA Bull. 58 (1993) = BGE 118 II 353 = XX Y.B. Com. Arb. 766, 769 (1995), while the opposite view was taken in Italy: CA Genova, XXI Y.B. Com. Arb. 594, 599 (1996) and Cass., XLI Y.B. Com. Arb. 503 (2016), all relating to the Iraq embargo legislation. See Mistelis, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 573, 586 for a discussion of the diverging approaches of the Swiss and Italian courts. 1150 UNCITRAL Secretariat, Guide, Art. V(2)(a) para. 28; Lew/Mistelis/Kröll, Comparative Arbitration, para. 9-55; Born, International Commercial Arbitration, p. 995; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.141; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 355; Liebscher, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 9-7. 1151 Liebscher, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 9-7. 1152 Born, International Commercial Arbitration, p. 995. 1153 US: Sonatrach v. Distrigas Corp., 1987 U.S. Dist. LEXIS 11805 (D. Mass. 1987) = XX Y.B. Com. Arb. 795, 798 (1995). 1154 This has been interpreted as a question of subjective arbitrability, as the insolvent party loses its capacity to be a party to arbitration proceedings; cf. Lazić, in: Kröll et al. (eds), Liber Amicorum Bergsten, pp. 337, 341 et seq.

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jurisdictions the insolvency does not affect obligations under pre-existing arbitration agreements and arbitration awards at all.1155 469 In some Contracting States the effects of insolvency on the arbitration agreement (if any) are not discussed under the notion of “arbitrability,” i.e. relevant claims remain arbitrable there.1156 Instead, the arbitration agreement is considered to be “null and void,” “inoperative” or “incapable of being performed” in the sense of Article II(3) (depending upon the individual legislation); recognition and enforcement would thus be refused based on Article V(1)(a).

8. Intellectual Property Rights As intellectual property rights often require registration with a governmental or quasi-governmental agency which has the sole competency to establish, amend or revoke these rights and determine their scope with effect erga omnes, there are often significant restrictions on the arbitrability of intellectual property disputes.1157 471 Disputes regarding the registration or validity of rights that have to be registered or deposited, such as patents, trademarks or designs are usually not arbitrable.1158 By contrast, disputes regarding intellectual property rights that exist independently of any registration or deposit, such as copyrights, are usually arbitrable, but with the inherent restriction that the award only takes effect between the parties.1159 Another type of dispute that is usually arbitrable is in respect of contracts concluded in the exercise of an intellectual property right (whether it requires registration/deposit or not), such as licensing agreements, as these contracts usually do not have a direct effect on third parties.1160 Domain name disputes follow a particular regime under the Uniform Domain Name Dispute Resolution Policy of the Internet Corporation for Assigned Names and Numbers.1161 472 The Swiss and American legal systems have very liberal approaches when providing for intellectual property disputes.1162 In Switzerland, the Swiss Federal Institute of 470

1155 See for country reports Born, International Commercial Arbitration, pp. 995 et seq.; Fouchard, Rev. arb. 1998, 471; Mantilla-Serrano, (1995) 11 Arb. Int’l 51; Rosell/Prager, (2001) 18 J. Int. Arb. 417; Kaufmann-Kohler/Lévy, in: Peter/Jeandin/Kilborn (eds), Insolvency Law Reform, p. 257; Ortiz, 8(2) Int. A.L.R. 22 (2005); Burn/Grubb, 8(4) Int. A.L.R. 124 (2005); Lazić/Schluep, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 11.65; Karrer, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 14.33; Liebscher, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 9-11 et seq.; comprehensively Lazić, Insolvency Proceedings and Commercial Arbitration, 1998. For Germany, see Germany: BGH, SchiedsVZ 2011, 281, 283 para. 14; Kröll, SchiedsVZ 2018, 61. 1156 See e.g. Heidbrink, SchiedsVZ 2009, 258, 259 for recovery actions under section 143 of the German Insolvency Code. 1157 Lew/Mistelis/Kröll, Comparative Arbitration, para. 9-64; Youssef, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 3-26; Born, International Commercial Arbitration, pp. 991–994; Dessemontet, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 553, 556 et seq.; E. Schäfer, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, pp. 907, 912 paras 16 et seq.; Ruess, SchiedsVZ 2010, 23, 25; Mantakou, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 13-1 et seq. 1158 Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.131. See e.g. Rubino-Sammartano/Rubino-Sammartano, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 10.55; Lazić/ Schluep, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 11.63; Biamonti, in: FernándezBallesteros/Arias (eds), Liber Amicorum Bernardo Cremades, pp. 189, 204 et seq. 1159 Cf. Lew/Mistelis/Kröll, Comparative Arbitration, para. 9-66; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.132; Youssef, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 3-18. 1160 Born, International Commercial Arbitration, p. 993; Lew/Mistelis/Kröll, Comparative Arbitration, para. 9-65; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 2.131; Lazić/Schluep, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 11.63. 1161 Cf. Davis, (2000) 17(3) J. Int. Arb. 115 for further details. 1162 See Fortunet, (2010) 26 Arb. Int’l 281 for recent and more liberal developments in French jurisprudence. For an overview of approaches taken by various jurisdictions, cf. Cook/Garcia, International Intellectual Property Arbitration, pp. 50 et seq.

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Intellectual Property recognizes arbitration awards as a basis for revoking registrations.1163 A similar approach is taken in the US, where legislation authorizes arbitration of disputes over the validity and infringement of US patents1164 and where the jurisprudence allows for arbitration of trademark issues.1165

9. Intra-Corporate Disputes Disputes arising out of shareholder agreements are usually considered arbitrable,1166 473 just like disputes about rights and duties between a corporation and its shareholders1167 or its directors.1168 The arbitrability of disputes about the validity of shareholder resolutions, however, is often called into question,1169 mostly on grounds that mandatory rules would be involved, the award would lack erga omnes effect (this effect in litigation usually being stipulated by law)1170 or because legislation confers exclusive jurisdiction for the resolution of these disputes on particular courts.1171 The realm of corporate law disputes has, however, also seen the boundaries of 474 arbitration continue to expand. In addition to UNCITRAL’s initiative to give priority consideration to the arbitrability of intra-corporate disputes,1172 a decision of the German Federal Supreme Court is a good example of this pro-arbitration trend. Deviating from its former case law,1173 the Court held that shareholder resolution

1163 Blessing, (1996) 12 Arb. Int’l 191, 200. See also Karrer, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 14.33; Dessemontet, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 553, 556. 1164 35 U.S.C. 294. 1165 US: Cara’s Notions, Inc. v. Hallmark Cards, 140 F.3d 566, 571 (4th Cir. 1998). See Born, International Commercial Arbitration, pp. 991–993 for further references. 1166 Bühler/Webster, Handbook, para. 6-149; Perales Viscasillas, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 14-14; Rubino-Sammartano/Rubino-Sammartano, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 10.52. A typical example of a dispute arising out of a shareholder agreement is a dispute between joint venture partners, see Quinke, NZG 2015, 537 et seq. 1167 Perales Viscasillas, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 14-15. Cf. Germany: BGH, SchiedsVZ 2004, 259 with note Habersack (disputes regarding the payment of individual share capital are arbitrable, even though mandatory rules of law are concerned); OLG Hamm, BB 2000, 1159 (information right of shareholder arbitrable). See Quinke, GmbHR 2011, R168 for arbitration clauses in the Societas Privata Europaea. 1168 Perales Viscasillas, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 14-15. Cf. Germany: BGH, NJW 2001, 2176 = XXVIII Y.B. Com. Arb. 247 (2003). 1169 Cf. Perales Viscasillas, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 14-20 et seq.; Bantekas, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 15-15 et seq.; Duve/Wimalasena, in: Böckstiegel/Kröll/ Nacimiento (eds), Arbitration in Germany, pp. 927, 934 paras 19 et seq. 1170 Cf. Article 222(3) of the Spanish Civil Code of Procedure (see Perales Viscasillas, in: Mistelis/ Brekoulakis (eds), Arbitrability, para. 14-27) and section 248 of the German Stock Corporation Act. 1171 Cf. Perales Viscasillas, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 14-17 to 14-29. An example is Article 24(2) of the Regulation of the European Parliament and of the Council (EU) No. 1215/2012 of Dec. 12, 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which vests exclusive jurisdiction over disputes about the validity of decisions of a company’s organs in the courts of the Member States in which the company has its seat. However, as Article 1(2)(d) of the Regulation of the European Parliament and of the Council excludes “arbitration” from its scope of application (Õ Art. VII paras 110 et seq.) and as it only intends to establish exclusive competence of a national Court in relation to other national Courts within the EU – but not in relation to arbitral tribunals – it is too far-fetched to argue that legislatures thereby intended to implicitly limit the arbitrability of intra-corporate disputes. Likewise Perales Viscasillas, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 14-25; but see para. 14-24 for references to dissenting comments. 1172 A/61/17, para. 183 (Õ Annex IV 2); A/CN.9/592, paras 89–95 (Õ Annex IV 2). 1173 Germany: BGH, BGHZ 132, 278, 285 = NJW 1996, 1753 – Schiedsfähigkeit I. Cf. Lachmann, Handbuch, paras 303 et seq.

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disputes in a limited liability company1174 are “arbitrable”1175 if the arbitral proceedings offer the same legal protection to all shareholders as court proceedings.1176 Following this decision, the German Arbitration Institute established a set of rules that puts the procedural requirements stipulated by the German Federal Supreme Court into practice and that was recently revised.1177 475 A comparable evolution seems to have happened in Italy, where a reform of arbitration law in company matters significantly expanded the scope of objective arbitrability.1178 The same applies to Spain, where the modified Regulation of the Commercial Registry now allows the inclusion of a provision in the bylaws of all types of corporations that submits disputes among shareholders or between them and the corporation or its organs to arbitration.1179 The same is true for England and Wales, where the Court of Appeal (Civil Division) held that disputes between shareholders or between shareholders and their company are arbitrable.1180 In Austria, shareholder disputes have traditionally been considered arbitrable;1181 there the discussion now focuses on the arbitrability of shareholder disputes where non-shareholders have an interest in the result of the proceedings.1182 The issue is still unsettled in both Russia1183 and Ukraine1184, where there is an opposite tendency towards seeing certain corporate disputes as not arbitrable.

10. Labor Law 476

The practice of the Contracting States regarding the arbitrability of employment disputes varies greatly.1185 While labor disputes are – next to consumer disputes – probably the most significant example of the remaining reluctance of Contracting States 1174 See Borris, NZG 2010, 481 et seq.; K. Schmidt, NZG 2018, 121, Schlüter, DZWIR 2018, 251; Kröll, SchiedsVZ 2018, 61 for a discussion of the – disputed – “arbitrability” of shareholder resolution disputes in a German stock corporation, and BGH, SchiedsVZ 2017, 197 (“Schiedsfähigkeit III”) with note Bryant, and in detail Borris, NZG 2017, 761 et seq. for the “arbitrability” of shareholders disputes in partnerships. 1175 The court itself put the term “arbitrability” in quotation marks, and for good reasons. Shareholder disputes are arbitrable in the sense of the statutory definition of section 1030(1) ZPO (“any claim involving an economic interest”), Wolff, NJW 2009, 2021; Lachmann, Handbuch, para. 305; RaeschkeKessler, SchiedsVZ 2003, 145, 152. This issue has to be dealt with either under the heading of the substantive invalidity of the arbitration agreement for restricting access to justice in an overly burdensome manner compared to the statutory provisions governing shareholder disputes before the courts (cf. Germany: BGH, SchiedsVZ 2009, 233, 234 – Schiedsfähigkeit II) or under the heading of the arbitral clause’s incapability of being performed (cf. Wolff, NJW 2009, 2021). 1176 Germany: BGH, SchiedsVZ 2009, 233, 234 – Schiedsfähigkeit II with notes Goette, in: Jurcewicz/ Pörnbacher/Wisniewski (eds), Gesellschaftsrechtliche Streitigkeiten, pp. 233 et seq.; Riegger/Wilske, ZGR 2010, 733, Wolff, NJW 2009, 2021, Triebel/Hafner, SchiedsVZ 2009, 313, K. Schmidt, in: Gesellschaftsrechtliche Vereinigung (ed.), Gesellschaftsrecht in der Diskussion 2009, p. 97, and Hilbig, SchiedsVZ 2009, 247. 1177 The Supplementary Rules for Corporate Law Disputes are available under http://www.disarb.org (last visited Apr. 12, 2019). See Quinke, SchiedsVZ 2018, 241; Wolff, SchiedsVZ 2018, 246; Borris, SchiedsVZ 2009, 299 et seq. for a commentary on these rules. 1178 Bernardini, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 503, 510. 1179 Perales Viscasillas, in: Mistelis/Brekoulakis (eds), Arbitrability, para. 14-13 with n. 30. 1180 UK: Fulham Football Club (1987) Ltd. v. Richards, [2011] EWCA Civ 855 at paras 26 et seq., with note Willems, GAR Jan. 16, 2012. 1181 Austria: OGH, Oct. 22, 2010, 7 Ob 103/10p (unreported), available at https://www.ris.bka.gv.at (last visited Apr. 12, 2019) with note Pitkowitz, ArbAut News Dec. 13, 2011. 1182 See Weber/Oberhammer, AAYB 2010, 25, 32 et seq., and recently Pitkowitz, AAYB 2014, 31 et seq. 1183 Nikiforov, (2008) 25 J. Int. Arb. 787, 793. 1184 Alyoshin/Odnorih/Dobosh, 21 IBA Arb. Committee Newsl. 77 (Feb. 2016); Chernykh, (2009) 26 J. Int. Arb. 745; Wietzorek, eastlex 2010, 158; Bondaryev/Malskyy, eastlex 2011, 225, 227; Shmatenko/Bevz, SchiedsVZ 2017, 300. 1185 UNCITRAL Secretariat, Guide, Art. V(2)(a) para. 26.

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to allow arbitration,1186 more liberal arbitrability regimes have been enacted by the US,1187 the Netherlands,1188 Germany1189 and Switzerland.1190

11. Securities Law In the area of securities law, the attitude towards arbitration has undergone sub- 477 stantial changes,1191 as is demonstrated by the jurisprudence of the US Supreme Court. While it originally held that claims under the Securities Act were not arbitrable as the effectiveness of the Securities Act’s provisions would be lessened in arbitration when compared to judicial proceedings,1192 the Court subsequently acknowledged the arbitrability of both Securities Act and Exchange Act claims,1193 recognizing that the earlier jurisprudence was pervaded by “the old judicial hostility to arbitration” and that by agreeing to arbitrate a statutory claim, a party “does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.”1194 Nonetheless, restrictions still remain on the arbitrability of securities claims in many 478 Contracting States. In Germany, for example, only merchants and public entities may enter into pre-dispute arbitration agreements regarding disputes arising out of securities transactions, but not private customers.1195 In the US, it remains to be seen whether and to what extent the SEC uses its authority established under section 921(a) of the DoddFrank Wall Street Reform and Consumer Protection Act 2010 (amending section 15 of the Securities Exchange Act of 1934) to prohibit or impose conditions or limitations on the use of pre-dispute securities arbitration agreements.1196

1186 See for country reports: Born, International Commercial Arbitration, pp. 1009–1013; Aubert, 18(1) ASA Bull. 2 (2000); Courtois-Champenois, Rev. arb. 2003, 349; Rubino-Sammartano/Rubino-Sammartano, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 10.50; Verbist/van Houtte, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 4.68; Gaillard/Darrigade, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 8.37. 1187 See Carbonneau, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 5-5, 8-14 et seq.; Sternlight, 56 U. Miami L. Rev. 831 (2002) for details. Cf. also US: Circuit City Stores v. Adams, 532 U.S. 105 (2001) and the Steelworkers trilogy: US: United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960). 1188 Lazić/Schluep, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 11.62. 1189 Hanefeld/Schmidt-Ahrendts, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 9.38. 1190 Johnson/Wildhaber, (2010) 6 J. Int. Arb. 631; Karrer, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 14.33; Aubert, 18(1) ASA Bull. 2 (2000). 1191 Cf. Born, International Commercial Arbitration, pp. 985–989. 1192 US: Wilko v. Swan, 346 U.S. 427, 435 (1953). 1193 US: Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974); Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 200 (1987); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989). 1194 US: Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 482 et seq. (1989). 1195 Section 37h of the German Securities Trading Code. See Quinke, Börsenschiedsvereinbarungen, pp. 381–388 for details. 1196 H.R. 4173 (2010). As of Apr. 12, 2019, the SEC has not exercised its authority under section 921 of the Dodd-Frank Act to restrict the use of arbitration agreements (Õ para. 460 for the Bureau of Consumer Financial Protection). See section 921(b) of the Dodd-Frank Act for a similar amendment of the Investment Advisers Act of 1940.

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12. Tax Law 479

The arbitrability of tax disputes is sometimes questioned.1197 In practice, however, tax-related disputes are frequently arbitrated, calling these doctrinal objections into question to a certain extent.1198

K. Public Policy, Article V(2)(b) I. Overview 480

Recognition and enforcement of an arbitral award may be refused under Article V(2)(b) if such recognition or enforcement would be contrary to the public policy of the country where recognition and enforcement is sought. Public policy covers both procedural and substantive aspects. The Contracting States’ far-reaching freedom to define their national public policy standard inevitably impedes foreseeability and consistency of enforcement decisions involving public policy. A best practice standard can be established requiring the Contracting States to restrictively define and apply their public policy acknowledging the foreign origin of the awards to be enforced. Nevertheless, Article V(2)(b) does not allow one to neglect making the effort to explore the respective public policy standard of the Contracting State where the award’s recognition and enforcement is sought.

II. Spirit and Purpose 481

The public policy defense serves as a safety-valve allowing the Contracting States to prevent intrusion into their legal system of awards they consider irreconcilable with it (Õ para. 490).1199 Together with arbitrability under Article V(2)(a), Article V(2)(b) thus supplements the grounds under Article V(1), in particular its lit. b, which employ a uniform standard. The immanent difficulty is to determine the contents of public policy and to avoid inconsistent, contradictory and undesired results (Õ paras 494 et seq.). In any event, Article V(2)(b) is the only ground allowing for a substantive court review of the award, albeit limited to infringements of substantive public policy (Õ paras 559 et seq.).

III. Drafting History 1. Predecessor Provisions 482

Since the public policy criterion is of fundamental significance, it does not come as a surprise that the 1927 Geneva Convention (Õ Annex V 2) already contained a public 1197 Carbonneau/Sheldrick, 1 J. Transnat’l L. & Pol’y 23, 38 (1992); US: Salini Costruttori S.P.A. v. Kingdom of Morocco, 233 F. Supp. 3d 190 (D.D.C. 2017) = XLIII Y.B. Com. Arb. 604 (2018); Russia: Supreme Arbitrazh Court, XXXVI Y.B. Com. Arb. 315 (2011). See for investor-State disputes Brazier, (2015) 32(1) J. Int. Arb. 1. 1198 Park, in: Mistelis/Brekoulakis (eds), Arbitrability, paras 10-1 et seq. with further references. 1199 Concurring Moses, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 169, 170; see also US: Crystallex Int’l v. Venezuela, XLII Y.B. Com. Arb. 692 para. 67 (2017) (D.D.C. 2017) and Davis, 3(2) EIAR 15, 31 (2014) (“escape-hatch”).

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policy restriction for the recognition and enforcement of foreign arbitral awards. Under Article 1(2)(e) of the Geneva Convention, not only a violation of the public policy of the country of enforcement hindered recognition and enforcement. An award could also not be enforced if it was contrary to the principles of the law of the country in which it was sought to be relied upon.

2. Genesis The 1953 ICC draft omitted the reference to the violation of principles of law 483 contained in the Geneva Convention and limited its Article IV(1)(a) to the violation of public policy.1200 The ECOSOC Committee on the Enforcement of International Arbitral Awards adopted a more comprehensive wording. According to its draft Article IV(h), recognition and enforcement was to be denied if “the recognition and enforcement of the award, or the subject matter thereof, would be clearly incompatible with public policy or with fundamental principles of the law (‘ordre public’) of the country in which the award is sought to be relied upon.”1201 By using restrictive words like “clearly” and “fundamental,” the Committee intended to limit this ground to cases in which the recognition or enforcement of a foreign arbitral award would be distinctly contrary to the basic principles of the legal system of the country where the award is invoked.1202 A number of governments and non-governmental organizations took the opportunity 484 to comment on the Article IV(h) of the Committee draft. They mainly requested omission or at least clarification of the “incompatible with fundamental principles of law” alternative. Those commentating saw no need for such a second path alongside the violation of public policy and feared that it would give rise to difficulties and open the question of a revision of the award as to its substance.1203 In the course of the first week of the Conference, a number of redrafts were 485 submitted. The Netherlands redraft, which the Conference designated as the basis for its further discussion in its 11th meeting on May 27, 1958,1204 made it a ground for refusing recognition and enforcement “if the award would have the effect of compelling the parties to act in a manner contrary to the public policy in the country of enforcement.”1205 Similarly, the German redraft1206 and the three-power working paper proposed by France, Germany and the Netherlands1207 restricted the wording to incompatibility with the public policy of the State in which the award is sought to be relied upon. Other redrafts were closer to the original Committee draft.1208 1200

Reprinted in E/C.2/373 (Õ Annex IV 1) and 9(1) ICC Bull. 32, 35 (1998). E/2704, Annex, p. 2 (Õ Annex IV 1); skeptical: the United Kingdom, E/2822/Add.4, para. 11 (p. 7) (Õ Annex IV 1) (“reference to ‘principles of law’ is occasionally used as a justification for virtually retrying the dispute, and thereby frustrating the purpose of the arbitration agreement […] It is thought that the reference to ‘principles of law’ should be omitted”); similarly critical the Federation of Indian Chambers of Commerce and Industry (E/CONF.26/4, para. 76 [p. 29] [Õ Annex IV 1]), and Ecuador, E/CONF.26/SR.2, p. 10 (Õ Annex IV 1). 1202 E/2704, para. 49 (p. 13) (Õ Annex IV 1). 1203 E/CONF.26/2, pp. 6 et seq. (Õ Annex IV 1) with further references. 1204 Cf. E/CONF.26/SR.11, p. 13 (Õ Annex IV 1) (“the President suggested that the Conference should decide at the next meeting whether the amendments submitted by the Netherlands (E/CONF.26/L.17) would serve as a working basis. It was so agreed.”) and E/CONF.26/SR.12, p. 2 (Õ Annex IV 1) (“The President recalled the decision, taken at the preceding meeting, to use the Netherlands amendments (E/CONF.26/L.17) as the basis of discussion.”), respectively. 1205 E/CONF.26/L.17, p. 2 (Õ Annex IV 1). 1206 E/CONF.26/L.34, p. 1 (Õ Annex IV 1) (Article IV(c)). 1207 E/CONF.26/L.40, p. 2 (Õ Annex IV 1) (Article IV(e)). 1208 See E/CONF.26/L.15/Rev.1 (Õ Annex IV 1) (Japan, deleting “or the subject matter thereof”), E/CONF.26/L.31 (Õ Annex IV 1) (Israel, reference to “violation of any law of the State where the 1201

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Article V 486–489

New York Convention

In its 14th meeting held on May 29, 1958, the Conference discussed the different proposals amid some controversy. Most delegations which took the floor suggested upholding the Geneva Convention and Commission draft;1209 some, however, argued in favor of the German redraft and the three-power working paper.1210 Japan warned of permitting an overly wide interpretation of public policy which would defeat the purpose of the Convention.1211 At the end of its meeting, the Convention installed a Working Group to consider the then draft Articles III, IV and V. 487 Working Party No. 3 presented its report in the 17th Commission meeting on June 3, 1958. The reasoning behind its wording “incompatible with the public policy of the country in which the award is sought to be relied upon”1212 was that the public policy criterion should not be given a broad scope of application. The Working Party therefore recommended the deletion of references to the subject matter of the award and to fundamental principles of the law.1213 Italy noted that a violation of res iudicata would be covered by the public policy criterion.1214 The proposal by a number of delegations to add the term “fundamental principles of the law” was rejected by the Conference.1215 Likewise, Israel’s suggestion to equate illegal awards with those violating public policy did not prevail.1216 Finally, the Convention adopted the Working Party’s draft1217 which obtained its ultimate wording by the Drafting Committee on June 6, 1958.1218 486

IV. General Concept of Public Policy 488

Before typical issues of public policy are discussed (Õ paras 521 et seq.), Article V(2)(b)’s general concept shall be outlined. This will start with the purpose and relevance of the public policy defense (Õ paras 489 et seq.) where the ambivalence concerning the vagueness associated with public policy shall be discussed. While determining the law governing public policy is rather simple (Õ para. 493), the vital issue is establishing a public policy standard (Õ paras 494 et seq.). After the subject matter of public policy examinations has been discussed (Õ paras 515 et seq.), causality (Õ paras 517a et seq.), preclusion and waiver (Õ para. 518), the effects of foreign court decisions (Õ paras 518a et seq.), Article V(2)(b)’s legal consequences (Õ paras 519 et seq.) and the European Convention (Õ para. 520) shall be touched upon.

1. Purpose and Relevance of the Public Policy Defense 489

Article V(2)(b)’s public policy defense is one of the grounds which are often invoked, but rarely granted.1219 The practical relevance of public policy manifesting here can be enforcement is sought”); see also E/CONF.26/L.35 (Õ Annex IV 1) (Yugoslavia, omitting reference to fundamental principles of law) and the overview in E/CONF.26/L.33/Rev.1, p. 7 (Õ Annex IV 1). 1209 E/CONF.26/SR.14, p. 3 (Õ Annex IV 1) (Iran), p. 5 (Israel), p. 9 (Peru, with the deletion of the word “clearly”). 1210 E/CONF.26/SR.14, p. 10 (Õ Annex IV 1) (Bulgaria). 1211 E/CONF.26/SR.14, p. 7 (Õ Annex IV 1). 1212 E/CONF.26/L.43, p. 2 (Õ Annex IV 1) (Article IV(2)(b)). 1213 E/CONF.26/SR.17, p. 3 (Õ Annex IV 1). 1214 E/CONF.26/SR.17, p. 15 (Õ Annex IV 1). See also the Yugoslav proposal in E/CONF.26/L.55 (Õ Annex IV 1). 1215 E/CONF.26/SR.17, pp. 15 et seq. (Õ Annex IV 1). 1216 E/CONF.26/SR.17, pp. 15 et seq. (Õ Annex IV 1). 1217 E/CONF.26/SR.17, p. 16 (Õ Annex IV 1). 1218 E/CONF.26/L.61, p. 3 (Õ Annex IV 1). 1219 US: Balkan Energy Ltd. v. Republic of Ghana, XLIII Y.B. Com. Arb. 730 para. 55 (2018) (D.D.C. 2018); BCB Holdings Ltd. v. Gov’t of Belize, 110 F. Supp. 3d 233, 250 (D.D.C. 2015) = XL Y.B. Com. Arb. 590 para. 43 (2015); Research & Dev. Ctr. “Teploenergetika”, LLC v. EP Int’l, LLC, 182 F. Supp. 3d 556,

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explained with how difficult it is to grasp the concept of public policy.1220 In the words of an English court which are inevitably to be cited in any work on this topic, “[p]ublic policy is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from sound law. It is never argued at all, but when other points fail.”1221 The terms “public policy” and “ordre public” are mostly used interchangeably;1222 the equally authentic French version of Article V(2)(b) speaks of “ordre public” where the English version uses “public policy.” a) Safety-Valve Mechanism Public policy serves the purpose of providing the Contracting States with a safety- 490 valve which allows them to prevent the intrusion of awards into their legal system which they consider irreconcilable with it.1223 This purpose is consistent with the public policy defense’s vagueness. The crucial significance of public policy for the Contracting States also explains why it is the only ground – apart from non-arbitrability (Õ para. 492) – under which the court can refuse recognition and enforcement on its own motion (if its lex fori orders so, Õ para. 519). A public policy defense is a common element in conventions on recognition and enforcement1224 and was also not questioned during the 1958 Conference. It is most unlikely that the Convention would have had the success it actually had if Contracting States were denied the possibility of retreating to public policy.1225 b) Gateway for Undesirable Obstructions The obvious downside of the public policy defense, apart from its ambiguity, is that it 491 opens the floodgates for obstructing the recognition and enforcement of foreign arbitral 568 (E.D. Va. 2016) = XLI Y.B. Com. Arb. 701 para. 33 (2016); IBA Subcommittee on Recognition and Enforcement of Arbitral Awards, Report on the Public Policy Exception, General Report, p. 12; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Comment d (p. 682) and Reporters’ Note b (p. 687). See the statistics prepared by Dasser, 25(3) ASA Bull. 444, 454 et seq. (2007); Dasser, 28(1) ASA Bull. 82, 87 et seq. (2010); Dasser/Roth, 32(3) ASA Bull. 460, 464 (2014); Dasser/ Wójtowicz, 34(2) ASA Bull. 280, 286 (2016); Dasser/Wójtowicz, 36(2) ASA Bull. 276, 281 (2018); for grounds for setting aside awards in Switzerland, according to which public policy was invoked 194 times from 1989 to 2017 (other grounds: between 50 and 208 times) and dismissed in 99.0 % of those instances (other grounds: between 2.9 % and 11.3 %); for the remarkably different situation in Russia (rarely invoked and often granted until publication of the Supreme Arbitrazh Court’s information letter [Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013]) see Russian Arbitration Association, The RAA Study, Moscow 2018, p. 27. 1220 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 254 et seq. (“public policy remains the most significant aspect of the Convention in respect of which such discrepancies might still exist”). 1221 UK: Richardson v. Mellish, [1824] All E.R. 258, 266; see, as a response, Lord Denning MR, in: UK: Enderby Town Football Club Ltd. v. The Football Association Ltd., [1971] Ch 591, 606 = [1971] 1 All E.R. 215, 219 (“With a good man in the saddle, the unruly horse can be kept in control.”). 1222 Van den Berg, NYC, p. 359; differently M. R. P. Paulsson, NYC in Action, p. 223 (ordre public narrower than public policy); Wei, Rethinking the NYC, p. 232 (ordre public much broader than public policy). 1223 Arfazadeh, 13 Am. Rev. Int’l Arb. 43, 64 (2002); Born, International Commercial Arbitration, pp. 3647 et seq.; Butler/Katerndahl, 7(1) Indian J. Arb. L. 104, 107 (2018); Brotóns, Recueil des Cours, Vol. 184 (1984-I), pp. 173, 245; Czernich, Kurzkommentar, Art. V para. 67; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.489; UNCITRAL Secretariat, Guide, Art. V(2)(b) para. 4. 1224 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Reporters’ Note a (p. 686); Berger/Kellerhals, Arbitration in Switzerland, para. 2095; Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 250 et seq. with examples; Shaleva, (2003) 19 Arb. Int’l 67, 69; UNCITRAL Secretariat, Guide, Art. V(2)(b) para. 2; van den Berg, NYC, p. 360. 1225 Concurring M. R. P. Paulsson, 5(2) Indian J. Arb. L. 23, 36 et seq. (2016).

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Article V 492–493

New York Convention

awards. By defining public policy broadly, Contracting States could effectively deny any undesired award recognition and enforcement. The Convention’s enforcementfriendly approach could thus be circumvented through the “back door” of public policy. Indeed, a number of court decisions exist which have pursued this avenue (Õ para. 510).1226 Moreover, what is an enforcement-hostile public policy complicating cross-border trade to some may be last line of defense from perverse and/or prejudiced awards to others.1227 Regardless of how a State handles public policy defenses, the concept’s vagueness can incentivize abusive objections brought by the party resisting recognition and enforcement.1228 These risks associated with the public policy defense have caused numerous attempts to limit the concept of public policy and to increase its predictability (Õ paras 496 et seq.). However, the tension between its sensible use as a safety-valve and its abuse is unlikely to ever be fully resolved. 492

c) Relation Between Arbitrability and Public Policy It is no coincidence that arbitrability and public policy are bundled in Article V(2) since both serve a similar purpose.1229 Like public policy (Õ para. 490), arbitrability serves to provide States with a safety-valve (Õ para. 421). While both instruments are interchangeable as to their function, they differ in their effects. Lack of arbitrability invalidates the arbitration agreement (Õ Art. II para. 161) and thus deprives the business community of an effective dispute resolution mechanism from the outset.1230 Contrary to arbitrability, public policy generally does not exclude arbitration (Õ para. 519a). However, it replaces arbitrability’s absolute prohibition with the unpredictability immanent to public policy, which, as a sword of Damocles, can likewise effectively reduce the attractiveness of arbitration.

2. Governing Law 493

Article V(2)(b) explicitly stipulates the law of the country where recognition and enforcement is sought as governing the public policy.1231 Moreover, the public policy of no other source could satisfy the public policy defense’s function of providing States with a safety-valve (Õ para. 490).1232 The public policies of third countries, including the countries where the parties or the arbitration are seated, are of no relevance1233 unless the

1226 The International Law Association saw no serious mischief created by Article V(2)(b), cf. Sheppard, (2003) 19 Arb. Int’l 217, 229. 1227 Elucidating Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 253 and Butler/Katerndahl, 7(1) Indian J. Arb. L. 104, 115 et seq., 118 (2018) (for the Pacific Island countries’ “kastom”); see also Colombia: Corte Suprema de Justicia, XLII Y.B. Com. Arb. 370 para. 35 (2017) (“However, this shield [i.e. international public policy] cannot become the means to destroy regional integration, the cooperation between different peoples and the processes of unification, justifying false, selfish and isolationist nationalisms.”). 1228 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 255; Sheppard, (2003) 19 Arb. Int’l 217, 248. 1229 Cf. Sheppard, (2003) 19 Arb. Int’l 217, 229; for a view that deems arbitrability superfluous next to public policy, see, inter alia, van den Berg, NYC, p. 360. 1230 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.482. 1231 Cf. Germany: BayObLG, IPRspr. 2003, No. 204, 664, 665 = XXIX Y.B. Com. Arb. 771, 773 para. 5 (2004); Russia: Moscow District Court, XXIII Y.B. Com. Arb. 735, 736 para. 5 (1998); Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 254; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 316. 1232 Born, International Commercial Arbitration, 1st ed. 2009, p. 2832 (less clear in 2nd ed. 2014, p. 3652); Moses, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 169, 171. 1233 Mauritius: Sup. Ct., XXXIX Y.B. Com. Arb. 447 para. 75 (2014); US: Ukrvneshprom State Foreign Econ. Enter. v. Tradeway, Inc., 1996 WL 107285, p. 5 (S.D.N.Y. 1996) = XXII Y.B. Com. Arb. 958, 964 para. 15 (1997); Yukos Capital s.a.r.l. v. OAO Samaraneftegaz, XL Y.B. Com. Arb. 520 para. 10 (2015) (2d Cir. 2014); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Comment e

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recognition country’s public policy incorporates them by way of reference.1234 However, if the arbitral award violates the public policy at the seat of arbitration, it can be set aside in that country so that recognition and enforcement can be denied under Article V(1)(e).

3. Standard of Public Policy a) Contracting State’s Sovereignty over Defining Public Policy Article V(2)(b)’s reference to the public policy of the State where recognition and 494 enforcement is sought clarifies that the provision employs national standards of public policy (Õ para. 493). The public policy standard under Article V(2)(b) is defined under the respective national law; as a starting point, the Contracting States are entitled to determine the contents of their public policy through their legislation and judiciary.1235 It therefore does not come as a surprise that the public policy standard varies from country to country. For attempts towards unification of that standard, Õ paras 496 et seq. Because of the States’ sovereignty over defining public policy, the concept of public 495 policy evades general precise definition.1236 One of the most frequently cited comments stems from Judge Joseph Smith: “Enforcement of foreign arbitral awards may be denied on this basis [i.e. for grounds of public policy] only where enforcement would violate the forum state’s most basic notions of morality and justice.”1237 Notably, such comments are more abstract descriptions of the concept of public policy rather than definitions of its content. It is not possible to deduce whether a given award violates public policy from such a comment. However, the description clarifies that public policy is not static in nature. The contents of public policy, as of morality, are subject to temporal changes.1238 (p. 684); Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 369; Sheppard, (2003) 19 Arb. Int’l 217, 243; dissenting Gibson, 113(4) Penn St. L. Rev. 1227, 1264 (2009). 1234 Born, International Commercial Arbitration, p. 3667; for examples (European Community, England) see Sheppard, (2003) 19 Arb. Int’l 217, 243 et seq. 1235 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 255 et seq.: “The Committee recognizes the ultimate right of State courts to determine what constitutes public policy in their respective jurisdictions;” Sheppard, (2003) 19 Arb. Int’l 217 (“The public policy exception to enforcement is an acknowledgement of the right of the State and its courts to exercise ultimate control over the arbitral process.”); Wilner, 2 N.C. J. Int’l L. & Com. Reg. 29 et seq. (1977). 1236 India: Cruz City 1 Mauritius Holdings v. Unitech Ltd., XLII Y.B. Com. Arb. 407 para. 89 (2017); UK: Cukurova Holding A.S. v. Sonera Holding B.V., [2014] UKPC 15 para. 33 = XXXIX Y.B. Com. Arb. 516 para. 32 (2014); Deutsche Schachtbau- und Tiefbohrgesellschaft m. b. H. v. Shell International Petroleum Co. Ltd., [1990] 1 AC 295, 316 = XIII Y.B. Com. Arb. 522, 534 para. 26 (1988); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and InvestorState Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Reporters’ Note b (p. 686); Kröll, in: The UNCITRAL Model Law after Twenty-Five Years, pp. 139, 142 et seq.; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-115; cf. Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 252; Sheppard, (2003) 19 Arb. Int’l 217, 218 et seq. 1237 US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 974 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976). For further references to similar descriptions, see UNCITRAL Secretariat, Guide, Art. V(2)(b) paras 6 et seq. Civil law courts tend to extract public policy less from morality and justice but rather from their statutory law (Moses, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 169, 173; see also Gill/Baker, [2016] Asian DR 74, 75; IBA Subcommittee on Recognition and Enforcement of Arbitral Awards, Report on the Public Policy Exception, General Report, pp. 6 et seq.). The results, however, will be similar since these jurisdictions use more abstract notions like morality and justice to identify the rules which qualify as public policy rules (Moses, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 169, 173). Common law courts often include the rules of natural justice in the notion of public policy (see, e.g., Australia: William Hare UAE LLC v. Aircraft Support Industries Pty Ltd., XL Y.B. Com. Arb. 363 para. 41 (2015)). 1238 Brazil: Superior Tribunal de Justiça, XXXIX Y.B. Com. Arb. 364 para. 13 (2014); India: Cruz City 1 Mauritius Holdings v. Unitech Ltd., XLII Y.B. Com. Arb. 407 para. 88 (2017); Peru: Corte Superior de Justicia de Lima, Mar. 5, 2018, 352-2017, XLIV Y.B. Com. Arb. ___ para. 36 (2019); Böckstiegel, in:

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b) Internationalized Standards Given the lack of uniformity and the risks associated with national public policy standards (Õ para. 491), it is comprehensible that legislatures, courts and scholars have undertaken attempts to internationalize the standard, in particular by invoking a standard of international public policy. Under this catchphrase, a number of different concepts are being discussed including (a) an international standard deriving from international sources, complemented by standards common to many national States (also referred to as “transnational public policy” or “truly international public policy”),1239 (b) a national standard which is in conformity with international sources1240 or (c) simply a national standard specifically for international awards which is more generous than for domestic awards (Õ para. 511).1241 497 Approaches (a) and (b) effectively replace an autonomous national standard of public policy with an international or supranational standard.1242 Such substitution is irreconcilable with the wording and purpose of Article V(2)(b) (Õ para. 490, Õ para. 493)1243 if these standards are understood as constituting autonomous law under Article V(2)(b). The only approach compatible with the Convention is (c), i.e. the concept of international public policy as a national standard for the recognition and enforcement of 496

Sanders (ed.), Comparative Arbitration Practice, pp. 177, 179 et seq.; Butler/Katerndahl, 7(1) Indian J. Arb. L. 104, 116 et seq. (2018); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.490; IBA Subcommittee on Recognition and Enforcement of Arbitral Awards, Report on the Public Policy Exception, General Report, p. 10; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-117; Maurer, Public Policy Exception, p. 55; Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, 1st ed., 2010, Art. V para. 17; Moses, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 169, 172; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 367 et seq.; Sheppard, (2003) 19 Arb. Int’l 217, 228. See also Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 262, Recommendation 3(d) for the specific question on whether public policy rules enacted after the rendering of the award should have an impact on the public policy test. 1239 Switzerland: BG, 13(2) ASA Bull. 217, 224 (1995) = XXI Y.B. Com. Arb. 172, 178 para. 18 (1996); BG, 15(2) ASA Bull. 291, 304 (1997); US: Ledee v. Ceramiche Ragno, 684 F.2d 184, 187 (1st Cir. 1982); Buchanan, (1988) 26 Am. Bus. L.J. 511, 514 et seq.; Lalive, in: Sanders (ed.), Comparative Arbitration Practice, pp. 257, 273 et seq.; Mantilla-Serrano, (2004) 20 Arb. Int’l 333, 335 et seq.; Matray, in: Schultsz/ van den Berg (eds), Liber Amicorum Sanders, pp. 241, 242; Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 251; cautionary Pryles, (2007) 24 J. Int. Arb. 1, 7; critical Brekoulakis, (2018) 84 Arbitration 205, 218 et seq.; Shenoy, 20 CJCR 77, 97 et seq. (2018). 1240 Italy: CA Milano, XXII Y.B. Com. Arb. 725, 726 para. 4 (1997); see also US: Ledee v. Ceramiche Ragno, 684 F.2d 184, 187 (1st Cir. 1982). 1241 Germany: BGH, NJW-RR 2001, 1059, 1061 = XXIX Y.B. Com. Arb. 700, 714 para. 42 (2004); OLG Bremen, BB 2000, Beil. 12, pp. 18, 20 et seq. = XXXI Y.B. Com. Arb. 640, 648 et seq. paras 24 et seq. (2006); OLG Celle, IPRspr. 2005, No. 188, 518, 520 = XXXII Y.B. Com. Arb. 322, 326 para. 11 (2007); OLG Karlsruhe, SchiedsVZ 2012, 101, 104 = XXXVIII Y.B. Com. Arb. 379 para. 20 (2013); OLG Schleswig, XXIX Y.B. Com. Arb. 687, 696 para. 24 (2004); OLG Schleswig, RIW 2000, 706, 709 = XXXI Y.B. Com. Arb. 652, 661 para. 22 (2006); Lebanon: CA Beyrouth, 1(1) Int’l J. Arab Arb. 310, 314 (2009); Luxembourg: CA, XXI Y.B. Com. Arb. 617, 625 para. 23 (1996); Netherlands: Voorzieningenrechter, Rechtbank Dordrecht, XXXVI Y.B. Com. Arb. 299 para. 16 (2011); Peru: Corte Superior de Justicia de Lima, Mar. 5, 2018, 352-2017, XLIV Y.B. Com. Arb. ___ paras 38 et seq. (2019); Switzerland: BG, XXXVI Y.B. Com. Arb. 337 para. 19 (2011); BG, XXXVI Y.B. Com. Arb. 340 para. 17 (2011); BG, XXXVII Y.B. Com. Arb. 300 para. 35 (2012); Gaillard/Savage, Fouchard Gaillard Goldman, para. 1711; Harris, (2007) 24 J. Int. Arb. 9, 14 et seq.; ICCA, Guide, pp. 106 et seq.; Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 251; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 366; Paulsson, in: Blessing (ed.), ASA Special Series No. 9, pp. 100, 113; van den Berg, in: van den Berg (ed.), New Horizons, pp. 291, 309; see also Sheppard, (2003) 19 Arb. Int’l 217 et seq.; van den Berg, NYC, p. 360; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 23. 1242 Cf. for transnational public policy Born, International Commercial Arbitration, pp. 3657 et seq.; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.491. 1243 Cf. for transnational public policy Born, International Commercial Arbitration, pp. 3657 et seq.; Maurer, Public Policy Exception, p. 55.; Shenoy, 20 CJCR 77, 96 (2018).

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international awards as opposed to national public policy as the national standard for the recognition and enforcement of domestic awards.1244 International public policy is commonly understood to be narrower than national public policy; not every public policy ground for which a domestic award may be denied recognition also qualifies for denial of recognition and enforcement of international awards (but Õ para. 511).1245 In any event, a Contracting State is free to adopt a standard that is in line with the approaches (a) or (b) set out above, as doing so falls within its liberty of defining its own national standard of public policy.1246 However, the resulting standard remains national in nature in such case despite its internationally oriented content. While the distinction of national and international public policy is commonly used, it 498 is not imposed by Article V(2)(b). Since the Convention provides the Contracting States with the freedom to shape their public policy standard (Õ para. 494), they are allowed to define separate standards for domestic and for international awards just as they are entitled to apply a uniform standard.1247 However, for reasons of comity, the best practice standard involves a generous treatment of foreign awards (Õ para. 511). c) Legal Limitations for National Public Policies An issue adjacent to that of internationalized standards (Õ paras 496 et seq.) is the 499 existence and demarcation of limitations for national public policies. While some of the internationalized standards in fact replace the national standard stipulated by Article V(2)(b) (Õ para. 497), limitations restrict rather than remove the Contracting State’s freedom of shaping national public policy. aa) Upper Limitations. It has been suggested that Article V(2)(b) limits the public 500 policy defense to exceptional cases “in order to safeguard fundamental, mandatory policies, articulated in legislative or judicial instruments, which are not contrary to the Convention’s basic purposes or to developing state practice under the Convention.”1248 According to this suggestion, reliance on public policy cannot be used as grounds to deny recognition of all foreign arbitral awards, all awards made with regard to future disputes or tort claims, awards where the arbitral tribunal’s interpretation of a contract is putatively wrong, unfair or contrary to local law, or awards which damage local commercial interests.1249 At first glance, this approach seems appealing since it does away with the downsides 501 of the States’ discretion to define their public policy standard (Õ para. 491). It is, however, significantly too far-reaching. If the Convention imposed such limits on the States, it would largely remove their discretion as granted by Article V(2)(b).1250 The 1244 Bucher, in: Schwander (ed.), Festschrift Moser, pp. 193, 223; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1712; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.491; Kornblum, in: Habscheid/Schwab (eds), Festschrift Nagel, pp. 140, 141. 1245 Sheppard, (2003) 19 Arb. Int’l 217, 220. 1246 Cf. Moses, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 169, 175, 181; Shenoy, 20 CJCR 77, 96 et seq. (2018); Trakman, 93(2) Tul. L. Rev. 207, 266 (2018). 1247 Cf. Peru: Corte Superior de Justicia de Lima, Mar. 5, 2018, 352-2017, XLIV Y.B. Com. Arb. ___ para. 38 (2019) (“it is fully debatable whether a distinction does or does not exist between these two concepts”); Maurer, Public Policy Exception, p. 55; Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.109; see also Solomon, in: Schmidt-Kessel (ed.), German National Reports, pp. 55, 112 and the overview provided by IBA Subcommittee on Recognition and Enforcement of Arbitral Awards, Report on the Public Policy Exception, General Report, pp. 4 et seq. 1248 Born, International Commercial Arbitration, 1st ed. 2009, p. 2839, evolved in 2nd ed. 2014, p. 3663 to “in order to safeguard fundamental, mandatory policies of a Contracting State, which are clearly articulated in constitutional, legislative, or judicial instruments, and which are not contrary to the Convention’s basic purposes or to state practice under the Convention.” 1249 Born, International Commercial Arbitration, p. 3664. 1250 Similar (for respective restrictions of arbitrability) Õ para. 444.

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Article V 502–504

New York Convention

suggestion as it stands can therefore not be followed for the same reasons that no international standard can be introduced in Article V(2)(b) (Õ paras 496 et seq.). Moreover, such broad limitation is not operable as long as its borders remain basically undefined. Finally, tying public policy to “developing state practice under the Convention” prevents this very development (which is inherent to public policy, Õ para. 495) and is as such inconsistent. Best practices of defining national public policy concepts (Õ paras 507 et seq.) cannot simply be converted into legal limitations of the State’s freedom granted by the Convention. The upper limits of public policy are much more confined. 502

(1) No Infringement of Other Provisions Under the Convention. Public policy cannot be invoked to circumvent obligations imposed by other provisions of the Convention. For example, the Contracting States are not allowed to define national public policy in a way that all awards based on non-contractual disputes are subject to non-recognition and enforcement. Such understanding would violate the States’ obligation under Article II(1) to recognize arbitration agreements also in respect of noncontractual legal relationships (Õ Art. II para. 67). Such violations are easy to establish but of limited interest in practice. To continue with this example, Article II(1) would not prohibit the deeming of all awards based on tort claims as contrary to public policy: since a relevant number of other non-contractual claims exist, Article II(1)’s respective obligation would not be rendered meaningless. The Belarussian case law according to which a foreign award between Belarussian parties violates Belarussian public policy1251 is likewise irreconcilable with the New York Convention. It would otherwise fundamentally reshape the Convention’s scope of application for which, under Article I(1), the nationality of the parties is irrelevant (Õ Art. I para. 133).1252

503

(2) No Devaluation of the Convention. Another upper limitation imposed by Article V(2)(b) on the Contracting States prohibits a definition of national public policy in a way that devalues the Contracting State’s ratification of the Convention.1253 Such devaluation would render the ratification meaningless and convert the right to recognition and enforcement under the Convention to a nudum ius. The most obvious example is a public policy prohibiting recognition and enforcement of all foreign awards.

504

(3) Threshold for Public Policy. Third and most importantly, the Contracting States are not permitted to bring public policy in line with the general body of law or close to it (Õ para. 561). In other words, public policy must be given a (more or less) narrow scope of application. This follows from the notion of public policy as it was used when the Convention was negotiated and as it is used today. This understanding is further confirmed by Article V(2)(b)’s drafting history, which explained the final version’s wording by reasoning that the public policy criterion should not be given a broad scope of application (Õ para. 487).1254 Some also invoke the idea of reciprocity as underlying the Convention in this context.1255 1251

Reported by Khrapoutski/Loban, (2015) 81 Arbitration 57, 61 et seq. For the irreconcilability of the US case law which requires an international element not foreseen in the Convention, albeit beyond Article V(2)(b), Õ Art. II para. 27. 1253 Cf. Born, International Commercial Arbitration, p. 3662. 1254 Australia: William Hare UAE LLC v. Aircraft Support Industries Pty Ltd., XL Y.B. Com. Arb. 363 para. 41 (2015); Born, International Commercial Arbitration, pp. 3648 et seq.; Maurer, Public Policy Exception, p. 58; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 365; Sheppard, (2003) 19 Arb. Int’l 217, 248; UNCITRAL Secretariat, Guide, Art. V(2)(b) para. 3; van den Berg, NYC, pp. 360 et seq.; Wei, Rethinking the NYC, p. 246. 1255 Belize: Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd., [2013] CCJ 5 para. 26 (AJ) = XXXVIII Y.B. Com. Arb. 324 para. 107 (2013); Korea: Sup. Ct., XXI Y.B. Com. Arb. 612, 1252

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(4) No Less Favorable Standard than for Domestic Awards. Lastly, the Convention 505 could be considered as an obligation on the Contracting States to define the public policy standard for foreign awards no less favorably than for domestic awards. In support of this view reference can be made to Article III cl. 2, which – although in another context – demands that foreign awards not be treated less beneficially than domestic awards. Another argument in favor of such approach is that public policy serves to prevent intrusion into the State’s legal system (Õ para. 490). For that purpose, an award introduced from the outside cannot be more dangerous than the same award emerging within the legal system. bb) Lower Limitations. Another aspect of Article V(2)(b) that is seldom discussed is 506 that it not only imposes upper limitations for defining public policy on the Contracting States (Õ paras 500 et seq.) but also entails the obligation not to fall below a minimum level of content. Such lower limitations are generally not reconcilable with Article V(2)(b)’s function to provide the Contracting States with a safety-valve (Õ para. 490). An exception, however, should be made for public policy elements reflecting the Contracting State’s duty to respect its obligations towards other States or international organizations (Õ para. 584).1256 Contrary to the other elements of public policy, the State is legally bound and thus not free to determine the contents of its national public policy in this respect.1257 To this extent recognition and enforcement must be denied despite Article V(2)’s permissive “may” (Õ para. 519a). d) Best Practice Standard for Public Policy Legally, the Contracting States are generally free to shape their national public 507 policies and to deny recognition and enforcement of foreign arbitral awards based on Article V(2)(b) (Õ para. 494). Although this freedom is enclosed by upper (Õ paras 500 et seq.) and lower (Õ para. 506) limits, these limits leave the Contracting States with much legal leeway. While some elements of national public policy are more desirable than others from an international point of view, all national public policies are covered by the Convention as long as they stay within that leeway. It follows from the notion of public policy as anchored in Article V(2)(b) that the 508 need for unification in the area of national public policies cannot be satisfied by way of interpretation. It can and should, however, be promoted by establishing best practices for national public policies. During the last decades, a larger number of best practice rules have advanced the practice of international arbitration, the most prominent example being the Model Law (which, despite its name, is ultimately nothing more than a set of best practice rules) or the 2006 UNCITRAL Recommendation (Õ Annex III). Best practice rules for national public policies can serve as recommendations for the States’ legislatures and judiciaries. It is, however, important to note that denying recognition of a foreign award based on their non-adoption does not violate the Convention.

615 para. 9 (1996) (referring to the stability of international commercial order; see also Choe/Dharmananda, 2(1) Asian Int’l Arb. J. 60, 68 et seq. (2006)); Singapore: Hainan Machinery Import and Export Corp. v. Donald & McArthy Pte Ltd., XXII Y.B. Com. Arb. 771, 779 para. 24 (1997); US: MGM Prods. Group, Inc. v. Aeroflot Russian Airlines, 573 F. Supp. 2d 772, 777 (S.D.N.Y. 2003), aff’d, 91 Fed. Appx. 716 (2d Cir. 2004) = 2004 WL 234871 = XXIX Y.B. Com. Arb. 1215 (2004); Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 973 et seq. (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976). 1256 Including obligations arising from the New York Convention itself. 1257 Concurring Butler/Katerndahl, 7(1) Indian J. Arb. L. 104, 110, 117 (2018); dissenting Born, International Commercial Arbitration, p. 3666 n. 1366.

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Article V 509–511

New York Convention

Promotion of a best practice standard for public policy serves two goals: firstly, it will – at least in the long run – reduce the number of court decisions invoking public policy with an undesirable result or reasoning. As an important side-effect, greater consistency in applying Article V(2)(b)’s public policy defense will lead to increased predictability of decisions based on public policy grounds.1258 Increased predictability, secondly, will reduce the incentives for abusive invocations of the public policy defense, thus improving the award’s finality and ultimately further promoting arbitration as the international dispute resolution mechanism of choice.1259 509a No Contracting State is under a duty to adhere to international best practice standards. Where, however, adoption of the New York Convention is driven by the adopting State’s desire to facilitate cross-border trade and to increase attractiveness for foreign investment (Õ Prel. Rem. para. 20a), an excessive or unusual public policy will be counter-productive.1260 For example, for the Pacific Island countries to accede the New York Convention, elevate their customs, usages and traditional practices (“kastom”) to the level of public policy and repeal foreign awards irreconcilable with it under Article V(2)(b) does not engender any legal concerns per se.1261 However, this will hardly increase the attractiveness of these countries for international arbitration. 510 Development of a best practice standard is facilitated by the fact that most state courts favor a restrictive understanding of public policy, which has resulted in notable consistency of decisions across different countries and legal traditions1262. While case law exists which is clearly outside this widely accepted scope of public policy,1263 such decisions are relatively rare and also easy to identify.1264 An international consensus on the desirable contents of best practice thus already exists, although it is not always clear-cut. 511 The notion of international public policy (Õ para. 497) forms part of the best practice standard as far as recognition is to be accorded to the foreign origin of arbitral awards.1265 The principle of comity among States has led to a tolerant standard for foreign awards.1266 The standard for recognition and enforcement of foreign awards, 509

1258

Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 255. Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 255. See Moses, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 169, 182; Wei, Rethinking the NYC, pp. 273 et seq. (for the relevance of judicial competition for formulating efficient public policy standards) and pp. 276 et seq. (for the promotion of a restrictive public policy standard under a gametheoretical approach). 1261 Butler/Katerndahl, 7(1) Indian J. Arb. L. 104, 115 et seq., 118 (2018). 1262 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 254; see also Belize: Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd., [2013] CCJ 5 para. 23 (AJ) = XXXVIII Y.B. Com. Arb. 324 para. 104 (2013). 1263 See, e.g., India: COSID Inc. v. Steel Authority of India Ltd., XI Y.B. Com. Arb. 502, 507 para. 12 (1986); Kenya: Tanzania National Roads Agency v. Kundan Singh Construction Ltd., XXXIX Y.B. Com. Arb. 431 para. 51 (2014) (incorrect application of the substantive law chosen by the parties); Turkey: 4th Commercial Court of Ankara, No. 95/140 (unreported), discussed in Ehrat, in: Blessing (ed.), ASA Special Series No. 9, pp. 225, 233 et seq. and Paulsson, in: Blessing (ed.), ASA Special Series No. 9, pp. 100, 114 et seq.; Ukraine: CA Kiev, XLI Y.B. Com. Arb. 577 paras 34 et seq. (2016) (investment arbitration award contrary to the Ukrainian tax laws and to the detriment of Ukraine’s state budget; reversed by Ukraine: Sup. Ct., XLI Y.B. Com. Arb. 581 paras 33 et seq. (2016)); see also the Indonesian decision reported by Rubins, 20 Am. U. Int’l L. Rev. 359, 395 et seq. and n. 237 (2005) and the Chinese decision reported by Peerenboom, 49 Am. J. Comp. L. 249, 289 (2001); see further the Chinese Heavy Metal case reported by Blackaby/Partasides/Redfern/Hunter, Redfern and Hunter, para. 11.116, and the reports of Fei, (2010) 26 Arb. Int’l 301, 305 et seq. (China) and Tapola, (2006) 22 Arb. Int’l 151, 157 (Russia). 1264 Van den Berg, NYC, p. 366; similarly Gibson, 113(4) Penn St. L. Rev. 1227, 1244 (2009). 1265 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 250 et seq., Recommendation 1(b); van den Berg, NYC, pp. 360 et seq. 1266 Austria: OGH, XLIII Y.B. Com. Arb. 415 para. 8 (2018) and Landesgericht Ried im Innkreis, XLI Y.B. Com. Arb. 393 para. 15 (2016) (“in order not to disturb the international harmony of decisions”); 1259 1260

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however, is the only standard Article V(2)(b) is concerned with; the enforcement of domestic awards is not governed by that provision.1267 The common notion of international public policy as providing for a more generous standard than national public policy can therefore not be considered part of the best practice standard to the extent that it relates to national public policy: the Convention in no way suggests that Contracting States should treat domestic awards less generously than international awards.1268 All the best practice standard requires is that the international origin of an award is properly taken into account. Treating domestic awards less favorably is not part of best practice. A first step in establishing a best practice standard for public policy has been under- 512 taken by the International Law Association in its “Report on Public Policy as a Bar to Enforcement of International Arbitral Awards.”1269 This report has inter alia identified as parts of international public policy “(i) fundamental principles, pertaining to justice or morality, that the State wishes to protect even when it is not directly concerned; (ii) rules designated to serve the essential political, social or economic interests of the State, these being known as ‘lois de police’ or ‘public policy rules’; and (iii) the duty of the State to respect its obligations towards other States or international organisations.”1270 The report does, however, remain at a rather abstract level.1271 Which elements should be part of Belize: Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd., [2013] CCJ 5 para. 24 (AJ) = XXXVIII Y.B. Com. Arb. 324 para. 105 (2013); France: Cass., JDI 1972, 62, 64 et seq.; Germany: BGH, BGHZ 98, 70, 74 = NJW 1986, 3027, 3028 = XII Y.B. Com. Arb. 489, 490 para. 2 (1987); BGH, BGHZ 110, 104, 107 = NJW 1990, 2199 = XVII Y.B. Com. Arb. 503, 505 para. 5 (1992); BGH, NJW-RR 2017, 313, 319 para. 56 = XLIII Y.B. Com. Arb. 445 para. 13 (2018) (“in the interest of international commerce”); Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 para. 15 (2017); Singapore: Hainan Machinery Import and Export Corp. v. Donald & McArthy Pte Ltd., XXII Y.B. Com. Arb. 771, 779 para. 24 (1997); Switzerland: BG, BGE 84 I 39, 48; BG, BGE 97 I 151, 157; Camera di Esecuzione e Fallimenti, Canton Ticino, XX Y.B. Com. Arb. 762, 764 para. 6 (1995); CJ, IV Y.B. Com. Arb. 311, 312 para. 2 (1979); US: Venco Imtiaz Constr. Co. v. Symbion Power LLC, 2018 WL 3407572 (D.C. Cir. 2018) = XLIV Y.B. Com. Arb. ___ para. 3 (2019); see also US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 973 et seq. (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985) = 105 S. Ct. 3346, 3355 = XI Y.B. Com. Arb. 555, 564 et seq. para. 22 (1986); Sonatrach v. Distrigas Corp., 1987 U.S. Dist. LEXIS 11805, *20 et seq. (D. Mass. 1987) = XX Y.B. Com. Arb. 795, 801 para. 15 (1995); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.491; dissenting India: Renusagar Power Co. Ltd. v. General Electric Co., XX Y.B. Com. Arb. 681, 699 et seq. para. 37 (1995); COSID Inc. v. Steel Authority of India Ltd., XI Y.B. Com. Arb. 502, 507 para. 10 (1986). 1267 The ILA Recommendation 1(f), according to which the seat of the arbitration shall not be taken into account when assessing an award’s conformity with international public policy (Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 252), is therefore of no relevance under Article V(2)(b). 1268 Cf. for the distinction’s lack of importance in case of liberal national public policy Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 69; Kornblum, in: Habscheid/Schwab (eds), Festschrift Nagel, pp. 140, 142 et seq.; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 30 para. 21; dissenting Bartos, Verfahrensprinzipien, pp. 60 et seq.; Wunderer, Ordre Public D’Arbitrage International, pp. 118 et seq., 167 et seq.; apparently dissenting Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 252. 1269 Mayer/Sheppard, (2003) 19 Arb. Int’l 249; the interim report has been published as Sheppard, (2003) 19 Arb. Int’l 217; for this report being considered as international best practice, see Peru: Corte Superior de Justicia de Lima, Mar. 5, 2018, 352-2017, XLIV Y.B. Com. Arb. ___ para. 41 (2019); Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 484 para. 20 (2017); Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 para. 22 (2017); ICCA, Guide, p. 107; see further Changaroth, 4(2) Asian Int’l Arb. J. 143, 160 et seq. (2008). For another attempt to create a uniform model of public policy, see Junita, 5(1) Contemp. Asia Arb. J. 45 (2012). 1270 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 255, Recommendation 1(d). 1271 Cf. Sheppard, (2003) 19 Arb. Int’l 217, 248 (“Another and perhaps more workable way forward towards the achievement of greater predictability would be for the international arbitration community to reach a broad consensus as to which ‘exceptional circumstances’ would justify a national court denying enforcement of a foreign arbitral award, and for the courts to have regard to any such consensus.”).

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Article V 512a–514

New York Convention

(international) public policy will be discussed in the context of the typical issues of public policy (Õ paras 521 et seq.). In any event, as part of the best practice standard, public policy is to be interpreted restrictively.1272 A restrictive interpretation is also beneficial to the award’s finality, which itself is an aspect of public policy.1273 512a Comity among States advocates for a generous standard of public policy for foreign awards (Õ para. 511), at least to the extent that these awards reflect specificities of the applicable (procedural or substantive) rules. Comity cannot, however, contribute further to determining the content of public policy under a best practice standard. In particular, comity cannot constitute a public policy violation simply because the interests of another State are affected, be it that the other State is the award debtor (Õ para. 586),1274 or be it that its legal or economic system is opposed to recognition and enforcement of the award.1275 Conversely, comity cannot eliminate a public policy violation that otherwise existed on grounds of the importance of the foreign law underlying the award for the economy of that State (Õ para. 581a). Public policy shall prevent intrusion of awards into the State’s legal system that they consider irreconcilable with it. Either the award is irreconcilable with the enforcement State’s legal system (Õ para. 490) or it is not, but this is detached from the interests of another State. 513 Finally, a best practice standard for public policy needs to be dynamic. A static standard could not take into account the fact that public policy is always subject to temporal changes (Õ para. 495). In developing such a standard, courts should look to the practice of other courts, including to those in foreign jurisdictions.1276 To facilitate discourse on the proper contents of public policy, courts (and authors) should give comprehensible reasons for their views.1277 514

e) Procedural and Substantive Public Policy An award can be contrary to public policy for both procedural and substantive reasons, i.e. it can violate procedural public policy or substantive public policy.1278 This 1272 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 250, Recommendation 1(a); Sheppard, (2003) 19 Arb. Int’l 217, 226 et seq. with further references; see also ECJ: Eco Swiss China Time Ltd. v. Benetton International NV (C-126/97), [1999] ECR I-3055 para. 35 = XXIVa Y.B. Com. Arb. 629, 636 para. 13 (1999). 1273 Sheppard, (2003) 19 Arb. Int’l 217, 228. 1274 US: Newco Ltd. v. Gov’t of Belize, XLI Y.B. Com. Arb. 713 para. 4 (2016) (D.C. Cir. 2016). 1275 US: Balkan Energy Ltd. v. Republic of Ghana, XLIII Y.B. Com. Arb. 730 para. 57 (2018) (D.D.C. 2018) (no proposition that not affording deference to the Ghanaian Supreme Court would violate US public policy). 1276 Australia: William Hare UAE LLC v. Aircraft Support Industries Pty Ltd., XL Y.B. Com. Arb. 363 para. 42 (2015); Lithuania: Lietuvos Aukšciausiasis Teismas, XXXIX Y.B. Com. Arb. 437 para. 59 (2014); Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 257 et seq., 259, Recommendations 1(g) and 2(b); Moses, in: Fach Gómez/López Rodríguez (eds), 60 Years of NYC, pp. 169, 181, 183 (“transnational perspective”). 1277 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 257 et seq., 259, Recommendations 1(g) and 2(b). 1278 Germany: BGH, BGHZ 98, 70, 73 et seq. = NJW 1986, 3027, 3028 = XII Y.B. Com. Arb. 489, 490 para. 3 (1987); OLG Stuttgart, RIW 1988, 480, 482 = IPRax 1987, 369, 372; Netherlands: Voorzieningenrechter, Arrondissementsrechtbank Rotterdam, XXIII Y.B. Com. Arb. 731, 732 para. 1 (1998); Peru: Corte Superior de Justicia de Lima, Mar. 5, 2018, 352-2017, XLIV Y.B. Com. Arb. ___ para. 43 (2019); Switzerland: BG, XXXVII Y.B. Com. Arb. 300 para. 35 (2012); BG, XLI Y.B. Com. Arb. 564 para. 8 (2016); BG, 33(3) ASA Bull. 576, 588 (2015) = XLI Y.B. Com. Arb. 567 para. 8 (2016); Fouchard, Rev. arb. 1999, 256, 258; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.494; Hanotiau/Caprasse, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 787, 789; IBA Subcommittee on Recognition and Enforcement of Arbitral Awards, Report on the Public Policy Exception, General Report, p. 12; Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 253 et seq. (“violation on account either of the procedure pursuant to which [the award] was rendered (procedural international public policy) or of its contents (substantive international public policy).”); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 320; UNCITRAL Secretariat, Guide, Art. V(2)(b) para. 28; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 paras 24 et seq., 27.

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distinction is useful for providing a first classification of public policy grounds (Õ paras 521 et seq.). While it is generally recognized, some advocate limiting Article V(2)(b) to substantive reasons only.1279 To support this view, it is suggested that Article V(1)(b) establishes a uniform international standard for the procedural conduct of arbitrations so that Article V(2)(b) can add nothing but undesirable local public policies.1280 This view ignores the States’ legitimate general freedom to establish national public policy standards (Õ para. 494). Moreover, it would allow procedural defenses only under Article V(1), which requires the defendant to provide proof of the procedural irregularity. It is hardly acceptable to remove the decision of whether or not to admonish the violation of even the most fundamental procedural principles from the realm of public policy and to place it exclusively in the hands of one of the parties (Õ paras 153 et seq.).1281 For the same reasons, the public policy defense under Article V(2)(b) is not overridden by a defense under Article V(1) as lex specialis.1282

4. Subject Matter of the Public Policy Defense a) Recognition or Enforcement Contrary to Public Policy According to Article V(2)(b), it is not the award itself but its recognition and 515 enforcement that needs to pass the public policy test.1283 This is of relevance in particular if the public policy standard changes between the rendering of the award and its recognition and enforcement.1284 The recognition and enforcement of an award can violate public policy not only 516 because of the award’s operative part1285 but also because of its reasoning and/or the underlying dispute.1286 This broad approach is confirmed by the fact that payment of money (as the typical remedy granted) as such does not violate public policy; the

1279

Born, International Commercial Arbitration, p. 3688. Born, International Commercial Arbitration, p. 3688. 1281 Cf. Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 68; Davis, 3(2) EIAR 15, 33 (2014); dissenting Born, International Commercial Arbitration, p. 3688 n. 1484 (arguing formally that almost all procedural violations can be waived but not explaining on substance why all procedural violations should be exclusively in the hands of the parties even if enforcement of the award would violate the forum state’s most basic notions of morality and justice or, in other words, why the safety-valve function of public policy allowing Contracting States to prevent the intrusion of awards into their legal system which they consider irreconcilable with it should be limited to substantive issues). 1282 Hong Kong: Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., [1999] 2 HKC 205, 232 = XXIVa Y.B. Com. Arb. 652, 667 para. 56 (1999); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Comment f (p. 685); UNCITRAL Secretariat, Guide, Art. V(2)(b) para. 46; Maurer, Public Policy Exception, pp. 67 et seq. (invoking the drafting history); van den Berg, NYC, p. 376; dissenting Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 4; Spain: Tribunal Superior de Justicia de la Comunidad Valenciana, XXXIX Y.B. Com. Arb. 501 paras 19 et seq. (2014); Switzerland: BG, XI Y.B. Com. Arb. 538, 540 para. 3 (1986); Davis, 3(2) EIAR 15, 33 (2014); Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 367. 1283 Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 364 et seq.; Patocchi, in: Blessing (ed.), ASA Special Series No. 9, pp. 145, 187 para. 53 (“it is neither the reasons stated in the award, nor the legal principles applied in the award which are relevant, but solely the practical consequences brought about by enforcement of the arbitral award which must be taken into account in order to decide whether enforcement is to be denied”). 1284 Germany: BGH, BGHZ 30, 89, 91 et seq. = NJW 1959, 1438, 1440 et seq.; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 321. 1285 Seemingly dissenting Italy: Cass., sez. un., XXXI Y.B. Com. Arb. 802, 806 paras 7 et seq. (2006). 1286 Cf. Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 para. 27 (2017); Sheppard, (2003) 19 Arb. Int’l 217, 244 et seq.; for the deviating position in Italy, see Frignani, 8(4) RRA 9, 24 (2014). 1280

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Article V 517–517a

New York Convention

underlying facts (e.g. payment as bribes) need to be taken into account.1287 A consideration made by the tribunal in the award is only relevant for conformity with public policy if the award is based on that consideration.1288 It is irrelevant whether the tribunal has raised the issue which creates the public policy infringement if only the resolution of the dispute as expressed by the award is incompatible with public policy.1289 b) Fact Finding by the Enforcement Court 517 Article V(2)(b) contains no express provision on whether the enforcement court can or must investigate the public policy’s factual basis on its own motion or whether it is bound by corresponding party submissions or the tribunal’s findings of fact. According to Article III, this issue is governed by the enforcement court’s lex fori (Õ Art. III para. 13).1290 It is true that any solution other than the courts having the power to investigate on their own motion will cause the severe risk that awards are recognized and enforced notwithstanding their inconformity with public policy1291 and will thus not be in line with the best practice standard (Õ paras 507 et seq.).1292 Since Article V(2)(b), however, is restricted to the enforcement of national public policy standards (Õ paras 494 et seq.), there is no reason for imposing a particularly effective enforcement mechanism on the Contracting States. An exception is to be made only insofar as the Convention requires a minimum level of content of the Contracting State’s public policy (Õ para. 506). In meeting this obligation, the State needs to provide for effective procedural means.

5. Causality 517a

There is no uniform view as to whether a public policy violation requires a causal nexus with the outcome of the arbitral proceedings, i.e. the content of the award. Causality is mostly discussed in relation to (and required for) due process violations (Õ paras 537 et seq.).1293 Under Article V(1)(b), it is acknowledged that due process violations qualify as a ground for denying recognition and enforcement only if such violation has become relevant for the outcome of the arbitration (Õ para. 142); the applicable standard for such causal nexus is low (Õ para. 143). If due process violations without relevance for the award constitute no ground under Article V(1)(b), good reasons indicate that they can even less constitute a public policy violation. However, 1287 Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 para. 27 (2017); Born, International Commercial Arbitration, pp. 3318 et seq.; Brown, 3(1) Int. A.L.R. 31, 33 et seq. (2000); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 324. 1288 Germany: BGH, KTS 1964, 172, 174; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 321. 1289 France: CA Paris, Rev. arb. 1994, 709, 713; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 321. 1290 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.362; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 925; for case law see Sheppard, (2003) 19 Arb. Int’l 217, 244 et seq.; for a comprehensive overview Hanotiau/Caprasse, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 787, 804 et seq.; Poudret/Besson, Comparative Arbitration, paras 938 et seq. 1291 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.362; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 926. 1292 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 262, Recommendation 3(c); see also (in favor of independent fact determination by the court) Germany: OLG Jena, BeckRS 2016, 15021 = XL Y.B. Com. Arb. 422 para. 24 (2015); Hovaguimian, 36(1) ASA Bull. 89, 94 et seq. (2018); Sheppard, (2003) 19 Arb. Int’l 217, 244; but see (in favor of not re-opening the facts) Belgium: TPI Bruxelles, Rev. arb. 2007, 303, 310; Switzerland: BG, 16(1) ASA Bull. 118, 130 et seq. (1998). 1293 Germany: OLG Frankfurt, SchiedsVZ 2014, 206, 208 = XLI Y.B. Com. Arb. 480 para. 14 (2016); Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 388; Schlosser, in: Canaris et al. (eds)., Festgabe Bundesgerichtshof, pp. 399, 416.

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517b–518a

Article V

while Article V(1)(b) employs an autonomous standard (Õ para. 141), Article V(2)(b) empowers the enforcement State to define its own standard of public policy (Õ para. 493). It would be inconsistent with this freedom to impose a causality requirement for public policy violations on the States. Best practice, however, demands causality. While due process is an essential requirement for judicial proceedings, it is not an end in itself. It is rather a procedural condition for enforcing an award regardless of the quality of the legal decision contained therein (Õ paras 561 et seq.). If the due process violation cannot have affected the award, the purpose of legitimizing the award does not require denial of recognition. Since this rationale is not limited to due process violations, causality is likewise 517b required for the violation of other procedural rules in order to constitute a (procedural) public policy infringement.1294 The more pervasive the violation is, the more obvious its (potential) relevance for the award will be (Õ para. 143). Violations of substantive public policy will typically be directly reflected in the award. In these cases, the requirement of a causal nexus becomes pointless.

6. Preclusion and Waiver Preclusion and waiver of defenses under Article V are discussed in detail at Õ paras 46 518 et seq. In short, the concepts of preclusion and waiver under the enforcement court’s lex fori apply (Õ para. 49). In addition, the concept of venire contra factum proprium, which is enshrined in the Convention, allows for preclusion based on an autonomous interpretation of Article V under strict conditions (Õ para. 48). The public policy defense is subject to preclusion and waiver to the extent that it protects only party interests, e.g. procedural irregularities. It is more an issue of terminology whether a public policy defense exists but is precluded or waived or whether such party conduct already prevents an irregularity from becoming a public policy violation. Where the enforcing State’s interests are affected, no party can effectively waive the public policy defense or be precluded from contending it (Õ para. 58).1295

7. Foreign Court Decisions Rejecting Grounds for Denying Recognition and Enforcement The effect of foreign court decisions that recognize and enforce a foreign award is 518a limited to the territory of the State the courts of which have made this decision. Such decisions have no effect on recognition and enforcement in other States. If the foreign court decision has denied setting aside the award, has confirmed the jurisdiction of the arbitral tribunal (cf. Article 16(3) of the Model Law), has rejected the challenge of an arbitrator (cf. Article 13(3) of the Model Law) or has otherwise dismissed a ground which could constitute a public policy violation, the effect of such decision

1294 See, e.g., Germany: OLG Frankfurt, SchiedsVZ 2014, 206 = XLI Y.B. Com. Arb. 480 (2016) (causality of various violations of procedural rules); UK: Eastern European Engineering Ltd. v. Vijay Construction (Pty.) Ltd., [2018] EWHC 2713 paras 89, 121 (Comm). 1295 Austria: OGH, XXXVIII Y.B. Com. Arb. 317 para. 39 (2013); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.497; Kröll, in: Bachand/Gélinas (eds), UNCITRAL Model Law after Twenty-Five Years, pp. 139, 149; see also Born, International Commercial Arbitration, pp. 3692 et seq.; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 368, 406 et seq.; seemingly stricter Sheppard, (2003) 19 Arb. Int’l 217, 247 and Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 260, Recommendation 2(c); weighing confidence in the arbitral process and respect for the enforcement State’s institutional fabric: Belize: Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd., [2013] CCJ 5 para. 57 (AJ) = XXXVIII Y.B. Com. Arb. 324 para. 138 (2013).

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Article V 518b–519

New York Convention

for determining a ground under Article V(2)(b) depends on the recognition court’s lex fori (Article III). 518b The foreign court decision will bind the recognition court only in a limited number of cases. First, the public policy standard under Article V(2)(b) differs from State to State (Õ para. 493). A foreign court’s finding that the award complies with its public policy therefore cannot bind the recognition court when deciding whether there has been a violation under its own public policy standard.1296 Underlying facts or legal conclusions (e.g. invalidity of the arbitration agreement, Õ para. 523), however, can still be binding for the enforcement court. Second, the foreign court’s findings which are not reflected in the operative part of its decision need to be recognizable as such. This requires that the enforcement court’s lex fori generally attributes such effects to court decisions from this specific country, e.g. under the doctrine of issue estoppel.1297 Third and last, the foreign court decision must meet the requirements for recognition under the enforcement court’s lex fori.1298 Under these rules, public policy normally again serves as a ground for denial of recognition and enforcement (Õ para. 490). This limited relevance of foreign court decisions for determining public policy violations is in line with Article V(2)(b)’s purpose of providing the enforcement State with a safety valve (Õ para. 490).1299

8. Court Determination of Public Policy Inconformity and Its Legal Consequences 519

While the lex fori governs the fact finding before the enforcement court (Õ para. 517), the law determining how the public policy standard is applied to the facts is more difficult to identify. A combined reading of the introductory sentences of Article V(1) and (2) suggests that the court “finds” the public policy infringement without “request of the party against whom [the award] is invoked.” While this may be read as an indication that the court needs to apply the law (i.e. the public policy standard) to the facts on its own motion (iura novit curia),1300 the better arguments are in favor of this issue being governed by the lex fori.1301 As a rule, Article III cl. 1 obliges Contracting 1296 Brazil: Superior Tribunal de Justiça, XLIII Y.B. Com. Arb. 426 para. 40 (2018); Hong Kong: Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., [1999] 2 HKC 205, 228 et seq., 230 = XXIVa Y.B. Com. Arb. 652, 664 para. 40, 665 para. 44 (1999); UK: Yukos Capital S.A.R.L. v. OJSC Rosneft Oil Co., XXXVII Y.B. Com. Arb. 312 para. 151 (2012); dissenting Brazil: Superior Tribunal de Justiça, XLIII Y.B. Com. Arb. 426 para. 14 (2018); for court discretion UK: Eastern European Engineering Ltd. v. Vijay Construction (Pty.) Ltd., [2018] EWHC 2713 paras 60, 136 (Comm) (“This is a case where VCL has now twice sought to raise substantially the same challenges to this Award in other courts. […] Those are circumstances which would weigh very heavily against allowing VCL a third challenge.”). 1297 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 152; see also UK: Eastern European Engineering Ltd. v. Vijay Construction (Pty.) Ltd., [2018] EWHC 2713 paras 60 et seq., 136 (Comm); dissenting (foreign setting aside decision is binding for the enforcement court as long as it is not visibly wrong and grossly incorrect) Germany: OLG Jena, SchiedsVZ 2008, 44, 46 = XXXIII Y.B. Com. Arb. 534, 538 para. 11 (2008); OLG München, SchiedsVZ 2010, 169, 171 = XXXV Y.B. Com. Arb. 371 para. 9 (2010); Harbst, SchiedsVZ 2007, 22, 30. 1298 Germany: OLG München, SchiedsVZ 2010, 169, 171 = XXXV Y.B. Com. Arb. 371 para. 9 (2010); Harbst, SchiedsVZ 2007, 22, 30. 1299 Brazil: Superior Tribunal de Justiça, XLIII Y.B. Com. Arb. 426 paras 68, 70 (2018). 1300 Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 2; Sup. Ct., Judicial Collegium for Economic Disputes, Feb. 28, 2018, 308-ЭС17-12100, XLIV Y.B. Com. Arb. ___ para. 28 (2019); Singapore: Beijing Sinozonto Mining Investment Co. Ltd. v. Goldenray Consortium (Singapore) Pte Ltd., XXXIX Y.B. Com. Arb. 489 para. 58 (2014); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.362; Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-111; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 148; dissenting Mauritius: Sup. Ct., XXXIX Y.B. Com. Arb. 447 para. 81 (2014). 1301 Cf. UNCITRAL Secretariat, Guide, Art. V(2)(b) para. 57.

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519a–520 Article

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States to recognize and enforce foreign awards if none of the exceptions under Articles IV and V applies. The grounds stipulated by Article V (including Article V(2)) therefore serve as an exception allowing the States to refuse recognition and enforcement. To insist that States require the public policy standard be applied to the facts on the court’s own motion would be difficult to reconcile with this permissive character of Article V. This view is confirmed by the discretion of the court once it has found public policy to be violated. It would be pointless to first oblige the States to follow an iura novit curia approach under Article V(2) and then grant discretion to refuse recognition or enforcement. In fact, most national laws will adhere to the iura novit curia approach (Õ para. 517). Once the enforcement court has found that recognition and enforcement of an award 519a would be contrary to public policy, it may refuse its recognition and enforcement under Article V(2)(b). The court’s discretion inferred from the term “may” (Õ paras 74 et seq.) will actually be more of a theoretical option once a public policy infringement has been established.1302 If an award is separable and its recognition and enforcement is irreconcilable with public policy only with respect to a part of the award, its recognition may be refused only partially (Õ paras 81 et seq.).1303 Contrary to some court decisions based on the Convention’s improper implementation into national law,1304 the Convention, including its Article V(2)(b), never entitles a court to set aside an award.1305 Likewise, Article V(2)(b) does not restrict the tribunal’s jurisdiction. The public policy defense can be raised by way of analogy against the recognition of an arbitration agreement (Article II) if any and all subsequent awards will infringe the lex fori’s public policy.1306

9. No Public Policy Defense Under Article IX of the European Convention Within its scope of application (Õ Art. VII paras 78 et seq.), Article IX(1) of the 520 European Convention (Õ Annex V 3) does not comprise a self-contained list of grounds for denial of recognition and enforcement, it rather limits non-recognition of an award which has been set aside in the country in which it has been made. Between Member States to the New York Convention, Article IX(2) of the European Convention limits Article V(1)(e)’s scope (Õ paras 392 et seq.). An award set aside on grounds of public policy does not qualify for non-recognition under this provision. This stipulation is backed by the fact that public policy standards are of a (purely) national nature. If enforcement of the award does not violate the enforcement State’s

1302 The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Comment c (p. 682) and Reporters’ Note c (p. 688). 1303 Hong Kong: J.J. Agro Industries (P) Ltd. v. Texuna International Ltd., XVIII Y.B. Com. Arb. 396, 399 paras 10 et seq. (1993); US: Laminoirs-Trefileries-Cableries de Lens S. A. v. Southwire Co., 484 F. Supp. 1063, 1069 (N.D. Ga. 1980) = VI Y.B. Com. Arb. 247, 248 para. 4 (1981); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Comment c (p. 682) and h (p. 685); Hanotiau/ Caprasse, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 787, 818 et seq.; Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 258, Recommendation 1(h); Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 413 et seq.; Sheppard, (2003) 19 Arb. Int’l 217, 230. 1304 India: Venture Global Engineering v. Satyam Computer Systems Ltd., [2008] 4 S.C.C. 190 with case note Zaiwalla, (2008) 25 J. Int. Arb. 507; Sharma, (2009) 75 Arbitration 148; similar Philippines: Korea Technologies Co. v. Hon. A. Lerma and Pacific General Steel Manufacturing Corp., XXXIII Y.B. Com. Arb. 632 (2008). 1305 Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 410 et seq. 1306 Hausmann, in: Reithmann/Martiny (eds), Internationales Vertragsrecht, para. 8.361; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 73.

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Article V 521–522

New York Convention

public policy, the need to enforce particularities of the public policy in the award’s State of origin may not be too pressing.1307

V. Typical Issues of (International) Public Policy 521

Each State enjoys the freedom to define its public policy (Õ paras 493 et seq.). In order for an arbitral award to be recognized and enforced in a given State, that State’s public policy standard needs to be explored and applied.1308 The subsequent section thus cannot establish a uniform public policy standard (which does not exist); it is rather limited to reporting aspects of the State’s public policies. It will be indicated if a national public policy decision is incompatible with the best practice standard (Õ paras 507 et seq.). For the sake of clarity, the individual cases are divided in procedural (Õ paras 522 et seq.) and substantive (Õ paras 559 et seq.) public policy (Õ para. 514).

1. Procedural Public Policy 522

Procedural public policy relates to the process by which the matter was adjudicated.1309 It is acknowledged that procedural irregularities can infringe Article V(2)(b) even if they concurrently constitute grounds under Article V(1) (Õ para. 514). In other 1307 Cf. Born, International Commercial Arbitration, p. 3649; Zeiler, in: Zeiler/Siwy (eds), European Convention, Art. IX para. 30. 1308 Cf. IBA Subcommittee on Recognition and Enforcement of Arbitral Awards, Report on the Public Policy Exception in the New York Convention, October 2015 and Australia: Miller, (1993) 9 Arb. Int’l 167; Nottage/Morrison, (2017) 34(6) J. Int. Arb. 963, 1000 et seq.; Austria: Seidl-Hohenveldern, (1988) 4 Arb. Int’l 322; Belarus: Khrapoutski/Loban, (2015) 81 Arbitration 57, 61 et seq.; Belgium: Hanotiau/ Caprasse, (2008) 25 J. Int. Arb. 721; Brazil: de Oliveira/Miranda, (2013) 30(1) J. Int. Arb. 49; Canada: Alvarez, (2008) 25 J. Int. Arb. 669; China: Chen, Predictability, 2017; Chen/Bao/Zhang, 7 BLR 23 (2016); Darwazeh/Yeoh, (2008) 25 J. Int. Arb. 837; Gan/Yang, 13(1) Asian Int’l Arb. J. 75, 86 et seq. (2017); Fei, (2010) 26 Arb. Int’l 301; He, 43(3) HKLJ 1037 (2013); Liu/Andersen/Zeller, 19 Int’l Trade & Bus. L. Rev. 72 (2016); Egypt: Selim, 3(1) BCDR Int’l Arb. Rev. 65 (2016); England: Brekoulakis, (2018) 84 Arbitration 205, 206 et seq.; France: Hanotiau/Caprasse, (2008) 25 J. Int. Arb. 721; Pic/Rajan, 6(1) Indian J. Arb. L. 197 (2017); Germany: Kühn, (2008) 25 J. Int. Arb. 743; Hong Kong: Darwazeh/Yeoh, (2008) 25 J. Int. Arb. 837; Stone, [2011] Asian DR 71; India: Gupta, 2(2) Indian J. Arb. L. 1 (2013); Nariman, (2008) 25 J. Int. Arb. 893; Oswal/Krishnan, (2016) 32 Arb. Int’l 651; Rendeiro, 89 Tex. L. Rev. 699 (2011); Sharma, (2009) 26 J. Int. Arb. 133; Sindhu, (2017) 83 Arbitration 147; Tercier/DeVitre, 5(1) Indian J. Arb. L. 7 (2016); Indochina: Henderson, (2009) 26 J. Int. Arb. 841; Indonesia: Junita, (2012) 29(4) J. Int. Arb. 405; Nur Al-Gozaly, 15 Jurnal Opinio Juris 127 (2014); Italy: Bernardini/Perrini, (2008) 25 J. Int. Arb. 707; Japan: Taniguchi/Nakamura, (2008) 25 J. Int. Arb. 857; Kazakhstan, Kyrgyzstan: Rubins/Sur, (2008) 25 J. Int. Arb. 809, 818 et seq.; Kenya: Mboce, Public Policy Limitation in Kenya, 2014; Korea: Chang, (2008) 25 J. Int. Arb. 865; Choe/Dharmananda, 2(1) Asian Int’l Arb. J. 60 (2006); Yoon/Oh, 6(1) Asian Int’l Arb. J. 64 (2010); Kuwait: Badah, 12(2) Asian Int’l Arb. J. 137, 152 et seq. (2016); Latin America: Jana, (2015) 32(4) J. Int. Arb. 413; MENA countries: Haridi/Wahab, (2017) 83 Arbitration 35; Netherlands: King/ Schluep, (2008) 25 J. Int. Arb. 759; Poland: Błaszczak/Kolber, 30(3) ASA Bull. 564, 580 et seq. (2012); Koepp/Ason, (2018) 35(2) J. Int. Arb. 157; Russia: Marenkov, SchiedsVZ 2011, 136; Nacimiento/ Barnashov, (2010) 27 J. Int. Arb. 295; Nikiforov, (2008) 25 J. Int. Arb. 787; Pettibone, 25 Am. Rev. Int’l Arb. 105 (2014); Shaleva, (2003) 19 Arb. Int’l 67; Tapola, (2006) 22 Arb. Int’l 151; Saudi Arabia: Bin Zaid, Recognition and Enforcement in Saudi Arabia, pp. 260 et seq.; Zegers, 1(1) BCDR Int’l Arb. Rev. 69, 81 et seq. (2014); Sweden: Heuman/Millqvist, (2003) 20 J. Int. Arb. 493; Switzerland: Geisinger, (2008) 25 J. Int. Arb. 691; Kunz, 34(4) ASA Bull. 836, 858 et seq. (2016); US: Donovan, in: Aksen et al. (eds), Liber Amicorum Briner, p. 235; Reed/Freda, (2008) 25 J. Int. Arb. 649; Turkey: Canyaş, 31(3) ASA Bull. 537, 550 et seq. (2013); Tosun, 33(1) ASA Bull. 58, 60 (2015); UAE: Arab/Al Houti, 6(4) Int’l J. Arab Arb. 5 (2014); Blanke, (2018) 35(5) J. Int. Arb. 541, 570 et seq.; Padley/Clutterham, (2016) 33(1) J. Int. Arb. 83, 89 et seq.; Uzbekistan: Rubins/Sur, (2008) 25 J. Int. Arb. 809, 815 et seq. 1309 Sheppard, (2003) 19 Arb. Int’l 217, 230.

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words, Article V(2)(b) is not overridden by procedural grounds under Article V(1). While such subsidiarity does not exist under the Convention, the States have the freedom to tailor public policy in a way that excludes grounds under Article V(1) from the scope of Article V(2)(b). a) Lack of the Tribunal’s Jurisdiction Some States assume a public policy infringement if the arbitral tribunal lacks 523 jurisdiction to decide the dispute,1310 but only in extreme cases.1311 This has been exemplified in obiter dicta by a case in which a foreign arbitral tribunal assumed jurisdiction arbitrarily without any basis in the party agreement.1312 Given the significance of party-autonomous submission to arbitration, the complete absence of any suitable arbitration agreement infringes public policy as defined under the best practice standard. The same applies if the arbitration agreement had been held invalid by final court decision before the award had been rendered.1313 The tribunal’s jurisdiction as such should not, however, form part of procedural public policy. A court has confirmed that non-completion of a preliminary step within a multi-tier dispute resolution clause does not violate public policy.1314 b) Aggravating Procedural Stipulations Arbitration explicitly provides for a wide range of topics that are open to party 524 agreement. The parties can, in particular, choose the seat of arbitration (cf. Article 20(1)(1) of the Model Law; Õ Art. I para. 99) and the substantive law under which their dispute is to be decided (cf. Article 28(1) of the Model Law). Other topics include the law governing the arbitration agreement (Õ paras 111 et seq.), the meeting venue (cf. Article 20(2) of the Model Law) or the language of the proceedings (cf. Article 22(1)(1) of the Model Law). If these choices have not been made by the parties, it is upon the tribunal to decide. While these decisions generally do not violate public policy,1315 exceptions apply for abusive determinations.1316

1310

Russia: Supreme Arbitrazh Court, XXXVIII Y.B. Com. Arb. 453 para. 5 (2013). South Africa: Phoenix Shipping Corp. v. DHL Global Forwarding SA (Pty) Ltd., XXXVII Y.B. Com. Arb. 290 para. 46 (2012) (“alleged or purported agreement”). 1312 Germany: BGH, BGHZ 52, 184, 190 = NJW 1969, 2093, 2094; BGH, BGHZ 55, 162, 170 et seq. = NJW 1971, 986, 988; BGH, BGHZ 71, 131, 136 = NJW 1978, 1744, 1745 = IV Y.B. Com. Arb. 264, 265 para. 4 (1979); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 72; see also Germany: LG München I, V Y.B. Com. Arb. 260, 261 et seq. para. 6 (1980). In fact, the case law discussed public policy only incidently: according to the BGH, lack of jurisdiction constitutes a non-public policy ground for non-recognition which is precluded, however, if such ground could have, but had not been used to have the award set aside within a deadline. For reasons of public policy, an exception from preclusion is applicable in the extreme cases mentioned. Assignment of a right also transfers an arbitration agreement to the assignee; assuming arbitral jurisdiction over the assignee thus does not violate public policy (Germany: OLG München, BeckRS 2011, 08218 = XXXV Y.B. Com. Arb. 359 para. 9 (2010)). 1313 China: Taizhou Intermediate People’s Court, XLII Y.B. Com. Arb. 365 para. 8 (2017). 1314 US: Camilo Costa v. Celebrity Cruises, Inc., XXXVI Y.B. Com. Arb. 435 para. 7 (2011) (S.D. Fla. 2011). 1315 Germany: OLG München, IPRspr. 2010, No. 305, 753, 754 (Chinese language); US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 et seq. (1985) = 105 S. Ct. 3346, 3353 et seq. = XI Y.B. Com. Arb. 555 paras 2 et seq. (1986); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.495. 1316 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 73; Ernemann, Anerkennung und Vollstreckung, p. 79; Gottwald, in: Habscheid/Schwab (eds), Festschrift Nagel, pp. 54, 68; Kornblum, KTS 1972, 59, 63; dissenting von Hoffmann, Internationale Handelsschiedsgerichtsbarkeit, p. 86. 1311

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New York Convention

A choice of a foreign venue or substantive law can be abusive in a domestic dispute if it seeks to evade mandatory rules that would otherwise be applicable.1317 Agreeing on an a-national arbitration is, if considered permissible (Õ Art. I paras 105 et seq.), not abusive in itself.1318 The tribunal may determine a law applicable on the merits which the parties had not envisaged;1319 public policy, however, requires prior notification in order to avoid surprising decisions (Õ para. 542). The tribunal’s determination of a foreign place of arbitration as such is not abusive.1320 The use of an official language of the place of arbitration does not infringe public policy even if not all of the parties were capable of understanding that language.1321 This holds particularly true since each party can mandate a local lawyer and/or use the services of an interpreter. 526 The issue of abusive agreements becomes particularly important if a weaker party is involved (also Õ para. 548). A German court held that an award based on an arbitration agreement between a German sandwich seller and an American franchisor’s European subsidiary providing for arbitration in New York violates public policy.1322 525

c) Constitution and Impartiality of the Tribunal 527 aa) Constitution of the Tribunal. Under most national legal systems, the parties’ right

to influence the tribunal’s constitution equally forms part of procedural public policy.1323 However, even legal systems that consider the predominance of a party as contrary to their public policy if it traces back to the party agreement1324 deem it compliant with their international public policy if such predominance results from a lex arbitri under which a party which does not appoint an arbitrator loses its right to appointment so that, consequently, the arbitrator appointed by the opposing party becomes the sole arbitrator.1325 Similarly, the appointment of arbitrators by the compe1317 Fouchard, JDI 1982, 374, 417 et seq.; Gottwald, in: Habscheid/Schwab (eds), Festschrift Nagel, pp. 54, 68; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.495; Kornblum, KTS 1972, 59, 63; van den Berg, NYC, p. 376; dissenting Bellet/Mezger, Rev. crit. dr. int. pr. 1981, 611, 647; Czernich, Kurzkommentar, Art. V para. 75; von Hoffmann, Internationale Handelsschiedsgerichtsbarkeit, p. 86. 1318 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 73; Rensmann, Anationale Schiedssprüche, pp. 224 et seq. 1319 Russia: Moscow District Court, XXIII Y.B. Com. Arb. 735, 736 et seq. para. 18 (1998); US: Nissho Iwai Corp. v. M/V Joy Sea, 2002 WL 27764, pp. 5 et seq. (E.D. La. 2002) = XXVII Y.B. Com. Arb. 869, 873 et seq. paras 10 et seq. (2002). 1320 Not considered an issue in Nigeria: Nigerian National Petroleum Corp. v. Lutin Investments Ltd., [2006] 2 NWLR 506, also available at http://www.nigeria-law.org/LawReporting/2006/Nigerian National Petroleum Corporation V Lutin Investment Ltd & anr.htm (last visited Apr. 29, 2019). 1321 Austria: OGH, XXXIII Y.B. Com. Arb. 354, 359 et seq. para. 11 (2008); Germany: BayObLG, Nov. 9, 2004, 4 Z Sch 17/04 (unreported), available at http://www.disarb.org (last visited Apr. 29, 2019); Spain: TS, XXX Y.B. Com. Arb. 617, 622 para. 18 (2005). 1322 Germany: OLG Dresden, IHR 2008, 119 = XXXIII Y.B. Com. Arb. 549 (2008) (relying on Article V(1)(a)); dissenting Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 405 n. 295. 1323 See, e.g., France: Cass., JDI 1992, 707, 712 = Rev. arb. 1992, 470 et seq. = XVIII Y.B. Com. Arb. 140, 141 para. 2 (1993); Germany: BGH, BGHZ 51, 255, 258 et seq. = NJW 1969, 750; BGH, BGHZ 54, 392, 394 et seq. = NJW 1971, 139 et seq.; BGH, NJW 1989, 1477; BGH, BGHZ 98, 70, 73 = NJW 1986, 3027, 3028 = XII Y.B. Com. Arb. 489, 490 para. 3 (1987); BGH, BGHZ 132, 278, 287 et seq. = NJW 1996, 1753, 1755 et seq.; OLG Frankfurt, SchiedsVZ 2006, 219, 221 et seq.; LG Hamburg, XII Y.B. Com. Arb. 487, 488 para. 4 (1987); Switzerland: BG, BGE 84 I 56, 60 et seq.; BG, BGE 93 I 265, 272 et seq.; Berger/Kellerhals, Arbitration in Switzerland, para. 2098. 1324 Germany: LG Hamburg, XII Y.B. Com. Arb. 487, 488 paras 3 et seq. (1987). 1325 France: CA Paris, Rev. arb. 1974, 105, 108; Germany: BGH, BGHZ 98, 70, 73 = NJW 1986, 3027, 3028 = XII Y.B. Com. Arb. 489, 491 paras 7 et seq. (1987); BGH, NJW-RR 2001, 1059, 1060 = XXIX Y.B. Com. Arb. 700, 711 para. 31 (2004); Italy: Cass., XXI Y.B. Com. Arb. 602, 605 para. 8 (1996); CA Genova, VIII Y.B. Com. Arb. 381, 383 para. 6 (1983); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 75; Poudret/Besson, Comparative Arbitration, para. 936; Sandrock, IPRax

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tent courts of a State which is party to the arbitration does not affect public policy if such appointment was in accordance with the party agreement.1326 The affected party will often be required to raise an objection within the arbitral proceedings in order to have recourse to the public policy defense in the recognition proceedings (Õ para. 518).1327 A provision of the enforcement State’s arbitration law according to which the number of arbitrators must be uneven has been held to concern the fundamental principle of impartiality.1328 Such impartiality, however, was found not to be affected where the party resisting recognition and enforcement consented to or even suggested an odd number of arbitrators.1329 Public policy may be infringed if the parties had to choose their arbitrators from a 528 pool comprising only persons who have specific characteristics in common with only one of the parties. Typical examples are limits on nationality or membership in an association. If the respective pool is sufficiently large, such restrictions are mostly deemed to be contrary to public policy only if qualified by additional specific facts.1330 Involvement of a secretary to the tribunal or a legal advisor to a tribunal lacking 529 legal expertise has been found not to involve public policy as long as the decision was made solely by the arbitrators.1331 Similarly, the scrutiny of a draft award by the ICC Court as stipulated by Article 34 of the 2017 ICC Rules and its predecessor provisions does not interfere with the tribunal’s competence and is therefore not deemed to infringe public policy.1332 Conversely, an award rendered by an arbitral institution instead of an arbitral tribunal infringes public policy.1333 bb) Impartiality of the Tribunal. It is overwhelmingly acknowledged that the 530 tribunal’s impartiality generally falls under public policy.1334 In order to protect the award’s finality, hurdles have been set for a public policy defense based on the tribunal’s impartiality. Usually a party has no public policy defense in enforcement proceedings if 2001, 550, 555 et seq.; for cases of additional partial conduct Germany: OLG Stuttgart, Oct. 18, 1999, 5 U 89/98 (unreported), available at http://www.disarb.org (last visited Apr. 29, 2019); Spain: Tribunal Superior de Justicia de Catalunya, XXXVII Y.B. Com. Arb. 297 paras 29 et seq. (2012). 1326 Netherlands: HR, ECLI:NL:HR:2018:918, XLIV Y.B. Com. Arb. ___ para. 38 (2019). 1327 Germany: BGH, NJW-RR 2001, 1059, 1060 = XXIX Y.B. Com. Arb. 700, 704 para. 5 (2004). 1328 Spain: Tribunal Superior de Justicia de Catalunya, XLI Y.B. Com. Arb. 560 paras 13 et seq., 19 (2016). 1329 Spain: Tribunal Superior de Justicia de Catalunya, XLI Y.B. Com. Arb. 560 para. 19 (2016). 1330 Germany: BGH, BGHZ 55, 162, 175 et seq. = NJW 1971, 986, 989; OLG Frankfurt, RIW 1989, 911, 913 = XVI Y.B. Com. Arb. 546, 550 para. 10 (1991) (nationality); OLG Karlsruhe, SchiedsVZ 2008, 47, 48 = XXXIII Y.B. Com. Arb. 541, 547 et seq. para. 11 (2008) (nationality); Switzerland: BG, XV Y.B. Com. Arb. 509, 513 et seq. para. 10 (1990) (membership in an association). 1331 Germany: BGH, BGHZ 110, 104, 107 = NJW 1990, 2199 = XVII Y.B. Com. Arb. 503, 505 et seq. paras 5 et seq. (1992). 1332 Böckstiegel, NJW 1977, 463, 465 et seq.; see also Habscheid, RIW 1998, 421, 424 et seq. 1333 See France: Cass., XXXVII Y.B. Com. Arb. 214 paras 10 et seq. (2012). 1334 Brazil: Superior Tribunal de Justiça, XLIII Y.B. Com. Arb. 426 paras 54, 67, 69 (2018); Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 200 para. 40 (2012); Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 205 para. 32 (2012); France: Cass., Rev. arb. 1999, 255, 256 = XXIVa Y.B. Com. Arb. 643, 644 para. 2 (1999); Germany: BGH, BGHZ 141, 90, 95 = NJW 1999, 2370, 2372; OLG Hamburg, VersR 1985, 470; LG Hamburg, XII Y.B. Com. Arb. 487, 488 para. 3 (1987); Netherlands: Arrondissementsrechtbank Zutphen, XXII Y.B. Com. Arb. 766, 767 paras 4 et seq. (1997); Switzerland: BG, XXXVI Y.B. Com. Arb. 337 para. 23 (2011); Bezirksgericht Affoltern am Albis, XXIII Y.B. Com. Arb. 754, 760 para. 18 (1998); US: Belize Bank Ltd. v. Gov’t of Belize, XLI Y.B. Com. Arb. 715 para. 40 (2016) (D.D.C. 2016); York Hannover Holding A.G. v. Am. Arbitration Ass’n, 1993 WL 159961, n. 4 (S.D.N.Y. 1993) = XX Y.B. Com. Arb. 856, 860 para. 7 (1995); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.495; Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 256; Schwebel/Lahne, in: Sanders (ed.), Comparative Arbitration Practice, pp. 205, 209 et seq.; Sheppard, (2003) 19 Arb. Int’l 217, 240.

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Article V 531–532

New York Convention

it did not raise it by way of arbitrator challenge although it could have done so (Õ para. 518).1335 For the consequences of an unsuccessful challenge before the courts at the place of arbitration, Õ para. 518a. Moreover, some jurisdictions require a higher standard of partiality for violation of public policy than for challenging an arbitrator1336 or demand that the award has been specifically affected by the partiality (Õ paras 517a et seq.).1337 531 It has been held not to infringe public policy if the tribunal relied on documents of a state agency of which an arbitrator is an employee (but not the drafter of the documents).1338 A sufficient degree of bias was also not found if one of the parties is a state entity and the sole arbitrator a member of the country’s ruling party.1339 A public policy violation is to be denied if the arbitration involving a state entity is governed by the country’s only arbitral institution,1340 if only one of the parties is a member of the trade organization behind the arbitral institution1341 or if the arbitrator and a company in which one of the parties holds shares are members of the same trade association1342. No bias relevant for public policy can be established where a former trainee in the law firm representing one of the parties joins the arbitrator’s firm1343 or where an arbitrator is a member of the same barristers’ chambers as another barrister that previously represented a conflicting interest.1344 532 On the other hand, it was held that an award could be contrary to public policy if only one party is a member of the organization behind the arbitral tribunal and the non-member could not select an arbitrator itself.1345 The decisive aspect in this case, however, is the (abstract) constitution of the tribunal (Õ paras 527 et seq.) rather than the arbitrator’s (specific) impartiality. An award rendered on the basis of an arbitration agreement providing for one party’s lawyer as sole arbitrator and an obligation not to 1335 ECHR: Suovaniemi v. Finland (Case 31737/96), unreported, available at http://echr.ketse.com/doc/ 31737.96-en-19990223/view/ (last visited Apr. 29, 2019); Germany: BGH, NJW-RR 2001, 1059, 1060 = XXIX Y.B. Com. Arb. 700, 712 et seq. paras 36 et seq. (2004); OLG Frankfurt, SchiedsVZ 2014, 206, 208 = XLI Y.B. Com. Arb. 480 para. 20 (2016); OLG Schleswig, XXIX Y.B. Com. Arb. 687, 695 et seq. para. 23 (2004); Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 11; Switzerland: BG, XXXVI Y.B. Com. Arb. 337 para. 22 (2011); US: AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 139 F.3d 980, 982 (2d Cir. 1998) = XXIVa Y.B. Com. Arb. 813, 815 para. 4 (1999); Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 370. 1336 Germany: OLG Celle, IPRspr. 2007, No. 218, 614, 618 = XXXIII Y.B. Com. Arb. 524, 532 et seq. para. 24 (2008); see also Germany: BGH, BGHZ 141, 90, 94 et seq. = NJW 1999, 2370, 2371 (for a domestic award). 1337 Germany: BGH, BGHZ 98, 70, 75 = NJW 1986, 3027, 3028 et seq. = XII Y.B. Com. Arb. 489, 490 et seq. para. 5 (1987); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 153; dissenting US: HSMV Corp. v. ADI Ltd., 72 F. Supp. 2d 1122, 1127 (C.D. Cal. 1999) = XXV Y.B. Com. Arb. 1074, 1080 paras 5 et seq. (2000). 1338 Hong Kong: Logy Enterprise Ltd. v. Haikou City Bonded Area Wansen Products Trading Co., [1997] 2 HKC 481, 487 et seq. = XXIII Y.B. Com. Arb. 660, 662 paras 6 et seq. (1998). 1339 India: Transocean Shipping Agency Ltd. v. Black Sea Shipping, XXIII Y.B. Com. Arb. 713, 718 para. 11 (1998). 1340 Japan: Tokyo High Court, XX Y.B. Com. Arb. 742, 744 para. 6 (1995). 1341 Switzerland: BG, XV Y.B. Com. Arb. 509, 513 para. 10 (1990). 1342 Germany: OLG Celle, IPRspr. 2007, No. 218, 614, 618 et seq. = XXXIII Y.B. Com. Arb. 524, 532 et seq. para. 26 (2008). 1343 Germany: OLG Dresden, SchiedsVZ 2008, 309, 310 et seq.; similar case: Switzerland: BG, XXXVI Y.B. Com. Arb. 337 para. 25 (2011) (counsel and arbitrator practiced before the same US Court of Appeals and met on one occasion when counsel and the arbitrator’s daughter, then a trainee, were practising in the same law firm). 1344 US: Belize Bank Ltd. v. Gov’t of Belize, XLII Y.B. Com. Arb. 698 para. 19 (2017) (D.C. Cir. 2017). 1345 Switzerland: BG, BGE 93 I 49, 59; similarly Germany: LG Hamburg, XII Y.B. Com. Arb. 487, 488 para. 4 (1987).

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remove, dismiss or replace the arbitrator (secured by a contractual penalty) violates public policy.1346 An award that has been rendered by an arbitral tribunal in which the head of the legal department of the parent company of one of the parties was coarbitrator has been held to violate public policy.1347 The arbitrator’s affirmative reference to another award between other parties does not infringe public policy even if this other award arose out of the same series of events as those leading to the award in question.1348 Ex parte communications between an arbitrator and a party can be grounds for invoking the public policy defense under Article V(2)(b). This holds particularly true if the arbitrator suggested that the party which had appointed him file an untimely counterclaim which the tribunal then granted in its award.1349 The private discussion of technical computer problems unrelated to the case during a hearing break obviously does not justify invoking the public policy defense.1350 An arbitrator’s involvement in multiple proceedings conducted by different tribunals with all or some of the same parties only infringes public policy where he also acted improperly, e.g. by communicating unilaterally with one of the parties.1351 Similarly, the fact that a person that had already served as an arbitrator in the tribunal of first instance has subsequently acted as counsel for the prevailing party before the appellate arbitral tribunal has been held not to violate public policy.1352 Nobody can sit as a judge in his or her own affairs; an award is contrary to public policy if an arbitrator is party to the dispute or a member of one of the party’s corporate bodies.1353 The tribunal can therefore not render an award on the arbitrators’ fee claim without violating public policy.1354 The tribunal can, however, allocate the costs of the proceedings between the parties in the award, even if these costs comprise the arbitrator’s fees.1355 An award does not violate public policy if the tribunal had requested increased fees following an increase in the amount in dispute.1356

533

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535

536

d) Due Process Due process belongs to the rather obvious elements of international public policy. 537 The International Law Association has identified as general principles of what is called international due process “equal treatment of the parties, fair notice (to both appointment of the tribunal and conduct of the proceedings), a fair opportunity to present 1346 Switzerland: Bezirksgericht Affoltern am Albis, SJZ 1997, 223, 225 et seq. = XXIII Y.B. Com. Arb. 754, 757 et seq. paras 14 et seq. (1998). 1347 Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 12. 1348 US: Saudi Iron & Steel Co. v. Stemcor USA Inc., 1997 WL 642566, pp. 2 et seq. (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1082, 1084 paras 3 et seq. (1998). 1349 Netherlands: Rechtbank Amsterdam, XXVIII Y.B. Com. Arb. 814, 818 paras 11 et seq. (2003). 1350 US: Spector & Specurity Indus. Ltd. v. Torenberg, 852 F. Supp. 201, 209 et seq. (S.D.N.Y. 1994) = XX Y.B. Com. Arb. 962, 970 et seq. paras 21 et seq. (1995). 1351 Cf. France: Cass., Rev. arb. 1999, 255 with case note by Fouchard = XXIVa Y.B. Com. Arb. 643, 644 para. 2 (1999). 1352 France: CA Reims, Rev. arb. 1982, 303 = IX Y.B. Com. Arb. 400, 401 paras 4 et seq. (1984). 1353 Germany: BGH, BGHZ 65, 59, 65 et seq. = NJW 1976, 109, 110 et seq. = JZ 1976, 245, 247; OLG Hamburg, BB 1970, 53; US: Fitzroy Eng’g Ltd. v. Flame Eng’g, Inc., 1994 U.S. Dist. LEXIS 17781, *11 (N.D. Ill. 1994) = XXI Y.B. Com. Arb. 744, 748 para. 8 (1996); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 152. 1354 Germany: OLG München, SchiedsVZ 2006, 111, 112 = XXXI Y.B. Com. Arb. 722, 728 para. 15 (2006); OLG München, XXXIII Y.B. Com. Arb. 517, 522 para. 9 (2008); Geimer, IZPR, para. 3914; see also Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.495. 1355 Germany: BGH, BGHZ 142, 204, 206 et seq. = NJW 1999, 2974, 2975; BGH, NJW 2012, 1811, 1812 para. 10; OLG München, XXXIII Y.B. Com. Arb. 517, 522 para. 9 (2008); Wolff, SchiedsVZ 2006, 131 et seq. 1356 Israel: Epis S.A. v. Medibar Ltd., XXXI Y.B. Com. Arb. 786, 789 paras 5 et seq. (2006).

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Article V 538–539a

New York Convention

one’s case in the sense of ensuring that there has been a fair and even-handed approach to the elucidation of evidence from both parties; and, should the tribunal elect to pay heed to ex parte extrinsic material, it gives fair notice and presents the parties with the opportunity to address it on that extrinsic material.”1357 538 Violation of due process already constitutes a defense under Article V(1)(b) (Õ paras 128 et seq.). Notably, the standard of due process differs: while Article V(1)(b) stipulates a uniform standard as part of the Convention’s autonomous law (Õ para. 141), Article V(2)(b) provides for the Contracting State’s public policy standard (Õ paras 493 et seq.). Some countries have adjusted their international due process public policy standard to Article V(1)(b)’s standard;1358 others maintain an individual standard. aa) Right to Be Heard. (1) General. The right to be heard is a key element of (international) due process, the violation of which constitutes a public policy defense under Article V(2)(b).1359 The violation needs to be reflected in the award (Õ para. 517a); this is not the case if the tribunal does not base its decision on the respective aspect. The tribunal is obliged to hear the parties and to consider their submissions (Õ para. 543). The right to be heard is, however, accommodated if opportunity was given; whether or not the parties have made use of such opportunity is without relevance.1360 If a deadline set for submissions is appropriate, rejection of late submissions does not violate public policy.1361 A deadline of 14 days for preparing the defense was been held to be sufficient.1362 Obviously, the tribunal does not need to find the evidence presented relevant or follow the party’s arguments.1363 Any public policy infringement based on the violation of the right to be heard is maintained only if timely objected to in the arbitral proceedings (Õ para. 518).1364 The right to be heard does not require every person who may be affected by the outcome of an arbitration to be invited to join the process and to make submissions.1365 539a The right to be heard also guarantees the right to be represented by a lawyer.1366 The parties may, however, agree to limit the free choice of lawyers or to exclude representation by lawyers entirely if neither the complexity of the dispute nor an imbalance in the party’s abilities demands such representation.1367 In a case in which an arbitral tribunal denied a request to postpone an oral hearing that had been scheduled six months in 539

1357

Sheppard, (2003) 19 Arb. Int’l 217, 239. Germany: OLG Hamburg, IPRspr. 1999, No. 178, 425, 427 = XXIX Y.B. Com. Arb. 663, 668 para. 11 (2004); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 74; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 184; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 26. 1359 Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 387. 1360 Peru: Corte Superior de Justicia de Lima, Mar. 5, 2018, 352-2017, XLIV Y.B. Com. Arb. ___ paras 50 et seq. (2019); Singapore: Hainan Machinery Import and Export Corp. v. Donald & McArthy Pte Ltd., XXII Y.B. Com. Arb. 771, 778 para. 23 (1997); Ukraine: Pechersk District Court, Kyiv, XL Y.B. Com. Arb. 492 para. 31 (2015). 1361 Hong Kong: Qinhuangdao Tongda Enterprise Development Co. v. Million Basic Co. Ltd., [1993] 1 HKLR 173, 176 = XIX Y.B. Com. Arb. 675, 676 para. 3 (1994); see also Germany: OLG Bremen, BB 2000, Beil. 12, p. 18 = XXXI Y.B. Com. Arb. 640, 648 paras 20 et seq. (2006). 1362 Spain: Tribunal Superior de Justicia de Catalunya, XLI Y.B. Com. Arb. 553 para. 18 (2016). 1363 France: CA Paris, Rev. arb. 1998, 143 et seq. = XXIII Y.B. Com. Arb. 644, 651 para. 16 (1998). 1364 France: CA Paris, Rev. arb. 2008, 487, 489; Spain: TS, XXXII Y.B. Com. Arb. 525, 530 para. 13 (2007). 1365 Australia: Giedo van der Garde BV v. Sauber Motorsport AG, XL Y.B. Com. Arb. 372 paras 25, 51 et seq. (2015). 1366 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 239; Spohnheimer, Gestaltungsfreiheit, p. 231; dissenting UK: Henry Bath & Son, Ltd. v. Birgby Products, [1962] 1 Lloyd’s Rep 389, 395. 1367 Cf. Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 239; for the deviating position of Greek courts, see Makridou, RHDI 67 (2014), 121, 157 et seq. 1358

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advance after counsel to one party had withdrawn three weeks prior to the hearing, the subsequent award was held not to infringe public policy since the party still had sufficient time to prepare for the oral hearing and instruct another counsel.1368 The right to be heard is reflected in the tribunal’s duty to communicate party statements, documents and other information, as well as expert reports or evidentiary documents, to the (other) parties (cf. Article 24(3) of the Model Law). It has been held that non-disclosure can result in an award that is contrary to public policy.1369 The right to be heard also comprises the right to submit supporting evidence.1370 Moreover, each party must be given sufficient opportunity for responding to new evidence. If the tribunal bases its decision on evidence submitted with a post-hearing brief without giving the other party the opportunity to comment, a subsequent award is subject to denial of recognition and enforcement under Article V(2)(b).1371 A particular subcategory of the right to be heard is the ban on surprising decisions, the infringement of which may constitute a public policy violation.1372 The tribunal must not base its decision on aspects of fact or law that the parties had no opportunity to comment on. Public policy can be violated if a tribunal fails to disclose the substantive law under which it intends to decide the dispute to the parties1373 or if it decides without giving notice to the parties on a claim that was reasonably to be treated as no longer pressed following the absence of any respective statements by both parties1374. On the other hand, the arbitral tribunal is not under a general duty to advise the parties on questions of law or to hold legal discussions.1375 The right to be heard also comprises the tribunal’s obligation to consider the parties’ submissions.1376 Under some jurisdictions, the tribunal’s proper consideration of all arguments and evidence submitted requires at least that its main elements are reflected in the award.1377 An award does not violate international public policy if one of the co-arbitrators fell asleep during the oral hearing, at least if the affected party failed to timely draw the chairman’s attention to this fact.1378 Irregular evaluation of evidence as such, on the other

1368 Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVII Y.B. Com. Arb. 282 para. 9 (2012). 1369 Netherlands: Gerechtshof Amsterdam, XIX Y.B. Com. Arb. 708, 709 paras 3 et seq. (1994). 1370 Canada: Corporacion Transnacional de Inversiones, S.A. de C.V. v. STET International, S.p.A., 45 O.R. (3d) 183; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 390. 1371 Netherlands: Gerechtshof Den Haag, XXIII Y.B. Com. Arb. 731, 733 et seq. para. 9 (1998). 1372 Germany: OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019). 1373 Germany: OLG Hamburg, KTS 1962, 119, 121. 1374 Australia: William Hare UAE LLC v. Aircraft Support Industries Pty Ltd., XL Y.B. Com. Arb. 363 paras 61 et seq. (2015). 1375 Germany: OLG Karlsruhe, SchiedsVZ 2012, 101, 105 = XXXVIII Y.B. Com. Arb. 379 para. 28 (2013); OLG München, SchiedsVZ 2012, 43, 46 = XXXVII Y.B. Com. Arb. 231 para. 9 (2012); OLG München, XLI Y.B. Com. Arb. 472 para. 14 (2016). 1376 Germany: OLG Celle, IPRspr. 2007, No. 218, 614, 617 = XXXIII Y.B. Com. Arb. 524, 530 et seq. para. 11 (2008) (with regard to Article V(1)(b)); OLG München, SchiedsVZ 2012, 43, 46 = XXXVII Y.B. Com. Arb. 231 para. 10 (2012); OLG München, XLI Y.B. Com. Arb. 472 para. 14 (2016); OLG Stuttgart, BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019). 1377 Germany: BGH, NJW 1990, 2199, 2200 = XVII Y.B. Com. Arb. 503, 508 para. 15 (1992) (not reprinted in BGHZ 110, 104); OLG Bremen, BB 2000, Beil. 12, pp. 18, 20 = XXXI Y.B. Com. Arb. 640, 649 para. 27 (2006); OLG Düsseldorf, XXXV Y.B. Com. Arb. 386 para. 16 (2010); OLG Frankfurt, XXXV Y.B. Com. Arb. 377 para. 20 (2010) (no examination of all details necessary); OLG München, SchiedsVZ 2012, 43, 46 = XXXVII Y.B. Com. Arb. 231 para. 10 (2012); OLG Stuttgart, IPRspr. 2001, No. 204, 437, 438. 1378 Germany: OLG Karlsruhe, SchiedsVZ 2012, 101, 106 = XXXVIII Y.B. Com. Arb. 379 paras 35 et seq. (2013).

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Article V 544–547

New York Convention

hand, has been held not to violate public policy.1379 The same holds true if a tribunal denies a request for taking evidence.1380 For the taking of evidence, Õ paras 551 et seq. 544 The tribunal can cure a violation of the right to be heard by granting the party the opportunity to comment. This can also be done after the tribunal had been ordered to reopen the proceedings by a state court. Once cured, the violation of the right to be heard does not constitute a violation of public policy any more.1381 545 A typical issue in practice are requests for the extension of deadlines. Whether such request must be granted in order to comply with the right to be heard depends on the particularities of the case, including the original length of the deadline, the reasons provided for such request and the length of the extension requested. It has been held that dismissal of an unsubstantiated last-minute request for extending a deadline of several months does not violate public policy.1382 Additional evidence submitted long after the fixed deadlines have expired can be ignored without violating public policy.1383 546 If an arbitrator is replaced by another arbitrator for whatever reason, the parties’ right to be heard generally requires that the proceedings be repeated to the extent that the arbitrator’s own perception may be decisive, i.e. in particular the evidentiary hearings.1384 The parties can, however, agree on a continuation of the proceedings, thereby waiving their right to be heard and the public policy defense under Article V(2)(b). 547

(2) Default of a Party. No violation of the right to be heard has been found where a party (typically the respondent) has not participated in the proceedings even though it had been properly notified.1385 In such cases the tribunal does not need to inquire into the facts presented by the other party of its own motion where they are consistent with the requirements of the remedies sought.1386 No public policy violation has been 1379 Germany: OLG Celle, XXX Y.B. Com. Arb. 547, 552 et seq. para. 8 (2005); OLG Celle, IPRspr. 2007, No. 218, 614, 617 = XXXIII Y.B. Com. Arb. 524, 530 et seq. para. 12 (2008); Spain: Juzgado de Primera Instancia e Instrucción N° 3 de Rubí, XXXV Y.B. Com. Arb. 444 para. 39 (2010). Similarly for consideration of evidence from criminal investigations US: AO Techsnabexport v. Globe Nuclear Servs. & Supply, Ltd., XXXVI Y.B. Com. Arb. 407 para. 14 (2011) (4th Cir. 2010). 1380 Germany: OLG Celle, IPRspr. 2007, No. 218, 614, 617 = XXXIII Y.B. Com. Arb. 524, 530 para. 12 (2008) (with regard to Article V(1)(b)); OLG München, SchiedsVZ 2012, 43, 46 = XXXVII Y.B. Com. Arb. 231 para. 11 (2012); US: Generica Ltd. v. Pharm. Basics, Inc., 1996 WL 535321, pp. 3 et seq. (N.D. Ill. 1996) = XXII Y.B. Com. Arb. 1029, 1033 para. 11 (1997); Trevino Hernandez, S. de R.L. de C.V. v. Smart & Final, Inc., 2010 U.S. Dist. LEXIS 60755, *23 (S.D. Cal. 2010) = XXXV Y.B. Com. Arb. 551 para. 28 (2010). 1381 UK: Minmetals Germany GmbH v. Ferco Steel Ltd., [1999] CLC 647, 657 et seq. = XXIVa Y.B. Com. Arb. 739, 744 paras 10 et seq. (1999). 1382 US: P.T. Reasuransi Umum Indon. v. Evanston Ins. Co., 1992 U.S. Dist. LEXIS 19753, *6 et seq. (S.D.N.Y. 1992) = XIX Y.B. Com. Arb. 788, 791 paras 9 et seq. (1994). 1383 US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., 2006 U.S. Dist. LEXIS 28948, *7 et seq. (W.D. Pa. 2006) = 2006 WL 1228930, p. 3 = XXXII Y.B. Com. Arb. 713, 716 et seq. para. 7 (2007). 1384 Dissenting Greece: Areios Pagos, XXXIII Y.B. Com. Arb. 570, 572 paras 3 et seq. (2008); Otto/ Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 404. 1385 Australia: Resort Condominiums International Inc. v. Ray Bolwell, XX Y.B. Com. Arb. 628, 630 et seq. para. 3 (1995); Spain: TS, XI Y.B. Com. Arb. 523, 524 paras 6 et seq. (1986); Italy: Cass., XXII Y.B. Com. Arb. 715, 720, 722 para. 18 (1997); US: Anhui Provincial Imp. & Exp. Corp. v. Hart Enters. Int’l, Inc., 1996 U.S. Dist. LEXIS 6041, *8 et seq. (S.D.N.Y. 1996) = 1996 WL 229872, p. 3 et seq. = XXII Y.B. Com. Arb. 979, 982 paras 9 et seq. (1997); Overseas Cosmos, Inc. v. NR Vessel Corp., 1997 WL 757041, p. 4 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1096, 1100 et seq. para. 9 (1998); R.M.F. Global, Inc. v. Cattan, 2006 WL 544294, pp. 2 et seq., 4 et seq. (W.D. Pa. 2006) = XXXI Y.B. Com. Arb. 1439, 1444 para. 15 (2006); China Nat’l Bldg. Material Inv. Co. v. BNK Int’l LLC, XXXV Y.B. Com. Arb. 507 paras 30 et seq. (2010) (W.D. Tex. 2009). 1386 Singapore: Hainan Machinery Import and Export Corp. v. Donald & McArthy Pte Ltd., XXII Y.B. Com. Arb. 771, 776 et seq. para. 15 (1997).

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found where the statement of claim could not be communicated to the respondent if the proceedings were continued under the arbitration rules agreed upon by the parties.1387 (3) Unacceptability of Proceedings. The right to be heard requires that the party be 548 given appropriate opportunity to present its case. As a result, exceptional circumstances rendering the proceedings, in particular participation in an oral hearing, inappropriate for one of the parties can violate their right to be heard, thus constituting the public policy defense against the subsequent award.1388 Such exceptional circumstances have not been found in expensive travel costs for a hearing held abroad1389 or in resentments at the hearing venue against the party’s nationals1390. However, personal danger for the party due to war or other reasons will prevent that party from being granted due process.1391 It has been held that no exceptional circumstances exist if a party is under criminal investigation at the place of the hearing if it can be represented at the hearing by a lawyer.1392 A decision on substance without oral hearing following respondent’s failure to submit evidence does not violate public policy.1393 An oral hearing is likewise dispensable if the parties have agreed on written-only proceedings.1394 For aggravating procedural stipulations, Õ paras 524 et seq. bb) Conduct of the Proceedings. Violation of procedural rules beyond the right to 549 be heard will only result in public policy infringements if fundamental party rights are severely infringed.1395 For example, it was held that failure to observe a pre-trial settlement procedure does not infringe public policy.1396 A decision on jurisdiction made in the final award was held to not violate public policy even if the lex arbitri required the tribunal to make such decision in form of an interim award on jurisdiction.1397 The tribunal is free to render partial awards without violating public policy even if these partial awards involve a risk of contradicting decisions.1398 A party’s improper representation in the arbitral proceedings has been held to infringe public policy only in serious cases.1399 It does not

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Germany: OLG München, XXXIX Y.B. Com. Arb. 392 para. 7 (2014). Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.495. 1389 Uganda: Mungereza v. Price Waterhouse Coopers, [2002] 1 EA 174; see also Portugal: Supremo Tribunal de Justiça, XXXII Y.B. Com. Arb. 474, 478 et seq. paras 5 et seq. (2007); US: Mangistaumunaigaz Oil Prod. Ass’n v. United World Trade, Inc., XXIVa Y.B. Com. Arb. 806, 810 paras 8 et seq. (1999) (D. Colo. 1997); but see Germany: OLG Dresden, IHR 2008, 119, 120 = XXXIII Y.B. Com. Arb. 549, 550 para. 9 (2008) (relying on Article V(1)(a)). 1390 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.495. 1391 Germany: OLG Hamm, RIW 1997, 962, 963; Czernich, Kurzkommentar, Art. V para. 74. 1392 US: Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., 82 Fed. Appx. 359, 364 (5th Cir. 2003) = XXIX Y.B. Com. Arb. 1160, 1164 et seq. para. 8 (2004). 1393 Germany: OLG Frankfurt, SchiedsVZ 2014, 206, 208 = XLI Y.B. Com. Arb. 480 paras 11 et seq. (2016); US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., 2006 U.S. Dist. LEXIS 28948, *8 et seq. (W.D. Pa. 2006) = 2006 WL 1228930, p. 3 = XXXII Y.B. Com. Arb. 713, 716 paras 8 et seq. (2007). 1394 New Zealand: Makan Distiller Ltd. v. Natural Sugars, [2015] NZHC 1111 para. 29 = XLI Y.B. Com. Arb. 526 para. 30 (2016). 1395 Canada: Schreter v. Gasmac Inc., 7 O.R. (3d) 608 paras 47 et seq.; Germany: OLG Brandenburg, BB 2001, Beil. 6, pp. 21, 22 = XXIX Y.B. Com. Arb. 697, 699 para. 6 (2004); OLG Brandenburg, BeckRS 2005, 02036; OLG Köln, XXIX Y.B. Com. Arb. 715, 718 para. 6 (2004); OLG Köln, SchiedsVZ 2005, 163, 165 = XXX Y.B. Com. Arb. 557, 560 para. 5 (2005). 1396 Ukraine: CA Kiev, XLI Y.B. Com. Arb. 577 para. 42 (2016). 1397 Germany: BGH, NJW 2007, 772, 774 et seq. paras 27 et seq. = XXXII Y.B. Com. Arb. 328, 339 et seq. paras 24 et seq. (2007). 1398 Germany: BGH, SchiedsVZ 2019, 287 para. 9 (for a domestic case). 1399 Germany: BGH, ZZP 86 (1973), 46, 48 et seq.; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 30 para. 24; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 25. 1388

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Article V 549a–551

New York Convention

amount to a public policy violation if a party loses its case after its counsel had violated their obligations (though the party may seek damages against said counsel).1400 549a The application of an inapplicable version of the party-agreed arbitration rules has been held not to violate public policy, at least if the effect of such application has not been further substantiated.1401 An award that has been rendered only after the six-month time limit for rendering an arbitral award under the ICC Rules had lapsed has been held not to violate international public policy.1402 A public policy violation has been assumed where the issues resolved in the award are not identical to those that were submitted to the arbitral tribunal in the claim or the counterclaim (extra petita).1403 The arbitral tribunal is, however, not limited to determining the dispute on the legal basis pleaded by counsel.1404 An award in a proceeding to which only the partnership has been party which pronounces an order against the partners personally violates public policy.1405 It does not infringe public policy if the award exceeds a 3,000 word limit set in the arbitration agreement.1406 If extraordinary circumstances exist, the award’s recognition and enforcement is contrary to public policy regardless of whether or not it complied with the applicable procedural rules.1407 For aggravating procedural stipulations, Õ paras 524 et seq. 550 It does not amount to a public policy violation if the tribunal rejects a counterclaim assuming that it had been withdrawn when the party failed to provide supporting evidence.1408 Similarly, the tribunal is allowed to not consider the counterclaim if the respondent failed to pay the requested advances on costs.1409 Misjudging a set off defense as such belongs to the non-reviewable merits of the case and does not give grounds for a public policy violation.1410 An award, the operative part of which neither complies with an enforceable decision’s standard for specificity in the country where enforcement is sought nor can be adjusted accordingly, has been held to violate public policy.1411 551

cc) Taking of Evidence. Public policy is not infringed if the tribunal appoints a (factual or legal) expert without express party agreement if such appointment is in accordance with the commodity trade’s standard practice.1412 Conversely, an arbitral tribunal lacking own expertise can base its award on the report of a party-appointed expert without relying on a tribunal-appointed expert only if the tribunal alone

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Austria: OGH, XLIII Y.B. Com. Arb. 415 para. 27 (2018). Germany: OLG Frankfurt, SchiedsVZ 2014, 206, 207 et seq. = XLI Y.B. Com. Arb. 480 paras 8 et seq. (2016). 1402 Germany: OLG Karlsruhe, SchiedsVZ 2012, 101, 106 = XXXVIII Y.B. Com. Arb. 379 paras 33 et seq. (2013); Spain: Tribunal Superior de Justicia de Madrid, Jan. 23, 2018, 1/2018, XLIV Y.B. Com. Arb. ___ para. 29 (2019). 1403 Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 462 para. 16 (2013). 1404 Bermuda: Huawei Tech Investment Co. Ltd. v. Sampoerna Strategic Holdings Ltd., XXXIX Y.B. Com. Arb. 354 para. 25 (2014). 1405 For national public policy: Germany: BGH, SchiedsVZ 2019, 287 para. 22; OLG München, NJW 2007, 2129, 2130. 1406 Austria: OGH, XLIII Y.B. Com. Arb. 415 paras 13 et seq., 17 (2018). 1407 Germany: BGH, ZZP 86 (1973), 46, 48 et seq.; Schwab/Walter, Schiedsgerichtsbarkeit, ch. 30 para. 24; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 25; dissenting Geimer, in: Zöller (ed.), ZPO, sect. 1061 para. 52. 1408 Luxembourg: CA, XXIVa Y.B. Com. Arb. 714, 720 et seq. paras 14 et seq. (1999). 1409 Cyprus: Sup. Ct., XXV Y.B. Com. Arb. 692, 701 para. 22 (2000); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XVII Y.B. Com. Arb. 572, 574 para. 7 (1992). 1410 Germany: OLG Hamburg, IPRspr. 1975, No. 201, 519, 522 et seq. 1411 Germany: BGH, SchiedsVZ 2012, 41, 42 para. 6. 1412 Germany: BGH, BGHZ 110, 104, 108 = NJW 1990, 2199, 2200 = XVII Y.B. Com. Arb. 503, 505 et seq. paras 5 et seq. (1992). 1401

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designates why it finds the expert report (more) plausible.1413 It was held that a party’s failure to disclose documents to the tribunal results in a public policy violation only if the party intended to deliberately mislead the tribunal.1414 A hearing partly conducted by video conference does not constitute a public policy 552 defense.1415 Restricting one party’s cross-examination in order to avoid the witnesses making themselves liable has been held not to infringe the party’s due process rights.1416 Accepting written witness statements instead of a witness hearing likewise does not violate public policy if the parties were given the opportunity to submit written questions to the witness.1417 It does not violate public policy if the tribunal does not accept anonymous witness evidence, whether written or oral,1418 or written witness statements which were not sworn contrary to the applicable procedural rules.1419 For the parties’ right to comment on new evidence, Õ para. 541. Weighing evidence is in the tribunal’s power (cf. Article 19(2)(2) of the Model Law); court review would infringe the ban on révision au fond (Õ paras 561 et seq.).1420 e) Procedural Fraud Recognition of an award which is based on procedural fraud is contrary to public 553 policy. Procedural fraud comprises, inter alia, forged documents,1421 bribed arbitrators,1422 perjury,1423 kidnapping of a witness so as to force him to make certain statements,1424 intimidating and offering payment to the other party’s witness so as to procure false evidence,1425 threats to the life of an arbitrator and extensive intervention 1413 Germany: OLG München, SchiedsVZ 2012, 43, 47 = XXXVII Y.B. Com. Arb. 231 paras 20 et seq. (2012). 1414 UK: Gater Assets Ltd. v. NAK Naftogaz Ukrainiy, XXXIII Y.B. Com. Arb. 721, 750 paras 77 et seq. (2008). 1415 Not considered an issue in: India: Alcatel India Ltd. v. Koshika Telecom Ltd., 2004 Arb. L.R. 107. 1416 US: Generica Ltd. v. Pharm. Basics, Inc., 1996 WL 535321, pp. 4 et seq. (N.D. Ill. 1996) = XXII Y.B. Com. Arb. 1029, 1033 et seq. paras 11 et seq. (1997), aff’d, 125 F.3d 1123, 1131 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076, 1081 para. 11 (1998). 1417 Lebanon: Cour de Cassation, 1(1) Int’l J. Arab Arb. 398, 403 (2009); similarly Spain: Tribunal Superior de Justicia de Madrid, Jan. 23, 2018, 1/2018, XLIV Y.B. Com. Arb. ___ para. 31 (2019). 1418 Germany: OLG Hamburg, XLI Y.B. Com. Arb. 468 para. 22 (2016). 1419 US: Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH, XLIII Y.B. Com. Arb. 626 paras 27 et seq., 29 (2018) (S.D. Fla. 2017). 1420 Germany: OLG München, XLI Y.B. Com. Arb. 472 para. 16 (2016); Spain: Tribunal Superior de Justicia de Catalunya, XLI Y.B. Com. Arb. 553 para. 19 (2016). 1421 Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVII Y.B. Com. Arb. 277 para. 20 (2012) (denied since forgery was not proven); UK: Sinocore International Co. Ltd. v. RBRG Trading (UK) Ltd., XLII Y.B. Com. Arb. 538 para. 30 (2017) (if documents were admitted or found by the tribunal to be forgeries). 1422 Singapore: Beijing Sinozonto Mining Investment Co. Ltd. v. Goldenray Consortium (Singapore) Pte Ltd., XXXIX Y.B. Com. Arb. 489 para. 41 (2014). 1423 France: CA Paris, Rev. arb. 1994, 359, 365 = XX Y.B. Com. Arb. 198, 205 et seq. paras 22 et seq. (1995); Germany: BGH, NJW 1990, 2199, 2200 = XVII Y.B. Com. Arb. 503, 506 et seq. para. 9 (1992) (not reprinted in BGHZ 110, 104); BGH, NJW-RR 2017, 313, 319 para. 55 = XLIII Y.B. Com. Arb. 445 para. 12 (2018); Report of the UNCITRAL on the work of its 18th session, A/40/17, paras 297 and 303; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Reporters’ Note d (p. 689); Gee, (2006) 22 Arb. Int’l 337; Hanotiau, in: van den Berg (ed.), Important Contemporary Questions, pp. 261 et seq.; Mills, in: van den Berg (ed.), Important Contemporary Questions, pp. 288, 296 et seq.; Poudret/Besson, Comparative Arbitration, para. 936; Sheppard, (2003) 19 Arb. Int’l 217, 238; dissenting for forged arbitration agreements Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 399. 1424 Hong Kong: J.J. Agro Industries (P) Ltd. v. Texuna International Ltd., XVIII Y.B. Com. Arb. 396, 397 para. 2 (1993). 1425 Cf. UK: Eastern European Engineering Ltd. v. Vijay Construction (Pty.) Ltd., [2018] EWHC 2713 para. 103 (Comm).

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Article V 554

New York Convention

by external third parties in the arbitration and in the decisions rendered1426 or proceedings continued by the claimant despite a settlement having been reached.1427 It has been held to not constitute procedural fraud if the claimant did not withdraw its claim although it was obliged to such withdrawal under a contract with a third person that was not party to the arbitration.1428 Procedural fraud also covers awards based on simulated proceedings which are aimed at gaining an unfair advantage in insolvency proceedings1429 or illegitimately transferring funds1430. While the fraud must be evident,1431 the offender does not need to be prosecuted or convicted.1432 The fraudulent actions must have become relevant for the arbitral award (Õ para. 517b).1433 A party can be deemed to have no public policy defense based on procedural fraud if an objection has been raised1434 or could have been raised1435 in the arbitral proceedings (Õ para. 518). It is irrelevant whether procedural fraud was or could have already been apparent in the arbitral proceedings.1436 Despite the common law doctrines of maintenance and champerty, third-party funding of the arbitration is usually not considered to infringe public policy.1437

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f) Illegally Obtained Evidence An award based on illegally obtained evidence is subject to non-recognition under Article V(2)(b) if the affected interests outweigh the need for finality.1438 Following such weighing of interests, an award based on video surveillance tapes illegally produced without the knowledge of the recorded persons has been held not to violate public policy.1439

1426 Israel: The Ukrainian Ministry of Material Provisions v. Vioans Ltd., XXXVII Y.B. Com. Arb. 250 para. 9 (2012) = CLOUT Case No. 1172. 1427 Germany: BayObLG, IPRspr. 2003, No. 204, 664, 665 et seq. = XXIX Y.B. Com. Arb. 771, 773 et seq. para. 6 (2004). 1428 Germany: BGH, NJW-RR 2017, 313, 319 paras 57 et seq. = XLIII Y.B. Com. Arb. 445 paras 14 et seq. (2018); KG, SchiedsVZ 2013, 112, 118 = XXXVIII Y.B. Com. Arb. 384 para. 37 (2013). 1429 Russia: Sup. Ct., Judicial Collegium for Economic Disputes, Feb. 28, 2018, 308-ЭС17-12100, XLIV Y.B. Com. Arb. ___ para. 35 (2019); Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 374; see also Russia: Federal Arbitrazh Court, Tomsk District, XXXV Y.B. Com. Arb. 435 paras 13 et seq. (2010). 1430 Russia: Federal Arbitrazh Court, Tomsk District, XXXV Y.B. Com. Arb. 435 paras 20 et seq. (2010). 1431 Austria: OGH, IPRax 2006, 496, 499 = XXX Y.B. Com. Arb. 421, 428 et seq. para. 19 (2005); Hong Kong: T v. C, XLI Y.B. Com. Arb. 487 paras 14 et seq. (2016); US: Stati v. Republic of Kazakhstan, XLIII Y.B. Com. Arb. 737 paras 36 et seq. (2018) (D.D.C. 2018); Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 304 (S.D. Tex. 1997) = XXIII Y.B. Com. Arb. 995, 1011 para. 33 (1998). 1432 Germany: BGH, NJW 1990, 2199, 2200 = XVII Y.B. Com. Arb. 503, 507 para. 10 (1992) (not reprinted in BGHZ 110, 104); dissenting Germany: BGH, NJW-RR 2017, 313, 319 para. 58 = XLIII Y.B. Com. Arb. 445 para. 15 (2018); KG, SchiedsVZ 2013, 112, 118 = XXXVIII Y.B. Com. Arb. 384 para. 31 (2013); OLG München, XLI Y.B. Com. Arb. 472 para. 21 (2016). 1433 Switzerland: BG, XLI Y.B. Com. Arb. 564 para. 12 (2016); US: Stati v. Republic of Kazakhstan, XLIII Y.B. Com. Arb. 737 paras 38 et seq. (2018) (D.D.C. 2018). 1434 UK: Sinocore International Co. Ltd. v. RBRG Trading (UK) Ltd., XLII Y.B. Com. Arb. 538 para. 44 (2017). 1435 Germany: BGH, NJW 1990, 2199, 2200 = XVII Y.B. Com. Arb. 503, 507 para. 10 (1992) (not reprinted in BGHZ 110, 104). 1436 Dissenting Germany: OLG Hamburg, XLI Y.B. Com. Arb. 468 paras 11 et seq. (2016). 1437 See Bao, (2017) 34(3) J. Int. Arb. 387; Mansinghka, 13(1) Asian Int’l Arb. J. 97 (2017). 1438 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 157. 1439 Germany: OLG Bremen, OLGR Bremen 2006, 263, 264 et seq.

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555–556 Article

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g) Res Iudicata No standard answer seems to exist on whether an award ignoring res iudicata is 555 subject to non-recognition under Article V(2)(b). Likewise, the International Law Association’s report does not contain any own views on this question.1440 While some courts have held that res iudicata is a matter of procedural public policy,1441 at least in evident cases,1442 others make an exception for scenarios where the tribunal’s reasoning was not reprehensible.1443 A foreign decision must in any event be capable of being recognized to have a res iudicata effect.1444 An award rejecting a claim on grounds of incorrectly assumed res iudicata denies access to justice and violates public policy.1445 If the parties have amicably initiated a new arbitration after the award had been rendered, courts found that the second award does not violate the first award’s res iudicata.1446 An award that disregards issue preclusion by an earlier award was held not to violate public policy.1447 Lis pendens has occasionally been discussed (but mostly denied) as a ground under Article V(2)(b).1448 h) Award Set Aside It has been held that recognition and enforcement of an award which had been set 556 aside in its country of origin does not violate French international public policy.1449 It can even less infringe public policy if the award had been set aside by an incompetent court of a third country1450 or if setting aside proceedings in its country of origin are pending1451. 1440

Sheppard, (2003) 19 Arb. Int’l 217, 242. France: CA Paris, Rev. arb. 1980, 506, 508; India: Renusagar Power Co. Ltd. v. General Electric Co., XX Y.B. Com. Arb. 681, 709 para. 52 (1995); Malaysia: Open Type Joint Stock Company Efirnoye – EFKO v. Alfa Trading Ltd., XXXVII Y.B. Com. Arb. 264 paras 42 et seq. (2012); Russia: Federal Arbitrazh Court, Moscow District, XLI Y.B. Com. Arb. 550 paras 21 et seq. (2016); UK: Vervaeke v. Smith, [1982] 2 All E.R. 144, 151 et seq., 154 et seq.; E. D. & F. Man (Sugar) Ltd. v. Yani Haryanto, [1991] IL Pr. 393, 402 et seq.; see also The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Comment d (p. 682); Blavi, (2016) 82 Arbitration 2, 11 et seq.; Czernich, Kurzkommentar, Art. V para. 74; Yoon/Oh, 6(1) Asian Int’l Arb. J. 64, 69 (2010); more carefully Zaugg, 35(2) ASA Bull. 319, 324 (2017); dissenting (violation of res iudicata does not infringe public policy) Luxembourg: CA, XLII Y.B. Com. Arb. 428 para. 76 (2017). 1442 Germany: BGH, SchiedsVZ 2019, 150, 151 para. 6 (for national public policy). 1443 Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 205 para. 41 (2012); France: Cass., Rev. arb. 1982, 44; CA Paris, Rev. arb. 1983, 497, 499; Switzerland: BG, 33(3) ASA Bull. 576, 592 (2015) = XLI Y.B. Com. Arb. 567 para. 19 (2016); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 363. 1444 Switzerland: BG, 33(3) ASA Bull. 576, 595 (2015) = XLI Y.B. Com. Arb. 567 para. 34 (2016). 1445 For national public policy: Germany: BGH, SchiedsVZ 2019, 150, 151 para. 15; Switzerland: BG, 33(3) ASA Bull. 599, 613 (2015); Berger, 33(3) ASA Bull. 642, 656 et seq. (2015). 1446 Zimbabwe: Durco (Pvt) Ltd. v. Dajen (Pvt) Ltd., 1997 (2) ZLR 199, 205 = XXIVa Y.B. Com. Arb. 352 (1999), confirmed in Dajen (Pvt) Ltd. v. Durco (Pvt) Ltd., 1998 (2) ZLR 255, 259 et seq. = XXIVa Y.B. Com. Arb. 353 (1999). 1447 US: Venco Imtiaz Constr. Co. v. Symbion Power LLC, XLIII Y.B. Com. Arb. 633 para. 15 (2018) (D.D.C. 2017), confirmed by: US: Venco Imtiaz Constr. Co. v. Symbion Power LLC, 2018 WL 3407572 (D.C. Cir. 2018) = XLIV Y.B. Com. Arb. ___ paras 12 et seq. (2019); but see also US: OJSC Ukrnafta v. Carpatsky Petroleum Corp., XLIII Y.B. Com. Arb. 664 para. 89 (2018) (S.D. Tex. 2017). 1448 Spain: Tribunal Superior de Justicia de la Comunidad Valenciana, XXXIX Y.B. Com. Arb. 501 paras 21 et seq. (2014); but see IBA Subcommittee on Recognition and Enforcement of Arbitral Awards, Report on the Public Policy Exception, General Report, p. 16. 1449 France: CA Paris, XXII Y.B. Com. Arb. 691, 693 para. 2 (1997). 1450 US: Am. Constr. Mach. & Equip. Corp. v. Mechanised Constr. of Pak. Ltd., 659 F. Supp. 426, 429 (S.D.N.Y. 1987), aff’d in 828 F.2d 117 (2d Cir. 1987). 1451 US: Steel Corp. of the Philip. v. Int’l Steel Servs., Inc., XXXV Y.B. Com. Arb. 501 paras 13 et seq., 17 (2010) (3d Cir. 2009). 1441

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Article V 557–559

New York Convention

i) Unreasoned or Contradictory Award Under most national public policies, unreasoned awards do not result in a defense under Article V(2)(b),1452 at least if the lex arbitri underlying the award allows for unreasoned awards.1453 This conclusion is advocated by the fact that most jurisdictions allow the parties to waive the requirement to state reasons in the award (cf. Article 31(2) of the Model Law).1454 If the parties have not agreed on such a waiver, however, their need for legal protection should justify a public policy defense.1455 Within its scope of application (Õ Art. VII paras 78 et seq.), Article VIII of the European Convention presumes a party agreement that reasons shall be given.1456 558 The award’s reasoning is generally not subject to court review in recognition and enforcement proceedings. However, a public policy violation has been found if the reasons given in the award are seriously contradictory (Õ para. 543).1457 The arbitral tribunal is under no duty to address every point in a case.1458 557

2. Substantive Public Policy 559

Substantive public policy goes to the subject matter of the award.1459 Violation of the enforcement State’s substantive public policy is the only defense under Article V allowing for a limited substantive review of the award. Providing a structure for substantive public policy is a rather challenging task. The three categories defined by the International Law Association (Õ para. 512) shall be taken as a basis although they are far from providing a selective and non-overlapping system.1460

1452 Belgium: TPI Bruxelles, XXII Y.B. Com. Arb. 643, 652 para. 21 (1997); France: CA Paris, Rev. arb. 1989, 309, 315; CA Paris, Rev. arb. 1990, 675, 680; Greece: Areios Pagos, XXXIII Y.B. Com. Arb. 565, 568 para. 8 (2008); CA Athens, XIV Y.B. Com. Arb. 637 para. 3 (1989); Switzerland: BG, BGE 101 Ia 521, 525 et seq.; Berger/Kellerhals, Arbitration in Switzerland, para. 2100; Geimer, in: Zöller (ed.), ZPO, sect. 1061 para. 49; Poudret/Besson, Comparative Arbitration, para. 936. 1453 Brazil: Superior Tribunal de Justiça, XXXVIII Y.B. Com. Arb. 338 para. 31 (2013); Germany: OLG Schleswig, IPRspr. 2000, No. 185, 409, 414 et seq. = RIW 2000, 706, 709 = XXXI Y.B. Com. Arb. 652, 661 et seq. para. 23 (2006); LG Berlin, KTS 1966, 182, 184; Switzerland: BG, BGE 101 Ia 521, 526 et seq.; BG, Rev. arb. 1960, 105, 106; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 368; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 24; Walter, RIW 1982, 693, 702; always requiring reasons Canada: Domotique Secant Inc. v. Smart Systems Technologies Inc., 2005 CanLII 36874, 10 et seq.; Smart Systems Technologies Inc. v. Domotique Secant Inc., XXXIII Y.B. Com. Arb. 464, 467 et seq. paras 3 et seq. (2008). 1454 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 158. 1455 Canada: Smart Systems Technologies Inc. v. Domotique Secant Inc., XXXIII Y.B. Com. Arb. 464, 468 et seq. paras 10 et seq. (2008); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 76. 1456 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 439 et seq.; Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 24. 1457 France: CA Paris, Rev. arb. 1998, 143, 148 et seq. = XXIII Y.B. Com. Arb. 644, 652 paras 20 et seq. (1998); Italy: CA Milano, XXXV Y.B. Com. Arb. 415 paras 6 et seq. (2010); Switzerland: BG, BGE 102 Ia 574, 581; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 338; dissenting France: CA Paris, Rev. arb. 1999, 811 et seq. = XXV Y.B. Com. Arb. 454, 457 para. 8 (2000). 1458 Australia: William Hare UAE LLC v. Aircraft Support Industries Pty Ltd., XL Y.B. Com. Arb. 363 para. 53 (2015); UK: Cukurova Holding A.S. v. Sonera Holding B.V., [2014] UKPC 15 para. 35 = XXXIX Y.B. Com. Arb. 516 para. 34 (2014). 1459 Cf. Sheppard, (2003) 19 Arb. Int’l 217, 230 (also referring to the rights and obligations of a tribunal or enforcement court). 1460 Cf., rather critical, Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-117 and Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, 1st ed., 2010, Art. V para. 17 (“may not be universally accepted”).

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Grounds for Refusal of Recognition and Enforcement

560–561 Article

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a) Fundamental Principles Pertaining to Justice or Morality A conclusive definition of fundamental principles pertaining to justice or morality 560 that the State wishes to protect even when it is not directly concerned does not exist and – in light of the States’ sovereignty over defining their public policy standards (Õ paras 493 et seq.) – cannot exist. Examples usually mentioned are pacta sunt servanda,1461 the prohibition of misuse of the law,1462 the principle of good faith,1463 the prohibition of uncompensated expropriation,1464 the prohibition of discrimination and the protection of those incapable of acting.1465 An indication of what can be considered as part of a proper international public policy standard can be drawn from international conventions.1466 aa) Application of Law. (1) Ban on Révision au Fond. The broad scope of the 561 fundamental principles belonging to substantive public policy (Õ para. 560) creates the danger of overstressing Article V(2)(b): most contractual disputes could ultimately be seen as issues of pacta sunt servanda. The substantive public policy defense, however, does not entitle the enforcement court to act as an appellate instance (ban on révision au fond, Õ para. 19 and Õ para. 504). Public policy is not infringed if the tribunal did not apply the law correctly to the facts1467 and it is not infringed if the dispute would 1461 Germany: BayObLG, IPRspr. 2003, No. 204, 664, 665 et seq. = XXIX Y.B. Com. Arb. 771, 773 et seq. paras 6 et seq. (2004); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 327. 1462 Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 200 para. 40 (2012); Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 205 para. 32 (2012); Greece: CA Athens, XXXVII Y.B. Com. Arb. 234 para. 19 (2012). 1463 Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 200 para. 40 (2012); Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 205 para. 32 (2012); Lithuania: Lietuvos Aukšciausiasis Teismas, XXXIX Y.B. Com. Arb. 437 paras 65 et seq. (2014). 1464 US: Republic of Argentina v. BG Group, XXXVI Y.B. Com. Arb. 420 para. 42 (2011) (D.D.C. 2011); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 144; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 327. 1465 Switzerland: BG, BGE 116 II 634, 636 = XVII Y.B. Com. Arb. 279, 283 et seq. para. 7 (1992); Mayer/ Sheppard, (2003) 19 Arb. Int’l 249, 256; Sheppard, (2003) 19 Arb. Int’l 217, 234. 1466 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 259 (referring to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms); similarly Haas, 32(4) ASA Bull. 707, 716 (2014); critical Neuberger, [2015] Asian DR 180, 184. 1467 Australia: Uganda Telecom Ltd. v. Hi-Tech Telecom Pty Ltd., XXXVI Y.B. Com. Arb. 252 para. 104 (2011); Austria: OGH, XXXVIII Y.B. Com. Arb. 317 paras 40 et seq. (2013); OGH, XLIII Y.B. Com. Arb. 415 para. 7 (2018); Colombia: Corte Suprema de Justicia, XLII Y.B. Com. Arb. 370 para. 13 (2017); France: CA Paris, XXXII Y.B. Com. Arb. 282, 286 para. 4 (2007); Germany: OLG Düsseldorf, XXXV Y.B. Com. Arb. 386 para. 14 (2010); OLG Frankfurt, SchiedsVZ 2014, 206, 208 = XLI Y.B. Com. Arb. 480 para. 15 (2016); OLG Karlsruhe, SchiedsVZ 2012, 101, 105 = XXXVIII Y.B. Com. Arb. 379 para. 26 (2013); OLG München, SchiedsVZ 2010, 169, 172 = XXXV Y.B. Com. Arb. 371 para. 22 (2010); LG Zweibrücken, IV Y.B. Com. Arb. 262, 263 para. 3 (1979); Greece: CA Athens, XIV Y.B. Com. Arb. 637 para. 2 (1989); India: Renusagar Power Co. Ltd. v. General Electric Co., XX Y.B. Com. Arb. 681, 701 para. 38 (1995); Lithuania: Lietuvos Aukšciausiasis Teismas, XXXIX Y.B. Com. Arb. 437 para. 52 (2014); Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 paras 26, 36 (2017); Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 1; Singapore: Beijing Sinozonto Mining Investment Co. Ltd. v. Goldenray Consortium (Singapore) Pte Ltd., XXXIX Y.B. Com. Arb. 489 para. 41 (2014); Spain: Tribunal Superior de Justicia de Madrid, Jan. 23, 2018, 1/2018, XLIV Y.B. Com. Arb. ___ para. 19 (2019); Switzerland: BG, XXII Y.B. Com. Arb. 789, 797 para. 21 (1997); BG, XXXVI Y.B. Com. Arb. 340 paras 20 et seq. (2011); BG, XXXVII Y.B. Com. Arb. 300 para. 41 (2012); Camera di Esecuzione e Fallimenti, Canton Ticino, XX Y.B. Com. Arb. 762, 763 para. 3 (1995); US: Coutinho Caro & Co. U.S.A., Inc. v. Marcus Trading, Inc., 2000 U.S. Dist. LEXIS 8498, *37 et seq. (D. Conn. 2000) = XXVI Y.B. Com. Arb. 894, 908 paras 41 et seq. (2001); Hardy Expl. & Prod. (India), Inc. v. Gov’t of India, Ministry of Petroleum & Nat. Gas, XLIII Y.B. Com. Arb. 757 para. 48 (2018) (D.D.C. 2018); Liu Luwei v. Phyto Tech Corp., 2018 WL 6016958 (C.D. Cal. 2018) = XLIV Y.B. Com. Arb. ___ para. 22 (2019); NTT DoCoMo, Inc. v. Ultra d.o.o., XXXVI Y.B. Com. Arb. 387 para. 6 (2011) (S.D.N.Y. 2010); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 68; The American Law Institute, Restatement of the Law Third, The U.S. Law of International

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Article V 562–563

New York Convention

have to be decided differently under the enforcement court’s substantive law1468. Not even the misapplication of mandatory rules (i.e. rules which the parties cannot waive) constitutes grounds under Article V(2)(b) (but Õ para. 574).1469 It is unclear to what extent Muslim sharia serves not only as procedural or substantive law, but simultaneously as a standard of public policy.1470 Applying the same standard for law and public policy would be irreconcilable with the concept of public policy (Õ para. 504). 562 The ban on révision au fond likewise applies where parties allege that the contract underlying the award was induced by fraud or other illegal means. The validity of a contract is a matter of the merits of the case, which generally cannot be reviewed by the enforcement court.1471 The enforcement court can, however, review the validity of the arbitration agreement under Article V(1)(a). In a case where the arbitration agreement was signed under duress, it was held that public policy grounds prevented recognition and enforcement of a subsequent award.1472 563

(2) Grossly Erroneous or Arbitrary Application of Law. Some courts have held that manifest disregard of the law (Õ paras 23 et seq.), which serves as a non-statutory Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Comment b (p. 680); Born, International Commercial Arbitration, p. 3659; Czernich, Kurzkommentar, Art. V para. 64; Maurer, Public Policy Exception, pp. 58 et seq.; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 367; Solomon, in: Schmidt-Kessel (ed.), German National Reports, pp. 55, 117; less strict (“unless it can be shown that [the interpretation of a term of the agreement] is contrary to the contractual terms”) India: Penn Racquet Sports v. Mayor International Ltd., XXXVI Y.B. Com. Arb. 293 para. 23 (2011); too broad Kenya: Tanzania National Roads Agency v. Kundan Singh Construction Ltd., XXXIX Y.B. Com. Arb. 431 para. 48 (2014) (“inconsistent with the Constitution of Kenya or other laws of Kenya, whether written or unwritten”). 1468 Brazil: Superior Tribunal de Justiça, XXXIX Y.B. Com. Arb. 364 para. 13 (2014); Germany: OLG Celle, IPRspr. 2005, No. 188, 518, 520 = XXXII Y.B. Com. Arb. 322, 326 para. 11 (2007); OLG München, SchiedsVZ 2015, 40, 46; Greece: CA Athens, XXXVII Y.B. Com. Arb. 234 para. 16 (2012); India: Cruz City 1 Mauritius Holdings v. Unitech Ltd., XLII Y.B. Com. Arb. 407 paras 95, 97 (2017); Django Navigation Ltd. v. Indo Ferro Metal Private Ltd., XLIII Y.B. Com. Arb. 466 para. 60 (2018); Penn Racquet Sports v. Mayor International Ltd., XXXVI Y.B. Com. Arb. 293 para. 27 (2011); Tropic Shipping Co. Ltd. v. Kothari Global Ltd., 2002 (3) Bom. L.R. 44, 46; Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 5; UK: Omnium de Traitement et de Valorisation SA v. Hilmarton Ltd., XXIVa Y.B. Com. Arb. 777, 781 para. 10 (1999) (cf. Kreindler, in: van den Berg (ed.), Important Contemporary Questions, pp. 209, 244 et seq.); US: Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 111 (1918); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Comment b (p. 680); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 139; Makridou, RHDI 67 (2014), 121, 161. 1469 Austria: OGH, XLI Y.B. Com. Arb. 398 para. 31 (2016); Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 200 paras 34, 40 (2012); Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 205 paras 32, 33 (2012); Corte Suprema de Justicia, XLI Y.B. Com. Arb. 454 paras 86 et seq. (2016); Germany: OLG Celle, IPRspr. 2007, No. 218, 614, 618 = XXXIII Y.B. Com. Arb. 524, 532 et seq. para. 23 (2008); Lithuania: Lietuvos Aukšciausiasis Teismas, XXXIX Y.B. Com. Arb. 437 para. 58 (2014); Lietuvos Aukšciausiasis Teismas, XLI Y.B. Com. Arb. 507 para. 37 (2016); Portugal: Tribunal da Relação de Lisboa, XXXIX Y.B. Com. Arb. 477 para. 24 (2014); Switzerland: BG, XXII Y.B. Com. Arb. 789, 797 et seq. para. 23 (1997); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 80; Czernich, Kurzkommentar, Art. V para. 68; Gaillard/Savage, Fouchard Gaillard Goldman, para. 1711; Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 261, Recommendation 3(a); Poudret/Besson, Comparative Arbitration, para. 933. 1470 Cf. Al-Nasair/Bantekas, 16(3) Int. A.L.R. 88, 89 et seq. (2013); Bin Zaid, Recognition and Enforcement in Saudi Arabia, pp. 260 et seq.; Harb/Leventhal, (2013) 30(2) J. Int. Arb. 113, 115 et seq.; Schwing, (2017) 34(3) J. Int. Arb. 425, 448 et seq. 1471 Hong Kong: Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, [2007] 5 HKC 91, 111 et seq. = XXXIII Y.B. Com. Arb. 574, 583 para. 18 (2008); US: Europcar Italia S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310, 315 (2d Cir. 1998) = XXIVa Y.B. Com. Arb. 860, 865 para. 11 (1999); Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 375. 1472 US: Transmarine Seaways Corp. v. Marc Rich & Co., 480 F. Supp. 352, 358 (S.D.N.Y. 1979) = VI Y.B. Com. Arb. 244, 245 para. 2 (1981); Ameropa AG v. Havi Ocean Co., XXXVI Y.B. Com. Arb. 433 para. 10 (2011) (S.D.N.Y. 2011).

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564–565 Article

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ground for setting aside an award in the United States,1473 also forms part of international public policy.1474 Other courts, however, have rejected this argument.1475 In any event, the standard has been held to be high, i.e. not any error but the tribunal’s ignorance of the law against its better knowledge.1476 Sometimes manifest disregard of the facts is treated as a separate category of public 564 policy.1477 It is submitted, however, that ignoring the facts – if it goes beyond a flawed procedure of taking evidence which will generally not constitute a public policy ground (Õ para. 549) – is nothing but misapplication of the law (unless the right to be heard is violated, Õ para. 539). bb) Specific Examples of Fundamental Principles. (1) Statutes of Limitation. 565 Legal certainty is the fundamental principle behind statutes of limitation. An award manifestly ignoring that the claim had already been time barred can therefore violate public policy.1478 However, a more generous approach has to be chosen than just applying the statutes of limitation under the law of the enforcement court.1479

1473

See Kautz, SchiedsVZ 2011, 20. Philippines: Asset Privatization Trust v. Court of Appeals, Dec. 29, 1998, G.R. No. 121171 (unreported), available at https://www.lawphil.net/judjuris/juri1998/dec1998/gr_121171_1998.html (last visited Apr. 29, 2019); US: Brandeis Intsel Ltd. v. Calabrian Chems. Corp., 656 F. Supp. 160, 163 (S.D.N.Y. 1987) = XIII Y.B. Com. Arb. 543, 545 para. 4 (1988); HSN Capital LLC v. Productora y Comercializador de Television, S.A. de C.V., 2006 WL 1876941, p. 4 (M.D. Fla. 2006) = XXXII Y.B. Com. Arb. 774, 778 para. 9 (2007); Liu Luwei v. Phyto Tech Corp., 2018 WL 6016958 (C.D. Cal. 2018) = XLIV Y.B. Com. Arb. ___ para. 20 (2019); Spector & Specurity Indus. Ltd. v. Torenberg, 852 F. Supp. 201, 208 et seq. (S.D.N.Y. 1994) = XX Y.B. Com. Arb. 962, 969 paras 14 et seq. (1995); see also US: Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15, 20 (2d Cir. 1997) = XXIII Y.B. Com. Arb. 1058, 1062 paras 8 et seq. (1998). Note that manifest disregard of the law is sometimes classified as part of procedural public policy (Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.495; Sheppard, (2003) 19 Arb. Int’l 217, 240); for the legal position in New Zealand, see Kawharu, (2007) 24 J. Int. Arb. 491, 506 et seq. 1475 Germany: BGH, NJW 1990, 3210, 3211; Philippines: National Steel Corp. v. Regional Trial Court of Lanao de Nostro, Mar. 11, 1999, G.R. No. 127004 (unreported), available at https://lawphil.net/judjuris/ juri1999/mar1999/gr_127004_1999.html (last visited Apr. 29, 2019); Russia: Federal Arbitrazh Court, Northwestern District, XXXIII Y.B. Com. Arb. 658, 664 para. 19 (2008); Switzerland: BG, BGE 115 II 102, 105; BG, BGE 115 II 288, 291; BG, BGE 116 II 634, 637 = XVII Y.B. Com. Arb. 279, 284 para. 10 (1992); UK: Adams v. Cape Industries plc, [1990] Ch 433, 569; US: Brandeis Intsel Ltd. v. Calabrian Chems. Corp., 656 F. Supp. 160, 165 (S.D.N.Y. 1987) = XIII Y.B. Com. Arb. 543, 547 et seq. paras 9 et seq. (1988); Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 181 et seq. (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639, 650 paras 35 et seq. (1992); M&C Corp. v. Erwin Behr GmbH & Co. KG, 87 F.3d 844, 851 (6th Cir. 1996) = XXII Y.B. Com. Arb. 993, 999 et seq. paras 17 et seq. (1997); NTT DoCoMo, Inc. v. Ultra d.o.o., XXXVI Y.B. Com. Arb. 387 para. 6 (2011) (S.D.N.Y. 2010); OJSC Ukrnafta v. Carpatsky Petroleum Corp., XLIII Y.B. Com. Arb. 664 para. 85 (2018) (S.D. Tex. 2017); Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 977 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976); see also US: Caja Nacional de Ahorro y Seguros v. Deutsche Rückversicherung AG, 2007 U.S. Dist. LEXIS 56197, *12 (S.D.N.Y. 2007) = 2007 WL 2219421, p. 3 = XXXIII Y.B. Com. Arb. 997, 1001 et seq. paras 9 et seq. (2008); Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15, 20 (2d Cir. 1997) = XXIII Y.B. Com. Arb. 1058, 1062 paras 8 et seq. (1998); Wilske/Mackay, 24(2) ASA Bull. 216, 224 et seq. (2006). 1476 US: Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15, 24 (2d Cir. 1997); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.495; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 401. 1477 Sheppard, (2003) 19 Arb. Int’l 217, 241 et seq. 1478 Germany: OLG Bremen, BB 2000, Beil. 12, pp. 18, 21 = XXXI Y.B. Com. Arb. 640, 650 para. 30 (2006); Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 145; Solomon, in: Schmidt-Kessel (ed.), German National Reports, pp. 55, 115. 1479 India: Ludwig Wünsche & Co. v. Raunaq International, IX Y.B. Com. Arb. 403 paras 4 et seq. (1984). 1474

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New York Convention

(2) Unlawful Relief. An award granting unlawful relief can infringe public policy. Relief constituting an offense under the recognition State’s criminal law will violate that State’s public policy (Õ paras 575 et seq.). An award that ordered payment of a contractual penalty which the debtor could only have avoided by illegal acts has been held to violate public policy.1480 An investment award ordering a State to compensate an investor for (allegedly) environmentally motivated regulations has been held not to infringe public policy since it did not interfere with the State’s environmental rules or regulations.1481 The impossibility of specific performance ordered by an award does not constitute a public policy violation.1482

(a) Damages. Total reparation is considered as a fundamental principle in some civil law jurisdictions. Punitive damages (including damages awarded under the RICO Act1483) have therefore been considered as contrary to substantive public policy.1484 According to this view, awards on damages must not cover items beyond the damages incurred, fees and costs.1485 Courts in common law countries, however, have not found this to be a public policy violation as long as the applicable substantive law allows for punitive damages.1486 An Australian court found double recovery to violate public policy.1487 567a A contractual penalty amounting to 40 % of the primary obligation has been found not to violate German public policy.1488 Greek courts have found a public policy violation where the award orders payment of excessively or disproportionately high damages,1489 while Portuguese courts recognize even highly penalizing clauses.1490 A contractual penalty for violation of non-competition obligations awarded against a lawyer amounting to more than 25 years of his income has been found absolutely disproportionate and thus in violation of public policy.1491 In this case, the court 567

1480 Germany: OLG München, SchiedsVZ 2012, 339, 342 = XXXIX Y.B. Com. Arb. 394 para. 18 (2014) (territorial protection laws for agricultural machines under Ukrainian law). 1481 US: Crystallex Int’l v. Venezuela, XLII Y.B. Com. Arb. 692 para. 69 (2017) (D.D.C. 2017). 1482 US: TMCO Ltd. v. Green Light Energy Solutions R&D Corp., XLIII Y.B. Com. Arb. 684 paras 16 et seq. (2018) (N.D. Cal. 2017). 1483 Kühn, (1994) 11 J. Int. Arb. 37, 43 et seq. 1484 Germany: BGH, NJW 1992, 3096, 3102; Bachmann, in: Bachmann et al. (eds), Festschrift Schlosser, p. 1; Czernich, Kurzkommentar, Art. V para. 75 (for damages exceeding twice the loss); similar for foreign judgments granting excessive amount of damages South Africa: Jones v. Krok, [1996] 1 S.A. 504, 517; for the unclear situation in Switzerland, see Berger/Kellerhals, Arbitration in Switzerland, para. 2100; Patocchi, in: Blessing (ed.), ASA Special Series No. 9, pp. 145, 189 para. 55; for Italy, see Frignani, 8(4) RRA 9, 24 (2014); for Greece, see Makridou, RHDI 67 (2014), 121, 162; for an overview, see Petsche, (2013) 30(1) J. Int. Arb. 31, 42 et seq. 1485 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 80. 1486 US: Dandong Shuguang Axel Corp. v. Brilliance Mach. Co., 2001 U.S. Dist. LEXIS 7493, *20 et seq. (N.D. Cal. 2001) = XXVII Y.B. Com. Arb. 617, 624 para. 15 (2002); Willis v. Shearson/Am. Express, Inc., 569 F. Supp. 821, 823 et seq. (M.D.N.C. 1983); In re the Arbitration between Barbier & Shearson Lehman Hutton, Inc., 752 F. Supp. 151, 157 et seq. (S.D.N.Y. 1990); see also for a contract disallowing punitive damages Canada: Domotique Secant Inc. v. Smart Systems Technologies Inc., 2005 CanLII 36874; see also Farnsworth, (1991) 7 Arb. Int’l 3, 11 et seq.; Miller, (1993) 9 Arb. Int’l 167, 187 et seq.; for punitive damages awarded against at State, see US: Gold Reserve Inc. v. Venezuela, 146 F. Supp. 3d 112 para. 18 (D.D.C. 2015) = XLI Y.B. Com. Arb. 648 paras 53 et seq. (2016). 1487 Australia: Indian Farmers Fertiliser Cooperative Ltd. v. Joseph Isaac Gutnick, [2015] VSC 724 paras 105 et seq. = XLI Y.B. Com. Arb. 384 paras 100 et seq. (2016); confirmed by Australia: Indian Farmers Fertiliser Cooperative Ltd. v. Joseph Isaac Gutnick, XLI Y.B. Com. Arb. 388 (2016); see also Canada: Depo Traffic Facilities (Kunshan) Co. v. Vikeda International Logistics and Automotive Supply Ltd., XLI Y.B. Com. Arb. 428 paras 24 et seq. (2016). 1488 Germany: OLG Celle, IPRspr. 2005, No. 188, 518, 521 = XXXII Y.B. Com. Arb. 322, 326 para. 13 (2007). 1489 Greece: CA Athens, XXXVII Y.B. Com. Arb. 234 para. 18 (2012); similarly Lithuania: Lietuvos Aukšciausiasis Teismas, XLI Y.B. Com. Arb. 507 para. 42 (2016). 1490 Portugal: Tribunal da Relação de Lisboa, XXXVIII Y.B. Com. Arb. 443 paras 21 et seq. (2013). 1491 Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 paras 41 et seq. (2017).

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stressed that it was blatant that the imposed sanction had been widely excessive1492 and that the penalty violated the constitutionally enshrined fundamental rights of the freedom to choose a profession.1493 Whether or not a public policy infringement would have been excluded if the award debtor had not requested reduction of the contractual penalty in the arbitral proceedings (as required for a reduction by a court under Portuguese civil law) was left open.1494 Russian courts have recognized the principle of proportionality as part of public policy and determine proportionality of a contractual penalty in light of the amount of the penalty, the seriousness of the violation triggering the penalty and its duration.1495 An English court found penalty clauses not to violate public policy, at least if the substantive law chosen by the parties empowers its courts to reduce a penalty.1496 A US court found the prohibition on contractual penalties under New York law not so consequential as to assume a public policy violation.1497 It does not constitute a violation of international substantive public policy if the type of 568 damages awarded or their method of assessment differs from the enforcement court’s substantive law.1498 In line with this, no public policy infringement was found where the tribunal estimated damages1499 or awarded lump sum damages (liquidated damages).1500 (b) Interest. Enforcement courts have held that a ban on compound interest under 569 their local law does not qualify as substantive international public policy.1501 It is merely an erroneous application of law and does not constitute grounds for denial of recognition and enforcement if the substantive law applicable to the dispute does not allow for the interest awarded or only for less interest than awarded.1502 It does not amount to a public policy violation if the interest awarded could not have been awarded under the recognition country’s substantive law.1503 However, courts in countries applying Muslim sharia have found that awards on interest infringe public policy.1504 1492

Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 para. 46 (2017). Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 para. 44 (2017). 1494 Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 paras 51 et seq. (2017). Contrary to the Belarussian case law (reported by Khrapoutski/Loban, (2015) 81 Arbitration 57, 62), the recognition court cannot directly apply a provision under its civil code which allows for the reduction of a contractual penalty as this would violate the ban on révision au fond. 1495 Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 6. 1496 UK: Pencil Hill Ltd. v. US Citta Di Palermo S.p.A., XLII Y.B. Com. Arb. 535 para. 31 (2017). 1497 US: PDV Sweeny, Inc. v. ConocoPhillips Co., XLI Y.B. Com. Arb. 615 para. 59 (2016) (S.D.N.Y. 2015) = XLII Y.B. Com. Arb. 570 para. 63 (2017). 1498 US: Nat’l Oil Corp. v. Libyan Sun Oil Co., XVI Y.B. Com. Arb. 651, 655 et seq. paras 13 et seq. (1991) (D. Del. 1990); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.496; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 328. 1499 France: CA Paris, Rev. arb. 1993, 259, 262 = XIX Y.B. Com. Arb. 658, 661 para. 13 (1994). 1500 Germany: OLG Dresden, XXIX Y.B. Com. Arb. 679, 684 et seq. para. 13 (2004); Hong Kong: A v. R, [2009] HKLRD 389, 396 et seq. 1501 Germany: OLG Hamburg, RIW 1991, 152, 154 = XVII Y.B. Com. Arb. 491, 497 paras 19 et seq. (1992); OLG Hamburg, RIW 1992, 939, 940; India: Renusagar Power Co. Ltd. v. General Electric Co., XVI Y.B. Com. Arb. 553, 560 et seq. paras 24 et seq. (1991); Renusagar Power Co. Ltd. v. General Electric Co., XX Y.B. Com. Arb. 681, 711 et seq. paras 55 et seq. (1995); Switzerland: BG, XXII Y.B. Com. Arb. 789, 797 et seq. para. 23 (1997); for a country the law of which allows compound interest, see Brazil: Superior Tribunal de Justiça, XXXIX Y.B. Com. Arb. 364 para. 17 (2014). 1502 Switzerland: BG, 18(1) ASA Bull. 109, 115 (2000). 1503 Germany: BGH, NJW 1993, 1801, 1802; OLG Hamburg, RIW 1991, 152, 154 = XVII Y.B. Com. Arb. 491, 497 et seq. paras 19 et seq. (1992); US: Laminoirs-Trefileries-Cableries de Lens S. A. v. Southwire Co., 484 F. Supp. 1063, 1069 (N.D. Ga. 1980) = VI Y.B. Com. Arb. 247 et seq. para. 3 (1981); Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 182 (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639, 651 para. 40 (1992). 1504 See El Ahdab, in: van den Berg (ed.), International Arbitration in a Changing World, pp. 165, 182 et seq.; Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 390; Sheppard, (2003) 19 Arb. Int’l 217, 235. 1493

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New York Convention

570

An award ordering punitive rather than compensatory interest has been found to violate public policy.1505 Excessive interest rates can amount to a public policy infringement;1506 an interest rate of 15 % has been found not to violate public policy.1507 Interest which is inseparable from another part of the award which in turn violates public policy has been held to likewise infringe public policy.1508

571

(c) Calculation Errors. Computational, clerical, typographical or similar errors may be corrected by the tribunal (cf. Article 33(1)(a) of the Model Law). However, they have been held not to violate substantive public policy.1509

572

(d) Costs. It does not violate or infringe public policy if the award allocates costs under a scheme allowed by its lex arbitri but not compatible with the law in the enforcement State.1510 This holds true even if the cost decision follows an ex aequo et bono standard.1511 Public policy is even less infringed if the arbitral tribunal awarded costs under an incorrect application of the applicable rules.1512 An award adjudicating high attorney fees has been found not to infringe public policy as long as the amount of fees was in proper relation to the amount in dispute.1513 For awards on costs comprising the arbitrator fees, Õ para. 536.

573

(e) Security. An award ordering a party to pay security on costs was held not to violate public policy under Article V(2)(b).1514

574

b) Rules Serving the State’s Essential Political, Social or Economic Interests The second group of cases constituting a State’s public policy are the rules designated to serve the essential political, social or economic interests of the State, these being known as “lois de police” or “public policy rules” (Õ para. 512, Õ para. 559). The reasoning behind these rules is similar to what Article 9(1) of the Rome I Regulation1515 1505 US: Laminoirs-Trefileries-Cableries de Lens S. A. v. Southwire Co., 484 F. Supp. 1063, 1069 (N.D. Ga. 1980) = VI Y.B. Com. Arb. 247, 248 para. 4 (1981). 1506 Austria: OGH, IPRax 2006, 496, 500 et seq. = XXX Y.B. Com. Arb. 421, 433 para. 35 (2005) (107 % per annum violating Austrian public policy); Lithuania: Lietuvos Aukšciausiasis Teismas, XLI Y.B. Com. Arb. 507 para. 42 (2016). 1507 US: Intel Capital (Cayman) Corp. v. Hsia, XLI Y.B. Com. Arb. 625 para. 8 (2016) (N.D. Cal. 2015). 1508 US: Hardy Expl. & Prod. (India), Inc. v. Gov’t of India, Ministry of Petroleum & Nat. Gas, XLIII Y.B. Com. Arb. 757 paras 68 et seq. (2018) (D.D.C. 2018) (“Catch 22”). 1509 Germany: OLG Stuttgart, XXIX Y.B. Com. Arb. 742, 746 para. 11 (2004); Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 10; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 339. 1510 Germany: OLG Karlsruhe, SchiedsVZ 2012, 101, 106 = XXXVIII Y.B. Com. Arb. 379 para. 41 (2013); OLG Stuttgart, IPRspr. 2001, No. 204, 437, 439; Switzerland: BG, XXXVII Y.B. Com. Arb. 305 para. 32 (2012) (loser pays all); US: Aasma v. Am. S.S. Owners Mut. Prot. & Indem., 238 F. Supp. 2d 918, 922 et seq. (N.D. Ohio 2003) = XXVIII Y.B. Com. Arb. 1140, 1144 para. 10 (2003); ESCO Corp. v. Bradken Res. Pty Ltd., XXXVI Y.B. Com. Arb. 428 para. 32 (2011) (D. Or. 2011); Stone & Webster, Inc. v. Triplefine Int’l Corp., 118 Fed. Appx. 546, 549 et seq. (2d Cir. 2004) = XXX Y.B. Com. Arb. 1035, 1038 et seq. para. 9 (2005). 1511 Germany: OLG Celle, Aug. 8, 2002, 8 Sch 11/01 (unreported), available at http://www.disarb.org (last visited Apr. 29, 2019). 1512 Germany: OLG Jena, BeckRS 2016, 15021 = XL Y.B. Com. Arb. 422 para. 29 (2015). 1513 Germany: OLG Dresden, XXIX Y.B. Com. Arb. 679, 685 para. 14 (2004); for the proportionality test applied by Greek courts, see Makridou, RHDI 67 (2014), 121, 158 et seq.; see also Lithuania: Lietuvos Aukšciausiasis Teismas, XXXIX Y.B. Com. Arb. 437 para. 77 (2014). 1514 US: Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255, 263 et seq. (2d Cir. 2003) = XXIX Y.B. Com. Arb. 1070, 1076 et seq. para. 21 (2004). 1515 Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), 2008 OJ L 177/6. The provision reads: “Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent

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calls overriding mandatory provisions that effectively limit the parties’ freedom of choice of law. “Public policy rules” and overriding mandatory provisions, however, have different aims and may not be perfectly congruent.1516 No public policy rule can be found barring recognition and enforcement of an award against a public entity which had previously engaged in commercial activities.1517 aa) Criminal Law. Substantive public policy is violated where awards aid globally 575 recognized criminal offenses like piracy, terrorism, genocide, slavery, smuggling, drug trafficking and pedophilia.1518 In line with this perception, an English court has denied the recognition and enforcement of an award, which gave effect to a contract requiring the smuggling of carpets out of Iran.1519 An issue of increasing importance are awards involving bribery. Awards 576 enforcing agreements the conclusion of which has been induced by bribery violate public policy.1520 The same fate is suffered by awards that order the payment of bribes1521 or payments at least parts of which are intended to be used as bribes1522. No unanimous view exists among enforcement courts as to whether the facts of the case need to be re-opened if bribery is invoked1523 or whether the court can rely on the tribunal’s decision1524 at least where it appears sound1525. The better arguments generally advocate for a full review (Õ para. 517). Other criminal offenses are not globally recognized. In Austria, a contract that 577 speculates on differences constitutes illegal gambling; the recognition and enforcement of an award enforcing such contract was denied under Article V(2)(b).1526 that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.” 1516 Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 484 paras 57 et seq. (2017); Sheppard, (2003) 19 Arb. Int’l 217, 231 et seq.; Villiers, (2011) AUIntLawJl 155, 164 et seq.; for congruence Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. V para. 80; Hanotiau/Caprasse, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 787, 794; see also Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 1. 1517 Morocco: CA Casablanca, XXI Y.B. Com. Arb. 627, 629 para. 7 (1996). 1518 Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 140; Sheppard, (2003) 19 Arb. Int’l 217, 231. 1519 UK: Soleimany v. Soleimany, [1999] QB 785. 1520 France: CA Paris, XX Y.B. Com. Arb. 198, 201 paras 1 et seq. (1995); Lithuania: Lietuvos Aukšciausiasis Teismas, XLI Y.B. Com. Arb. 507 para. 40 (2016); Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 2; US: Oscanyan v. Arms Co., 103 U.S. 261, 277 (1880); Drude, (2018) 35(6) J. Int. Arb. 665, 678 et seq.; Lacoste, 36(1) ASA Bull. 31 (2018); Sheppard, (2003) 19 Arb. Int’l 217, 236. 1521 UK: Lemenda Trading Co. v. African Middle East Petroleum Co., [1988] QB 448, 461; Sinocore International Co. Ltd. v. RBRG Trading (UK) Ltd., XLII Y.B. Com. Arb. 538 paras 29 et seq. (2017). 1522 France: CA Paris, Rev. arb. 1994, 359 = XX Y.B. Com. Arb. 198, 202 para. 6 (1995); for contracts for the sale of influence Hwang/Lim, 8(1) Asian Int’l Arb. J. 1, 103 et seq. (2012). 1523 France: CA Paris, Rev. arb. 1994, 359 = XX Y.B. Com. Arb. 198, 202 para. 7 (1995). 1524 Switzerland: BG, 16(1) ASA Bull. 118, 130 et seq. (1998); US: Northrop Corp. v. Triad Fin. Establishment, 811 F.2d 1265, 1269 (9th Cir. 1987); indecisive Germany: OLG Hamburg, IPRspr. 1999, No. 178, 425, 428 et seq. = XXIX Y.B. Com. Arb. 663, 671 para. 24 (2004). 1525 UK: Soleimany v. Soleimany, [1999] QB 785, 800 (“an enforcement judge, if there is prima facie evidence from one side that the award is based on an illegal contract, should inquire further to some extent”); Westacre Investments Inc. v. Jugoimport SDPR Holding Co., XXIII Y.B. Com. Arb. 836, 861 et seq. para. 57 (1998), confirmed on appeal, [2000] QB 288, 314 = XXIVa Y.B. Com. Arb. 753, 773 para. 52 (1999); R v. V, [2008] EWHC 1531 paras 30 et seq. (Comm); Hwang/Lim, 8(1) Asian Int’l Arb. J. 1, 108 et seq. (2012). 1526 Austria: OGH, X Y.B. Com. Arb. 421, 422 et seq. paras 3 et seq. (1985); similarly for gambling: Canada: Depo Traffic Facilities (Kunshan) Co. v. Vikeda International Logistics and Automotive Supply Ltd., XLI Y.B. Com. Arb. 428 para. 27 (2016); Switzerland: BG, BGE 61 I 271; Berger/Kellerhals, Arbitration in Switzerland, para. 2100.

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New York Convention

578

bb) Mandatory Commercial Laws. Mandatory commercial laws are often considered public policy rules. Again, each State decides which rules are to be raised to the level of public policy. The fields of law discussed below can therefore not be conclusive; other laws, including those on price fixing1527 or on agreements contra bonos mores1528, can be considered part of the respective public policy standard.

579

(1) Competition Law. Competition law is usually considered to be part of substantive public policy.1529 The European Court of Justice has declared the entire EU competition law part of the Member States’ substantive public policies. In supporting this view, the court reasoned that Article 81 of the EC Treaty “is essential for the accomplishment of the tasks entrusted to the Community and, in particular, for the functioning of the internal market” and is therefore to be regarded as a matter of public policy within the meaning of the New York Convention.1530 The courts in the EU Member States have followed that guideline.1531 Considering the entire competition law as part of public policy subjects it to full review by the recognition courts. The US Supreme Court, under the so-called second look doctrine, has taken a more liberal approach, holding that “(w)hile the efficacy of the arbitral process requires that substantive review at the award-enforcement stage remain minimal, it would not require intrusive inquiry to ascertain that the tribunal took cognizance of the antitrust claims and actually decided them.”1532

580

(2) Insolvency Law. Most courts have not found public policy to be infringed when recognizing and enforcing an award against an insolvent party.1533 This approach is not, 1527 Germany: BGH, BGHZ 27, 249, 255 = NJW 1958, 1538, 1539; see also Germany: BGH, KTS 1964, 172, 174 et seq. 1528 Germany: BGH, NJW 1973, 98, 99 et seq. 1529 Germany: BGH, BGHZ 30, 89, 95 et seq. = NJW 1959, 1438, 1440; BGH, BGHZ 46, 365, 367 et seq. = NJW 1967, 1178; OLG München, SchiedsVZ 2015, 40, 46; Greece: Areios Pagos, XXXVI Y.B. Com. Arb. 284 para. 3 (2011); US: Karen Mar. Ltd. v. Omar Int’l, Inc., 322 F. Supp. 2d 224, 227 et seq. (E.D.N.Y. 2004); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Reporters’ Note d (pp. 689 et seq.); differently Switzerland: BG, BGE 132 III 389, 395 et seq. = Rev. arb. 2006, 763, 766 et seq.; de Vito Bieri/Nünlist, 35(1) ASA Bull. 55, 64 et seq. (2017); for an overview including on the scope of judicial review, see Downie, (2013) 30(3) J. Int. Arb. 221, 249 et seq. 1530 ECJ: Eco Swiss China Time Ltd. v. Benetton International NV (C-126/97), [1999] ECR I-3055 paras 36 et seq. = EuZW 1999, 565, 567 et seq. = XXIVa Y.B. Com. Arb. 629, 637 paras 14 et seq. (1999); see in more detail Bensaude, (2005) 22 J. Int. Arb. 239; Brulard/Quintin, (2001) 18(5) J. Int. Arb. 533; Dempegiotis, (2008) 25(3) J. Int. Arb. 365; Landolt, (2007) 23 Arb. Int’l 63, 75 et seq.; Liebscher, (2000) 17 J. Int. Arb. 73. 1531 Austria: OGH, IPRax 2000, 314, 318 = XXIVa Y.B. Com. Arb. 919, 925 paras 18 et seq. (1999); Germany: BGH, NJW 1969, 978, 979 et seq.; OLG Düsseldorf, IPRspr. 2002, No. 222, 563 et seq.; OLG Jena, SchiedsVZ 2008, 44, 46 = XXXIII Y.B. Com. Arb. 534, 539 para. 13 (2008); Netherlands: Gerechtshof Den Haag, XXXI Y.B. Com. Arb. 808, 815 para. 10 (2006); Greece: Areios Pagos, XXXVI Y.B. Com. Arb. 284 para. 3 (2011); differently Switzerland: BG, BGE 132 III 389 = Rev. arb. 2006, 763, 764 et seq.; see also Liebscher, (2000) 16 Arb. Int’l 357, 361 et seq. 1532 US: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 638 (1985) = XI Y.B. Com. Arb. 555, 564 para. 21 (1986); see also US: Baxter Int’l, Inc. v. Abbott Laboratories, 315 F.3d 829, 831 et seq. (7th Cir. 2003) = XXVIII Y.B. Com. Arb. 1154, 1158 et seq. paras 6 et seq. (2003); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Reporters’ Note d (p. 689); Lalonde, in: van den Berg (ed.), International Arbitration in a Changing World, pp. 127, 159; for the second look doctrine applied by the Scandinavian courts see Sørensen/Torp, (2017) 34(1) J. Int. Arb. 35, 50 et seq. 1533 Finland: Korkein Oikeus, XVI Y.B. Com. Arb. 536, 539 para. 8 (1991); France: Cass., XXXV Y.B. Com. Arb. 353 para. 12 (2010); Germany: OLG Brandenburg, BB 2001, Beil. 6, pp. 21, 22 = XXIX Y.B. Com. Arb. 697, 699 para. 7 (2004); Russia: Federal Arbitrazh Court, Moscow District, XXXIII Y.B. Com. Arb. 678, 682 para. 8 (2008); US: Copal Co. v. Fotochrome, Inc., 517 F.2d 512 (2d Cir. 1975) = I Y.B. Com. Arb. 202 (1976); Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp.,

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581–581a

Article V

however, unanimous.1534 The more convincing view is to deny the public policy defense: the award’s recognition and enforcement does not result in the actual collection of money, it is limited to providing binding force in the country where recognition and enforcement is sought.1535 The distribution of an insolvent party’s assets amongst its creditors is not governed by the Convention but by the local insolvency law applicable under Article III.1536 An award granting a claim that has not been timely lodged in the insolvency proceedings has been held to not violate international public policy.1537 (3) Consumer and Minors Protection Law. Similar to EU competition law 581 (Õ para. 579), the European Court of Justice has held that EU consumer protection law belongs to European public policy, including the EU Member States’ public policies.1538 This becomes particularly important in relation to unfair terms in consumer contracts.1539 The protection of minors has been found to constitute part of public policy.1540 (4) Employment and Commercial Agent Law. District courts in the United States 581a have held that a seafarer being entitled to maintenance and cure until he achieves maximum cure1541 is part of public policy and have denied recognition and enforcement under Article V(2)(b) of awards that did not pursue similar rights and protections as US law.1542 Such decisions have, however, been rightfully overruled1543 since raising national law protection standards in their entirety to the level of public policy is difficult to reconcile with the notion of public policy (Õ para. 504). However, how important lower protection levels are for the economy of the State under the substantive law of which the award has been rendered1544 is an argument that should not belong to the determination of public policy as the enforcement State’s safety-valve (Õ para. 490). 978 F. Supp. 266, 307 et seq. (S.D. Tex. 1997) = XXIII Y.B. Com. Arb. 995, 1014 para. 40 (1998); see also Ireland: Brorostrom Tankers AB v. Factorias Vulcano SA, XXX Y.B. Com. Arb. 591, 596 et seq. para. 14 (2005). 1534 Dissenting US: Victrix S.S. Co. v. Salen Dry Cargo AB, 825 F.2d 709, 715 et seq. (2d Cir. 1987) = XV Y.B. Com. Arb. 534, 537 et seq. paras 6 et seq. (1990). For an overview, see Rosell/Prager, (2001) 18 J. Int. Arb. 417; for sovereign debt restructuring, see Euler/Bianco, 31(3) ASA Bull. 558, 566 et seq. (2013). 1535 For this discinction, see Belize: The Belize Bank Ltd. v. Attorney General of Belize, [2017] CCJ 18 para. 33 (AJ) = XLIV Y.B. Com. Arb. ___ para. 33 (2019) (non-insolvency case). 1536 Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 381 et seq. 1537 Germany: OLG Karlsruhe, SchiedsVZ 2012, 101, 105 = XXXVIII Y.B. Com. Arb. 379 para. 22 (2013) (such award would not violate national public policy). 1538 ECJ: Elisa María Mostaza Claro v. Centro Móvil Milenium SL (C-168/05), [2006] ECR I-10421 paras 35 et seq. = XXXII Y.B. Com. Arb. 127, 135 (2007); cf. Graf/Appleton, 25(1) ASA Bull. 48 (2007); Graf/Appleton, 28(2) ASA Bull. 413 (2010). 1539 For online arbitration, see Alqudah, (2011) 28(1) J. Int. Arb. 67, 74 et seq. 1540 India: Daiichi Sankyo Company Ltd. v. Malvinder Mohan Singh, XLIII Y.B. Com. Arb. 459 para. 151 (2018). 1541 US: Aggarao v. MOL Ship Mgmt. Co., XL Y.B. Com. Arb. 504 paras 27 et seq. (2015) (D. Md. 2014); Lito Martinez Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG, XXXIX Y.B. Com. Arb. 581 para. 49 (2014) (E.D. La. 2014). 1542 US: Aggarao v. MOL Ship Mgmt. Co., XL Y.B. Com. Arb. 504 para. 26 (2015) (D. Md. 2014); Cvoro v. Carnival Corp., XLII Y.B. Com. Arb. 668 para. 51 (2017) (S.D. Fla. 2016); Lito Martinez Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG, XXXIX Y.B. Com. Arb. 581 para. 49 (2014) (E.D. La. 2014). 1543 US: Lito Martinez Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG, XL Y.B. Com. Arb. 572 (2015) (5th Cir. 2015); similarly US: Castro v. Tri Marine Fish Co., XLIII Y.B. Com. Arb. 638 paras 27 et seq., 33 (2018) (W.D. Wash. 2017); Cvoro v. Carnival Corp., XLIII Y.B. Com. Arb. 745 para. 20 (2018) (S.D. Fla. 2018) (vicarious liability for the negligence of the physician not part of public policy); Navarette v. Silversea Cruises Ltd., XLI Y.B. Com. Arb. 681 paras 9 et seq. (2016) (S.D. Fla. 2016). 1544 See US: Lito Martinez Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG, XL Y.B. Com. Arb. 572 para. 23 (2015) (5th Cir. 2015).

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Article V 581b–583a

New York Convention

581b

A Columbian court has held that a mandatory rule under national law that subjects commercial agency contracts performed in Colombia to Colombian law does not belong to Colombian public policy.1545 A Portuguese court has reached a similar conclusion for awards denying compensation under Spanish law owed to the commercial agent for benefits that the principal continues to receive after contract termination. Portuguese law sets out such mandatory compensation claim and allows for the choice of another law, but only if the other law is more favorable to the agent where the contract is at least primarily carried out in Portugal. The court found that overriding mandatory provisions and public policy pursued different aims, so that violating an overriding mandatory provision does not in itself infringe public policy.1546

581c

(5) Company Law. Russian courts have found no public policy infringement where a company did not adhere to a special procedure for approval of major transactions before concluding the contract out of which claims have been awarded against the company.1547

582

(6) Exchange Control. Exchange control restrictions are often raised as a public policy defense, but seldom granted.1548 This restraint is justified since recognition and enforcement do not actually enact such exchange.1549 The actual enforcement is subject to the lex fori rules that apply according to Article III (Õ para. 580).1550 The mere fact that the award orders payment in a foreign currency does not violate public policy.1551

583

(7) Import or Export Restrictions. Import or export restrictions including sanctions or boycott legislation have been held to justify the public policy defense if recognizing and enforcing the award would amount to compelling the award debtor to perform an illegal act.1552 If the award debtor still can comply with the award in a way that does not violate the restrictions, public policy has been held not to be infringed.1553 As an exception, a presidential decree prohibiting performance was considered insufficient under Article V(2)(b) since the award debtor was an entity closely connected to the government.1554

583a

(8) Patent Law. It was held that the prohibition against double patenting is based on the core principle that, in exchange for a patent, an inventor must fully disclose his invention and promise to permit free use of it at the end of his patent term.1555 A public 1545

Colombia: Corte Suprema de Justicia, XLI Y.B. Com. Arb. 454 paras 89 et seq. (2016). Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 484 paras 57 et seq. (2017). 1547 Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 8. 1548 Germany: RG, RGZ 108, 139; India: Cruz City 1 Mauritius Holdings v. Unitech Ltd., XLII Y.B. Com. Arb. 407 paras 86 et seq. (2017); Renusagar Power Co. Ltd. v. General Electric Co., XX Y.B. Com. Arb. 681, 707 et seq. paras 48 et seq. (1995); Mukesh H. Mehta v. Harendra Mehta, 1995 (2) Mah. L.J. 644, 659; Italy: Cass., XXII Y.B. Com. Arb. 715, 723 para. 19 (1997); UK: Soinco SACI v. Novokuznetsk Aluminium Plant, XXIII Y.B. Com. Arb. 795, 798 para. 6 (1998). 1549 See India: Cruz City 1 Mauritius Holdings v. Unitech Ltd., XLII Y.B. Com. Arb. 407 paras 108, 110 (2017) (permission from the Reserve Bank India). 1550 Otto/Elwan, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 385. 1551 Brazil: Superior Tribunal de Justiça, XLI Y.B. Com. Arb. 420 paras 4 et seq. (2016). 1552 Malaysia: Harris Adacom Corp. v. Perkom Sdn Bhd, XXII Y.B. Com. Arb. 753, 756 para. 10 (1997); see also Szabados, (2018) 35(4) J. Int. Arb. 439, 459 et seq. 1553 India: Smita Conductors Ltd. v. Euro Alloys Ltd., XXVII Y.B. Com. Arb. 482, 491 para. 18 (2002). 1554 Canada: Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, [2004] ABQB 918 paras 38 et seq. = XXX Y.B. Com. Arb. 488, 496 et seq. paras 23 et seq. (2005). 1555 US: Bayer Cropscience AG v. Dow Agrosciences LLC, XLI Y.B. Com. Arb. 658 para. 32 (2016) (E.D. Va. 2016); confirmed by US: Bayer Cropscience AG v. Dow Agrosciences LLC, XLII Y.B. Com. Arb. 681 (2017) (Fed. Cir. 2017). 1546

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Grounds for Refusal of Recognition and Enforcement

583b–584 Article

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policy violation has been denied where the arbitral tribunal discussed and rejected the issue of double patenting.1556 cc) Constitutional Principles. It has been held that core constitutional values like the 583b sovereignty of parliament or the separation of powers form part of public policy.1557 The violation of constitutional principles may have had some weight in the decided case, in which the award held an agreement on tax relief valid which a former minister of finance had concluded with two companies in conscious deviation from the applicable tax laws. Similar to the risks associated with the pacta sunt servanda principle (Õ para. 561), care is to be taken that the enforcement court does not review the compliance of the award with the entire body of public law. An investment arbitral award ordering the recognition State to refrain from imposing higher taxes on a party than those applicable at the time of investment was held to be irreconcilable with the country’s fundamental principles of taxation and to violate public policy.1558 Even where the enforcement State’s constitution disallows payments by the State without a basis in law, an award ordering the State to repay a loan does not violate public policy since recognition and enforcement do not instantly compel payment.1559 Fundamental rights that are constitutionally embedded will often qualify as public policy.1560 The freedom of speech under the first amendment of the US constitution was found not to constitute public policy where no governmental action is involved.1561 c) Duty of the State to Respect Its Obligations Under International Law aa) Obligations Under International Law. Thirdly and lastly, the duty of the State to 584 respect its obligations towards other States or international organizations forms part of public policy (Õ para. 512, Õ para. 559). Examples for such duties under international law are the obligation to abide by resolutions of the Security Council pursuant to Chapter V Article 25 of the UN Charter or to discourage and prosecute bribery under the OECD Convention on Combating Bribery of Foreign Officials in International

1556 US: Bayer Cropscience AG v. Dow Agrosciences LLC, XLI Y.B. Com. Arb. 658 para. 33 (2016) (E.D. Va. 2016); Bayer Cropscience AG v. Dow Agrosciences LLC, XLII Y.B. Com. Arb. 681 para. 41 (2017) (Fed. Cir. 2017). 1557 Belize: Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd., [2013] CCJ 5 para. 59 (AJ) = XXXVIII Y.B. Com. Arb. 324 para. 140 (2013); differently for the same award US: Gov’t of Belize v. BCB Holdings Ltd., XLI Y.B. Com. Arb. 710 para. 4 (2016) (D.C. Cir. 2016); more general (“inconsistent with the Constitution of Kenya”) Kenya: Tanzania National Roads Agency v. Kundan Singh Construction Ltd., XXXIX Y.B. Com. Arb. 431 para. 48 (2014); see also UNCITRAL Secretariat, Guide, Art. V(2)(b) para. 27. 1558 Ukraine: CA Kiev, XLI Y.B. Com. Arb. 577 para. 35 (2016); reversed by Ukraine: Sup. Ct., XLI Y.B. Com. Arb. 581 paras 33 et seq. (2016). 1559 Belize: The Belize Bank Ltd. v. Attorney General of Belize, [2017] CCJ 18 para. 33 (AJ) = XLIV Y.B. Com. Arb. ___ para. 33 (2019). 1560 For Germany, see Government bill, BT-Drucks. 13/5274, p. 59; see also Austria: OGH, XXXVIII Y.B. Com. Arb. 317 para. 42 (2013); OGH, XLIII Y.B. Com. Arb. 415 para. 8 (2018); Brazil: Superior Tribunal de Justiça, XLIII Y.B. Com. Arb. 426 paras 64 et seq. (2018); Lithuania: Lietuvos Apeliacinis Teismas, XXXVIII Y.B. Com. Arb. 417 para. 30 (2013); Lietuvos Aukšciausiasis Teismas, XXXIX Y.B. Com. Arb. 437 para. 58 (2014); Portugal: Supremo Tribunal de Justiça, XLII Y.B. Com. Arb. 488 para. 30 (2017); Spain: Tribunal Superior de Justicia de Catalunya, XXXVIII Y.B. Com. Arb. 462 para. 15 (2013); Tribunal Superior de Justicia de Catalunya, XLII Y.B. Com. Arb. 520 para. 23 (2017); Tribunal Superior de Justicia de Madrid, Jan. 23, 2018, 1/2018, XLIV Y.B. Com. Arb. ___ para. 19 (2019); Switzerland: BG, XXXVII Y.B. Com. Arb. 300 para. 35 (2012); BG, 33(3) ASA Bull. 576, 588 (2015) = XLI Y.B. Com. Arb. 567 para. 8 (2016); differently in Russia, see Asoskov/Kucher, (2013) 30(5) J. Int. Arb. 581, 583. 1561 US: Sharp Corp. v. Hisense USA Corp., 292 F. Supp. 3d 157, 174 et seq. (D.D.C. 2017) = XLIII Y.B. Com. Arb. 678 paras 45 et seq. (2018).

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Article V 585–586

New York Convention

Transactions.1562 These examples demonstrate that often other categories of substantive public policy also apply (for bribery, Õ para. 576).1563 bb) National Policy and Interests. National policy (in the foreign policy sense) as such does not belong to international public policy.1564 It has been held that tensions between the State where recognition and enforcement is sought and the applicant’s State do not justify refusing recognition and enforcement.1565 This view was confirmed in a case where the American party resisting recognition and enforcement of an award rendered in favor of Libya argued that Libya was a State “known to sponsor international terrorism.” The US District Court in Delaware held that there was no violation of public policy on the grounds that the “United States has not declared war on Libya, and President Bush has not derecognized the Qadhafi Government. In fact, the current Administration has specifically given Libya permission to bring this action in this Court.”1566 An English court held that public policy is not infringed by recognition and enforcement of an award between nationals of two States which were at war when both States maintained friendly relations with the United Kingdom.1567 As other courts have held, the concept of public policy was not “meant to enshrine the vagaries of international politics.”1568 586 Some courts have found a public policy violation where the award is contrary to the interests of the enforcement country.1569 Such findings do not form part of the best practice standard for public policy as they are at best dispensable.1570 Since national laws regularly serve national interests,1571 the standard of national interest does not help in establishing that, for example, a law regulating foreign exchange and the import and export of currency (Õ para. 582) forms part of the enforcement State’s public policy 585

1562 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 263; see also Russia: Presidium of the Supreme Arbitrazh Court, Information Letter No. 156 of Feb. 26, 2013, No. 2. 1563 Mayer/Sheppard, (2003) 19 Arb. Int’l 249, 256, Recommendation 1(e) last sentence. 1564 US: Ameropa AG v. Havi Ocean Co., XXXVI Y.B. Com. Arb. 433 para. 11 (2011) (S.D.N.Y. 2011); The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.16 Reporters’ Note b (p. 687); dissenting India: Renusagar Power Co. Ltd. v. General Electric Co., XX Y.B. Com. Arb. 681, 701 et seq. para. 39 (1995). 1565 US: Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 974 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976). 1566 US: Nat’l Oil Corp. v. Libyan Sun Oil Co., 733 F. Supp. 800, 819 et seq. (D. Del. 1990) = XVI Y.B. Com. Arb. 651, 660 para. 26 (1991). 1567 UK: Dalmia Dairy Industries Ltd. v. National Bank of Pakistan, [1978] 2 Lloyd’s Rep 223, 268 et seq. 1568 US: BCB Holdings Ltd. v. Gov’t of Belize, 110 F. Supp. 3d 233, 250 (D.D.C. 2015) = XL Y.B. Com. Arb. 590 para. 44 (2015); Hardy Expl. & Prod. (India), Inc. v. Gov’t of India, Ministry of Petroleum & Nat. Gas, XLIII Y.B. Com. Arb. 757 para. 48 (2018) (D.D.C. 2018); Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 974 (2d Cir. 1974) (not reprinted in I Y.B. Com. Arb. 205 (1976)). 1569 Colombia: Corte Suprema de Justicia, XXXVII Y.B. Com. Arb. 200 para. 41 (2012); India: Penn Racquet Sports v. Mayor International Ltd., XXXVI Y.B. Com. Arb. 293 para. 27 (2011); Renusagar Power Co. Ltd. v. General Electric Co., XX Y.B. Com. Arb. 681, 701 paras 39 et seq. (1995); Shri Lal Mahal Ltd. v. Progetto Grano SpA, XXXVIII Y.B. Com. Arb. 397 para. 29 (2013); Kenya: OJSC Zarubezhnstroy Technology v. Gibb Africa Ltd., XLII Y.B. Com. Arb. 421 paras 58 et seq. (2017); Tanzania National Roads Agency v. Kundan Singh Construction Ltd., XXXIX Y.B. Com. Arb. 431 para. 48 (2014) (“include[ing] interest of the national defence and security, good diplomatic relations with friendship nations and the economic prosperity of Kenya”). 1570 See US: Research & Dev. Ctr. “Teploenergetika”, LLC v. EP Int’l, LLC, 182 F. Supp. 3d 556, 568 (E.D. Va. 2016) = XLI Y.B. Com. Arb. 701 para. 53 (2016); United Paperworkers Int’l Union v. Misco, Inc., 108 S. Ct. 364, 367 (1987) = 484 U.S. 29, 31. 1571 See US: PDV Sweeny, Inc. v. ConocoPhillips Co., XLI Y.B. Com. Arb. 615 para. 56 (2016) (S.D.N.Y. 2015) = XLII Y.B. Com. Arb. 570 para. 61 (2017).

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586 Article

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standard1572. However, reliance on national interests constitutes the risk of dissolving the boundaries of public policy. It has correctly been held that the mere fact that recognition and enforcement is sought against a State does not infringe public policy.1573 Contrary to what a court has held,1574 public policy violations cannot derive from the enforcement State’s concept of national sovereignty. Sovereignty is the broader concept behind the public policy exception as a State’s safety-valve (Õ para. 490), but it cannot contribute to defining the content of public policy. Conversely, it has been held that enforcing an award ordering extraterritorial specific performance of another State violates US public policy out of respect for the sovereignty of other nations.1575 1572 India: Renusagar Power Co. Ltd. v. General Electric Co., XX Y.B. Com. Arb. 681, 703 para. 41 (1995). 1573 Germany: KG, XXXV Y.B. Com. Arb. 369 para. 3 (2010); but see Ukraine: CA Kiev, XLI Y.B. Com. Arb. 577 para. 36 (2016) (enforcement would diminish the state budget and thus cause a public policy violation; reversed by Ukraine: Sup. Ct., XLI Y.B. Com. Arb. 581 paras 33 et seq. (2016)). 1574 Brazil: Superior Tribunal de Justiça, XXXVII Y.B. Com. Arb. 177 para. 16 (2012); see also Lithuania: Lietuvos Apeliacinis Teismas, XXXVIII Y.B. Com. Arb. 417 para. 30 (2013) (sovereign immunity). 1575 US: Hardy Expl. & Prod. (India), Inc. v. Gov’t of India, Ministry of Petroleum & Nat. Gas, XLIII Y.B. Com. Arb. 757 paras 50 et seq. (2018) (D.D.C. 2018).

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Article VI [Adjournment; Security] If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. Specific Bibliography: Basler Kommentar: see Honsell/Vogt/Schnyder/Berti; Honsell/Vogt/Schnyder/Berti (eds), Basler Kommentar Internationales Privatrecht (IPRG), 3rd ed., Helbing & Lichtenhahn 2013; MünchKommZPO: see Rauscher/Wax/Wenzel; Rauscher/Wax/Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017. Table of Contents I. II. III. IV.

Overview ................................................................................................................... Spirit and Purpose .................................................................................................. Drafting History ...................................................................................................... Application for the Setting Aside or Suspension of the Award Has Been Made to a Competent Authority......................................................................... V. Adjournment or Security ...................................................................................... 1. Adjournment ....................................................................................................... a) Court Discretion ........................................................................................... b) Adjournment of the Decision on the Enforcement of the Award.... 2. Security ................................................................................................................. a) Application of the Party Claiming Enforcement of the Award......... b) Court Discretion ........................................................................................... c) Order for the Other Party to Give Suitable Security............................

1 2 3 4 5 6 6 16 17 17 18 23

I. Overview* Article VI provides for conditions based on which the decision on the enforcement of 1 the award may be adjourned. The conditions are that “an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e).” This provision also grants the court the power to “order the other party to give suitable security.” The wording of the Article VI specifically uses the phrases “may” and “if it considers proper,” thereby granting courts a substantial margin of discretion in determining whether adjournment and/or security are proper in each given case.1 Article VI is, however, silent on the criteria for exercising discretion. National courts have therefore developed a number of factors to consider in exercising discretion in adjournment and security decisions (Õ paras 6–12, Õ paras 18–19). The general tendency for the * I would like to thank Khristina Siletskaya for her valuable assistance in preparing the text of the first edition. 1 US: Fertilizer Corp. of India v. IDI Mgmt., Inc., VII Y.B. Com. Arb. 382, 390 (1982) (S.D. Ohio 1981) (“This appears to be an unfettered grant of discretion.”); Europcar Italia S.p.A. v. Maiellano Tours, Inc., XXIVa Y.B. Com. Arb. 860, 866 (1999) (2d Cir. 1998) (“A court has discretion to adjourn enforcement proceedings where an application has been made in the originating country to have the arbitral award set aside or suspended.”); see contra Patocchi/Jermini, in: Basler Kommentar, Art. 194 para. 57; Denkschrift der Bundesregierung, BT-Drucks. III/2160, p. 26; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. VI para. 2.

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Article VI 2–3

New York Convention

courts ordering adjournment is also to order the payment of security (Õ para. 20).2 This commentary provides a brief overview of the spirit and purpose behind Article VI and its drafting history. It then provides a comprehensive overview of factors the courts consider in exercising their discretion in questions of adjournment and of orders to post security.

II. Spirit and Purpose 2

Article VI closes a temporal gap that exists when the petition to set aside the award in the country of origin is still pending. A pending petition to set aside an award in the award’s country of origin does not constitute a sufficient ground under Article V(1)(e) to refuse the enforcement of the award and the court must order its enforcement in such circumstances (Õ Art. V para. 380). However, the possibility exists that the court in the award’s country of origin will set aside the award at a later date and such decision may thereafter serve as a ground to refuse the enforcement of the award. Article VI provides the enforcement court with an opportunity to wait and take into account the setting aside court’s decision regarding the binding character of the award when making the enforcement decision. The security is the price the party resisting the enforcement may be asked to pay for adjournment and it serves to protect the party seeking enforcement.3

III. Drafting History 3

The Geneva Convention of 1927 (Õ Annex V 2) did not contain any provisions addressing the issue governed by Article VI, while a mere application to set aside the award in its country of origin was sufficient to suspend the enforcement proceedings. No consideration was given to the prospects of such an application. A Dutch delegate was the first to raise the issue addressed by Article VI during the Conference on International Commercial Arbitration in 1958.4 The delegate proposed the provision of “some protection for the losing party in the form of the stipulation […] that enforcement might be refused so long as the award was still open to ordinary recourse.”5 The Conference members discussed the proposed safeguard and their various concerns about it in substantial depth and agreed to submit the article to a working party for further consideration.6 The Working Group proposed language very similar to the adopted language in a draft of Article V(2).7 The Chairman of the Working Group defined the purpose of the article as “to permit the enforcement authority to adjourn its decision if it was satisfied that an application for annulment of the award or for its suspension was made for a good reason in the country where the award was given […] to prevent an abuse of that provision by the losing party which may have started annulment proceedings without a valid reason purely to delay or frustrate the enforcement of the award, the enforcement authority should in such a case have the right either to enforce the award forthwith or to adjourn its enforcement only on the condition that the party opposing enforcement deposits suitable security.”8 2

UK: Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 752 (1994). UK: Yukos Oil Co. v. Dardana Ltd., XXVII Y.B. Com. Arb. 570, 585 (2002). 4 E/CONF.26/SR.11, p. 5 (Õ Annex IV 1). 5 E/CONF.26/SR.11, p. 5 (Õ Annex IV 1). 6 E/CONF.26/SR.11, p. 5 (Õ Annex IV 1); E/CONF.26/SR.13, p. 3 (Õ Annex IV 1); E/CONF.26/SR.14, p. 10 (Õ Annex IV 1). 7 See E/CONF.26/L.43, p. 3 (Õ Annex IV 1). 8 E/CONF.26/SR.17, pp. 3 and 4 (Õ Annex IV 1). 3

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Adjournment; Security

4–6

Article VI

IV. Application for the Setting Aside or Suspension of the Award Has Been Made to a Competent Authority Article VI conditions the court’s power to adjourn the enforcement proceedings on 4 the requirement that the application for setting aside or suspending the award has been made to a competent authority. This is accordingly the very first question that the enforcing court must consider when applying Article VI. If the application to set aside or suspend the award has not been made to the competent authority, the inquiry ends there and the court must deny the adjournment.9 To determine whether the competent authority prerequisite has been satisfied, the courts follow the analyses discussed in Õ Art. V paras 404–412.

V. Adjournment or Security The discretionary power of the enforcing court applies to two questions: (1) whether 5 the adjournment should be granted and (2) whether to order the defendant to provide security and, if so, of what kind and in what amount.10 National courts have developed guidelines for the exercise of discretion in both cases, although some questions of security are usually determined in accordance with the enforcing court’s domestic rules of procedure.11

1. Adjournment a) Court Discretion Article VI entrusts courts with discretion to grant the adjournment when the 6 proceedings to set aside or suspend the award are still pending in the award’s country of origin. An accurate inference from the plain language of Article VI is that the enforcement court can consider the adjournment not only upon a party’s request but also of its own accord. The provision, however, provides no guidance on how such discretion should be exercised. National courts have been developing their own reasons and factors to consider in exercising discretion. The courts’ efforts resulted in a balancing test with a relatively coherent pattern of such reasons and factors. To begin with, virtually all courts weigh any factors supporting the adjournment against the NYC’s main goal to facilitate and expedite the enforcement of foreign arbitral awards (Õ Prel. Rem. para. 17, Õ Prel. Rem. paras 88–90).12 The factors most commonly 9 Luxembourg: CA, XXI Y.B. Com. Arb. 617, 621 (1996) (the Luxembourg court ruled that the adjournment of the enforcement must be denied when it found that no setting aside action was pending in Belgium, which was found to be the competent authority). 10 US: Spier v. Calzaturificio Tecnica SpA, XIII Y.B. Com. Arb. 602, 606 et seq. (1988) (S.D.N.Y. 1987); UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853 (2006); US: Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., XXV Y.B. Com. Arb. 1115, 1118–1121 (2000) (E.D. La. 2000). 11 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. VI para. 2; Hong Kong: Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXVIII Y.B. Com. Arb. 752, 761 (2003) (relying on Hong Kong Civil Procedure rules for establishing the court’s authority to order security). 12 US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXI Y.B. Com. Arb. 1370, 1372 (2006) (W.D. Pa. 2005) (in exercising discretion, the court balanced the NYC’s policy favoring enforcement of awards against the principle of international comity); Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1155 (2005) (N.D. Ill. 2005); Chevron Corp. v. Republic of Ecuador,

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Article VI 7

New York Convention

considered by the enforcing courts are the following:13 (1) whether the action in the foreign court has at least some realistic chance of success (Õ para. 7); (2) the status of the foreign proceedings and the estimated time until those proceedings are resolved (Õ para. 8); (3) whether the proceedings were brought in good faith or with the sole purpose of hindering or delaying the enforcement of the award (Õ para. 9); (4) the possible hardship to each party (Õ para. 10); (5) judicial comity and the possibility of inconsistent judgments (Õ para. 11); and (6) whether the award would be subjected to greater scrutiny under a less deferential standard of review in foreign proceedings (Õ para. 12). 7 First, most national courts consider the strength of the case pending before the foreign court.14 Some national courts have applied a fairly rigorous probability of success analysis and required proof of a reasonable chance of success in the foreign proceedings.15 Most courts have applied a non-intrusive, superficial assessment of the XXXIX Y.B. Com. Arb. 550 (2014) (D.D.C. 2013); UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 858 (2006) (“On the one hand, enforcement should not be frustrated merely by the making of an application in the country of origin; on the other hand, pending proceedings in the country of origin should not necessarily be preempted by rapid enforcement of the award in another jurisdiction;” Australia: Indian Farmers Fertiliser Cooperative Ltd. v. Joseph Isaac Gutnick, XLI Y.B. Com. Arb. 384, 388 (2016); Hong Kong: T v. C, XLI Y.B. Com. Arb. 487 (2016); Sweden: Högsta domstolen, VI Y.B. Com. Arb. 237 (1981). 13 See e.g. US: Europcar Italia S.p.A. v. Maiellano Tours, Inc., XXIVa Y.B. Com. Arb. 860, 866 (1999) (2d Cir. 1998); Chevron Corp. v. Republic of Ecuador, XXXIX Y.B. Com. Arb. 550 (2014) (D.D.C. 2013); G.E. Transp. S.p.A. v. Republic of Albania, XXXV Y.B. Com. Arb. 519 (2010) (D.D.C. 2010); InterDigital Communications, Inc. v. Huawei Inv. & Holding Co., XLI Y.B. Com. Arb. 677 (2016) (S.D.N.Y. 2016); Gold Reserve Inc. v. Venezuela, XLI Y.B. Com. Arb. 648 (2016) (D.D.C. 2015); Getma Int’l v. Republic of Guinea, XLI Y.B. Com. Arb. 721 (2016) (D.D.C. 2016); Chevron Corp. v. Republic of Ecuador, XXXIX Y.B. Com. Arb. 550 (2014) (D.D.C. 2013); Stati v. Republic of Kazakhstan, XLII Y.B. Com. Arb. 619 (2017) (D.D.C. 2016); Hulley Enters. Ltd. v. Russian Federation, XLII Y.B. Com. Arb. 645 (2017) (D.D.C. 2016); Sci. Applications Int’l Corp. v. Hellenic Republic, XLII Y.B. Com. Arb. 678 (2017) (D.D.C. 2017); Venco Imtiaz Constr. Co. v. Symbion Power LLC, XLIII Y.B. Com. Arb. 633 (2018) (D.D.C. 2017); PAO Tatneft v. Ukraine, 301 F. Supp. 3d 175 (D.D.C. 2018) = XLIII Y.B. Com. Arb. 725 (2018); Hardy Expl. & Prod. (India), Inc. v. Gov’t of India, Ministry of Petroleum & Nat. Gas, XLIII Y.B. Com. Arb. 757 (2018) (D.D.C. 2018); UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXIX Y.B. Com. Arb. 507 (2014). 14 UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 858 (2006); Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 752 (1994); Canada: Powerex Corp. v. Alcan Inc., XXX Y.B. Com. Arb. 466, 472 (2005); UK: Dowans Holding SA v. Tanzania Electric Supply Co. Ltd., XXXVI Y.B. Com. Arb. 363 (2011); Travis Coal Restructured Holdings LLC v. Essar Global Fund Ltd., [2014] EWHC 2510 (Comm); IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXIX Y.B. Com. Arb. 507 (2014); Hong Kong: Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., [1996] 3 HKC 725, 728–729 (the enforcement court reasoned that in order to decide the issue of adjournment it will need to evaluate the validity of the award); Australia: Toyo Engineering Corp. v. John Holland Pty. Ltd., XXVI Y.B. Com. Arb. 750, 753 (2001); Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 468 (2015); Voorzieningenrechter, Rechtbank Amsterdam, XL Y.B. Com. Arb. 464 (2015); Switzerland: BG, XLI Y.B. Com. Arb. 564 (2016). 15 Belgium: CA Bruxelles, XXII Y.B. Com. Arb. 643, 666–668 (1997) (an adjournment was denied as no proof of chances for success in the foreign court was furnished); Australia: Lars Hallen v. Sven-Olov Angledal, XXIX Y.B. Com. Arb. 520, 531–532 (2004) (denying adjournment partially on the ground that the defendants failed to provide “some evidence to show that there is a prima facie or reasonably arguable case” to set aside the award in its country of origin. Id. at 531); Germany: OLG Celle, XXX Y.B. Com. Arb. 547, 554 (2005) (the enforcing court evaluated the grounds for seeking annulment in the foreign court and concluded that “the prospects of success […] according to the evidence before the court, were entirely uncertain” and denied the adjournment.); BayObLG, SchiedsVZ 2003, 142 = XXIX Y.B. Com. Arb. 754, 755–760 (2004) (adjournment was denied when the enforcing court evaluated the facts and grounds for appeal in the foreign court and concluded that it did not “share the defendant’s expectation that the […] ‘appeal’ pending in California has a good chance to succeed.” Id. at 760); Netherlands: Gerechtshof Den Haag, XLIII Y.B. Com. Arb. 535 (2018) (pendency of an appeal in an annulment action not sufficient for granting a stay); UK: Far Eastern Shipping Co. v. AKP Sovcomflot, XXI Y.B. Com. Arb.

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Adjournment; Security

8

Article VI

argument.16 Where the award appears to be valid on its face in light of such assessment, the courts have been swayed towards enforcing the award.17 However, when the enforcing courts have even the slightest doubt as to the award’s validity and the assessment of how likely the claim is to succeed in the setting aside court would force the enforcing court to consider the intricacies of foreign law, the courts tend to defer to setting aside courts and to stay the proceedings in the meantime.18 Second, when the foreign proceedings are expected to be resolved within a reason- 8 able period of time, such as within several months or even a year, the courts tend to weigh this factor in favor of adjournment.19

699, 706–707 (1996) (denying adjournment upon a detailed assessment of the defendant’s argument in parallel proceedings; further, adjournment was denied upon the enforcing court’s finding that the defendant’s “application for a stay afford[s] no more than a remote and uncertain prospect of recovery at best.”); Hong Kong: Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., [1996] 3 HKC 725, 728–729 (requiring the defendant to provide “some reasonably arguable grounds which afford some prospect of success,” yet the court noted that the defendant “must not show that he is likely to succeed.” Id. at 728); UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 858 (2006) (The English High Court examined the law of Nigeria, where the proceedings challenging the validity of the award were pending, in substantial detail prior to granting the adjournment). 16 UK: Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 752 (1994); Australia: Toyo Engineering Corp. v. John Holland Pty. Ltd., XXVI Y.B. Com. Arb. 750, 753 (2001); Hong Kong: U v. S, [2018] HKCFI 2086 = XLIV Y.B. Com. Arb. ___ (2019); Polytek Engineering Co. Ltd. v. Hebei Import & Export Corp., XXIII Y.B. Com. Arb. 666 (1998) (“If it appears that the application is hopeless and bound to fail, this court will not grant an adjournment”). 17 Australia: Toyo Engineering Corp. v. John Holland Pty. Ltd., XXVI Y.B. Com. Arb. 750, 753 (2001) (granting adjournment with the conclusion that the application to set aside the award was not unarguable); Canada: Powerex Corp. v. Alcan Inc., XXIX Y.B. Com. Arb. 603, 605 (2004) (granting adjournment upon the judge’s finding that the application to set aside was at least arguable and “not bound to fail.”). 18 US: CP Constr. Pioneers Baugesellschaft Anstalt v. Gov’t of the Republic of Ghana, XXXIII Y.B. Com. Arb. 1211, 1214 (2008) (D.D.C. 2008) (an adjournment was granted while proceedings to set aside were still pending in Ghana because the court found that issues involving Ghanaian law should be decided by local courts); UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 858 (2006) (“While, as foreshadowed, to the eyes of an English lawyer much of this is familiar territory from the ‘old’ English law on arbitration, the application of these principles in a Nigerian setting is a matter on which a decision of the Nigerian court would inevitably be valuable.” Id. at 864); Canada: Powerex Corp. v. Alcan Inc., XXIX Y.B. Com. Arb. 603, 606 (2004) (deferring to American courts to decide the issues of American law); US: Spier v. Calzaturificio Tecnica SpA, XIII Y.B. Com. Arb. 602, 608 (1988) (S.D.N.Y. 1987) (adjournment was granted while proceedings to set aside were still pending in Italy in order to allow Italian courts to determine the validity of the Italian arbitral award); Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., XXV Y.B. Com. Arb. 1115, 1119 (2000) (E.D. La. 2000) (“The Mexican action to nullify the award involves issues of Mexican law, which the Mexican courts are better situated than this Court to resolve.”). 19 US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXI Y.B. Com. Arb. 1370, 1373 (2006) (W.D. Pa. 2005); Italy: CA Firenze, XXXII Y.B. Com. Arb. 403, 405 (2007); Australia: Toyo Engineering Corp. v. John Holland Pty. Ltd., XXVI Y.B. Com. Arb. 750, 754 (2001) (the court granted an adjournment where the court of origin was expected to render the decision within two months); UK: Far Eastern Shipping Co. v. AKP Sovcomflot, XXI Y.B. Com. Arb. 699, 706 (1996) (denying adjournment partially because the foreign proceeding were “years rather than months away.”); Dowans Holding SA v. Tanzania Electric Supply Co. Ltd., XXXVI Y.B. Com. Arb. 363 (2011); Travis Coal Restructured Holdings LLC v. Essar Global Fund Ltd., [2014] EWHC 2510 (Comm); IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXIX Y.B. Com. Arb. 507 (2014); Gold Reserve Inc. v. Venezuela, XLI Y.B. Com. Arb. 648 (2016) (D.D.C. 2015); Netherlands: Rechtbank Rotterdam, XXI Y.B. Com. Arb. 635, 636 (1996); Cayman Islands: The Republic of Gabon v. Swiss Oil Corp., XIV Y.B. Com. Arb. 621–624 (1989) (granting adjournment partially based on the finding that the decision in the parallel proceedings was expected within a matter of days); UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 858 (2006); US: Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1155 (2005) (N.D. Ill. 2005); Luxembourg: CA, XLII Y.B. Com. Arb. 425 (2017).

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Article VI 9–10

New York Convention

Third, many courts mention good faith as a factor in adjournment proceedings. The inferences as to good faith in foreign proceedings can mainly be made from circumstances.20 Such possible circumstances may be frivolous defenses, timing of the proceedings (e.g. proceedings were filed in response to the enforcement action)21 and information extracted from written communications between counsels.22 A Canadian court noted that the suspicion that the defendant filed parallel proceedings to delay payment is natural in most cases, but some evidence needs to lift it “to the level of reasonable probability” to make it actionable.23 The burden to introduce evidence of bad faith is usually on the party arguing it.24 However, precedent exists where a national court placed the burden to prove that the parallel proceedings are bona fide on the party opposing enforcement.25 10 Fourth, both parties might be affected by the court’s decision with respect to adjournment.26 If the adjournment is granted, the party seeking enforcement might suffer financial hardship stemming from a delay in collecting the awarded amount.27 On the other hand, if the adjournment is denied, the party opposing the enforcement may be burdened with litigation if the outcome of the foreign proceedings were to be inconsistent with the order of enforcement.28 The balance between these two concerns is most efficiently achieved through the order to post security (Õ paras 18–19). The payment of security gives the party seeking recognition adequate assurance of payment while saving the defendant the cost of litigation should it succeed in the parallel proceedings.29 If the party seeking recognition can provide evidence of financial hardship, unless it has immediate access to the award’s money, it may sway the court in favor of enforcement.30 The possibility of an inconsistent judgment raises not only the issue of hardship for the defendant but also the important issue of judicial comity (Õ para. 11).31 The possibility that the restitution of any sums paid under the award is possible was found to be an argument against granting a stay.32 9

20 US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXI Y.B. Com. Arb. 1370, 1373 (2006) (W.D. Pa. 2005); UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXIX Y.B. Com. Arb. 507 (2014). 21 US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXI Y.B. Com. Arb. 1370, 1373 (2006) (W.D. Pa. 2005). 22 Canada: Powerex Corp. v. Alcan Inc., XXIX Y.B. Com. Arb. 603, 605 (2004). 23 Canada: Powerex Corp. v. Alcan Inc., XXIX Y.B. Com. Arb. 603, 605 (2004). 24 US: Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1156 (2005) (N.D. Ill. 2005). 25 Hong Kong: Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., [1996] 3 HKC 725. 26 US: Fed. Gov’t of Nigeria v. Cont’l Transfert Technique Ltd., XL Y.B. Com. Arb. 544 (2015) (D.C. Cir. 2015). 27 Italy: CA Firenze, XXXII Y.B. Com. Arb. 403, 405 (2007); US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXI Y.B. Com. Arb. 1370, 1373 (2006) (W.D. Pa. 2005). 28 Canada: Europcar Italia S.p.A. v. Alba Tours International Inc., XXVI Y.B. Com. Arb. 311, 312 (2001) (granting adjournment upon finding that the defendant “would suffer extreme prejudice if the award were enforced in Ontario only to be set aside later in Italy.”); Powerex Corp. v. Alcan Inc., XXX Y.B. Com. Arb. 466, 472 (2005); Cayman Islands: The Republic of Gabon v. Swiss Oil Corp., XIV Y.B. Com. Arb. 621, 626 (1989) (reasoning that adjournment would not cause “any very substantial […] hardship to the plaintiff” when the parallel proceeding would be resolved in a matter of days). 29 US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXI Y.B. Com. Arb. 1370, 1373–1374 (2006) (W.D. Pa. 2005); Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1157 (2005) (N.D. Ill. 2005). 30 US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXI Y.B. Com. Arb. 1370, 1373–1374 (2006) (W.D. Pa. 2005) (granting the adjournment partially based on the lack of evidence that the plaintiff would suffer financial hardship if not allowed to immediately collect on the award). 31 Canada: Powerex Corp. v. Alcan Inc., XXX Y.B. Com. Arb. 466, 472 (2005) (considering judicial comity to be an important factor in the adjournment decision process). 32 Spain: Tribunal Superior de Justicia de Catalunya, XLII Y.B. Com. Arb. 520 (2017).

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11–13 Article

Adjournment; Security

VI

Judicial comity, the fifth factor, directs one State to give due respect to the decisions 11 of other States, thus making this a factor weighing in favor of adjournment.33 Another factor is to avoid the rendering of conflicting decisions of the courts at the seat of the arbitration and the courts asked for recognition and enforcement of an award.34 With respect to the sixth factor, namely other circumstances, one example is the 12 consideration as to whether the award would be subjected to greater scrutiny under a less deferential standard of review in foreign proceedings. The courts merely identified this question and failed to elaborate on how it should be valued in the grand scheme of adjournment analyses.35 From a practical point of view, considering the level of scrutiny at the arbitral seat would mean delving into nuances of foreign law. This factor is thus superfluous. Furthermore, in a situation where an award is subject to setting aside proceedings, the fact that such award cannot be enforced in a number of countries weighs in favor of granting a stay.36 Some courts apply Article VI to circumstances that fall outside the situation 13 described by Article VI. For example, several courts considered whether adjournment under Article VI could be granted in cases where the issue before the competent authority was not an attempt to set aside or suspend the award.37 In few such cases did the courts grant the adjournment.38 However, such adjournment clearly cannot be considered as having been made under Article VI.39 Article VI applies only to situations where “an application for the setting aside or suspension of the award has been made.” 33 US: Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1154–1157 (2005) (N.D. Ill. 2005) (granting adjournment as it would be a prudent course of action in light of the principle of international comity and noting that the court deciding the issue of adjournment under Article VI must balance “the Convention’s policy in favor of confirming awards against the principle of international comity embraced by the Convention.” Id. at 1154); Telcordia Techs., Inc. v. Telkom SA Ltd., XXXII Y.B. Com. Arb. 810, 820 (2007) (3d Cir. 2006) (upholding the district court’s order of adjournment as it was consistent with notions of international comity); Canada: Powerex Corp. v. Alcan Inc., XXX Y.B. Com. Arb. 466, 472 (2005). 34 See US: Fitzpatrick Int’l v. Republic of Equatorial Guinea, 2013 WL 5964560 (S.D. Tex. 2013), also available at http://newyorkconvention1958.org/index.php?lvl=notice_display&id=1617&opac_view=2 (last visited Apr. 29, 2019). 35 See US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXI Y.B. Com. Arb. 1370, 1372 (2006) (W.D. Pa. 2005); Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1155 (2005) (N.D. Ill. 2005); Fed. Gov’t of Nigeria v. Cont’l Transfert Technique Ltd., XL Y.B. Com. Arb. 544 (2015) (D.C. Cir. 2015). 36 US: Getma Int’l v. Republic of Guinea, XLI Y.B. Com. Arb. 721 (2016) (D.D.C. 2016). 37 US: Stephen & Mary Birch Found., Inc. v. Admart AG, XXXII Y.B. Com. Arb. 800, 804 (2007) (3d Cir. 2006) (The court denied the adjournment upon finding that an action initiated before the same arbitral tribunal that issued the award did not amount to an action to set aside or suspend the award as it sought a remedy for the harm that occurred after the award was rendered and none of the issues resolved by the original award were triggered); Australia: Lars Hallen v. Sven-Olov Angledal, XXIX Y.B. Com. Arb. 520, 532 (2004) (denying adjournment partially on the ground that the defendants failed to produce evidence suggesting that the proceedings in the award’s country of origin are “related to setting aside or suspending the award.”). 38 US: Korea Wheel Corp. v. JCS Corp., XXXI Y.B. Com. Arb. 1367, 1368–1369 (2006) (W.D. Wash. 2005) (The court adjourned the enforcement of the award even though the second set of proceedings before the same arbitral tribunal did not amount to an action to set aside or suspend the award. Here, the arbitral tribunal split the original claim in the first set of proceedings because no evidence supporting that issue was provided at the time. The second proceedings were accordingly commenced to decide one of the issues of the original claim. The court deemed it reasonable to wait for the second half of the award in order to avoid splitting the enforcement of the award.); see also US: Hewlett-Packard, Inc. v. Berg, XXI Y.B. Com. Arb. 808, 810 (1996) (1st Cir. 1995) (adjournment granted when the issues pending before the second arbitral tribunal partly overlapped with those in the award whose enforcement was sought); UK: Far Eastern Shipping Co. v. AKP Sovcomflot, XXI Y.B. Com. Arb. 699 (1996). 39 For the US court’s reasoning for expending adjournment grounds see: US: Hewlett-Packard, Inc. v. Berg, XXI Y.B. Com. Arb. 808, 812–814 (1996) (1st Cir. 1995).

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Article VI 14–17

New York Convention

The courts that granted the adjournment for reasons other than such pending applications therefore erroneously relied on Article VI. Nonetheless, the courts’ decisions might still be justified by the NYC, specifically by Article III, which allows the enforcing court to apply its domestic rules of procedure to issues of recognition and enforcement of foreign arbitral awards (Õ Art. III para. 10). 14 The courts thus do not grant adjournment lightly, but rather weigh numerous factors against the NYC’s policy favoring the enforcement of arbitral awards. A common pattern of factors used by courts in exercising their discretion under Article VI exists, yet the way the courts interpret and apply these factors varies from court to court. 15 An exception to this practice on adjournment under Article VI is France, whose courts refuse to recognize the setting aside or annulment of the award by the courts of the award’s country of origin (Õ Art. V para. 390) and extend this rule to cases of adjournment under Article VI.40 Its domestic law could thus exclude the discretionary power of the enforcement judge to adjourn enforcement. Such domestic rules are valid according to Article VII (Õ Art. VII para. 2). b) Adjournment of the Decision on the Enforcement of the Award 16 The mechanics for ordering an adjournment of the decision on the enforcement of the award usually involve fixing a date for posting security and ordering the adjournment for the same period of time as the deadline for posting security.41 If the security is posted at a given date, the adjournment becomes indefinite (until the final decision is reached by the foreign court).42 If the security is not posted in due time, the adjournment expires.43

2. Security a) Application of the Party Claiming Enforcement of the Award 17 The language of Article VI directs that the court may order security only upon the plaintiff’s application44 and only if an adjournment of the enforcement action had been sought by the defendant.45 However, at least one case has deviated from this rule, namely when the District Court of New York granted the adjournment of enforcement proceedings and noted that neither party addressed the issue of security. While it did not order the provision of a security payment, the court nonetheless required the defendant to show cause as to why the security in the full amount of the award should not be required.46 The request for security must be specific, i.e. specify the amount to be guaranteed and define suitable security.47 40 France: CA Paris, XXX Y.B. Com. Arb. 499, 501–502 (2005) (holding that the award’s “possible annulment by the court of the seat does not affect its existence and prevent its recognition and enforcement in other national legal systems.” Id. at 501). 41 US: Gesco Ltd. v. Han Yang Corp., XV Y.B. Com. Arb. 575, 577 (1990) (D.N.J. 1986) (ordering adjournment conditioned on the payment of security); Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., XXV Y.B. Com. Arb. 1115, 1120 (2000) (E.D. La. 2000) (“A stay will be imposed herein on the posting of that security.”). 42 US: Gesco Ltd. v. Han Yang Corp., XV Y.B. Com. Arb. 575, 577 (1990) (D.N.J. 1986) (the adjournment was valid for six days to allow the defendant to post security. Once the security was posted the decision was adjourned indefinitely). 43 US: Gesco Ltd. v. Han Yang Corp., XV Y.B. Com. Arb. 575, 577 (1990) (D.N.J. 1986). 44 See also US: Skandia Am. Reins. Corp. v. Caja Nacional de Ahorro y Seguro, XXIII Y.B. Com. Arb. 956, 961 (1998) (S.D.N.Y. 1997); Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., XXV Y.B. Com. Arb. 1115, 1118 (2000) (E.D. La. 2000). 45 UK: Eastern European Engineering Ltd. v. Vijay Construction (Pty.) Ltd., XLII Y.B. Com. Arb. 549 (2017). 46 US: Spier v. Calzaturificio Tecnica SpA, XIII Y.B. Com. Arb. 602, 607–608 (1988) (S.D.N.Y. 1987). 47 Luxembourg: CA, XLII Y.B. Com. Arb. 425 (2017).

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18–19 Article

Adjournment; Security

VI

b) Court Discretion In deciding whether to order the payment of security, the enforcing courts usually 18 consider two main factors: (i) the strength of the application challenging the award in the country of origin,48 and (ii) the potential ease or difficulty of enforcing the award.49 The courts thus first examine the strength of the argument that the award is to be set aside.50 If the award is manifestly tainted, the courts should order adjournment and no security.51 On the other hand, if the award is manifestly valid, the court should either order immediate enforcement or impose substantial security.52 The judges would need to exercise their discretion when deciding the arguments about the award’s validity.53 Another consideration is the potential ease or difficulty of enforcing the award 19 depending on the losing party’s financial stability and amenability to enforcement measures.54 In cases where the enforcing courts did not have any doubts as to the resources of the defendants and their tendency to be law-abiding, the security was therefore refused.55 On the contrary, when the financial situation of the losing party was distressed, a US District Court ordered security in the full amount of the award plus interest as a condition of adjournment.56 However, when the assets to satisfy the judgment already are and will remain insufficient whether or not adjournment is granted, the case for posting security is weakened.57 An important distinction between the request to order security and the request to order the adjournment is who bears the burden of proof. In the case of security, the courts place the burden of proof on the 48 Australia: Johnson Ye v. Ronghuo Zeng (A/K/A Andrew Tsang), XLI Y.B. Com. Arb. 376 (2016); Austria: OGH, EvBl. 2012/9, 69; UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XLI Y.B. Com. Arb. 590 (2016); Hong Kong: L v. B, XLI Y.B. Com. Arb. 490 (2016). 49 Hong Kong: Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXVIII Y.B. Com. Arb. 752, 762 (2003); L v. B, XLI Y.B. Com. Arb. 490 (2016); UK: Yukos Oil Co. v. Dardana Ltd., XXVII Y.B. Com. Arb. 570, 588 (2002); Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 751–752 (1994); IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 857–858 (2006). 50 UK: Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 751–752 (1994); IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 857–858 (2006). 51 UK: Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 752 (1994); Apis AS v. Fantazia Kereskedelmi KFT, [2001] All E.R. 348. 52 UK: Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 752 (1994). 53 UK: IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 857–858 (2006) (The English High Court examined the likelihood that the Nigerian court would set aside the award and concluded that in some respects the application for setting aside had a realistic chance of success. The court then determined that a certain amount was indisputably due to the plaintiff and that a certain amount was likely to be due even if the opposing party succeeded on some points. Based on these findings, the High Court ordered the stay of the proceedings, the paying off of the amount that the Court deemed was certainly due and the deposit of a security in the amount that was likely to be due at the completion of the Nigerian proceedings.); Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 752 (1994). 54 UK: Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 752 (1994); IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XLI Y.B. Com. Arb. 590 (2016). 55 UK: Apis AS v. Fantazia Kereskedelmi KFT, [2001] All E.R. 348 (drawing inferences as to the judge’s reasoning for not ordering security in the Cayman Islands: The Republic of Gabon v. Swiss Oil Corp., XIV Y.B. Com. Arb. 621 (1989) – “It may also have been the case that there was no doubt as to the resources of the Swiss Oil Corporation or as to their amenability to enforcement measures.”); Hong Kong: Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., [1996] 3 HKC 725, 729 (“the defendant is a substantial Hong Kong company with ample assets and there is no reason to suppose that there is any risk against which the plaintiff needs to be protected by means of an order for security.”). 56 US: Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1156 (2005) (N.D. Ill. 2005). 57 UK: Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 752 (1994).

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Article VI 20–24

New York Convention

party opposing enforcement, while in adjournment the burden is on the party seeking enforcement.58 Finally, it was held that the history of the parties’ relations may also play a role.59 20 In general, most courts order a payment of suitable security when granting adjournment.60 Many courts do not provide any reasons either for ordering security or for the grounds used to determine the amount of the security.61 21 Given the pro-enforcement purpose of the NYC, the principle should be that full security is ordered in case of adjournment. Only when the judge is convinced that the challenge is likely to succeed and the enforcement of the award is not endangered by the adjournment should no security be ordered. 22 An issue may arise where domestic law does not allow the enforcement judge to order the provision of security. This would be contrary to the NYC. The NYC stipulates the discretionary powers of the enforcement judge in this respect. As a result, domestic law may not limit the free discretion of the enforcement judge under the NYC. Domestic law may only facilitate enforcement to a greater extent than the NYC does (Õ Art. VII para. 2); it could, for example, stipulate an obligation to pay security. c) Order for the Other Party to Give Suitable Security The order to post security may vary depending on the circumstances of each case. It has been pointed out62 that “suitable security” covers (i) the quantum of the security, (ii) the type of security, and (iii) the specific conditions of the security, including, but not limited to, the conditions for calling on the security. 24 Most orders direct the party seeking adjournment to post security in a determined amount (usually equal to the amount of the award plus interest) and allow the party seeking enforcement to collect on it only when the enforcement order is entered. Variations include an order to pay the amount of the award plus accrued interest before the foreign proceedings are resolved, and in turn order the party receiving the money to post security for the repayment of all monies should the defendant succeed and the enforcement of the award be denied.63 23

58 UK: Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 753 (1994) (granting security because “[…] it cannot […] be said that further delay will definitely not prejudice the enforceability of the award here.”). Compare with US: Jorf Lasfar Energy Co. v. AMCI Exp. Corp., XXXI Y.B. Com. Arb. 1370, 1373–1374 (2006) (W.D. Pa. 2005) (granting adjournment while noting with respect to a possible delay in the proceedings: “plaintiff provided us with no evidence.” Id. at 1373). 59 Australia: ESCO Corp. v. Bradken Resources Pty Ltd., [2011] FCA 905. 60 US: Alto Mar Girassol v. Lumbermens Mut. Cas. Co., XXX Y.B. Com. Arb. 1152, 1156 (2005) (N.D. Ill. 2005); Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., XXV Y.B. Com. Arb. 1115, 1119 (2000) (E.D. La. 2000); Skandia Am. Reins. Corp. v. Caja Nacional de Ahorro y Seguro, XXIII Y.B. Com. Arb. 956, 961 (1998) (S.D.N.Y. 1997); UK: Soleh Boneh Int. Ltd. v. Uganda, XIX Y.B. Com. Arb. 748, 753 (1994); IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp., XXXI Y.B. Com. Arb. 853, 857–858 (2006); contra: Cayman Islands: The Republic of Gabon v. Swiss Oil Corp., XIV Y.B. Com. Arb. 621 (1989); Hong Kong: Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., [1996] 3 HKC 725, 729. 61 US: Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc., XXV Y.B. Com. Arb. 1115, 1119 (2000) (E.D. La. 2000) (adjourning the proceedings and, without providing reasons, ordering the payment of security in the amount awarded plus interest on the principle for one year). 62 Australia: Esco Corp. v. Bradken Resources Pty Ltd., [2011] FCA 905. 63 Canada: Powerex Corp. v. Alcan Inc., XXX Y.B. Com. Arb. 466, 473 (2005).

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Article VII [Other Enforcement Regimes] 1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. 2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Convention. Specific Bibliography: Asouzu, International Commercial Arbitration and African States, Cambridge University Press 2001; Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany – The Model Law in Practice, 2nd ed., Kluwer Law International 2015; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Bowman, The Panama Convention and its Implementation Under the Federal Arbitration Act, 11 Am. Rev. Int’l Arb. 1 (2000); Conejero Roos, The New York Convention in Latin America: Lessons From Recent Court Decisions, The Arbitration Review of the Americas 2009, p. 21; Craig/Park/ Paulsson, International Chamber of Commerce Arbitration, 3rd ed., Oceana Publications 2000; Czernich, New Yorker Schiedsübereinkommen – UN-Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche – Kurzkommentar, LexisNexis 2008; Davis, Unconventional Wisdom: A New Look at Articles V and VII of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 37 Tex. Int’l L.J. 43 (2002); Fouchard, La portée internationale de l’annulation de la sentence arbitrale dans sons pays d’origine, Rev. arb. 1997, 329; Fouchard, Suggestions pour accroître l’efficacité internationale des sentences arbitrales, Rev. arb. 1998, 653; Freyer, The Enforcement of Awards Affected by Judicial Orders of Annulment at the Place of Arbitration, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 757; Gaillard, Enforcement of Awards Set Aside in the Country of Origin: The French Experience, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, Kluwer Law International 1999, p. 505; Gaillard, Note – 29 Juin 2007 – Cour de cassation (1re Ch. civ.), Rev. arb. 2007, 517; Gaillard, The Relationship of the New York Convention with Other Treaties and with Domestic Law, in: Gaillard/Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Cameron May 2008, p. 69; Gaillard/ Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International 1999; Gebhardt, Case Note: BGH, Sep. 25, 2003, III ZB 68/02, IDR 2004, 42; Geimer/Schütze (eds), Internationaler Rechtsverkehr in Zivil- und Handelssachen, 56th ed., C. H. Beck 2018; Giardina, The Practical Application of Multilateral Conventions, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, Kluwer Law International 1999, p. 440; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Hamilton, Three decades of Latin American Commercial Arbitration, 30 U. Pa. J. Int’l L. 1099 (2008/2009); Hanefeld/ Schmidt-Ahrendts, Country Report Germany, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 503; Hanotiau/Caprasse, Arbitrability, Due Process, and Public Policy Under Article V of the New York Convention, (2008) 25 J. Int. Arb. 721; Hascher, European Convention on International Commercial Arbitration of 1961 – Commentary, XV Y.B. Com. Arb. 624 (1990); Hascher, European Convention on International Commercial Arbitration of 1961 – Commentary, XX Y.B. Com. Arb. 1006 (1995); Hascher, European Convention on International Commercial Arbitration of 1961 – Commentary, XXXVI Y.B. Com. Arb. 504 (2011); Hess, Schiedsgerichtsbarkeit und europäisches Zivilprozessrecht, JZ 2014, 538; Hess/Pfeiffer/Schlosser, The Brussels I Regulation (EC) No 44/2001: The Heidelberg Report on the Application of Regulation Brussels I in 25 Member States (study JLS/C4/2005/03), C. H. Beck, Hart, Nomos 2009; ICCA, ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges, 2011, available at http://www.arbitration-icca.org/publica

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Article VII

New York Convention

tions/NYC_Guide.html (last visited Apr. 6, 2019); Illmer, Brussels I and Arbitration Revisited – The European Commission’s Proposal COM(2010) 748 final, RabelsZ 75 (2011), 645; Illmer, Der Kommissionsvorschlag zur Reform der Schnittstelle der EuGVO mit der Schiedsgerichtsbarkeit, SchiedsVZ 2011, 248; Jujón-Letort/ Robalino-Orellana, National and International Arbitration in Ecuador, The Arbitration Review of the Americas 2009, p. 43; Kleinheisterkamp, International Commercial Arbitration in Latin America: Regulation and Practice in MERCOSUR and the Associated Countries, Oceana Publications 2005; Konrad, Buried in Oblivion? The Significance and Limitations of the European Convention on International Commercial Arbitration, Kluwer Arbitration Blog, Nov. 2, 2010; Kröll, Case Note: BGH, Sep. 25, 2003, III ZB 68/02, SchiedsVZ 2003, 282; Kröll, Die Schiedsvereinbarung im Verfahren zur Anerkennung und Vollstreckbarerklärung ausländischer Schiedssprüche, ZZP 117 (2004), 453; Kröll/Wenzel, Art. VII New York Convention and the Need to Produce an Arbitration Agreement – Recent Developments in German Law, 19(4) Mealey’s Int’l Arb. Rep. 27 (2004); Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Kühn, Aktuelle Fragen zur Anwendung der New Yorker Konvention von 1958, SchiedsVZ 2009, 53; Kühner, Das neue französische Schiedsrecht, SchiedsVZ 2011, 125; Kunick/Lamb/Prantl/Regenhardt, Arrivederci West tankers: A Comparative Analysis of the Brussels Regulation Reform Proposals, SchiedsVZ 2012, 21; Lehmann, Anti-suit injunctions zum Schutz internationaler Schiedsvereinbarungen und EuGVVO, NJW 2009, 1645; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International 2003; Mallmann, Case Note: BGH, Sep. 25, 2003, III ZB 68/02, EWiR 2003, 1163; Mallmann, Die Bedeutung der Schiedsvereinbarung im Verfahren zur Anerkennung und Vollstreckbarerklärung ausländischer Schiedssprüche, SchiedsVZ 2004, 152; Matscher, Experience with Bilateral Treaties, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, Kluwer Law International 1999, p. 452; Moller, Der Vorrang des UN-Übereinkommens über Schiedsgerichtsbarkeit vor dem Europäischen Übereinkommen über Handelsschiedsgerichtsbarkeit, EWS 1996, 297; Moller, Schiedsverfahrensnovelle und Europäisches Übereinkommen über die internationale Handelsschiedsgerichtsbarkeit, NZG 2000, 57; MünchKommZPO: see Rauscher/Wax/Wenzel; Muranov, The Forgotten Bilateral Arbitration Agreement Between Sweden and the USSR: A New View on Enforcement of Sweden and Russia, Kluwer Arbitration Blog, Aug. 26, 2010; Musielak/Voit (eds), Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz, 16th ed., Franz Vahlen 2019; Muyanja/Chomi, Recognition and Enforcement of International Awards in Uganda, (2000) 17(1) J. Int. Arb. 99; Neuteufel, Das Verhältnis des Übereinkommens der Vereinten Nationen über die Vollstreckung ausländischer Schiedssprüche zu anderen Übereinkommen, ÖJZ 1967, 231; Niggemann, West Tankers, die „exception française“ und die Reform der EuGVVO, SchiedsVZ 2010, 67; Otto, Präklusion und Verwirkung von Vollstreckungsversagungsgründen bei der Vollstreckung ausländischer Schiedsgerichtsentscheidungen, IPRax 2012, 223; Park, Duty and Discretion in International Arbitration, 93 AJIL 805 (1999); Paulsson, Awards set aside at the place of arbitration, in: United Nations (ed.), Enforcing Arbitration Awards under the New York Convention: Experience and Prospects, 1999, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/nycday-e.pdf (last visited Apr. 6, 2019), p. 24; Paulsson, Towards Minimum Standards of Enforcement: Feasibility of a Model Law, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, Kluwer Law International 1999, p. 574; Pfeiffer, Case Note: BGH, Sep. 25, 2003, III ZB 68/02, LMK 2010, 310078; Pfeiffer, Die Fortentwicklung des Europäischen Zivilprozessrechts durch die neue EuGVO, ZZP 127 (2014), 409; Pickenpack, Case Note: EuGH, May 13, 2015, C-536/13, EWiR 2016, 61; Plaßmeier, Ende des „Doppelexequatur“ bei ausländischen Schiedssprüchen, SchiedsVZ 2010, 82; Pohl, Die Neufassung der EuGVVO – im Spannungsfeld zwischen Vertrauen und Kontrolle, IPRax 2013, 109; Pointon, The Origins of Article VII.1 of the New York Convention 1958, in: Lévy/Derains (eds), Liber Amicorum en l’honneur de Serge Lazareff, Editions Pedone 2011, p. 499; Poudret, Quelle solution pour en finir avec l’affaire Hilmarton? – Réponse à Philippe Fouchard, Rev. arb. 1998, 7; Poudret/Besson, Comparative Law of International Arbitration, 2nd ed., Sweet & Maxwell 2007; Quinke, § 1061 ZPO und der Meistbegünstigungsgrundsatz des UNÜ, SchiedsVZ 2011, 169; Rauscher/Wax/Wenzel (eds), Münchener Kommentar zur Zivilprozessordnung, 5th ed., C. H. Beck 2017; Rivkin, The Enforcement of Awards Nullified in the Country of Origin: The American Experience, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, Kluwer Law International 1999, p. 528; Sachs, The Enforcement of Awards Nullified in the Country of Origin: The German Experience, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, Kluwer Law International 1999, p. 552; Santomauro, Eine Analyse der Kehrtwende in der Präklusionsrechtsprechung des BGH – Öl für ein erloschenes Feuer?, SchiedsVZ 2016, 178; Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2nd ed., Mohr Siebeck 1989; Schlosser, Die Erstreckung von Brüssel I auf die Schiedsgerichtsbarkeit?, in: Wagner/Schlosser (eds), Die Vollstreckung von Schiedssprüchen, Heymanns 2007, p. 145; Schlosser, „Brüssel I“ und Schiedsgerichtsbarkeit, SchiedsVZ 2009, 129; Schreuer/Malintoppi/Reinisch/Sinclair, The ICSID Convention: A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 2nd ed., Cambridge University Press 2009; Schwab/Walter, Schiedsgerichtsbarkeit, 7th ed., C. H. Beck, Helbing &

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Other Enforcement Regimes

Lichtenhahn 2005; Seelmann-Eggebert/Clifford, Lost at sea? Anti-suit injunctions after West Tankers, SchiedsVZ 2009, 139; Skibelski/Burianski, Case Note: BGH, Dec. 16, 2010, III ZB 100/09, BB 2011, 336; Steger, Die Präklusion von Versagungsgründen bei der Vollstreckung ausländischer Schiedssprüche, Mohr Siebeck 2015; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; Steinbrück/Illmer, Brussels I and Arbitration: Declaratory Relief as an Antidote to Torpedo Actions under a reformed Brussels I Regulation, SchiedsVZ 2009, 188; UNCITRAL, UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), 2016, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/ 2016_guide_on_the_convention.pdf (last visited Apr. 6, 2019); Uzelac, Current Developments in the Field of Arbitration in Croatia, (2002) 19 J. Int. Arb. 73; van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law and Taxation 1981; van den Berg, The New York Convention 1958 and Panama Convention 1975: Redundancy or Compatibility?, (1989) 5 Arb. Int’l 214; van den Berg, Striving for uniform interpretation, in: United Nations (ed.), Enforcing Arbitration Awards under the New York Convention: Experience and Prospects, 1999, available at https://uncitral.un. org/sites/uncitral.un.org/files/media-documents/uncitral/en/nycday-e.pdf (last visited Apr. 6, 2019), p. 42; van den Berg, The German Arbitration Act 1998 and the New York Convention 1958, in: Briner/Fortier/ Berger/Bredow (eds), Law of International Business and Dispute Settlement in the 21st Century – Liber Amicorum Karl-Heinz Böckstiegel, Heymanns 2001, p. 783; van den Berg, Consolidated Commentary Cases Reported in Volumes XXII (1997) – XXVII (2002), XXVIII Y.B. Com. Arb. 562 (2003); van den Berg, Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards: Explanatory Note, in: van den Berg (ed.), 50 Years of the New York Convention, ICCA Congress Series No. 14, Kluwer Law International 2009, p. 649; van den Berg, Enforcement of Arbitral Awards Annulled in Russia, (2010) 27 J. Int. Arb. 179; van Houtte, Why Not Include Arbitration in the Brussels Jurisdiction Regulation?, (2005) 4 Arb. Int’l 509; Wais, Case Note: EuGH, May 13, 2015, C-536/13, EuZW 2015, 511; Wietzorek, Arbitration in Serbia, AAYB 2009, 357; Wietzorek, Ciments Français – a Russian Putrabali?, Young ICCA Blog, Oct. 21, 2011; Wolff, BGH: Keine Präklusion des Einwands einer fehlenden wirksamen Schiedsvereinbarung durch unterlassenes Einlegen eines fristgebundenen Rechtsbehelfs im Ursprungsland des Schiedsspruchs, LMK 2011, 318374; Zeiler/Siwy (eds), The European Convention on International Commercial Arbitration: A Commentary, Kluwer Law International 2018. Table of Contents A. Overview ............................................................................................................................ B. Spirit and Purpose ........................................................................................................... I. Article VII(1) ........................................................................................................... II. Article VII(2) ........................................................................................................... C. Drafting History ............................................................................................................... I. Article VII(1) ........................................................................................................... II. Article VII(2) ........................................................................................................... D. Compatibility Provision (Article VII(1) alt. 1).......................................................... I. Introduction ............................................................................................................. II. Multi- or Bilateral Agreements Concerning the Recognition and Enforcement of Arbitral Awards Entered into by the Contracting States. 1. Bilateral Agreements......................................................................................... a) Overview....................................................................................................... b) Choice Between the NYC and Bilateral Agreements ......................... 2. Multilateral Agreements .................................................................................. III. Provisions of the NYC Shall Not Affect the Validity of Such Agreements 1. Agreements Which Entered into Force Previously ................................... 2. Agreements Which Subsequently Entered into Force .............................. a) Lex Posterior Derogat Legi Priori ............................................................ b) Principle of Maximum Effectiveness ..................................................... E. More-Favorable-Right-Provision (Article VII(1) alt. 2).......................................... I. Introduction ............................................................................................................. II. Deprive Any Interested Party .............................................................................. 1. Interested Party: Party Seeking Enforcement ............................................. 2. Party Request...................................................................................................... III. Any Right He May Have to Avail Himself of an Arbitral Award .............. 1. Recognition and Enforcement of Arbitral Awards.................................... 2. Recognition of Arbitration Agreements.......................................................

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IV. In the Manner and to the Extent Allowed by the Law or the Treaties of the Country Where Such Award Is Sought to Be Relied Upon.............. 1. Law or Treaties .................................................................................................. a) Source and Date.......................................................................................... b) Subject Matter ............................................................................................. aa) Relating to Foreign Awards................................................................ bb) Blanket Referral to the NYC .............................................................. cc) Change from Separate Enforcement Regime to Blanket Referral c) Both Substantive Law and Conflict of Law Rules Included ............. 2. Mixing Multiple Enforcement Regimes Impermissible ............................ 3. Waiving Article VII(1) alt. 2 .......................................................................... F. Geneva Protocol on Arbitration Clauses and Geneva Convention on the Execution of Foreign Arbitral Awards (Article VII(2)) .......................................... I. Cease to Have Effect Between Contracting States on Their Becoming Bound ........................................................................................................................ II. To the Extent that Contracting States Become Bound .................................. III. Practical Relevance of the Geneva Treaties ...................................................... G. Annex: Multilateral Treaties .......................................................................................... I. European Convention of 1961............................................................................. 1. Overview and Practical Relevance................................................................. 2. Scope of Application......................................................................................... 3. Relation Between the NYC and the European Convention .................... a) Standard Scenario....................................................................................... b) European Convention Applicable Only in Recognition/ Enforcement State ...................................................................................... 4. Differences Between the NYC and the European Convention............... a) Recognition of Arbitration Agreements................................................ b) Recognition and Enforcement of Arbitral Awards............................. II. ICSID Convention of 1965 ................................................................................... III. Panama Convention of 1975................................................................................ 1. Overview and Practical Relevance................................................................. 2. Scope of Application......................................................................................... 3. Relation Between the NYC and the Panama Convention ....................... 4. Differences Between the NYC and the Panama Convention.................. a) Default Arbitration Rules ......................................................................... b) Recognition of Arbitration Agreements................................................ c) Recognition and Enforcement of Arbitral Awards............................. IV. Regulation of the European Parliament and of the Council (EU) No. 1215/2012.......................................................................................................... 1. The Former Council Regulation (EC) No. 44/2001 .................................. 2. Revision of the Council Regulation...............................................................

49 49 49 51 51 53 56 58 59 63 64 66 70 71 74 75 75 78 80 82 83 85 86 88 92 95 95 97 100 102 103 105 107 110 110 113

A. Overview Article VII addresses the relationship between the NYC and other sources of law on the recognition and enforcement of arbitration agreements and arbitral awards. 2 The first paragraph is considered to be one of the cornerstones of the NYC.1 It stipulates that the NYC shall not affect the validity of other treaties concerning the recognition and enforcement of foreign arbitral awards entered into by the Contracting States (Article VII(1) alt. 1) and mandates that the NYC does not prevent the beneficiary of an award from availing himself of that award in the manner and to the extent allowed for by the domestic law or by other treaties of the Contracting State in which the award is sought to be relied upon (Article VII(1) alt. 2). In a nutshell, 1

1 UNCITRAL Secretariat, Guide, Art. VII para. 1; Fouchard, Rev. arb. 1998, 653, 663: “Le trésor, l’idée géniale de la Convention […] c’est son article VII, al. 1;” van den Berg, XXVIII Y.B. Com. Arb. 562, 671 (2003): “Art. VII(1) goes to the heart of the meaning of the Convention.”

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Article VII(1) ensures that foreign arbitral awards are enforced and recognized to the greatest extent possible, either under the NYC or on the basis of another source of law on the recognition and enforcement of foreign awards. This applies mutatis mutandis to the recognition and enforcement of respective arbitration agreements, although this is not explicitly provided for in Article VII(1). The second paragraph deals with the relationship between the NYC and its 3 predecessors, the Geneva Protocol on Arbitration Clauses of 1923 (Õ Annex V 1) and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 (Õ Annex V 2). It stipulates that these so-called “Geneva Treaties” cease to have effect between Contracting States on their becoming bound and to the extent that they become bound by the NYC. As almost all of the Contracting States to the Geneva Treaties or their legal successors, respectively, have become parties to the NYC, the conflict-of-law rule in Article VII(2) is of little practical relevance today.

B. Spirit and Purpose I. Article VII(1) The first alternative of Article VII(1) ensures that Contracting States are not forced 4 to breach earlier treaties with non-Contracting States in relation to the recognition and enforcement of foreign awards when ratifying the NYC,2 as the validity of these earlier treaties is usually left untouched.3 Article VII(1) alt. 1 thereby simplifies the decision about whether to accede to the Convention for Contracting States, which is arguably one of the primary reasons for the NYC’s almost universal ratification. The second alternative of Article VII(1) has to be read in conjunction with Article V 5 to fully understand its purpose. While Article V removes domestic conditions for the recognition and enforcement of foreign awards that are more stringent than those of the NYC in the relationships between Contracting States, Article VII(1) alt. 2 simultaneously allows for the continued application of provisions from a Contracting State’s domestic laws and other treaties that give more favorable rights to a party seeking to enforce a foreign award than the NYC does. Article VII(1) alt. 2 thus mirrors the NYC’s purpose, namely to enable the enforcement of foreign arbitral awards to the greatest extent.4 It thereby enshrines the notion of a “more favorable right.”5 Although the NYC is often understood differently, Article VII(1) alt. 2 shows that the 6 NYC in fact does not create common standards of recognition and enforcement. The NYC limits the circumstances in which enforcement of foreign awards may be refused in Article V, but neither requires that enforcement be refused in particular circumstances nor limits the circumstances in which enforcement may be granted.6 The downside is legal uncertainty: while exclusive applicability of the NYC would have increased certainty as to which awards are enforceable and which are not, those awards 2

Cf. Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 377. Earlier treaties no longer apply only insofar as they stipulate higher prerequisites for recognition and enforcement between Contracting States, Õ para. 30. This lack of applicability in a relationship between Contracting States usually does not, however, constitute a breach of a treaty on recognition and enforcement between a Contracting and a non-Contracting State. 4 Cf. recital No. 7 of the recommendation regarding the interpretation of Article II(2) and Article VII(1) NYC, adopted at UNCITRAL’s 39th session on July 7, 2006 (A/61/17 [Õ Annex IV 2]), reprinted in Õ Annex III. 5 Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 70. 6 Paulsson, in: van den Berg (ed.), 40 Years of NYC, p. 574. 3

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which do not comply with the NYC have an uncertain status, as they may still be enforced under national laws or other treaties.7

II. Article VII(2) 7

With the introduction of the more liberal rules of recognition and enforcement of arbitration agreements and arbitral awards in the NYC, the Geneva Protocol on Arbitration Clauses of 1923 (Õ Annex V 1) and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 (Õ Annex V 2) became obsolete and needed to be vacated to the extent to which the NYC came into force. This is the purpose of Article VII(2), which is technically an exception to the provision in Article VII(1) alt. 1.8

C. Drafting History I. Article VII(1) Article VII(1) can be traced back to Article 5 of the Geneva Convention of 1927, which granted interested parties the right to avail themselves of an arbitral award in the manner and to the extent allowed by the law or treaties of the State where the award was sought to be relied upon.9 The drafters of the NYC merely added the rule that the provisions of the NYC shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of awards entered into by the Contracting States.10 9 The first draft of Article VII(1) – numbered as Article VI at the time – was barely subject to material changes thereafter. While the first draft was formulated such that the NYC shall not deprive any interested party “of the right to avail himself” of an arbitral award11 (which was also the text of the draft provision as adopted by the Conference in its 18th meeting on June 4, 1958),12 the NYC now stipulates that it shall not deprive any interested party “of any right he may have to avail himself” of an arbitral award. Belgium proposed this wording in order to clarify that the right described therein was not a right established under the NYC but a right enjoyed separately from the NYC,13 a proposal that may have been motivated by the concern that a party might otherwise cherry-pick elements from the NYC and other instruments to ensure the enforcement of the award.14 Article VII(1) received its current numbering in the text as proposed by the Drafting Committee on June 9, 1958.15 8

7 Van den Berg, NYC, p. 83; van den Berg, XXVIII Y.B. Com. Arb. 562, 671 (2003); Otto, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 450. 8 Van den Berg, NYC, pp. 82, 114. For the legislative history Õ para. 13. 9 See Pointon, in: Lévy/Derains (eds), Liber Amicorum Lazareff, pp. 499, 501 et seq. for the legislative history of Article 5 of the Geneva Convention of 1927, and UNCITRAL Secretariat, Guide, Art. VII para. 4 for the travaux préparatoires of Article VII. 10 E/2704: E/AC.42/4/Rev.1, p. 15 (Õ Annex IV 1). 11 E/2704: E/AC.42/4/Rev.1, p. 3 (Õ Annex IV 1). 12 E/CONF.26/L.50, p. 1 (Õ Annex IV 1). Cf. also E/CONF.26/L.61, p. 4 (Õ Annex IV 1). 13 E/CONF.26/SR.24, p. 3 (Õ Annex IV 1). 14 Cf. Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 445. 15 E/CONF.26.8, p. 3 (Õ Annex IV 1). Cf. also E/CONF.26/L.61, p. 3 (Õ Annex IV 1).

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Several other proposals to change the first draft were not adopted: firstly, Switzer- 10 land recommended the explicit formulation in Article VII(1) that treaties could only be relied upon insofar as they stipulate more liberal conditions governing the recognition and enforcement of international arbitral awards, but could not be relied on if they stipulate more stringent conditions.16 A comparable suggestion was made by the International Chamber of Commerce, which recommended adding the wording “[…] if this law or these treaties contain provisions more favorable to the recognition or enforcement of arbitral awards” to Article VII(1).17 However, delegates felt that the need to determine whether an instrument provided more liberal conditions would cause too much uncertainty in the application of Article VII(1).18 The Swiss proposal was therefore rejected.19 Secondly, Belgium proposed the deletion of the words “or the treaties”20 in Arti- 11 cle VII(1), as it feared that this provision could be interpreted in such a manner as to give a State the right to benefit from the favorable conditions of an agreement to which it was not a party.21 This proposal was not followed after the Secretariat explained that Article VII(1) was not intended to extend the application of bilateral or other treaties, but was only meant to clarify that the NYC would not affect any particular rights acquired under a special treaty.22 Thirdly, delegates considered the explicit inclusion of the Contracting States them- 12 selves into the text of Article VII(1). Ultimately, they concluded that it would be superfluous to expressly stipulate that the Contracting States themselves could be an “interested party” in the sense of Article VII(1) alt. 2, as this would be self-evident.23

II. Article VII(2) The first draft of the NYC did not include a provision that addressed the relationship 13 between the NYC and the Geneva Protocol on Arbitration Clauses of 1923 (Õ Annex V 1) and the Geneva Convention of 1927 (Õ Annex V 2).24 In their comments on the first draft, several of the Contracting States recommended the inclusion of an express provision in respect of this relationship into the text of the Convention.25 This provision was introduced into Article VII(2) as the drafters considered it to be an exception to the provision of Article VII(1) alt. 1.26 This new draft Article VII(2) initially merely stated that the “Geneva Convention on 14 Execution of Foreign Arbitral Awards of 1927 will not be valid between the Contracting Parties to this Convention” and was adopted by the Conference in this form at its 18th meeting on June 4, 1958.27 As the Geneva Protocol deals with arbitration 16

E/2822, Annex I, p. 28 (Õ Annex IV 1). E/2822, Annex II, p. 24 (Õ Annex IV 1); likewise and at the same place the Society of Comparative Legislation. As these were mere suggestions and not proposals, there were no votes. 18 Cf. E/CONF.26/SR.18, p. 5 (Õ Annex IV 1). 19 E/CONF.26/SR.18, p. 7 (Õ Annex IV 1). 20 E/CONF.26/L.44 (Õ Annex IV 1). 21 E/CONF.26/SR.19, p. 2 (Õ Annex IV 1). These concerns were shared by the Netherlands, Norway and the United Kingdom, E/CONF.26/SR.18, pp. 3 et seq. (Õ Annex IV 1); E/CONF.26/SR.19, p. 2 (Õ Annex IV 1). 22 E/CONF.26/SR.24, p. 3 (Õ Annex IV 1). 23 E/2704: E/AC.42/4/Rev.1, p. 15 (Õ Annex IV 1). 24 Cf. E/2704: E/AC.42/4/Rev.1, p. 3 (Õ Annex IV 1). 25 E/2822, Annex I, pp. 27, 28 (Õ Annex IV 1). Cf. also E/CONF.26/4, p. 29 (Õ Annex IV 1). 26 E/CONF.26/SR.18, p. 6 (Õ Annex IV 1). 27 E/CONF.26/L.50, p. 1 (Õ Annex IV 1). 17

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New York Convention

agreements – which the first drafts of the NYC did not – the delegates felt no need to exclude the applicability of the former.28 It was only on June 10, 1958 (and thus at the very end of the Conference) that the current wording was agreed upon,29 shortly after the NYC’s scope of application had been extended to the recognition of arbitration agreements.30 Article VII(2) received its current numbering in the text as proposed by the Drafting Committee on June 9, 1958.31 15 The Drafting Committee suggested in its drafts of June 6 and 8, 1958 that the “Geneva Convention on Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound by this Convention”.32 The addition “and to the extent of their becoming bound” was introduced on June 10, 1958 in order to accommodate Contracting States that would not become bound by the NYC in respect of all their territories simultaneously.33 16 The replacement mandated by Article VII(2) refers to the entire Geneva Convention and Geneva Protocol, respectively:34 the Italian proposal to insert the phrase “in so far as they are not incompatible with this Convention”35 into Article VII(2) was rejected.36

D. Compatibility Provision (Article VII(1) alt. 1) I. Introduction Article VII(1) alt. 1 is often referred to as the “compatibility provision” of the NYC37 and broadly stipulates that the NYC shall not affect the validity of earlier (Õ paras 28 et seq.) multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States. Article VII(1) alt. 1 is technically a precursor to Article VII(1) alt. 2,38 as it stipulates a prerequisite for the latter, namely that the validity of earlier treaties, which (in addition to later treaties, Õ para. 50) may be the basis for the rights of which a party may avail himself, is not affected by the NYC. 18 Article VII(1) alt. 1 deviates fundamentally from the provisions in international treaties that ordinarily govern conflicts of law. Usually the most recent or the most specific treaty prevails.39 Even where this rule does not apply and the treaty instead specifies that it shall not to be considered incompatible with an earlier or later treaty, the provisions of the other treaty usually prevail.40 The NYC establishes a different regime allowing for the application of the treaty more favorable to the enforcement of the award. The principles of lex posterior derogat legi priori and lex specialis derogat legi generali are thus substituted in respect of earlier treaties by what Gaillard appropriately 17

28

Cf. E/CONF.26/SR.18, p. 2 (Õ Annex IV 1). E/CONF.26/SR.24, p. 4 (Õ Annex IV 1). 30 Õ Art. II paras 6 et seq. for this aspect of the NYC’s legislative history. 31 E/CONF.26.8, p. 3 (Õ Annex IV 1). Cf. also E/CONF.26/L.61, p. 3 (Õ Annex IV 1). 32 E/CONF.26/L.61, p. 4 (Õ Annex IV 1) and E/CONF.26/8, p. 4 (Õ Annex IV 1). 33 E/CONF.26/SR.24, p. 4 (Õ Annex IV 1). Cf. Article X NYC. 34 UNCITRAL Secretariat, Guide, Art. VII para. 57. 35 E/CONF.26/SR.18, p. 3 (Õ Annex IV 1). 36 E/CONF.26/SR.18, p. 7 (Õ Annex IV 1). 37 UNCITRAL Secretariat, Guide, Art. VII para. 4. This notion originates from van den Berg, NYC, p. 81. 38 UNCITRAL Secretariat, Guide, Art. VII para. 5; Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 70. 39 Cf. Article 30(3) of the Vienna Convention on the Law of Treaties of May 23, 1969. 40 Cf. Article 30(2) of the Vienna Convention on the Law of Treaties of May 23, 1969. 29

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calls the “principle of maximum effectiveness:”41 Article VII(1) alt. 1 does not establish a hierarchy in relation to other treaties but instead preserves all rights regarding the enforcement of foreign awards available under all applicable instruments. Article VII(1) alt. 1 thus embodies the NYC’s aim to provide for the enforcement of arbitral awards whenever possible.42 Although the wording of the compatibility provision only refers to multi- or bilateral 19 agreements concerning the recognition and enforcement of “arbitral awards,” it applies mutatis mutandis to agreements concerning the recognition of arbitration agreements for the reasons set out in more detail in Õ paras 45 et seq.: as the provision on arbitration agreements was inserted into the NYC at a very late stage of the New York Conference of 1958, the omission of arbitration agreements from the wording of Article VII(1) is generally considered unintentional. While this omission has become of significant practical relevance for the more-favorable-right provision in Article VII(1) alt. 2 (where it is accordingly discussed in detail, Õ paras 45 et seq.), it does not seem to have had any practical impact on the application of the compatibility provision. This could be explained by the fact that there are only a few multi- or bilateral agreements that exclusively address arbitral agreements; most multi- or bilateral agreements at least address arbitral awards as well and therefore undoubtedly fall within the scope of the compatibility provision in Article VII(1) alt. 1.

II. Multi- or Bilateral Agreements Concerning the Recognition and Enforcement of Arbitral Awards Entered into by the Contracting States 1. Bilateral Agreements a) Overview The “golden age”43 of bilateral agreements – Article VII(1) alt. 1 uses “agreements” as 20 a synonym for “treaties” – on the recognition and enforcement of judgments and arbitral awards dates back to the second half of the 19th and the first half of the 20th century, when the increase in international trade made those treaties necessary. There are only a few bilateral agreements that are solely concerned with the recognition and enforcement of arbitral awards and agreements.44 However, as Article VII(1) alt. 1 is not restricted to agreements that deal exclusively with the recognition and enforcement of arbitral awards (and agreements, Õ para. 19), its scope of application also encompasses bilateral agreements that contain inter alia provisions on these issues.45 Most of these bilateral agreements date from before the entry into force of the NYC in the respective Contracting States.46 Examples of bilateral agreements that have

41 Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 71. Similar van den Berg, NYC, p. 91: Article VII can be considered as “a reflection of the principle of maximum efficacy.” This notion has found its way into the case law of the Contracting States, cf. Netherlands: HR, XLIII Y.B. Com. Arb. 529, 534 (2018); Spain: Tribunal Superior de Justicia de la Comunidad Valenciana, XXXIX Y.B. Com. Arb. 501, 504 (2014). Cf. also UNCITRAL Secretariat, Guide, Art. VII para. 17; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. VII para. 3; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 377; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 446. 42 Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 71. 43 This notion goes back to Matscher, in: van den Berg (ed.), 40 Years of NYC, p. 452. 44 Van den Berg, NYC, p. 105. 45 A list of bilateral treaties entered into by European countries until 1957 is contained in UN publication 1957.II.E./Mim.18, cf. van den Berg, XXVIII Y.B. Com. Arb. 562, 686 (2003). 46 Van den Berg, XXVIII Y.B. Com. Arb. 562, 686 (2003).

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been invoked via Article VII(1) alt. 1 include bilateral conventions on the recognition and enforcement of judgments and arbitral awards47 and on trade and navigation.48 21 Bilateral agreements regarding the recognition and enforcement of arbitral awards may be divided into four categories:49 (1) Bilateral agreements on the recognition and enforcement of foreign judgments which expressly preclude arbitral awards from their scope of application; they are of no relevance for Article VII(1), but also of little practical importance as there are only a few such agreements. (2) Bilateral agreements on the recognition and enforcement of foreign judgments which make no reference to, but also do not expressly preclude arbitral awards; those agreements are usually interpreted as not being applicable to the enforcement of arbitral awards and are therefore likewise of no relevance for Article VII(1). (3) Bilateral agreements which expressly refer to the recognition and enforcement of arbitral awards; these agreements contain either special provisions on the recognition and enforcement of arbitral awards equating arbitral awards with court judgments, or refer to multilateral conventions on arbitration. This category of agreements is of the greatest interest in regard to application via Article VII(1). (4) Bilateral agreements that specifically deal with the recognition and enforcement of arbitral awards; again, there are only a few such agreements. 22 If a bilateral agreement contains a compatibility provision of its own, according to which the bilateral agreement shall not affect treaties which are in force or which will be in force between the two Contracting States, this compatibility provision does not hinder the application of the bilateral agreement. In this case Article VII(1) alt. 1 neutralizes the compatibility provision in the bilateral agreement and Article VII(1) alt. 2 permits the application of the bilateral treaty.50 b) Choice Between the NYC and Bilateral Agreements As the conditions for recognition and enforcement under bilateral agreements may sometimes be less and sometimes be more favorable than the NYC, the choice between the NYC and the bilateral agreement must be made carefully in each individual case. The following Õ paras 24 and 25 outline typical distinctions between the NYC and bilateral agreements regarding the conditions for recognition and enforcement.51 24 Bilateral agreements may be more favorable where they, e.g., do not limit their applicability to commercial matters (thereby deviating from Article I(3)), stipulate less 23

47 Belgium: Cass., V Y.B. Com. Arb. 257 (1980) regarding the Belgian-Swiss Convention of 1959; Germany: BGH, NJW 1978, 1744 = IV Y.B. Com. Arb. 264 (1979) regarding the German-Belgian Treaty of 1958 and NJW-RR 1991, 757 = RIW 1991, 420 = XVII Y.B. Com. Arb. 513 (1992) regarding the German-Dutch Convention of 1962; Spain: TS, XVI Y.B. Com. Arb. 601, 602 (1991) regarding the Spanish-Swiss Treaty of 1896, TS, XXVII Y.B. Com. Arb. 533, 534 (2002) and TS, XXXI Y.B. Com. Arb. 846, 848 (2006) regarding the French-Spanish Treaty of 1969; Switzerland: BG, BGE 110 Ib 191 = XI Y.B. Com. Arb. 536, 537 (1986) regarding the Swiss-French Treaty of 1896, and Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819 (2004) regarding the Swiss-Italian Treaty of 1933 as well as HG Zürich, XVII Y.B. Com. Arb. 584, 585 (1992) regarding the Swiss-French Treaty of 1869; Austria: OGH, XXX Y.B. Com. Arb. 421 (2005) regarding the Austrian-Yugoslav Treaty of 1960; Netherlands: Rechtbank Alkmaar, VIII Y.B. Com. Arb. 398, 402 (1983) regarding the Belgian-Dutch Treaty of 1925. 48 Germany: OLG Frankfurt, RIW 1989, 911 = XVI Y.B. Com. Arb. 546 (1991); BayObLG, XXVII Y.B. Com. Arb. 451, 452 (2002); KG, XXXII Y.B. Com. Arb. 309, 311 (2007); BGH, SchiedsVZ 2006, 161 = XXXII Y.B. Com. Arb. 328, 337 (2007), all regarding the German-Soviet Agreement on General Matters of Trade and Navigation of 1958. See also Muranov, Kluwer Arbitration Blog, Aug. 26, 2010, regarding the Trade and Payments Agreement between the USSR and Sweden of 1940, which continues to operate in Russia. 49 See for these categories Matscher, in: van den Berg (ed.), 40 Years of NYC, pp. 452 et seq.; van den Berg, XXVIII Y.B. Com. Arb. 562, 686 (2003). 50 Van den Berg, NYC, p. 111. 51 See van den Berg, NYC, pp. 105 et seq. and XXVIII Y.B. Com. Arb. 562, 688 et seq. (2003) for a more detailed analysis.

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demanding form requirements for the arbitration agreement than Article II(2) or contain less comprehensive lists for refusing recognition and enforcement than Article V. An example for the latter category is an agreement mandating that where leave for enforcement was obtained in the country of origin, enforcement can be refused in the other Contracting State only on the ground that the award violates the public policy of that country. Bilateral agreements may be less favorable where they, e.g., require that the parties be 25 subject to the jurisdiction of either Contracting State (which is not a requirement under the NYC), require that the award be “enforceable” in the country where it has been made and thus render a double-exequatur necessary (deviating from Article V(1)(e)) or require that the party requesting recognition and enforcement must prove the conditions for enforcement (deviating from Articles IV, V).

2. Multilateral Agreements Since Article VII(1) alt. 1 is not restricted to agreements that deal exclusively with the 26 recognition and enforcement of arbitral awards (and agreements, Õ para. 19), its scope of application encompasses multilateral agreements that contain – amongst other rules – provisions on arbitration awards (Õ para. 20). Of those multilateral agreements that deal exclusively (or at least significantly) with 27 the recognition and enforcement of arbitral awards, the European Convention of 1961, the ICSID Convention of 1965 and the Panama Convention of 1975 are discussed in more detail below (Õ paras 74 et seq.). Other multilateral agreements of (differing) practical significance are, e.g.,52 the Montevideo Convention of 1979,53 the Riyadh Agreement of 1983,54 the Amman Arab Convention of 1987,55 the NAFTA of 1992,56 the OHADA Treaty of 1993 and the Uniform Act on Arbitration of 1999,57 as well as the MERCOSUR Agreement on International Commercial Arbitration of 1998.58

III. Provisions of the NYC Shall Not Affect the Validity of Such Agreements 1. Agreements Which Entered into Force Previously In regard to agreements which entered into force prior to the NYC in a country 28 where recognition and enforcement is sought, Article VII(1) alt. 1 substitutes the 52 Cf. for further references Giardina, in: van den Berg (ed.), 40 Years of NYC, pp. 440, 441; Gaillard/ Savage, Fouchard Gaillard Goldman, paras 273 et seq.; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 446; Lew/Mistelis/Kröll, Comparative Arbitration, paras 2-22 et seq. 53 Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards, 1439 U.N.T.S. 91 et seq. (1986). Also Õ Art. VII para. 108 and Kleinheisterkamp, Arbitration in Latin America, pp. 29 et seq. for the Montevideo Convention, as well as Colombia: Corte Suprema de Justicia, XXXIX Y.B. Com. Arb. 384 (2014) for an example from the practice of the courts of the Contracting States. 54 Riyadh Arab Agreement for Judicial Cooperation, UNHCR (ed.), Collection of International Instruments and Legal Texts Concerning Refugees and Others of Concern to UNHCR, Vol. 3, pp. 1133 et seq. (2007). 55 Convention Arabe sur l’Arbitrage Commercial, reprinted in Rev. arb. 1989, 743 et seq. 56 North American Free Trade Agreement, available under http://www.nafta-sec-alena.org (last visited Apr. 12, 2019). 57 Treaty on the Harmonization of Business Law in Africa, Journal Officiel Ohada No. 4 of Nov. 1, 1997, pp. 1 et seq., reprinted in Rev. arb. 1999, 709 et seq.; Acte uniforme relatif au droit de l’arbitrage, reprinted in Rev. arb. 1999, 722 et seq. 58 Accord du MERCOSUR sur l’arbitrage commercial international, reprinted in Rev. arb. 2004, 743 et seq. See Kleinheisterkamp, Arbitration in Latin America, pp. 33 et seq. for an introduction.

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Article VII 29–31

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principles of lex posterior derogat legi priori and lex specialis derogat legi generali with the so-called “principle of maximum effectiveness” (Õ para. 18). Since Article VII(1) alt. 1 does not establish a hierarchy in respect of other treaties but instead preserves all rights regarding the enforcement of awards available under all applicable instruments, it is not a provision within the meaning of Article 30(2) of the Vienna Convention on the Law of Treaties,59 which stipulates that when a treaty specifies that “it is subject to, or that it is not to be considered as incompatible with, an earlier treaty, the provisions of that other treaty prevail.” As Article VII(1) alt. 1 does not mandate that it is not to be considered as incompatible with an earlier or later treaty, but rather provides for enforcement of arbitral awards whenever possible – be it under the NYC or under the other treaty – it does not fall within the scope of application of Article 30(2) of the Vienna Convention. As a result, the provisions in the other treaty do not prevail, but are rather applicable alongside those of the NYC. 29 Article VII(1) alt. 1, however, does not oblige Contracting States to uphold earlier treaties. The purpose of this provision is merely to avoid forcing them to breach earlier treaties with non-Contracting States on the recognition and enforcement of foreign awards when ratifying the NYC (Õ para. 4) and to thereby allow Contracting States to uphold different recognition and enforcement regimes for the sake of liberalizing the recognition and enforcement of foreign arbitral awards. Article VII(1) alt. 1 thus does not prevent Contracting States from vacating earlier treaties. 30 Despite its broad formulation that the provisions of the NYC shall not affect the validity of earlier agreements, it does not follow from Article VII(1) alt. 1 that, in a relationship between Contracting States (where one is the country of recognition and enforcement and the other is the country of origin), where there is a conflict between provisions of an earlier treaty relating to the recognition and enforcement of foreign arbitral awards and the NYC – i.e. where those provisions stipulate more stringent conditions for the recognition of arbitration agreements and arbitral awards – the provisions of the earlier treaty continue to apply. This result would be incompatible with the purpose of Article VII(1). Instead, the principle of lex posterior derogat legi priori mandates that the NYC prevails in this regard,60 just like Article VII(2) does for the Geneva Treaties.

2. Agreements Which Subsequently Entered into Force a) Lex Posterior Derogat Legi Priori 31 Article VII(1) alt. 1 is not applicable in respect of agreements which entered into force in the country where recognition and enforcement is sought subsequently to the NYC. It stipulates that the NYC’s provisions shall not affect the validity of other agreements, but does not address the issue of whether later agreements affect the validity of the NYC’s provisions.61 59 Van den Berg, NYC, p. 92. See also van den Berg, XXVIII Y.B. Com. Arb. 562, 677 (2003): the Vienna Convention “appears not to offer decisive solutions for the relationship between the New York Convention and other treaties.” 60 US: Copal Co. v. Fotochrome, Inc., 517 F.2d 512 (2d Cir. 1975) = I Y.B. Com. Arb. 202 (1976); Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 512; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 137. Dissenting: Netherlands: Voorzieningenrechter, Rechtbank Den Haag, V Y.B. Com. Arb. 269 (1980); Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.515: “unless it is evident form the earlier convention that the contracting parties intended to prevent recognition and enforcement of such awards for all future times.” 61 Cf. Spain: TS, XVI Y.B. Com. Arb. 601, 602 (1991): “Article VII(1) […] privileges agreements already existing at the time of adoption of the New York Convention” (obiter dictum).

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In light of this it does not come as a surprise that commentators – there seems to be no 32 case law on this issue62 – usually apply the principle of lex posterior derogat legi priori as embodied in Article 30(3) and (4) of the Vienna Convention on the Law of Treaties to treaties which entered into force after the NYC in the relationship between the State where the award was made and the State where recognition and enforcement is sought, unless the new treaty itself contains a compatibility provision similar to Article VII(1) alt. 1.63 Most bilateral conventions entered into after the NYC provide specific provisions in this regard,64 either by containing a similar wording or by directly referring to the NYC for the recognition and enforcement of arbitral agreements and awards. b) Principle of Maximum Effectiveness If the later agreement is less favorable than the NYC and does not contain a 33 compatibility provision, the principle of lex posterior derogat legi priori works to the detriment of the party seeking recognition and enforcement. As a solution for these cases, one may resort to the principle of maximum effectiveness where appropriate.65 According to this principle, neither the more recent nor the more specialized treaty will be applied, but rather the treaty that is more favorable to the recognition and enforcement of the arbitral award in the given case. This principle of maximum effectiveness is certainly in line with the NYC’s inherent 34 pro-enforcement policy.66 However, it is not a conflict of law rule in the technical sense – and therefore does not figure among the conflict of law rules stipulated in the Vienna Convention on the Law of Treaties – but rather an element of treaty interpretation. It is rooted in Article 31(1) of the Vienna Convention, which calls for an interpretation of the treaty in light of its object and purpose. Given the pro-arbitration policy that prevails in most Contracting States (Õ Art. V para. 5), it is usually not the States’ intent to restrict the NYC’s minimum standards for enforcement with subsequent treaties.67 However, if it were unambiguous that all the parties to the subsequent treaty intended to impose more stringent conditions on the recognition and enforcement of arbitral awards, this subsequent treaty would supersede the NYC in their relationships.68 This nevertheless seems to have been of rather little practical relevance to date. 62 According to van den Berg, XXVIII Y.B. Com. Arb. 562, 691 (2003), no court had dealt with later bilateral agreements at that time. Õ n. 61 for an obiter dictum. 63 Van den Berg, XXVIII Y.B. Com. Arb. 562, 691 (2003); Schwab/Walter, Schiedsgerichtsbarkeit, ch. 42 para. 25; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 510, 511; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 134; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 448. 64 Cf. e.g. Italy: Cass., XXII Y.B. Com. Arb. 715, 717 (1997) regarding Article 20 of the ItalianRomanian Treaty; Spain: TS, XXVI Y.B. Com. Arb. 854, 855 (2001); TS, XXVI Y.B. Com. Arb. 858, 859 (2001); TS, XXVII Y.B. Com. Arb. 533, 534 (2002); TS, XXXI Y.B. Com. Arb. 846, 848 (2006) regarding Article XIX of the French-Spanish Treaty of 1969; France: Cass., Rev. arb. 2000, 648 = XXVI Y.B. Com. Arb. 767, 770 (2001) regarding Article 54 of the French-Senegalese Treaty of 1974; Germany: BGH, IPRax 2001, 458 (with note Krapfl) = NJW 2000, 3650 = XXVI Y.B. Com. Arb. 771, 772 (2001) regarding Article 11(4) of the German-Polish Treaty of 1989; Japan: Okayama District Court, XXII Y.B. Com. Arb. 744, 746 (1997) regarding the Chinese-Japanese Trade Agreement of 1974. 65 Cf. van den Berg, NYC, p. 113; van den Berg, XXVIII Y.B. Com. Arb. 562, 686, 691 (2003); Gaillard/ Savage, Fouchard Gaillard Goldman, para. 218; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 446. 66 This pro-enforcement policy (Õ Art. V para. 5) is well illustrated by the restricted number of grounds for refusing recognition or enforcement in Article V, cf. Hanotiau/Caprasse, (2008) 25 J. Int. Arb. 721, 722. 67 Cf. Switzerland: BG, BGE 110 Ib 191 = XI Y.B. Com. Arb. 536, 537 (1986): “This rule [of maximum effectiveness] is in conformity with the aim of bilateral or multilateral conventions in this matter, which is to facilitate, as far as possible, recognition and enforcement of arbitral awards.” 68 Likewise Schlosser, Recht der Schiedsgerichtsbarkeit, para. 131 with n. 1; Kleinheisterkamp, Arbitration in Latin America, p. 28 with n. 138.

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E. More-Favorable-Right-Provision (Article VII(1) alt. 2) I. Introduction Article VII(1) alt. 2, often referred to as the “more-favorable-right provision,”69 confirms that the NYC does not touch upon the rights a party may have to avail himself of a foreign arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. Article VII(1) alt. 2 is merely an opt-out clause and does not oblige Contracting States to actually provide more liberal national legislation on the recognition and enforcement of foreign arbitral awards.70 36 While Article VII(1) alt. 2 has not played a large role in the past71 (presumably as domestic laws on recognition and enforcement of foreign arbitral awards were often more cumbersome than the NYC),72 it has been rediscovered during recent years as national legal systems have often lowered the requirements for recognition and enforcement of foreign arbitral awards in the course of liberalizing their arbitration laws.73 In contrast, cases where enforcement is sought under more favorable provisions of other treaties still seem to be rare in practice.74 35

II. Deprive Any Interested Party 1. Interested Party: Party Seeking Enforcement 37

Article VII(1) alt. 2 addresses only the party seeking enforcement. While the expression “any interested party” suggests that both the party seeking enforcement and the party against whom enforcement is sought may rely on the more-favorable-right provision, Article VII(1) alt. 2 is generally interpreted as to relate only to the former.75 If the party against whom enforcement is sought were allowed to invoke domestic law more favorable to it, the award could not be enforced, even though it would be enforceable under the NYC – this result would be inconsistent with the purpose of Article VII(1) 69 UNCITRAL Secretariat, Guide, Art. VII para. 4; ICCA, Guide, p. 26. This notion originates from van den Berg, NYC, p. 81. It has found its way into commentaries and case law, cf. for the latter example e.g. Switzerland: Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 823 (2004); Luxembourg: CA, XXIVa Y.B. Com. Arb. 714, 722 (1999); Germany: OLG Rostock, BB 2000, Beil. 37, pp. 20, 21 = XXV Y.B. Com. Arb. 717, 718 (2000) and OLG München, XXXIII Y.B. Com. Arb. 517, 528 (2008). 70 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.532. 71 Although the possible practical importance of Article VII(1) alt. 2 was stressed shortly after the Convention was agreed upon, cf. Neuteufel, ÖJZ 1967, 231. 72 Van den Berg, NYC, pp. 83, 88. 73 Cf. van den Berg, in: United Nations (ed.), Experience and Prospects, p. 42; Gaillard/Savage, Fouchard Gaillard Goldman, para. 270. See also the Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656/Add.1, pp. 7 et seq. 74 Cf. for Germany Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 182. Õ n. 48 for examples from Germany, Russia and Sweden. 75 UNCITRAL Secretariat, Guide, Art. VII para. 7; van den Berg, NYC, p. 84; van den Berg, XXVIII Y.B. Com. Arb. 562, 673 (2003); Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-36; Poudret/Besson, Comparative Arbitration, para. 894; Bredow, in: Geimer/Schütze (eds), Internationaler Rechtsverkehr, C I 3 b, Art. 7 (p. 38); Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 74; Rivkin, in: van den Berg (ed.), 40 Years of NYC, pp. 528, 531; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 452; Switzerland: BG, BGE 110 Ib 191 and Bezirksgericht Zürich, XXIX Y.B. Com. Arb. 819, 823 (2004).

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alt. 2. This restrictive interpretation is confirmed by the wording of the provision, which allows the interested party “to avail himself of an arbitral award:” the party resisting enforcement is not availing himself of an award, but is rather trying to prevent the other party from availing himself.76 This restriction of “any interested party” to the party seeking enforcement does not, 38 however, mean that the more-favorable-right provision may only be invoked by the party that has won on the merits of the case. If, for example, claimant succeeds on the merits, but respondent is granted an award on cost for whatever reason, respondent may rely on the more-favorable-right provision to enforce the award on costs. The legislative history shows that an “interested party” within the meaning of 39 Article VII(1) may also be a Contracting State in arbitration proceedings to which it is party: the Committee considered explicitly including the Contracting States themselves into the text of Article VII(1), but ultimately concluded that this would be superfluous (Õ para. 12).77

2. Party Request Although Article VII(1) alt. 2 stipulates that the NYC does not prevent any interested 40 party from “availing” himself of the arbitral award, this provision should not be misunderstood to mean that it requires the party to explicitly request recognition on the basis of an alternative enforcement regime. Article VII(1) alt. 2 rather does not address the issue of whether the interested party is obliged to tell the court upon which precise grounds he is requesting enforcement. Instead, the procedural law of the lex fori governs this question according to Article III cl. 1.78 Accordingly, in those legal systems that follow the principle iura novit curia (there 41 does not seem to be published case law from Contracting States that follow different regimes) the prevailing opinion is that the court has to apply Article VII(1) alt. 2 ex officio.79 The Swiss Bundesgericht deviated from this majority view,80 although it did so without discussion.

III. Any Right He May Have to Avail Himself of an Arbitral Award 1. Recognition and Enforcement of Arbitral Awards Article VII(1) alt. 2 upholds “any right” the interested party may have to avail 42 himself of an arbitral award. This right may relate to both the procedural prerequisites

76

Van den Berg, NYC, p. 85. UNCITRAL Secretariat, Guide, Art. VII(1) para. 9. 78 Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 450. 79 Germany: BGH, SchiedsVZ 2006, 161 = XXXII Y.B. Com. Arb. 328, 337 (2007); BGH, SchiedsVZ 2003, 281, 282 = XXIX Y.B. Com. Arb. 767, 769 (2004) with notes Kröll, SchiedsVZ 2003, 282, Kröll/ Wenzel, 19(4) Mealey’s Int’l Arb. Rep. 27 (2004), Mallmann, EWiR 2003, 1163 and Gebhardt, IDR 2004, 42; see France: Cass., Rev. arb. 1985, 432 with note Goldman = XI Y.B. Com. Arb. 484, 489 (1986), and CA Paris, XXII Y.B. Com. Arb. 682, 685 (1997); US: Chromalloy Aeroservs., Inc. v. Arab Republic of Egypt, 939 F. Supp. 907 (D.D.C. 1996) = XXII Y.B. Com. Arb. 1001, 1012 (1997); UNCITRAL Secretariat, Guide, Art. VII(1) para. 12; Kröll, in: Böckstiegel/Kröll/Nacimiento (eds), Arbitration in Germany, sect. 1061 para. 184; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. VII para. 4; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 paras 384, 512; Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 78; van den Berg, XXVIII Y.B. Com. Arb. 562, 673 (2003). 80 Switzerland: BG, BGE 111 Ib 253 = XII Y.B. Com. Arb. 511, 513 (1987). 77

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for recognition and enforcement (e.g. more liberal regimes than Article IV81) as well as to the substantive requirements (e.g. more liberal regimes than Article V82).83 43 Probably the most prominent example of a more liberal enforcement regime is the previous version of Article 1502 of the CPC (Õ Art. V para. 78), which deviated from Article V to the extent that it did not provide for the case for refusal stipulated in Article V(1)(e). As Article 1502 CPC allowed the refusal of recognition or enforcement of an award rendered abroad only in the cases mentioned therein, French courts held that in France recognition and enforcement could not be refused because the arbitral award had been set aside at the place of arbitration; the application of Article V(1)(e) would therefore be precluded by Article 1502 CPC via Article VII(1) alt. 2.84 This should still be true under the new French regime for recognition and enforcement of arbitral awards made abroad, contained in Articles 1525(4), 1520 CPC.85 Similar case law has been rendered in the US86 (but see the Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration),87 the Netherlands88 and Luxembourg89 on the basis of their respective national laws on the recognition and enforcement of arbitral awards.

81 Cf. Germany: BGH, SchiedsVZ 2003, 281 = XXIX Y.B. Com. Arb. 767 (2004) with notes Kröll, SchiedsVZ 2003, 282, Kröll/Wenzel, 19(4) Mealey’s Int’l Arb. Rep. 27 (2004), Mallmann, EWiR 2003, 1163 and Gebhardt, IDR 2004, 42. 82 Cf. Switzerland: BG, BGE 110 Ib 191 = XI Y.B. Com. Arb. 536, 538 (1986); Kröll, ZZP 117 (2004), 453, 457. 83 ICCA, Guide, p. 26; UNCITRAL Secretariat, Guide, Art. VII(1) para. 1. 84 See France: Cass., XXXII Y.B. Com. Arb. 299, 302 (2007), with note Gaillard, Rev. arb. 2007, 517; Cass., Rev. arb. 2000, 648 = XXVI Y.B. Com. Arb. 767 (2001); Cass., Rev. arb. 1985, 432 with note Goldman = XI Y.B. Com. Arb. 484 (1986); Cass., Rev. arb. 1993, 258 = XIX Y.B. Com. Arb. 662 (1994); Cass., Rev. arb. 1994, 327 = XX Y.B. Com. Arb. 663 (1995); CA Paris, XXII Y.B. Com. Arb. 691 (1997); see Gaillard, in: van den Berg (ed.), 40 Years of NYC, p. 505; Rivkin, in: van den Berg (ed.), 40 Years of NYC, p. 528; Sachs, in: van den Berg (ed.), 40 Years of NYC, p. 552; Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 76 et seq.; Fouchard, Rev. arb. 1997, 329; Poudret, Rev. arb. 1998, 7; Poudret/Besson, Comparative Arbitration, paras 926 et seq.; Born, International Commercial Arbitration, pp. 3390, 3624 et seq.; Freyer, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 757, 767 et seq. for further references. 85 Cf. Ministère de la Justice et des Libertés, Rapport au Premier ministre relatif au décret n° 2011–48 du 13 janvier 2011 portant réforme de l’arbitrage, JO, Jan. 14, 2011, texte 8 sur 177: «Les dispositions de l’article 1525 ne modifient pas l’état du droit antérieur.» Cf. Kühner, SchiedsVZ 2011, 125 et seq. for an overview. 86 US: Chromalloy Aeroservs., Inc. v. Arab Republic of Egypt, 939 F. Supp. 907 (D.D.C. 1996) = XXII Y.B. Com. Arb. 1001 (1997); however, not all courts followed this case law, cf. US: Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A., 2003 U.S. Dist. LEXIS 9868 (S.D. Fla. 2003) = XXIX Y.B. Com. Arb. 882, 889 (2004); TermoRio S.A. E.S.P. v. Electrificadora del Atlantico S.A. E.S.P., 2006 WL 695832 (D.D.C. 2006) = XXXI Y.B. Com. Arb. 1457 (2006), affirmed by TermoRio S.A. E.S.P. v. Electranta S.P., 2007 U.S. App. LEXIS 12201 (D.C. Cir. 2007) = XXXIII Y.B. Com. Arb. 955 (2008); see Born, International Commercial Arbitration, pp. 3629 et seq., Davis, 37 Tex. Int’l L.J. 43 (2002), and Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 76 et seq. for further references. 87 According to The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.3 Comment c (p. 527), Chapter One of the FAA, including its § 10, is not available for recognition or enforcement of foreign awards, deviating from US: Chromalloy Aeroservs., Inc. v. Arab Republic of Egypt, 939 F. Supp. 907 (D.D.C. 1996) = XXII Y.B. Com. Arb. 1001 (1997), cited in the aforementioned note and following US: Baker Marine Ltd. v. Chevron Ltd., 191 F.3d 194 (2d Cir. 1999) = XXIVa Y.B. Com. Arb. 909 (1999). The Restatement thus rejects Chromalloy Aeroservices’ view that Article VII(1) alt. 1 in conjunction with § 10 FAA justifies giving effect to an award that has been set aside at the seat of arbitration, cf. The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.3 Comment d (p. 528 et seq.); cf. also Park, 93 AJIL 805 (1999). 88 Netherlands: Voorzieningenrechter, Rechtbank Amsterdam, XXXVII Y.B. Com. Arb. 277 (2012). 89 Luxembourg: CA, XXIVa Y.B. Com. Arb. 714, 722 et seq. (1999), although obiter dictum.

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Another example of a more liberal regime for enforcing foreign awards made 44 available via Article VII(1) alt. 2 is a national law that stipulates less demanding formal requirements for the recognition and enforcement of foreign awards than Article IV does. According to section 1064(1), (3) of the ZPO, for example, it is sufficient if the award or a certified copy thereof is supplied, and the counsel authorized to represent the party in the judicial proceedings may even make the certification himself.90 Other examples for such national laws are section 614 öZPO and Article 1076 WBR.91

2. Recognition of Arbitration Agreements While Article VII(1) alt. 2 seemingly concerns only rights in regard to the recognition 45 and enforcement of arbitral awards, it applies likewise to rights in regard to the recognition of arbitration agreements. It is almost undisputed in most Contracting States that although the wording of Article VII(1) only refers to the enforcement of arbitral awards, this provision applies mutatis mutandis to the enforcement of arbitration agreements.92 As the provisions on arbitration agreements were inserted into the NYC at a very late stage of the New York Conference of 1958 (Õ Art. II paras 6 et seq.), the omission of arbitration agreements from Article VII(1) is generally considered unintentional;93 this applies both to the first and second alternative of Article VII(1) (Õ para. 19 for the former). The legislative materials confirm this interpretation. When the Geneva Protocol on 46 Arbitration Clauses of 1923 was included into Article VII(2),94 the drafters neither decided against incorporating a reference to the “arbitration agreement” into Article VII(1) nor even discussed this issue; they simply seem not to have realized that there was a need to change Article VII(1) as well. Furthermore, applying Article VII(1) to arbitral awards but not to arbitration agreements would lead to a dichotomy that the drafters could not have intended, namely that an arbitration agreement which does not comply with the formal 90 See for the application of sect. 1064(1) and (3) ZPO via Article VII(1) alt. 2 NYC Germany: BGH, SchiedsVZ 2003, 281 = XXIX Y.B. Com. Arb. 767 (2004) with Kröll, SchiedsVZ 2003, 282, Kröll/Wenzel, 19(4) Mealey’s Int’l Arb. Rep. 27 (2004), Mallmann, EWiR 2003, 1163 and Gebhardt, IDR 2004, 42; OLG Köln, SchiedsVZ 2005, 163 = XXX Y.B. Com. Arb. 557, 559 (2005); OLG München, SchiedsVZ 2012, 339, 341 = XXXIX Y.B. Com. Arb. 394 (2014); OLG München, SchiedsVZ 2009, 340, 343 = XXXV Y.B. Com. Arb. 383, 385 (2010); OLG München, SchiedsVZ 2010, 169, 171 = XXXV Y.B. Com. Arb. 371, 373 (2010); OLG München, SchiedsVZ 2006, 111 = XXXI Y.B. Com. Arb. 722, 725 (2006); OLG Frankfurt, SchiedsVZ 2014, 206, 207 = XLI Y.B. Com. Arb. 480, 484 (2016). As German law incorporates the NYC into its legal system by reference (section 1061(1) ZPO) while simultaneously deviating from Article IV NYC in section 1064(1), (3) ZPO, German law provides a separate (and more liberal) procedural enforcement regime for foreign awards alongside the NYC; the aforementioned courts therefore did not violate the prohibition of cherry-picking (Õ para. 59) when relying on the more liberal requirements in section 1064(1), (3) ZPO while simultaneously applying Article V (cf. Kröll, SchiedsVZ 2003, 282; dissenting Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 449 with n. 18). 91 Netherlands: Voorzieningenrechter, Rechtbank Dordrecht, XXXVI Y.B. Com. Arb. 299 (2011). 92 France: CA Paris, XXIX Y.B. Com. Arb. 657, 660 (2004), confirmed by Cass., XXXII Y.B. Com. Arb. 290, 292 (2007); Netherlands: Arrondissementsrechtbank Rotterdam, XXII Y.B. Com. Arb. 762, 764 (1997) and Rechtbank Rotterdam, XXXIV Y.B. Com. Arb. 722, 725 (2009); Spain: TS, XXXIII Y.B. Com. Arb. 703, 706 (2008); Serbia: High Commercial Court, Mar. 22, 2007, No. Pz. 9058/2006 (unreported), cited in A/CN.9/661, p. 7; UNCITRAL Secretariat, Guide, Art. VII para. 32; ICCA, Guide, p. 26; van den Berg, NYC, pp. 86 et seq.; van den Berg, XXVIII Y.B. Com. Arb. 562, 673 (2003); Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. VII para. 4; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 377; Poudret/Besson, Comparative Arbitration, para. 908; Otto, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 445. 93 UNCITRAL Secretariat, Guide, Art. VII para. 31; ICCA, Guide, p. 27; van den Berg, NYC, p. 86. In his Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards, van den Berg suggests the inclusion of an express reference to the arbitration agreement in the more-favorable-right provision, cf. van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 664. 94 Õ n. 29 in Õ para. 13.

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requirements of Article II(2) but with those of another enforcement regime would not be enforced, while an award rendered on the basis of such an agreement would.95 47 To overcome any remaining doubts about the analogous application of Article VII(1) to arbitration agreements and to avoid repeats of those (few)96 refusals to apply Article VII to arbitration agreements in the future, UNCITRAL adopted a Recommendation Regarding the Interpretation of Articles II(2) and VII(1) at its 39th session on July 7, 2006. According to the latter, Article VII(1) “should be applied to allow any interested party to avail itself of rights it may have, under the law or treaties of the country where an arbitration agreement is sought to be relied upon, to seek recognition of the validity of such an arbitration agreement;”97 the full text of the recommendation is reprinted in Õ Annex III of this commentary. By proposing this harmonizing interpretation, UNCITRAL avoided interfering with the competence of the Contracting States to issue binding declarations regarding the interpretation of that treaty.98 The recommendation has received support from a number of Contracting States.99 48 This application by analogy has become particularly relevant in cases where the form of the agreement is not in accordance with the written form as required by Article II(2), but complies with the applicable domestic laws on the recognition and enforcement of foreign awards.100 Examples include provisions on the recognition of oral arbitration agreements101 or arbitration agreements concluded by tacit acceptance of a confirmation letter between merchants.102

IV. In the Manner and to the Extent Allowed by the Law or the Treaties of the Country Where Such Award Is Sought to Be Relied Upon 1. Law or Treaties 49

a) Source and Date As to the source of the more favorable rules, Article VII(1) alt. 2 allows the interested party to avail himself of the arbitral award in the manner and to the extent allowed by the “law” or “treaties” of the country where such award is sought to be relied upon. The

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Van den Berg, NYC, p. 87. Cf. Spain: Audiencia Provincial de Sevilla, XXII Y.B. Com. Arb. 780, 784 (1997). 97 A/61/17 (Õ Annex IV 2). 98 A/61/17, paras 177–180 (Õ Annex IV 2). 99 Cf. Comments received from Governments on the Recommendation regarding the interpretation of article II, paragraph (2), and article VII, paragraph (1), of the New York Convention, A/CN.9/661, A/CN.9/ 661/Add.1, A/CN.9/661/Add.2, A/CN.9/661/Add.3. 100 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 95. 101 For example, under the 2011 version of Article 1507 CPC an arbitration agreement shall not be subject to any form requirements (“La convention d’arbitrage n’est soumise à aucune condition de forme”); but compare with Article 1515(1) CPC, which provides that “[t]he existence of an arbitral award shall be proven by producing the original award, together with the arbitration agreement, or duly authenticated copies of such documents.” («L’existence d’une sentence arbitrale est établie par la production de l’original accompagné de la convention d’arbitrage ou des copies de ces documents réunissant les conditions requises pour leur authenticité.»). 102 Cf. Germany: BGH, SchiedsVZ 2010, 332 = XXXVI Y.B. Com. Arb. 282 (2011) (with annotation Pfeiffer, LMK 2010, 310078); OLG München, SchiedsVZ 2010, 50 = XXXVI Y.B. Com. Arb. 273 (2011) and OLG Frankfurt, XXXV Y.B. Com. Arb. 377, 380 (2010). 96

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law may be of domestic statutory or jurisprudential nature.103 The treaties may be of both multilateral and bilateral character.104 The date of the law’s enactment or of the treaty’s ratification, respectively, is 50 irrelevant for the purpose of Article VII(1) alt. 2. As this provision refers to laws and treaties in general and as there is no indication that the Contracting Parties wanted to limit the more-favorable-right clause to laws enacted and treaties entered into before the NYC, Article VII(1) alt. 2 also applies to laws and treaties that a Contracting State enacted or ratified after it ratified the NYC.105 A restriction to prior laws and treaties would also not be compatible with the pro-arbitration rationale of the NYC. b) Subject Matter aa) Relating to Foreign Awards. As the NYC applies only to the recognition and 51 enforcement of foreign arbitral awards, i.e. either awards made in the territory of another State (Article I(1)(1)) or awards not considered as domestic awards in the State where recognition and enforcement is sought (Article I(1)(2)), Article VII(1) alt. 2 only refers to the laws and treaties that relate to the recognition and enforcement of foreign awards, but not to laws and treaties that relate to the recognition and enforcement of domestic awards.106 There are several Contracting States that provide such separate recognition and enforcement regimes for foreign awards besides the regime stipulated in the NYC. Examples are the French (Õ para. 43), the Dutch107 and the German arbitration laws.108 In all of these cases Article VII(1) alt. 2 allows any interested party to rely either on the NYC’s or on the domestic law’s regime for the enforcement of foreign awards (Õ para. 59 for the prohibition of mixing multiple enforcement regimes). However, Article VII(1) alt. 2 is not restricted to recognition and enforcement 52 regimes for foreign arbitral awards but simply refers to the “manner” one may “avail” himself of a foreign arbitral award. The more-favorable-right clause therefore likewise allows for the application of any other rules under which the interested party may avail himself of the foreign arbitral award. Allowable is e.g. the action ex contractu, under which the award is considered as a contract between the parties, meaning that the resulting action is based on an ordinary contract claim.109 bb) Blanket Referral to the NYC. The restriction of Article VII(1) alt. 2 to laws and 53 treaties that relate to the recognition and enforcement of foreign awards (Õ para. 51) may work to the detriment of beneficiaries of foreign awards in a situation in which the domestic law (1) distinguishes between the recognition and enforcement of domestic 103 Van den Berg, XXVIII Y.B. Com. Arb. 562, 671 (2003). In his Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards, van den Berg suggests the inclusion of an express reference to these sources of law in the more-favorable-right provision, cf. van den Berg, in: van den Berg (ed.), 50 Years of NYC, pp. 649, 664. 104 Van den Berg, XXVIII Y.B. Com. Arb. 562, 672 (2003). 105 Cf. van den Berg, NYC, p. 82; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 447. 106 Van den Berg, XXVIII Y.B. Com. Arb. 562, 672 (2003); Poudret/Besson, Comparative Arbitration, para. 888; Quinke, SchiedsVZ 2011, 169. Diss. Czernich, Kurzkommentar, Art. VII para. 1 and India: Gas Authority of India, Ltd. v. SPIE-CAPAG, S.A., XXIII Y.B. Com. Arb. 688, 698 et seq. (1998). 107 Cf. van den Berg, in: Briner et al. (eds), Liber Amicorum Böckstiegel, pp. 783, 793. 108 Õ para. 44 and Õ n. 90 for the more liberal procedural requirements of section 1064(1), (3) ZPO. See for the more liberal material requirements of the old arbitration law in the former section 1044 ZPO Germany: BGH, NJW 1984, 2763 = WM 1984, 101 = X Y.B. Com. Arb. 427 (1985); BGH, NJW-RR 1991, 757, 758 = RIW 1991, 420 = XVII Y.B. Com. Arb. 513, 514 (1992); OLG Hamm, RIW 1994, 1052 = XXII Y.B. Com. Arb. 702 (1997); OLG Frankfurt, RIW 1989, 911 = XVI Y.B. Com. Arb. 546 (1991); OLG Köln, ZZP 91 (1978), 318 = IV Y.B. Com. Arb. 258 (1979); OLG Düsseldorf, DB 1972, 1060 = II Y.B. Com. Arb. 237, 238 (1977). 109 Van den Berg, NYC, p. 89; van den Berg, XXVIII Y.B. Com. Arb. 562, 674 (2003). In common law countries this action is called an “action on the award,” van den Berg, NYC, p. 89 in n. 228.

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awards on the one hand and foreign awards on the other, (2) refers to the NYC for the recognition and enforcement of foreign awards110 and (3) stipulates more favorable conditions for the recognition and enforcement of domestic awards (such as lower statutory form requirements for arbitration agreements111 or more favorable provisions on awards set aside abroad112). As the domestic law technically does not contain more favorable provisions on the recognition and enforcement of foreign awards in such a case,113 Article VII(1) alt. 2 is of no help. 54 As a solution for these situations some courts and commentators suggest interpreting Article VII(1) alt. 2 in such a way as to “pierce” the domestic law’s referral to the NYC and to thereby allow the application of the more favorable domestic law on domestic awards to foreign awards.114 However, this “piercing” would run afoul of the drafters’ intentions underlying Article VII(1) alt. 2: Contracting States intended to make domestic recognition and enforcement for foreign awards applicable in addition to the NYC via this more-favorable-right provision, not to make domestic recognition and enforcement regimes apply to domestic awards (Õ para. 51).115 55 On the other hand, one should not restrict oneself (as some do)116 to the plain reading of the referral clause, with the result that the prerequisites for the recognition and enforcement of foreign awards are higher than those for domestic awards. The solution in these cases should not be sought in Article VII(1) alt. 2, but in the domestic law’s referral to the NYC. This referral has to be examined as to whether the legislature indeed intended to deny foreign awards access to the regime for domestic awards. Against the background of the policy most legislatures have pursued when reforming their national arbitration laws during recent years – namely to enable the enforcement of foreign arbitral awards to the greatest extent – it would rather come as a surprise if the legislature indeed intended to cut back recognition and enforcement possibilities by referring to the NYC for the enforcement of foreign awards. Thus, the domestic pro-enforcement policy will usually counsel in favor of an arbitration-friendly interpretation of the domestic law’s referral to the NYC in a manner as to allow the application of the more favorable conditions for the recognition of domestic awards to the recognition of foreign awards.117 56

cc) Change from Separate Enforcement Regime to Blanket Referral. In cases where the legislature has changed the regime for the recognition and enforcement of foreign awards from a separate regime of statutory domestic law to a reference to the NYC, certain problems arise regarding the continued validity of case law rendered under the old law. This has become relevant in Germany after the enactment of the current arbitration law. The old German provisions on the grounds for refusing recognition or 110

Cf. Germany: section 1061(1) ZPO; Switzerland: Article 194 IPRG. Cf. Germany: section 1031 ZPO (less demanding form requirements compared to those of Article II(2)). 112 Õ n. 87 for The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 4.3 Comment d (p. 528 et seq.). 113 Likewise Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 378. 114 Germany: BGH, SchiedsVZ 2010, 332, 333 = XXXVI Y.B. Com. Arb. 282, 283 (2011) (ratio decidendi) and BGH, SchiedsVZ 2005, 306, 307 = XXXI Y.B. Com. Arb. 679, 683 (2006) (obiter dictum) regarding the form requirements in section 1031 ZPO; likewise Hanefeld/Schmidt-Ahrendts, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 9.283; Kröll, ZZP 117 (2004), 453, 477 et seq. and Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 378 (application of Article VII by way of analogy). 115 Quinke, SchiedsVZ 2011, 169, 171 et seq. 116 For Germany Voit, in: Musielak/Voit (eds), ZPO, sect. 1061 para. 14; Münch, in: MünchKommZPO, sect. 1061 para. 10; Moller, NZG 2000, 57, 71. For Germany and Switzerland Poudret/Besson, Comparative Arbitration, para. 893. 117 See for Germany Quinke, SchiedsVZ 2011, 169, 172; cf. also Kühn, SchiedsVZ 2009, 53, 54 (“unintended mistake of the legislator”). 111

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enforcement of foreign awards in section 1044 of the ZPO were interpreted by the courts in a manner so as to allow the preclusion of objections against an award;118 this interpretation was relevant e.g. in cases where the debtor of the award did not timely use possibilities to vacate the award which the law at the place of arbitration offered him. Those objections could then be barred in Germany even if the petition to vacate the award was raised in time. As the current German arbitration law no longer contains special provisions on the 57 grounds for refusing recognition or enforcement of foreign awards but instead makes reference to the NYC, the issue of preclusion has to be determined solely on the basis of the NYC;119 Õ Art. V paras 46 et seq. for these principles of preclusion. In this situation, Article VII(1) alt. 2 is of no help120 as it refers only to domestic enforcement regimes for foreign awards, which the current German arbitration law no longer contains in regard to the substantive conditions for enforcement.121 Preclusion may thus only be achieved under the NYC’s principles in this situation (which have to be determined autonomously)122 or upon the basis of Article V(1) and (2) of the European Convention, if applicable (Õ para. 89). c) Both Substantive Law and Conflict of Law Rules Included Article VII(1) alt. 2 permits the competent authority to resort to the more favorable 58 law in its entirety,123 as it refers without restriction to “any right” allowed “by the law or the treaties.” This means that not only do the domestic law’s substantive law provisions relating to the recognition and enforcement of foreign arbitral awards fall within the scope of the provisions which the competent authority has to take into account when deciding on the enforcement of foreign arbitral awards, but also the domestic law’s conflict-of-law rules. If e.g. the conflict of law rules of the State in which recognition and enforcement is sought refer to a foreign law that has more permissive form requirements for the arbitration agreement than Article II, those more permissive provisions are then applicable via Article VII(1) alt. 2.124

118 Cf. Germany: BGH, NJW 1984, 2763, 2764 = X Y.B. Com. Arb. 427, 428 (1985); BGH, NJW-RR 2001, 1059, 1060 = XXIX Y.B. Com. Arb. 700, 709 (2004). 119 Germany: BGH, SchiedsVZ 2011, 105, 106 et seq. = XXXVI Y.B. Com. Arb. 273 (2011) with Steger, Präklusion, pp. 138 et seq.; Otto, IPRax 2012, 223 et seq.; Santomauro, SchiedsVZ 2016, 178 et seq.; Wolff, LMK 2011, 318374 and Skibelski/Burianski, BB 2011, 336. As the aforementioned decision of the BGH was limited to a request to set aside an award for lack of a valid arbitration agreement, it is disputed whether this case law is also applicable to requests on the basis of Article V(2)(b), cf. Germany: OLG München, SchiedsVZ 2012, 339, 341 = XXXIX Y.B. Com. Arb. 394, 397 (2014) and OLG Karlsruhe, SchiedsVZ 2012, 101 = XXXVIII Y.B. Com. Arb. 379 (2013) for diverging views. 120 But see Germany: BGH, SchiedsVZ 2011, 105, 106 et seq. = XXXVI Y.B. Com. Arb. 273 (2011) (considering an application of section 1060(2)(3) ZPO via Article VII(1) alt. 2), based upon an erroneous interpretation of Article VII(1) alt. 2, Õ paras 54 et seq. Article VII(1) alt. 2 would only be of help if section 1060(2)(3) ZPO were to be applied by way of analogy to the recognition and enforcement of foreign awards, see Wolff, LMK 2011, 318374 for details. 121 Õ para. 44 and Õ n. 90 for the more liberal procedural requirements of section 1064(1), (3) ZPO. 122 Cf. for such an autonomous interpretation on the basis of applying the generally accepted prohibition of venire contra factum proprium to the question of preclusion Germany: KG, SchiedsVZ 2007, 108, 111 = XXXII Y.B. Com. Arb. 363, 367 (2007), followed by BGH, SchiedsVZ 2008, 196, 197; BGH, SchiedsVZ 2011, 105, 107 = XXXVI Y.B. Com. Arb. 273 (2011). 123 Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. VII para. 4; Poudret/Besson, Comparative Arbitration, para. 908. Germany: BGH, SchiedsVZ 2005, 306, 307 = XXXI Y.B. Com. Arb. 679, 683 (2006). 124 UNCITRAL Secretariat, Guide, Art. VII para. 10; Germany: BGH, SchiedsVZ 2005, 306, 307 = XXXI Y.B. Com. Arb. 679, 683 (2006) and SchiedsVZ 2014, 151, 154 = XXXIX Y.B. Com. Arb. 401, 406 (2014).

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2. Mixing Multiple Enforcement Regimes Impermissible While some argue that the pro-enforcement policy of Article VII(1) alt. 2 allows parties to rely on more favorable provisions of a domestic law or treaty even where enforcement is sought under the NYC,125 the prevailing opinion does not allow this “cherry picking.” According to this opinion, the party that chooses to rely on a more favorable domestic law or treaty by virtue of the more-favorable-right provision has to rely on that other source in toto.126 60 The better arguments counsel in favor of prohibiting “cherry-picking.” Usually national legislatures, the contracting parties to other treaty-based enforcement regimes and the Contracting States to the NYC consider their respective legal texts as comprehensive sets of rules. If the interested party were allowed to mix different enforcement regimes, it could play at being a legislator in its own case127 and thereby increase the uncertainty already inherent in Article VII(1) alt. 2.128 Mixing a domestic or treaty enforcement regime with that of the NYC is therefore prohibited. It is impermissible to e.g. base the request for enforcement on the NYC with the exception that the written form of the arbitration agreement (as required by Article II(2)) is instead based on some domestic law.129 61 Some argue that a combination of different enforcement regimes would at least be allowable as long as the coherence of the different sources is respected, which would have to be determined on a case-by-case basis.130 A combination of e.g. the procedural rules of Article IV with more favorable substantive grounds of domestic law would be possible in this manner.131 Although the pro-arbitration policy most legislatures pursue indeed counsels in favor of this approach, the counter-argument must be considered decisive: it is up to the legislature, not the competent authority, to determine what it considers a “coherent” enforcement regime. 62 From the rationale underlying the prohibition of mixing multiple enforcement regimes also follows that “cherry-picking” is allowed where the two regimes imply that they can be combined.132 This is true for the European Convention, which does not establish a separate enforcement regime but rather complements the NYC; Õ paras 75 et seq. for the relationship between the NYC and the European Convention. 59

125 Cf. Lew/Mistelis/Kröll, Comparative Arbitration, para. 26-34; Gaillard/Savage, Fouchard Gaillard Goldman, para. 271. The UNCITRAL Secretariat, Guide, Art. VII para. 15, cites Switzerland: BG, BGE 110 Ib 191 as an example for case law which implicitly accepts the combined application of two systems. 126 Germany: BGH, SchiedsVZ 2006, 161 = XXXII Y.B. Com. Arb. 328, 337 (2007); BGH, SchiedsVZ 2003, 281 = XXIX Y.B. Com. Arb. 767, 769 (2004) with notes Kröll, SchiedsVZ 2003, 282, Kröll/Wenzel, 19(4) Mealey’s Int’l Arb. Rep. 27 (2004), Mallmann, EWiR 2003, 1163 and Gebhardt, IDR 2004, 42; OLG Köln, ZZP 91 (1978), 318 with note Kornblum on p. 323 = IV Y.B. Com. Arb. 258, 260 (1979); Mallmann, SchiedsVZ 2004, 152, 153; van den Berg, NYC, p. 85; van den Berg, in: Briner et al. (eds), Liber Amicorum Böckstiegel, pp. 783, 793; van den Berg, (2010) 27 J. Int. Arb. 179, 193; Rivkin, in: van den Berg (ed.), 40 Years of NYC, pp. 528, 532; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. VII para. 4; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 383; Bredow, in: Geimer/Schütze (eds), Internationaler Rechtsverkehr, C I 3 b, Art. 7 (p. 38); Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 449. 127 Cf. van den Berg, NYC, p. 86. 128 Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 451. Õ para. 6 for the uncertainty surrounding Article VII(1) alt. 2. 129 Example taken from van den Berg, XXVIII Y.B. Com. Arb. 562, 671 (2003). 130 Poudret/Besson, Comparative Arbitration, para. 895; Gaillard/Savage, Fouchard Gaillard Goldman, paras 223, 273. 131 Poudret/Besson, Comparative Arbitration, para. 895. 132 Cf. van den Berg, XXVIII Y.B. Com. Arb. 562, 672 (2003).

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3. Waiving Article VII(1) alt. 2 Some argue that – at least in legal systems where the judge has to consider 63 international treaties or national law ex officio – a party cannot waive his right to invoke Article VII(1) alt. 2.133 However, as Article VII(1) alt. 2 does not entail any public interests there is no reason to prohibit a party from waiving his rights under Article VII(1) alt. 2. This waiver, however, seems to be of little practical relevance.

F. Geneva Protocol on Arbitration Clauses and Geneva Convention on the Execution of Foreign Arbitral Awards (Article VII(2)) The combination of the Geneva Protocol on Arbitration Clauses of September 24, 64 1923134 and the Geneva Convention on the Execution of Foreign Arbitral Awards of September 26, 1927135 was considered as an inadequate legal framework for the 133 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.523; van den Berg, XXVIII Y.B. Com. Arb. 562, 672 (2003). 134 678 L.N.T.S. 158 et seq. (1924). The Geneva Protocol entered into force on July 28, 1924 in accordance with its Article 6. The full text of the Geneva Protocol is reprinted in Õ Annex V 1. Ratifications of the Geneva Protocol: Albania (Aug. 29, 1924), Austria (Jan. 25, 1928), Belgium (Sep. 23, 1924), Brazil (Feb. 5, 1932), British Empire regarding Great Britain and Northern Ireland (Sep. 27, 1924) [including Southern Rhodesia (Dec. 18, 1924), Newfoundland (June 22, 1925), British Guiana, British Honduras, Ceylon, Falkland Islands and Dependencies, Gambia (Colony and Protectorate), Gold Coast (including Ashanti and the Northern Territories of the Gold Coast and Togoland), Gibraltar, Jamaica (Turks and Caicos Islands and Cayman Islands), Kenya (Colony and Protectorate), Leeward Islands, Malta, Mauritius, Northern Rhodesia, Palestine (excluding Trans-Jordan), Trans-Jordan, Windward Islands (Grenada, St. Lucia, St. Vincent), Zanzibar (Mar. 12, 1926), Tanganyika (June 17, 1926), St. Helena (July 29, 1926), Uganda (June 28, 1929), Bahamas (Jan. 23, 1931), Burma excluding the Karenni States (Oct. 19, 1938)], New Zealand (June 9, 1926), India (Oct. 23, 1937), Czechoslovakia (Sep. 18, 1931), Denmark (Apr. 6, 1925), Estonia (May 16, 1929), Finland (July 10, 1924), France (June 7, 1928), Germany (Nov. 5, 1924), Greece (May 26, 1926), Iraq (Mar. 12, 1926), Italy excluding Colonies (July 28, 1924), Japan (June 4, 1928), Luxembourg (Sep. 15, 1930), Monaco (Feb. 8, 1927), Netherlands including the Netherlands Indies, Surinam and Curacao (Aug. 6, 1925), Norway (Sep. 2, 1927), Poland (June 26, 1931), Portugal (Dec. 10, 1930), Romania (Mar. 12, 1925), Spain (July 29, 1926), Sweden (Aug. 8, 1929), Switzerland (May 14, 1928), Thailand (Sep. 3, 1930). Signatures not yet perfected by ratifications: Bolivia, Chile, Latvia, Liechtenstein, Lithuania, Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay. Actions subsequent to the assumption of depositary functions by the UN Secretary-General (ratifications, accessions, successions, notifications): Antigua and Barbuda (Oct. 25, 1988), Bahamas (Feb. 16, 1977), Bangladesh (June 27, 1979), Croatia (July 26, 1993), Czech Republic (Feb. 9, 1996), Ireland (Mar. 11, 1957), Israel (Dec. 13, 1951), Hong-Kong (Feb. 10, 1965), Malta (Aug. 16, 1966), Mauritius (July 18, 1969), Montenegro (Oct. 23, 2006), North Macedonia (Mar. 10, 1994), Serbia (Mar. 12, 2001), Slovakia (May 28, 1993), Zimbabwe (Dec. 1, 1998). Signatures alone: Republic of Korea (Mar. 4, 1968), Uganda (May 5, 1965). This status of the Geneva Protocol was compiled on the basis of data available on http://treaties.un.org (last visited Apr. 12, 2019). 135 2096 L.N.T.S. 302 et seq. (1929). The Geneva Convention entered into force on July 25, 1929 in accordance with its Article 8. The full text of the Geneva Convention is reprinted in Õ Annex V 2. Ratifications of the Geneva Convention: Austria (July 18, 1930), Belgium (Apr. 27, 1929) [including Belgian Congo, Territory of Ruanda-Urundi (June 5, 1930)], United Kingdom of Great Britain and Northern Ireland (July 2, 1930) [including Newfoundland (Jan. 7, 1931), Bahamas, British Guiana, British Honduras, Falkland Islands, Gibraltar, Gold Coast (Colony, Ashanti, Northern Territories, Togoland under British Mandate), Jamaica (including Turks and Caicos Islands and Cayman Islands), Kenya, Palestine (excluding Trans-Jordan), Tanganyika Territory, Uganda Protectorate, Windward, Islands (Grenada, St. Lucia, St. Vincent), Zanzibar (May 26, 1931), Mauritius (July 13, 1931), Northern Rhodesia (July 13, 1931), Leeward Islands (Antigua, Dominica, Montserrat, St. Christopher-Nevis, Virgin Islands) (Mar. 9, 1932), Malta (Oct. 11, 1934), Burma excluding the Karenni States (Oct. 19, 1938), Anguilla (Dec. 16, 1985)], New Zealand including Western Samoa (Apr. 9, 1929), India (Oct. 23, 1937),

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substantially increasing trade after the Second World War. In particular the double exequatur – one exequatur in the award’s country of origin, another one in the country of recognition and enforcement – which was de facto necessary under Article 1(d) of the Geneva Convention was overly costly and time-consuming.136 65 With the introduction of the more liberal rules on recognition and enforcement of arbitration agreements and arbitral awards in the NYC, the Geneva Protocol and the Geneva Convention became obsolete and needed to be vacated to the extent that the NYC came into force. This vacatur is the purpose of Article VII(2), which is technically an exception to the provisions in Article VII(1) alt. 1 (Õ para. 13). Article VII(2) has not played a major role in the jurisprudence of the Contracting States’ courts.137

I. Cease to Have Effect Between Contracting States on Their Becoming Bound The Geneva Protocol and the Geneva Convention cease to have effect between the Contracting States on their becoming bound by the NYC. The relevant geographical relationship determining the (in-)applicability of the Geneva Treaties is that of the country where recognition and enforcement is sought to the country where the arbitral award was made.138 The relevant point in time is that of the latter of the two States “becoming bound” by the NYC, i.e. the time of ratification or accession, irrespective of whether the 90-day-period of Article XII(2) has lapsed.139 67 The replacement mandated by Article VII(2) refers to the entire Geneva Treaties: a proposal to limit the replacement to the degree to which these instruments were incompatible with the NYC was rejected during the process of drafting the NYC (Õ para. 16). The replacement is thus complete in the sense that the Geneva Convention and Geneva Protocol become extinct,140 i.e. they do not even continue to apply in cases where the conditions of the NYC for the recognition and enforcement of an award 66

Czechoslovakia (Sep. 18, 1931), Denmark (Apr. 25, 1929), Estonia (May 16, 1929), Finland (July 30, 1931), France (May 13, 1931), Germany (Sep. 1, 1930), Greece (Jan. 15, 1932), Italy (Nov. 12, 1930), Luxembourg (Sep. 15, 1930), Netherlands for the Kingdom in Europe (Aug. 12, 1931) [including Netherlands Indies, Surinam and Curacao (Jan. 28, 1933)], Portugal (Dec. 10, 1930), Romania (June 22, 1931), Spain (Jan. 15, 1930), Sweden (Aug. 8, 1929), Switzerland (Sep. 25, 1930), Thailand (July 7, 1931). Signatures not yet perfected by ratifications: Bolivia, Nicaragua, Peru. Actions subsequent to the assumption of depositary functions by the UN Secretary-General (ratifications, accessions, successions, notifications): Antigua and Barbuda (Oct. 25, 1988), Bahamas (Feb. 16, 1977), Bangladesh (June 27, 1979), Croatia (July 26, 1993), Czech Republic (Feb. 9, 1996), Ireland (June 10, 1957), Israel (Feb. 27, 1952), Japan (July 11, 1952), Malta (Aug. 16, 1966), Mauritius (July 18, 1969), Montenegro (Oct. 23, 2006), North Macedonia (Mar. 10, 1994), Serbia (Mar. 12, 2001), Slovakia (May 28, 1993). Signatures alone: Republic of Korea (Mar. 4, 1968), Uganda (May 5, 1965). This status of the Geneva Convention was compiled on the basis of data available on http://treaties.un.org (last visited Apr. 12, 2019). 136 Cf. Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 1; van den Berg, NYC, p. 7; Giardina, in: van den Berg (ed.), 40 Years of NYC, p. 440; UNCITRAL Secretariat, Guide, Art. VII para. 60. 137 Cf. for examples Italy: Cass., IV Y.B. Com. Arb. 279, 280 (1979), and CA Trieste, X Y.B. Com. Arb. 462, 463 (1985); Germany: LG Hamburg, RIW 1979, 493 = V Y.B. Com. Arb. 264, 265 (1980); OLG Stuttgart, VII Y.B. Com. Arb. 326 (1982); OLG Düsseldorf, DB 1972, 1060 = II Y.B. Com. Arb. 237, 238 (1977); Belgium: CA Liège, IV Y.B. Com. Arb. 254, 256 (1979). 138 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 504; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 132; van den Berg, NYC, p. 115; Germany: LG Hamburg, RIW 1979, 493 = V Y.B. Com. Arb. 264, 265 (1980); Italy: Cass., IV Y.B. Com. Arb. 279, 280 (1979); Austria: OGH, X Y.B. Com. Arb. 418 (1985). 139 Austria: OGH, I Y.B. Com. Arb. 182 (1976). 140 Van den Berg, NYC, p. 114.

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or agreement are not met while those of the Geneva Protocol or Convention would be (arg. “cease to have effect”).141 A possible “revival” of the Geneva Convention and Geneva Protocol also does not follow from the addendum “to the extent of their becoming bound;” this was introduced into the text in order to accommodate for Contracting States that would not become bound by the NYC in respect of all their territories simultaneously (Õ para. 15), but was not designed to allow the continued application of the Geneva Treaties.142 Article VII(2) also takes effect in cases of referral, i.e. where a bilateral treaty refers to 68 the Geneva Treaties for the enforcement of the award or the recognition of the arbitration agreement, respectively. One could argue that the Geneva Treaties would be applicable indirectly by way of Article VII(1) alt. 1 (“shall not affect the validity of […] bilateral agreements”) in these cases, with the result that any interested party could avail himself of an award or agreement on the basis of the Geneva Treaties via Article VII(1) alt. 2. However, as Article VII(2) was intended as an exception to the rule in Article VII(1) alt. 1 (Õ para. 13), it also prohibits the indirect application of the Geneva Treaties.143 Depending upon the circumstances of the individual bilateral treaty, one should interpret the treaty’s reference to the Geneva Treaties as a reference to the NYC.144 During the transitional period (when a significant number of parties to the Geneva 69 Convention were not (yet) party to the NYC) the different scopes of application of the Geneva Convention on the one hand and the NYC on the other gave rise to problems with regard to enforcement in NYC Contracting States of awards made in States which had adhered to the Geneva Convention but had not (yet) acceded to the NYC (similar problems regarding the Geneva Protocol do not seem to have arisen). One problem that occurred was where an arbitral award rendered in a State not party to the NYC was enforced in a Contracting State that had used the first reservation in Article I(3) – which prevented enforcement under the NYC – and where both parties were subject to the jurisdiction of Contracting States to the NYC; the issue that was in question was whether the Geneva Convention was inapplicable by virtue of Article VII(2) and therefore likewise of no help to the party seeking enforcement.145 Another problem arose where an arbitral award rendered in a State that was only party to the Geneva Convention was enforced in a Contracting State of both the Geneva Convention and the NYC which had not used the first reservation in Article I(3); the issue there was whether the Geneva Convention, the NYC or both treaties were applicable.146 Yet another problem concerned a combination of both scenarios, namely where an award made in a State party to the Geneva Convention (but not to the NYC) in proceedings between parties subject to the jurisdiction of States which had adhered to both the Geneva Convention and the NYC was sought in a State which was also party to both Conventions but had not used the first reservation in Article I(3).147 As almost all 141 Schlosser, Recht der Schiedsgerichtsbarkeit, para. 132; Bredow, in: Geimer/Schütze (eds), Internationaler Rechtsverkehr, C I 3 b, Art. 7 (p. 39). 142 Germany: OLG Düsseldorf, DB 1972, 1060 = II Y.B. Com. Arb. 237, 238 (1977). Incorrect Italy: Tribunale di Napoli, VIII Y.B. Com. Arb. 48 (1983). 143 Van den Berg, NYC, p. 118; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 132. 144 So Italy: Cass., sez. un., VII Y.B. Com. Arb. 342, 344 (1982) regarding Article 8 of the ItalianGerman Treaty of 1936. 145 See van den Berg, NYC, pp. 116 et seq. for further details. Examples from case law: Austria: OGH, I Y.B. Com. Arb. 182 (1976), considering the Geneva Convention to be inapplicable; Germany: LG Hamburg, RIW 1979, 493 = V Y.B. Com. Arb. 264 (1980), reaching the opposite result. 146 See van den Berg, NYC, p. 117 for further details. No case law seems to have been published on this issue. 147 See van den Berg, NYC, pp. 117 et seq. for further details.

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Contracting States to the Geneva Treaties (or their legal successors) are also a party to the NYC at this stage (Õ paras 71 et seq.), these questions no longer seem to be of practical relevance.

II. To the Extent that Contracting States Become Bound 70

The addendum “and to the extent of their becoming bound,” which is sometimes referred to as the “colonial clause,”148 was introduced into the text in order to accommodate Contracting States that would not become bound by the NYC in respect of all their territories simultaneously (Õ para. 15). It is of relevance only for States with dependent territories or federal units.149

III. Practical Relevance of the Geneva Treaties The Geneva Treaties are only of limited practical relevance today as most of the parties to the Geneva Convention (Õ Annex V 2) and Geneva Protocol (Õ Annex V 1) have become party to the NYC.150 72 Which States are still bound by the Geneva Treaties is, however, not entirely clear as some former colonies of Contracting States to the Geneva Treaties have not made formal announcements regarding their status.151 Criteria for determining whether international treaties are applicable in newly independent States are e.g. formulated by the resolutions on the succession of States adopted by the International Law Association in 1969152 and the Vienna Convention on Succession of States in respect of Treaties of Aug. 23, 1978.153 According to its Article 16, a newly independent State is not bound to maintain in force or to become a party to any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates. Rather, as a general rule a newly independent State may, by a notification of succession, establish its status as a party to any multilateral treaty which at the date of the succession of States was in force in respect of the territory to which the succession of States relates (Article 17(1) of the Vienna Convention on Succession of States). If the newly independent State does not make a formal notification to the Geneva Protocol and/or the Geneva Convention, but continues to maintain legislation giving force to one or both of these treaties, the maintenance of such legislation is considered to indicate its consent to (still) be bound.154 73 Suggestions for the countries bound by the Geneva Protocol encompass Anguilla, the Falkland Islands and dependencies, Gambia,155 Iraq, Montserrat, Niue, Saint Christopher and Nevis, St. Helena, Saint Lucia, Turks and Caicos Islands.156 Suggestions for the 71

148

Van den Berg, NYC, p. 115. Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 452. 150 UNCITRAL Secretariat, Guide, Art. VII para. 64. 151 Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 468. 152 Y.B. ILC 1969, vol. II, p. 48 (A/CN.4/SER.A/1969/Add.1). See http://legal.un.org for the full text of the resolutions (last visited Apr. 12, 2019). 153 1946 U.N.T.S. 3 et seq. (1996). 154 Kenya: Kassamali Gulamhussein & Co. v. Kyrtatas Brothers Ltd., [1968] 1 EA 542, 544; Muyanja/ Chomi, (2000) 17(1) J. Int. Arb. 99, 105 et seq.; Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 468. 155 But see Asouzu, African States, p. 183 (Gambia “probably” did not implement the Geneva Treaties). 156 Cf. Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 468 et seq. and Gaillard/Savage, Fouchard Gaillard Goldman, para. 241 (the text above cites the countries mentioned in the works of 149

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countries bound by the Geneva Convention encompass Anguilla, the Falkland Islands and dependencies, Montserrat, Niue, Saint Christopher and Nevis, Saint Lucia, St. Helena, Turks and Caicos Islands.157 In regard to these countries the current status of the NYC’s applicability should be carefully examined on a case-by-case basis and on the basis of current domestic legislation.158

G. Annex: Multilateral Treaties Of those multilateral agreements that deal exclusively or at least significantly with the 74 recognition and enforcement of arbitral awards, three agreements and their respective relationships with the NYC will be described in some detail below: the European Convention of 1961 (Õ paras 75 et seq.), the ICSID Convention of 1965 (Õ paras 92 et seq.) and the Panama Convention of 1975 (Õ paras 95 et seq.). As the Council Regulation (EC) No. 44/2001 was revised in the not too distant past and as the Regulation’s applicability to arbitration was subject to substantial discussion during the reform process, the new Regulation of the European Parliament and of the Council (EU) No. 1215/2012 is worth a short mention as well (Õ paras 110 et seq.).

I. European Convention of 1961 1. Overview and Practical Relevance The European Convention of 1961159 was drafted with the desire to further promote the 75 development of European trade by removing difficulties that impeded international commercial arbitration in relations between physical and legal persons in different European countries,160 in particular regarding the stages prior to the enforcement of the award.161 It entered into force on January 7, 1964,162 with the exception of Article IV(3)–(7), which entered into force on October 18, 1965.163 Although the text of the European Convention avoids using the terms “Eastern” and 76 “Western” European Countries, its primary purpose was facilitating arbitration in EastWest-trade, though it has only rarely been applied thereto.164 One reason for this was Otto and Gaillard/Savage minus those countries which ratified the NYC after the publishing dates of these works) for further details. 157 Cf. Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 468 et seq. and Gaillard/Savage, Fouchard Gaillard Goldman, para. 241 (the text above cites the countries mentioned in the works of Otto and Gaillard/Savage minus those countries which ratified the NYC after the publishing dates of these works) for further details. 158 For British dependencies, see the UK Overseas Territories Database of the Foreign & Commonwealth office at https://www.gov.uk/government/publications/guidelines-on-extension-of-treaties-to-over seas-territories (last visited Apr. 12, 2019). 159 European Convention on International Commercial Arbitration of Apr. 21, 1961, 484 U.N.T.S. 350 et seq. (1963–1964). See Hascher, XV Y.B. Com. Arb. 624 (1990), XX Y.B. Com. Arb. 1006 (1995) and XXXVI Y.B. Com. Arb. 504 (2011) for a commentary on the European Convention. The full text of the European Convention is reprinted in Õ Annex V 3. 160 Cf. the preface of the European Convention of 1961. See Gaillard/Savage, Fouchard Gaillard Goldman, paras 274 et seq. for the legislative history of the European Convention. 161 Cf. Gaillard/Savage, Fouchard Gaillard Goldman, para. 274. 162 In accordance with Article X(8) of the European Convention. 163 In accordance with para. 4 of the Annex to the European Convention. 164 Van den Berg, XXVIII Y.B. Com. Arb. 562, 679 (2003); cf. also Spain: Audiencia Provincial de Madrid, XXXV Y.B. Com. Arb. 448, 449 (2010): “[The acceptance of the European Convention] has been very limited: barely about twenty States, some of which non-European (such as Cuba and Burkina Faso),

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the Moscow Convention of May 26, 1972, whose Article VI(1) declared the European Convention inapplicable to the relationships of the States party to the Moscow Convention;165 with the dismantling of the Council for Mutual Economic Assistance, most of the Contracting States to the Moscow Convention have repealed it in the meantime, while the new States that emerged from the former Soviet Union not having recognized it.166 Another reason for the limited application of the European Convention in East-West-trade might have been the European Convention’s complexity, in particular regarding the rules on the constitution of the arbitral tribunal in Article IV(2) to (7),167 which stipulate a subsidiary mechanism for organizing arbitration proceedings where one party fails to participate therein. 77 As the mechanism designed in Article IV(2) to (7) of the European Convention (relying on the President of the competent Chamber of Commerce of the country of the defaulting party’s habitual place of residence or seat, and on a special committee with East-West parity) did not meet the specific needs of arbitration between parties originating only from former western European countries,168 several of these countries169 derogated from these provisions in an Agreement of December 17, 1962 (the socalled “Paris Agreement”)170 and at least as to these States one may say that the European Convention has been successful.171 As of the completion of the draft of this commentary, the European Convention is applicable in 31 countries.172

have ratified it; countries of great importance in international commerce (such as the United Kingdom and the Scandinavian States) are not among the signatories.” 165 Van den Berg, NYC, pp. 93, 100. According to Article VI(1) of the Moscow Convention, “[t]he provisions of previously concluded bilateral and multilateral agreements of countries Parties to the Convention shall not be applied to the cases treated by this Convention […].” According to Article I(2) of the Moscow Convention, “the term ‘cases’ […] shall mean those […] arising in the course of economic and scientific-technical cooperation of the states party to the Convention.” As a result, the European Convention was applicable in genuine East-West disputes regardless of the Moscow Convention. Cf. for the Moscow Convention Uzelac, (2002) 19 J. Int. Arb. 73 and Wietzorek, AAYB 2009, 357, 372. 166 Gaillard/Savage, Fouchard Gaillard Goldman, paras 293, 294. 167 See van den Berg, XXVIII Y.B. Com. Arb. 562, 679 (2003). 168 Gaillard/Savage, Fouchard Gaillard Goldman, para. 288. 169 Austria, Belgium, Denmark, France, Germany, Italy, Luxembourg, Moldova. See http://conventions. coe.int for the current status of the parties to and the full text of the Paris Agreement (last visited Apr. 12, 2019). 170 Article 1 of the Paris Agreement reads as follows: “In relations between physical or legal persons whose habitual residence or seat is in States Parties to the present Agreement, paragraphs 2 to 7 of Article IV of the European Convention on International Commercial Arbitration, opened for signature at Geneva on 21st April 1961, are replaced by the following provision: ‘If the arbitral Agreement contains no indication regarding the measures referred to in paragraph 1 of Art. IV of the European Convention on International Commercial Arbitration as a whole, or some of these measures, any difficulties arising with regard to the constitution or functioning of the arbitral tribunal shall be submitted to the decision of the competent authority at the request of the party instituting proceedings.’”. 171 Cf. for a similar assessment Gaillard/Savage, Fouchard Gaillard Goldman, para. 275. 172 Albania (June 27, 2001), Austria (Mar. 6, 1964), Azerbaijan (Jan. 17, 2005), Belarus (Oct. 14, 1963), Belgium (Oct. 9, 1975), Bosnia and Herzegovina (Sep. 1, 1993), Bulgaria (May 13, 1964), Burkina Faso (Jan. 26, 1965), Croatia (July 26, 1993), Cuba (Sep. 1, 1965), Czech Republic (Sep. 30, 1993), Denmark (Dec. 22, 1972), France (Dec. 16, 1966), Germany (Oct. 27, 1964), Hungary (Oct. 9, 1963), Italy (Aug. 3, 1970), Kazakhstan (Nov. 20, 1995), Latvia (Mar. 20, 2003), Luxembourg (Mar. 26, 1982), Moldova (Mar. 5, 1998), Montenegro (Oct. 23, 2006), North Macedonia (Mar. 10, 1994), Poland (Sep. 15, 1964), Romania (Aug. 16, 1963), Russian Federation (June 27, 1962), Serbia (Mar. 12, 2001), Slovakia (May 28, 1993), Slovenia (July 6, 1992), Spain (May 12, 1975), Turkey (Jan. 24, 1992), Ukraine (Mar. 18, 1963). The dates refer to the ratification, accession or succession, respectively, of the individual State. See http:// treaties.un.org for the current status of the European Convention’s parties, as well as for declarations, reservations and notifications made (last visited Apr. 12, 2019).

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2. Scope of Application The scopes of application of the NYC and the European Convention differ in three 78 regards. First, Article I(1)(a) of the European Convention restricts its scope of application to arbitration agreements concluded for the purpose of settling disputes arising from international trade.173 Second, the parties to the arbitration agreement have to be physical or legal persons174 having, when concluding the agreement, their habitual place of residence175 or their seat176 in different Contracting States.177 Article I(1)(b) extends the scope of application to arbitral procedures and awards based on agreements of the aforementioned kind. The NYC, by contrast, neither requires that the dispute be one of international trade nor that the parties to the dispute have their habitual places of residence or their seats in different Contracting States. Instead, it applies to the recognition and enforcement of arbitral awards made in the territory of a State (in cases of Article I(3)(1) NYC: Contracting State) other than the State where the recognition and enforcement of such awards are sought, arising out of disputes (in cases of Article I(3)(2) NYC: commercial disputes) between physical or legal persons. As far as the arbitration agreement and the arbitral award are concerned, the NYC’s field of application is thus broader than that of the European Convention.178 If Article I(3)(1) NYC is applicable, the third difference in terms of scope of application arises, as the European Convention does not require that the arbitration take place or that the award be rendered in a Contracting State. In addition to their different scopes of application, the subject matters of the two 79 Conventions also differ to a certain degree as the European Convention contains extensive provisions for stages of arbitration proceedings for which the NYC does not contain any provisions at all, such as the constitution of the arbitral tribunal, pleas as to arbitral jurisdiction, the jurisdiction of the courts in relation to the arbitration proceedings, the law applicable to the substance of the dispute, reasons for the award and the setting aside of the award;179 Õ paras 85 et seq. for more details.

173 See Hascher, XXXVI Y.B. Com. Arb. 504, 510 (2011) and Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 391 for the interpretation of the term “international trade,” which is still unsettled. The requirement of “international trade” is, however, of limited practical significance given that the bulk of cases brought under the NYC are of an inherently commercial nature, Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 72. See Italy: Cass., IX Y.B. Com. Arb. 418, 421 (1984) as an example of a discussion of this requirement in jurisprudential practice. 174 Nationality is not taken into consideration. The European Convention therefore also applies to nationals of non-Contracting States that have their habitual place of residence or seat in different Contracting States, de la Brena, in: Zeiler/Siwy (eds), European Convention, Art. I para. 17; Hascher, XXXVI Y.B. Com. Arb. 504, 509 (2011). 175 “Habitual place of residence” should be regarded as a question of fact rather than as a legal concept such as domicile, Hascher, XXXVI Y.B. Com. Arb. 504, 509 (2011). 176 “Seat” is defined by Article 1(2)(c) of the European Convention as “the place of the situation of the establishment that has made the arbitration agreement.” This refers to the place of business, not the place of incorporation or registration, Hascher, XXXVI Y.B. Com. Arb. 504, 509 (2011). The term was intentionally left without qualification, such as “main” or “principal,” de la Brena, in: Zeiler/Siwy (eds), European Convention, Art. I para. 15. 177 See Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 394, Hascher, XXXVI Y.B. Com. Arb. 504, 509 (2011) and Italy: Cass., IX Y.B. Com. Arb. 418 (1984) for the European Convention’s application in a scenario where the award was made in a country that was not a signatory to the European Convention and the parties came from Signatory States. 178 Van den Berg, NYC, p. 94; van den Berg, XXVIII Y.B. Com. Arb. 562, 681 (2003). 179 Van den Berg, XXVIII Y.B. Com. Arb. 562, 681 (2003); Gaillard/Savage, Fouchard Gaillard Goldman, para. 281.

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New York Convention

3. Relation Between the NYC and the European Convention Although the European Convention is being discussed here, its relation to the NYC is not governed by Article VII(1) alt. 2. The European Convention does not provide a separate domestic recognition and enforcement regime for foreign awards within the meaning of Article VII(1) alt. 2, but rather contains provisions that complement the NYC in those cases where the arbitration agreement or award falls within the field of application of both Conventions.180 Indeed, the European Convention was drafted with the NYC in mind.181 Good examples of this interplay are the almost complete (except for Article IX of the European Convention) absence of provisions dealing with the enforcement of the award in the European Convention (which were unnecessary because of Articles III to VI NYC), the provision on the form of the arbitration agreement in Article I(2)(a) of the European Convention (relating to Article II(2) NYC) and the provisions on the jurisdiction of the courts in Article VI of the European Convention (relating to Article II(3) NYC).182 As the European Convention does not provide a separate enforcement regime, the interplay between the NYC and the European Convention is no exception to the prohibition of mixing multiple enforcement regimes.183 81 Instead of Article VII(1) alt. 2, the principles lex posterior derogat legi priori and lex specialis derogat legi generali184 as well as Article X(7) of the European Convention govern the relationship between the European Convention and the NYC. Article X(7) stipulates that the European Convention’s provisions shall not affect the validity of multilateral or bilateral agreements concerning arbitration entered into by the Contracting States. The purpose of this provision is – just like the purpose of Article VII(1) alt. 1 (Õ para. 4) – to prevent a Contracting State from being forced into contravening public international law by acceding to the European Convention. In arbitral practice, two different scenarios have to be distinguished regarding the interplay of the NYC and the European Convention: 80

82

a) Standard Scenario If – as is usually the case185 – the European Convention came into effect after the NYC in the relationship between the State where recognition and enforcement is sought 180 UNCITRAL Secretariat, Guide, Art. VII paras 19 et seq.; Konrad, Kluwer Arbitration Blog, Nov. 2, 2010; van den Berg, NYC, pp. 94 et seq.; van den Berg, XXVIII Y.B. Com. Arb. 562, 681 (2003); Craig/ Park/Paulsson, ICC Arbitration, § 37.05 (p. 686); Moller, NZG 2000, 57, 71; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 442; Hascher, XXXVI Y.B. Com. Arb. 504, 541 (2011). Cf. Italy: CA Firenze, III Y.B. Com. Arb. 279, 280 (1978); Germany: OLG Celle, VII Y.B. Com. Arb. 322, 325 (1982); France: CA Rouen, Rev. arb. 1985, 115 with note Delvolvé = XI Y.B. Com. Arb. 491, 496 (1986); Spain: TS, XI Y.B. Com. Arb. 523, 525 (1986). This complementary nature of the European Convention is not always fully appreciated, cf. Spain: TS, XXXIII Y.B. Com. Arb. 703, 706 (2008); Italy: CA Brescia, XI Y.B. Com. Arb. 510, 512 (1986). 181 Cf. para. 2 of the preamble of the European Convention: “Having noted that on 10th June 1958 at the United Nations Conference on International Commercial Arbitration has been signed in New York a Convention on the Recognition and Enforcement of Foreign Arbitral Awards.” 182 Examples taken from van den Berg, XXVIII Y.B. Com. Arb. 562, 681 et seq. (2003); for the interplay of Article VI of the European Convention and Article II(3) NYC cf. Spain: Audiencia Provincial de Barcelona, XXXV Y.B. Com. Arb. 452, 453 (2010). 183 Van den Berg, NYC, pp. 96 et seq.; van den Berg, XXVIII Y.B. Com. Arb. 562, 682 (2003). Õ para. 59 for the prohibition of mixing multiple enforcement regimes. 184 Cf. France: CA Rouen, Rev. arb. 1985, 115 with note Delvolvé = XI Y.B. Com. Arb. 491, 496 (1986). Diss. van den Berg, NYC, pp. 97 et seq. (relationship of the NYC and the European Convention is not one of conflicts of law but of a complementary nature). 185 But see Moller, EWS 1996, 297, 300 for the situation where both Conventions entered into force together.

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and the State where the award was made and if the arbitration agreement falls within the scope of application of the two Conventions, the European Convention takes precedence (lex posterior derogat legi priori). However, as Article X(7) does not affect the validity of the NYC, recognition and enforcement of the award is to be based on Article III NYC; the modifications of the NYC brought about by the European Convention have to be observed.186 b) European Convention Applicable Only in Recognition/Enforcement State If only the NYC is applicable in the relationship between the State where recogni- 83 tion and enforcement is sought and the State where the award was made, and the European Convention comes into effect in the recognition and enforcement State thereafter, but not in the State where the award was made, the European Convention does not take precedence despite the principle lex posterior derogat legi priori insofar as the European Convention stipulates higher prerequisites for recognition and enforcement: a State may not evade its obligations under the NYC by arguing that it subsequently entered into the European Convention,187 cf. Article 30(4)(b) of the Vienna Convention on the Law of Treaties. The competent authority may thus not refuse recognition and enforcement by arguing that the award would not comply with the European Convention. As to the more favorable provisions of the European Convention (which lower the 84 prerequisites for recognition and enforcement), they do not come into operation by way of Article VII(1) alt. 2 NYC since the European Convention does not establish a separate set of recognition and enforcement rules in that sense.188 However, insofar as the European Convention stipulates lower prerequisites for recognition and enforcement, the competent authority would not be barred from allowing recognition and enforcement based on its discretion accorded by Article V NYC (“may”).189

4. Differences Between the NYC and the European Convention In arbitration practice, the European Convention may be of relevance in a number of 85 scenarios where the recognition and enforcement of an arbitration agreement or award is at issue. In all of these cases, the European Convention’s more liberal provisions regarding the recognition of arbitration agreements and awards do not come into operation via Article VII(1) alt. 2, as the European Convention is not a separate enforcement regime, but via the general principles of lex posterior derogat legi priori and lex specialis derogat legi generali (Õ para. 81).

186 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 507; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 133. 187 Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 507; Schlosser, Recht der Schiedsgerichtsbarkeit, para. 134; Adolphsen, in: MünchKommZPO, Annex 1 to sect. 1061, NYC, Art. VII para. 7; de la Brena, in: Zeiler/Siwy (eds), European Convention, Art. I para. 77; Haas/Kahlert, in: Weigand/ Baumann (eds), Practitioner’s Handbook, para. 21.528. 188 Õ para. 80. Diss. Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 509, but with the same result of applying (only!) the more favorable provisions of the European Convention in this scenario. 189 See Schlosser, Recht der Schiedsgerichtsbarkeit, para. 135 and Italy: Cass., IX Y.B. Com. Arb. 418 (1984) for the opposite case, in which the NYC enters into force in the relationship between the country where recognition and enforcement is sought and the award was made after the European Convention came into effect in the relationship between the recognition and enforcement country and the countries of the parties’ habitual places of residence.

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Article VII 86–88

New York Convention

a) Recognition of Arbitration Agreements Article I(2)(a) of the European Convention is more liberal than Article II(1) NYC in two regards and has therefore gained considerable practical relevance.190 First, while Article II(1) NYC requires an agreement “in respect of a defined legal relationship,” Article I(2)(a) of the European Convention contains no such restriction and thus allows in particular and without doubt for an agreement that provides for arbitration for the settlement of all future disputes between the parties (Õ Art. II paras 65 et seq. for the NYC). Second, while Article II(1) NYC requires an agreement in writing, Article I(2)(a) of the European Convention allows not only for the enforcement of written agreements – in this respect Article I(2)(a) of the European Convention is virtually identical to Article II(2) NYC – but for the enforcement of non-written agreements in certain cases as well. According to this Article, in relations between States whose laws do not require a written arbitration agreement, any agreement concluded in the form authorized by these laws is sufficient. Depending upon the laws of the two States concerned, this definition allows for arbitration agreements to be concluded orally or by the silent acceptance of a confirmatory letter by a merchant.191 Õ Art. II paras 173 et seq. for further details. 87 The European Convention may also be more liberal with regard to the issue of subjective arbitrability.192 While Article V(1)(a) NYC allows a State to limit its own ability or the ability of public bodies to submit disputes to arbitration, Article II(1) of the European Convention stipulates that within the European Convention’s scope of application, legal persons considered as “legal persons of public law” by the law applicable to them have the right to conclude valid arbitration agreements. As a result, where the European Convention is applicable the issue of subjective inarbitrability of States or public bodies becomes moot, unless a declaration under Article II(2) of the European Convention is made. Õ Art. II paras 237 et seq. for differences between Article VI(2) of the European Convention and Article V(1)(a) NYC. 86

b) Recognition and Enforcement of Arbitral Awards 88 Article IX of the European Convention has significant practical relevance.193 Its second paragraph addresses the hotly debated issue of recognition and enforcement of awards set aside in the country of origin.194 Article IX(2) of the European Convention stipulates that the application of Article V(1)(e) NYC is limited solely to the grounds for 190 Cf. e.g. Spain: TS, XI Y.B. Com. Arb. 531 (1986); TS, XXVI Y.B. Com. Arb. 851, 853 (2001); TS, XXXII Y.B. Com. Arb. 591, 594 (2007); TS, XXXIII Y.B. Com. Arb. 703, 706 (2008); Italy: Cass., XI Y.B. Com. Arb. 513 (1986); Germany: BGH, WM 1970, 1050 = II Y.B. Com. Arb. 236 (1977). 191 See Hascher, XXXVI Y.B. Com. Arb. 504, 515 et seq. (2011); de la Brena, in: Zeiler/Siwy (eds), European Convention, Art. I para. 58 for details. See also Germany: OLG Köln, RIW 1993, 499 = XXI Y.B. Com. Arb. 535, 537 (1996) for an application of Article I(2)(a) of the European Convention in practice (though under the old German arbitration law). 192 Õ Art. V para. 428 for the notion of “subjective arbitrability.” 193 Cf. France: Cass., Rev. arb. 1985, 432 with note Goldman = XI Y.B. Com. Arb. 484 (1986), and CA Rouen, Rev. arb. 1985, 115 with note Delvolvé = XI Y.B. Com. Arb. 491, 496 (1986); Austria: OGH, XXX Y.B. Com. Arb. 421, 425 (2005); Spain: TS, XXVII Y.B. Com. Arb. 528, 530 (2002); Germany: OLG Dresden, SchiedsVZ 2007, 327 = XXXIII Y.B. Com. Arb. 510, 512 (2008), followed by Germany: BGH, SchiedsVZ 2008, 195 = XXXIV Y.B. Com. Arb. 504 (2009), and BGH, SchiedsVZ 2013, 229 = XXXIX Y.B. Com. Arb. 394 (2014); Russia: Presidium of the Supreme Arbitrazh Court, XXXIV Y.B. Com. Arb. 736, 742 (2009); Federal Arbitrazh Court, Northwestern District, XXXIV Y.B. Com. Arb. 745 (2009); Federal Arbitrazh Court, Kemerovskaya Region, XXXVI Y.B. Com. Arb. 325 (2011) with note Wietzorek, Young ICCA Blog, Oct. 21, 2011. 194 Cf. Paulsson, in: United Nations (ed.), Experience and Prospects, pp. 24, 25; van den Berg, (2010) 27 J. Int. Arb. 179. Õ Art. V paras 377 et seq. and Õ Art. V paras 392 et seq. for further discussion of the issue of enforcing and recognizing awards set aside at the place of arbitration.

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setting aside set out in Article IX(1) of the European Convention in relations between Contracting States that are also parties to the NYC. According to Article V(1)(e), the setting aside of an arbitral award covered by the European Convention in a Contracting State195 shall only constitute a ground for the refusal of recognition or enforcement in another Contracting State196 where (i) such setting aside took place in the State in which, or under the law of which, the award has been made, and (ii) the award was set aside for specific reasons; these reasons correspond to those mentioned in Article V(1)(a), (b), (c) and (d) NYC.197 As a result, the setting aside of an award for lack of arbitrability or violation of public policy198 in one Contracting State of the European Convention does not justify the refusal of recognition and enforcement under Article V(1)(e). The underlying legislative motive is evident: both lack of arbitrability and violation of public policy are determined under the laws of the State where recognition and enforcement is sought (Article V(2)), which may deviate substantially from the respective laws of other countries. In other words: the laws and values of one Contracting State (where the award was set aside) should not determine enforceability in all other Contracting States. Article V(1) of the European Convention has gained practical relevance as well;199 89 this Article contains provisions on the preclusion of objections. According to the latter, the party which intends to raise a plea as to the arbitrator’s jurisdiction based on the fact that the arbitration agreement was either non-existent or null and void or had lapsed shall do so during the arbitration proceedings, not later than the delivery of its statement of claim or defense relating to the substance of the dispute; pleas based on the fact that an arbitrator has exceeded his terms of reference shall be raised during the arbitration proceedings as soon as the question on which the arbitrator is alleged to have no jurisdiction is raised during the arbitral procedure. According to Article V(2) of the European Convention, pleas in regard to jurisdiction that have not been raised during the aforementioned time-limits may not be entered during subsequent court proceedings concerning the substance or the enforcement of the award if such pleas are left to the discretion of the parties under the conflict of law rule of the court seized of the substance of the dispute or the enforcement of the award; the arbitrator’s decision on the delay in raising the plea will, however, be subject to judicial control.200 The NYC does not contain any such provision; however, here it is also generally accepted that principles of preclusion may apply in certain circumstances (Õ Art. V paras 46 et seq.). Furthermore, in a number of cases the European Convention allows parties a greater 90 scope of party autonomy regarding arbitration procedure than some domestic laws do. According to Article IV(1)(b)(iii) of the European Convention, parties to an ad hoc 195 The limitation of Article IX(1) of the European Convention refers to “the setting aside in a Contracting State,” which therefore does not seem to apply if the award has been set aside in a State which is not party to the European Convention, van den Berg, XXVIII Y.B. Com. Arb. 562, 683 (2003). 196 If an award has been set aside in a State party to the European Convention and its enforcement is sought in a NYC State that is not party to the European Convention, Article IX(1) of the European Convention does not apply, van den Berg, XXVIII Y.B. Com. Arb. 562, 683 (2003). 197 Van den Berg, NYC, p. 96. 198 Gaillard, in: Gaillard/Di Pietro (eds), NYC in Practice, pp. 69, 72. Cf. Austria: OGH, Rev. arb. 1999, 385 = XXIVa Y.B. Com. Arb. 919, 923 (1999): award set aside for public policy reasons in Slovenia was enforced in Austria under Article IV of the European Convention. 199 Cf. Spain: TS, XI Y.B. Com. Arb. 523, 524 (1986); TS, XXI Y.B. Com. Arb. 678, 679 (1996); TS, XXXI Y.B. Com. Arb. 825, 830 (2006); Austria: OGH, XXX Y.B. Com. Arb. 421, 429 (2005); Germany: KG, SchiedsVZ 2013, 112, 117 = XXXVIII Y.B. Com. Arb. 384 (2013); OLG München, XXXV Y.B. Com. Arb. 362, 364 (2010); LG Hamburg, XXV Y.B. Com. Arb. 710, 712 (2000); Latvia: Sup. Ct., XL Y.B. Com. Arb. 453 (2015). 200 Cf. Austria: OGH, XXXV Y.B. Com. Arb. 328, 329 (2010).

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New York Convention

arbitral procedure are free to determine the procedure to be followed by the arbitrators. In this case, if the arbitral procedure complies with the rules as agreed upon by the parties, but violates domestic provisions of arbitration law that the parties are not allowed to derogate from, the application of Article V(1)(d) NYC is restricted by the European Convention.201 Significant examples include provisions that do not allow parties to agree upon the exclusion of lawyers as party representatives or upon the exclusion of a reasoned award;202 the party autonomy that Article IV(1)(b)(iii) of the European Convention provides the parties with does not allow for any such restrictions of domestic law.203 91 The aforementioned discussion regarding the recognition of the arbitration agreement (Õ para. 86, Õ para. 87) applies mutatis mutandis to the recognition and enforcement of awards based upon arbitration agreements that are upheld due to the more liberal provisions of the European Convention.204

II. ICSID Convention of 1965 The recognition and enforcement of arbitral awards under Articles 53–56 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of March 18, 1965 (“ICSID Convention”) is easier than under the NYC, as the grounds for annulment of the award in Article 52 of the ICSID Convention are significantly more restrictive than those in Article V and the formalities of Article 54(2) of the ICSID Convention simpler than those of Article IV. As regards the former, there is in particular no public policy control left for the Contracting States; as the annulment procedures are conducted under the auspices of the ICSID Secretary-General, the Contracting States are de facto mere enforcement organs. One of the primary reasons for this more liberal recognition and enforcement regime is the internal review system provided by the ICSID Convention.205 As of the completion of the draft of this commentary, the ICSID Convention is applicable in 153 countries.206 93 This significantly less burdensome recognition and enforcement regime explains why the issue of applying the NYC to ICSID awards only arises in few cases in practice.207 One such case is the enforcement of an ICSID award in a State party to the NYC but not to the ICSID Convention. Another is the enforcement of a non-pecuniary obligation, which is impossible under Article 54 of the ICSID Convention; in these cases, the 92

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Moller, NZG 2000, 57, 72. See for the latter Article VIII(a) of the European Convention. Cf. Italy: CA Firenze, III Y.B. Com. Arb. 279, 281 (1978) and Cass., IX Y.B. Com. Arb. 418, 421 (1984), as well as Spain: TS, XI Y.B. Com. Arb. 523, 525 (1986) for an application of this provision. Cf. Germany: section 1046(1) ZPO, which the government bill considered as not subject to party autonomy, BT-Drucks. 13/5274, p. 48. 203 See Moller, NZG 2000, 57, 62 et seq. for these and further examples. 204 See Germany: BayObLG, NJW-RR 2003, 719 = XXIX Y.B. Com. Arb. 761, 765 (2004) for a discussion of whether Article I(2)(a) of the European Convention allows the enforcement of an award based upon an oral arbitration agreement (it did not allow it in casu as only one of the two legal systems involved allowed for the enforcement). See Spain: TS, XIV Y.B. Com. Arb. 699, 700 (1989) for a further example of applying Article I(2)(a) of the European Convention when determining the enforceability of an award. 205 Schreuer/Malintoppi/Reinisch/Sinclair, ICSID Convention, Art. 54 para. 4. 206 See http://icsid.worldbank.org for the current status of the parties and the full text of the ICSID Convention, including the respective dates of ratification and entry into force (last visited Apr. 12, 2019). 207 Cf. Poudret/Besson, Comparative Arbitration, para. 899; Schreuer/Malintoppi/Reinisch/Sinclair, ICSID Convention, Art. 54 para. 5; van den Berg, NYC, p. 99; van den Berg, XXVIII Y.B. Com. Arb. 562, 678 (2003). 202

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ICSID Additional Facility Rules208 apply by way of analogy,209 which mandate in Article 3 that the ICSID Convention is not applicable. As the Additional Facility Rules do not contain any provisions on the recognition and enforcement of arbitral awards, the ordinary rules governing the recognition and enforcement of awards apply, including the NYC. This is recognized by the Additional Facility Rules themselves, which mandate in Article 1 that arbitration proceedings shall be held only in States that are parties to the NYC.210 If one of the involved States made a declaration under Article I(3)(2) NYC, there is 94 an apparent conflict with Article 4(3) Additional Facility Rules, which mandates that the underlying transaction must have features which distinguish it from an ordinary commercial transaction. However, Article 4(3) Additional Facility Rules should not be interpreted as to require “other than” but rather “more than” a commercial transaction; in other words, the disputes covered by the Additional Facility Rules are covered by the NYC even if one of the States restricted the NYC’s application to commercial relationships.211

III. Panama Convention of 1975 1. Overview and Practical Relevance The Inter-American Convention on International Commercial Arbitration of Janu- 95 ary 30, 1975 (“Panama Convention”)212 was modeled after the NYC. It entered into force on June 16, 1976 and was intended to bring the so-called “Calvo Doctrine” to an end. Bearing the name of an Argentine diplomat, this doctrine essentially held that jurisdiction in international commercial disputes lies with the State in which the investment is located. This doctrine reflected the general aversion to arbitration that reigned in Latin America in the century prior to 1975.213 As of the completion of the draft of this commentary, the Panama Convention is 96 applicable in 19 countries.214 Its practical significance seems to be decreasing, as can be seen e.g. from a survey conducted in the year 2008 on decisions of Latin American courts on the enforcement of foreign arbitral awards. According to this survey, the majority of the courts dealt with enforcement pursuant to the NYC; this indicates that the NYC is increasingly applied as the exclusive instrument for recognition and

208 See http://icsid.worldbank.org for the full text of the ICSID Additional Facility Rules (last visited Apr. 12, 2019). 209 Schreuer/Malintoppi/Reinisch/Sinclair, ICSID Convention, Art. 54 para. 5. 210 Cf. Schreuer/Malintoppi/Reinisch/Sinclair, ICSID Convention, Art. 54 para. 13. 211 Schreuer/Malintoppi/Reinisch/Sinclair, ICSID Convention, Art. 54 para. 13. 212 Organization of American States, Treaty Series, No. 42. The full text of the Panama Convention is reprinted in Õ Annex V 4. See Kleinheisterkamp, Arbitration in Latin America, pp. 22 et seq.; van den Berg, NYC, p. 101; Hamilton, 30 U. Pa. J. Int’l L. 1099 (2008/2009) for the Panama Convention. 213 See Hamilton, 30 U. Pa. J. Int’l L. 1099, 1100 (2008/2009) for the historical context of the Panama Convention. 214 Argentina (Nov. 3, 1994), Bolivia (Oct. 8, 1998), Brazil (Aug. 31, 1995), Chile (Apr. 8, 1976), Colombia (Nov. 18, 1986), Costa Rica (Jan. 2, 1978), Dominican Republic (Feb. 11, 2008), Ecuador (Aug. 6, 1991), El Salvador (June 27, 1980), Guatemala (July 7, 1986), Honduras (Jan. 8, 1979), Mexico (Feb. 15, 1978), Nicaragua (July 15, 2003), Panama (Nov. 11, 1976), Paraguay (Dec. 2, 1976), Peru (May 2, 1989), US (Nov. 10, 1986), Uruguay (Mar. 29, 1977), Venezuela (Mar. 22, 1985). The dates refer to the ratification, acceptance or accession, respectively, of the individual State. See http://www.oas.org for the current status of the Panama Convention’s parties as well as for declarations and reservations made (last visited Apr. 12, 2019).

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enforcement in Latin America as well.215 Nevertheless, there are still countries in Latin America where there has not yet been any court decision on the NYC reported at all.216

2. Scope of Application The Panama Convention contains no explicit definition of its scope of application, which is therefore not entirely clear. The ambiguity relates to whether the award must deal with a commercial dispute (Õ para. 98) and/or international dispute (Õ para. 99) to fall within the ambit of the Panama Convention. 98 Just like the NYC, Article 1(1) of the Panama Convention calls for it to apply to both arbitral clauses and submission agreements (“any differences […] that may arise or have arisen”).217 Given the Panama Convention’s title and as Article 1(2) of the Panama Convention stipulates that arbitration agreements regarding differences “with respect to a commercial transaction” are valid, the Panama Convention seems to be restricted to commercial arbitration.218 This deviates partially from Article I(3)(2) NYC, which permits Contracting States to adopt a commercial reservation, while by default all international arbitration proceedings fall within the NYC’s scope of application. It is disputed which law determines whether the dispute is of a commercial nature; as the Panama Convention was modeled after the NYC, it seems reasonable not to require that the matter is commercial according to all laws involved, but instead to apply mutatis mutandis the rule in Article I(3)(2) NYC that the lex fori decides this question.219 99 The Panama Convention’s title further suggests that its scope of application is limited to international arbitration. What remains unclear, however, is when the arbitration can be considered to be international.220 Two levels of internationality have to be distinguished.221 First, a Contracting State to the Panama Convention might apply the Panama Convention only to awards made in another Contracting State; this is the reciprocity requirement in Article I(3)(1) NYC. Second, a Contracting State might apply the Panama Convention only to awards that concern a relationship between legal persons belonging to (different) Contracting States; the NYC does not contain any such requirement. There does not yet seem to be any uniform interpretation of the Panama Convention with regard to these two levels of internationality. As to the first level, one may infer from Article 5 of the Panama Convention (which is almost identical to Article V NYC) that the Panama Convention applies to awards made in another State. Adding the Panama Convention’s title “Inter-American,” much counsels in favor of applying the Panama Convention (only) to awards made in another Contracting State of the Panama Convention.222 Otherwise the Panama Convention would be given the same universality as is acknowledged in respect to the NYC, although denying the opportunity to restrict the application to reciprocity as in Article I(3)(1) NYC. This would disregard the firm tradition of Inter-American conventions of limiting their scope of application to the sphere of the 97

215

Conejero Roos, The Arbitration Review of the Americas 2009, pp. 21, 26. E.g. Ecuador in the year 2009, Jujón-Letort/Robalino-Orellana, The Arbitration Review of the Americas 2009, pp. 43, 45. 217 Kleinheisterkamp, Arbitration in Latin America, p. 24. 218 Van den Berg, (1989) 5 Arb. Int’l 214, 218. 219 See Kleinheisterkamp, Arbitration in Latin America, p. 24; Bowman, 11 Am. Rev. Int’l Arb. 1, 40 (2000) with further references. 220 See Kleinheisterkamp, Arbitration in Latin America, pp. 25 et seq. with further references. For a recent discussion of the internationality requirement in a pre-award scenario see US: Freaner v. Lutteroth Valle, XXXIX Y.B. Com. Arb. 559 (2014) (S.D. Cal. 2013). 221 Van den Berg, (1989) 5 Arb. Int’l 214, 119. 222 Van den Berg, (1989) 5 Arb. Int’l 214, 220; van den Berg, XXVIII Y.B. Com. Arb. 562, 685 (2003). 216

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Contracting States.223 As to the second level, given the traditional Latin American tendency to require reciprocity, it seems to be a safe assumption that the courts in the Contracting States to the Panama Convention require reciprocity in this regard as well.224

3. Relation Between the NYC and the Panama Convention The relationship between the NYC and the Panama Convention is governed by the 100 general principles governing conflicts between the NYC and other treaties described in Õ paras 28 et seq. As a result, in the usual case where the Panama Convention entered into force in the State where recognition and enforcement is sought after the NYC, the principle of lex posterior derogat legi priori calls for the application of the Panama Convention (Õ para. 31).225 The NYC would only be applicable if one were to interpret Article 4 cl. 2 of the Panama Convention as a compatibility provision in the sense of Article VII(1) alt. 1. The provision in Article 4 cl. 2, however, is ambiguous,226 as it is unclear whether the “international treaties” mentioned therein are treaties regarding “decisions handed down by national or foreign ordinary courts” in the sense of Article 4 cl. 2 or regarding “arbitral decision[s] or awards[s]” in the sense of Article 4 cl. 1; only in the second alternative would the NYC be applicable. From an economic perspective, the relationship between the NYC and the Panama 101 Convention is probably most relevant in US relations, which might explain why most reported court decisions on this relationship stem from US courts.227 9 U.S.C. 305 stipulates that when both Conventions are applicable and unless otherwise expressly agreed, if a majority of the parties to the arbitration agreement are citizens of a State or States that have ratified or acceded to the Panama Convention and are Member States of the Organization of American States, the Panama Convention shall apply, in all other cases the NYC applies. In order to ensure the uniformity of the Panama Convention with the NYC, 9 U.S.C. 302 mandates that a number of provisions of the FAA are applicable in addition to the provisions of the Panama Convention. The House of Representative’s Report on the Panama Convention’s implementing legislation therefore expressed the expectation that the courts in the US would achieve a general uniformity of results under the Panama Convention and the NYC.228 The case law of US courts seems to confirm this expectation.229 223

Kleinheisterkamp, Arbitration in Latin America, p. 25. Van den Berg, (1989) 5 Arb. Int’l 214, 221; Kleinheisterkamp, Arbitration in Latin America, p. 26. 225 Van den Berg, (1989) 5 Arb. Int’l 214, 227; van den Berg, XXVIII Y.B. Com. Arb. 562, 686 (2003). Same result, but with different reasoning: Kleinheisterkamp, Arbitration in Latin America, p. 27 (on the basis of the principle of lex specialis derogat legi generali). 226 Likewise van den Berg, XXVIII Y.B. Com. Arb. 562, 686 (2003). 227 See e.g. US: Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional de Venez., 802 F. Supp. 1069 (S.D.N.Y. 1992), reversed by 991 F.2d 42 (2d Cir. 1993), both reported in XIX Y.B. Com. Arb. 825 (1994); Productos Mercantiles e Industriales, S.A. v. Faberge USA, Inc., 23 F.3d 41 (2d Cir. 1994) = XX Y.B. Com. Arb. 955 (1995); Nicor Int’l Corp. v. El Paso Corp., 2003 U.S. Dist. LEXIS 21306 (S.D. Fla. 2003) = XXIX Y.B. Com. Arb. 1140 (2004); TermoRio S.A. E.S.P. v. Electrificadora del Atlantico S.A. E.S.P., 2006 WL 695832 (D.D.C. 2006) = XXXI Y.B. Com. Arb. 1457 (2006), affirmed by TermoRio S.A. E.S.P. v. Electranta S.P., 2007 U.S. App. LEXIS 12201 (D.C. Cir. 2007) = XXXIII Y.B. Com. Arb. 955 (2008); Sanluis Devs., L.L.C. v. CCP Sanluis, L.L.C., 556 F. Supp. 2d 329 (S.D.N.Y. 2008) = XXXIII Y.B. Com. Arb. 1172 (2008); RZS Holdings AVV v. PDVSA Petroleos S.A., 2009 U.S. Dist. LEXIS 47126 (E.D. Va. 2009) = XXXIV Y.B. Com. Arb. 1023 (2009); Rimac Internacional Cia. de Seguros y Reaseguros, S.A. v. Exel Global Logistics, Inc., 2009 WL 1868580 (S.D.N.Y. 2009) = XXXIV Y.B. Com. Arb. 1132 (2009); Trevino Hernandez, S. de R.L. de C.V. v. Smart & Final, Inc., 2010 U.S. Dist. LEXIS 60755 (S.D. Cal. 2010) = XXXV Y.B. Com. Arb. 551 (2010). 228 Cf. House of Representatives Report No. 101–105, at 5 (1990). 229 Cf. US: Employers Ins. of Wausau v. Banco de Seguros del Estado, 199 F.3d 937, 942 (7th Cir. 1999); Productos Mercantiles e Industriales, S.A. v. Faberge USA, Inc., 23 F.3d 41, 44–45 (2d Cir. 1994) = XX Y.B. Com. Arb. 955 (1995); Bowman, 11 Am. Rev. Int’l Arb. 1, 23 (2000). 224

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4. Differences Between the NYC and the Panama Convention 102

The Panama Convention is not a verbatim copy of the NYC.230 In addition to the ambiguity of the Panama Convention’s scope of application (Õ paras 97 et seq.), which contrasts sharply with the precise definition of the NYC’s scope of application in Article I, there are a number of differences between the two Conventions.

a) Default Arbitration Rules Probably the most material difference is Article 3 of the Panama Convention, which mandates that, in the absence of an express agreement between the parties, the arbitration shall be conducted in accordance with the Rules of Procedure of the Inter-American Commercial Arbitration Commission. These Rules were modeled after the UNCITRAL Arbitration Rules of 1976.231 The NYC does not establish any such default rules of procedure, but refers instead to the agreement of the parties, and in the absence of such agreement to the arbitration law of the State where the arbitration took place, in its Article V(1)(d) for the composition of the arbitral tribunal and arbitral procedure. 104 The reference in Article 3 of the Panama Convention is a dynamic one, allowing the Inter-American Commercial Arbitration Commission to change these rules.232 In light of this, US legislation has frozen the applicable version of the rules of procedure to those promulgated by the Inter-American Commercial Arbitration Commission on July 1, 1988, unless the Secretary of State prescribes otherwise,233 which they did in 2002 by declaring the Rules as amended in 2002 applicable.234 The Rules as revised in 2010 are thus not applicable. The International Centre for Dispute Resolution of the American Arbitration Association has had an agreement with the Inter-American Commercial Arbitration Commission to administer their arbitrations since 2002.235 103

b) Recognition of Arbitration Agreements As to the recognition of arbitration agreements, the definition of an arbitration agreement in Article 1 of the Panama Convention includes agreements set forth in “telex communication,” which is not included in the text of Article II(2) NYC. Since UNCITRAL recommends applying Article II(2) in a manner recognizing that the circumstances described therein are not exhaustive (Õ Art. II para. 111), this difference should be of no practical relevance. However, there is little case law discussing the form requirements of Article 1 of the Panama Convention.236 106 The Panama Convention does not – at least explicitly – provide for the action for the enforcement of the arbitration agreements as Article II(3) NYC does. One may, however, derive an implied action to this end from Articles 1 to 3 Panama Convention. The effect of these provisions is likely to be that a court will decline jurisdiction over a case falling within the scope of an arbitration agreement if one of the parties invokes the agreement.237 105

230

Van den Berg, XXVIII Y.B. Com. Arb. 562, 685 (2003). Kleinheisterkamp, Arbitration in Latin America, p. 25. 232 Kleinheisterkamp, Arbitration in Latin America, p. 29. 233 9 U.S.C. 306. 234 22 C.F.R. 194(1). 235 Hamilton, 30 U. Pa. J. Int’l L. 1099, 1119 (2008/2009). See http://www.adr.org for further details (last visited Apr. 12, 2019). 236 For an example with further references see US: Freaner v. Lutteroth Valle, XXXIX Y.B. Com. Arb. 559 (2014) (S.D. Cal. 2013). 237 Van den Berg, (1989) 5 Arb. Int’l 214, 221. 231

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c) Recognition and Enforcement of Arbitral Awards As to the enforcement of awards, only slight differences exist between the two 107 Conventions. While Article III NYC mandates recognition and enforcement in accordance with the rules of procedure of the territory were the award is relied upon and prohibits Contracting States from imposing substantially more onerous conditions or higher fees or charges than are imposed on the recognition or enforcement of domestic arbitral awards, Article 4 of the Panama Convention requires execution or recognition in the same manner as that of decisions handed down by national or foreign ordinary courts, in accordance with the procedural laws of the State where it is to be executed and the provisions of international treaties. The Panama Convention does not contain a provision similar to Article IV NYC 108 and thus leaves parties in the dark as to the necessary documentation for obtaining enforcement of an award under the Panama Convention.238 As Article 4 cl. 2 of the Panama Convention stipulates that recognition and enforcement of the award may be ordered “in accordance with […] the provision of international treaties,” it is suggested to refer to Article 3 of the Montevideo Convention of 1979 (Article 1(2) Montevideo Convention stipulates that it applies in all matters not covered by the Panama Convention) or Article IV NYC for guidance;239 against the background of the ambiguous wording of Article 4 (Õ para. 100), the former seems to be the safer way. As to the standards for the enforcement of awards, there are no substantial 109 differences between the two Conventions. Indeed, the drafters of the Panama Convention incorporated Article V NYC almost verbatim into Article 5 of the Panama Convention.240

IV. Regulation of the European Parliament and of the Council (EU) No. 1215/2012 1. The Former Council Regulation (EC) No. 44/2001 Article 1(2)(d) of the former Council Regulation (EC) No. 44/2001 of December 22, 110 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters excluded “arbitration” from its scope of application. The same provision featured in Article 1(4) of the preceding European Convention of 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (“Brussels Convention”).241 This exception was included into the text of the Brussels Convention in order to comply with international agreements already existing in this area, particularly the NYC.242 Courts of Member States interpreted this exclusion broadly, excluding not only 111 actual arbitration proceedings, but also related proceedings before national courts from the scope of the regulation, namely all court proceedings that serve or support 238

Van den Berg, (1989) 5 Arb. Int’l 214, 222. Van den Berg, (1989) 5 Arb. Int’l 214, 223. 240 Van den Berg, XXVIII Y.B. Com. Arb. 562, 685 (2003). 241 Cf. case law regarding Article 1(4) of the preceding European Convention of 1968 Germany: BGH, NJW-RR 1991, 757, 758 = RIW 1991, 420 = XVII Y.B. Com. Arb. 513, 514 (1992) and France: CA Paris, XXXI Y.B. Com. Arb. 635, 637 (2006). The Lugano Convention contains a similar provision, cf. Spain: TS, XXX Y.B. Com. Arb. 623, 625 (2005). 242 Cf. Jenard, Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 27 September 1968, and the enforcement of authentic instruments, 1979 OJ C 59/1, ch. 3, IV D; Evrigenis/Kerameus, Report on the Accession of the Hellenic Republic to the Community Convention on Jurisdiction and the enforcement of Judgments in Civil and Commercial Matters, 1986 OJ C 298/1, 10. 239

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arbitration proceedings or safeguard their functionality.243 This thus included all proceedings of the so-called “juge d’appui,”244 such as the appointment or dismissal of arbitrators, the fixing of the place of arbitration245 and proceedings concerning requests for vacation, amendment, recognition and enforcement of arbitral awards, including court decisions incorporating arbitral awards on the basis of the doctrine of merger.246 The Council Regulation could thus not be raised through Article VII(1) alt. 2 NYC in respect of the recognition and enforcement of arbitration awards.247 112 The same applied to the recognition of arbitration agreements, although with different reasoning. According to the decision of the ECJ in West Tankers, a case in which an antisuit injunction of the London High Court was at issue, Article 1(2)(d) Council Regulation did not exclude cases in which the existence and applicability of an arbitration agreement merely constituted a preliminary issue which the court seized had to address when examining whether it had jurisdiction from the Regulation’s scope of application. In the eyes of the Court, it could not be inferred either from Article II(3) NYC or from the Council Regulation that that entitlement would be reserved solely for the arbitral body or the national courts at its seat. The ECJ considered the anti-suit injunction inadmissible, since it would be contrary to the general principle embodied in the Council Regulation that every court determines itself, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it, and since obstructing the court of another Member State in the exercise of the powers conferred on it by the Council Regulation would run counter to the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction is based.248 However, as the Council Regulation did not provide for any (and thus in any event not for a more liberal) enforcement regime for arbitration agreements, the Council Regulation could not be raised through Article VII(1) alt. 2 NYC either.

2. Revision of the Council Regulation 113

The former Council Regulation has been revised in the not too distant past. During the reform process, there was substantial discussion about whether and to what extent the Council Regulation’s scope of application regarding arbitration should be broadened.249 243 Cf. ECJ: Marc Rich & Co. AG v. Società Italiana Impianti PA (C-190/89), NJW 1993, 189 and Van Uden Maritime BV v. Kommanditgesellschaft in Firma Deco-Line (C-391/95), EuZW 1999, 413; Germany: BGH, SchiedsVZ 2009, 174, 175. See e.g. Gottwald, in: MünchKommZPO, Regulation 1215/2012 Art. 1 para. 24. 244 Schlosser, in: Wagner/Schlosser (eds), Vollstreckung, pp. 145, 154. 245 Examples from Schlosser, Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, 1979 OJ C 59/71 para. 61. 246 Germany: BGH, SchiedsVZ 2009, 285, 286 = XXXV Y.B. Com. Arb. 374, 376 (2010) with note Plaßmeier, SchiedsVZ 2010, 82. 247 Cf. Poudret/Besson, Comparative Arbitration, para. 901. 248 ECJ: Allianz SpA v. West Tankers Inc. (C-185/07), SchiedsVZ 2009, 120 with notes SeelmannEggebert/Clifford, SchiedsVZ 2009, 139, Steinbrück/Illmer, SchiedsVZ 2009, 188, and Lehmann, NJW 2009, 1645. See Niggemann, SchiedsVZ 2010, 67 for the clash between this so-called West Tankers decision and the French “negative compétence compétence” doctrine; cf. also Schlosser, in: Wagner/ Schlosser (eds), Vollstreckung, pp. 145, 155. The principles of the ECJ in West Tankers are not applicable to the enforcement of an anti suit-injunction of an arbitral tribunal in a case where the enforcement proceedings and the main court proceedings are pending in the same Member State, cf. ECJ: Gazprom OAO v. Lietuvos Respublika (C-536/13), EuZW 2015, 509 with notes Wais, EuZW 2015, 511 and Pickenpack, EWiR 2016, 61. 249 Cf. Commission Green Paper on the Review of the Council Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, COM(2009) 175 final, as well as the corresponding Report in COM(2009) 174.

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The authors of the so-called Heidelberg Report suggested lifting the exclusion in Article 1(2)(d) of the former Council Regulation recommending inter alia the establishment of the exclusive jurisdiction of the courts at the place of arbitration for court proceedings relating to arbitral matters.250 Deleting Article 1(2)(d) would have had significant consequences: in addition to the proceedings of the “juge d’appui,” court decisions declaring an arbitration agreement valid or invalid and court decisions concerning the vacation of an arbitral award would have had to be recognized under the Council Regulation.251 The prevailing view in the international arbitration community seemed to be that an extension of the Council Regulation to arbitration would be undesirable as it would give rise to more difficulties than currently exist and would adversely interfere with the Convention,252 which was the reason for including the arbitration exception in the first place (Õ para. 110). In Article 1(2)(d) of its draft of December 14, 2010 for a new Regulation,253 based 114 upon the recommendations of an expert group appointed in June 2010,254 the European Commission retained the principle that the Regulation does not apply to arbitration, save in the limited cases provided for therein. In particular, the Regulation continued to “not apply to the form, existence, validity or effects of arbitration agreements, the powers of the arbitrators, the procedure before arbitral tribunals, and the validity, annulment, and recognition and enforcement of arbitral awards” (Whereas (11)). However, in order to improve the effectiveness of arbitration agreements, in particular in cases where the agreed or designated seat of an arbitration is in a Member State, Articles 29(4) and 33(3) of the draft provided for rules “aimed at avoiding parallel proceedings and abusive litigation tactics” (Whereas (20)).255 In the draft Report of the European Parliament’s Committee on Legal Affairs of June 28, 2011, the Committee suggested excluding “[t]he whole matter of arbitration” from the scope of the Regulation, i.e. “all aspects of arbitration.”256 The Council’s proposal of June 1, 2012 adopted this exclusion by upholding Article 1(2)(d) and inserting an extensive recital into the Regulation’s text.257 In its final version, the new Regulation of the European Parliament and of the 115 Council (EU) No. 1215/2012 of December 12, 2012 continues to exclude arbitration from its scope of application (Article 1(2)(d)). In addition, Article 73(2) of the Regulation of the European Parliament and of the Council now stipulates that the Regulation shall not affect the application of the 1958 New York Convention, which is merely of a clarifying nature as the predominant view has always considered the NYC as a convention in the sense of Article 71 of the Regulation of the European Parliament

250 Cf. Hess/Pfeiffer/Schlosser, The Brussels I Regulation (EC) No 44/2001: The Heidelberg Report on the Application of Regulation Brussels I in 25 Member States, 2009. See also Schlosser, SchiedsVZ 2009, 129 et seq.; Schlosser, in: Wagner/Schlosser (eds), Vollstreckung, pp. 145 et seq. A comparable suggestion has been made by van Houtte, (2005) 4 Arb. Int’l 509. 251 Cf. Schlosser, in: Wagner/Schlosser (eds), Vollstreckung, pp. 145, 154 et seq. 252 Cf. e.g. IBA Submission to the European Commission on Regulation (EC) No. 44/2001, 10 BLI 3 (2009), 302, 304. 253 COM(2010) 748 final, see http://ec.europa.eu/justice/policies/civil/docs/com_2010_748_en.pdf (last visited Apr. 12, 2019). See Illmer, SchiedsVZ 2011, 248 et seq. for a comment on the draft. 254 See Illmer, RabelsZ 75 (2011), 645, 657 for details. 255 See Illmer, RabelsZ 75 (2011), 645, 657 et seq. for a comment on Articles 29(4) and 33(3) of the draft. 256 Draft Report on the proposal for a regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 2010/ 0383 (COD), p. 6. See Kunick/Lamb/Prantl/Regenhardt, SchiedsVZ 2012, 21, 25 for a comment. 257 2010/0383 (COD) ADD 1.

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and of the Council.258 This Article stipulates that the Regulation shall not affect any conventions to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. Given that the exclusion of arbitration in Article 1(2)(d) of the former Council Regulation (EC) 44/ 2001 was adopted without changes in Article 1(2)(d) of the Regulation of the European Parliament and of the Council (EU) No. 1215/2012, it is to be expected that the new provision is to be interpreted as broadly as its predecessor (Õ para. 111, Õ para. 112). 116 To further clarify the relationship between arbitral tribunals and the courts, a new Whereas (12) with four sub-paragraphs was introduced into the Regulation of the European Parliament and of the Council.259 In its first sub-paragraph, Whereas (12) stipulates that the “Regulation should not apply to arbitration. Nothing in this Regulation should prevent the courts of a Member State, when seised of an action in a matter in respect of which the parties have entered into an arbitration agreement, from referring the parties to arbitration, from staying or dismissing the proceedings, or from examining whether the arbitration agreement is null and void, inoperative or incapable of being performed, in accordance with their national law.” This is considered to address, inter alia, the West Tankers scenario (Õ para. 112).260 In its second sub-paragraph, Whereas (12) continues to explain that “[a] ruling given by a court of a Member State as to whether or not an arbitration agreement is null and void, inoperative or incapable of being performed should not be subject to the rules of recognition and enforcement laid down in this Regulation, regardless of whether the court decided on this as a principal issue or as an incidental question.” This is considered as a correction of the judgment of the Court of Appeal in National Navigation.261 In its third sub-paragraph, which is intended to limit the wide language of the second sub-paragraph and may stir controversy,262 Whereas (12) notes that “[o]n the other hand, where a court of a Member State, exercising jurisdiction under this Regulation or under national law, has determined that an arbitration agreement is null and void, inoperative or incapable of being performed, this should not preclude that court’s judgment on the substance of the matter from being recognised or, as the case may be, enforced in accordance with this Regulation. This should be without prejudice to the competence of the courts of the Member States to decide on the recognition and enforcement of arbitral awards in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 (‘the 1958 New York Convention’), which takes precedence over this Regulation.” In its fourth sub-paragraph, which complements the first sub-paragraph,263 Whereas (12) acknowledges that the Regulation “should not apply to any action or ancillary proceedings relating to, in particular, the establishment of an arbitral tribunal, the powers of arbitrators, the conduct of an arbitration procedure or any other aspects of such a procedure, nor to any action or judgment concerning the annulment, review, appeal, recognition or enforcement of an arbitral award,” which deviates from the recommendations of both the Heidelberg Report (Õ para. 113) and the draft of the European Commission (Õ para. 114).

258

See Hess, JZ 2014, 538, 539; Pohl, IPRax 2013, 109, 110. See for this Whereas (12) the Opinion of the Advocate General delivered on Dec. 4, 2014 in the decision in ECJ: Gazprom OAO v. Lietuvos Respublika (C-536/13), EuZW 2015, 509 (Õ n. 248), available under eur-lex.europa.eu (last visited Apr. 12, 2019); Hess, JZ 2014, 538, 539–541; Pfeiffer, ZZP 127 (2014), 409, 413; Pohl, IPRax 2013, 109, 110. 260 See Hess, JZ 2014, 538, 540. 261 UK: National Navigation v. Endesa Generacion SA, [2009] EWCA Civ 1397, see Hess, JZ 2014, 538, 540. 262 Hess, JZ 2014, 538, 540. 263 Hess, JZ 2014, 538, 540. 259

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Article VIII [Signing and Ratifying the Convention] 1. This Convention shall be open until 31 December 1958 for signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations. 2. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary-General of the United Nations. Specific Bibliography (Articles VIII-XVI): Alvarez, The Implementation of the New York Convention in Canada, (2008) 25 J. Int. Arb. 669; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International 2014; Chibueze, The Adoption and Application of the Model Law in Canada – PostArbitration Challenge, (2001) 18 J. Int. Arb. 195; Corten/Klein (eds), The Vienna Conventions on the Law of Treaties, A Commentary, Oxford University Press 2011; Delbrück/Dahm/Wolfrum, Völkerrecht, 2nd ed., de Gruyter 2002; Geimer/Schütze (eds), Internationaler Rechtsverkehr in Zivil- und Handelssachen, 56th ed., C. H. Beck 2018; Haas/Kahlert, New York Convention, in: Weigand/Baumann (eds), Practitioner’s Handbook on International Commercial Arbitration, 3rd ed., Oxford University Press 2019, p. 1572; Hafner/Novak, State Succession in Respect of Treaties, in: Hollis (ed.), The Oxford Guide to Treaties, Oxford University Press 2012, p. 396; Hobe, Einführung in das Völkerrecht, 10th ed., UTB 2014; Ipsen (ed.), Völkerrecht, 7th ed., C. H. Beck 2018; Kohona, Reservations: Discussion of Recent Developments in the Practice of the Secretary-General of the United Nations as Depositary of Multilateral Treaties, 33 Ga. J. Int’l & Comp. L. 415 (2005); Kronke/Nacimiento/Otto/Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International 2010; Kühner, Vorbehalte zu multilateralen völkerrechtlichen Verträgen, Reservations to Multilateral Treaties, Springer 1986; Maurer, Begründet die völkerrechtswidrige Verweigerung der Vollstreckung eines ausländischen Schiedsspruchs einen Schadensersatzanspruch des Schiedsklägers? – Die „Durchsetzung“ multilateraler völkerrechtlicher Verträge durch private Parteien, SchiedsVZ 2011, 75; Mistelis (ed.), Concise International Arbitration, 2nd ed., Kluwer Law International 2015; M. R. P. Paulsson, The New York Convention: Can we finally move forward from 1958 to 1953?, 1(1) EIAR 1 (2012); Shaw, International Law, 8th ed., Cambridge University Press 2017; Stein/Jonas (eds), Kommentar zur Zivilprozessordnung, Vol. 10: §§ 1025–1066, 23rd ed., Mohr Siebeck 2014; Stein/von Buttlar/Kotzur, Völkerrecht, 14th ed., Franz Vahlen 2017; Swaine, Treaty Reservations, in: Hollis (ed.), The Oxford Guide to Treaties, Oxford University Press 2012, p. 277; Thomson/Finn, International Commercial Arbitration: A Canadian Perspective, (2002) 18 Arb. Int’l 205; UNCITRAL, UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), 2016, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/2016_guide_ on_the_convention.pdf (last visited Apr. 20, 2019); United Nations (ed.), United Nations Treaty Collection, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc. St/LEG/ 7/Rev.1, New York 1999, available at http://treaties.un.org/doc/source/publications/practice/summary_ english.pdf (last visited Apr. 20, 2019); United Nations (ed.), Treaty Handbook, Revised edition 2012; van den Berg, Consolidated Commentary Cases Reported in Volumes XXII (1997) – XXVII (2002), XXVIII Y.B. Com. Arb. 562 (2003); Vitzthum/Proelß (eds), Völkerrecht, 7th ed., de Gruyter 2016. Table of Contents I. II. III. IV.

Overview ................................................................................................................... 1 Spirit and Purpose .................................................................................................. 2 Drafting History ...................................................................................................... 3 Convention Open for Signature (Article VIII(1)) ........................................... 8 1. Relevance and Deadline .................................................................................... 8 2. Addressees............................................................................................................ 9 a) Any Member of the United Nations........................................................ 10

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Article VIII 1–5

New York Convention

b) Any Member of Any Specialized Agency of the United Nations ..... c) Any Party to the Statute of the International Court of Justice.......... d) Any Other State to Which an Invitation Has Been Addressed by the General Assembly of the United Nations ........................................ V. Ways to Join the Convention............................................................................... 1. General Options to Join an International Treaty ....................................... 2. Signing and Ratification.................................................................................... a) Signature ......................................................................................................... b) Ratification ..................................................................................................... c) Formal Requirements .................................................................................. d) Relevance ........................................................................................................

11 12 13 14 14 15 16 18 19 21

I. Overview 1

Article VIII addresses two issues, (i) who may join the Convention (Õ paras 9 et seq.) and (ii) how the Convention shall be ratified (Õ para. 18).

II. Spirit and Purpose 2

Article VIII is a rather technical provision dealing with the question of who may become a member of the Convention. Its enumeration of States that may become Contracting States is also significant for subsequent Articles, e.g. Articles IX, XV and XVI.

III. Drafting History Article VIII reflects the content of Article 5 of the Geneva Protocol (Õ Annex V 1) and Article 7 of the Geneva Convention (Õ Annex V 2). Unlike Article VIII(1), those provisions did not stipulate a deadline for signing the respective treaty. 4 The wording of Article VIII has not changed in comparison to the original wording of the ECOSOC draft; Article VII has been restated as Article VIII. The Drafting Committee discussed the wording of Article VIII in particular with respect to the question as to which States should have the right to join the Convention. The representative of the USSR proposed adopting the wording of Article VII of the ICC draft,1 according to which the Convention would be open to all States.2 He was of the opinion that the text of the ECOSOC draft would restrict the number of participants, thereby contradicting the purpose of the Convention. The Indian representative supported this view while the majority of the Drafting Committee believed “that it was desirable to have a more detailed formula.”3 5 During the New York Conference in 1958, the Polish representative started a new debate and proposed the following wording: “This Convention shall be open for signature and ratification on behalf of all States.”4 This debate triggered a further intense discussion.5 The background for this argument was the fact that in the 1950s the international community lacked a unanimous understanding on what constituted a “State.”6 The 3

1 Article VII cl. 1 ICC draft states: “The present Convention, which will remain open to the signature of all states, shall be ratified.” 2 E/2704, p. 15 para. 60 (Õ Annex IV 1) and E/2822, p. 29 (Õ Annex IV 1). 3 E/2704, p. 15 para. 60 (Õ Annex IV 1). 4 E/CONF.26/7, p. 1 para. 4 (Õ Annex IV 1). 5 E/CONF.26/SR.19, pp. 2 et seq. (Õ Annex IV 1). 6 Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 476; cf. M. R. P. Paulsson, 1(1) EIAR 1, 10 (2012).

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Signing and Ratifying the Convention

6–9

Article VIII

Polish representative took the view that his proposed wording was the best way to reveal the principle of universality as a fundamental principle of the UN and would promote international trade relations, whereas a different wording of the article could lead to unnecessary obstacles for international trade7. Poland’s representative was supported in his view by eastern European States such as the USSR, Bulgaria, Czechoslovakia, the Ukrainian Soviet Socialist Republic and the Byelorussian Soviet Socialist Republic, but also e.g. by India, Ceylon and Albania.8 However, the concerns about the possible negative consequences of the Convention 6 having such a wide scope prevailed. The majority of the States proved to be hesitant to extend the availability of the Convention to “units” which were not recognized as States by the UN9 or had not established a “reputable standing in the international community”10. The US representative also pointed out that the ECOSOC resolution 604 (XXI) which served as the basis for the New York Conference in 1958 expressly restricted the participation in the New York Conference to a certain group of States.11 Ultimately, the Conference rejected the Polish proposal by 19 votes to 11, counting six abstentions.12 Furthermore, the US representative opposed the inclusion of the fourth alternative 7 for joining the Convention, i.e. any other State to which an invitation has been addressed by the General Assembly or the UN. He feared that the Secretary-General of the UN could unofficially communicate with political authorities.13 Even though the fourth alternative was voted on separately – the US asked for such separate voting14 –, it was adopted by the Conference.

IV. Convention Open for Signature (Article VIII(1)) 1. Relevance and Deadline Presently, Article VIII has no practical relevance since the deadline for signature 8 expired long ago – the Convention was open for signature until December 31, 1958 (Article VIII(1)). Only 24 States had signed the Convention by that time,15 even though 45 States had taken part in the New York Conference.16 Any State addressed in paragraph 1 which had not joined by December 31, 1958 could or still can accede to the Convention according to Article IX (Õ Art. IX paras 6 et seq.).

2. Addressees Article VIII(1) enumerates which States may join, i.e. sign and ratify, or as the case 9 may be, accede to (Õ Art. IX paras 6 et seq.) the Convention. The broad list should enable as many countries as possible to benefit from the Convention. All alternatives 7

E/CONF.26/SR.19, p. 4 (Õ Annex IV 1). E/CONF.26/SR.19, pp. 4 et seq. (Õ Annex IV 1). 9 See statement of the Peruvian representative, E/CONF.26/SR.19, p. 7 (Õ Annex IV 1). 10 See statement of the representative of the Philippines, E/CONF.26/SR.19, p. 6 (Õ Annex IV 1). 11 See statement of the US representative, E/CONF.26/SR.19, pp. 2, 3 (Õ Annex IV 1); ECOSOC resolution 604 (XXI), Recognition and enforcement of foreign arbitral awards, 923 plenary meeting of May 3, 1956, http://www.un.org/ga/search/view_doc.asp?symbol=E/RES/604(XXI) (last visited Apr. 20, 2019). 12 E/CONF.26/SR.19, p. 7 (Õ Annex IV 1). 13 E/CONF.26/SR.19, p. 3 (Õ Annex IV 1). 14 E/CONF.26/SR.19, p. 3 (Õ Annex IV 1). 15 Õ Annex II, column “Signature.” 16 In addition to the 45 States, three observers attended the New York Conference, see E/CONF.26/8/ Rev.1, p. 3 paras 4 and 5 (Õ Annex IV 1). 8

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Article VIII 10–13

New York Convention

listed in Article VIII(1) have in common that the addressees must either be recognized as a State by the UN or by other countries. In particular: 10

a) Any Member of the United Nations Any Member State of the UN may join the Convention.17 At the time of the adoption of the Convention, the UN counted 81 Member States.18 Of these, 21 States were original signatories of the Convention.19 Three States signed the Convention in 1958 despite not being members of the UN: the Federal Republic of Germany20, Monaco21 and Switzerland22.

b) Any Member of Any Specialized Agency of the United Nations 11 Specialized agencies23 are autonomous organizations that are incorporated into the UN system through Article 57 of the UN Charter, e.g. the International Centre for Settlement of Investment Disputes (ICSID) and the World Intellectual Property Organization (WIPO). c) Any Party to the Statute of the International Court of Justice 12 Being a party to the statute of the International Court of Justice is generally tied to membership of the UN. Pursuant to Article 93(1) of the UN Charter, “all Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.” States which are not members of the UN “may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council,” Article 93(2) of the UN Charter. d) Any Other State to Which an Invitation Has Been Addressed by the General Assembly of the United Nations 13 As far as is identifiable, no invitation by the General Assembly of the UN had been addressed to any State by December 31, 1958. 17 A State may only become a member of the UN if invited by the UN (see Article IV(2) of the UN Charter). 18 See United Nations, Growth in United Nations membership, 1945 – present, http://www.un.org/en/ sections/member-states/growth-united-nations-membership-1945-present/index.html (last visited Apr. 20, 2019), counting Egypt and Syria (which had merged to form the United Arab Republic in February 1958) as one State. 19 See http://www.un.org/en/member-states/index.html (last visited Apr. 20, 2019). 20 Both the Federal Republic of Germany and the German Democratic Republic were admitted to membership in the UN in 1973, see keyword Germany under http://www.un.org/en/member-states/index. html (last visited Apr. 20, 2019). The German Democratic Republic acceded to the Convention in 1975. 21 Monaco was admitted to membership in the UN on May 28, 1993, see keyword Monaco under http://www.un.org/en/member-states/index.html (last visited Apr. 20, 2019). 22 Before Switzerland joined the UN as a full member in 2002, it had already been a Permanent Observer to the UN and participated in numerous International Organizations such as the World Health Organization (WHO), of which it was one of the founding members in 1945. 23 The current Specialized Agencies of the UN are the following: Food and Agriculture Organization of the United Nations (FAO), International Civil Aviation Organization (ICAO), International Fund for Agricultural Development (IFAD), International Labour Organization (ILO), International Maritime Organization (IMO), International Monetary Fund (IMF), United Nations Educational, Scientific and Cultural Organization (UNESCO), International Telecommunication Union (ITU), United Nations Industrial Development Organization (UNIDO), Universal Postal Union (UPU), World Bank, International Bank for Reconstruction and Development (IBRD), International Centre for Settlement of Investment Disputes (ICSID), International Finance Corporation (IFC), International Development Association (IDA), Multilateral Investment Guarantee Agency (MIGA), World Health Organization (WHO), World Intellectual Property Organization (WIPO), World Meteorological Organization (WMO), World Tourism Organization (UNWTO), see http://www.un.org/en/sections/about-un/fundsprogrammes-specialized-agencies-and-others/index.html (last visited Apr. 20, 2019).

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Signing and Ratifying the Convention

14–17

Article VIII

V. Ways to Join the Convention 1. General Options to Join an International Treaty International law provides various options for becoming a party to an interna- 14 tional treaty. The most common options are listed in Article 11 of the Vienna Convention on the Law of Treaties of 1969, according to which the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.24 The options that may lead to becoming a party to an international treaty are generally stipulated in the respective treaties.

2. Signing and Ratification The Convention provides two options for becoming a member, i.e. either by signing 15 and ratifying the Convention (Article VIII) or by accession (Õ Art. IX paras 6 et seq.). These two options for a State to show its willingness to join the Convention are distinct from the Convention’s entry into force for the respective State, i.e. the moment in which the Convention becomes legally binding for a State.25 Under Article XII the Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession (see Article XII). a) Signature International treaties are usually signed by the head of the State or government or by 16 the minister for foreign affairs. By signing the international treaty, the State agrees to present the treaty to the national legislature in due course in order to have the legislature accept or deny the treaty,26 if necessary. This allows the States to seek approval at the national level and to take any necessary steps to implement the Convention domestically, prior to being bound on an international level.27 After having obtained the approval on the national level, the Convention needs to be ratified (Article VIII(2), Õ para. 19). The signature under an international treaty does not constitute an obligation for 17 the signing State to agree to the treaty.28 However, the signature obliges the signing State to abstain from every action that may harm the purpose of the treaty if it were to come into force during the period between signing and taking the decision on whether or not to become a member of the international treaty29, i.e. the ratification (Õ para. 18).

24 Articles 12 et seq. of the Vienna Convention on the Law of Treaties of 1969 provide the details on each of the options for concluding an international treaty. 25 UNCITRAL Secretariat, Guide, Art. VIII para. 3. 26 Stein/von Buttlar/Kotzur, Völkerrecht, para. 61. 27 United Nations (ed.), Treaty Handbook, para. 3.3.2, p. 9; UNCITRAL Secretariat, Guide, Art. VIII para. 5. 28 Stein/von Buttlar/Kotzur, Völkerrecht, para. 61. 29 Stein/von Buttlar/Kotzur, Völkerrecht, para. 61.

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Article VIII 18–21 18

New York Convention

b) Ratification Ratification is the declaration of the State’s representative that the State he or she represents shall be bound by the Convention.30 With the deposition of the instrument of ratification, the Convention becomes legally binding upon the respective State.31

c) Formal Requirements Paragraph 2 sets out the formal requirements for becoming a member of the Convention, i.e. after signing, the State must ratify the Convention and must deposit the instrument of ratification with the Secretary-General of the UN as the depositary of the Convention. 20 The Secretary-General is the chief administrator of the UN (cf. Article 97 of the UN Charter) and as such responsible for the administration of international treaties (cf. Article 102 in connection with Article 97 of the UN Charter). The depository function is carried out in practice by the Treaty Section of the UN Office of Legal Affairs on behalf of the Secretary-General.32 The instrument of ratification is the deed with which the representative of a State declares that the State he or she is representing shall be bound by the Convention (Õ para. 18). 19

d) Relevance 21 Article VIII(2) only applies to States that had signed the Convention by December 31, 1958, but have not yet ratified it. Since all signatories have already ratified the Convention (Õ Annex II), Article VIII(2) is no longer of practical relevance. All States which had not signed the Convention by December 31, 1958 can accede to the Convention under Article IX (only) by depositing the instrument of accession with the Secretary-General of the UN (Õ Art. IX para. 12). 30 Cf. Stein/von Buttlar/Kotzur, Völkerrecht, para. 65; United Nations (ed.), United Nations Treaty Collection, Annex XVI, provides an example of an instrument of ratification which states “I [name] [title (Head of State or Government, or Minister for Foreign Affairs] declare that the Government of [name of State] having previously signed the [full title of the treaty] adopted on [date], having considered the said [treaty/convention] now declare that the Government of [name of State]” hereby ratifies the same and undertakes to perform and carry out faithfully all the stipulations therein contained.” 31 Cf. Stein/von Buttlar/Kotzur, Völkerrecht, para. 65. 32 UNCITRAL Secretariat, Guide, Art. VIII para. 7.

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Article IX [Accession] 1. This Convention shall be open for accession to all States referred to in article VIII. 2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Specific Bibliography: see Article VIII. Table of Contents I. II. III. IV.

Overview ................................................................................................................... Spirit and Purpose .................................................................................................. Drafting History ...................................................................................................... Accession................................................................................................................... 1. Addressees (Article IX(1))................................................................................ a) Members of the United Nations ............................................................... b) The Holy See ................................................................................................. c) Cook Islands .................................................................................................. d) The State of Palestine .................................................................................. 2. Invitation by the General Assembly............................................................... 3. Procedure (Article IX(2)) ................................................................................. V. Succession .................................................................................................................

1 2 4 6 7 7 8 9 10a 11 12 13

I. Overview While Article IX(1) states who may accede to the Convention (Õ paras 6 et seq.), 1 paragraph 2 stipulates the procedure for such accession (Õ para. 12). Subsequent to the Convention coming into force, a few Contracting States had ceased to exist or had changed their structures and were succeeded by other States (Õ paras 13 et seq.).

II. Spirit and Purpose Article IX enables States to accede to the Convention even if they had not partici- 2 pated in the New York Conference in 1958. By providing unlimited access to the Convention, the Convention promotes its own extension very effectively, which in turn also contributes to its widespread success. Article IX assumes a high practical relevance as can be seen from the fact that only 3 241 of the current 161 Contracting States were original signatories whereas 128 Contracting States joined the Convention by accession under Article IX2 and nine Contracting States became members by succession3 (Õ paras 13 et seq.).

Õ Annex II, column “Signature.” Õ Annex II, column “Ratification, Accession (a) or Succession (s)” marked with (a). 3 Õ Annex II, column “Ratification, Accession (a) or Succession (s)” marked with (s). 1 2

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Article IX 4–8

New York Convention

III. Drafting History Article IX has no equivalent in the Geneva Protocol (Õ Annex V 1) or the Geneva Convention (Õ Annex V 2). In contrast to Article VIII, the Geneva Treaties were open for signature by all States without providing for any time limit (see Article 5 of the Geneva Protocol and Article 7 of the Geneva Convention; Õ Art. VIII para. 3). 5 Since Article IX4 expressly refers to Article VIII concerning the potential members of the Convention, the drafting history of these two articles is closely linked. The crucial issue in the negotiations on these articles was the question as to whether “any State” should be entitled to accede to the Convention or whether membership should be restricted (Õ Art. VIII paras 5 to 6). Eventually, the representatives opted for a compromise by subjecting a State’s ability to join the Convention to the fulfillment of one of several broad criteria (Õ Art. VIII, in particular Õ Art. VIII paras 10 et seq.). Other than that, the wording of Article IX was only subject to minor discussions.5 Article IX was finally adopted by 27 votes to seven, with two abstentions.6 4

IV. Accession 6

Article IX deals with the accession of States referred to in Article VIII (Õ Art. VIII paras 9 et seq. and Õ paras 7 et seq.). It does not apply to States that originally signed the Convention. The original signatories can only become members by ratifying the Convention (Article VIII(2); Õ Art. VIII para. 18). Article IX therefore resumes the function of Article VIII which had become obsolete in allowing its addressees to join the Convention after December 31, 1958 (Õ Art. VIII para. 19). Consequently, Article VIII and Article IX need to be seen in close connection.

1. Addressees (Article IX(1)) 7

a) Members of the United Nations All States as referred to in Article VIII(1) (Õ Art. VIII paras 9 et seq.) may accede to the Convention. To date, 161 Contracting States have ratified the Convention (Õ Annex II). Out of these, 158 are members of the UN. These 158 Contracting States represent more than three quarters of the 193 UN members7. The three members of the Convention that are not members of the UN are the Holy See, the Cook Islands and Palestine (Õ paras 8 to 10a).

b) The Holy See 8 The Holy See joined the Convention in 1975 although it is not a member of the UN but only a permanent observer. The Holy See is technically not a State. Rather it is home to the pope and has neither a territory, people nor public authority.8 The Holy See, however, represents Vatican City in its international relationships. It is therefore generally recognized as a subject under international law and as such it is a member of several international organizations such as the World Intellectual Property Organization 4

Formerly Article VIII, see E/2704, Annex, p. 4 (Õ Annex IV 1). See, e.g., E/2822/Add.4, p. 8 (Õ Annex IV 1); E/CONF.26/SR.20, p. 2 (Õ Annex IV 1). 6 E/CONF.26/SR.20, p. 2 (Õ Annex IV 1). 7 See United Nations, Member States, http://www.un.org/en/member-states/index.html (last visited Apr. 20, 2019). 8 In contrast to Vatican City, which has a people, a territory and also public authority. 5

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9–10a Article

Accession

IX

(WIPO) which only States can join9. Being a member in specialized agencies of the UN, including the WIPO,10 thus enabled the Holy See to accede to the Convention. c) Cook Islands The Cook Islands are a self-governed territory associated with New Zealand. The 9 Cook Islands chose this status as a means of self-determination which was supervised and accepted by the UN with Resolution 1514(XV) of December 14, 196011. Since the Cook Islands have a people, a territory and public authority, many States have recognized them as an independent State, e.g. Australia in 1994, Portugal in 1995, South Africa in 1996, China in 1997, France in 2001 and Germany in 2001 etc. However, a number of other States and the UN itself have not yet officially recognized the Cook Islands as an independent State but rather await the dissolution of the Cook Islands’ association with New Zealand. In 1984, the Cook Islands became a member of the World Health Organization 10 (“WHO”) following the approval of its application for membership. Afterwards, the Cook Islands became a member of other specialized agencies of the UN. Subsequent to such memberships the UN Secretary-General determined that the Cook Islands could participate in a treaty in their own right as a State and in 1992 he recognized the Cook Islands’ full treaty-making capacity.12 d) The State of Palestine The State of Palestine (“Palestine”) acceded to the Convention on January 2, 2015 10a (with effect as of April 2, 2015) although it is not a member of the UN. Whether or not Palestine fulfills the criteria of a (sovereign) State is subject to controversial discussion. While inter alia Canada, Israel and the US deny that Palestine fulfils the criteria of a (sovereign) State,13 quite a number of UN Member States have accorded recognition to the State of Palestine.14 By resolution of November 29, 2012 the United Nations General Assembly accorded to Palestine non-member observer State status.15 Palestine now has the same status as the Holy See (Õ para. 8).16 Moreover, Palestine is a party to the Statute of the International Court of Justice (Articles IX, VIII(1))17 and was thus able to join the Convention.18 Furthermore, Palestine is a member of the specialized agency 9

See http://www.wipo.int/members/en/#admission_criteria (last visited Apr. 20, 2019). See http://www.un.org/en/sections/about-un/funds-programmes-specialized-agencies-and-others/in dex.html (last visited Apr. 20, 2019). 11 See http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/1654(XVI) (last visited Apr. 20, 2019). 12 See statement to Cook Islands, Note 1 under https://treaties.un.org/Pages/HistoricalInfo.aspx?# CookIslands (last visited Apr. 20, 2019). 13 Canada, Israel and the United States objected to the claim that Palestine fulfills the requirements of a State and consequently also denied Palestine’s ability to accede to the Convention, Õ Annex II, Canada, Israel, United States of America, column “Other Declarations and Reservations;” also Õ Art. X para. 37. 14 Resolution of the General Assembly of the United Nations, A/RES/67/19 of Dec. 4, 2012, see https:// unispal.un.org/DPA/DPR/unispal.nsf/0/19862D03C564FA2C85257ACB004EE69B (last visited Apr. 20, 2019), where it is stated “Recognizing also that, to date, 132 States Members of the United Nations have accorded recognition to the State of Palestine.” 15 See Resolution of the General Assembly of the United Nations, A/RES/67/19 of Dec. 4, 2012, https:// unispal.un.org/DPA/DPR/unispal.nsf/0/19862D03C564FA2C85257ACB004EE69B (last visited Apr. 20, 2019). 16 See www.un.org/en/sections/member-states/non-member-states/index.html (last visited Apr. 20, 2019). 17 On Jan. 2, 2015, the Government of Palestine acceded to the Rome Statute of the International Court of Justice by depositing its instrument of accession with the UN Secretary-General. The Rome Statute of the International Court of Justice entered into force on Apr. 1, 2015, see https://www.icc-cpi.int/palestine (last visited Apr. 20, 2019). 18 Cf. Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. VIII para. 1. 10

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Article IX 11–13

New York Convention

United Nations Educational, Scientific and Cultural Organization (UNESCO), which only States can join as a member.19 This also qualifies as a basis for acceding to the Convention (Articles IX, VIII(1)).

2. Invitation by the General Assembly 11

The fourth alternative in Article IX, i.e. the invitation by the General Assembly of the UN, has not been used until today. The apprehension felt by the US concerning the fourth alternative (Õ Art. VIII para. 7 and Õ Art. VIII para. 13) has thus turned out to be unfounded.

3. Procedure (Article IX(2)) 12

Pursuant to Article IX(2), accession shall be effected by the deposition of an instrument of accession with the Secretary-General of the UN. While signature and ratification have the same legal effect as accession, accession requires only one step, i.e. the deposition of the instrument of accession.20 The instrument of accession is the deed with which the State declares that it accedes to the Convention and shall be bound by it.21 There is no mandatory form for an instrument of accession.22

V. Succession 13

Since the Convention came into force, a few States have changed their structure, in particular many have split up into new States. This in particular applies to the former Socialist Federal Republic of Yugoslavia23, former Czechoslovakia24 and the former USSR.25 The successor States of the Socialist Federal Republic of Yugoslavia, i.e. Bosnia and Herzegovina, Croatia, Montenegro, North Macedonia, Serbia and Slovenia succeeded to the Convention.26 The same is true for the successor States of Czechoslovakia,

19 Article II(1 and 2) of the Constitution of the United Nations Educational, Scientific and Cultural Organization, see http://unesdoc.unesco.org/images/0021/002161/216192e.pdf (last visited Apr. 20, 2019). Palestine joined UNESCO on Nov. 23, 2011, see https://en.unesco.org/countries/palestine (last visited Apr. 20, 2019). 20 UNCITRAL Secretariat, Guide, Art. IX para. 2. 21 Cf. Stein/von Buttlar/Kotzur, Völkerrecht, para. 66; United Nations (ed.), United Nations Treaty Collection, Annex XVI, shows an example of an instrument of accession which states “I [name] [title (Head of State or Government, or Minister for Foreign Affairs] declare that the Government of [name of State] having considered the [full title of the treaty] adopted on [date], declare that the Government of [name of State]” hereby accedes the said [treaty/convention] and undertakes to perform and carry out faithfully all the stipulations therein contained.” 22 UNCITRAL Secretariat, Guide, Art. IX para. 2, with reference to the United Nations (ed.), Treaty Handbook, para. 3.3, pp. 8 et seq. and Annex 5 which shows a model instrument of accession. 23 It is disputed whether or not the former Socialist Federal Republic of Yugoslavia ceased to exist. While the UN Security Council stipulated in its resolution 777 (1992) “that the state formerly known as the Socialist Federal Republic ceased to exist,” the ICJ did not address this issue in a dispute between Bosnia and Herzegovina on the one and Yugoslavia on the other side. 24 Czechoslovakia ceased to exist by way of dissolution with effect of Jan. 1, 1993. Both, the Czech Republic and Slovakia notified the UN that they, as successor States, consider themselves bound by the international treaties signed by the former Czechoslovakia, including reservations and declarations, see https://treaties.un.org/Pages/HistoricalInfo.aspx?#Slovakia (last visited Apr. 20, 2019). 25 For an overview see, Hafner/Novak, in: Hollis (ed.), Oxford Guide to Treaties, pp. 396, 397 et seq.; Kau, in: Vitzthum/Proelß (eds), Völkerrecht, ch. 3 paras 183 et seq. 26 Õ Annex II, Bosnia and Herzegovina, Croatia, North Macedonia, Montenegro, Serbia, Slovenia, column “Ratification, Accession (a) or Succession (s).”

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14 Article

Accession

IX

i.e. the Czech Republic and Slovakia.27 The Russian Federation is the legal successor of the USSR in relation to all international treaties28 and as such substitutes the former USSR in relation to the Convention. Other States which belonged to the former USSR acceded to the Convention, e.g. Estonia, Georgia, Latvia, Kazakhstan and Uzbekistan.29 In addition, Djibouti succeeded France to the Convention.30 There is no common formal procedure for the succession of States, in particular with 14 respect to the transition of rights and duties under international treaties. There are two international treaties on the succession of States and its consequences, i.e. the Vienna Convention on the Succession of States in Respect of Treaties of August 23, 1978 (in effect since 1996)31 and the Vienna Convention on Succession of States in respect of State Property, Archives and Debts of April 8, 198332; the latter has not yet come into effect.33 Whether or not States acquire rights and duties under international treaties or whether emerging new States have to apply for membership in the UN and/or, as the case may be, accede to international treaties by complying with the respective formal requirements, is determined on a case-by-case basis.34 It mainly depends on the question of whether or not the former States ceased to exist, inter alia by dissolution (as was the case relating to the former Czechoslovakia, Õ para. 13) or whether one of the new States substitutes the former State, as the Russian Federation claims (Õ para. 13). Õ Annex II, Czech Republic and Slovakia, column “Ratification, Accession (a) or Succession (s).” On Dec. 24, 1991, the President of the Russian Federation notified the UN Secretary-General that membership of the Union of Soviet Socialist Republics (USSR) in the United Nations is being continued by the Russian Federation. The Government of the Russian Federation subsequently informed the UN Secretary-General that the Russian Federation maintains full responsibility for all the rights and obligations of the USSR under the Charter of the United Nations and multilateral treaties deposited with the Secretary-General, see https://treaties.un.org/Pages/HistoricalInfo.aspx?#RussianFederation (last visited Apr. 20, 2019). 29 Õ Annex II, Estonia, Georgia, Latvia, Kazakhstan, Uzbekistan, column “Ratification, Accession (a) or Succession (s).” 30 Õ Annex II, Djibouti, column “Ratification, Accession (a) or Succession (s).” 31 See http://legal.un.org/ilc/texts/instruments/english/conventions/3_2_1978.pdf (last visited Apr. 20, 2019). 32 See http://legal.un.org/ilc/texts/instruments/english/conventions/3_3_1983.pdf (last visited Apr. 20, 2019). 33 See inter alia Kau, in: Vitzthum/Proelß (eds), Völkerrecht, ch. 3 paras 188 and 196. 34 Cf. Hafner/Novak, in: Hollis (ed.), Oxford Guide to Treaties, pp. 396 and 400 et seq.; Kau, in: Vitzthum/Proelß (eds), Völkerrecht, ch. 3 para. 195. 27 28

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Article X [Extension to Other Territories] 1. 1Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. 2Such a declaration shall take effect when the Convention enters into force for the State concerned. 2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later. 3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories. Specific Bibliography: see Article VIII. Table of Contents I. II. III. IV.

Overview ................................................................................................................... Spirit and Purpose .................................................................................................. Drafting History ...................................................................................................... Extension at the Time of Signature, Ratification or Accession (Article X(1))......................................................................................................... 1. Territories for the International Relations of Which the State Is Responsible .......................................................................................................... 2. Declarations ......................................................................................................... a) Australia.......................................................................................................... b) Denmark......................................................................................................... c) France/Djibouti ............................................................................................. d) Mauritius ........................................................................................................ e) The Netherlands ........................................................................................... f) New Zealand.................................................................................................. g) United Kingdom ........................................................................................... 3. Taking Effect ....................................................................................................... V. Subsequent Extension (Article X(2)).................................................................. 1. China ..................................................................................................................... 2. Denmark............................................................................................................... 3. Portugal................................................................................................................. 4. United Kingdom................................................................................................. 5. United States of America.................................................................................. VI. Uncovered Territories (Article X(3)).................................................................. VII. Excursus: Declarations and Reservations Not Stipulated by the NYC....... 1. Further Declarations and Reservations ......................................................... a) Argentina........................................................................................................ b) Former Socialist Republic of Yugoslavia................................................. c) Malta................................................................................................................ d) Norway............................................................................................................

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Article X 1–5

New York Convention

e) Tajikistan ........................................................................................................ f) Vietnam .......................................................................................................... 2. Inadmissible Declarations................................................................................. 3. Reservations Following Successions ...............................................................

43 44 45 46

I. Overview 1

Article X enables and, simultaneously, encourages the Contracting States to extend the Convention to territories for the international relations of which they are responsible, either at the time of their signature or accession or at any later point in time. Until now, ten Contracting States have made use of this option (Õ paras 11 et seq.). Article X(3) obliges the respective Contracting States to consider the option of extending the application of the Convention to any of their dependent territories. However, the Contracting States do not have to fear any sanctions in case of noncompliance (Õ para. 30). Although the Convention only allows a limited number of reservations and declarations (see Articles I(3) and X), a number of Contracting States made other – strictly speaking inadmissible – declarations and reservations (Õ paras 31 et seq.). However, since the other Contracting States – except in one instance (Õ para. 45) – never objected to such reservations and declarations, these have to be considered when applying the Convention (Õ para. 45).

II. Spirit and Purpose 2

Unlike today, in the middle of the 20th century quite a few (European) States, with France, Belgium, the Netherlands and the United Kingdom leading, still had a number of colonies or territories for which the respective States were responsible. Against this background, Article X deals with the extension of the Convention to any such (dependent) territories. It shall enable and encourage States to open the Convention to the entire territories for which they are responsible. Provisions like Article X are to be found in many international treaties negotiated and concluded before the 1960s.1

III. Drafting History The Geneva Protocol (Õ Annex V 1) and the Geneva Convention (Õ Annex V 2) addressed the applicability of the respective treaties to dependent territories in Article 8 of the Geneva Protocol and Article 10 of the Geneva Convention, respectively. Unlike the Convention, the Geneva Treaties expressly stipulated that they do not apply to any dependent territories. 4 While Article X was not part of the ICC draft, it was included as Article IX in the ECOSOC draft.2 The discussion on Article X reflects controversial topics in political discussion in the 1950s, e.g. the debate on the then still existing colonies. 5 While socialist countries such as the USSR, Czechoslovakia, the Ukrainian Soviet Socialist Republic, Poland, Bulgaria and the Byelorussian Soviet Socialist Republic announced that they would vote against the inclusion of this article, the United Kingdom, supported by Belgium and France, insisted on adopting this provision. 3

1 2

Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. X para. 2. See E/2704, Annex, p. 4 (Õ Annex IV 1).

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Extension to Other Territories

6–8

Article X

The United Kingdom’s representative added for consideration that the United Kingdom, in line with the provisions of the UN Charter, promoted “the advancement towards self-government of the territories for which it was responsible.”3 Moreover, the delegate of the United Kingdom emphasized that without having such provision the United Kingdom would have to await the consent of all of its territories before accessing to the Convention itself.4 The socialist States5 replied that Article X reflected “the subjection of the colonies to 6 the metropolitan countries”6 and was “designed to prevent a large number of territories from benefiting from” the Convention which “should apply to the whole world”7. The representative of the USSR even argued that not applying the Convention to colonies or dependencies was “contrary to the directives which the General Assembly had given the Commission on Human Rights in 1950 in resolution 422 (V).”8 Poland’s delegate revealed a more commercial reason for not including Article X by stating that it was developing business relations with “Non-Self-Governing Territories.”9 Argentina requested the incorporation of the following statement into the Final Act 7 of the United Nations Conference on International Commercial Arbitration of June 10, 195810: “If another Contracting Party extends the application of the Convention to territories which fall within the sovereignty of the Argentine Republic, the rights of the Argentine Republic shall in no way be affected by that extension.”11 The statement was made in light of the controversy between the United Kingdom and Argentina pertaining to the control of the Falkland Islands12 in order to ascertain that no action of the United Kingdom with respect to the Falkland Islands could affect Argentina’s claim.13 The request of Guatemala’s representative was similar but expressly referred to the 8 territory of Belize or British Honduras, respectively, which belonged to the United Kingdom at the time.14 Guatemala stipulated: “The Guatemalan delegation will vote in favor of article IX of the Convention on the express understanding that it cannot affect or detract from the rights of Guatemala over Belize (improperly called British Honduras) if the Power occupying that part of Guatemala’s national territory should at any time extend this Convention to that territory.”15 3 See statement of the representative of the United Kingdom, E/CONF.26/SR.20, pp. 2, 3 (Õ Annex IV 1). 4 The representative of the United Kingdom even mentioned that, if the United Kingdom had to wait for the consent of its dependent territories, it “was even probable, in those circumstances, that it would find it impossible to become a party to the Convention,” E/CONF.26/SR.20, p. 3 (Õ Annex IV 1). 5 The socialist States referred to the clause as the “colonial clause,” see e.g. the representative of the USSR, E/CONF.26/SR.20, p. 3 (Õ Annex IV 1). 6 Representative of the Ukrainian Soviet Socialist Republic, E/CONF.26/SR.20, p. 4 (Õ Annex IV 1). 7 Representative of Czechoslovakia, E/CONF.26/SR.20, p. 4 (Õ Annex IV 1). 8 See General Assembly Resolution 422 (V), Territorial application of the International Covenant on Human Rights (https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/060/20/IMG/NR006020. pdf?OpenElement, last visited Apr. 20, 2019). 9 See statement of the Poland’s representative, E/CONF.26/SR.20, p. 4 (Õ Annex IV 1). 10 See E/CONF.26/8/Rev.1, p. 4 (Õ Annex IV 1). 11 E/CONF.26/SR.20, p. 3 (Õ Annex IV 1). The statement was in fact included into the Final Act, see E/CONF.26/8/Rev.1, p. 4 (Õ Annex IV 1). Moreover, Argentina explicitly made reference to this declaration when signing the original of the Convention, see https://uncitral.un.org/sites/uncitral.un.org/ files/media-documents/uncitral/en/1958nyconvention.pdf (last visited Apr. 20, 2019). 12 As of 1833 the Falkland Islands have belonged to the United Kingdom. Argentina has claimed rights concerning the Falkland Islands ever since. 13 Fuentes, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 487. 14 Belize (or British Honduras, respectively) already became independent from the United Kingdom in 1981. Nevertheless, the dispute between Guatemala and Belize still goes on. Guatemala signed a contract in which it acknowledged Belize’s independence, but continues to dispute its territorial claims. 15 E/CONF.26/SR.20, p. 3 (Õ Annex IV 1).

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Article X 9–11 9

New York Convention

Article X was adopted by 25 to eight votes with five abstentions.16 Argentina’s and Guatemala’s statements were in fact included into the Final Act of the United Nations Conference on International Commercial Arbitration of June 10, 1958.17

IV. Extension at the Time of Signature, Ratification or Accession (Article X(1)) 1. Territories for the International Relations of Which the State Is Responsible 10

At the time of the preparation and drafting of the Convention, quite a number of States had dependent territories and were responsible for their international relations, including the application of international treaties such as the Convention. While the Geneva Treaties refer to colonies, protectorates or territories over which a mandate is exercised (Article 8 of the Geneva Protocol [Õ Annex V 1] and Article 10 of the Geneva Convention [Õ Annex V 2]), the ECOSOC draft as well as the Convention refers to “territories for the international relations of which it [i.e. the State] is responsible.” Although differently worded, the Geneva Treaties address the same issue: the partial subordination of sovereignty to another State; in other words, dependent territories as opposed to independent States. The travaux préparatoires refer to non-self-governing territories, dependencies and also to colonies (Õ paras 5 et seq.). This broad enumeration shows that Article X was meant to address all territories which were dependent on any other State in such a way that they could not care for their international relations themselves.18

2. Declarations 11

To date, ten Contracting States have made declarations under Article X, i.e. Australia, China, Denmark, Djibouti, France, Mauritius, the Netherlands, New Zealand, the United Kingdom and the United States.19 In addition, Portugal’s declaration concerning Macao20 also addressed the issue of extending the Convention to dependent territories, even though the declaration was not made under Article X. Unless the application of the Convention is extended to the territories for the international relations of which a Contracting State is responsible, the Convention does not apply to such dependent territories.21

16

E/CONF.26/SR.20, p. 5 (Õ Annex IV 1). See Final Act, E/CONF.26/8/Rev.1, pp. 4, 5 (Õ Annex IV 1) (as compared to E/CONF.26/SR.20, p. 3 [Õ Annex IV 1], the reference was correctly updated); Õ n. 11; Guatemala did not sign the Convention, but rather acceded to it with effect from June 19, 1984; Õ Annex II, Guatemala, column “Ratification, Accession (a) or Succession (s).” As mentioned above (Õ n. 14), Belize (or British Honduras) already became independent from the United Kingdom in 1981. 18 In the 1950s, the international community was preparing the Declaration on the Granting of Independence of Colonial Countries and Peoples which was adopted by the General Assembly of the UN on Dec. 14, 1960. This declaration was a big step forward in enabling dependent States to become independent as soon as they wanted to make use of their right to self-determination, see Delbrück/Dahm/ Wolfrum, Völkerrecht, p. 307. 19 Õ Annex II, column “Declaration as to Territories, Article X(1).” 20 Õ Annex II, Portugal, column “Other Declarations and Reservations.” 21 For another opinion see Mistelis/Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. X para. 1. 17

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Extension to Other Territories

12–17

Article X

Out of those ten Contracting States, seven made declarations at the time of their 12 accession to the Convention. This applies to the following Contracting States: a) Australia When Australia acceded to the Convention (deposition of instrument on March 26, 13 1975), it declared that the Convention “shall extend to all the external territories for the international relations of which Australia is responsible other than Papua New Guinea.”22 Shortly after this declaration, on September 16, 1975, Papua New Guinea gained independence from Australia. Papua New Guinea acceded the Convention with effect of October 15, 2019. b) Denmark At the time of its accession (deposition of instrument on December 22, 1972), 14 Denmark declared that the Convention would not apply to the Faeroe Islands and Greenland.23 Strictly speaking, this is not an admissible declaration under Article X. Under Article X, a declaration is only required if the Convention should apply to any dependencies (and not the other way round). Denmark’s declaration therefore only states the obvious. Denmark later revoked its declaration (Õ para. 25). c) France/Djibouti France declared that the Convention shall be extended to all the territories of the 15 French Republic (with effect of September 24, 1959);24 i.e. French Southern and Antarctic Lands, Guadeloupe, Guiana, Martinique, Mayotte, New Caledonia, Polynesia, Réunion, Saint Pierre and Miquelon, St. Barts, St. Martin as well as Wallis and Futuna25. After succeeding France (with effect of June 27, 1977), Djibouti maintained the 15a declaration with equal wording,26 even though Djibouti has no territories for the international relations of which it might be responsible. d) Mauritius Mauritius extended the application of the Convention to “all territories forming part 16 of the Republic of Mauritius.”27 These are Rodrigues, Agalega and St. Brandon.28 e) The Netherlands The Netherlands declared that the Convention shall apply to Suriname and the 17 Netherlands Antilles (with effect from July 23, 1964).29 Following its independence on November 25, 1975, the Convention is no longer applicable to Suriname. Up to the date of this publication, Suriname has not acceded to the Convention.30 Õ Annex II, Australia, column “Declaration as to Territories, Article X(1).” Õ Annex II, Denmark, column “Declaration as to Territories, Article X(1).” Denmark revoked this declaration and extended the applicability of the Convention to the Faeroe Islands and Greenland with effect from Feb. 10, 1976, Õ para. 25. 24 Õ Annex II, France, column “Declaration as to Territories, Article X(1).” 25 See http://www.outre-mer.gouv.fr/les-territoires (last visited Apr. 20, 2019). 26 Õ Annex II, Djibouti, column “Declaration as to Territories, Article X(1).” 27 Õ Annex II, Mauritius, column “Declaration as to Territories, Article X(1).” 28 See http://www.outre-mer.gouv.fr/les-outre-mer (last visited Apr. 20, 2019). 29 Õ Annex II, Netherlands, column “Declaration as to Territories, Article X(1).” 30 Nevertheless, the government of the United Stated circulates the following: “Suriname has been a member of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards since 1964 when the country was still a Dutch territory. At independence in 1975, Suriname automatically continued its membership in international conventions and treaties,” see https://www.state. gov/e/eb/rls/othr/ics/2011/157362.htm (last visited Apr. 20, 2019). By letter of Nov. 29, 1975, the Prime Minister of Suriname informed the Secretary-General that Suriname acknowledges that treaty rights and obligations were succeeded by Suriname upon independence. This declaration, however, is a declaration 22 23

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Article X 18–23

New York Convention

f) New Zealand At the time of its accession, New Zealand declared (with effect from April 6, 1983) that the Convention shall not apply to the Cook Islands and Niue.31 However, this declaration is no longer valid: after becoming more and more independent and following its recognition as a State by many other States, the Cook Islands ratified the Convention on January 12, 2009 with effect from April 12, 2009 (Õ Art. IX paras 9 to 10).32 Even though Niue has also made substantial progress towards independence from New Zealand and although the Secretary-General of the UN recognized the full treaty-making capacity of Niue in 1994, it still has not indicated its wish to join the Convention. 19 Even though New Zealand has not made a declaration under Article X(1), the Convention applies to Tokelau. This is because New Zealand declared that it “regards all treaty actions as extending to Tokelau as a non-governing territory of New Zealand unless express provision to the contrary is included in the relevant treaty instrument.”33 18

20

g) United Kingdom At the time of accession to the Convention (deposition of instrument on September 24, 1975), the United Kingdom extended its territorial application to Gibraltar only.34 Subsequently, the United Kingdom extended territorial application to other territories: Õ para. 28 and Õ Annex II, United Kingdom of Great Britain and Northern Ireland, column “Declaration as to Territories, Article X(1).”

3. Taking Effect 21

If a Contracting State extends the Convention to any territory for which it is responsible at the time of signature, ratification or accession, the Convention shall take effect for those territories as of the day the Convention enters into force for the Contracting State itself (Õ para. 1), i.e. 90 days after deposition of its instrument of ratification or accession (Article XII(2)).

V. Subsequent Extension (Article X(2)) Pursuant to Article X(2), a Contracting State may also declare that the Convention extends to territories for the international relations of which it is responsible at any time after its own ratification or accession. Such notification shall be addressed to the Secretary-General of the UN. It takes effect either 90 days after the day of receipt of this notification by the UN Secretary-General, or after the date of the Convention’s implementation for the State concerned (Õ Art. XII para. 10), whichever is later. 23 China, Denmark, the United Kingdom and the United States of America made declarations under Article X(2). In particular: 22

of merely general character (so called “general” declaration of succession) since it refers to any and all international treaties that applied to Suriname during its dependence from the Netherlands. Such general declaration is not sufficient to treat the respective States as successors to the respective international treaties (see United Nations, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, paras 303 et seq.). According to the information of the UN Treaty Section, until today Suriname has neither acceded to the Convention nor indicated its wish to join the Convention. 31 Õ Annex II, New Zealand, column “Declaration as to Territories, Article X(1).” 32 Õ Annex II, Cook Island. 33 See http://treaties.un.org/pages/HistoricalInfo.aspx?#NewZealand (last visited Apr. 20, 2019). 34 Õ Annex II, United Kingdom of Great Britain and Northern Ireland, column “Declaration as to Territories, Article X(1).”

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Extension to Other Territories

24–25

Article X

1. China Upon resumption of sovereignty over Hong Kong on July 1, 1999, China extended 24 the application of the Convention to the Hong Kong Special Administrative Region (also Õ para. 28).35 On July 19, 2005, China declared that the Convention shall apply to Macao.36, 37 In order to ensure that awards which had been issued in Hong Kong or Macao before China’s resumption of sovereignty over the Hong Kong Special Administrative Region and Macao Special Administrative Region (and were thus classified as foreign awards vis-à-vis China under the Convention) may be recognized and enforced in China, China entered into agreements with the Hong Kong and Macao Special Administrative Regions to recognize and enforce arbitral awards under conditions similar to those provided in the Convention.38 The so called Arrangements Concerning Mutual Enforcement of Arbitration Awards between the Mainland and the Hong Special Administrative Region and the Macao Special Administrative Region, respectively, are based on the Basic Laws of both Special Administrative Regions,39 under which they still exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power. Both arrangements also permit reciprocal enforcement of arbitral awards made in China or the Hong Kong Special Administrative Region on the one hand and China or the Macao Special Administrative Region on the other hand, under conditions similar to those provided in the Convention (also Õ Art. I para. 129).

2. Denmark Denmark revoked its earlier declaration (Õ para. 14) and informed the Secretary- 25 General of the UN that the Convention shall apply to the Faeroe Islands and to Greenland (with effect from February 10, 1976).40 35 Formerly covered by the declaration of the United Kingdom, Õ Annex II, United Kingdom of Great Britain and Northern Ireland, column “Declaration as to Territories, Article X(1)” and para. 28. 36 Formerly covered by the declaration of Portugal, Õ Annex II, Portugal, column “Declaration as to Territories, Article X(1)” and paras 26 et seq. 37 Õ Annex II, China, column “Declaration as to Territories, Article X(1).” 38 Hong Kong: Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region, signed in Shenzhen on June 21, 1999, see http:// www.doj.gov.hk/eng/mainland/pdf/mainlandmutual2e.pdf (last visited Apr. 20, 2019); see also Fuentes, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 491; Macao: Arrangement of the Supreme People’s Court on Reciprocal Recognition and Enforcement of Arbitration Awards between the Mainland and the Macao Special Administrative Region, Fa Shi [2007] No. 17 of Dec. 12, 2007, in force as of Jan. 1, 2008, English translation available under http://blog.sina.com.cn/s/blog_540752bd0100u0gr.html (last visited Apr. 20, 2019). 39 The Basic Law of the Hong Special Administrative Region of the People’s Republic of China of Apr. 4, 1990, in force as of July 1, 1997, see http://www.basiclaw.gov.hk/en/basiclawtext/ (last visited Apr. 20, 2019) and the Basic Law of Macao Special Administrative Region of the People’s Republic of China of Mar. 31, 1993, effective as of Dec. 20, 1999, see https://www.umac.mo/basiclaw/english/main. html (last visited Apr. 20, 2019). 40 Õ Annex II, Denmark, column “Declaration as to Territories, Article X(1).” Denmark seemed to have miscalculated the time for the Convention to enter into force for the Faeroe Islands and Greenland. With its notification of Nov. 12, 1975, it informed the Secretary-General of (i) the withdrawal of its declaration that the Convention shall not be applicable to the Faeroe Islands and to Greenland and (ii) that the Convention shall apply to both countries as of Jan. 1, 1976, not considering the deadline of 90 days as stated in Article X(2). In a further communication of Jan. 5, 1978, Denmark confirmed that its former notification of Nov. 12, 1975 should have been considered as having taking effect from Feb. 10, 1976 in accordance with Article X(2), it being understood that the Convention was applied de facto to the Faeroe Islands and Greenland from Jan. 1 to Feb. 9, 1976.

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Article X 26–30

New York Convention

3. Portugal On November 12, 1999, five years after its accession, Portugal informed the UN Secretary-General that the Convention will apply to Macao.41 Although Portugal’s declaration concerning Macao42 addressed the issue of extending the Convention to dependent territories and thus needs to be considered, this was not done under Article X. 27 Only a month later, on December 9, 1999, Portugal informed the Secretary-General of the UN that it will cease to be responsible for Macao’s international rights and obligations arising under the Convention from December 20, 1999 onwards.43 As of that date the People’s Republic of China resumed sovereignty over Macao (Õ para. 24). 26

4. United Kingdom 28

After acceding to the Convention, the United Kingdom extended the territorial application piece by piece to Hong Kong (with effect from April 21, 1977)44, the Isle of Man (with effect from May 23, 1979), Bermuda (with effect from February 12, 1980), Belize (with effect from February 24, 1981), the Cayman Islands (with effect from February 24, 1981), Guernsey (with effect from July 18, 1985), the Bailiwick of Jersey (with effect from May 28, 2002) and the British Virgin Islands (with effect from May 25, 2014).45 Shortly after the United Kingdom had extended the application of the Convention to Belize/British Honduras, the latter became independent on September 21, 1981. Belize, however, did not accede to the Convention and did not refer to the Convention as applicable law for foreign awards. Belize instead implemented parts of the Convention in its arbitration law.46

5. United States of America 29

Shortly after submitting the instrument for its accession, the United States of America notified the extension of the Convention to “all of the territories for the international relations of which the United States of America is responsible” (with effect from February 1, 1971).47 This declaration affects American Samoa, Guam, the Northern Mariana Islands, the US Virgin Islands and Puerto Rico as self-governing territories with locally elected governors and territorial legislatures.48

VI. Uncovered Territories (Article X(3)) 30

Under Article X(3), the Contracting State which, at the time of its signature, ratification or accession, did not extend the Convention to territories for whose Õ Annex II, Portugal, column “Other Declarations and Reservations.” Õ Annex II, Portugal, column “Other Declarations and Reservations.” 43 Õ Annex II, Portugal, column “Other Declarations and Reservations.” 44 Concerning the present situation Õ para. 24. 45 Õ Annex II, United Kingdom of Great Britain and Northern Island, column “Declaration as to Territories, Article X(1).” 46 See http://www.belizelaw.org/web/lawadmin/index2.html (last visited Apr. 20, 2019); see also Fuentes, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 490/491; see Belize: Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd., XXXVIII Y.B. Com. Arb. 324 paras 64 et seq. (2013) and Belize: Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd., XXXVIII Y.B. Com. Arb. 324 paras 143 et seq. (2013). 47 Õ Annex II, United States of America, column “Declaration as to Territories, Article X(1).” 48 See http://www.doi.gov/oia/islands/index.cfm (last visited Apr. 20, 2019). 41 42

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international relations it is responsible, shall consider extending the Convention. Although Article X(3) obliges Contracting States to consider extending the Convention, it does not provide for any sanctions in case of non-compliance.

VII. Excursus: Declarations and Reservations Not Stipulated by the NYC 1. Further Declarations and Reservations The Convention only allows a limited number of reservations and declarations, i.e. (i) Article I(3) regarding reciprocity and commercial matters (Õ Art. I paras 165 et seq., in particular Õ Art. I paras 170 et seq.),49 (ii) Article X with respect to the extension of the Convention to territories for the international relations of which a State is responsible50 and (iii) Article XI concerning the applicability of the Convention in federal States (Õ Art. XI paras 9 et seq.).51 Moreover, No. 14 of the Final Act of the United Nations Conference on International Commercial Arbitration of June 10, 1958 explicitly prohibits any further reservations and declarations.52 Nevertheless, the Contracting States made other declarations and reservations.53 Some of those additional declarations and reservations also address the issue of reciprocity.54 Those are dealt with in Õ Art. I paras 170 et seq., the others are dealt with in Õ paras 39 et seq. A reservation is generally understood as “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of a treaty in their application to that State,” Article 2(1) lit. d of the Vienna Convention on the Law of Treaties of 1969.55 Moreover, this is the definition to which the SecretaryGeneral of the UN adheres,56 even in cases where the Vienna Convention on the Law of Treaties of 1969 is not applicable, either because it does not have any retroactive effect (cf. Article 4 of the Vienna Convention on the Law of Treaties of 1969) and/or because not all Contracting States to the Convention are Member States of the Vienna Convention on the Law of Treaties of 196957. Under applicable general principles of international law, a State may only formulate declarations and reservations that are admissible under the respective international treaty.58 49 Õ Annex II, column “Reservation of Reciprocity, Article I(3)(1)” and column “Reservation of Commercial Matters, Article I(3)(2)”. 50 Õ para. 10; Annex II, column “Declaration as to Territories, Article X(1).” 51 The Final Act, E/CONF.26/8/Rev.1, p. 4 para. 14 (Õ Annex IV 1), also mentions Article XIV as option for making any reservations, although the wording of the Convention does not permit any reservations. 52 See Final Act, E/CONF.26/8/Rev.1, p. 4 para. 14 (Õ Annex IV 1). 53 Õ Annex II, column “Other Declarations and Reservations.” 54 Õ Annex II, Belarus, Bulgaria, Cuba, Czech Republic, Lithuania, Romania, Russian Federation, Slovakia, Republic of Tajikistan, Ukraine, Vietnam, column “Other Declarations and Reservations.” 55 See Stein/von Buttlar/Kotzur, Völkerrecht, para. 71; United Nations (ed.), Treaty Handbook, para. 3.5, pp. 12 et seq. 56 United Nations (ed.), Treaty Handbook, para. 3.6, pp. 12 et seq.; see United Nations (ed.), United Nations Treaty Collection, ch. VIII; see Kohona, 33 Ga. J. Int’l & Comp. L. 415 (2005). 57 The Vienna Convention on the Law of Treaties of 1969 generally applies only to States which are members of this international treaty. At present 116 States are parties to the Vienna Convention on the Law of Treaties of 1969, see https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_ no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en (last visited Apr. 20, 2019). 58 This is expressly stated in Article 19 lit. b of the Vienna Convention on the Law of Treaties of 1969, although it does not apply directly. But Articles 19 to 23 of the Vienna Convention on the Law of Treaties of 1969 are based on international customary law laid down by the International Court of Justice in its

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Article X 35–36

New York Convention

Consequently, a Contracting State may only make a limited number of reservations and declarations under the NYC (Õ para. 1). Further reservations and declarations are inadmissible.59 The effects of such inadmissible reservations and declarations are highly controversial and disputed,60 in particular in light of the fact that the Vienna Convention on the Law of Treaties of 1969 does not provide for any instrument to deal with such inadmissible reservations and declarations. 35 While some authors take the view that such reservations are invalid and the respective States shall (despite their objecting declarations) be fully bound by the treaty,61 others are of the opinion that the contractual relationship is entirely invalid (despite the signing and the ratification of the treaty). Other authors – correctly – take a (conciliatory) view according to which the validity of any reservation depends on its acceptance by other States (the so-called principle of consent).62 In the event that all States accept the reservation despite its inadmissibility, the treaty comes into force including the reservation.63 If this is not the case, the inadmissible reservation only applies between the State that declared the reservation and the State that accepted that reservation.64 36 Declarations and reservations may also be impliedly accepted.65 If a State objects to the reservation, the provisions concerning objections to reservations and their legal effects (in particular Article 20(4) lit. b and Article 21(3) of the Vienna Convention on the Law of Treaties of 1969) apply. Under those provisions an objection does not preclude the coming into force of the treaty between the objecting and the reserving State, unless a contrary intention is definitely expressed by the objecting State.66

advisory judgment ICJ: Reservations to the Convention on Genocide, ICJ Reports 1951, pp. 15 et seq.; see also Pellet, in: Corten/Klein (eds), Vienna Conventions, Article 19 Convention of 1969 paras 1 and 55 et seq. It is argued, however, that Article 19 lit. b of the Vienna Convention on the Law of Treaties of 1969 is the only alternative listed in Article 19 which may not be seen as being customary international law (at least not in 1986) but which is becoming more and more recognized by the States’ practice and is thus on its way to become customary international law, see Kühner, Vorbehalte, p. 127. 59 As a consequence, the Secretary-General of the UN as depositary of multilateral treaties refuses to accept such reservations and declarations, however, only if there is prima facie no doubt that the statement accompanying the instrument is an unauthorized reservation, see United Nations (ed.), United Nations Treaty Collection, ch. VIII, paras 192/193 in connection with para. 191. 60 See Delbrück/Dahm/Wolfrum, Völkerrecht, p. 566; Shaw, International Law, p. 698; Pellet, in: Corten/Klein (eds), Vienna Conventions, Article 19 Convention of 1969 paras 94 and 174 et seq.; Stein/ von Buttlar/Kotzur, Völkerrecht, para. 80, all with further references. 61 See overview provided by Kühner, Vorbehalte, pp. 220 et seq., by Shaw, International Law, pp. 698 et seq.; Stein/von Buttlar/Kotzur, Völkerrecht, para. 80. This is particularly true for human rights treaties, see Shaw, International Law, pp. 699 et seq.; Stein/von Buttlar/Kotzur, Völkerrecht, para. 80, all with further references; cf. Preliminary Conclusions of the International Law Commission on reservations to normative multilateral Treaties including Human Rights Treaties, A/52/10, p. 125 para. 10. 62 Cf. Heintschel von Heinegg, in: Ipsen (ed.), Völkerrecht, § 17 paras 16 et seq.; Shaw, International Law, p. 698 with further references, also Kühner, Vorbehalte, p. 229 who points out that which is the correct solution for the respective treaty must be decided on a case-by-case basis. In this respect, the significance of the reservation, the reaction of other contracting parties and the legal and practical effect of the reservations may be relevant. Kühner further states that a solution can only be found by the States’ practice. 63 See Heintschel von Heinegg, in: Ipsen (ed.), Völkerrecht, § 17 para. 16 in connection with para. 18. 64 Heintschel von Heinegg, in: Ipsen (ed.), Völkerrecht, § 17 para. 16 in connection with para. 18. 65 Pellet, in: Corten/Klein (eds), Vienna Conventions, Article 20 Convention 1969 paras 28 et seq., in particular 39. 66 See Heintschel von Heinegg, in: Ipsen (ed.), Völkerrecht, § 17 para. 16 in connection with para. 18; Pellet, in: Corten/Klein (eds), Vienna Conventions, Article 20 Convention of 1969 para. 110; cf. Kühner, Vorbehalte, p. 229 who proposes to apply Article 20(3) of the Vienna Convention on the Law of Treaties of 1969 to inadmissible reservations.

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Article X

Declarations and reservations, whether admissible or not under the respective inter- 37 national treaty, must be distinguished from understandings, political statements, and interpretative declarations which are not intended to amend the content or the scope of the treaty.67 Such declarations shall avoid certain conclusions that might be attributed to a State’s ratification of, or accession to an international treaty. One of the most common examples are statements on non-recognition of States, whereby the declaration is made in order to avoid a State’s accession to an international treaty being interpreted as acceptance of a legal status that arose beyond the international treaty and was not accepted by the State which made the statement.68 The declarations and reservations of Bahrain69, Jordan70 and Kuwait71 that all refer to the non-recognition of Israel are to be interpreted as such statements.72 The same is true for the declarations and reservations of Canada,73 Israel74 and the United States of America75 in relation to the nonrecognition of Palestine which was registered as Contracting State after Canada, Israel and the United States of America became members of the Convention.76 This also applies to the declarations of Argentina77 and Ukraine78. The latter stated (in summary) that the application and implementation of Ukraine’s duties under the Convention for Crimea, the city of Sevastopol and certain districts of the Donetsk and Luhansk oblasts of Ukraine are temporarily limited and not guaranteed due to its lack of control over those territories. Ukraine further states that it is still responsible for any communication in relation to the Convention, also regarding the territories presently not under its, but under the control of the Russian Federation.79 The Holy See’s statement that “the Convention will apply only to the territory of the State of Vatican City and to its civil law”80 is also not meant to restrict the applicability of the Convention. It is to be interpreted in the light of the fact that the Holy See is not a State but rather represents Vatican City in its international relationships (Õ Art. IX para. 8). However, other Contracting States have made declarations or reservations which are 38 intended to alter the binding effect of the Convention for such Contracting States in relation to one or all other Contracting States. These are: a) Argentina Argentina declared upon signature that “[i]f another Contracting Party extends the 39 application of the Convention to territories which fall within the sovereignty of the 67 Shaw, International Law, p. 694; Swaine, in: Hollis (ed.), Oxford Guide to Treaties, pp. 277, 279/280; Stein/von Buttlar/Kotzur, Völkerrecht, para. 72, see also United Nations (ed.), Treaty Handbook, para. 3.6, p. 16. 68 Swaine, in Hollis (ed.), Oxford Guide to Treaties, pp. 277, 280; cf. Stein/von Buttlar/Kotzur, Völkerrecht, para. 72. 69 Õ Annex II, Bahrain, column “Other Declarations and Reservations.” 70 Õ Annex II, Jordan, column “Other Declarations and Reservations.” 71 Õ Annex II, Kuwait, column “Other Declarations and Reservations.” 72 Israel objected to Bahrain’s and Jordan’s declaration, Õ Annex II, Bahrain and Jordan, column “Other Declarations and Reservations.” 73 Õ Annex II, Canada, column “Other Declarations and Reservations.” 74 Õ Annex II, Jordan, column “Other Declarations and Reservations.” 75 Õ Annex II, United States of America, column “Other Declarations and Reservations.” 76 Palestine objected to Canada’s, Israel’s and the declaration of the United States, Õ Annex II, Canada, Israel and United States of America, column “Other Declarations and Reservations.” 77 Õ Annex II, Argentina, column “Other Declarations and Reservations,” stating “If another Contracting Party extends the application of the Convention to territories which fall within the sovereignty of the Argentine Republic, the rights of the Argentine Republic shall in no way be affected by that extension.” 78 Õ Annex II, Ukraine, column “Other Declarations and Reservations.” 79 Õ Annex II, Ukraine, column “Other Declarations and Reservations.” 80 Õ Annex II, Holy See, column “Other Declarations and Reservations.”

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Article X 40–43

New York Convention

Argentine Republic, the rights of the Argentine Republic shall in no way be affected by that extension.” In addition, it declared upon ratification that “[t]he Convention will be interpreted in accordance with the principles and clauses of the National Constitution in force or those resulting from modification made by virtue of the Constitution.”81 Germany objected to such declaration by stating that “[t]he Federal Republic of Germany is of the opinion that the second paragraph of the declaration of the Argentine Republic represents a reservation and as such is not only contradictory to article I(3) of the Convention but is also vague and hence inadmissible; it therefore raises an objection to that reservation. In all other respects this objection is not intended to prevent the entry into force of the Convention between the Argentine Republic and the Federal Republic of Germany.”82 b) Former Socialist Republic of Yugoslavia 40 The Socialist Republic of Yugoslavia and its successor States, i.e. Bosnia and Herzegovina,83 Croatia,84 Montenegro,85 North Macedonia86 and Serbia87 declared that the “Convention is applied […] only to those arbitral awards which were adopted after the coming of the Convention into effect.” The declaration of the Republic of Moldova88 has the same content. 41

c) Malta Malta’s declaration89 is along the same lines as the declaration of the former Socialist Republic of Yugoslavia: it declared that the Convention only applies “with respect to arbitration agreements concluded after the date of Malta’s accession to the Convention.”

d) Norway 42 Norway declared that it will “not apply the Convention to differences where the subject matter of the proceedings is immovable property situated in Norway, or a right in or to such property.”90 43

e) Tajikistan Tajikistan declared that the “Republic of Tajikistan will apply this Convention to differences and arbitral [a]wards arised out after entering into force of this Convention with respect to the Republic of Tajikistan and made in the territory of another Contracting State” and that the “Republic of Tajikistan will not apply this Convention with regard to differences related to immovable property.”91

Õ Annex II, Argentina, column “Other Declarations and Reservations.” Õ Annex II, Argentina, column “Other Declarations and Reservations.” The wording corresponds to Article 21(3) of the Vienna Convention on the Law of Treaties of 1969 (Legal effect of reservations and of objections to reservations which provides that in case a State “objecting to a reservation has not opposed to the entry into force of the treaty between itself and the reserving state, the provision to which the reservation relates do not apply as between the two States to the extent of the reservation.”). 83 Õ Annex II, Bosnia and Herzegovina, column “Other Declarations and Reservations.” 84 Õ Annex II, Croatia, column “Other Declarations and Reservations.” 85 Õ Annex II, Montenegro, column “Other Declarations and Reservations.” 86 Õ Annex II, North Macedonia, column “Other Declarations and Reservations.” 87 Õ Annex II, Serbia, column “Other Declarations and Reservations.” 88 Õ Annex II, Moldova, Republic of, column “Other Declarations and Reservations.” 89 Õ Annex II, Malta, column “Other Declarations and Reservations.” 90 Õ Annex II, Norway, column “Other Declarations and Reservations.” 91 Õ Annex II, Tajikistan, Republic of, column “Other Declarations and Reservations.” 81 82

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f) Vietnam Vietnam declared that “[i]nterpretation of the Convention before the Vietnamese 44 Courts or competent Authorities should be made in accordance with the Constitution and the law of Vietnam.”92

2. Inadmissible Declarations With respect to the Convention, only one (inadmissible) declaration was objected 45 to – Germany partly objected to Argentina’s reservations (Õ para. 39). However, this objection has only changed the content of the Convention with effect between Germany and Argentina (Õ para. 39). All other (inadmissible) declarations and reservations were impliedly accepted by the Contracting States either because they did not object in due time or because they acceded to the Convention at a time when the respective (inadmissible) reservation or declaration was already incorporated in the Convention without making any objections.

3. Reservations Following Successions When signing the Convention, the Socialist Republic of Yugoslavia made three 46 declarations. While Bosnia and Herzegovina,93 Croatia,94 Montenegro,95 North Macedonia96 and Serbia97 simply maintained one of the three reservations after their succession, Slovenia when confirming its succession98 vis-à-vis the UN SecretaryGeneral explicitly re-issued two reservations (only).99 This indicates that Slovenia no longer wishes to be bound by the reservations made by the Socialist Republic of Yugoslavia.100 Õ Annex II, Vietnam, column “Other Declarations and Reservations.” Õ Annex II, Bosnia and Herzegovina, column “Other Declarations and Reservations.” 94 Õ Annex II, Croatia, column “Other Declarations and Reservations.” 95 Õ Annex II, Montenegro, column “Other Declarations and Reservations.” 96 Õ Annex II, North Macedonia, column “Other Declarations and Reservations.” 97 Õ Annex II, Serbia, column “Other Declarations and Reservations;” regarding succession, also Õ Art. IX paras 13 et seq. 98 In recent times, State practice in the successions of the USSR, the Socialist Republic of Yugoslavia and Czechoslovakia has shown that universal treaties shall apply to all successor States until such States notify the depository of the succession or its withdrawal from the treaty, see Hobe, Einführung, p. 109. 99 Õ Annex II, Slovenia, column “Other Declarations and Reservations.” 100 Nevertheless, the third reservation is still indicated by the UN in the current status of the Convention, United Nations Treaty Collection, Status of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, see http://treaties.un.org/pages/ViewDetails.aspx?src=TREA TY&mtdsg_no=XXII-1&chapter=22&lang=en (last visited Apr. 20, 2019; and also UNCITRAL, Status of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, https://uncitral.un.org/ en/texts/arbitration/conventions/foreign_arbitral_awards/status2 (last visited Apr. 20, 2019). 92 93

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Article XI [Federal or Non-Unitary States] In the case of a federal or non-unitary State, the following provisions shall apply: a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal authority, the obligations of the federal Government shall to this extent be the same as those of Contracting States which are not federal States; b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent states or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent states or provinces at the earliest possible moment; c) A federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of this Convention, showing the extent to which effect has been given to that provision by legislative or other action. Specific Bibliography: see Article VIII. Table of Contents I. II. III. IV. V.

Overview ................................................................................................................... 1 Spirit and Purpose .................................................................................................. 2 Drafting History ...................................................................................................... 3 Handling of Divided Judicial Powers ................................................................. 9 No Practical Impact................................................................................................ 12

I. Overview Article XI deals with the application of the Convention to Contracting States which 1 are organized as federal States and therefore have divided legislative powers. Since the enforcement of foreign arbitral awards is subject to federal legislation in many of the States with a federal state system, Article XI’s practical impact is limited (Õ para. 12).

II. Spirit and Purpose Article XI was highly disputed during the New York Conference in 1958. The 2 incorporation of the so-called “federal clause” gave States with a federal state system the opportunity to find internal solutions for adopting and enforcing the Convention within its entire State territory. It appears that Article XI was a compromise in order to ensure that as many (important) States as possible would become members to the Convention.

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Article XI 3–7

New York Convention

III. Drafting History 3 4

5

6

7

Article XI has no equivalent in the predecessor provisions of the Convention, the Geneva Protocol (Õ Annex V 1) and the Geneva Convention (Õ Annex V 2). In the ECOSOC draft, the federal clause was included as Article X(1). Its paragraph 2, which contained the reciprocity clause, was eventually adopted as a separate provision in Article XIV1 (Õ Art. XIV paras 4 et seq.). At the time of the negotiation and drafting of the Convention, the incorporation of a clause that expressly dealt with the particularities of federal States into international treaties was common practice.2 Nevertheless, the incorporation of the federal clause was subject to intense discussions in the negotiation and drafting procedure: some countries already vehemently demanded the incorporation of a federal clause3 in the course of the meetings of the Committee on the Enforcement of International Arbitral Awards in 1955, whereas others were hesitant towards4 or even openly opposed to5 this proposal. In consideration of these conflicting conceptions, the Committee on the Enforcement of International Arbitral Awards decided to postpone the decision on this issue.6 The problem was ultimately dealt with during the Twentieth Meeting of the New York Conference in 1958. At that meeting Australia insisted on the adoption of a federal clause, as it feared that otherwise it might not be able to ratify the Convention due to its strong federal structures.7 Other countries – including non-federal States –8 followed Australia in its reasoning, arguing that the provision merely dealt with the internal structure of certain States9 and – if nothing else – contributed to the universal validity that was to be achieved by the Convention10. The opposing group, consisting predominantly of Eastern European States,11 considered the adoption of a federal clause as conflicting with the principle of equality between the UN Member States12 and therefore strongly disapproved of the incorporation of such clause.13 The USSR had even announced earlier that it would not participate in the drafting due to “objections in principle” to this article.14 The opposing countries particularly feared that federal States might be in a position to avoid some of the obligations that were generally imposed by the Convention on all Contracting States.15 Concerns were also raised regarding the wording of lit. b, in particular concerning the fact that the federal government should, where necessary, bring articles 1

See Article X, E/2704, Annex, pp. 4, 5 (Õ Annex IV 1). See Delbrück/Dahm/Wolfrum, Völkerrecht, p. 566 with additional references. 3 See statements of the Australian and the Belgian representatives, E/AC.42/SR.8, p. 5 (Õ Annex IV 1). 4 See statement of the representative of India, E/AC.42/SR.8, p. 7 (Õ Annex IV 1). 5 See statement of the representative of the USSR, E/AC.42/SR.8, p. 6 (Õ Annex IV 1). 6 See E/AC.42/SR.8, p. 10 (Õ Annex IV 1). 7 See statement of the Australian representative, E/CONF.26/SR.20, p. 6 (Õ Annex IV 1). 8 E.g. Italy, United Kingdom. 9 See statement of the representative of El Salvador, E/CONF.26/SR.20, p. 8 (Õ Annex IV 1). 10 See statement of the representative of Ceylon, E/CONF.26/SR.20, p. 9 (Õ Annex IV 1). 11 Such as Poland, Czechoslovakia, Bulgaria and Albania, E/CONF.26/SR.20, pp. 5 et seq. (Õ Annex IV 1). 12 A principle of utmost importance for the structure of the UN and which is highlighted in Article 2 of the UN Charter. 13 See, e.g., statement of the Polish representative, E/CONF.26/SR.20, p. 5 (Õ Annex IV 1). 14 See E/2704, pp. 15, 16 para. 61 (Õ Annex IV 1). 15 See statement of the Polish representative, E/CONF.26/SR.20, p. 5 (Õ Annex IV 1), and statement of the representative of the Philippines, E/CONF.26/SR.20, p. 9 (Õ Annex IV 1). 2

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8–13 Article

Federal or Non-Unitary States

XI

to the notice of the constituent States with a “favorable recommendation.” This was because such wording does not in itself have binding legal effect. Eventually, despite these objections, the countries that supported the adoption of 8 Article X prevailed; the federal clause was adopted by 27 votes to eight with one abstention.16

IV. Handling of Divided Judicial Powers Against the background of divided legislative powers in federal States, Article XI gives 9 guidance to the governments of federal Contracting States relating to the application of the Convention. Since only States (and not constituent States or provinces) may become Contracting States, guidance is only given to the Contracting States themselves. In essence, Article XI therefore places the Contracting States under the obligation to respect the Convention itself (lit. a) and, where Contracting States themselves lack the power to observe the articles of the Convention, to exercise their influence on their constituent States or provinces (lit. b). Lit. a obliges the federal governments to respect all articles that fall within the federal 10 authorities’ legislative powers. The scope of this obligation corresponds to the duties of Contracting States that are not federal States. Concerning articles of the Convention that fall within the legislative powers of constituent States, the federal governments of the Contracting States have a duty to inform the constituent States’ responsible authorities about such articles and to issue respective favorable recommendations. This recommendation shall be issued at the earliest possible moment. The division of legislative powers in federal States is often not transparent for 11 unaffected third parties. In order to ascertain that interested Contracting States receive the information relating to the status of legislation and practice in federal States and its constituent units, Article XI lit. c obliges federal Contracting States to issue a respective statement relating to any particular provision of the Convention. The statement must only be prepared and transmitted if a Contracting State has requested such information. The information has to be sent to the Secretary-General of the UN who will forward the statement to the Contracting State that requested the information.

V. No Practical Impact Although Article XI was highly disputed during the New York Conference, to date it 12 has not had much practical impact. This is because the enforcement of foreign arbitral awards is handled under federal legislation in most of the Contracting States with a federal state system, e.g. Austria, Germany, India, Switzerland and the US17. This is different in particular in Canada,18 where the legislative power for interna- 13 tional arbitration and enforcement of arbitral awards is split between the federation and the provinces depending on the subject matter of the dispute.19 As a consequence, each 16

See E/CONF.26/SR.24, p. 10 (Õ Annex IV 1). Cf. for example US: Joselito Madriaga Lim v. Adelito M. Aganon, XXX Y.B. Com. Arb. 1119, 1121 para. 6 (2005) (5th Cir. 2005); Murphy Oil USA, Inc. v. SR Int’l Bus. Ins. Co., 2007 WL 2752366 (W.D. Ark. 2007). 18 Canada is a federal State with ten provinces and three territories. With the consent of its provinces and territories, Canada acceded to and ratified the Convention in 1986 with effect from Aug. 10, 1986, see Thomson/Finn, (2002) 18 Arb. Int’l 205. 19 Thomson/Finn, (2002) 18 Arb. Int’l 205; Alvarez, (2008) 25 J. Int. Arb. 669. 17

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Article XI 13

New York Convention

of Canada’s provinces and territories and the federal State itself have passed their own legislation on international arbitration and on the enforcement of arbitral awards.20 The UNCITRAL Model Law was implemented on both levels, as well as legislation passed for making the Convention applicable.21 On the federal level, the United Nations Foreign Arbitral Awards Convention Act implemented the Convention.22 The federal arbitration law mainly applies to disputes where one of the parties to the arbitration is the federal government, one of its agencies or a federal corporation, and to matters under exclusive federal jurisdiction, such as to maritime and admiralty matters.23 The provinces and territories implemented the Convention either with the same statute as the UNCITRAL Model Law or by separate statutes24 which apply to all other disputes, i.e. international commercial arbitrations between private parties and where the federal arbitration law does not apply.25 20 Thomson/Finn, (2002) 18 Arb. Int’l 205; Alvarez, (2008) 25 J. Int. Arb. 669; Chibueze, (2001) 18 J. Int. Arb. 195. 21 According to Alvarez, (2008) 25 J. Int. Arb. 669, 670, the manner in which the Convention and the Model Law were adopted by the different jurisdictions has led to significant overlapping of their respective provisions on the enforcement of arbitration clauses and awards. 22 Thomson/Finn, (2002) 18 Arb. Int’l 205; also Alvarez, (2008) 25 J. Int. Arb. 669. 23 Alvarez, (2008) 25 J. Int. Arb. 669. 24 Thomson/Finn, (2002) 18 Arb. Int’l 205. 25 Thomson/Finn, (2002) 18 Arb. Int’l 205; Alvarez, (2008) 25 J. Int. Arb. 669.

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Article XII [Coming into Force] 1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession. 2. For each State ratifying or acceeding* to this Convention after the deposit of the third instrument of ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession. Specific Bibliography: see Article VIII. Table of Contents I. Overview ................................................................................................................... 1 II. Spirit and Purpose .................................................................................................. 2 III. Drafting History ...................................................................................................... 3 1. Number of Ratifications for the Convention to Enter into Force .......... 5 2. Retroactive Effect................................................................................................ 6 IV. Coming into Force of the Convention (Article XII(1)) ................................. 9 V. Coming into Force in Case of Subsequent Ratification or Accession (Article XII(2)) ........................................................................................................ 10 VI. Retroactive Effect of the Convention ................................................................. 11 VII. Means for Evidencing the Contracting States’ Membership......................... 12

I. Overview While Article XII(1) stipulates the date on which the Convention comes into force 1 (Õ para. 9), paragraph 2 deals with the applicability of the Convention for Contracting States after their respective ratifications or accessions (Õ para. 10).

II. Spirit and Purpose Article XII is of procedural importance because it stipulates the dates on which the 2 Convention comes into force. Today, only paragraph 2 is of practical relevance since it enables the determination of the date of the applicability of the Convention in relation to each individual Contracting State.

III. Drafting History Article XII is the successor provision of Article 6 of the Geneva Protocol (Õ An- 3 nex V 1) and Article 8 of the Geneva Convention (Õ Annex V 2), which also provided for ninety day periods, both for the treaties coming into force and for each Member State joining thereafter.

*

Should read “acceding.”

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Article XII 4–7 4

New York Convention

Article XII had, in a nearly identical version, been proposed in the ECOSOC draft as Article XI.1 During the New York Conference in 1958 the representatives principally discussed two issues, namely the number of ratifications that were required for the Convention to come into force (Õ para. 5) and the question of retroactive effect (Õ para. 6).

1. Number of Ratifications for the Convention to Enter into Force 5

The ECOSOC draft, most probably following the predecessor provisions of the Convention (Article 6 of the Geneva Protocol and Article 8 of the Geneva Convention), stipulated that only two ratifications were necessary for the Convention to come into force.2 However, during the New York Conference in 1958 new proposals as to the required number of ratifications came up: while Italy argued that at least three ratifications or accessions were necessary for establishing the legal validity of the Convention,3 Belgium found a number of not less than six joining parties adequate.4 Eventually, the negotiating parties opted for the Italian proposal.5, 6

2. Retroactive Effect The retroactive effect of the Convention was disputed during the discussion of the Drafting Committee. The representative of Yugoslavia started the discussion by raising the question as to whether the Convention should also apply to arbitral awards that had become operative before the Convention came into force.7 Yugoslavia subsequently submitted a proposal to have the Convention only applied to arbitral awards that came into effect after adoption of the Convention.8 Turkey and Belgium supported Yugoslavia’s proposal, arguing that the Convention would otherwise allow the enforcement of awards that had been issued many years before and had not been enforced for various reasons; in their view this could have led to unnecessary problems and expenses.9 Additionally, the Convention also concerned substantial matters and not only procedural matters with the consequence that, without the adoption of Yugoslavia’s proposal, the Convention would be “antedated,” which was not its original purpose.10 They further argued that more countries might be motivated to join the Convention if the amendment were included.11 7 An opposing opinion was expressly maintained by Israel, Switzerland, France and Argentina: their main argument, raised by the French representative, was that by employing a retroactive effect the Convention would only include such cases where the enforcement was inhibited by the bad faith of the losing party.12 Israel also pointed out 6

1

See Article XI, E/2704, Annex, p. 5 (Õ Annex IV 1). See Article XI, E/2704, Annex, p. 5 (Õ Annex IV 1). 3 See statement of the Italian representative, E/CONF.26/SR.20, p. 11 (Õ Annex IV 1). 4 See statement of the Belgian representative, E/CONF.26/SR.20, p. 11 (Õ Annex IV 1). 5 See E/CONF.26/SR.21, p. 4 (Õ Annex IV 1). 6 For a different view, see Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 498 who incorrectly states that “the final text of Article XII is identical to the text proposed as Article XI of the Draft Convention.” 7 See statement of the representative of Yugoslavia, E/CONF.26/SR.20, p. 12 (Õ Annex IV 1). 8 See E/CONF.26/SR.20, p. 12 (Õ Annex IV 1) and E/CONF.26/SR.21, p. 2 (Õ Annex IV 1). 9 See statement of the Turkish representative, E/CONF.26/SR.21, p. 2 (Õ Annex IV 1). 10 See statement of the Turkish representative, E/CONF.26/SR.21, p. 3 (Õ Annex IV 1) and the statement of the Belgian representative, E/CONF.26/SR.21, p. 3 (Õ Annex IV 1). 11 See statement of the representative of Yugoslavia, E/CONF.26/SR.20, p. 12 (Õ Annex IV 1). 12 E.g. statement of the French representative, E/CONF.26/SR.21, p. 3 (Õ Annex IV 1) and the statement of the representative of Argentina, E/CONF.26/SR.21, p. 4 (Õ Annex IV 1). 2

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8–10 Article

Coming into Force

XII

that not many awards would be additionally included in the event that the Convention had a retroactive effect, since all cases in which an award had already been rendered could not be reopened and thus would not be subject to the Convention.13 Ultimately, 17 States voted in favor of the Yugoslavian14 proposal,15 thereby failing to 8 obtain the required two-third majority.16 The text of the Convention thus remained unchanged on this issue, leaving the question of a retroactive effect to the interpretation of state courts.

IV. Coming into Force of the Convention (Article XII(1)) Under Article XII, the Convention as an international treaty came into force on the 9 ninetieth day following the deposit of the third instrument of ratification or accession (see Articles VIII(2) and IX(2)), i.e. on June 7, 1959.17 Such procedure is commonly used for the coming into force of international treaties.18

V. Coming into Force in Case of Subsequent Ratification or Accession (Article XII(2)) Each Contracting State shall be bound by the Convention on the ninetieth day after 10 deposit of its instrument of ratification or accession (see Articles VIII(2) and IX(2)), Article XII(2). Paragraph 2 thus explicitly provides for a binding effect. In practice, this generally does not involve any problems except in the event that national law requires an act of implementation of the Convention19 and where such act was not performed before the respective State ratified the Convention and deposited the instrument of ratification with the Secretary-General of the UN (see Article IX(2)). This happened in Bangladesh, for example, which joined the Convention in 1992 but did not implement it into its national law.20 As a consequence, in 1997 the Bangladeshi Supreme Court held that one could not rely on the Convention for enforcing a foreign arbitral award in Bangladesh.21 Bangladesh finally implemented the Convention in its Arbitration Act of 2001.22 13

See statement of the representative of Israel, E/CONF.26/SR.21, p. 2 (Õ Annex IV 1). The Socialist Republic of Yugoslavia and its successor States, respectively, eventually made a declaration under the Convention which stipulates: “The Convention is applied in regard to the Socialist Federal Republic of Yugoslavia only to those arbitral awards which were adopted after the coming of the Convention into effect,” Õ Annex II, Croatia, Montenegro, North Macedonia, Serbia as well as Bosnia and Herzegovina, column “Other Declarations and Reservations” with a similar wording. Slovenia did not maintain this reservation upon its succession, Õ Annex II, Slovenia, column “Other Declarations and Reservations.” 15 See E/CONF.26/SR.21, p. 4 (Õ Annex IV 1). 16 See Rule 23 of the Rules of Procedure, adopted by the United Nations Conference on International Commercial Arbitration, E/CONF.26/5/Rev.1, p. 5 (Õ Annex IV 1). 17 Egypt, Israel, Morocco and Syria were the first four States to deposit the instrument of ratification, Õ Annex II, Egypt, Israel, Morocco, Syrian Arab Republic, column “Ratification, Accession (a) or Succession (s).” 18 Stein/von Buttlar/Kotzur, Völkerrecht, para. 66. 19 Generally, international treaties are not self-executing but need a domestic act for their enforcement, i.e. either by a special implementing act or by a declaration that the respective treaty shall be directly applicable, cf. Stein/von Buttlar/Kotzur, Völkerrecht, para. 62. 20 See Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 499. 21 See Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 499. 22 The Arbitration Act of Bangladesh was supposed to incorporate the UNCITRAL Model Law, however, Bangladesh failed to fully implement the UNCITRAL Model Law, i.e. Article 1(2) of the Model Law was not implemented, see Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 499 with further references. 14

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Article XII 11–12

New York Convention

VI. Retroactive Effect of the Convention The retroactive effect of the Convention was intensively discussed during the New York Conference in 1958. However, the representatives finally decided not to insert a clear wording on that issue (Õ para. 8). As a consequence of this decision, it is still controversially discussed whether or not the Convention in fact has retrospective effect.23 The prevailing opinion – correctly – tends to presume that the Convention applies retroactively (Õ Prel. Rem. paras 55 et seq.). This is true (i) for awards issued in a State at a time when such State was not yet party to the Convention, (ii) for awards issued before the enforcing State became party to the Convention and also (iii) for arbitration agreements signed before the Convention came into force24 (Õ Prel. Rem. paras 56 et seq.).25 Only by applying the Convention retroactively in the aforementioned situations can a time gap be avoided by which parties could be deprived of their rights under the Convention.26 11a Croatia, Montenegro, North Macedonia, Serbia as well as Bosnia and Herzegovina, have formulated reservations with regard to the retroactive application of the Convention (Õ n. 14; also Õ Art. X para. 45 regarding the acceptance of declarations).27 11

VII. Means for Evidencing the Contracting States’ Membership 12

A party applying for recognition or enforcement of an award under the Convention does not need specific evidence to prove that a State is party to the Convention.28 It is sufficient to prove that the UN lists the respective State as Member State to the Convention.29 23 Arguing for a retroactive effect e.g. Italy: Cass., sez. un., I Y.B. Com. Arb. 190, 191 (1976) (printed in excerpts); Germany: OLG Hamburg, IV Y.B. Com. Arb. 266, 267 (1979) (printed in excerpts); UK: Sir Frederick Snow & Partners v. Minister of Public Works of the Government of the State of Kuwait, X Y.B. Com. Arb. 508, 510 (1985) (printed in excerpts); US: Copal Co. v. Fotochrome, Inc., I Y.B. Com. Arb. 202 (1976) (2d Cir. 1975) (printed in excerpts); arguing against a retroactive effect for instance Switzerland: CJ, I Y.B. Com. Arb. 199 (1976) (printed in excerpts); Belgium: TPI Bruxelles, XV Y.B. Com. Arb. 370, 373 (1990) (printed in excerpts). 24 See, e.g., Pakistan: Travel Automation Ltd. v. Abacus International Pvt. Ltd., XXXII Y.B. Com. Arb. 438, 439 (2007) (printed in excerpts). 25 Cf. UNCITRAL Secretariat, Guide, Art. IX paras 6 et seq. 26 Cf. UK: Sir Frederick Snow & Partners v. Minister of Public Works of the Government of the State of Kuwait, X Y.B. Com. Arb. 508, 511 (1985) (printed in excerpts). 27 Õ Annex II, Croatia, Montenegro, North Macedonia, Serbia as well as Bosnia and Herzegovina, column “Other Declarations and Reservations.” 28 See Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 500. 29 See Otto, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 500.

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Article XIII [Denunciation] 1. 1Any Contracting State may denounce this Convention by a written notification to the Secretary-General of the United Nations. 2Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General. 2. Any State which has made a declaration or notification under article X may, at any time thereafter, by notification to the Secretary-General of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of the notification by the Secretary-General. 3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition or enforcement proceedings have been instituted before the denunciation takes effect. Specific Bibliography: see Article VIII. Table of Contents I. II. III. IV.

Overview ................................................................................................................... Spirit and Purpose .................................................................................................. Drafting History ...................................................................................................... Denunciation of the Convention (Article XIII(1)).......................................... 1. Written Notification .......................................................................................... 2. Taking Effect ....................................................................................................... 3. Other Reasons for Terminating or Suspending the Convention ............ 4. Practical Relevance............................................................................................. V. Cessation of Extension (Article XIII(2))............................................................ VI. Temporal Effect of Denunciation (Article XIII(3)).........................................

1 2 3 7 8 10 11 14 17 19

I. Overview Article XIII addresses the Contracting States’ option to rescind the Convention 1 (Õ paras 7 et seq.) as well as the temporal effect of the denunciation (Õ para. 19). The option is also extended to the territories for the international relations of which a Contracting State is responsible (Õ paras 17 et seq.).

II. Spirit and Purpose Article XIII stipulates a widely accepted option on an international level to rescind 2 an international treaty without providing any reasons and without obtaining the agreement of the other Contracting States.

III. Drafting History Article XIII succeeds Article 7 of the Geneva Protocol (Õ Annex V 1) and 3 Articles 9 and 10 of the Geneva Convention (Õ Annex V 2).

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Article XIII 4–6

New York Convention

In the ECOSOC draft Article XIII (which was originally intended to be Article XII) only had two paragraphs, i.e. the current paragraphs 1 and 2. There was no discussion on paragraph 1 and only limited disagreement on Article XIII(2). Concerning the latter, the Socialist Republic of Yugoslavia (consequently) renewed its general reservation towards provisions dealing with colonial territories.1 Upon the request of the Czechoslovakian representative, Article XIII(1) and (2) were voted on separately.2 While Article XIII(1) was adopted by 37 votes to none, the vote on Article XIII(2) resulted in 31 votes to seven, with one abstention.3 5 The discussion on Article XIII was rather focused on the newly included paragraph 3. Paragraph 3 was not already part of the ECOSOC draft.4 The Société Belge d’Etudes et d’Expansion5 and Switzerland6 initially proposed the inclusion of a provision with similar content, but restricted to enforcement proceedings. The formal proposal for including Article XIII(3) was then made by Pakistan7 and dealt with in the twentieth meeting of the Conference.8 Upon the proposal of the representative of El Salvador, the intended wording for paragraph 3 was extended to also cover recognition proceedings and not only enforcement proceedings.9 The inclusion of paragraph 3 was ultimately adopted with 33 approving votes (no dissenting vote, with four abstentions) in the twentieth meeting.10 6 Norway then proposed restricting paragraph 3 to “proceedings instituted before the entry into force of a denunciation in the country which had denounced the Convention.”11 This proposal, however, was rejected due to concerns that the insertion might lead to confusion.12 As a result, in the twentieth meeting Article XIII in its entirety was eventually adopted by 28 votes with no counter vote and eight abstentions.13 In the twenty-fourth meeting, Norway reopened the discussion on Article XIII by proposing to restrict its effects by inserting the words “in the denouncing State.”14 This new proposal was rejected due to the same concerns as in the twentieth meeting.15 Norway’s new proposal was again rejected by eight votes to seven with 18 abstentions.16 4

1 See E/2822/Add.6, pp. 2 et seq. (Õ Annex IV 1)and E/2822, pp. 29, 30 et seq. (Õ Annex IV 1). Regarding the “colonial clause,” Õ Art. X paras 4 et seq. 2 See E/CONF.26/SR.20, p. 13 (Õ Annex IV 1). 3 E/CONF.26/SR.20, p. 13 (Õ Annex IV 1). 4 See Article XII, E/2704 Annex, pp. 4, 5 (Õ Annex IV 1). 5 See E/2822, p. 25 (Õ Annex IV 1). 6 See E/2822, p. 30 (Õ Annex IV 1). 7 See E/CONF.26/L.16, para. 6 (Õ Annex IV 1). 8 E/CONF.26/SR.20, pp. 12 et seq. (Õ Annex IV 1). 9 See E/CONF.26/SR.20, p. 12 (Õ Annex IV 1). 10 E/CONF.26/SR.20, p. 13 (Õ Annex IV 1). 11 See statements of the representatives of Argentina, Bulgaria and Switzerland, E/CONF.26/SR.20, p. 13 (Õ Annex IV 1). 12 See E/CONF.26/SR.20, p. 14 (Õ Annex IV 1). 13 See E/CONF.26/SR.20, p. 14 (Õ Annex IV 1). 14 E/CONF.26/SR.24, p. 5 (Õ Annex IV 1). 15 E/CONF.26/SR.24, p. 6 (Õ Annex IV 1). In addition, the Peruvian representative observed that, regardless of the provisions of article VIII, paragraph 3, the enforcing authority would have to determine what the will of the parties in each case was. In order to facilitate that task “the parties to an arbitration agreement should make express provision for the possibility of denunciation,” see E/CONF.26/SR.24, p. 6 (Õ Annex IV 1). However, the parties cannot determine with binding effect whether or not a State has to provide for the possibility of the recognition and enforcement of an arbitral award in case of a denunciation. 16 E/CONF.26/SR.24, p. 6 (Õ Annex IV 1).

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7–11 Article

Denunciation

XIII

IV. Denunciation of the Convention (Article XIII(1)) The Convention, like many other international treaties and also the predecessor 7 provisions (Õ para. 3), provides Contracting States with the option to denounce the Convention.17

1. Written Notification The denunciation is to be made in writing to the Secretary-General as chief 8 administrator of the UN (cf. Article 97 of the UN Charter). The UN Secretary-General applies the same practices regarding the denunciation as he or she does in respect of the deposition of the instrument of ratification and accession18 (Õ Art. VIII paras 19 et seq. and Õ Art. IX para. 12). Hence, the Contracting State wishing to denounce the Convention must transmit a respective declaration to the Secretary-General signed by its head of State or government or its minister of foreign affairs.19 The Secretary-General of the UN informs all States contemplated in Article XIII 9 (Article XV lit. e) of the denunciation and specifies the effective date of the denunciation.20

2. Taking Effect Contracting States cannot denounce the Convention with immediate effect. Instead, 10 pursuant Article XIII(2) any denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General of the UN. Under international treaty law, deadlines of twelve months for denunciations are common, see e.g. Article 56 of the Vienna Convention on the Law of Treaties of 1969.

3. Other Reasons for Terminating or Suspending the Convention The Convention itself does not provide for any other option to terminate it. Under 11 international law principles there are, however, a few other options for terminating or suspending an international treaty that also apply to the Convention. If all Contracting States were to agree, the Convention could be terminated (Article 54 of the Vienna Convention on the Law of Treaties of 1969), i.e. the termination frees all parties from the obligation to continue the international treaty,21 or suspended, i.e. the operation of the international treaty is temporarily suspended and not the treaty itself (Article 58 of the Vienna Convention on the Law of Treaties of 1969), at any time.22 Such termination measure does not demand any special formal requirements.23 17 Generally, a denunciation of an international treaty is only possible if the international treaty provides for such possibility, cf. Article 56 of the Vienna Convention on the Law of Treaties of 1969. 18 See United Nations, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, para. 160, p. 46. 19 See United Nations, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties para. 160, p. 46 and Annex XVI, p. 133. 20 Cf. United Nations, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties para. 160, p. 46. 21 Chapaux, in: Corten/Klein (eds), Vienna Conventions, Article 54 Convention of 1969 para. 16, who also points out the differences between termination of and withdrawal from an international treaty: while the termination frees all parties from the obligation to continue the execution of an international treaty, the withdrawal only liberates the withdrawing State. 22 Cf. Lanfranchi, in: Corten/Klein (eds), Vienna Conventions, Article 58 Convention of 1969 para. 37. 23 Cf. Stein/von Buttlar/Kotzur, Völkerrecht, para. 97.

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Article XIII 12–16

New York Convention

In addition, the Convention could be terminated or suspended as a consequence of a material breach by one Contracting Party (cf. Article 60(2) of the Vienna Convention of the Law of Treaties of 1969 which represents customary international law24). A material breach is a repudiation of a treaty not sanctioned by the Convention or a violation of a provision essential to the accomplishment of the object or purpose of the Convention (cf. the definition in Article 69(3) of the Vienna Convention on the Law of Treaties of 1969). A material breach of the Convention by one Contracting State would entitle all other Contracting States to suspend, partly or entirely, the operation of the Convention by unanimous agreement or to terminate it as between themselves and the defaulting Contracting State or between all the Contracting Parties. If a Contracting State is specifically affected by the material breach, it may suspend the operation of the Convention, partly or entirely, in relation to the defaulting Contracting Party. Up to the date of this publication, the operation of the Convention has never been suspended in relation to any one Contracting State. 13 The Convention does not terminate due to the mere fact that the number of Contracting States will fall below three (cf. Article 55 of the Vienna Convention on the Law of Treaties of 1969). The number three is the result of the fact that three Contracting States were necessary for the coming into force of the Convention (see Article XII(1)). 12

4. Practical Relevance To this day no Contracting State has declared that it is denouncing the Convention. It is not to be expected that Article XIII will have any practical relevance in the future. As commonly known, in international business relationships the parties strive to include arbitration clauses. The Convention facilitates the recognition and the enforcement of arbitral awards tremendously (Õ Prel. Rem. para. 20), which is supported by the fact that the Convention only provides for a limited number of reasons entitling a Contracting State to refuse recognition and enforcement of foreign arbitral awards (Õ Art. V paras 21 et seq.). Against this background, denouncing the Convention may be taken as an indication by the international community that the denouncing State is no longer willing to grant a straightforward option for having arbitral awards enforced and recognized (thereby restricting cross-border business).25 15 In addition, there is no practical need to denounce the Convention. The Convention grants the option to all Contracting States to not recognize and enforce arbitral awards that violate the essential principles of their law, in particular by relying on public policy (see Article V(2)(b)). Some Contracting States seem to take this as a means to refuse recognition and enforcement for arbitral awards with undesired content (Õ Art. V para. 491 and Õ Art. V para. 510). 16 Moreover, even if a Contracting State does not comply with the requirements of the Convention it need not fear any sanctions under the Convention26 as the Convention does not provide any mechanism for sanctions.27 14

24 See Heintschel von Heinegg, in: Ipsen (ed.), Völkerrecht, § 18 para. 83; Simma/Tams, in: Corten/Klein (eds), Vienna Conventions, Article 54 Convention of 1969 paras 16 et seq. 25 See also Port/Fuhr/Simonoff, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 534 et seq. 26 Cf. (correctly) Port/Fuhr/Simonoff, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 534 et seq. 27 A separate question is whether a State may be liable for damages under its investment law due to breach of its duties under international treaties, if the State falsely refuses to recognize and enforce an arbitral award under the Convention, see Maurer, SchiedsVZ 2011, 75 et seq.

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17–19 Article

Denunciation

XIII

V. Cessation of Extension (Article XIII(2)) Article XIII(2) is the counterpart of Article X in that it allows a Contracting State to 17 declare that the Convention shall cease to extend to any and all territories for the international relations of which it is responsible by notifying the Secretary-General of the UN. The declaration has the same effect for such territories as the denunciation by a Contracting State. Such declaration also takes effect one year after receipt of the respective notification by the UN Secretary-General (Õ para. 10). To this day only two Contracting States, namely Portugal (concerning Macao) and 18 the United Kingdom (concerning Hong Kong) have informed the Secretary-General of the UN that the Convention shall cease to extend to one of their territories, i.e. Macao and Hong Kong, respectively (Õ Art. X para. 24). However, both Contracting States did not rely on Article XIII(2) when informing the UN Secretary-General.28 The notifications were not made in order to declare that the Convention shall cease to extend to Hong Kong and Macao but rather to facilitate China’s (which took over the control of both States) respective notifications for its new Special Administrative Regions.

VI. Temporal Effect of Denunciation (Article XIII(3)) Pursuant to Article XIII(3), the Convention shall apply to any arbitral awards in 19 respect of which any recognition or enforcement proceedings have been initiated before the denunciation takes effect, i.e. within one year after receipt of the denunciation by the Secretary-General (Õ para. 10). In stipulating such limitation, Article XIII(3) provides legal certainty to the parties who wish to enforce arbitral awards in the Contracting State that declared its denunciation. With regards to the temporal effect it is not necessary to distinguish between the Contracting State in which the arbitral award was issued and Contracting States in which recognition and enforcement of foreign awards are requested. 28 Õ Annex II, Portugal as well as United Kingdom of Great Britain and Northern Ireland, column “Declaration as to Territories, Article X(1);” also https://treaties.un.org/pages/historicalinfo.aspx (last visited Apr. 20, 2019) – Portugal, Note 1; United Kingdom of Great Britain and Northern Ireland, Note 2, in connection with China, Note 3.

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Article XIV [Avail Against Other Contracting States] A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention. Specific Bibliography: see Article VIII. Table of Contents I. II. III. IV.

Overview ................................................................................................................... Spirit and Purpose .................................................................................................. Drafting History ...................................................................................................... A Contracting State Shall Not Be Entitled to Avail Itself of the Present Convention Against Other Contracting States.................................................

1 2 3 6

I. Overview Article XIV provides for a general reciprocity clause for the Contracting States. 1 While the reciprocity clause in Article I(3) only refers to Article I, Article XIV shall cover all provisions of the Convention. It is thus meant to provide a broader cover. The (late) inclusion of this general reciprocity clause provoked a lively discussion within the Committee on the Enforcement of International Arbitral Awards.

II. Spirit and Purpose Reciprocity clauses are maintained in most international treaties as a starting point 2 for emanating rights and obligations.1 Such clauses ensure that the States are treated equally under the respective international treaty. Reciprocity clauses are generally complied with attentively in order to be in a position to also request compliance if necessary. This also holds true for the Convention.2

III. Drafting History The Geneva Convention (Õ Annex V 2) in Article 1 expressly provided for the 3 principle of reciprocity, granting its benefits only to such awards that “had been made in a territory of one of the High Contracting Parties.” The ECOSOC draft originally foresaw a reciprocity clause only as paragraph 2 to the 4 federal clause of Article XI, which was then Article X (also Õ Art. XI para. 4).3 1 The Geneva Convention (Õ Annex V 2) in Article 1 expressly provided for the principle of reciprocity, granting its benefits only to such awards that “had been made in a territory of one of the High Contracting Parties;” see also Article 1 of the General Agreement on Tariffs and Trade (GATT) of 1947. 2 See e.g. US: Acosta III v. Master Maint. & Constr., Inc., 452 F.3d 373, 376 (5th Cir. 2006); Beiser v. Weyler, 284 F.3d 665, 672 (5th Cir. 2002); Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F. Supp. 948 (S.D. Ohio 1981) = VII Y.B. Com. Arb. 382, 385 (1982) (printed in excerpts). 3 See E/2704, Annex, p. 5 (Õ Annex IV 1).

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Article XIV 5–6

New York Convention

Consequently, questions quickly arose as to the issue of whether the clause should exclusively refer to the federal clause of Article XI (Article X prior to renumbering) or to the Convention in its entirety: even in 1955, in the course of a meeting of the Committee on the Enforcement of International Arbitral Awards, several countries had already expressed their desire for a general reciprocity clause, leading the Conference Chairman to make the observation that “there was general agreement on the question of reciprocity.”4 However, probably as a means to weaken the impact of a federal clause (also Õ Art. XI para. 7),5 the Committee eventually proposed the adoption of a reciprocity clause only with regard to the federal clause in Article XI (Article X prior to renumbering).6 Notwithstanding principal objections that had been raised by several countries against the federal clause and its reciprocity provisions,7 the Norwegian government soon suggested detaching the reciprocity clause from Article XI (formerly Article X, also Õ Art. XI para. 4).8 Rather, a reciprocity clause should be included as a separate provision, referring to the Convention as a whole.9 5 While the representatives of Belgium and the United Kingdom explicitly supported Norway’s proposal,10 other countries (in particular Japan and Ceylon) raised concerns about a general reciprocity clause11. Due to these conflicting positions and following a suggestion of the United Kingdom,12 the New York Conference decided to postpone the final decision on the subject matter of reciprocity, thereby being in the position to take full account of the countries’ positions later on.13 Nevertheless, the Conference resolved to apply the reciprocity clause only within the limits of the federal clause for the time being and reserved subsequent decisions.14 The subject was finally debated in the twenty-fourth meeting where Norway recalled its proposal to include reciprocity as a separate provision which would affect the Convention in its entirety.15 Although the Swedish representative raised doubts as to the necessity of a general reciprocity clause16 and several countries apparently abided with their previously expressed criticism, the representatives eventually adopted the amendment and thus the new article with 13 to five votes, counting 16 abstentions, on the last day of the New York Conference.17

IV. A Contracting State Shall Not Be Entitled to Avail Itself of the Present Convention Against Other Contracting States 6

Pursuant to Article XIV, a Contracting State is only entitled to require another Contracting State to apply the Convention to the extent it itself is bound by it. A Contracting State which made reservations under Article I(3)(1) and I(3)(2), may thus 4

See E/AC.42/SR.2, pp. 9 and 10 (Õ Annex IV 1). The federal clause and its implications were already intensively debated in the course of the meetings of the Committee on the Enforcement of International Arbitral Awards, see E/AC.42/SR.8, pp. 5 et seq. (Õ Annex IV 1). 6 See E/2704: E/AC.42/4/Rev.1, pp. 15 et seq. (Õ Annex IV 1). 7 See Report by the Secretary-General, E/2822, p. 30 (Õ Annex IV 1). 8 See E/2822/Add.5, p. 4 (Õ Annex IV 1) and E/CONF.26/L.28 (Õ Annex IV 1). 9 See Norway’s comments, E/2822/Add.5, p. 4 (Õ Annex IV 1). 10 See E/CONF.26/SR.20, pp. 6 and 9 (Õ Annex IV 1). 11 See E/CONF.26/SR.20, pp. 5 and 9 (Õ Annex IV 1). 12 See E/CONF.26/SR.20, p. 8 (Õ Annex IV 1). 13 See E/CONF.26/SR.20, p. 10 (Õ Annex IV 1). 14 See E/CONF.26/SR.20, p. 10 (Õ Annex IV 1). 15 See E/CONF.26/SR.24, pp. 6 et seq. (Õ Annex IV 1). 16 See E/CONF.26/SR.24, p. 7 (Õ Annex IV 1). 17 See E/CONF.26/SR.24, p. 7 (Õ Annex IV 1). 5

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Avail Against Other Contracting States

7–8

Article XIV

not invoke vis-à-vis another Contracting State that such State has ratified the Convention without having made any reservation.18 However, a State that did not make reservations under the Convention may not rely on the reciprocity clause under Article XIV in order to limit its obligations to recognize and enforce foreign arbitral awards under the Convention issued in Contracting States that made reservations.19 This is because the State that did not make any reservation considered itself bound by the Convention without any restrictions, irrespective of the fact that it had the option to make the same reservations. In waiving this right, the State also deprives itself of the right to rely on the reciprocity clause. It appears that Article XIV has not yet been the basis for a refusal of the recognition 7 or the enforcement of an arbitral award until now.20 The relationship between the general reciprocity clause in Article XIV and the 8 reciprocity clause in Article I(3) is controversial (Õ Art. I paras 189 et seq.). One might expect that Article XIV – due to its general wording having a broader scope – might render the reciprocity provision in Article I(3) redundant. However, Article I(3) still has an individual scope of application. While Article I(3) may be invoked by private parties in enforcement proceedings, Article XIV may not, since it only applies to obligations between Contracting States.21 This is not only shown by the wording of Article XIV, which explicitly refers to the Contracting States, but also by its position within the Convention. The general reciprocity clause is placed at the end of the Convention in between the provisions dealing with the Contracting States’ duties under international law.22 Moreover, Article XIV has a broader scope than Article I(3).23 The reciprocity clause of Article XIV would entitle a Contracting State to refuse recognition and enforcement of an award made in States which are not members to the Convention, even though the enforcing Contracting State did not make any reservation under Article I(3).24 18

Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 384 remark to Article XIV. Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 545. 20 Cf. Bredow, in: Geimer/Schütze (eds), Internationaler Rechtsverkehr, C I 3 b, Art. 14 (p. 45); Mistelis/ Di Pietro, in: Mistelis (ed.), Concise Arbitration, NYC, Art. XIV para. 1; Nacimiento, in: Kronke/ Nacimiento/Otto/Port (eds), NYC, p. 545; UNCITRAL Secretariat, Guide, Art. XIV para. 3 with references. 21 Õ Art. I para. 190; Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.76; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 548, 549; The American Law Institute, Restatement of the Law Third, The U.S. Law of International Commercial and Investor-State Arbitration, Proposed Final Draft, April 24, 2019, § 2.5 (p. 181); see also Born, International Commercial Arbitration, p. 2976; Schlosser, in: Stein/Jonas (eds), ZPO, Annex to sect. 1061 para. 384 remark to Article XIV who states that this provision only makes sense if interpreted as being international law; cf. Canada: M.A. Industries Inc. v. Maritime Batter Ltd., XVIII Y.B. Com. Arb. 353, 355 (1993) (printed in excerpts); US: McDermott Int’l, Inc. v. Lloyds Underwriters of London, XVIII Y.B. Com. Arb. 472, 482 (1993) (5th Cir. 1991) (printed in excerpts); also van den Berg, XXVIII Y.B. Com. Arb. 562, 699 (2003). 22 Haas/Kahlert, in: Weigand/Baumann (eds), Practitioner’s Handbook, para. 21.76; Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 548. 23 Born, International Commercial Arbitration, p. 2976. 24 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 549. 19

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Article XV [Notifications] The Secretary-General of the United Nations shall notify the States contemplated in article VIII of the following: a) Signatures and ratifications in accordance with article VIII; b) Accessions in accordance with article IX; c) Declarations and notifications under articles I, X and XI; d) The date upon which this Convention enters into force in accordance with article XII; e) Denunciations and notifications in accordance with article XIII. Specific Bibliography: see Article VIII. Table of Contents I. II. III. IV.

Overview ................................................................................................................... Spirit and Purpose .................................................................................................. Drafting History ...................................................................................................... Notifications ............................................................................................................. 1. Notifications by the UN Secretary-General ................................................. 2. Addressees............................................................................................................

1 2 3 6 6 8

I. Overview Article XV enumerates the issues to be notified to the States contemplated in 1 Article VIII by the Secretary-General as the chief administrator of the UN on the application of the Convention.

II. Spirit and Purpose Provisions like Article XV are customary under international law. Articles XV and 2 XVI reflect the usual final clauses stipulating the UN Secretary-General’s obligations relating to notifications, deposits and certifications of the Convention1 and is thus a reflection of all administrative duties necessary for implementing and extending the Convention to further States.

III. Drafting History While the Secretary-General’s duties under the Geneva Convention (Õ Annex V 2) 3 (at the time it was the Secretary-General of the League of Nations) were spread out throughout the Geneva Convention, under the New York Convention the issues to be notified to the States contemplated in Article VIII are consolidated under Article XV.

1

E/2704, p. 17 para. 66 (Õ Annex IV 1).

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Article XV 4–6

New York Convention

Compared to the ECOSOC draft, Article XV was kept nearly unaltered.2 Only a few smaller changes were made: (i) the Article was renumbered from Article XIV to XV, (ii) the references in lit. a to lit. d were updated and (iii) the reference in lit. c to Article I was included. The aforementioned modifications were necessary in order to reflect the changes agreed upon by the representatives during the New York Conference for finalizing the Convention from May 20 to June 10, 1958. This particularly applies to the newly added reference to Article I that was explicitly proposed by the representative of the United Kingdom.3 5 Only the USSR objected to Article XV.4 Its objection was, however, a mere formality as it was a consequence of its earlier objection to the wording of Article VIII. Article XV was adopted by 30 votes without any dissenting vote.5 4

IV. Notifications 1. Notifications by the UN Secretary-General 6

Under the Convention, the Contracting States are obliged to inform the UN Secretary-General of their actions taken in relation to the Convention,6 i.e. any accession (see Article IX(2)), any potential declarations under the Convention (see Articles I(3), X and XI) as well as any denunciation (see Article XIII). However, the Contracting States themselves are not obliged to inform the other Contracting States or any further States of relevant actions or changes that might affect the applicability of the Convention. This duty rests with the Secretary-General as chief administrator of the UN (cf. Article 97 of the UN Charter)7. As such he is responsible for all actions to be taken under a UN treaty (cf. Article 102 in connection with Article 97 of the UN Charter). Pursuant to Article XV, the UN Secretary-General has the duty to inform all States contemplated in Article VIII about the following: a) the signatures and ratifications under Article VIII and the accessions under Article IX (Article XV lit. a and b), b) the declarations under Article I, i.e. reciprocity and the limitation to commercial matters (Article XV lit. c, alternative 1), c) the declarations under Article X(1) or the respective notification under Article X(2), i.e. that the Convention shall extend to any of the territories for the international relations of which the respective State is responsible (see Article XV lit. c, alternative 2), d) the statement of the law and practice of a federal State party under Article XI(3) showing the extent to which certain provisions of the Convention apply to the federal State and its constituent units if requested by any Contracting State (see Article XV lit. c, alternative 3); e) the date upon which the Convention enters into force under Article XII, i.e. when the Convention entered into force in its entirety (Article XII(1)) and when the

2

E/2704, p. 17 para. 66 (Õ Annex IV 1). E/CONF.26/SR.21, p. 9 (Õ Annex IV 1). 4 E/2822, p. 29 (Õ Annex IV 1) and E/2704, p. 17 para. 66 (Õ Annex IV 1). The USSR objected to the reference to Article VII in Article XVI(2) for the same reasons, Õ Art. VIII para. 4. 5 E/CONF.26/SR.21, p. 9 (Õ Annex IV 1). 6 Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, pp. 552, 553. 7 See also Article 77(1) lit. f of the Vienna Convention on the Law of Treaties of 1969; United Nations (ed.), United Nations Treaty Collection, para. 148. 3

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Notifications

7–8

Article XV

Convention enters into force for each Contracting State ratifying or acceding to the Convention (see Article XV lit. d); and f) any denunciations under Article XIII(1) (see Article XV lit. e). The UN Secretary-General publishes a notification in the Journal of the United 7 Nations8 and also sends a depositary notification to all other States contemplated in Article VIII.9 The United Nations offer the option to subscribe for information on notifications.10

2. Addressees The Secretary-General as chief administrator of the UN (cf. Article 97 of the UN 8 Charter) must inform all States contemplated in Article VIII11 on the issues conclusively enumerated in Article XV. The UN Secretary-General’s duties under Article XV reflect general duties of a depositor of an international treaty (cf. Article 77(1) of the Vienna Convention on the Law of Treaties of 1969). 8 The journal, which is updated daily, is available under https://treaties.un.org/pages/Content.aspx? path=DB/MTDSGStatus/pageIntro_en.xml (last visited Apr. 20, 2019). 9 United Nations (ed.), United Nations Treaty Collection, paras 140 to 142 contain examples of depositary notifications in connection with reservations or declarations; cf. Article 77(1) of the Vienna Convention on the Law of Treaties of 1969. 10 See automated subscription service of the UN under its Treaty Collection section, https://treaties.un. org/pages/Login.aspx?lang=_en (last visited Apr. 20, 2019). 11 Apparently dissenting Nacimiento, in: Kronke/Nacimiento/Otto/Port (eds), NYC, p. 553 when referring to the Contracting States; see also the rationale for the introduction of the ratification of the Convention in Germany, Denkschrift der Bundesregierung, BT-Drucks. III/2160, pp. 1, 30.

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Article XVI [Official Languages; Transmission of Copies] 1. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in article VIII. Specific Bibliography: see Article VIII. Table of Contents I. II. III. IV. V. VI.

Overview ................................................................................................................... Spirit and Purpose .................................................................................................. Drafting History ...................................................................................................... Authentic Versions of the Convention .............................................................. Deposition in the Archives of the United Nations ......................................... Transmission of Certified Copies........................................................................

1 3 4 5 8 9

I. Overview Article XVI(1) stipulates Chinese, English, French, Russian and Spanish as authen- 1 tic languages. Those languages are particularly important for the interpretation of the Convention. However, difficulties arise in case the authentic languages themselves conflict. Paragraph 2 addresses the UN Secretary-General’s obligation to inform all States 2 contemplated in Article VIII on the Convention’s official text by submitting certified copies of it to each of them.

II. Spirit and Purpose 161 Contracting States have joined the Convention as of the date of this publication. 3 Many of these States will have translated the Convention into their official languages, in particular for facilitating the interpretation and application of the Convention in their national courts. Even though many translations of the Convention do exist, in case of any inconsistencies only the authentic languages are of legal relevance.

III. Drafting History While the Geneva Convention (Õ Annex V 2) does not provide for any authentic 4 language, Article XVI stipulates which languages shall be authentic under the Convention. Except for the numbering (Õ Art. VIII para. 4) and the updating of the reference in paragraph 2, which was a consequence of renumbering Articles VIII onwards, Article XVI was kept unchanged as compared to the ECOSOC draft.1 Solely the USSR 1

E/2704, Annex, p. 6 (Õ Annex IV 1).

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Article XVI 5–7

New York Convention

objected to Article XVI(2).2 This objection was, however, a mere formality. Since the USSR objected to the wording of Article VIII,3 it consequently also objected to the reference in paragraph 2. In the end, Article XVI was adopted by 33 votes without any dissenting vote.4

IV. Authentic Versions of the Convention Paragraph 1 stipulates that Chinese, English, French, Russian and Spanish are the authentic languages for the Convention. These five languages were the official languages of the UN at the time of the drafting and adoption of the Convention.5 6 The Convention does not include language on how to solve conflicts as regards diverging language versions, neither with respect to a conflict between a non-authentic language and an authentic language, nor with respect to two conflicting authentic languages.6 Under international customary law, i.e. the Vienna Convention on the Law of Treaties of 1969, authentic languages prevail over non-authentic languages.7 7 All five authentic languages are equally authoritative (cf. Article 33(1) of the Vienna Convention on the Law of Treaties of 1969). In addition, “the terms of the treaty are presumed to have the same meaning in each authentic text” (Article 33(3) of the Vienna Convention on the Law of Treaties of 1969). If two or more authentic languages conflict, the court competent for deciding on the respective recognition and enforcement issue shall interpret the text of the Convention “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (Article 31(1) of the Vienna Convention of the Law of Treaties of 1969). Moreover, the court must take into consideration the “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion” (Article 32 of the Vienna Convention on the 5

2

E/2882, Annex I, p. 31 (Õ Annex IV 1), see also E 2704, p. 17 para. 66 (Õ Annex IV 1). Formerly Article VII, see ECOSOC draft E/2704, Annex, p. 3 (Õ Annex IV 1). 4 E/CONF.26/SR.21, p. 9 (Õ Annex IV 1). 5 Today, the UN has six official languages, i.e. Arabic, Chinese, English, French, Russian and Spanish. Arabic was introduced as the sixth official language on Dec. 8, 1973, see https://www.un.org/en/sections/ about-un/official-languages/index.html and http://www.un.org/en/ga/search/view_doc.asp?symbol=a/res/ 3190(xxviii) (last visited Apr. 20, 2019). 6 The most prominent example for both is the “in writing” requirement under Article II(2) (Õ Art. II paras 73 et seq.). While the English version of the Convention uses the word “include” (see the English version of Article II(2) in Õ Annex I), thereby apparently providing for a non-exhaustive list for agreements to be in writing, the French version appears to provide for an exhaustive list (see the French version of Article II(2) in Õ Annex I). When interpreting an arbitration agreement in order to establish whether or not the requirement “in writing” is fulfilled by using either only the English version or only the French version, courts might well come to different conclusions as to the existence of an arbitration agreement “in writing.” 7 The Vienna Convention on the Law of Treaties of 1969 addresses the interpretation of international treaties in its section 3. The Vienna Convention on the Law of Treaties of 1969, however, does not apply directly to the Convention because it lacks any retroactive effect (Article 4 of the Vienna Convention on the Law of Treaties of 1969). Moreover, not all Contracting States to the Convention are Member States to the Vienna Convention on the Law of Treaties of 1969. But section 3, entitled “Interpretation of Treaties,” in particular Articles 31 to 33 of the Vienna Convention on the Law of Treaties of 1969, constitute customary law of interpretation of international treaties (cf. i.a. ICJ: Oil Platforms (Islamic Republic of Iran v. United States of America), ICJ Reports 1996, pp. 803, 812 para. 23; see Shaw, International Law, p. 711; Stein/von Buttlar/Kotzur, Völkerrecht, para. 34); for an overview on the question of customary law, see Sorel/Boréveno, in: Corten/Klein (eds), Vienna Conventions, Article 31 Convention of 1969 paras 10 et seq.; Le Bouthillier, in: Corten/Klein (eds), Vienna Conventions, Article 32 Convention of 1969 paras 4 et seq.; Papaux/Samson, in: Corten/Klein (eds), Vienna Conventions, Article 33 Convention of 1969 paras 29 et seq. 3

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Official Languages; Transmission of Copies

8–9

Article XVI

Law of Treaties of 1969). If the court still cannot resolve the interpretation issue, it shall adopt “the meaning which best reconciles the texts, having regard to the object and purpose” of the Convention (cf. Article 33(4) of the Vienna Convention on the Law of Treaties of 1969). Articles 31 to 33 of the Vienna Convention on the Law of Treaties of 1969 constitute customary law of interpretation of international treaties.8

V. Deposition in the Archives of the United Nations The Convention shall be deposited in the archives of the UN. The Secretary-General 8 as chief administrator of the UN (see Article 97 of the UN Charter) is responsible for the deposition of the Convention. In this respect he is i.a. obliged to keep custody of the original texts of the Convention and to prepare certified copies thereof (see Article 77(1) of the Vienna Convention on the Law of Treaties of 1969).

VI. Transmission of Certified Copies A certified true copy for depositary purposes is an accurate duplication of the 9 original treaty, prepared in all authentic languages and certified as such by the depositary of the treaty.9 Pursuant to paragraph 2, the Secretary-General as chief administrator (see Article 97 of the UN Charter) shall transmit such certified copies of the Convention to all States contemplated in Article VIII. Scans of the certified true copies can be found on the website of the United Nations Treaty Collection.10 8 Cf. i.a. ICJ: Oil Platforms (Islamic Republic of Iran v. United States of America), ICJ Reports 1996, pp. 803, 812 para. 23; see Le Bouthillier, in: Corten/Klein (eds), Vienna Conventions, Article 32 Convention of 1969 para. 7 at n. 23 with further references. 9 See United Nations (ed.), Treaty Handbook, Glossary, keyword: certified true copy, p. 63; see also Article 77(1)(b) of the Vienna Convention on the Law of Treaties of 1969. 10 See https://treaties.un.org/Pages/CTCs.aspx?clang=_en (last visited Apr. 20, 2019).

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Annexes I. Text of the New York Convention in Authentic Languages Convention on the Recognition and Enforcement of Foreign Arbitral Awards* Article I 1. 1This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. 2It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought. 2. The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted. 3. 1When signing, ratifying or acceding to this Convention, or notifying extension under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. 2It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration. Article II 1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. 2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 3. The 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, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Article III 1Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. 2There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards. Article IV 1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply: a) The duly authenticated original award or a duly certified copy thereof; b) The original agreement referred to in article II or a duly certified copy thereof. * Done at New York on June 10, 1958 and published in 330 U.N.T.S. 38 (1959). Numbering of clauses added. For a list of Contracting States, Õ Annex II.

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Annex I

New York Convention

2. 1If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. 2The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. Article V 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or b) The recognition or enforcement of the award would be contrary to the public policy of that country. Article VI If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. Article VII 1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. 2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Convention. Article VIII 1. This Convention shall be open until 31 December 1958 for signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations.

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Text of the New York Convention in Authentic Languages

Annex I

2. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary-General of the United Nations. Article IX 1. This Convention shall be open for accession to all States referred to in article VIII. 2. Accession shall be effected by the deposit of an instrument of accession with the SecretaryGeneral of the United Nations. Article X 1. 1Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. 2Such a declaration shall take effect when the Convention enters into force for the State concerned. 2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later. 3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories. Article XI In the case of a federal or non-unitary State, the following provisions shall apply: a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal authority, the obligations of the federal Government shall to this extent be the same as those of Contracting States which are not federal States; b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent states or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent states or provinces at the earliest possible moment; c) A federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of this Convention, showing the extent to which effect has been given to that provision by legislative or other action. Article XII 1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession. 2. For each State ratifying or acceeding** to this Convention after the deposit of the third instrument of ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession. Article XIII 1. 1Any Contracting State may denounce this Convention by a written notification to the Secretary-General of the United Nations. 2Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General. 2. Any State which has made a declaration or notification under article X may, at any time thereafter, by notification to the Secretary-General of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of the notification by the Secretary-General.

**

Should read “acceding.”

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Annex I

New York Convention

3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition or enforcement proceedings have been instituted before the denunciation takes effect. Article XIV A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention. Article XV The Secretary-General of the United Nations shall notify the States contemplated in article VIII of the following: a) Signatures and ratifications in accordance with article VIII; b) Accessions in accordance with article IX; c) Declarations and notifications under articles I, X and XI; d) The date upon which this Convention enters into force in accordance with article XII; e) Denunciations and notifications in accordance with article XIII. Article XVI 1. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in article VIII.

Convention pour la reconnaissance et l’exécution des sentences arbitrales étrangères Article premier 1. 1La présente Convention s’applique à la reconnaissance et à l’exécution des sentences arbitrales rendues sur le territoire d’un État autre que celui où la reconnaissance et l’exécution des sentences sont demandées, et issues de différends entre personnes physiques ou morales. 2Elle s’applique également aux sentences arbitrales qui ne sont pas considérées comme sentences nationales dans l’État où leur reconnaissance et leur exécution sont demandées. 2. On entend par “sentences arbitrales” non seulement les sentences rendues par des arbitres nommés pour des cas déterminés, mais également celles qui sont rendues par des organes d’arbitrage permanents auxquels les parties se sont soumises. 3. 1Au moment de signer ou de ratifier la présente Convention, d’y adhérer ou de faire la notification d’extension prévue à l’article X, tout État pourra, sur la base de la réciprocité, déclarer qu’il appliquera la Convention à la reconnaissance et à l’exécution des seules sentences rendues sur le territoire d’un autre État contractant. 2Il pourra également déclarer qu’il appliquera la Convention uniquement aux différends issus de rapports de droit, contractuels ou non contractuels, qui sont considérés comme commerciaux par sa loi nationale. Article II 1. Chacun des États contractants reconnaît la convention écrite par laquelle les parties s’obligent à soumettre à un arbitrage tous les différends ou certains des différends qui se sont élevés ou pourraient s’élever entre elles au sujet d’un rapport de droit déterminé, contractuel ou non contractuel, portant sur une question susceptible d’être réglée par voie d’arbitrage. 2. On entend par “convention écrite” une clause compromissoire insérée dans un contrat, ou un compromis, signés par les parties ou contenus dans un échange de lettres ou de télégrammes. 3. Le tribunal d’un État contractant, saisi d’un litige sur une question au sujet de laquelle les parties ont conclu une convention au sens du présent article, renverra les parties à l’arbitrage, à la demande de l’une d’elles, à moins qu’il ne constate que ladite convention est caduque, inopérante ou non susceptible d’être appliquée.

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Article III 1Chacun des États contractants reconnaîtra l’autorité d’une sentence arbitrale et accordera l’exécution de cette sentence conformément aux règles de procédure suivies dans le territoire où la sentence est invoquée, aux conditions établies dans les articles suivants. 2Il ne sera pas imposé, pour la reconnaissance ou l’exécution des sentences arbitrales auxquelles s’applique la présente Convention, de conditions sensiblement plus rigoureuses, ni de frais de justice sensiblement plus élevés, que ceux qui sont imposés pour la reconnaissance ou l’exécution des sentences arbitrales nationales.

Article IV 1. Pour obtenir la reconnaissance et l’exécution visées à l’article précédent, la partie qui demande la reconnaissance et l’exécution doit fournir, en même temps que la demande: a) L’original dûment authentifié de la sentence ou une copie de cet original réunissant les conditions requises pour son authenticité; b) L’original de la convention visée à l’article II, ou une copie réunissant les conditions requises pour son authenticité. 2. 1Si ladite sentence ou ladite convention n’est pas rédigée dans une langue officielle du pays où la sentence est invoquée, la partie qui demande la reconnaissance et l’exécution de la sentence aura à produire une traduction de ces pièces dans cette langue. 2La traduction devra être certifiée par un traducteur officiel ou un traducteur juré ou par un agent diplomatique ou consulaire. Article V 1. La reconnaissance et l’exécution de la sentence ne seront refusées, sur requête de la partie contre laquelle elle est invoquée, que si cette partie fournit à l’autorité compétente du pays où la reconnaissance et l’exécution sont demandées la preuve: a) Que les parties à la convention visée à l’article II étaient, en vertu de la loi à elles applicable, frappées d’une incapacité, ou que ladite convention n’est pas valable en vertu de la loi à laquelle les parties l’ont subordonnée ou, à défaut d’une indication à cet égard, en vertu de la loi du pays où la sentence a été rendue; ou b) Que la partie contre laquelle la sentence est invoquée n’a pas été dûment informée de la désignation de l’arbitre ou de la procédure d’arbitrage, ou qu’il lui a été impossible, pour une autre raison, de faire valoir ses moyens; ou c) Que la sentence porte sur un différend non visé dans le compromis ou n’entrant pas dans les prévisions de la clause compromissoire, ou qu’elle contient des décisions qui dépassent les termes du compromis ou de la clause compromissoire; toutefois, si les dispositions de la sentence qui ont trait à des questions soumises à l’arbitrage peuvent être dissociées de celles qui ont trait à des questions non soumises à l’arbitrage, les premières pourront être reconnues et exécutées; ou d) Que la constitution du tribunal arbitral ou la procédure d’arbitrage n’a pas été conforme à la convention des parties, ou, à défaut de convention, qu’elle n’a pas été conforme à la loi du pays où l’arbitrage a eu lieu; ou e) Que la sentence n’est pas encore devenue obligatoire pour les parties ou a été annulée ou suspendue par une autorité compétente du pays dans lequel, ou d’après la loi duquel, la sentence a été rendue. 2. La reconnaissance et l’exécution d’une sentence arbitrale pourront aussi être refusées si l’autorité compétente du pays où la reconnaissance et l’exécution sont requises constate: a) Que, d’après la loi de ce pays, l’objet du différend n’est pas susceptible d’être réglé par voie d’arbitrage; ou b) Que la reconnaissance ou l’exécution de la sentence serait contraire à l’ordre public de ce pays. Article VI Si l’annulation ou la suspension de la sentence est demandée à l’autorité compétente visée à l’article V, paragraphe 1, e, l’autorité devant qui la sentence est invoquée peut, si elle l’estime approprié, surseoir à statuer sur l’exécution de la sentence; elle peut aussi, à la requête de la partie qui demande l’exécution de la sentence, ordonner à l’autre partie de fournir des sûretés convenables.

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Annex I

New York Convention

Article VII 1. Les dispositions de la présente Convention ne portent pas atteinte à la validité des accords multilatéraux ou bilatéraux conclus par les États contractants en matière de reconnaissance et d’exécution de sentences arbitrales et ne privent aucune partie intéressée du droit qu’elle pourrait avoir de se prévaloir d’une sentence arbitrale de la manière et dans la mesure admises par la législation ou les traités du pays où la sentence est invoquée. 2. Le Protocole de Genève de 1923 relatif aux clauses d’arbitrage et la Convention de Genève de 1927 pour l’exécution des sentences arbitrales étrangères cesseront de produire leurs effets entre les États contractants du jour et dans la mesure où ceux-ci deviendront liés par la présente Convention. Article VIII 1. La présente Convention est ouverte jusqu’au 31 décembre 1958 à la signature de tout État Membre des Nations Unies, ainsi que de tout autre État qui est, ou deviendra par la suite, membre d’une ou plusieurs institutions spécialisées des Nations Unies ou partie au Statut de la Cour internationale de Justice, ou qui aura été invité par l’Assemblée générale des Nations Unies. 2. La présente Convention doit être ratifiée et les instruments de ratification déposés auprès du Secrétaire général de l’Organisation des Nations Unies. Article IX 1. Tous les États visés à l’article VIII peuvent adhérer à la présente Convention. 2. L’adhésion se fera par le dépôt d’un instrument d’adhésion auprès du Secrétaire général de l’Organisation des Nations Unies. Article X 1. 1Tout État pourra, au moment de la signature, de la ratification ou de l’adhésion, déclarer que la présente Convention s’étendra à l’ensemble des territoires qu’il représente sur le plan international, ou à l’un ou plusieurs d’entre eux. 2Cette déclaration produira ses effets au moment de l’entrée en vigueur de la Convention pour ledit État. 2. Par la suite, toute extension de cette nature se fera par notification adressée au Secrétaire général de l’Organisation des Nations Unies et produira ses effets à partir du quatre-vingt-dixième jour qui suivra la date à laquelle le Secrétaire général de l’Organisation des Nations Unies aura reçu la notification, ou à la date d’entrée en vigueur de la Convention pour ledit État si cette dernière date est postérieure. 3. En ce qui concerne les territoires auxquels la présente Convention ne s’applique pas à la date de la signature, de la ratification ou de l’adhésion, chaque État intéressé examinera la possibilité de prendre les mesures voulues pour étendre la Convention à ces territoires, sous réserve le cas échéant, lorsque des motifs constitutionnels l’exigeront, de l’assentiment des gouvernements de ces territoires. Article XI Les dispositions ci-après s’appliqueront aux États fédératifs ou non unitaires: a) En ce qui concerne les articles de la présente Convention qui relèvent de la compétence législative du pouvoir fédéral, les obligations du gouvernement fédéral seront les mêmes que celles des États contractants qui ne sont pas des États fédératifs; b) En ce qui concerne les articles de la présente Convention qui relèvent de la compétence législative de chacun des États ou provinces constituants, qui ne sont pas, en vertu du système constitutionnel de la fédération, tenus de prendre des mesures législatives, le gouvernement fédéral portera le plus tôt possible, et avec son avis favorable, lesdits articles à la connaissance des autorités compétentes des États ou provinces constituants; c) Un État fédératif Partie à la présente Convention communiquera, à la demande de tout autre État contractant qui lui aura été transmise par l’intermédiaire du Secrétaire général de l’Organisation des Nations Unies, un exposé de la législation et des pratiques en vigueur dans la fédération et ses unités constituantes, en ce qui concerne telle ou telle disposition de la Convention, indiquant la mesure dans laquelle effet a été donné, par une action législative ou autre, à ladite disposition.

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Text of the New York Convention in Authentic Languages

Annex I

Article XII 1. La présente Convention entrera en vigueur le quatre-vingt-dixième jour qui suivra la date du dépôt du troisième instrument de ratification ou d’adhésion. 2. Pour chacun des États qui ratifieront la Convention ou y adhéreront après le dépôt du troisième instrument de ratification ou d’adhésion, elle entrera en vigueur le quatre-vingt-dixième jour qui suivra la date du dépôt par cet État de son instrument de ratification ou d’adhésion. Article XIII 1. 1Tout État contractant pourra dénoncer la présente Convention par notification écrite adressée au Secrétaire général de l’Organisation des Nations Unies. 2La dénonciation prendra effet un an après la date où le Secrétaire général de l’Organisation des Nations Unies aura reçu la notification. 2. Tout État qui aura fait une déclaration ou une notification conformément à l’article X pourra notifier ultérieurement au Secrétaire général de l’Organisation des Nations Unies que la Convention cessera de s’appliquer au territoire en question un an après la date à laquelle le Secrétaire général aura reçu cette notification. 3. La présente Convention demeurera applicable aux sentences arbitrales au sujet desquelles une procédure de reconnaissance ou d’exécution aura été entamée avant l’entrée en vigueur de la dénonciation. Article XIV Un État contractant ne peut se réclamer des dispositions de la présente Convention contre d’autres États contractants que dans la mesure où il est lui-même tenu d’appliquer cette convention. Article XV Le Secrétaire général de l’Organisation des Nations Unies notifiera à tous les États visés à l’article VIII: a) Les signatures et ratifications visées à l’article VIII; b) Les adhésions visées à l’article IX; c) Les déclarations et notifications visées aux articles premier, X et XI; d) La date où la présente Convention entrera en vigueur, en application de l’article XII; e) Les dénonciations et notifications visées à l’article XIII. Article XVI 1. La présente Convention, dont les textes anglais, chinois, espagnol, français et russe font également foi, sera déposée dans les archives de l’Organisation des Nations Unies. 2. Le Secrétaire général de l’Organisation des Nations Unies remettra une copie certifiée conforme de la présente Convention aux États visés à l’article VIII.

Convención sobre el Reconocimiento y la Ejecución de las Sentencias Arbitrales Extranjeras Artículo I 1. 1La presente Convención se aplicará al reconocimiento y la ejecución de las sentencias arbitrales dictadas en el territorio de un Estado distinto de aquel en que se pide el reconocimiento y la ejecución de dichas sentencias, y que tengan su origen en diferencias entre personas naturales o jurídicas. 2Se aplicará también a las sentencias arbitrales que no sean consideradas como sentencias nacionales en el Estado en el que se pide su reconocimiento y ejecución. 2. La expresión “sentencia arbitral” no sólo comprenderá las sentencias dictadas por los árbitros nombrados para casos determinados, sino también las sentencias dictadas por los órganos arbitrales permanentes a los que las partes se hayan sometido.

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New York Convention

3. 1En el momento de firmar o de ratificar la presente Convención, de adherirse a ella o de hacer la notificación de su extensión prevista en el artículo X, todo Estado podrá, a base de reciprocidad, declarar que aplicará la presente Convención al reconocimiento y a la ejecución de las sentencias arbitrales dictadas en el territorio de otro Estado Contratante únicamente. 2Podrá también declarar que sólo aplicará la Convención a los litigios surgidos de relaciones jurídicas, sean o no contractuales, consideradas comerciales por su derecho interno. Artículo II 1. Cada uno de los Estados Contratantes reconocerá el acuerdo por escrito conforme al cual las partes se obliguen a someter a arbitraje todas las diferencias o ciertas diferencias que hayan surgido o puedan surgir entre ellas respecto a una determinada relación jurídica, contractual o no contractual, concerniente a un asunto que pueda ser resuelto por arbitraje. 2. La expresión “acuerdo por escrito” denotará una cláusula compromisoria incluída en un contrato o un compromiso, firmados por las partes o contenidos en un canje de cartas o telegramas. 3. El tribunal de uno de los Estados Contratantes al que se someta un litigio respecto del cual las partes hayan concluído un acuerdo en el sentido del presente artículo, remitirá a las partes al arbitraje, a instancia de una de ellas, a menos que compruebe que dicho acuerdo es nulo, ineficaz o inaplicable. Artículo III 1Cada uno de los Estados Contratantes reconocerá la autoridad de la sentencia arbitral y concederá su ejecución de conformidad con las normas de procedimiento vigentes en el territorio donde la sentencia sea invocada, con arreglo a las condiciones que se establecen en los artículos siguientes. 2Para el reconocimiento o la ejecución de las sentencias arbitrales a que se aplica la presente Convención, no se impondrán condiciones apreciablemente más rigurosas, ni honorarios o costas más elevados que los aplicables al reconocimiento o a la ejecución de las sentencias arbitrales nacionales. Artículo IV 1. Para obtener el reconocimiento y la ejecución previstos en el artículo anterior, la parte que pida el reconocimiento y la ejecución deberá presentar, junto con la demanda: a) El original debidamente autenticado de la sentencia, o una copia de ese original que reúna las condiciones requeridas para su autenticidad; b) El original del acuerdo a que se refiere el artículo II, o una copia que reúna las condiciones requeridas para su autenticidad. 2. 1Si esa sentencia o ese acuerdo no estuvieran en un idioma oficial del país en que se invoca la sentencia, la parte que pida el reconocimiento y la ejecución de esta última deberá presentar una traducción a ese idioma de dichos documentos. 2La traducción deberá ser certificada por un traductor oficial o un traductor jurado, o por un agente diplomático o consular. Artículo V 1. Sólo se podrá denegar el reconocimiento y la ejecución de la sentencia, a instancia de la parte contra la cual es invocada, si esta parte prueba ante la autoridad competente del país en que se pide el reconocimiento y la ejecución: a) Que las partes en el acuerdo a que se refiere el artículo II estaban sujetas a alguna incapacidad en virtud de la ley que le es aplicable o que dicho acuerdo no es válido en virtud de la ley a que las partes lo han sometido, o si nada se hubiera indicado a este respecto, en virtud de la ley del país en que se haya dictado la sentencia; o b) Que la parte contra la cual se invoca la sentencia arbitral no ha sido debidamente notificada de la designación del árbitro o del procedimiento de arbitraje o no ha podido, por cualquier otra razón, hacer valer sus medios de defensa; o c) Que la sentencia se refiere a una diferencia no prevista en el compromiso o no comprendida en las disposiciones de la cláusula compromisoria, o contiene decisiones que exceden de los términos del compromiso o de la cláusula compromisoria; no obstante, si las disposiciones de

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la sentencia que se refieren a las cuestiones sometidas al arbitraje pueden separarse de las que no han sido sometidas al arbitraje, se podrá dar reconocimiento y ejecución a las primeras; o d) Que la constitución del tribunal arbitral o el procedimiento arbitral no se han ajustado al acuerdo celebrado entre las partes o, en defecto de tal acuerdo, que la constitución del tribunal arbitral o el procedimiento arbitral no se han ajustado a la ley del país donde se ha efectuado el arbitraje; o e) Que la sentencia no es aún obligatoria para las partes o ha sido anulada o suspendida por una autoridad competente del país en que, o conforme a cuya ley, ha sido dictada esa sentencia. 2. También se podrá denegar el reconocimiento y la ejecución de una sentencia arbitral si la autoridad competente del país en que se pide el reconocimiento y la ejecución, comprueba: a) Que según la ley de ese país el objeto de la diferencia no es susceptible de solución por vía de arbitraje; o b) Que el reconocimiento o la ejecución de la sentencia serían contrarios al orden público de ese país. Artículo VI Si se ha pedido a la autoridad competente prevista en el artículo V, párrafo 1 e), la anulación o la suspensión de la sentencia, la autoridad ante la cual se invoca dicha sentencia podrá, si lo considera procedente, aplazar la decisión sobre la ejecución de la sentencia y, a instancia de la parte que pida la ejecución, podrá también ordenar a la otra parte que dé garantías apropiadas. Artículo VII 1. Las disposiciones de la presente Convención no afectarán la validez de los acuerdos multilaterales o bilaterales relativos al reconocimiento y la ejecución de las sentencias arbitrales concertados por los Estados Contratantes ni privarán a ninguna de las partes interesadas de cualquier derecho que pudiera tener a hacer valer una sentencia arbitral en la forma y medida admitidas por la legislación o los tratados del país donde dicha sentencia se invoque. 2. El Protocolo de Ginebra de 1923 relativo a las cláusulas de arbitraje y la Convención de Ginebra de 1927 sobre la ejecución de las Sentencias Arbitrales Extranjeras dejarán de surtir efectos entre los Estados Contratantes a partir del momento y en la medida en que la presente Convención tenga fuerza obligatoria para ellos. Artículo VIII 1. La presente Convención estará abierta hasta el 31 de diciembre de 1958 a la firma de todo Miembro de las Naciones Unidas, así como de cualquier otro Estado que sea o llegue a ser miembro de cualquier organismo especializado de las Naciones Unidas, o sea o llegue a ser parte en el Estatuto de la Corte Internacional de Justicia, o de todo otro Estado que haya sido invitado por la Asamblea General de las Naciones Unidas. 2. La presente Convención deberá ser ratificada y los instrumentos de ratificación se depositarán en poder del Secretario General de las Naciones Unidas. Artículo IX 1. Podrán adherirse a la presente Convención todos los Estados a que se refiere el artículo VIII. 2. La adhesión se efectuará mediante el depósito de un instrumento de adhesión en poder del Secretario General de las Naciones Unidas. Artículo X 1. 1Todo Estado podrá declarar, en el momento de la firma, de la ratificación o de la adhesión, que la presente Convención se hará extensiva a todos los territorios cuyas relaciones internacionales tenga a su cargo, o a uno o varios de ellos. 2Tal declaración surtirá efecto a partir del momento en que la Convención entre en vigor para dicho Estado. 2. Posteriormente, esa extensión se hará en cualquier momento por notificación dirigida al Secretario General de las Naciones Unidas y surtirá efecto a partir del nonagésimo día siguiente a la fecha en que el Secretario General de las Naciones Unidas haya recibido tal notificación o en la fecha de entrada en vigor de la Convención para tal Estado, si esta última fecha fuere posterior.

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3. Con respecto a los territorios a los que no se haya hecho extensiva la presente Convención en el momento de la firma, de la ratificación o de la adhesión, cada Estado interesado examinará la posibilidad de adoptar las medidas necesarias para hacer extensiva la aplicación de la presente Convención a tales territorios, a reserva del consentimiento de sus gobiernos cuando sea necesario por razones constitucionales. Artículo XI Con respecto a los Estados federales o no unitarios, se aplicarán las disposiciones siguientes: a) En lo concerniente a los artículos de esta Convención cuya aplicación dependa de la competencia legislativa del poder federal, las obligaciones del gobierno federal serán, en esta medida, las mismas que las de los Estados Contratantes que no son Estados federales; b) En lo concerniente a los artículos de esta Convención cuya aplicación dependa de la competencia legislativa de cada uno de los Estados o provincias constituyentes que, en virtud del régimen constitucional de la federación no estén obligados a adoptar medidas legislativas, el gobierno federal, a la mayor brevedad posible y con su recomendación favorable, pondrá dichos artículos en conocimiento de las autoridades competentes de los Estados o provincias constituyentes; c) Todo Estado federal que sea Parte en la presente Convención proporcionará, a solicitud de cualquier otro Estado Contratante que le haya sido transmitida por conducto del Secretario General de las Naciones Unidas, una exposición de la legislación y de las prácticas vigentes en la federación y en sus entidades constituyentes con respecto a determinada disposición de la Convención, indicando la medida en que por acción legislativa o de otra índole, se haya dado efecto a tal disposición. Artículo XII 1. La presente Convención entrará en vigor el nonagésimo día siguiente a la fecha del depósito del tercer instrumento de ratificación o de adhesión. 2. Respecto a cada Estado que ratifique la presente Convención o se adhiera a ella después del depósito del tercer instrumento de ratificación o de adhesión, la presente Convención entrará en vigor el nonagésimo día siguiente a la fecha del depósito por tal Estado de su instrumento de ratificación o de adhesión. Artículo XIII 1. 1Todo Estado Contratante podrá denunciar la presente Convención mediante notificación escrita dirigida al Secretario General de las Naciones Unidas. 2La denuncia surtirá efecto un año después de la fecha en que el Secretario General haya recibido la notificación. 2. Todo Estado que haya hecho una declaración o enviado una notificación conforme a lo previsto en el artículo X, podrá declarar en cualquier momento posterior, mediante notificación dirigida al Secretario General de las Naciones Unidas, que la Convención dejará de aplicarse al territorio de que se trate un año después de la fecha en que el Secretario General haya recibido tal notificación. 3. La presente Convención seguirá siendo aplicable a las sentencias arbitrales respecto de las cuales se haya promovido un procedimiento para el reconocimiento o la ejecución antes de que entre en vigor la denuncia. Artículo XIV Ningún Estado Contratante podrá invocar las disposiciones de la presente Convención respecto de otros Estados Contratantes más que en la medida en que él mismo esté obligado a aplicar esta Convención.

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Artículo XV El Secretario General de las Naciones Unidas notificará a todos los Estados a que se refiere el artículo VIII: a) Las firmas y ratificaciones previstas en el artículo VIII; b) Las adhesiones previstas en el artículo IX; c) Las declaraciones y notificaciones relativas a los artículos I, X y XI; d) La fecha de entrada en vigor de la presente Convención, en conformidad con el artículo XII; e) Las denuncias y notificaciones previstas en el artículo XIII. Artículo XVI 1. La presente Convención, cuyos textos chino, español, francés, inglés y ruso serán igualmente auténticos, será depositada en los archivos de las Naciones Unidas. 2. El Secretario General de las Naciones Unidas transmitirá una copia certificada de la presente Convención a los Estados a que se refiere el artículo VIII.

承认及执行外国公断裁决公约 第一条 一. 公断裁决，因自然人或法人间之争议而产生且在声请承认及执行地所在国以外之国家 领土内作成者，其承认及执行适用本公约。本公约对于公断裁决经声请承认及执行地所在 国认为非内国裁决者，亦适用之。 二. “公断裁决”一词不仅指专案选派之公断员所作裁决，亦指当事人提请裁断之常设公断 机关所作裁决。 三. 任何国家得于签署、批准或加入本公约时，或于依本公约第十条通知推广适用时，本 交互原则声明该国适用本公约，以承认及执行在另一缔约国领土内作成之裁决为限。任何 国家亦得声明，该国唯于争议起于法律关系，不论其为契约性质与否，而依提出声明国家 之国内法认为系属商事关系者，始适用本公约。 第二条 一. 当事人以书面协定承允彼此间所发生或可能发生之一切或任何争议，如关涉可以公断 解决事项之确定法律关系，不论为契约性质与否，应提交公断时，各缔约国应承认此项协 定。 二. “书面协定”一词指当事人所签订或在互换函电中所载明之契约公断条款或公断协定。 三. 当事人就诉讼事项订有本条所称之协定者，缔约国法院受理诉讼时应依当事人一造之 请求，命当事人提交公断，但前述协定经法院认定无效、失效或不能实行者不在此限。 第三条 各缔约国应承认公断裁决具有拘束力，并依援引裁决地之程序规则及下列各条所载条件 执行之。承认或执行适用本公约之公断裁决时，不得较承认或执行内国公断裁决附加过苛 之条件或征收过多之费用。 第四条 一. 声请承认及执行之一造，为取得前条所称之承认及执行，应于声请时提具： (甲) 原裁决之正本或其正式副本； (乙) 第二条所称协定之原本或其正式副本。 二. 倘前述裁决或协定所用文字非为援引裁决地所在国之正式文字，声请承认及执行裁决 之一造应备具各该文件之此项文字译本。译本应由公设或宣誓之翻译员或外交或领事人员 认证之。 第五条 一. 裁决唯有于受裁决援用之一造向声请承认及执行地之主管机关提具证据证明有下列情 形之一时，始得依该造之请求，拒予承认及执行：

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第二条所称协定之当事人依对其适用之法律有某种无行为能力情形者，或该项协定 依当事人作为协定准据之法律系属无效，或未指明以何法律为准时，依裁决地所在 国法律系属无效者；或 (乙) 受裁决援用之一造未接获关于指派公断员或公断程序之适当通知，或因他故，致未 能申辩者；或 (丙) 裁决所处理之争议非为交付公断之标的或不在其条款之列，或裁决载有关于交付公 断范围以外事项之决定者，但交付公断事项之决定可与未交付公断之事项划分时， 裁决中关于交付公断事项之决定部分得予承认及执行；或 (丁) 公断机关之组成或公断程序与各造间之协议不符，或无协议而与公断地所在国法律 不符者；或 (戊) 裁决对各造尚无拘束力，或业经裁决地所在国或裁决所依据法律之国家之主管机关 撤销或停止执行者。 二. 倘声请承认及执行地所在国之主管机关认定有下列情形之一，亦得拒不承认及执行公 断裁决： (甲) 依该国法律，争议事项系不能以公断解决者；或 (乙) 承认或执行裁决有违该国公共政策者。

(甲)

第六条 倘裁决业经向第五条第一款(戊)项所称之主管机关声请撤销或停止执行，受理援引裁决 案件之机关得于其认为适当时延缓关于执行裁决之决定，并得依请求执行一造之声请，命 他造提供妥适之担保。 第七条 一. 本公约之规定不影响缔约国间所订关于承认及执行公断裁决之多边或双边协定之效 力，亦不剥夺任何利害关系人可依援引裁决地所在国之法律或条约所认许之方式，在其许 可范围内，援用公断裁决之任何权利。 二. 一九二三年日内瓦公断条款议定书及一九二七年日内瓦执行外国公断裁决公约在缔约 国间，于其受本公约拘束后，在其受拘束之范围内不再生效。 第八条 一. 本公约在一九五八年十二月三十一日以前听由任何联合国会员国及现为或嗣后成为任 何联合国专门机关会员国或国际法院规约当事国之任何其它国家，或经联合国大会邀请之 任何其它国家签署。 二. 本公约应予批准。批准文件应送交联合国秘书长存放。 第九条 一. 本公约听由第八条所称各国加入。 二. 加入应以加入文件送交联合国秘书长存放为之。 第十条 一. 任何国家得于签署、批准或加入时声明将本公约推广适用于由其负责国际关系之一切 或任何领土。此项声明于本公约对关系国家生效时发生效力。 二. 嗣后关于推广适用之声明应向联合国秘书长提出通知为之，自联合国秘书长收到此项 通知之日后第九十日起，或自本公约对关系国家生效之日起发生效力，此两日期以较迟者 为准。 三. 关于在签署、批准或加入时未经将本公约推广适用之领土，各关系国家应考虑可否采 取必要步骤将本公约推广适用于此等领土，但因宪政关系确有必要时，自须征得此等领土 政府之同意。 第十一条 下列规定对联邦制或非单一制国家适用之： (甲) 关于本公约内属于联邦机关立法权限之条款，联邦政府之义务在此范围内与非联邦 制缔约国之义务同；

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关于本公约内属于组成联邦各州或各省之立法权限之条款，如各州或各省依联邦宪 法制度并无采取立法行动之义务，联邦政府应尽速将此等条款提请各州或各省主管 机关注意，并附有利之建议； 参加本公约之联邦国家遇任何其他缔约国经由联合国秘书长转达请求时，应提供叙 述联邦及其组成单位关于本公约特定规定之法律及惯例之情报，说明以立法或其它 行动实施此项规定之程度。

第十二条 一. 本公约应自第三件批准或加入文件存放之日后第九十日起发生效力。 二. 对于第三件批准或加入文件存放后批准或加入本公约之国家，本公约应自各该国存放 批准或加入文件后第九十日起发生效力。 第十三条 一. 任何缔约国得以书面通知联合国秘书长宣告退出本公约。退约应于秘书长收到通知之 日一年后发生效力。 二. 依第十条规定提出声明或通知之国家，嗣后得随时通知联合国秘书长声明本公约自秘 书长收到通知之日一年后停止适用于关系领土。 三. 在退约生效前已进行承认或执行程序之公断裁决，应继续适用本公约。 第十四条 缔约国除在本国负有适用本公约义务之范围外，无权对其他缔约国援用本公约。 第十五条 联合国秘书长应将下列事项通知第八条所称各国： (甲) 依第八条所为之签署及批准； (乙) 依第九条所为之加入； (丙) 依第一条、第十条及第十一条所为之声明及通知； (丁) 依第十二条本公约发生效力之日期； (戊) 依第十三条所为之退约及通知。 第十六条 一. 本公约应存放联合国档库，其中文、英文、法文、俄文及西班牙文各本同一作准。 二. 联合国秘书长应将本公约正式副本分送第八条所称各国。

Конвенция о признании и приведении в исполнение иностранных арбитражных решений Статья I 1. 1Настоящая Конвенция применяется в отношении признания и приведения в исполнение арбитражных решений, вынесенных на территории государства иного, чем то государство, где испрашивается признание и приведение в исполнение таких решений, по спорам, сторонами в которых могут быть как физические, так и юридические лица. 2Она применяется также к арбитражным решениям, которые не считаются внутренними решениями в том государстве, где испрашивается их признание и приведение в исполнение. 2. Термин «арбитражные решения» включает не только арбитражные решения, вынесенные арбитрами, назначенными по каждому отдельному делу, но также и арбитражные решения, вынесенные постоянными арбитражными органами, к которым стороны обратились. 3. 1При подписании, ратификации или присоединении к настоящей Конвенции или при уведомлении, предусмотренном в статье X этой Конвенции, любое государство может на основе взаимности заявить, что оно будет применять настоящую Конвенцию в отношении признания и приведения в исполнение арбитражных решений, вынесенных только на территории другого Договаривающегося Государства. 2Оно может также заявить, что оно

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будет применять настоящую Конвенцию только в отношении споров, возникающих по договорным или иным правоотношениям, которые считаются торговыми по национальному закону государства, делающего такое заявление. Статья II 1. Каждое Договаривающееся Государство признает письменное соглашение, по которому стороны обязуются передавать в арбитраж все или какие-либо споры, возникшие или могущие возникнуть между ними в связи с каким-либо конкретным договорным или иным правоотношением, объект которого может быть предметом арбитражного разбирательства. 2. Термин «письменное соглашение» включает арбитражную оговорку в договоре, или арбитражное соглашение, подписанное сторонами, или содержащееся в обмене письмами или телеграммами. 3. Суд Договаривающегося Государства, если к нему поступает иск по вопросу, по которому стороны заключили соглашение, предусматриваемое настоящей статьей, должен, по просьбе одной из сторон, направить стороны в арбитраж, если не найдет, что упомянутое соглашение недействительно, утратило силу или не может быть исполнено. Статья III 1Каждое Договаривающееся Государство признает арбитражные решения как обязательные и приводит их в исполнение в соответствии с процессуальными нормами той территории, где испрашивается признание и приведение в исполнение этих решений, на условиях, изложенных в нижеследующих статьях. 2К признанию и приведению в исполнение арбитражных решений, к которым применяется настоящая Конвенция, не должны применяться существенно более обременительные условия или более высокие пошлины или сборы, чем те, которые существуют для признания и приведения в исполнение внутренних арбитражных решений.

Статья IV 1. Для получения упомянутого в предшествующей статье признания и приведения в исполнение, сторона, испрашивающая признание и приведение в исполнение, при подаче такой просьбы представляет: а) должным образом заверенное подлинное арбитражное решение, или должным образом заверенную копию такового; b) подлинное соглашение, упомянутое в статье II, или должным образом заверенную копию такового. 2. 1Если арбитражное решение или соглашение изложены не на официальном языке той страны, где испрашивается признание и приведение в исполнение этого решения, сторона, которая просит о признании и приведении в исполнение этого решения, представляет перевод этих документов на такой язык. 2Перевод заверяется официальным или присяжным переводчиком или дипломатическим или консульским учреждением. Статья V 1. В признании и приведении в исполнение арбитражного решения может быть отказано по просьбе той стороны, против которой оно направлено, только если эта сторона представит компетентной власти по месту, где испрашивается признание и приведение в исполнение, доказательства того, что: а) стороны в соглашении, указанном в статье II, были по применимому к ним закону, в какой-либо мере недееспособны или это соглашение недействительно по закону, которому стороны это соглашение подчинили, а при отсутствии такого указания, по закону страны, где решение было вынесено, или b) сторона, против которой вынесено решение, не была должным образом уведомлена о назначении арбитра или об арбитражном разбирательстве или по другим причинам не могла представить свои объяснения, или с) указанное решение вынесено по спору, не предусмотренному или не подпадающему под условия арбитражного соглашения или арбитражной оговорки в договоре, или содержит

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Annex I

постановления по вопросам, выходящим за пределы арбитражного соглашения или арбитражной оговорки в договоре, с тем, однако, что если постановления по вопросам, охватываемым арбитражным соглашением или оговоркой, могут быть отделены от тех, которые не охватываются таким соглашением или оговоркой, то та часть арбитражного решения, которая содержит постановления по вопросам, охватываемым арбитражным соглашением или арбитражной оговоркой в договоре, может быть признана и приведена в исполнение, или d) состав арбитражного органа или арбитражный процесс не соответствовали соглашению сторон или, при отсутствии такового, не соответствовали закону той страны, где имел место арбитраж, или е) решение еще не стало окончательным для сторон или было отменено или приостановлено исполнением компетентной властью страны, где оно было вынесено, или страны, закон которой применяется. 2. В признании и приведении в исполнение арбитражного решения может быть также отказано, если компетентная власть страны, в которой испрашивается признание и приведение в исполнение, найдет, что: а) объект спора не может быть предметом арбитражного разбирательства по законам этой страны, или b) признание и приведение в исполнение этого решения противоречат публичному порядку этой страны. Статья VI Если перед компетентной властью, указанной в подпункте (е) пункта 1 статьи V, было возбуждено ходатайство об отмене или приостановлении исполнением арбитражного решения, то та власть, к которой обратились с просьбой о признании и приведении в исполнение этого решения, может, если найдет целесообразным, отложить разрешение вопроса о приведении в исполнение этого решения и может также, по ходатайству той стороны, которая просит о приведении в исполнение этого решения, обязать другую сторону представить надлежащее обеспечение. Статья VII 1. Постановления настоящей Конвенции не затрагивают действительности многосторонних или двусторонних соглашений в отношении признания и приведения в исполнение арбитражных решений, заключенных Договаривающимися Государствами, и не лишают никакую заинтересованную сторону права воспользоваться любым арбитражным решением в том порядке и в тех пределах, которые допускаются законом или международными договорами страны, где испрашивается признание и приведение в исполнение такого арбитражного решения. 2. Женевский протокол 1923 года об арбитражных оговорках и Женевская конвенция 1927 года о приведении в исполнение иностранных арбитражных решений утрачивают силу между Договаривающимися Государствами после того, как для них становится обязательной настоящая Конвенция, и в тех пределах, в которых она становится для них обязательной. Статья VIII 1. Настоящая Конвенция открыта до 31 декабря 1958 года для подписания от имени любого члена Организации Объединенных Наций, а также от имени любого государства, которое является или впоследствии станет членом какого-либо специализированного учреждения Организации Объединенных Наций или которое является или впоследствии станет участником Статута Международного Суда, или любого другого государства, которое будет приглашено Генеральной Ассамблеей Организации Объединенных Наций. 2. Настоящая Конвенция подлежит ратификации и ратификационные грамоты депонируются у Генерального секретаря Организации Объединенных Наций.

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Annex I

New York Convention

Статья IX 1. Настоящая Конвенция открыта для присоединения всем государствам, упомянутым в статье VIII. 2. Присоединение совершается депонированием грамоты о присоединении у Генерального секретаря Организации Объединенных Наций. Статья X 1. 1Любое государство может при подписании или ратификации настоящей Конвенции или при присоединении к ней заявить, что эта Конвенция распространяется на все или некоторые территории, за международные отношения которых оно несет ответственность. 2Такое заявление вступает в силу одновременно с вступлением в силу настоящей Конвенции в отношении этого государства. 2. В любое время после указанного выше, такое распространение может быть совершено посредством уведомления на имя Генерального секретаря Организации Объединенных Наций и вступает в силу на девяностый день, считая со дня получения Генеральным секретарем Организации Объединенных Наций этого уведомления, или в день вступления в силу настоящей Конвенции в отношении соответствующего государства, в зависимости от того, какой срок истекает позднее. 3. Что касается территорий, на которые настоящая Конвенция не будет распространена при подписании или ратификации ее или при присоединении к ней, то каждое заинтересованное государство должно рассмотреть вопрос о возможности принятия мер, необходимых для распространения применения этой Конвенции к указанным территориям при условии согласия правительств таких территорий, где это необходимо по конституционным основаниям. Статья XI К федеративным и неунитарным государствам применяются нижеследующие постановления: a) по тем статьям настоящей Конвенции, которые относятся к законодательной юрисдикции федеральной власти, обязательства федерального правительства в соответствующих пределах те же, что и обязательства Договаривающихся Государств, которые не являются федеративными государствами; b) что касается тех статей настоящей Конвенции, которые относятся к законодательной юрисдикции образующих федерацию государств или провинций, не обязанных, согласно конституционной системе федерации, принимать законодательные меры, то федеральное правительство доводит такие статьи со своей благоприятной рекомендацией до сведения надлежащих властей государств или провинций в кратчайший по возможности срок; c) федеративное государство, участвующее в настоящей Конвенции, представляет, по требованию любого другого Договаривающегося Государства, переданному через Генерального секретаря Организации Объединенных Наций, справку об имеющих отношение к любому конкретному постановлению настоящей Конвенции законах и практике федерации и ее составных частей, указывая, в какой мере это постановление проведено в жизнь законодательными или иными мерами. Статья XII 1. Настоящая Конвенция вступает в силу на девяностый день, считая со дня депонирования третьей ратификационной грамоты или грамоты о присоединении. 2. Для каждого государства, ратифицирующего настоящую Конвенцию или присоединяющегося к ней после депонирования третьей ратификационной грамоты или грамоты о присоединении, настоящая Конвенция вступает в силу на девяностый день после депонирования этим государством своей ратификационной грамоты или грамоты о присоединении.

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Annex I

Статья XIII 1. 1Любое Договаривающееся Государство может денонсировать настоящую Конвенцию письменным уведомлением на имя Генерального секретаря Организации Объединенных Наций. 2Денонсация вступает в силу через год со дня получения этого уведомления Генеральным секретарем. 2. Любое государство, которое сделало заявление или уведомление на основании статьи X, может в любое время впоследствии заявить в уведомлении на имя Генерального секретаря Организации Объединенных Наций, что действие настоящей Конвенции в отношении соответствующей территории прекратится через год со дня получения этого уведомления Генеральным секретарем. 3. Настоящая Конвенция будет применяться в отношении арбитражных решений, дела о признании или приведении в исполнение которых были начаты до вступления в силу денонсации. Статья XIV Никакое Договаривающееся Государство не вправе пользоваться настоящей Конвенцией против других Договаривающихся Государств иначе как в тех пределах, в которых оно обязано применять эту Конвенцию. Статья XV Генеральный секретарь Организации Объединенных Наций уведомляет государства, упомянутые в статье VIII о нижеследующем: a) о подписании и ратификациях согласно статье VIII; b) о присоединениях согласно статье IX; c) о заявлениях и уведомлениях, вытекающих из статей I, X и XI; d) о дне вступления настоящей Конвенции в силу согласно статье XII; e) о денонсациях и уведомлениях согласно статье XIII. Статья XVI 1. Настоящая Конвенция, английский, испанский, китайский, русский и французский тексты которой являются равно аутентичными, хранится в архиве Организации Объединенных Наций. 2. Генеральный секретарь Организации Объединенных Наций препровождает заверенные копии настоящей Конвенции государствам, упомянутым в статье VIII.

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Annex II

Status of the New York Convention

II. Status of the New York Convention (Contracting States, Dates, Reservations and Declarations)*

Nov. 30, 2004 (a) Feb. 28, 2005

Albania

June 27, 2001 (a)

Sep. 25, 2001

Algeria

Feb. 7, 1989 (a)

May 8, 1989

Andorra

June 19, 2015 (a)

Sep. 17, 2015

x

x

x

Angola

Mar. 6, 2017 (a)

June 4, 2017

Antigua and Barbuda

Feb. 2, 1989 (a)

May 3, 1989

x

x

Mar. 14, 1989

June 12, 1989

x

x

Armenia

Dec. 29, 1997 (a)

Mar. 29, 1998

x

x

Australia

Mar. 26, 1975 (a) June 24, 1975

Austria

May 2, 1961 (a)

Azerbaijan

Feb. 29, 2000 (a)

May 29, 2000

Bahamas

Dec. 20, 2006 (a)

Mar. 20, 2007

Bahrain

Apr. 6, 1988 (a)

July 5, 1988

Argentina

Aug. 26, 1958

July 31, 1961

Other Declarations and Reservations

x

Declaration as to Territories, Article X(1)

Reservation of Commercial Matters, Article I(3)(2)

Afghanistan

Reservation of Reciprocity, Article I(3)(1)

Entry into Force

Ratification, Accession (a) or Succession (s)

Signature

State

State: September 30, 2019**

x1 x2

–3

x

x

x4

* Source: United Nations Treaty Collection, http://treaties.un.org/ (last visited Sep. 30, 2019). In case of succession, the reservations and declarations of the predecessor State are listed (Õ Art. IX paras 13 et seq.). ** The United Nations Treaty Collection (see previous footnote) provides for authoritative details on status changes after this work has gone to print. 1 Additional declaration made upon signature: “If another Contracting Party extends the application of the Convention to territories which fall within the sovereignty of the Argentine Republic, the rights of the Argentine Republic shall in no way be affected by that extension.” Additional declaration upon ratification: “The Convention will be interpreted in accordance with the principles and clauses of the National Constitution in force or those resulting from modification made by virtue of the Constitution.” See also Germany’s objection of December 29, 1989: “The Federal Republic of Germany is of the opinion that the second paragraph of the declaration of the Argentine Republic represents a reservation and as such is not only contradictory to article I(3) of the Convention but is also vague and hence inadmissible; it therefore raises an objection to that reservation. In all other respects this objection is not intended to prevent the entry into force of the Convention between the Argentine Republic and the Federal Republic of Germany.” 2 With a declaration to the effect that the Convention shall extend to all the external territories for the international relations of which Australia is responsible other than Papua New Guinea (instrument deposited on March 26, 1975 with effect from June 24, 1975). 3 In a communication received on February 25, 1988, the Government of Austria notified the Secretary-General of its decision to withdraw as from that date, the reservation under Article I(3)(1) made upon accession to the Convention. 4 Additional reservation: “The accession by the State of Bahrain to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 shall in no way constitute recognition of Israel or be a cause for the establishment of any relations of any kind therewith.” In a communication received by the Secretary-General on September 22, 1988, the Government of Israel declared the following: “The Government of the State of Israel has noted that the instrument of accession by Bahrain to the abovementioned Convention contains a declaration in respect of Israel. In the view of the Government of the State of Israel, such declaration, which is explicitly of a political character, is incompatible with the purposes and objectives of this Convention and cannot in any way affect whatever obligations are binding

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May 6, 1992 (a)

Barbados

Mar. 16, 1993 (a) June 14, 1993

Belarus

Dec. 29, 1958

Belgium

June 10, 1958

Nov. 15, 1960

x

Aug. 4, 1992 x5

Feb. 13, 1961

Aug. 18, 1975

Nov. 16, 1975

Benin

May 16, 1974 (a)

Aug. 14, 1974

Bhutan

Sep. 25, 2014 (a)

Dec. 24, 2014

Bolivia, Plurinational State of

Apr. 28, 1995 (a)

July 27, 1995

Bosnia and Herzegovina

Sep. 1, 1993 (s)

Botswana

Dec. 20, 1971 (a)

Brazil

June 7, 2002 (a)

Sep. 5, 2002

Brunei Darussalam

July 25, 1996 (a)

Oct. 23, 1996

x

Oct. 10, 1961

Jan. 8, 1962

x

Bulgaria Burkina Faso

Dec. 17, 1958

Other Declarations and Reservations

x

Declaration as to Territories, Article X(1)

Reservation of Commercial Matters, Article I(3)(2)

Bangladesh

Reservation of Reciprocity, Article I(3)(1)

Entry into Force

Ratification, Accession (a) or Succession (s)

New York Convention

Signature

State

Annex II

x x

x

Mar. 6, 1992

x

x

Mar. 19, 1972

x

x

x6

x7

Mar. 23, 1987 (a) June 21, 1987

Burundi

June 23, 2014 (a)

Cabo Verde

Mar. 22, 2018 (a) June 20, 2018

Sep. 21, 2014

Cambodia

Jan. 5, 1960 (a)

Apr. 4, 1960

Cameroon

Feb. 19, 1988 (a)

May 19, 1988

Canada

May 12, 1986 (a)

Aug. 10, 1986

x

–8

x9

x10

upon Bahrain under general international law or under particular Conventions. The Government of the State of Israel will, in so far as concerns the substance of the matter, adopt towards the State of Bahrain an attitude of complete reciprocity.” 5 The Byelorussian Soviet Socialist Republic will apply the provisions of this Convention in respect to arbitral awards made in the territories of non-contracting States only to the extent to which they grant reciprocal treatment. 6 The Convention will be applied to the Republic of Bosnia and Herzegovina only relating those arbitral awards that have been brought after entering into force of the Convention. 7 With regard to awards made in the territory of non-contracting States, Bulgaria will apply the Convention only to the extent to which these States grant reciprocal treatment. 8 The Government of Canada’s revised declaration received on May 20, 1987 that, with respect to the Province of Saskatchewan, it will apply the Convention only to the recognition and enforcement of awards made in the territory of another Contracting State, was withdrawn with effect from November 25, 1988. 9 The Government of Canada declares that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the laws of Canada, except in the case of the Province of Quebec where the law does not provide for such limitation. 10 In a communication received on January 16, 2015, the Government of Canada declared the following: “The Permanent Mission of Canada to the United Nations presents its compliments to the Secretary-General of the United Nations and has the honour to refer to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Secretary-General’s communication of 6 January 2015, C.N.2.2015.TREATIES-XXII.1, relating to that treaty. The Permanent Mission of Canada notes that this communication was made pursuant to the Secretary-General’s capacity as Depositary for the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Permanent Mission of Canada notes the technical and administrative role of the Depositary, and that it is for States Parties to a treaty, not the Depositary, to make their own determination with respect to any legal issues raised by instruments circulated by a depositary. In that context, the Permanent Mission of Canada notes that ‘Palestine’ does not meet the criteria of a state under international law and is not recognized by Canada as a state. Therefore, in order to avoid confusion, the Permanent Mission of Canada wishes to note its position that in the context of the purported Palestinian accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, ‘Palestine’ is not able to accede to this convention, and that the Convention on the Recognition and Enforcement of Foreign

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Jan. 13, 1963

Sep. 4, 1975 (a)

Dec. 3, 1975

China

Jan. 22, 1987 (a)

Apr. 22, 1987

Colombia

Sep. 25, 1979 (a)

Dec. 24, 1979

Comoros

Apr. 28, 2015 (a)

July 27, 2015

Congo, Democratic Republic of the

Nov. 5, 2014 (a)

Feb. 3, 2015

Cook Islands

x

x

x

x

Other Declarations and Reservations

Reservation of Commercial Matters, Article I(3)(2)

Oct. 15, 1962 (a)

Chile

Reservation of Reciprocity, Article I(3)(1)

Entry into Force

Ratification, Accession (a) or Succession (s)

Signature

State Central African Republic

Declaration as to Territories, Article X(1)

Annex II

Status of the New York Convention

x11

Jan. 12, 2009 (a)

Apr. 12, 2009

Oct. 26, 1987

Jan. 24, 1988

Côte d’Ivoire

Feb. 1, 1991 (a)

May 2, 1991

Croatia

July 26, 1993 (s)

Oct. 8, 1991

x

x

x12

Cuba

Dec. 30, 1974 (a)

Mar. 30, 1975

x

x

x13

Cyprus

Dec. 29, 1980 (a)

Mar. 29, 1981

x

x

Czechia

Sep. 30, 1993 (s)

Jan. 1, 1993

x

Denmark

Dec. 22, 1972 (a)

Mar. 22, 1973

x

Costa Rica

June 10, 1958

x14 x

x15

Arbitral Awards does not enter into force, or have an effect on Canada’s treaty relations, with respect to the ‘State of Palestine’.” In a communication received by the Secretary-General on February 6, 2015, the Government of the State of Palestine declared the following: “The Permanent Observer of the State of Palestine to the United Nations presents his compliments to the Secretary-General of the United Nations, in his capacity as Depositary, and has the honor to refer to depositary notification C.N.61.2015. TREATIES-XXII.1, dated 23 January 2015, conveying a communication of Canada regarding the accession of the State of Palestine to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, dated 10 June 1958. The Government of the State of Palestine regrets the position of Canada and wishes to recall United Nations General Assembly resolution 67/19 of 29 November 2012 according Palestine ‘nonmember observer State status in the United Nations’. In this regard, Palestine is a State recognized by the United Nations General Assembly on behalf of the international community. As a State Party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which enters into force on 2 April 2015, the State of Palestine will exercise its rights and honor its obligations with respect to all States Parties. The State of Palestine trusts that its rights and obligations will be equally respected by its fellow States Parties.” 11 Upon resumption of sovereignty over Hong Kong on July 1, 1997, the Government of China extended the territorial application of the Convention to Hong Kong, Special Administrative Region of China, subject to the statement originally made by China upon accession to the Convention. On July 19, 2005, China declared that the Convention shall apply to the Macao Special Administrative Region of China, subject to the statement originally made by China upon accession to the Convention. 12 The Convention is applied in regard to the Socialist Federal Republic of Yugoslavia only to those arbitral awards which were adopted after the coming of the Convention into effect. 13 With respect to arbitral awards made by other non-contracting States, Cuba will apply the Convention only in so far as those States grant reciprocal treatment as established by mutual agreement between the parties. 14 With regard to awards made in the territory of non-contracting States, Czechoslovakia will apply the Convention only to the extent to which these States grant reciprocal treatment. 15 At the time of acceding to the Convention the Government of Denmark declared, in accordance with article X(1), that it would not apply for the time being to the Faeroe Islands and Greenland. In a communication received on November 12, 1975, the Government of Denmark declared that it had withdrawn the above-mentioned declaration, this decision to take effect on January 1, 1976. In a further communication received on January 5, 1978, the Government of Denmark confirmed that the communication received by the Secretary-General on November 12, 1975 should be considered as having taken effect from February 10, 1976, in accordance with article X(2), it being understood that the Convention was applied de facto to the Faeroe Islands and Greenland from January 1 to February 9, 1976.

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June 27, 1977

Oct. 28, 1988 (a)

Jan. 26, 1989

Apr. 11, 2002 (a)

July 10, 2002

Jan. 3, 1962

Apr. 3, 1962

Mar. 9, 1959 (a)

June 7, 1959

Feb. 26, 1998

May 27, 1998

Dominican Republic Ecuador

Dec. 17, 1958

Egypt El Salvador

June 10, 1958

Estonia

x

x

x16

x

x

x

–17

Aug. 30, 1993 (a) Nov. 28, 1993

Fiji

Sep. 27, 2010 (a)

Dec. 26, 2010

Finland

Dec. 29, 1958

Jan. 19, 1962

Apr. 19, 1962

France

Nov. 25, 1958

June 26, 1959

Sep. 24, 1959

Dec. 15, 2006 (a)

Mar. 15, 2007

June 2, 1994 (a)

Aug. 31, 1994

June 30, 1961

Sep. 28, 1961

Ghana

Apr. 9, 1968 (a)

July 8, 1968

Greece

July 16, 1962 (a)

Oct. 14, 1962

x

x

Guatemala

Mar. 21, 1984 (a) June 19, 1984

x

x

Guinea

Jan. 23, 1991 (a)

Apr. 23, 1991

Guyana

Sep. 25, 2014 (a)

Dec. 24, 2014

Haiti

Dec. 5, 1983 (a)

Mar. 4, 1984

Holy See

May 14, 1975 (a)

Aug. 12, 1975

x

x

Gabon Georgia Germany

Other Declarations and Reservations

Declaration as to Territories, Article X(1)

June 14, 1983 (s)

Dominica

Reservation of Commercial Matters, Article I(3)(2)

Djibouti

Reservation of Reciprocity, Article I(3)(1)

Entry into Force

Ratification, Accession (a) or Succession (s)

New York Convention

Signature

State

Annex II

June 10, 1958

–19

x18

x20

x21

16 Referring to paragraphs 1 and 2 of article X of the Convention, France declares that this Convention will extend to all the territories of the French Republic (instrument deposited on June 26, 1959 to take effect on September 24, 1959). 17 In a communication received on November 27, 1989, the Government of France notified the SecretaryGeneral of its decision to withdraw, with effect from that date, the declaration under Article I(3)(2) made upon ratification. 18 Referring to paragraphs 1 and 2 of article X of the Convention, France declares that this Convention will extend to all the territories of the French Republic (instrument deposited on June 26, 1959 to take effect on September 24, 1959). 19 In a communication received on August 31, 1998, the Government of Germany notified the Secretary-General of its decision to withdraw the reservation under Article I(3)(1) made upon ratification of the Convention. 20 See communication regarding Argentina (Õ n. 1). 21 The Holy See declared that the Convention will apply only to the territory of the State of Vatican City and to its civil law.

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Reservation of Commercial Matters, Article I(3)(2) x

Iceland

Jan. 24, 2002 (a)

Apr. 24, 2002

India

July 13, 1960

Oct. 11, 1960

x

x

Indonesia

Oct. 7, 1981 (a)

Jan. 5, 1982

x

x

Iran, Islamic Republic of

Oct. 15, 2001 (a)

Jan. 13, 2002

x

x

Ireland

May 12, 1981 (a)

Aug. 10, 1981

x

Israel

June 10, 1958

June 10, 1958

Other Declarations and Reservations

Reservation of Reciprocity, Article I(3)(1)

(–)23

x

Entry into Force

(–)22

June 3, 1962

Ratification, Accession (a) or Succession (s)

Jan. 1, 2001

Mar. 5, 1962 (a)

Signature

Oct. 3, 2000 (a)

Hungary

State Honduras

Declaration as to Territories, Article X(1)

Annex II

Status of the New York Convention

x24

Jan. 5, 1959

June 7, 1959

Italy

Jan. 31, 1969 (a)

May 1, 1969

Jamaica

July 10, 2002 (a)

Oct. 8, 2002

x

Japan

June 20, 1961 (a)

Sep. 18, 1961

x

x

22 On August 21, 2012, the following declaration, which the Government of Honduras had intended to make upon accession to the Convention, was lodged by the Government of Honduras with the SecretaryGeneral: “The State of Honduras will apply the Convention to the recognition and execution of arbitral [awards] issued in the territory of another Contracting State. Also, it will only apply the Convention to the differences arising out of legal relationships, whether contractual or not, considered as commercial by national legislation.” In keeping with the depositary practice followed in similar cases, the SecretaryGeneral proposed on August 27, 2012 to receive the declaration in question for deposit in the absence of any objection on the part of one of the Contracting States, either to the deposit itself or to the procedure envisaged, within a period of one year from the date of the present notification. In the absence of any such objection, the said declaration will be accepted for deposit upon the above-stipulated one year period, that is on August 27, 2013. – The declaration’s classification as a reciprocity reservation is subject to interpretation of the declaration’s ambiguous wording that adopts Article I(3)(1)’s wording but omits “only.” 23 See preceding footnote. 24 In a communication received on January 16, 2015, the Government of Israel declared the following: “The Permanent Mission of Israel to the United Nations presents its compliments to the Secretary-General of the United Nations, in his capacity as depositary to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and refers to the communication by the depositary, dated 6 January 2015, regarding the Palestinian request to accede to this Convention (Reference number C.N.2.2015.TREATIES-XXII.1). ‘Palestine’ does not satisfy the criteria for statehood under international law and lacks the legal capacity to join the aforesaid convention both under general international law and the terms of bilateral Israeli-Palestinian agreements. The Government of Israel does not recognize ‘Palestine’ as a State, and wishes to place on record, for the sake of clarity, its position that it does not consider ‘Palestine’ a party to the Convention and regards the Palestinian request for accession as being without legal validity and without effect upon Israel’s treaty relations under the Convention.” In a communication received by the Secretary-General on February 6, 2015, the Government of the State of Palestine declared the following: “The Permanent Observer of the State of Palestine to the United Nations presents his compliments to the Secretary-General of the United Nations, in his capacity as Depositary, and has the honor to refer to depositary notification C.N.40.2015.TREATIESXXII.1, dated 23 January 2015, conveying a communication of Israel regarding the accession of the State of Palestine to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, dated 10 June 1958. The Government of the State of Palestine regrets the position of Israel, the occupying Power, and wishes to recall United Nations General Assembly resolution 67/19 of 29 November 2012 according Palestine ‘non-member observer State status in the United Nations’. In this regard, Palestine is a State recognized by the United Nations General Assembly on behalf of the international community. As a State Party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which enters into force on 2 April 2015, the State of Palestine will exercise its rights and honor its obligations with respect to all States Parties. The State of Palestine trusts that its rights and obligations will be equally respected by its fellow States Parties.” See also communications regarding Bahrain (Õ n. 4) and Jordan (Õ n. 25).

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Jordan

June 10, 1958

Nov. 15, 1979

Nov. 20, 1995 (a) Feb. 18, 1996

Kenya

Feb. 10, 1989 (a)

May 11, 1989

x

Korea, Republic of

Feb. 8, 1973 (a)

May 9, 1973

x

Kuwait

Apr. 28, 1978 (a)

July 27, 1978

x

Kyrgyzstan

Dec. 18, 1996 (a)

Mar. 18, 1997

Lao People’s Democratic Republic

June 17, 1998 (a)

Sep. 15, 1998

Latvia

Apr. 14, 1992 (a)

July 13, 1992

Lebanon

Aug. 11, 1998 (a) Nov. 9, 1998

Lesotho

June 13, 1989 (a)

Other Declarations and Reservations

x x26

x

Sep. 11, 1989

Liberia

Sep. 16, 2005 (a)

Dec. 15, 2005

Liechtenstein

July 7, 2011 (a)

Oct. 5, 2011

Lithuania

Mar. 14, 1995 (a) June 12, 1995 Nov. 11, 1958

Declaration as to Territories, Article X(1)

x25

Feb. 13, 1980

Kazakhstan

Luxembourg

Reservation of Commercial Matters, Article I(3)(2)

Reservation of Reciprocity, Article I(3)(1)

Entry into Force

Ratification, Accession (a) or Succession (s)

New York Convention

Signature

State

Annex II

x x27

Sep. 9, 1983

Dec. 8, 1983

x

Madagascar

July 16, 1962 (a)

Oct. 14, 1962

x

x

Malaysia

Nov. 5, 1985 (a)

Feb. 3, 1986

x

x

Maldives

Sep. 17, 2019 (a)

Dec. 16, 2019

Mali

Sep. 8, 1994 (a)

Dec. 7, 1994

Malta

June 22, 2000 (a)

Sep. 20, 2000

Marshall Islands

Dec. 21, 2006 (a)

Mar. 21, 2007

Mauritania

Jan. 30, 1997 (a)

Apr. 30, 1997

Mauritius

June 19, 1996 (a)

Sep. 17, 1996

Mexico

Apr. 14, 1971 (a)

July 13, 1971

x28

x

–29

x30

25 Additional reservation: “The Government of Jordan shall not be bound by any awards which are made by Israel or to which an Israeli is a party.” In a communication received by the Secretary-General on June 23, 1980, the Government of Israel declared the following: “The Government of Israel has noted the political character of the statement made by the Government of Jordan. In the view of the Government of Israel, this Convention is not the proper place for making such political pronouncements. Moreover, the said declaration cannot in any way affect whatever obligations are binding upon Jordan under general international law or under particular conventions. Insofar as concerns the substance of the matter, the Government of Israel will adopt towards the Government of Jordan an attitude of complete reciprocity.” 26 The State of Kuwait will apply the Convention with the following understanding: It is understood that the accession of the State of Kuwait to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, on the 10th of June 1958, does not mean in any way recognition of Israel or entering with it into relations governed by the Convention thereto acceded by the State of Kuwait. 27 The Republic of Lithuania will apply the provisions of the present Convention to the recognition of arbitral awards made in the territories of the Non-Contracting States, only on the basis of reciprocity. 28 The Convention only applies in regard to Malta with respect to arbitration agreements concluded after the date of Malta’s accession to the Convention. 29 On May 24, 2013, the Government of Mauritius notified the Secretary-General of its decision to withdraw the declaration made upon accession with respect to “Article 1(3) of the Convention.” 30 Referring to paragraphs 1 and 2 of Article X of the Convention, the Republic of Mauritius declares that this Convention will extend to all territories forming part of the Republic Mauritius.

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x31

Sep. 18, 1998 (a)

Dec. 17, 1998

x

June 2, 1982

Aug. 31, 1982

x

Mongolia

Oct. 24, 1994 (a)

Jan. 22, 1995

x

x

Montenegro

Oct. 23, 2006 (s)

June 3, 2006

x

x

Morocco

Feb. 12, 1959 (a)

June 7, 1959

x x

Monaco

Dec. 31, 1958

Mozambique

June 11, 1998 (a)

Sep. 9, 1998

Myanmar

Apr. 16, 2013 (a)

July 15, 2013

Nepal

x x32

Mar. 4, 1998 (a)

June 2, 1998

x

Apr. 24, 1964

July 23, 1964

x

x33

New Zealand

Jan. 6, 1983 (a)

Apr. 6, 1983

x

x34

Nicaragua

Sep. 24, 2003 (a)

Dec. 23, 2003

Niger

Oct. 14, 1964 (a)

Jan. 12, 1965

Nigeria

Mar. 17, 1970 (a) June 15, 1970

North Macedonia

Mar. 10, 1994 (s)

Norway

Mar. 14, 1961 (a) June 12, 1961

Netherlands

June 10, 1958

Oman Pakistan

Feb. 25, 1999 (a) Dec. 30, 1958

Nov. 17, 1991

x

x

x

–35

x

Oct. 12, 2005

Palestine, State of

Jan. 2, 2015 (a)

Apr. 2, 2015

Panama

Oct. 10, 1984 (a)

Jan. 8, 1985

Papua New Guinea

July 17, 2019 (a)

Oct. 15, 2019

Paraguay

Oct. 8, 1997 (a)

Jan. 6, 1998

x x38

July 7, 1988 (a)

Oct. 5, 1988

Philippines

June 10, 1958

July 6, 1967

Oct. 4, 1967

x

x

Poland

June 10, 1958

Oct. 3, 1961

Jan. 1, 1962

x

x

Oct. 18, 1994 (a)

Jan. 16, 1995

x

Portugal

x36 x37

x

May 26, 1999

July 14, 2005

Peru

Other Declarations and Reservations

Reservation of Commercial Matters, Article I(3)(2)

Reservation of Reciprocity, Article I(3)(1)

Entry into Force

Ratification, Accession (a) or Succession (s)

Signature

State Moldova, Republic of

Declaration as to Territories, Article X(1)

Annex II

Status of the New York Convention

x39

31 The Convention will be applied to the Republic of Moldova only relating those arbitral awards that have been brought after entering into force of the Convention. 32 The Convention is applied in regard to the Socialist Federal Republic of Yugoslavia only to those arbitral awards which were adopted after the coming of the Convention into effect. 33 On April 24, 1964, the Netherlands declared that the Convention is also applicable to Surinam and the Netherlands Antilles; to take effect on July 23, 1964. 34 Accession to the Convention by the Government of New Zealand shall not extend for the time being, pursuant to article X of the Convention, to the Cook Islands and Niue. 35 On September 16, 2009, The former Yugoslav Republic of Macedonia withdrew the declaration under Article I(3)(1) made upon succession. 36 The Convention is applied in regard to the Socialist Federal Republic of Yugoslavia only to those arbitral awards which were adopted after the coming of the Convention into effect. 37 Norway will not apply the Convention to differences where the subject matter of the proceedings is immovable property situated in Norway, or a right in or to such property. 38 See communications regarding Canada (Õ n. 10), Israel (Õ n. 24) and the United States of America (Õ n. 52). 39 On November 12, 1999, the Government of Portugal informed the Secretary-General that the Convention will apply to Macau. Subsequently, the Secretary-General received, on December 9, 1999, from the Government of Portugal, the following communication relating to Macau: “In accordance with the Joint Declaration of the Government of the Portuguese Republic and the Government of the People’s Republic of China on the Question of Macau signed on 13 April 1987, the Portuguese Republic will continue to have international responsibility for Macau until 19 December 1999 and from that date onwards the People’s Republic of China will resume the exercise of sovereignty over Macau with effect

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x

Dec. 30, 2002 (a)

Mar. 30, 2003

Romania

Sep. 13, 1961 (a)

Dec. 12, 1961

Aug. 24, 1960

Nov. 22, 1960

Rwanda

Oct. 31, 2008 (a)

Jan. 29, 2009

Saint Vincent and the Grenadines

Sep. 12, 2000 (a)

Dec. 11, 2000

San Marino

May 17, 1979 (a)

Aug. 15, 1979

Sao Tome and Principe

Nov. 20, 2012 (a) Feb. 18, 2013

Saudi Arabia

Apr. 19, 1994 (a)

July 18, 1994

Senegal

Oct. 17, 1994 (a)

Jan. 15, 1995

Serbia

Mar. 12, 2001 (s)

Apr. 27, 1992

Singapore

Aug. 21, 1986 (a) Nov. 19, 1986

x

Slovakia

May 28, 1993 (s)

Jan. 1, 1993

x

Slovenia

July 6, 1992 (s)

June 25, 1991

South Africa

May 3, 1976 (a)

Aug. 1, 1976

Spain

May 12, 1977 (a)

Aug. 10, 1977

Apr. 9, 1962

July 8, 1962

Russian Federation

Sri Lanka

Dec. 29, 1958

Dec. 30, 1958

Sudan

x40 x41

x

x

x x

–44

x

x42

–45

(–)46

x43

Mar. 26, 2018 (a) June 24, 2018

Sweden

Dec. 23, 1958

Jan. 28, 1972

Apr. 27, 1972

Switzerland

Dec. 29, 1958

June 1, 1965

Aug. 30, 1965

Mar. 9, 1959 (a)

June 7, 1959

Syrian Arab Republic

Other Declarations and Reservations

Reservation of Commercial Matters, Article I(3)(2)

x

Qatar

Declaration as to Territories, Article X(1)

Reservation of Reciprocity, Article I(3)(1)

Entry into Force

Ratification, Accession (a) or Succession (s)

New York Convention

Signature

State

Annex II

–47

from 20 December 1999. From 20 December 1999 onwards the Portuguese Republic will cease to be responsible for the international rights and obligations arising from the application of the Convention to Macau.” 40 As regards awards made in the territory of certain non-contracting States, the Romanian People’s Republic will apply the Convention only on the basis of reciprocity established by joint agreement between the parties. 41 The Union of Soviet Socialist Republics will apply the provisions of this Convention in respect to arbitral awards made in the territories of non-contracting States only to the extent to which they grant reciprocal treatment. 42 The Convention is applied in regard to the Socialist Federal Republic of Yugoslavia only to those arbitral awards which were adopted after the coming of the Convention into effect. 43 With regard to awards made in the territory of non-contracting States, Czechoslovakia will apply the Convention only to the extent to which these States grant reciprocal treatment. 44 On June 4, 2008, Slovenia withdrew the declarations under Article I(3)(1) and (2) made upon succession. 45 See preceding footnote. 46 When acceding to the Convention in 1982, the Socialist Federal Republic of Yugoslavia made inter alia the following reservation: “The Convention is applied in regard to the Socialist Federal Republic of Yugoslavia only to those arbitral awards which were adopted after the coming of the Convention into effect.” Upon succession, however, Slovenia made (only) the declarations under Article I(3)(1) and (2). Õ Art. X para. 46. 47 On April 23, 1993, the Government of Switzerland notified the Secretary-General of its decision to withdraw the declaration under Article I(3)(1) made upon ratification.

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x49

Tajikistan

Aug. 14, 2012 (a) Nov. 12, 2012

Tanzania, United Republic of

Oct. 13, 1964 (a)

Jan. 11, 1965

Thailand

Dec. 21, 1959 (a)

Mar. 20, 1960

Trinidad and Tobago

Feb. 14, 1966 (a)

May 15, 1966

x

x

Tunisia

July 17, 1967 (a)

Oct. 15, 1967

x

x

Turkey

July 2, 1992 (a)

Sep. 30, 1992

x

x

Uganda

Feb. 12, 1992 (a)

May 12, 1992

x

Oct. 10, 1960

Jan. 8, 1961

Ukraine United Arab Emirates

Dec. 29, 1958

Other Declarations and Reservations

Reservation of Commercial Matters, Article I(3)(2)

Entry into Force

Ratification, Accession (a) or Succession (s)

Signature

State

Reservation of Reciprocity, Article I(3)(1) (x)48

Declaration as to Territories, Article X(1)

Annex II

Status of the New York Convention

x

x50

Aug. 21, 2006 (a) Nov. 19, 2006

48 Subject to interpretation of the reservation’s ambiguous wording (see next footnote) that adopts Article I(3)(1)’s wording but omits “only.” 49 Upon accession, the Republic of Tajikistan declared: “Reservation. The Republic of Tajikistan will apply this Convention to differences and arbitral [a]wards arised out after entering into force of this Convention with respect to the Republic of Tajikistan and made in the territory of another Contracting State; The Republic of Tajikistan will not apply this Convention with regard to differences related to immovable property.” 50 The Ukrainian Soviet Socialist Republic will apply the provisions of this Convention, as regards arbitral awards made in the territory of States not parties to the Convention, only on the basis of reciprocity. In a communication received on October 20, 2015, the Government of Ukraine declared the following: “The Ministry of Foreign Affairs of Ukraine presents its compliments to the Secretary-General of the United Nations, as the Depositary of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 […] and has the honour to inform of the following. In February 2014 the Russian Federation launched armed aggression against Ukraine and occupied a part of the territory of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol, and today exercises effective control over certain districts of the Donetsk and Luhansk oblasts of Ukraine. These actions are in gross violation of the Charter of the United Nations and constitute a threat to international peace and security. The Russian Federation, as the Aggressor State and Occupying Power, bears full responsibility for its actions and their consequences under international law. The United Nations General Assembly Resolution A/RES/68/262 of 27 March 2014 confirmed the sovereignty and territorial integrity of Ukraine within its internationally recognized borders. The United Nations also called upon all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol. In this regard, Ukraine states that from 20 February 2014 and for the period of temporary occupation by the Russian Federation of a part of the territory of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol – as a result of the armed aggression of the Russian Federation committed against Ukraine and until the complete restoration of the constitutional law and order and effective control by Ukraine over such occupied territory, as well as over certain districts of the Donetsk and Luhansk oblasts of Ukraine, which are temporarily not under control of Ukraine as a result of the aggression of the Russian Federation, the application and implementation by Ukraine of the obligations under the above [Convention], as applied to the aforementioned occupied and uncontrolled territory of Ukraine, is limited and is not guaranteed. Documents or requests made or issued by the occupying authorities of the Russian Federation, its officials at any level in the Autonomous Republic of Crimea and the city of Sevastopol and by the illegal authorities in certain districts of the Donetsk and Luhansk oblasts of Ukraine, which are temporarily not under control of Ukraine, are null and void and have no legal effect regardless of whether they are presented directly or indirectly through the authorities of the Russian Federation. The provisions of the [Convention] regarding the possibility of direct communication or interaction do not apply to the territorial organs of Ukraine in the Autonomous Republic of Crimea and the city of Sevastopol, as well as in certain districts of the Donetsk and Luhansk oblasts of Ukraine, which are temporarily not under control of Ukraine. The procedure of the relevant communication is determined by the central authorities of Ukraine in Kyiv. Therefore, the Ukrainian Side would be grateful if the Secretary-General of the United Nations, as the Depositary of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 […] would circulate this

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Other Declarations and Reservations

Declaration as to Territories, Article X(1)

Reservation of Commercial Matters, Article I(3)(2)

Reservation of Reciprocity, Article I(3)(1)

Entry into Force

Ratification, Accession (a) or Succession (s)

New York Convention

Signature

State

Annex II

x51

United Kingdom of Great Britain and Northern Ireland

Sep. 24, 1975 (a)

Dec. 23, 1975

x

United States of America

Sep. 30, 1970 (a)

Dec. 29, 1970

x

x

Uruguay

Mar. 30, 1983 (a) June 28, 1983

Uzbekistan

Feb. 7, 1996 (a)

May 7, 1996

Venezuela, Bolivarian Republic of

Feb. 8, 1995 (a)

May 9, 1995

x

x

Viet Nam

Sep. 12, 1995 (a)

Dec. 11, 1995

x

x

x52

x53

x54

notification on the specifics of the territorial application and implementation of the above [Convention] in Ukraine among all the Contracting States to [this Convention].” 51 The United Kingdom extended the territorial application of the Convention, for the case of awards made only in the territory of another contracting State, to the following territories: Gibraltar (September 24, 1975, with effect from December 23, 1975), Hong Kong (January 21, 1977, with effect from April 21, 1977), Isle of Man (February 22, 1979, with effect from May 23, 1979), Bermuda (November 14, 1979, with effect from February 12, 1980), Belize (November 26, 1980, with effect from February 24, 1981), Cayman Islands (November 26, 1980, with effect from February 24, 1981), Guernsey (April 19, 1985, with effect from July 18, 1985), Bailiwick of Jersey (May 28, 2002) and British Virgin Islands (February 24, 2014, with effect from May 25, 2014). 52 On November 3, 1970, the United States of America notified the extension of the Convention to all of the territories for the international relations of which the United States of America is responsible (to take effect on February 1, 1971). 53 In a communication received on January 16, 2015, the Government of the United States of America declared the following: “The United States Mission to the United Nations presents its compliments to the United Nations and refers to the U.N. Secretary-General’s depositary notification C.N.2.2015.TREATIESXXII.1, dated January 6, 2015, regarding the purported accession of the ‘State of Palestine’ to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York June 10, 1958 (the Convention). The Government of the United States of America does not believe the ‘State of Palestine’ qualifies as a sovereign State and does not recognize it as such. Accession to the Convention is limited to sovereign States. Therefore, the Government of the United States of America believes that the ‘State of Palestine’ is not qualified to accede to the Convention and affirms that it will not consider itself to be in a treaty relationship with the ‘State of Palestine’ under the Convention.” In a communication received by the Secretary-General on February 6, 2015, the Government of the State of Palestine declared the following: “The Permanent Observer of the State of Palestine to the United Nations presents his compliments to the Secretary-General of the United Nations, in his capacity as Depositary, and has the honor to refer to depositary notification C.N.39.2015.TREATIES-XXII.1, dated 23 January 2015, conveying a communication of the United States of America regarding the accession of the State of Palestine to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, dated 10 June 1958. The Government of the State of Palestine regrets the position of the United States of America and wishes to recall United Nations General Assembly resolution 67/19 of 29 November 2012 according Palestine ‘non-member observer State status in the United Nations’. In this regard, Palestine is a State recognized by the United Nations General Assembly on behalf of the international community. As a State Party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which enters into force on 2 April 2015, the State of Palestine will exercise its rights and honor its obligations with respect to all States Parties. The State of Palestine trusts that its rights and obligations will be equally respected by its fellow States Parties.” 54 With respect to arbitral awards made in the territories of non-contracting States, The Socialist Republic of Vietnam will apply the Convention on the basis of reciprocity. Interpretation of the Convention before the Vietnamese Courts or competent Authorities should be made in accordance with the Constitution and the law of Vietnam.

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Parties: 161

Declaration as to Territories, Article X(1)

Sep. 29, 1994 (a)

Reservation of Commercial Matters, Article I(3)(2)

Mar. 14, 2002 (a) June 12, 2002

Zimbabwe

Reservation of Reciprocity, Article I(3)(1)

Entry into Force

Ratification, Accession (a) or Succession (s)

Signature

State Zambia

73

48

10

Other Declarations and Reservations

Annex II

Status of the New York Convention

Dec. 28, 1994 30

The following 35 States are Members of the United Nations but not parties to the New York Convention: Belize (Õ Art. X para. 28), Chad, Congo, Equatorial Guinea, Eritrea, Eswatini, Ethiopia, Gambia, Grenada, Guinea Bissau, Iraq, Kiribati, Korea (Democratic People’s Republic of), Libya, Malawi, Micronesia (Federated States of), Namibia, Nauru, Palau, Saint Kitts and Nevis, Saint Lucia, Samoa, Seychelles, Sierra Leone, Solomon Islands, Somalia, South Sudan, Suriname (Õ Art. X para. 17), Timor-Leste, Togo, Tonga, Turkmenistan, Tuvalu, Vanuatu and Yemen. Note that accession to the New York Convention is not limited to Members of the United Nations (Article IX(1)).

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UNCITRAL Recommendation

Annex III

III. UNCITRAL Recommendation Recommendation regarding the interpretation of article II, paragraph 2, and article VII, paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, adopted by the United Nations Commission on International Trade Law on 7 July 2006 at its thirty-ninth session* The United Nations Commission on International Trade Law, Recalling General Assembly resolution 2205 (XXI) of 17 December 1966, which established the United Nations Commission on International Trade Law with the object of promoting the progressive harmonization and unification of the law of international trade by, inter alia, promoting ways and means of ensuring a uniform interpretation and application of international conventions and uniform laws in the field of the law of international trade, Conscious of the fact that the different legal, social and economic systems of the world, together with different levels of development, are represented in the Commission, Recalling successive resolutions of the General Assembly reaffirming the mandate of the Commission as the core legal body within the United Nations system in the field of international trade law to coordinate legal activities in this field, Convinced that the wide adoption of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York on 10 June 1958,1 has been a significant achievement in the promotion of the rule of law, particularly in the field of international trade, Recalling that the Conference of Plenipotentiaries which prepared and opened the Convention for signature adopted a resolution, which states, inter alia, that the Conference “considers that greater uniformity of national laws on arbitration would further the effectiveness of arbitration in the settlement of private law disputes”, Bearing in mind differing interpretations of the form requirements under the Convention that result in part from differences of expression as between the five equally authentic texts of the Convention, Taking into account article VII, paragraph 1, of the Convention, a purpose of which is to enable the enforcement of foreign arbitral awards to the greatest extent, in particular by recognizing the right of any interested party to avail itself of law or treaties of the country where the award is sought to be relied upon, including where such law or treaties offer a regime more favourable than the Convention, Considering the wide use of electronic commerce, Taking into account international legal instruments, such as the 1985 UNCITRAL Model Law on International Commercial Arbitration,2 as subsequently revised, particularly with respect to article 7,3 the UNCITRAL Model Law on Electronic Commerce,4 the UNCITRAL Model Law on Electronic Signatures5 and the United Nations Convention on the Use of Electronic Communications in International Contracts,6

* Issued in Official Records of the General Assembly, Sixty-first Session, Supplement No. 17 (A/61/17), annex II. 1 United Nations, Treaty Series, vol. 330, No. 4739. 2 Official Records of the General Assembly, Fortieth Session, Supplement No. 17 (A/40/17), annex I, and United Nations publication, Sales No. E.95.V.18. 3 Ibid., Sixty-first Session, Supplement No. 17 (A/61/17), annex I. 4 Ibid., Fifty-first Session, Supplement No. 17 (A/51/17), annex I, and United Nations publication, Sales No. E.99.V.4, which contains also an additional article 5 bis, adopted in 1998, and the accompanying Guide to Enactment. 5 Ibid., Fifty-sixth Session, Supplement No. 17 and corrigendum (A/56/17 and Corr.3), annex II, and United Nations publication, Sales No. E.02.V.8, which contains also the accompanying Guide to Enactment. 6 General Assembly resolution 60/21, annex.

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Annex III

New York Convention

Taking into account also enactments of domestic legislation, as well as case law, more favourable than the Convention in respect of form requirement governing arbitration agreements, arbitration proceedings and the enforcement of arbitral awards, Considering that, in interpreting the Convention, regard is to be had to the need to promote recognition and enforcement of arbitral awards, 1. Recommends that article II, paragraph 2, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, be applied recognizing that the circumstances described therein are not exhaustive; 2. Recommends also that article VII, paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, should be applied to allow any interested party to avail itself of rights it may have, under the law or treaties of the country where an arbitration agreement is sought to be relied upon, to seek recognition of the validity of such an arbitration agreement.

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Annex IV 1

Travaux Préparatoires (New York Convention)

IV. Travaux Préparatoires 1. New York Convention* Document Number

Document Title

Document Originator

Document Date

A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations A.1. ECOSOC Report of the Committee on the Enforcement of International Arbitral Awards, March 28, 1955 E/2704 = E/AC.42/4/Rev.1

Report of the Committee on the Enforcement of International Arbitral Awards

Committee

Mar. 28, 1955

Committee

Apr. 1, 1955

[Resolution of the Economic and Social Council establishing the Committee, composition, meetings and organization of the Committee, documents before the Committee, agenda, general considerations, the draft Convention] E/2704/Corr.1 = E/AC.42/4/Rev.1/ Corr.1

Report of the Committee on the Enforcement of International Arbitral Awards – Corrigendum

A.1.1. Committee on Enforcement of International Arbitral Awards E/C.2/373

Enforcement of International Arbitral Awards: Statement submitted by the International Chamber of Commerce, a nongovernmental organization having consultative status in category A

International Chamber of Commerce

Oct. 28, 1953

E/C.2/373/Add.1

Enforcement of International Arbitral Awards: Statement submitted by the International Chamber of Commerce, a nongovernmental organization having consultative status in category A

International Chamber of Commerce

Feb. 25, 1954

E/AC.42/1

Comments received from governments regarding the draft Convention on the Enforcement of International Arbitral Awards

Committee, various countries

Jan. 21, 1955

E/AC.42/2

Protocol on Arbitration Clauses, Geneva, 24 September 1923

Committee

Feb. 16, 1955

* Documents referenced in this schedule can be downloaded from https://uncitral.un.org/en/texts/ arbitration/conventions/foreign_arbitral_awards/travaux (last visited Apr. 29, 2019).

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Annex IV 1

New York Convention

Document Number

Document Title

Document Originator

Document Date

E/AC.42/4

Report of the Committee on the Enforcement of International Arbitral Awards

Committee

Mar. 21, 1955

A.1.2. Summary Records of the Committee on the Enforcement of International Arbitral Awards E/AC.42/3

First Session of the Committee on the Enforcement of International Arbitral Awards: Provisional Agenda

Committee

Feb. 28, 1955

E/AC.42/SR.1

Summary record of the first meeting

Committee

Mar. 23, 1955

E/AC.42/SR.2

Summary record of the second meeting

Committee

Mar. 23, 1955

E/AC.42/SR.3

Summary record of the third meeting

Committee

Mar. 23, 1955

E/AC.42/SR.4

Summary record of the fourth meeting

Committee

Mar. 29, 1955

E/AC.42/SR.5

Summary record of the fifth meeting

Committee

Mar. 29, 1955

E/AC.42/SR.6

Summary record of the sixth meeting

Committee

Mar. 29, 1955

E/AC.42/SR.7

Summary record of the seventh meeting

Committee

Mar. 29, 1955

E/AC.42/SR.8

Summary record of the eighth meeting

Committee

Apr. 4, 1955

A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, January 1956 to April 1958 E/2822

Report by the Secretary-General

Secretary-General

Jan. 31, 1956

2822/Add.1

Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Egypt, Sweden

Feb. 21, 1956

Greece

Mar. 14, 1956

Secretary-General

Mar. 22, 1956

[General observations, comments on Articles I, III, IV, VI] E/2822/Add.2

Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards [General observations, comments on Articles I, III, IV]

E/2840

600

Memorandum by the SecretaryGeneral

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Annex IV 1

Travaux Préparatoires (New York Convention) Document Number

Document Title

Document Originator

Document Date

E/2822/Add.3

Comments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Chamber of Commerce of the United States, International Institute for the Unification of Private Law

Mar. 23, 1956

E/2822/Add.4

Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Netherlands, United Kingdom

Apr. 3, 1956

Hungary, Norway

Apr. 13, 1956

Secretary-General

Apr. 13, 1956

Yugoslavia

July 16, 1956

New Zealand

Mar. 10, 1958

Netherlands

Apr. 8, 1958

[General observations, comments on Articles I, III, IV, VIII, XIII] E/2822/Add.5

Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards [Comments on Articles I, III, IV, VII, X]

E/2822/Corr.1

Report by the Secretary-General – Corrigendum [Comments on Article IV]

E/2822/Add.6

Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards [General observations, comments on the title and Articles I, IV, VII, IX, X, XI and suggestion of additional articles]

E/CONF.26/3

Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards [General observations, comments on the title and Articles IV, V]

E/CONF.26/3/Add.1

Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards [Comments on Articles I, III, IV, V and suggestion of an additional article]

601

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Annex IV 1 Document Number

New York Convention Document Title

Document Originator

Document Date

A.3. Activities of Inter-Governmental and Non-Governmental Organizations in the Field of International Commercial Arbitration: Consolidated Report by the Secretary-General, April 24, 1958 E/CONF.26/4

Activities of Inter-Governmental and Non-Governmental Organizations in the Field of International Commercial Arbitration – Consolidated Report by the Secretary-General

Secretary-General

Apr. 24, 1958

A.4. Comments on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Notes by the Secretary-General E/CONF.26/6

Consideration of Other Measures for Increasing the Effectiveness of Arbitration in the Settlement of Private Law Disputes – Note by the SecretaryGeneral

Secretary-General

May 1, 1957

E/CONF.26/2

Note by the Secretary-General

Secretary-General

Mar. 6, 1958

[General observations and presentation of the objective of the Conference] B. United Nations Conference on International Commercial Arbitration: Documents E/CONF.26/1

Provisional Agenda

ECOSOC

Sep. 20, 1957

B.1. Draft Rules of Procedure E/CONF.26/5

Draft Rules of Procedure – Prepared by the Secretary-General

Secretary-General

Apr. 25, 1958

E/CONF.26/L.1

Amendment to E/CONF.26/5 as Adopted at the first Plenary Meeting

ECOSOC

May 20, 1958

E/CONF.26/L.2

Amendments proposed by the United States of America to E/CONF.26/5

United States

May 20, 1958

E/CONF.26/L.3

Amendments proposed by the Philippines to E/CONF.26/5

Philippines

May 21, 1958

E/CONF.26/L.4

Draft Rules of Procedure – Amendment proposed by Israel to E/CONF.26/5

Israel

May 21, 1958

E/CONF.26/L.5

Argentina: Draft amendment to document E/CONF.26/5, as amended by E/CONF.26/L.2

Argentina

May 21, 1958

E/CONF.26/5/Rev.1

Rules of Procedure adopted by the Conference at its second plenary meeting on 21 May 1958

ECOSOC

May 21, 1958

602

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Annex IV 1

Travaux Préparatoires (New York Convention) Document Number

Document Title

Document Originator

Document Date

B.2. Amendments to the Draft Convention Submitted by Governmental Delegations, May 21 to 28, 1958 E/CONF.26/7

Amendments to Draft Convention submitted by the Polish Delegation

Poland

May 21, 1958

[Amendments to the title of the Convention and Articles I, III, VII, VIII, X] E/CONF.26/L.6

Austria, Belgium, Federal Republic of Germany, France, Italy, Netherlands, Sweden, Switzerland: amendment to article I, paragraph 1, of the draft Convention

Austria, Belgium, Federal Republic of Germany, France, Italy, Netherlands, Sweden, Switzerland

May 22, 1958

E/CONF.26/L.7

United Kingdom: amendments to the draft Convention

United Kingdom

May 22, 1958

Sweden

May 22, 1958

[Comments on Article I] E/CONF.26/L.8

Sweden: amendments to the draft Convention [Comments on Articles III, IV and suggestion of an additional article]

E/CONF.26/L.9

Turkey: amendment to article I, paragraph 1, of the draft Convention

Turkey

May 22, 1958

E/CONF.26/L.10

Czechoslovakia: amendment to the Draft Convention

Czechoslovakia

May 22, 1958

[Amendment of Article I] E/CONF.26/L.8/ Corr.1

Corrigendum – Sweden: amendment to article I, paragraph 1, of the draft Convention

Sweden

May 23, 1958

E/CONF.26/L.9/ Rev.1

Turkey: amendment to article I paragraph 1, of the draft Convention

Turkey

May 23, 1958

E/CONF.26/L.11

United Kingdom: amendment to article II of the draft Convention

United Kingdom

May 23, 1958

E/CONF.26/L.12

Yugoslavia: amendment to article I, paragraph 1, of the draft Convention

Yugoslavia

May 23, 1958

603

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Annex IV 1

New York Convention

Document Number

Document Title

Document Originator

Document Date

E/CONF.26/L.13

Principles concerning the scope of the Convention and the law applicable submitted by the Italian delegation as a basis for the discussion of article I of the draft

Italy

May 23, 1958

E/CONF.26/L.14

Ceylon: amendment to article I, paragraph 2, of the draft Convention

Ceylon

May 23, 1958

E/CONF.26/L.15

Japan: amendments to articles II and IV of the draft Convention

Japan

May 23, 1958

E/CONF.26/L.10/Rev.1 Belgium, Czechoslovakia, United Kingdom: additional provisions to be included in the draft Convention

Belgium, Czechoslovakia, United Kingdom

May 26, 1958

E/CONF.26/L.15/Rev.1 Japan: amendments to articles III and IV of the draft Convention

Japan

May 26, 1958

E/CONF.26/L.16

Pakistan

May 26, 1958

Netherlands

May 26, 1958

Pakistan: amendments to draft Convention [Amendments of Articles I, III, IV, VI, XII and suggestion of an additional article]

E/CONF.26/L.17

Netherlands: amendments to the Draft Convention [Amendments of Articles III, IV, V]

E/CONF.26/L.18

Israel: proposed definition of the words “arbitral award”

Israel

May 26, 1958

E/CONF.26/L.19

Federal Republic of Germany: amendment to the Swedish proposal for inclusion of a new Article (E/CONF.26/L.8, paragraph 1)

Federal Republic of Germany

May 26, 1958

E/CONF.26/L.20

Japan: amendments to Swedish proposal for a new article (E/CONF.26/L.8, paragraph 1)

Japan

May 26, 1958

E/CONF.26/C.1/L.1

Israel: amendment proposed for Article I, paragraph 1

Israel

May 26, 1958

E/CONF.26/C.1/L.2

Union of Soviet Socialist Republics: amendment to article I of the draft Convention

Union of Soviet Socialist Republics

May 26, 1958

604

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Annex IV 1

Travaux Préparatoires (New York Convention) Document Number

Document Title

Document Originator

Document Date

E/CONF.26/L.21

Israel: proposed amendment to the United Kingdom amendment to Article II of the draft Convention

Israel

May 27, 1958

E/CONF.26/L.22

United Kingdom: proposed amendment to Article III of the draft Convention

United Kingdom

May 27, 1958

E/CONF.26/L.23

United Kingdom: proposed amendments to all Articles from III onwards

United Kingdom

May 27, 1958

E/CONF.26/L.24

United Kingdom: proposed amendment to Article IV

United Kingdom

May 27, 1958

E/CONF.26/L.25

Austria: proposed amendment to Article III, sub-paragraph (b)

Austria

May 27, 1958

E/CONF.26/L.26

Austria: proposed amendment to Article I, paragraph 1, of the draft Convention

Austria

May 27, 1958

E/CONF.26/L.27

Norway: amendments to the draft Convention

Norway

May 27, 1958

Norway

May 27, 1958

[Deletion of Article I, paragraph 2, and suggestion of new article] E/CONF.26/L.28

Norway: proposed amendment to the draft Convention [Deletion of Article X, paragraph 2, and suggestion of new article]

E/CONF.26/L.29

Yugoslavia: amendment to Article I, paragraph 1 of the draft Convention

Yugoslavia

May 27, 1958

E/CONF.26/L.30

Switzerland: amendment to article III(b) of the draft Convention (E/2704/Rev.1) as amended by the Netherlands amendment (E/CONF.26/L.17)

Switzerland

May 27, 1958

E/CONF.26/L.29/ Corr.1

Yugoslavia: amendment to Article I, paragraph 1, of the draft Convention

Yugoslavia

May 28, 1958

E/CONF.26/C.1/L.6

United Kingdom, USSR: proposed amendment to Article 1, paragraph 1, of the draft Convention

United Kingdom, Union of Soviet Socialist Republics

May 28, 1958

605

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Annex IV 1

New York Convention

Document Number

Document Title

Document Originator

Document Date

E/CONF.26/C.3/L.1

Additional Protocol on Arbitration Agreements – Sweden: draft submitted for consideration by Working Party II

Sweden

May 28, 1958

E/CONF.26/L.31

Israel: amendments to amendments proposed by the Netherlands (E/CONF.26/L.17) to Articles III, IV and V of the Draft Convention

Israel

May 28, 1958

E/CONF.26/L.32

France: Amendment to Article IV of the draft Convention (E/2704 and Corr.1) as amended by the Netherlands amendment (E/CONF.26/L.17)

France

May 28, 1958

E/CONF.26/L.34

Federal Republic of Germany: amendments to articles III to V of the draft Convention

Federal Republic of Germany

May 28, 1958

E/CONF.26/L.35

Yugoslavia: amendment to articles III and IV of the draft Convention

Yugoslavia

May 28, 1958

B.3. Comparison of Drafts Relating to Articles III, IV and V of the Draft Convention, May 29, 1958 E/CONF.26/L.33

Comparison of drafts relating to articles III, IV and V before the Conference

Committee, France, Israel, Netherlands, Pakistan, Sweden, United Kingdom

May 29, 1958

E/CONF.26/L.33/ Rev.1

Comparison of drafts relating to Articles III, IV and V

Committee, France, Federal Republic of Germany, Israel, Italy, Japan, Netherlands, Pakistan, Poland, Sweden, Switzerland, United Kingdom, Yugoslavia

May 29, 1958

B.4. Statement Submitted by the Observer of the Hague Conference on Private International Law E/CONF.26/L.36

606

Statement submitted by the Observer of the Hague Conference on Private International Law

Observer of the Hague Conference on Private International Law

May 28, 1958

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Annex IV 1

Travaux Préparatoires (New York Convention) Document Number

Document Title

Document Originator

Document Date

B.5. Further Amendments to the Draft Convention Submitted by Governmental Delegations, May 29 to June 3, 1958 E/CONF.26/L.37

Brazil: amendment to article III of the draft Convention

Brazil

May 29, 1958

E/CONF.26/L.38

Italy: Amendment to the Netherlands amendment (E/CONF.26/L.17) to Article IV of the draft Convention

Italy

May 29, 1958

E/CONF.26/L.39

Yugoslavia: amendment to the Netherlands amendment to article IV of the draft Convention (E/CONF.26/L.17)

Yugoslavia

May 29, 1958

E/CONF.26/L.40

France, Federal Republic of Germany and Netherlands: working paper on Articles III, IV and V of the draft Convention

France, Federal Republic of Germany, Netherlands

June 2, 1958

E/CONF.26/L.41

Italy: reservations with respect to the scope of the Convention (Article I)

Italy

June 2, 1958

E/CONF.26/L.37/ Rev.1

Brazil: amendment to article IV(1) of the text proposed by Working Party III (E/CONF.26/L.43)

Brazil

June 3, 1958

E/CONF.26/L.44

Belgium: amendment to Article VI of the draft Convention

Belgium

June 3, 1958

B.6. Reports of Working Party I, June 2 to 4, 1958 E/CONF.26/L.42

Report of Working Party No. 1 on Article I, paragraph 1 and Article II of the draft Convention (E/2704 and Corr.1)

Working Party No. 1

June 2, 1958

E/CONF.26/L.42/ Corr.1

Report of Working Party No. 1 on Article I, paragraph 1 and Article II of the draft Convention (E/2704 and Corr.1): Corrigendum

Working Party No. 1

June 2, 1958

E/CONF.26/L.49

Report of Working Party No. 1 on Reservations

Working Party No. 1

June 4, 1958

B.7. Text of Articles III, IV and V of the Draft Convention Proposed by Working Party III, June 3, 1958 E/CONF.26/L.43

Text of Articles III, IV and V of the draft Convention proposed by the Working Party for adoption of the Conference

Working Party No. 3

June 3, 1958

607

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Annex IV 1 Document Number

New York Convention Document Title

Document Originator

Document Date

B.8. Text of Additional Protocol on the Validity of Arbitral Agreements Submitted by the Working Party No. 2, June 5, 1958 E/CONF.26/L.52

Text of Additional Protocol on the Validity of Arbitral Agreements Submitted by the Working Party No. 2

Working Party No. 2

June 5, 1958

B.9. Amendments by Governmental Delegations to the Drafts Submitted by the Working Parties and Further Suggested Drafts, June 3 to 5, 1958 E/CONF.26/L.45

Yugoslavia: amendment to Article IV of the draft Convention proposed by the Working Party (E/CONF.26/L.43)

Yugoslavia

June 3, 1958

E/CONF.26/C.3/L.3

Belgium: working paper on the draft Supplementary Protocol

Belgium

June 3, 1958

E/CONF.26/L.53

Sweden: Proposal for an Article IV in the Additional Protocol

Sweden

June 5, 1958

E/CONF.26/L.54

Netherlands: Amendment to proposal made by Working Party No. 2 (E/CONF.26/L.52)

Netherlands

June 5, 1958

E/CONF.26/L.55

Yugoslavia: Amendment to Article XI of the draft Convention (E/2704 and Corr.1)

Yugoslavia

June 5, 1958

E/CONF.26/L.56

Union of Soviet Socialist Republics: amendment to Article XIII of the draft Convention (E/2704)

Union of Soviet Socialist Republics

June 5, 1958

B.10. Text of Articles Adopted by the Conference, June 4 to 6, 1958 E/CONF.26/L.46

Text of Article I, paragraph 1, of the Convention as adopted by the Conference at its 16th meeting

Conference

June 4, 1958

E/CONF.26/L.47

Text of Article II of the Convention as adopted by the Conference at its 16th meeting

Conference

June 4, 1958

E/CONF.26/L.48

Text of Articles III, IV and V of the draft Convention as adopted by the Conference at its 17th meeting

Conference

June 4, 1958

E/CONF.26/L.50

Text of Article VI of the draft Convention as adopted by the Conference at its 18th meeting

Conference

June 4, 1958

E/CONF.26/L.51

Text of Article VII of the Convention as adopted by the Conference at its 19th meeting

Conference

June 4, 1958

608

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Annex IV 1

Travaux Préparatoires (New York Convention) Document Number

Document Title

Document Originator

Document Date

E/CONF.26/L.57

Texts of Articles VIII to XV of the draft Convention as adopted by the Conference at its 20th and 21st meetings

Conference

June 5, 1958

E/CONF.26/L.58

Text of Article I, paragraph 2, of the Convention as adopted by the Conference at its 21st meeting

Conference

June 6, 1958

E/CONF.26/L.59

Text of new article to be included in the Convention, adopted by the Conference at its 21st meeting

Conference

June 6, 1958

E/CONF.26/L.60

Consideration of other measures for increasing the effectiveness of arbitration in the settlement of private law disputes (Item 5 on the Agenda) – Report of the Committee on Other Measures

Rapporteur: Mr. Edmund F. Becker (United States)

June 6, 1958

B.11. Text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards as Provisionally Approved by the Drafting Committee, June 6 to 9, 1958 E/CONF.26/L.61

Text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards as provisionally approved by the Drafting Committee on 6 June 1958

Drafting Committee June 6, 1958

E/CONF.26/8

Text of Convention on the Recognition and Enforcement of Foreign Arbitral Awards as approved by the Drafting Committee on 9 June 1958

Drafting Committee June 9, 1958

B.12. New Text of Articles I(3), V(1)(a), (b) and (e) Adopted by the Conference at its 23rd Meeting, June 9, 1958 E/CONF.26/L.63

New text of Articles I(3), V(1)(a), (b) and (e) adopted by the Conference at its 23rd meeting

Conference

June 9, 1958

B.13. Draft Final Act of the United Nations Conference on International Commercial Arbitration E/CONF.26/L.62

Draft Final Act of the United Nations Conference on International Commercial Arbitration

Conference

June 6, 1958

609

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Annex IV 1 Document Number

New York Convention Document Title

Document Originator

Document Date

B.14. Final Act and Convention on the Recognition and Enforcement of Foreign Arbitral Awards E/CONF.26/8/Rev.1

Final Act and Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Conference

June 10, 1958

C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, May 20 to June 10, 1958 E/CONF.26/SR.1

Summary record of the first meeting held at Headquarters, New York, on Tuesday, 20 May 1958, at 3.30 p.m.

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

[Opening of the Conference, adoption of the agenda, adoption of the rules of procedure] E/CONF.26/SR.2

Summary record of the second meeting held at Headquarters, New York, on Wednesday, 21 May 1958, at 10.55 a.m. [Adoption of the rules of procedure (continued), consideration of the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards (E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4)]

E/CONF.26/SR.3

Summary record of the third meeting held at Headquarters, New York, on Wednesday, 21 May 1958, at 2.50 p.m. [E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7]

E/CONF.26/SR.4

Summary record of the fourth meeting held at Headquarters, New York, on Thursday, 22 May 1958, at 10.45 a.m. [E/2704 and Corr.1, E/CONF.26/2, E/CONF.26/3 and Add.1, E/CONF.26/7]

610

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Annex IV 1

Travaux Préparatoires (New York Convention) Document Number

Document Title

Document Originator

Document Date

E/CONF.26/SR.5

Summary record of the fifth meeting held at Headquarters, New York, on Thursday, 22 May 1958, at 2.50 p.m.

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

[E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/L.6 and L.9] E/CONF.26/SR.6

Summary record of the sixth meeting held at Headquarters, New York, on Friday, 23 May 1958, at 10.45 a.m. [E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/L.6 to L.12]

E/CONF.26/SR.7

Summary record of the seventh meeting held at Headquarters, New York, on Friday, 23 May 1958, at 2.45 p.m. [E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/L.6 to 13]

E/CONF.26/SR.8

Summary record of the eighth meeting held at Headquarters, New York, on Monday, 26 May 1958, at 11.20 a.m. [E/2704 and Corr.1, E/CONF.26/L.10]

E/CONF.26/SR.9

Summary record of the ninth meeting held at Headquarters, New York, on Monday, 26 May 1958, at 2.45 p.m. [E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/L.7, L.8, L.12, L.14, L.16]

E/CONF.26/SR.10

Summary record of the tenth meeting held at Headquarters, New York, on Tuesday, 27 May 1958, at 11.25 a.m. [E/2704 and Corr.1, E/CONF.26/2, E/CONF.26/L.11 and L.21]

611

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Annex IV 1

New York Convention

Document Number

Document Title

Document Originator

Document Date

E/CONF.26/SR.11

Summary record of the eleventh meeting held at Headquarters, New York, on Tuesday, 27 May 1958, at 2.45 p.m.

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

[E/2704/Rev.1, E/2822 and Add.1–6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/L.6 to L.31] E/CONF.26/SR.12

Summary record of the twelfth meeting held at Headquarters, New York, on Wednesday, 28 May 1958, at 11.45 a.m. [E/2704 and Corr.1, E/CONF.26/7, E/CONF.26/L.8 and Corr.1, L.15/Rev.1, L.16, L.19, L.22, L.31 to L.34]

E/CONF.26/SR.13

Summary record of the thirteenth meeting held at Headquarters, New York, on Wednesday, 28 May 1958, at 2.45 p.m. [E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/L.8 and Corr.1, L.15/Rev.1, L.16, L.17, L.22 to L.25, L.30 to L.36]

E/CONF.26/SR.14

Summary record of the fourteenth meeting held at Headquarters, New York, on Thursday, 29 May 1958, at 11.45 a.m. [E/2704 and Corr.1, E/2822, E/CONF.26/L.17, L.31, L.33/ Rev.1, L.34, L.38 and L.40]

E/CONF.26/SR.15

Summary record of the fifteenth meeting held at Headquarters, New York, on Monday, 2 June 1958, at 11.50 a.m. [E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 3 and Add.1, 4, 7, E/CONF.26/L.7, L.12, L.14, L.26 to L.29, L.41, L.42]

612

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Annex IV 1

Travaux Préparatoires (New York Convention) Document Number

Document Title

Document Originator

Document Date

E/CONF.26/SR.16

Summary record of the sixteenth meeting held at Headquarters, New York, on Tuesday, 3 June 1958, at 11.45 a.m.

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

[E/2704 and Corr.1, E/2822 and Add.1–6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/L.10/Rev.1, L.12, L.13, L.41, L.42] E/CONF.26/SR.17

Summary record of the seventeenth meeting held at Headquarters, New York, on Tuesday, 3 June 1958, at 2.45 p.m. [E/2704 and Corr.1, E/CONF.26/L.31, L.37/Rev.1, L.43 and L.45]

E/CONF.26/SR.18

Summary record of the eighteenth meeting held at Headquarters, New York, on Wednesday, 4 June 1958, at 11.45 a.m. [E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/L.16, L.23, L.44]

E/CONF.26/SR.19

Summary record of the nineteenth meeting held at Headquarters, New York, on Wednesday, 4 June 1958, at 2.50 p.m. [E/2704 and Corr.1 and Add.1 to 6, E/CONF.26/2, 26/3 and Add.1, 26/4, 26/7, E/CONF.26/ L.16, L.28 and L.44]

E/CONF.26/SR.20

Summary record of the twentieth meeting held at Headquarters, New York, on Thursday, 5 June 1958, at 10.40 a.m. [E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, E/CONF.26/3 and Add.1, E/CONF.26/4, E/CONF.26/7, E/CONF.26/L.16, L.28, L.49 and L.52]

613

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Annex IV 1

New York Convention

Document Number

Document Title

Document Originator

Document Date

E/CONF.26/SR.21

Summary record of the twentyfirst meeting held at Headquarters, New York, on Thursday, 5 June 1958, at 2.45 p.m.

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

Conference

Sep. 12, 1958

[E/2704 and Corr.1, E/2822 and Add.1 to 6, E/CONF.26/2, 3 and Add.1, E/CONF.26/4, 7, E/CONF.26/L.16, L.28, L.49, L.52, L.55, L.56] E/CONF.26/SR.22

Summary record of the twentysecond meeting held at Headquarters, New York, on Monday, 9 June 1958, at 12 p.m. [E/CONF.26/4 and 26/6, E/CONF.26/L.60]

E/CONF.26/SR.23

Summary record of the twentythird meeting held at Headquarters, New York, on Monday, 9 June 1958, at 3.30 p.m. [E/CONF.26/L.60; adoption and signature of the Final Act and Convention (E/CONF.26/8, 9, E/CONF.26/L.28, L.49, L.58, L.61)]

E/CONF.26/SR.24

Summary record of the twentyfourth meeting held at Headquarters, New York, on Tuesday, 10 June 1958, at 10.15 a.m. [Adoption and signature of the Final Act and Convention (E/CONF.26/8 and 9, E/CONF.26/L.63), report of the Credentials Committee (E/CONF.26/10)]

E/CONF.26/SR.25

Summary record of the twentyfifth meeting held at Headquarters, New York, on Tuesday, 10 June 1958, at 4.15 p.m. [Signature of the Final Act and the Convention; completion of work]

614

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Annex IV 2

Travaux Préparatoires (UNCITRAL Recommendation)

2. UNCITRAL Recommendation* Document Number

Document Title

Document Originator

Document Date

A. Thirty-Second Session of UNCITRAL, May 17 to June 4, 1999, Vienna A/CN.9/453

Provisional agenda, annotations thereto and scheduling of meetings of the thirty-second session

Secretariat

Mar. 3, 1999

Secretariat

Apr. 6, 1999

UNCITRAL

(none)

[Note by the Secretariat] A/CN.9/460

International commercial arbitration – possible future work in the area of international commercial arbitration [Note by the Secretariat]

A/54/17

Report of UNCITRAL on the work of its thirty-second session (17 May–4 June 1999)

B. Thirty-Second Session of the Working Group on Arbitration, March 20 to 31, 2000, Vienna A/CN.9/WG.II/WP.108

Settlement of commercial disputes – possible uniform rules on certain issues concerning settlement of commercial disputes: conciliation, interim measures of protection, written form for arbitration agreement

SecretaryGeneral

Jan. 14, 2000

A/CN.9/WG.II/WP.107

Provisional Agenda

Working Group on Arbitration

Jan. 17, 2000

A/CN.9/WG.II/WP.108/ Add.1

Addendum

SecretaryGeneral

Jan. 26, 2000

A/CN.9/468

Report of the Working Group on Arbitration on the work of its thirty-second session (Vienna, 20–31 March 2000)

Working Group on Arbitration

Apr. 10, 2000

C. Thirty-Third Session of UNCITRAL, June 12 to July 7, 2000, New York A/CN.9/464

Provisional agenda, annotations thereto and scheduling of meetings of the thirty-third session

UNCITRAL

Apr. 4, 2000

A/CN.9/468

Report of the Working Group on Arbitration on the work of its thirty-second session (Vienna, 20–31 March 2000)

Working Group on Arbitration

Apr. 10, 2000

A/55/17

Report of UNCITRAL on the work of its thirty-third session (12 June–7 July 2000)

UNCITRAL

Aug. 10, 2000

* Documents referenced in this schedule can be downloaded from the UNCITRAL website, https:// uncitral.un.org/ (last visited Apr. 29, 2019).

615

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Annex IV 2 Document Number

New York Convention Document Title

Document Originator

Document Date

D. Thirty-Third Session of the Working Group on Arbitration, November 20 to December 1, 2000, Vienna A/CN.9/WG.II/WP.109

Provisional agenda

Working Group on Arbitration

Sep. 1, 2000

A/CN.9/WG.II/WP.110

Settlement of commercial disputes – possible uniform rules on certain issues concerning settlement of commercial disputes: written form for arbitration agreement, interim measures of protection, conciliation

SecretaryGeneral

Sep. 22, 2000

SecretaryGeneral

Oct. 12, 2000

[Report of the SecretaryGeneral] A/CN.9/WG.II/WP.111

International commercial arbitration – possible future work: court-ordered interim measures of protection in support of arbitration, scope of interim measures that may be issued by arbitral tribunals, validity of agreement to arbitrate [Report of the SecretaryGeneral]

A/CN.9/485

Report of the Working Group on Arbitration on the work of its thirty-third session (Vienna, 20 November–1 December 2000)

Working Group on Arbitration

Dec. 20, 2000

A/CN.9/485/Corr.1

Report of the Working Group on Arbitration on the work of its thirty-third session (Vienna, 20 November–1 December 2000) – Corrigendum

Working Group on Arbitration

Jan. 17, 2001

E. Thirty-Fourth Session of the Working Group on Arbitration, May 21 to June 1, 2001, New York A/CN.9/WG.II/WP.112

Provisional agenda

Working Group on Arbitration

Feb. 28, 2001

A/CN.9/WG.II/WP.113

Settlement of commercial disputes – preparation of uniform provisions on: written form for arbitration agreements, interim measures of protection, and conciliation

SecretaryGeneral

Mar. 23, 2001

SecretaryGeneral

Mar. 9, 2001

[Report of the Secretary-General] A/CN.9/WG.II/WP.113/ Add.1

616

Addendum

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Annex IV 2

Travaux Préparatoires (UNCITRAL Recommendation) Document Number

Document Title

Document Originator

Document Date

A/CN.9/WG.II/WP.113/ Add.1/Corr.1

Addendum – Corrigendum

SecretaryGeneral

Apr. 9, 2001

A/CN.9/487

Report of the Working Group on Arbitration on the work of its thirty-fourth session (New York, 21 May–1 June 2001)

Working Group on Arbitration

June 15, 2001

F. Thirty-Fourth Session of UNCITRAL, June 25 to July 13, 2001, Vienna A/CN.9/485

Report of the Working Group on Arbitration on the work of its thirty-third session (Vienna, 20 November–1 December 2000)

Working Group on Arbitration

Dec. 20, 2000

A/CN.9/485/Corr.1

Report of the Working Group on Arbitration on the work of its thirty-third session (Vienna, 20 November–1 December 2000) – Corrigendum

Working Group on Arbitration

Jan. 17, 2001

A/CN.9/482

Provisional agenda, annotations thereto and scheduling of meetings of the thirty-fourth session

UNCITRAL

Apr. 17, 2001

A/CN.9/487

Report of the Working Group on Arbitration on the work of its thirty-fourth session (New York, 21 May–1 June 2001)

Working Group on Arbitration

June 15, 2001

A/56/17

Report of UNCITRAL on its thirty-fourth session (25 June–13 July 2001)

UNCITRAL

July 27, 2001

A/56/17/Corr.3(SUPP)

Corrigendum

UNCITRAL

Nov. 13, 2001

G. Thirty-Sixth Session of the Working Group on Arbitration, March 4 to 8, 2002, New York A/CN.9/WG.II/WP.117

Provisional Agenda

Working Group on Arbitration

Dec. 18, 2001

A/CN.9/WG.II/WP.119

Settlement of commercial disputes – preparation of uniform provisions on interim measures of protection

Secretariat

Jan. 30, 2002

Secretariat

Feb. 6, 2002

Working Group on Arbitration

Apr. 12, 2002

[Note by the Secretariat] A/CN.9/WG.II/WP.118

Settlement of commercial disputes – preparation of uniform provisions on written form for arbitration agreements [Note by the Secretariat]

A/CN.9/508

Report of the Working Group on Arbitration on the work of its thirty-sixth session (New York, 4–8 March 2002)

617

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Annex IV 2 Document Number

New York Convention Document Title

Document Originator

Document Date

H. Thirty-Fifth Session of UNCITRAL, June 17 to 28, 2002, New York A/CN.9/503

Provisional agenda, annotations thereto and scheduling of meetings of the thirty-fifth session

UNCITRAL

Mar. 26, 2002

A/CN.9/508

Report of the Working Group on Arbitration on the work of its thirty-sixth session (New York, 4–8 March 2002)

Working Group on Arbitration

Apr. 12, 2002

A/57/17

Report of UNCITRAL on its thirty-fifth session (17–28 June 2002)

UNCITRAL

July 18, 2002

I. Thirty-Seventh Session of UNCITRAL, June 14 to July 2, 2004, New York A/CN.9/545

Report of the Working Group on Arbitration on the work of its thirty-ninth session (Vienna, 10–14 November 2003)

Working Group on Arbitration

Dec. 8, 2003

A/CN.9/541

Provisional agenda, annotations thereto and scheduling of meetings of the thirty-seventh session

UNCITRAL

Apr. 20, 2004

A/59/17

Report of UNCITRAL on its thirty-seventh session (14–25 June 2004)

UNCITRAL

July 9, 2004

J. Forty-Third session of the Working Group on Arbitration and Conciliation, October 3 to 7, 2005, Vienna A/CN.9/WG.II/WP.137

Settlement of commercial disputes – preparation of uniform provisions on written form for arbitration agreements

Mexico

Apr. 20, 2005

Proposal by the Mexican Delegation A/CN.9/WG.II/WP.135

Annotated provisional agenda

Working Group on Arbitration and Conciliation

July 19, 2005

A/CN.9/WG.II/WP.136

Settlement of commercial disputes – preparation of a model legislative provision on written form for the arbitration agreement

Secretariat

July 19, 2005

Mexico

Sep. 20, 2005

[Note by the Secretariat] A/CN.9/WG.II/WP.137/ Add.1

Settlement of commercial disputes – preparation of uniform provisions on written form for arbitration agreements Amendment to proposal by the Mexican Delegation

618

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Annex IV 2

Travaux Préparatoires (UNCITRAL Recommendation) Document Number

Document Title

Document Originator

Document Date

A/CN.9/589

Report of the Working Group on Arbitration and Conciliation on the work of its forty-third session (Vienna, 3–7 October 2005)

Working Group on Arbitration and Conciliation

Oct. 12, 2005

K. Forty-Fourth Session of the Working Group on Arbitration and Conciliation, January 23 to 27, 2006, New York A/CN.9/WG.II/WP.140

Annotated provisional agenda

Working Group on Arbitration and Conciliation

Nov. 14, 2005

A/CN.9/WG.II/WP.139

Settlement of commercial disputes – preparation of uniform provisions on written form for arbitration agreements

Secretariat

Dec. 14, 2005

[Article II(2) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards] [Note by the Secretariat] A/CN.9/WG.II/WP.140/ Add.1

Addendum

Working Group on Arbitration and Conciliation

Dec. 16, 2005

A/CN.9/592

Report of the Working Group on Arbitration and Conciliation on the work of its forty-fourth session (New York, 23–27 January 2006)

Working Group on Arbitration and Conciliation

Feb. 27, 2006

L. Thirty-Ninth Session of UNCITRAL, June 19 to July 7, 2006, New York A/CN.9/592

Report of the Working Group on Arbitration and Conciliation on the work of its forty-fourth session (New York, 23–27 January 2006)

Working Group on Arbitration and Conciliation

Feb. 27, 2006

A/CN.9/587

Provisional agenda, annotations thereto and scheduling of meetings of the thirty-ninth session

UNCITRAL

Mar. 3, 2006

A/CN.9/606

Settlement of commercial disputes – form of arbitration agreement

Secretariat

Apr. 13, 2006

Secretariat

Apr. 13, 2006

[Note by the Secretariat] A/CN.9/607

Settlement of commercial disputes – draft declaration regarding the interpretation of Article II, paragraph 2, and Article VII, paragraph 1, of the New York Convention [Note by the Secretariat]

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Annex IV 2

New York Convention

Document Number

Document Title

Document Originator

Document Date

A/CN.9/609

Draft legislative provisions on interim measures and the form of arbitration agreement – Draft declaration regarding the interpretation of articles II(2) and VII(1) of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Secretariat

May 4, 2006

[Comments received from Member States and international organizations] [Note by the Secretariat] A/CN.9/609/Add.1

Addendum 1

Secretariat

May 4, 2006

A/CN.9/609/Add.2

Addendum 2

Secretariat

May 10, 2006

A/CN.9/609/Add.3

Addendum 3

Secretariat

May 12, 2006

A/CN.9/609/Add.4

Addendum 4

Secretariat

May 18, 2006

A/CN.9/609/Add.5

Addendum 5

Secretariat

May 30, 2006

A/CN.9/609/Add.6

Addendum 6

Secretariat

June 19, 2006

A/61/17

Report of UNCITRAL on the work of its thirty-ninth session

UNCITRAL

July 14, 2006

[including as Annex II the Recommendation regarding the interpretation of article II, paragraph 2, and article VII, paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, adopted by the United Nations Commission on International Trade Law on 7 July 2006 at its thirty-ninth session]

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Annex V 1

Geneva Protocol

V. Complementing Conventions 1. Geneva Protocol Protocol on Arbitration Clauses* The undersigned, being duly authorised, declare that they accept, on behalf of the countries which they represent, the following provisions: (1) Each of the Contracting States recognises the validity of an agreement whether relating to existing or future differences between parties subject respectively to the jurisdiction of different Contracting States by which the parties to a contract agree to submit to arbitration all or any differences that may arise in connection with such contract relating to commercial matters or to any other matter capable of settlement by arbitration, whether or not the arbitration is to take place in a country to whose jurisdiction none of the parties is subject. 1Each Contracting State reserves the right to limit the obligation mentioned above to contracts which are considered as commercial under its national law. 2Any Contracting State which avails itself of this right will notify the Secretary-General of the League of Nations, in order that the other Contracting States may be so informed. (2) The arbitral procedure, including the constitution of the arbitral tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place. The Contracting States agree to facilitate all steps in the procedure which require to be taken in their own territories, in accordance with the provisions of their law governing arbitral procedure applicable to existing differences. (3) Each Contracting State undertakes to ensure the execution by its authorities and in accordance with the provisions of its national laws of arbitral awards made in its own territory under the preceding articles. (4) The tribunals of the Contracting Parties, on being seized of a dispute regarding a contract made between persons to whom Article 1 applies and including an Arbitration Agreement whether referring to present or future differences which is valid in virtue of the said article and capable of being carried into effect, shall refer the parties on the application of either of them to the decision of the arbitrators. Such reference shall not prejudice the competence of the judicial tribunals in case the agreement or the arbitration cannot proceed or becomes inoperative. (5) 1The present Protocol, which shall remain open for signature by all States, shall be ratified. 2The ratifications shall be deposited as soon as possible with the Secretary-General of the League of Nations, who shall notify such deposit to all the Signatory States. (6) 1The present Protocol will come into force as soon as two ratifications have been deposited. 2Thereafter it will take effect, in the case of each Contracting State, one month after the notification by the Secretary-General of the deposit of its ratification. (7) 1The present Protocol may be denounced by any Contracting State on giving one year’s notice. 2Denunciation shall be effected by a notification addressed to the Secretary-General of the League, who will immediately transmit copies of such notification to all the other Signatory States and inform them of the date on which it was received. 3The denunciation shall take effect one year after the date on which it was notified to the Secretary-General, and shall operate only in respect of the notifying State. (8) The Contracting States may declare that their acceptance of the present Protocol does not include any or all of the undermentioned territories: that is to say, their colonies, overseas possessions or territories, protectorates or the territories over which they exercise a mandate. 1The said States may subsequently adhere separately on behalf of any territory thus excluded. 2The Secretary-General of the League of Nations shall be informed as soon as possible of such adhesions. 3He shall notify such adhesions to all Signatory States. 4They will take effect one month after the notification by the Secretary-General to all Signatory States. 1The Contracting States may also denounce the Protocol separately on behalf of any of the territories referred to above. 2Article 7 applies to such denunciation. * Signed at Geneva on September 24, 1923 and published in 27 L.N.T.S. 157 (1924). Numbering of clauses added. For a list of Contracting States, Õ Art. VII para. 64 n. 134.

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Annex V 2

New York Convention

A certified copy of the present Protocol will be transmitted by the Secretary-General to all the Contracting States. Done at Geneva on the twenty-fourth day of September, one thousand nine hundred and twenty-three, in a single copy, of which the French and English texts are both authentic, and which will be kept in the archives of the Secretariat of the League.

2. Geneva Convention Convention on the Execution of Foreign Arbitral Awards* Article 1 In the territories of any High Contracting Party to which the present Convention applies, an arbitral award made in pursuance of an agreement whether relating to existing or future differences (hereinafter called “a submission to arbitration”) covered by the Protocol on Arbitration Clauses, opened at Geneva on September 24, 1923, shall be recognised as binding and shall be enforced in accordance with the rules of the procedure of the territory where the award is relied upon, provided that the said award has been made in a territory of one of the High Contracting Parties to which the present Convention applies and between persons who are subject to the jurisdiction of one of the High Contracting Parties. To obtain such recognition or enforcement, it shall, further, be necessary: (a) That the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto; (b) That the subject-matter of the award is capable of settlement by arbitration under the law of the country in which the award is sought to be relied upon; (c) That the award has been made by the Arbitral Tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure; (d) That the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition, appel or pourvoi en cassation (in the countries where such forms of procedure exist) or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending; (e) That the recognition or enforcement of the award is not contrary to the public policy or to the principles of the law of the country in which it is sought to be relied upon. Article 2 Even if the conditions laid down in Article 1 hereof are fulfilled, recognition and enforcement of the award shall be refused if the Court is satisfied: (a) That the award has been annulled in the country in which it was made; (b) That the party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented; (c) That the award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to arbitration. If the award has not covered all the questions submitted to the arbitral tribunal, the competent authority of the country where recognition or enforcement of the award is sought can, if it think fit, postpone such recognition or enforcement or grant it subject to such guarantee as that authority may decide. Article 3 If the party against whom the award has been made proves that, under the law governing the arbitration procedure, there is a ground, other than the grounds referred to in Article 1(a) and (c), and Article 2(b) and (c), entitling him to contest the validity of the award in a Court of Law, the Court may, if it thinks fit, either refuse recognition or enforcement of the award or adjourn the * Signed at Geneva on September 26, 1927 and published in 92 L.N.T.S. 301 (1929). Numbering of clauses added. For a list of Contracting States, Õ Art. VII para. 64 n. 135.

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Geneva Convention

Annex V 2

consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal. Article 4 The party relying upon an award or claiming its enforcement must supply, in particular: (1) The original award or a copy thereof duly authenticated, according to the requirements of the law of the country in which it was made; (2) Documentary or other evidence to prove that the award has become final, in the sense defined in Article 1(d), in the country in which it was made; (3) When necessary, documentary or other evidence to prove that the conditions laid down in Article 1, paragraph 1 and paragraph 2(a) and (c), have been fulfilled. 1A translation of the award and of the other documents mentioned in the** Article into the official language of the country where the award is sought to be relied upon may be demanded. 2Such translation must be certified correct by a diplomatic or consular agent of the country to which the party who seeks to rely upon the award belongs or by a sworn translator of the country where the award is sought to be relied upon. Article 5 The provisions of the above Articles shall not deprive any interested party of the right of availing himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. Article 6 The present Convention applies only to arbitral awards made after the coming-into-force of the Protocol on Arbitration Clauses, opened at Geneva on September 24, 1923. Article 7 The present Convention, which will remain open to the signature of all the signatories of the Protocol of 1923 on Arbitration Clauses, shall be ratified. It may be ratified only on behalf of those Members of the League of Nations and non-Member States on whose behalf the Protocol of 1923 shall have been ratified. Ratifications shall be deposited as soon as possible with the Secretary-General of the League of Nations, who will notify such deposit to all the signatories. Article 8 1The present Convention shall come into force three months after it shall have been ratified on behalf of two High Contracting Parties. 2Thereafter, it shall take effect, in the case of each High Contracting Party, three months after the deposit of the ratification on its behalf with the Secretary-General of the League of Nations. Article 9 1The present Convention may be denounced on behalf of any Member of the League or nonMember State. 2Denunciation shall be notified in writing to the Secretary-General of the League of Nations, who will immediately send a copy thereof, certified to be in conformity with the notification, to all the other Contracting Parties, at the same time informing them of the date on which he received it. The denunciation shall come into force only in respect of the High Contracting Party which shall have notified it and one year after such notification shall have reached the Secretary-General of the League of Nations. The denunciation of the Protocol on Arbitration Clauses shall entail, ipso facto, the denunciation of the present Convention.

**

Should read “this,” cf. the French official text: “cet article.”

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Annex V 3

New York Convention

Article 10 The present Convention does not apply to the Colonies, Protectorates or territories under suzerainty or mandate of any High Contracting Party unless they are specially mentioned. The application of this Convention to one or more of such Colonies, Protectorates or territories to which the Protocol on Arbitration Clauses, opened at Geneva on September 24, 1923, applies, can be affected*** at any time by means of a declaration addressed to the Secretary-General of the League of Nations by one of the High Contracting Parties. Such declaration shall take effect three months after the deposit thereof. 1The High Contracting Parties can at any time denounce the Convention for all or any of the Colonies, Protectorates or territories referred to above. 2Article 9 hereof applies to such denunciation. Article 11 A certified copy of the present Convention shall be transmitted by the Secretary-General of the League of Nations to every Member of the League of Nations and to every non-Member State which signs the same. In faith whereof the above-named Plenipotentiaries have signed the present Convention. Done at Geneva, on the twenty-sixth day of September one thousand nine hundred and twentyseven, in a single copy, of which the English and French texts are both authentic, and which will be kept in the archives of the League of Nations.

3. European Convention European Convention on International Commercial Arbitration* THE UNDERSIGNED, DULY authorized, CONVENED under the auspices of the Economic Commission for Europe of the United Nations, HAVING NOTED that on 10th June 1958 at the United Nations Conference on International Commercial Arbitration has been signed in New York a Convention on the Recognition and Enforcement of Foreign Arbitral Awards, DESIROUS of promoting the development of European trade by, as far as possible, removing certain difficulties that may impede the organization and operation of international commercial arbitration in relations between physical or legal persons of different European countries, HAVE AGREED on the following provisions: Article I. Scope of the Convention 1. This Convention shall apply: (a) to arbitration agreements concluded for the purpose of settling disputes arising from international trade between physical or legal persons having, when concluding the agreement, their habitual place of residence or their seat in different Contracting States; (b) to arbitral procedures and awards based on agreements referred to in paragraph 1(a) above. 2. For the purpose of this Convention, (a) the term “arbitration agreement” shall mean either an arbitral clause in a contract or an arbitration agreement, the contract or arbitration agreement being signed by the parties, or contained in an exchange of letters, telegrams, or in a communication by teleprinter and, in relations between States whose laws do not require that an arbitration agreement be made in writing, any arbitration agreement concluded in the form authorized by these laws; (b) the term “arbitration” shall mean not only settlement by arbitrators appointed for each case (ad hoc arbitration) but also by permanent arbitral institutions; (c) the term “seat” shall mean the place of the situation of the establishment that has made the arbitration agreement. Should read “effected,” cf. the French official text: “être effectuée.” Done at Geneva on April 21, 1961 and published in 484 U.N.T.S. 349 (1965). Numbering of clauses added. For a list of Contracting States, Õ Art. VII para. 77 n. 172. *** *

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European Convention

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Article II. Right of legal persons of public law to resort to arbitration 1. In the cases referred to in Article I, paragraph 1, of this Convention, legal persons considered by the law which is applicable to them as “legal persons of public law” have the right to conclude valid arbitration agreements. 2. On signing, ratifying or acceding to this Convention any State shall be entitled to declare that it limits the above faculty to such conditions as may be stated in its declaration. Article III. Right of foreign nationals to be designated as arbitrators In arbitration covered by this Convention, foreign nationals may be designated as arbitrators. Article IV. Organization of the arbitration 1. The parties to an arbitration agreement shall be free to submit their disputes: (a) to a permanent arbitral institution; in this case, the arbitration proceedings shall be held in conformity with the rules of the said institution; (b) to an ad hoc arbitral procedure; in this case, they shall be free inter alia (i) to appoint arbitrators or to establish means for their appointment in the event of an actual dispute; (ii) to determine the place of arbitration; and (iii) to lay down the procedure to be followed by the arbitrators. 2. 1Where the parties have agreed to submit any disputes to an ad hoc arbitration, and where within thirty days of the notification of the request for arbitration to the respondent one of the parties fails to appoint his arbitrator, the latter shall, unless otherwise provided, be appointed at the request of the other party by the President of the competent Chamber of Commerce of the country of the defaulting party’s habitual place of residence or seat at the time of the introduction of the request for arbitration. 2This paragraph shall also apply to the replacement of the arbitrator(s) appointed by one of the parties or by the President of the Chamber of Commerce above referred to. 3. 1Where the parties have agreed to submit any disputes to an ad hoc arbitration by one or more arbitrators and the arbitration agreement contains no indication regarding the organization of the arbitration, as mentioned in paragraph 1 of this article, the necessary steps shall be taken by the arbitrator(s) already appointed, unless the parties are able to agree thereon and without prejudice to the case referred to in paragraph 2 above. 2Where the parties cannot agree on the appointment of the sole arbitrator or where the arbitrators appointed cannot agree on the measures to be taken, the claimant shall apply for the necessary action, where the place of arbitration has been agreed upon by the parties, at his option to the President of the Chamber of Commerce of the place of arbitration agreed upon or to the President of the competent Chamber of Commerce of the respondent’s habitual place of residence or seat at the time of the introduction of the request for arbitration. 3Where such a place has not been agreed upon, the claimant shall be entitled at his option to apply for the necessary action either to the President of the competent Chamber of Commerce of the country of the respondent’s habitual place of residence or seat at the time of the introduction of the request for arbitration, or to the Special Committee whose composition and procedure are specified in the Annex to this Convention. 4Where the claimant fails to exercise the rights given to him under this paragraph the respondent or the arbitrator(s) shall be entitled to do so. 4. When seized of a request the President or the Special Committee shall be entitled as need be: (a) to appoint the sole arbitrator, presiding arbitrator, umpire, or referee; (b) to replace the arbitrator(s) appointed under any procedure other than that referred to in paragraph 2 above; (c) to determine the place of arbitration, provided that the arbitrator(s) may fix another place of arbitration; (d) to establish directly or by reference to the rules and statutes of a permanent arbitral institution the rules of procedure to be followed by the arbitrator(s), provided that the arbitrators have not established these rules themselves in the absence of any agreement thereon between the parties. 5. Where the parties have agreed to submit their disputes to a permanent arbitral institution without determining the institution in question and cannot agree thereon, the claimant may

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Annex V 3

New York Convention

request the determination of such institution in conformity with the procedure referred to in paragraph 3 above. 6. 1Where the arbitration agreement does not specify the mode of arbitration (arbitration by a permanent arbitral institution or an ad hoc arbitration) to which the parties have agreed to submit their dispute, and where the parties cannot agree thereon, the claimant shall be entitled to have recourse in this case to the procedure referred to in paragraph 3 above to determine the question. 2The President of the competent Chamber of Commerce or the Special Committee shall be entitled either to refer the parties to a permanent arbitral institution or to request the parties to appoint their arbitrators within such time-limits as the President of the competent Chamber of Commerce or the Special Committee may have fixed and to agree within such time-limits on the necessary measures for the functioning of the arbitration. 3In the latter case, the provisions of paragraphs 2, 3 and 4 of this Article shall apply. 7. Where within a period of sixty days from the moment when he was requested to fulfil one of the functions set out in paragraphs 2, 3, 4, 5 and 6 of this Article, the President of the Chamber of Commerce designated by virtue of these paragraphs has not fulfilled one of these functions, the party requesting shall be entitled to ask the Special Committee to do so. Article V. Plea as to arbitral jurisdiction 1. 1The party which intends to raise a plea as to the arbitrator’s jurisdiction based on the fact that the arbitration agreement was either non-existent or null and void or had lapsed shall do so during the arbitration proceedings, not later than the delivery of its statement of claim or defence relating to the substance of the dispute; those based on the fact that an arbitrator has exceeded his terms of reference shall be raised during the arbitration proceedings as soon as the question on which the arbitrator is alleged to have no jurisdiction is raised during the arbitral procedure. 2Where the delay in raising the plea is due to a cause which the arbitrator deems justified, the arbitrator shall declare the plea admissible. 2. 1Pleas to the jurisdiction referred to in paragraph 1 above that have not been raised during the time-limits there referred to, may not be entered either during a subsequent stage of the arbitral proceedings where they are pleas left to the sole discretion of the parties under the law applicable by the arbitrator, or during subsequent court proceedings concerning the substance or the enforcement of the award where such pleas are left to the discretion of the parties under the rule of conflict of the court seized of the substance of the dispute or the enforcement of the award. 2The arbitrator’s decision on the delay in raising the plea, will, however, be subject to judicial control. 3. Subject to any subsequent judicial control provided for under the lex fori, the arbitrator whose jurisdiction is called in question shall be entitled to proceed with the arbitration, to rule on his own jurisdiction and to decide upon the existence or the validity of the arbitration agreement or of the contract of which the agreement forms part. Article VI. Jurisdiction of courts of law 1. A plea as to the jurisdiction of the court made before the court seized by either party to the arbitration agreement, on the basis of the fact that an arbitration agreement exists shall, under penalty of estoppel, be presented by the respondent before or at the same time as the presentation of his substantial defence, depending upon whether the law of the court seized regards this plea as one of procedure or of substance. 2. 1In taking a decision concerning the existence or the validity of an arbitration agreement, courts of Contracting States shall examine the validity of such agreement with reference to the capacity of the parties, under the law applicable to them, and with reference to other questions (a) under the law to which the parties have subjected their arbitration agreement; (b) failing any indication thereon, under the law of the country in which the award is to be made; (c) failing any indication as to the law to which the parties have subjected the agreement, and where at the time when the question is raised in court the country in which the award is to be made cannot be determined, under the competent law by virtue of the rules of conflict of the court seized of the dispute. 2The courts may also refuse recognition of the arbitration agreement if under the law of their country the dispute is not capable of settlement by arbitration.

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European Convention

Annex V 3

3. Where either party to an arbitration agreement has initiated arbitration proceedings before any resort is had to a court, courts of Contracting States subsequently asked to deal with the same subject-matter between the same parties or with the question whether the arbitration agreement was non-existent or null and void or had lapsed, shall stay their ruling on the arbitrator’s jurisdiction until the arbitral award is made, unless they have good and substantial reasons to the contrary. 4. A request for interim measures or measures of conservation addressed to a judicial authority shall not be deemed incompatible with the arbitration agreement, or regarded as a submission of the substance of the case to the court. Article VII. Applicable law 1. 1The parties shall be free to determine, by agreement, the law to be applied by the arbitrators to the substance of the dispute. 2Failing any indication by the parties as to the applicable law, the arbitrators shall apply the proper law under the rule of conflict that the arbitrators deem applicable. 3In both cases the arbitrators shall take account of the terms of the contract and trade usages. 2. The arbitrators shall act as amiables compositeurs if the parties so decide and if they may do so under the law applicable to the arbitration. Article VIII. Reasons for the award The parties shall be presumed to have agreed that reasons shall be given for the award unless they (a) either expressly declare that reasons shall not be given; or (b) have assented to an arbitral procedure under which it is not customary to give reasons for awards, provided that in this case neither party requests before the end of the hearing, or if there has not been a hearing then before the making of the award, that reasons be given. Article IX. Setting aside of the arbitral award 1. The setting aside in a Contracting State of an arbitral award covered by this Convention shall only constitute a ground for the refusal of recognition or enforcement in another Contracting State where such setting aside took place in a State in which, or under the law of which, the award has been made and for one of the following reasons: (a) the parties to the arbitration agreement were under the law applicable to them, under some incapacity or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made, or (b) the party requesting the setting aside of the award was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration need not be set aside; (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or failing such agreement, with the provisions of Article IV of this Convention. 2. In relations between Contracting States that are also parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10th June 1958, paragraph 1 of this Article limits the application of Article V(1)(e) of the New York Convention solely to the cases of setting aside set out under paragraph 1 above. Article X. Final clauses 1. This Convention is open for signature or accession by countries members of the Economic Commission for Europe and countries admitted to the Commission in a consultative capacity under paragraph 8 of the Commission’s terms of reference.

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Annex V 3

New York Convention

2. Such countries as may participate in certain activities of the Economic Commission for Europe in accordance with paragraph 11 of the Commission’s terms of reference may become Contracting Parties to this Convention by acceding thereto after its entry into force. 3. 1The Convention shall be open for signature until 31 December 1961 inclusive. 2Thereafter, it shall be open for accession. 4. This Convention shall be ratified. 5. Ratification or accession shall be effected by the deposit of an instrument with the SecretaryGeneral of the United Nations. 6. When signing, ratifying or acceding to this Convention, the Contracting Parties shall communicate to the Secretary-General of the United Nations a list of the Chambers of Commerce or other institutions in their country who will exercise the functions conferred by virtue of Article IV of this Convention on Presidents of the competent Chambers of Commerce. 7. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning arbitration entered into by Contracting States. 8. 1This Convention shall come into force on the ninetieth day after five of the countries referred to in paragraph 1 above have deposited their instruments of ratification or accession. 2For any country ratifying or acceding to it later this Convention shall enter into force on the ninetieth day after the said country has deposited its instrument of ratification or accession. 9. 1Any Contracting Party may denounce this Convention by so notifying the Secretary-General of the United Nations. 2Denunciation shall take effect twelve months after the date of receipt by the Secretary-General of the notification of denunciation. 10. If, after the entry into force of this Convention, the number of Contracting Parties is reduced, as a result of denunciations, to less than five, the Convention shall cease to be in force from the date on which the last of such denunciations takes effect. 11. The Secretary-General of the United Nations shall notify the countries referred to in paragraph 1, and the countries which have become Contracting Parties under paragraph 2 above, of (a) declarations made under Article II, paragraph 2; (b) ratifications and accessions under paragraphs 1 and 2 above; (c) communications received in pursuance of paragraph 6 above; (d) the dates of entry into force of this Convention in accordance with paragraph 8 above; (e) denunciations under paragraph 9 above; (f) the termination of this Convention in accordance with paragraph 10 above. 12. After 31 December 1961, the original of this Convention shall be deposited with the Secretary-General of the United Nations, who shall transmit certified true copies to each of the countries mentioned in paragraphs 1 and 2 above. IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed this Convention. DONE at Geneva, this twenty-first day of April, one thousand nine hundred and sixty-one, in a single copy in the English, French, and Russian languages, each text being equally authentic. ANNEX Composition and procedure of the Special Committee referred to in Article IV of the Convention 1. 1The Special Committee referred to in Article IV of the Convention shall consist of two regular members and a Chairman. 2One of the regular members shall be elected by the Chambers of Commerce or other institutions designated, under Article X, paragraph 6, of the Convention, by States in which at the time when the Convention is open to signature National Committees of the International Chamber of Commerce exist, and which at the time of the election are parties to the Convention. 3The other member shall be elected by the Chambers of Commerce or other institutions designated, under Article X, paragraph 6, of the Convention, by States in which at the time when the Convention is open to signature no National Committees of the International Chamber of Commerce exist and which at the time of the election are parties to the Convention. 2. The persons who are to act as Chairman of the Special Committee pursuant to paragraph 7 of this Annex shall also be elected in like manner by the Chambers of Commerce or other institutions referred to in paragraph 1 of this Annex. 3. 1The Chambers of Commerce or other institutions referred to in paragraph 1 of this Annex shall elect alternates at the same time and in the same manner as they elect the Chairman and

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Annex V 4

Panama Convention

other regular members, in case of the temporary inability of the Chairman or regular members to act. 2In the event of the permanent inability to act or of the resignation of a Chairman or of a regular member, then the alternate elected to replace him shall become, as the case may be, the Chairman or regular member, and the group of Chambers of Commerce or other institutions which had elected the alternate who has become Chairman or regular member shall elect another alternate. 4. 1The first elections to the Committee shall be held within ninety days from the date of the deposit of the fifth instrument of ratification or accession. 2Chambers of Commerce and other institutions designated by Signatory States who are not yet parties to the Convention shall also be entitled to take part in these elections. 3If however it should not be possible to hold elections within the prescribed period, the entry into force of paragraphs 3 to 7 of Article IV of the Convention shall be postponed until elections are held as provided for above. 5. 1Subject to the provisions of paragraph 7 below, the members of the Special Committee shall be elected for a term of four years. 2New elections shall be held within the first six months of the fourth year following the previous elections. 3Nevertheless, if a new procedure for the election of the members of the Special Committee has not produced results, the members previously elected shall continue to exercise their functions until the election of new members. 6. 1The results of the elections of the members of the Special Committee shall be communicated to the Secretary-General of the United Nations who shall notify the States referred to in Article X, paragraph 1, of this Convention and the States which have become Contracting Parties under Article X, paragraph 2. 2The Secretary-General shall likewise notify the said States of any postponement and of the entry into force of paragraph 3 to 7 of Article IV of the Convention in pursuance of paragraph 4 of this Annex. 7. 1The persons elected to the office of Chairman shall exercise their functions in rotation, each during a period of two years. 2The question which of these two persons shall act as Chairman during the first two-year period after the entry into force of the Convention shall be decided by the drawing of lots. 3The office of Chairman shall thereafter be vested, for each successive twoyear period, in the person elected Chairman by the group of countries other than that by which the Chairman exercising his functions during the immediately preceding two-year period was elected. 8. 1The reference to the Special Committee of one of the requests referred to in paragraphs 3 to 7 of the aforesaid Article IV shall be addressed to the Executive Secretary of the Economic Commission for Europe. 2The Executive Secretary shall in the first instance lay the request before the member of the Special Committee elected by the group of countries other than that by which the Chairman holding office at the time of the introduction of the request was elected. 3The proposal of the member applied to in the first instance shall be communicated by the Executive Secretary to the other member of the Committee and, if that other member agrees to this proposal, it shall be deemed to be the Committee’s ruling and shall be communicated as such by the Executive Secretary to the person who made the request. 9. 1If the two members of the Special Committee applied to by the Executive Secretary are unable to agree on a ruling by correspondence, the Executive Secretary of the Economic Commission for Europe shall convene a meeting of the said Committee at Geneva in an attempt to secure a unanimous decision on the request. 2In the absence of unanimity, the Committee’s decision shall be given by a majority vote and shall be communicated by the Executive Secretary to the person who made the request. 10. The expenses connected with the Special Committee’s action shall be advanced by the person requesting such action but shall be considered as costs in the cause.

4. Panama Convention Inter-American Convention on International Commercial Arbitration* The Governments of the Member States of the Organization of American States, desirous of concluding a convention on international commercial arbitration, have agreed as follows:

* Concluded at Panama City on January 30, 1975 and published in 1438 U.N.T.S. 345 (1996). Numbering of clauses added. For a list of Contracting States, Õ Art. VII para. 96 n. 214.

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Annex V 4

New York Convention

Article 1 1An agreement in which the parties undertake to submit to arbitral decision any differences that may arise or have arisen between them with respect to a commercial transaction is valid. 2The agreement shall be set forth in an instrument signed by the parties, or in the form of an exchange of letters, telegrams, or telex communications.

Article 2 1Arbitrators shall be appointed in the manner agreed upon by the parties. 2Their appointment may be delegated to a third party, whether a natural or juridical person. 3Arbitrators may be nationals or foreigners. Article 3 In the absence of an express agreement between the parties, the arbitration shall be conducted in accordance with the rules of procedure of the Inter-American Commercial Arbitration Commission. Article 4 1An arbitral decision or award that is not appealable under the applicable law or procedural rules shall have the force of a final judicial judgment. 2Its execution or recognition may be ordered in the same manner as that of decisions handed down by national or foreign ordinary courts, in accordance with the procedural laws of the country where it is to be executed and the provisions of international treaties.

Article 5 1. The recognition and execution of the decision may be refused, at the request of the party against which it is made, only if such party is able to prove to the competent authority of the State in which recognition and execution are requested: a. That the parties to the agreement were subject to some incapacity under the applicable law or that the agreement is not valid under the law to which the parties have submitted it, or, if such law is not specified, under the law of the State in which the decision was made; or b. That the party against which the arbitral decision has been made was not duly notified of the appointment of the arbitrator or of the arbitration procedure to be followed, or was unable, for any other reason, to present his defense; or c. That the decision concerns a dispute not envisaged in the agreement between the parties to submit to arbitration; nevertheless, if the provisions of the decision that refer to issues submitted to arbitration can be separated from those not submitted to arbitration, the former may be recognized and executed; or d. That the constitution of the arbitral tribunal or the arbitration procedure has not been carried out in accordance with the terms of the agreement signed by the parties or, in the absence of such agreement, that the constitution of the arbitral tribunal or the arbitration procedure has not been carried out in accordance with the law of the State where the arbitration took place; or e. That the decision is not yet binding on the parties or has been annulled or suspended by a competent authority of the State in which, or according to the law of which, the decision has been made. 2. The recognition and execution of an arbitral decision may also be refused if the competent authority of the State in which the recognition and execution is requested finds: a. That the subject of the dispute cannot be settled by arbitration under the law of that State; or b. That the recognition or execution of the decision would be contrary to the public policy (ordre public) of that State. Article 6 If the competent authority mentioned in Article 5.1.e has been requested to annul or suspend the arbitral decision, the authority before which such decision is invoked may, if it deems it appropriate, postpone a decision on the execution of the arbitral decision and, at the request of the party requesting execution, may also instruct the other party to provide appropriate guaranties.

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Panama Convention

Annex V 4

Article 7 This Convention shall be open for signature by the Member States of the Organization of American States. Article 8 1This Convention is subject to ratification. 2The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States.

Article 9 1This Convention shall remain open for accession by any other State. 2The instruments of accession shall be deposited with the General Secretariat of the Organization of American States.

Article 10 This Convention shall enter into force on the thirtieth day following the date of deposit of the second instrument of ratification. For each State ratifying or acceding to the Convention after the deposit of the second instrument of ratification, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. Article 11 If a State Party has two or more territorial units in which different systems of law apply in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them. 1Such declaration may be modified by subsequent declarations, which shall expressly indicate the territorial unit or units to which the Convention applies. 2Such subsequent declarations shall be transmitted to the General Secretariat of the Organization of American States, and shall become effective thirty days after the date of their receipt. Article 12 1This Convention shall remain in force indefinitely, but any of the States Parties may denounce it. 2The instrument of denunciation shall be deposited with the General Secretariat of the Organization of American States. 3After one year from the date of deposit of the instrument of denunciation, the Convention shall no longer be in effect for the denouncing State, but shall remain in effect for the other States Parties.

Article 13 1The original instrument of this Convention, the English, French, Portuguese and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American States. 2The Secretariat shall notify the Member States of the Organization of American States and the States that have acceded to the Convention of the signatures, deposits of instruments of ratification, accession, and denunciation as well as of reservations, if any. 3It shall also transmit the declarations referred to in Article 11 of this Convention. In witness whereof the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed this Convention. Done at Panama City, Republic of Panama, this thirtieth day of January one thousand nine hundred and seventy-five.

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Table of Cases and Awards I. Table of Cases This table reflects the case law as referred to throughout the commentary. Several cases are also available from other sources, in particular from the freely accessible websites www.newyorkconvention1958.org, www.uncitral.un.org/en/case_law and www.worldlii.org.

Albania Court

Date

Source

Art. para.

Gjykata e Lartë

June 1, 2011

XLIII Y.B. Com. Arb. 399 (2018)

III 13, 18, IV 13, 26, 32

Gjykata e Apelit Tirana

Feb. 28, 2017

XLIII Y.B. Com. Arb. 413 (2018)

IV 13

Argentina Court

Date

Source

Art. para.

Cámara Nacional de Apelaciones en lo Civil y Comercial Federal

May 8, 2007

XXXIII Y.B. Com. Arb. 322 (2008)

V 125

Cámara Federal de Apelaciones de Mar del Plata

Dec. 4, 2009

XXXV Y.B. Com. Arb. 318 (2010)

IV 34

Australia Parties

Court

Date

Source

Art. para.

Altain Khuder LLC v. IMC Mining Inc.

Sup. Ct. of Victoria

Jan. 28, 2011

[2011] VSC 12 = XXXVI Y.B. Com. Arb. 242 (2011)

IV 2, V 168

Antclizo Shipping Corp. v. The Food Corp. of India

Sup. Ct. of Western Australia

Nov. 6, 1998

[1998] WASC 342

III 14

Brali v. Hyundai Corp.

Sup. Ct. of New South Wales

Oct. 17, 1988

84 ALR 176 = XV Y.B. Com. Arb. 360 (1990)

I 49, V 414

Comandate v. Pan Australia Shipping Pty Ltd.

Federal Court of Australia, New South Wales District Registry

Dec. 20, 2006

[2006] FCAFC 192 = XXXII Y.B. Com. Arb. 224 (2007)

II 191, 192, 219, 223, 261, 284, 309

Commonwealth Development Corp. v. Austin John Montague

Sup. Ct. of Queensland

June 27, 2000

[2000] QCA 252 = XXVI Y.B. Com. Arb. 744 (2001)

I 62, II 96

ESCO Corp. v. Bradken Resources Pty Ltd.

Federal Court of Australia

Aug. 9, 2011

[2011] FCA 905

VI 19, 23

Esso Australia Resources Ltd. v. Plowman

High Court

Apr. 7, 1995

183 C.L.R. 10 = XXI Y.B. Com. Arb. 137 (1996)

III 13

Giedo van der Garde BV v. Sauber Motorsport AG

Sup. Ct. of Victoria, Commercial Court

Mar. 11, 2015

XL Y.B. Com. Arb. 372 (2015)

V 539

Giedo van der Garde BV v. Sauber Motorsport AG

Sup. Ct. of Victoria, Court of Appeal

Mar. 25, 2015

XL Y.B. Com. Arb. 372 (2015)

V 539

Hi-Fert Pty Ltd. v. Kiukiang Maritime Carriers

Federal Court of Australia, New South Wales District Registry

June 30, 1997

XXIII Y.B. Com. Arb. 606 (1998)

II 67

HIH Casualty & General Insurance Ltd. (in liquidation) v. R J Wallace

Sup. Ct. of New South Wales

Nov. 3, 2006

[2006] NSWSC 1150

II 104

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Cases Australia

New York Convention

Parties

Court

Date

Source

Art. para.

Indian Farmers Fertiliser Cooperative Ltd. v. Joseph Isaac Gutnick

Sup. Ct. of Victoria, Commercial Court

Dec. 21, 2015

[2015] VSC 724 = XLI Y.B. Com. Arb. 384 (2016)

III 7, V 567, VI 6

Indian Farmers Fertiliser Cooperative Ltd. v. Joseph Isaac Gutnick

CA of Victoria

Feb. 9, 2016

XLI Y.B. Com. Arb. 388 (2016)

V 567

International Relief and Development, Inc. v. Godfrey Emmanuel Ladu

Federal Court of Australia

Aug. 20, 2014

[2014] FCA 887

V 160

John Francis Davies v. Peter Hodgetts

District Court held at Cairns

July 14, 1997

XXIII Y.B. Com. Arb. 619 (1998)

II 60

Johnson Ye v. Ronghuo Zeng (A/K/A Andrew Tsang)

Federal Court of Australia, New South Wales District Registry

Nov. 2, 2015

XLI Y.B. Com. Arb. 376 (2016)

VI 18

Lars Hallen v. Sven-Olov Angledal

Sup. Ct. of New South Wales

June 10, 1999

XXIX Y.B. Com. Arb. 520 (2004)

VI 7, 13

LKT Industrial Berhad v. Chun

Sup. Ct. of New South Wales

Sep. 13, 2004

[2004] NSWSC 820

IV 14

ML Ubase Holdings Co. Ltd. v. Trigem Computer Inc.

Sup. Ct. of New South Wales

Mar. 17, 2005

[2005] NSWSC 224 = XXXI Y.B. Com. Arb. 537 (2006)

III 17, IV 13

Paharpur Cooling Towers Ltd. v. Paramount (WA) Ltd.

CA of the Sup. Ct. of Western Australia

May 13, 2008

[2008] WASCA 110

V 208

Resort Condominiums International Inc. v. Ray Bolwell

Sup. Ct. of Queensland

Oct. 29, 1993

118 ALR 655 = 9(4) Mealey’s Int’l Arb. Rep. A-1 (1994) = XX Y.B. Com. Arb. 628 (1995)

I 59, 66, V 27, 359, 369, 373, 547

Stericorp Ltd. v. Stericycle Inc.

Sup. Ct. of Victoria

May 30, 2005

XXXI Y.B. Com. Arb. 549 (2006)

V 456

Toyo Engineering Corp. v. John Holland Pty. Ltd.

Sup. Ct. of Victoria

Dec. 20, 2000

XXVI Y.B. Com. Arb. 750 (2001)

VI 7, 8

Transpac Capital Pte Ltd. v. Buntoro

Sup. Ct. of New South Wales

July 7, 2008

[2008] NSWSC 671 = XXXIII Y.B. Com. Arb. 349 (2008)

IV 2, 13

Traxys Europe SA v. Balaji Coke Industry Pvt Ltd.

Federal Court of Australia

Mar. 23, 2012

[2012] FCA 276

III 10, 17

Uganda Telecom Ltd. v. Hi-Tech Telecom Pty Ltd.

Federal Court of Australia, New South Wales District Registry

Feb. 22, 2011

[2011] FCA 131 = XXXVI Y.B. Com. Arb. 252 (2011)

III 7, V 38, 168, 181, 561

Walter Rau Neusser Oel und Fett AG v. Cross Pacific Trading Ltd.

Federal Court of Australia

Aug. 15, 2005

[2005] FCA 1102

II 261

William Hare UAE LLC v. Aircraft Support Industries Pty Ltd.

Sup. Ct. of New South Wales

Oct. 14, 2014

XL Y.B. Com. Arb. 363 (2015)

V 495, 504, 513, 542, 558

Austria Court

Date

File No.

Source

Art. para.

OGH

Nov. 17, 1965

3 Ob 128/65

I Y.B. Com. Arb. 182 (1976)

IV 32, VII 66, 69

OGH

June 11, 1969

3 Ob 62/69

II Y.B. Com. Arb. 232 (1977)

IV 12, 34

OGH

Nov. 17, 1971

8 Ob 233/71

JBl 1974, 629 = I Y.B. Com. Arb. 183 (1976)

Prel. Rem. 64, II 28, 30, 34, 76, 130

OGH

May 2, 1972

5 Ob 93/72

X Y.B. Com. Arb. 417 (1985)

II 130

OGH

Feb. 21, 1978

3 Ob 120/77

X Y.B. Com. Arb. 418 (1985)

II 58, 99, 102, IV 2, VII 66

OGH

May 11, 1983

3 Ob 30/83

ÖJZ 1983, 519 = X Y.B. Com. Arb. 421 (1985)

V 577

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Table of Cases and Awards

Austria

Cases

Court

Date

File No.

Source

Art. para.

OGH

Sep. 9, 1987

3 Ob 80/87

IPRax 1989, 302 = XV Y.B. Com. Arb. 367 (1990)

II 47, 48, 87

OGH

Sep. 6, 1990

6 Ob 572/90

Unreported, available at https://www.ris.bka.gv.at (last visited Apr. 16, 2019)

V 178

OGH

May 22, 1991

3 Ob 73/91

XXI Y.B. Com. Arb. 521 (1996)

II 75, 76, 156, IV 22

OGH

Oct. 23, 1991

3 Ob 88/91

ZfRV 1992, 234

IV 32, 34

OGH

Nov. 27, 1991

3 Ob 1091/91

IPRax 1992, 331

V 140

OGH

June 25, 1992

7 Ob 545/92

XXII Y.B. Com. Arb. 619 (1997)

I 28, 62, 95

OGH

Oct. 20, 1993

3 Ob 117/93

ÖJZ 1994, 513 = XXIVa Y.B. Com. Arb. 923 (1999)

Prel. Rem. 95

OGH

June 13, 1995

4 Ob 533/95

SZ 68/112, also available at https://www.ris.bka.gv. at (last visited Apr. 24, 2019)

II 249, 258

OGH

May 29, 1996

3 Ob 2097/96

ZfRV 1996, 199

IV 12, 13, 34

OGH

Nov. 26, 1997

3 Ob 320/97y

IPRax 2000, 429 = ZfRV 1998, 23

I 182, IV 13

OGH

Feb. 23, 1998

3 Ob 115/95

IPRax 2000, 314 = Rev. arb. 1999, 385 = XXIVa Y.B. Com. Arb. 919 (1999)

V 393, 579, VII 88

OGH

Nov. 28, 2002

3 Ob 196/02y

RdW 2003, 385

IV 13, 18

OGH

Mar. 18, 2004

2 Ob 53/04i

RdW 2004, 547

II 249

OGH

Jan. 26, 2005

3 Ob 221/04b

IPRax 2006, 496 = XXX Y.B. Com. Arb. 421 (2005)

V 66, 84, 392, 393, 553, 570, VII 20, 88, 89

OGH

Mar. 31, 2005

3 Ob 35/05a

XXXI Y.B. Com. Arb. 583 (2006)

V 154, 174, 191

OGH

Aug. 24, 2005

3 Ob 65/05p

XXXII Y.B. Com. Arb. 254 (2007)

II 156

OGH

Apr. 26, 2006

3 Ob 211/05h

XXXII Y.B. Com. Arb. 259 (2007)

IV 14, 32, 33, 35

OGH

Feb. 22, 2007

3 Ob 281/06d

Unreported, available at https://www.ris.bka.gv.at (last visited Apr. 16, 2019)

V 178

OGH

Oct. 23, 2007

3 Ob 141/07t

XXXIII Y.B. Com. Arb. 354 (2008)

V 162, 183, 336, 525

OGH

Sep. 3, 2008

3 Ob 35/08f

XXXIV Y.B. Com. Arb. 409 (2009)

IV 12, 13, 18, 27

OGH

July 22, 2009

3 Ob 144/09m

ÖJZ 2010, 188 = JBl 2010, 255 = XXXV Y.B. Com. Arb. 328 (2010)

II 283, VII 89

OGH

Sep. 1, 2010

3 Ob 122/10b

RdW 2011, 92 = XXXVI Y.B. Com. Arb. 256 (2011)

V 157, 178

OGH

Oct. 22, 2010

7 Ob 103/10p

Unreported, available at https://www.ris.bka.gv.at (last visited Apr. 12, 2019)

V 475

OGH

Apr. 13, 2011

3 Ob 154/10h

Unreported, available at https://www.ris.bka.gv.at (last visited Apr. 29, 2019)

IV 14, V 317

OGH

Aug. 14, 2011

3 Ob 65/11x

XXXVIII Y.B. Com. Arb. 317 (2013)

IV 2, 9, 12, 13, 18, 28, V 518, 561, 583b

OGH

Aug. 24, 2011

3 Ob 65/11x

EvBl. 2012/9, 69

IV 13, VI 18

OGH

Apr. 18, 2012

3 Ob 38/12b

XXXVIII Y.B. Com. Arb. 322 (2013)

V 139, 177

OGH

Apr. 16, 2013

3 Ob 39/13a

wbl 2013, 621 = XXXIX Y.B. Com. Arb. 347 (2014)

V 355, 358, 364

OGH

Feb. 17, 2016

3 Ob 208/15g

XLI Y.B. Com. Arb. 398 (2016)

IV 18, 32, V 561

OGH

Mar. 1, 2017

5 Ob 72/16y

ZVertriebsR 2017, 397

II 300

OGH

June 7, 2017

3 Ob 10/17t

XLIII Y.B. Com. Arb. 415 (2018)

V 511, 549, 549a, 561, 583b

OLG Wien

Jan. 29, 1981

3 R 211/81

VIII Y.B. Com. Arb. 365 (1983)

V 416

Landesgericht Ried im Innkreis

June 24, 2015

–

XLI Y.B. Com. Arb. 393 (2016)

V 168, 511

635

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Cases Belgium

New York Convention

Belgium Court

Date

Source

Art. para.

Cass.

June 28, 1979

V Y.B. Com. Arb. 257 (1980)

V 419, 462, VII 20

Cass.

June 5, 1998

XXIVa Y.B. Com. Arb. 603 (1999)

I 82, V 353, 360, 361

Cass.

Oct. 15, 2004

XXXI Y.B. Com. Arb. 587 (2006)

II 159, V 462

Cass.

Jan. 14, 2010

XXXIX Y.B. Com. Arb. 352 (2014)

V 462

CA Bruxelles

Oct. 14, 1980

VII Y.B. Com. Arb. 316 (1982)

V 405

CA Bruxelles

Oct. 4, 1985

XIV Y.B. Com. Arb. 618 (1989)

II 159

CA Bruxelles

Jan. 24, 1997

116 JT (1997) 319 = XXII Y.B. Com. Arb. 643 (1997)

IV 13, V 192, 344, VI 7

CA Bruxelles

Aug. 29, 2018

2016/AR/2048, XLIV Y.B. Com. Arb. ___ (2019)

II 65, 66

CA Liège

Sep. 21, 1975

Pas. 1976 II 25

I 62

CA Liège

May 12, 1977

IV Y.B. Com. Arb. 254 (1979)

V 419, 462, VII 65

TPI Bruxelles

Dec. 6, 1988

XV Y.B. Com. Arb. 370 (1990)

XII 11

TPI Bruxelles

Jan. 25, 1996

XXII Y.B. Com. Arb. 643 (1997)

V 1, 21, 69, 557

TPI Bruxelles

Oct. 25, 1997

116 JT (1997) 394

V 143

TPI Bruxelles

Mar. 8, 2007

Rev. arb. 2007, 303

V 517

TPI Bruxelles

Dec. 9, 2016

b-Arbitra 2017, 287

V1

Tribunal de Commerce de Bruxelles

Sep. 13, 1979

VIII Y.B. Com. Arb. 360 (1983)

V 419

Tribunal de Commerce de Bruxelles

Oct. 5, 1994

Rev. arb. 1995, 311

II 89, 159

Tribunal de Commerce de Bruxelles

Sep. 20, 1999

XXV Y.B. Com. Arb. 673 (2000)

II 159

Belize Parties

Court

Date

Source

Art. para.

Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd.

Sup. Ct. of Belize

Aug. 8, 2012

XXXVIII Y.B. Com. Arb. 324 (2013)

III 7, X 28

Attorney General of Belize v. BCB Holdings Ltd. and The Belize Bank Ltd.

Caribbean Court of Justice

July 26, 2013

[2013] CCJ 5 (AJ) = XXXVIII Y.B. Com. Arb. 324 (2013)

V 504, 510, 511, 518, 583b, X 28

The Belize Bank Ltd. v. Attorney General of Belize

Caribbean Court of Justice

Nov. 22, 2017

[2017] CCJ 18 (AJ) = XLIV Y.B. Com. Arb. ___ (2019)

V 580, 583b

Bermuda Parties

Court

Date

Source

Art. para.

Huawei Tech Investment Co. Ltd. v. Sampoerna Strategic Holdings Ltd.

Sup. Ct.

Feb. 14, 2014

XXXIX Y.B. Com. Arb. 354 (2014)

V 5, 41, 199, 549a

Sojuznefteexport v. Joc Oil Ltd.

CA

July 7, 1989

XV Y.B. Com. Arb. 384 (1990)

II 167, III 7, IV 20, V 199, 234

Bosnia and Herzegovina Court

Date

Source

Art. para.

Constitutional Court

May 9, 2006

XXXVII Y.B. Com. Arb. 166 (2012)

V 430

Sup. Ct.

May 19, 2003

XLI Y.B. Com. Arb. 403 (2016)

V 420, 430

636

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Table of Cases and Awards

Canada

Cases

Brazil Court

Date

Source

Art. para.

Superior Tribunal de Justiça

Apr. 19, 2006

XXXVII Y.B. Com. Arb. 173 (2012)

V 157

Superior Tribunal de Justiça

May 17, 2006

XXXIII Y.B. Com. Arb. 371 (2008)

II 85, 102

Superior Tribunal de Justiça

Oct. 18, 2006

XXXVII Y.B. Com. Arb. 177 (2012)

V 586

Superior Tribunal de Justiça

Mar. 3, 2007

XXXIII Y.B. Com. Arb. 371 (2008)

II 85, 102

Superior Tribunal de Justiça

Aug. 2, 2010

XXXVI Y.B. Com. Arb. 258 (2011)

IV 23

Superior Tribunal de Justiça

June 1, 2011

CLOUT Case No. 1488

V 19

Superior Tribunal de Justiça

Oct. 19, 2011

XXXVII Y.B. Com. Arb. 189 (2012) = CLOUT Case No. 1487

V 131, 228, 230

Superior Tribunal de Justiça

Dec. 19, 2011

XXXVIII Y.B. Com. Arb. 330 (2013)

IV 32

Superior Tribunal de Justiça

Mar. 21, 2012

XXXVIII Y.B. Com. Arb. 334 (2013) = CLOUT Case No. 1486

V 19, 160

Superior Tribunal de Justiça

Apr. 18, 2012

XXXVIII Y.B. Com. Arb. 338 (2013)

V 152, 557

Superior Tribunal de Justiça

June 14, 2012

XXXVII Y.B. Com. Arb. 195 (2012) = CLOUT Case No. 1485

V 147, 219, 225, 312

Superior Tribunal de Justiça

Aug. 15, 2012

XXXVIII Y.B. Com. Arb. 341 (2013)

IV 2, 13

Superior Tribunal de Justiça

June 19, 2013

XXXIX Y.B. Com. Arb. 361 (2014)

V 160

Superior Tribunal de Justiça

Aug. 7, 2013

XXXIX Y.B. Com. Arb. 364 (2014)

V 495, 561, 569

Superior Tribunal de Justiça

Oct. 2, 2013

XXXIX Y.B. Com. Arb. 367 (2014)

V 160

Superior Tribunal de Justiça

Nov. 20, 2013

XXXIX Y.B. Com. Arb. 372 (2014)

IV 2, 37, V 160

Superior Tribunal de Justiça

Dec. 2, 2015

XLI Y.B. Com. Arb. 415 (2016)

IV 37, V 394a

Superior Tribunal de Justiça

Dec. 16, 2015

XLI Y.B. Com. Arb. 420 (2016)

V 582

Superior Tribunal de Justiça

Apr. 19, 2017

XLIII Y.B. Com. Arb. 426 (2018)

V 518b, 530, 583b

British Virgin Islands Parties

Court

Date

Source

Art. para.

Grand Pacific Holdings Ltd. v. Pacific China Holdings Ltd.

Eastern Caribbean Sup. Ct.

Jan. 11, 2010

XXXV Y.B. Com. Arb. 332 (2010)

V 178

IPOC International Growth Fund Ltd. v. LV Finance Group Ltd.

CA

June 18, 2008

XXXIII Y.B. Com. Arb. 408 (2008)

V 149, 186

Bulgaria Court

Date

Source

Art. para.

Sup. Ct. of Appeal

Feb. 23, 1999

XXV Y.B. Com. Arb. 678 (2000)

I 62, IV 2, 9, 13, 16, 36

Canada Parties

Court

Date

Source

Art. para.

Abener Energia S.A. v. SunOpta Inc.

Ontario Superior Court of Justice

June 15, 2009

2009 CarswellOnt 3449

V 32

Adamas Management & Services Inc. v. Aurado Energy Inc.

New Brunswick Court of Queen’s Bench

July 28, 2004

XXX Y.B. Com. Arb. 479 (2005)

IV 20

Bad Ass Coffee Co. of Hawaii Inc. v. Bad Ass Enterprises Inc.

Alberta Court of Queen’s Bench

Sep. 26, 2007

[2007] ABQB 581

III 17

Bad Ass Coffee Co. of Hawaii Inc. v. Bad Ass Enterprises Inc.

Alberta Court of Queen’s Bench

July 2, 2008

XXXIV Y.B. Com. Arb. 430 (2009)

III 13, 17

637

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Cases Canada

New York Convention

Parties

Court

Date

Source

Art. para.

City of Prince George v. A.L. Sims & Sons Ltd.

CA British Columbia

July 4, 1995

XXIII Y.B. Com. Arb. 223 (1998)

II 310

Compania Maritima Villa Nova S.A. v. Northern Sales Co.

Federal CA

Nov. 20, 1991

[1992] 1 F.C. 550 = XVIII Y.B. Com. Arb. 363 (1993)

III 14

Corporacion Transnacional de Inversiones, S.A. de C.V. v. STET International, S.p.A.

Ontario Superior Court of Justice

Sep. 22, 1999

45 O.R. (3d) 183 = CLOUT Case No. 391 = XXVI Y.B. Com. Arb. 323 (2001)

V 5, 199, 234, 541

Depo Traffic Facilities (Kunshan) Co. v. Vikeda International Logistics and Automotive Supply Ltd.

Ontario Superior Court of Justice

Feb. 18, 2015

XLI Y.B. Com. Arb. 428 (2016)

V 567, 577

Domotique Secant Inc. v. Smart Systems Technologies Inc.

Québec Superior Court

Oct. 5, 2005

2005 CanLII 36874

V 557, 567

Europcar Italia S.p.A. v. Alba Tours International Inc.

Ontario Court of Justice

Jan. 21, 1997

[1997] OJ No. 133 = 23 OTC 376 = XXVI Y.B. Com. Arb. 311 (2001)

V 77, VI 10

Food Services of America, Inc. v. Pan Pacific Specialties Ltd.

Sup. Ct. of British Columbia

Mar. 24, 1997

XXIX Y.B. Com. Arb. 581 (2004)

V 70, 320, 341

Grow Biz International, Inc. v. D.L.T. Holdings, Inc.

Sup. Ct. of Prince Edward Island

Mar. 23, 2001

XXX Y.B. Com. Arb. 450 (2005)

V 181

Javor v. Francoeur

Sup. Ct. of British Columbia

Mar. 6, 2003

XXIX Y.B. Com. Arb. 596 (2004)

V 348

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

Alberta Court of Queen’s Bench

Dec. 9, 2004

[2004] ABQB 918 = XXX Y.B. Com. Arb. 488 (2005)

V 583

M.A. Industries Inc. v. Maritime Batter Ltd.

New Brunswick Court of Queen’s Bench

Aug. 19, 1991

XVIII Y.B. Com. Arb. 353 (1993)

XIV 8

Mexico v. Cargill

CA Ontario

Oct. 4, 2011

[2011] O.J. No. 4320 = CLOUT Case No. 1290

V5

Noble China Inc. v. Lei

Ontario Court of Justice

Nov. 4, 1998

42 O.R. (3d) 69

V 70

Northern Sales Co. Ltd. v. Compania Maritima Villa Nova S.A.

CA Manitoba

Nov. 20, 1991

XVIII Y.B. Com. Arb. 363 (1993)

V 415

Powerex Corp. v. Alcan Inc.

Sup. Ct. of British Columbia

July 10, 2003

XXIX Y.B. Com. Arb. 603 (2004)

VI 7, 9

Powerex Corp. v. Alcan Inc.

Sup. Ct. of British Columbia

June 30, 2004

XXX Y.B. Com. Arb. 466 (2005)

VI 7, 10, 11, 24

Proctor v. Schellenberg

CA Manitoba

Dec. 11, 2002

2002 MBCA 170 = [2003] 2 WWR 621 = XXVIII Y.B. Com. Arb. 745 (2003)

II 104, IV 31

Schreter v. Gasmac Inc.

Ontario Court of Justice

Feb. 13, 1992

7 O.R. (3d) 608

V 77, 139, 178, 549

Smart Systems Technologies Inc. v. Domotique Secant Inc.

CA Québec

Mar. 11, 2008

XXXIII Y.B. Com. Arb. 464 (2008)

V 557

Sociedade-de-fomento Industrial Private Ltd. v. Pakistan Steel Mills Corp. (Private) Ltd.

CA British Columbia

June 2, 2014

2014 BCCA 205

III 17

TMR Energy Ltd. v. State Property Fund of Ukraine

Federal Court

Dec. 23, 2003

XXIX Y.B. Com. Arb. 607 (2004)

III 17

Trans-Pacific Shipping Co. v. Atlantic & Orient Shipping Corp.

Federal Court

Apr. 27, 2005

[2006] 1 F.C. 154 = XXXI Y.B. Com. Arb. 601 (2006)

IV 13, 27

West Plains Co. v. Northwest Organic Community Mills CoOperative Ltd.

Saskatchewan Court of Queen’s Bench

May 5, 2009

XXXIV Y.B. Com. Arb. 475 (2009)

I 87

638

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Table of Cases and Awards

China

Cases

Parties

Court

Date

Source

Art. para.

Woolcock v. Bushert

CA Ontario

Nov. 5, 2004

2004 CanLII 35081 = 246 D.L.R. (4th) 139

II 224

Yugraneft Corp. v. Rexx Management Corp.

Alberta Court of Queen’s Bench

June 27, 2007

XXXIII Y.B. Com. Arb. 433 (2008)

V 415

Yugraneft Corp. v. Rexx Management Corp.

Sup. Ct.

May 20, 2010

[2010] 1 SCR 19

III 14

Cayman Islands Parties

Court

Date

Source

Art. para.

Imbar Maratima SA v. Republic of Gabon

Grand Court

Mar. 1, 1989

XV Y.B. Com. Arb. 436 (1990)

III 7

The Republic of Gabon v. Swiss Oil Corp.

Grand Court

June 17, 1988

XIV Y.B. Com. Arb. 621 (1989)

IV 20, V 395, VI 8, 10, 19, 20

Chile Court

Date

Source

Art. para.

Corte Suprema

July 5, 1999

RDJ, Vol. XCVI (1999), No. 2, p. 82

I 175, V 159

Corte Suprema

Jan. 11, 2007

XXXIII Y.B. Com. Arb. 473 (2008)

I 175, IV 16

Corte Suprema

Sep. 15, 2008

Cristián Conejero-Roos, a contribution by the ITA Board of Reporters, available at http://www.kluwer arbitration.com (last visited Apr. 29, 2019)

V 19

Corte Suprema

Sep. 8, 2011

XLI Y.B. Com. Arb. 441 (2016)

IV 13

Corte Suprema

Apr. 21, 2016

XLI Y.B. Com. Arb. 444 (2016)

V 190, 361a

China Court

Date

Source

Supreme People’s Court

July 5, 2004

XXXI Y.B. Com. Arb. 624 (2006)

Art. para. IV 35

Supreme People’s Court

July 8, 2004

(2003) Min Si Ta Zi No. 23, cited in Fan, (2011) 28(4) J. Int. Arb. 343, 347 n. 18

I 129

Supreme People’s Court

Sep. 8, 2011

XLI Y.B. Com. Arb. 447 (2016)

V 160

Guangdong Higher People’s Court

June 25, 2007

(2006) Min Si Ta Zi No. 41, available at https://arbitration law.com/library/bunge-agribusiness-singapore-pte-ltd-vguangdong-fengyuam-food-and-oil-group-company-ltd (last visited Apr. 29, 2019)

V 357a

Chengdu Intermediate People’s Court

June 23, 2017

(2017) Chuan 01 Xie Wai Ren No. 1, available at http://www. pkulaw.com/pfnl/a25051f3312b07f335910ee1ff94d16a6c ba2c7987d2eba6bdfb.html (last visited Apr. 16, 2019)

V 160

Hangzhou Intermediate People’s Court, Zhejiang

Feb. 6, 2013

XXXIX Y.B. Com. Arb. 380 (2014)

V 280

Hubei Jingmen Intermediate People’s Court

Jan. 20, 2014

CLOUT Case No. 1469

V 19

Shandong Rizhao Intermediate People’s Court

Oct. 14, 2017

(2017) Lu 11 Xie Wai Ren No. 1, available at http://www. pkulaw.com/pfnl/a25051f3312b07f364b7746c9ead2998c63e be3354edda2fbdfb.html (last visited Apr. 16, 2019)

V 160

Shandong Rizhao Intermediate People’s Court

July 17, 2017

(2017) Lu 11 Xie Wai Ren No. 2, available at http://www. pkulaw.com/pfnl/a25051f3312b07f334f76190c389518ccc182b d6e62e0de1bdfb.html (last visited Apr. 16, 2019)

V 157

639

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Cases China

New York Convention

Court

Date

Source

Art. para.

Shanghai First Intermediate People’s Court

Feb. 22, 2017

(2016) Hu 01 Xie Wai Ren No. 12, available at http://www. pkulaw.com/pfnl/a25051f3312b07f36be2b1a010d71 f60e4e83a0bc0e8400cbdfb.html (last visited Apr. 16, 2019)

V 147

Taizhou Intermediate People’s Court

June 2, 2016

XLII Y.B. Com. Arb. 365 (2017)

V 523

Zhejiang Province Ningbo City Intermediate People’s Court

Apr. 22, 2009

(2008) Yong Zhong Jian Zi No. 4, available at http://new yorkconvention1958.org/index.php?lvl=notice_ display&id=585 (last visited Apr. 29, 2019)

I 129

Tianjin Maritime Court

July 12, 2012

CLOUT Case No. 1577

V 41, 286, 287

Colombia Court

Date

Source

Art. para.

Corte Suprema de Justicia

Jan. 26, 1999

XXVI Y.B. Com. Arb. 755 (2001)

I 62, V 369, 370

Corte Suprema de Justicia

July 27, 2011

XXXVII Y.B. Com. Arb. 200 (2012)

III 25, 36, V 161, 183, 530, 560, 561, 586

Corte Suprema de Justicia

Dec. 19, 2011 and May 3, 2012

XXXVII Y.B. Com. Arb. 205 (2012)

I 62, III 12, V 140, 181, 530, 555, 560, 561

Corte Suprema de Justicia

Nov. 19, 2013

XXXIX Y.B. Com. Arb. 384 (2014)

VII 27

Corte Suprema de Justicia

June 24, 2016

XLI Y.B. Com. Arb. 454 (2016)

I 62, III 25, V 369, 561, 581b

Corte Suprema de Justicia

Sep. 7, 2016

XLII Y.B. Com. Arb. 370 (2017)

IV 37, 491, 561

Costa Rica Court

Date

Source

Art. para.

Corte Suprema de Justicia

Mar. 5, 2015

Ryan Mellske, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 16, 2019)

V 147

Cyprus Court

Date

Source

Art. para.

Sup. Ct.

Apr. 28, 1999

XXV Y.B. Com. Arb. 692 (2000)

V 550

Egypt Court

Date

Source

Art. para.

CA Cairo

Feb. 3, 2016

3(1) BCDR Int’l Arb. Rev. 111 (2016)

III 10

El Salvador Court

Date

Source

Art. para.

Corte Suprema de Justicia

Sep. 22, 2011

CLOUT Case No. 1381

V 5, 225a

640

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Table of Cases and Awards

France

Cases

Finland Court

Date

Source

Art. para.

Korkein Oikeus

Feb. 27, 1989

XVI Y.B. Com. Arb. 536 (1991)

V 580

France Court

Date

Source

Art. para.

Cass.

Apr. 14, 1964

Rev. arb. 1964, 82

V 104

Cass.

May 18, 1971

JDI 1972, 62

V 511

Cass.

Nov. 30, 1978

Rev. arb. 1979, 355

V 177

Cass.

Jan. 9, 1979

Rev. arb. 1979, 478

I 62

Cass.

Mar. 19, 1981

Rev. arb. 1982, 44

V 555

Cass.

Oct. 9, 1984

Rev. arb. 1985, 432 = XI Y.B. Com. Arb. 484 (1986)

I 97, V 390, 416, 417, VII 41, 43, 88

Cass.

June 4, 1985

Rev. arb. 1990, 617

II 148

Cass.

Nov. 4, 1987

Rev. arb. 1990, 721

I 163

Cass.

Oct. 11, 1989

Rev. arb. 1990, 134 = XV Y.B. Com. Arb. 447 (1990)

II 28, 138, 139, 140, 141

Cass.

Nov. 19, 1991

Rev. arb. 1992, 462

I 73

Cass.

Jan. 7, 1992

JDI 1992, 707 = Rev. arb. 1992, 470 = XVIII Y.B. Com. Arb. 140 (1993)

V 527

Cass.

Mar. 10, 1993

Rev. arb. 1993, 258 = XIX Y.B. Com. Arb. 662 (1994)

V 390, VII 43

Cass.

Nov. 9, 1993

XX Y.B. Com. Arb. 660 (1995)

II 130, 139

Cass.

Dec. 20, 1993

Rev. arb. 1994, 116

V 205

Cass.

Mar. 23, 1994

Rev. arb. 1994, 327 = XX Y.B. Com. Arb. 663 (1995)

V 388, 390, VII 43

Cass.

Oct. 23, 1996

Rev. arb. 1997, 242

V 174, 191

Cass.

May 21, 1997

Rev. arb. 1997, 537

V 205

Cass.

Mar. 24, 1998

Rev. arb. 1999, 255 = XXIVa Y.B. Com. Arb. 643 (1999)

V 530, 535

Cass.

Feb. 18, 1999

Bull. civ. 1999 II No. 31, p. 22

V 297

Cass.

July 6, 2000

XXV Y.B. Com. Arb. 458 (2000)

I 145

Cass.

Oct. 17, 2000

Rev. arb. 2000, 648 = XXVI Y.B. Com. Arb. 767 (2001)

VII 32, 43

Cass.

July 6, 2005

Rev. arb. 2005, 801 = Bull. civ. 2005 I No. 302, p. 252

V 51, 54

Cass.

Dec. 6, 2005

Rev. arb. 2006, 126

V 347

Cass.

Mar. 14, 2006

Rev. arb. 2006, 653

V 253

Cass.

June 7, 2006

XXXII Y.B. Com. Arb. 290 (2007)

VII 45

Cass.

Jan. 18, 2007

Rev. arb. 2007, 134

V 54

Cass.

June 29, 2007

Les Cahiers de l’Arbitrage 2007, 44 = 25(4) ASA Bull. 829 (2007) = XXXII Y.B. Com. Arb. 299 (2007)

I 105, V 390, VII 43

Cass.

May 6, 2009

D. 2009, 1422 = XXXV Y.B. Com. Arb. 353 (2010)

V 147, 157, 580

Cass.

Feb. 3, 2010

Rev. arb. 2010, 93

V 54

Cass.

June 23, 2010

Rev. arb. 2011, 446

V 192

Cass.

June 29, 2011

Rev. arb. 2011, 680

V 192

Cass.

Mar. 8, 2012

XXXVII Y.B. Com. Arb. 214 (2012)

V 529

Cass.

Mar. 5, 2014

XXXIX Y.B. Com. Arb. 386 (2014)

V 364

Cass.

June 25, 2014

Rev. arb. 2015, 85

V 52, 296

Tribunal des conflits

May 17, 2010

Rev. arb. 2010, 275

V 452

CA Paris

Oct. 20, 1959

Rev. arb. 1960, 48

V 414

CA Paris

May 10, 1971

I Y.B. Com. Arb. 184 (1976)

V 176, 190, 192

641

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Cases France

New York Convention

Court

Date

Source

Art. para.

CA Paris

Jan. 20, 1972

Rev. arb. 1974, 105

V 527

CA Paris

Mar. 13, 1973

Rev. arb. 1973, 176

V 177

CA Paris

Jan. 12, 1979

Rev. arb. 1980, 83

V 142

CA Paris

Sep. 28, 1979

Rev. arb. 1980, 506

V 555

CA Paris

Feb. 12, 1980

Rev. arb. 1980, 524

I 112

CA Paris

Apr. 24, 1980

Rev. arb. 1981, 176

V 189

CA Paris

Nov. 19, 1982

XI Y.B. Com. Arb. 484 (1986)

V 416

CA Paris

Jan. 18, 1983

Rev. arb. 1984, 87

V 142, 177

CA Paris

June 9, 1983

Rev. arb. 1983, 497

V 555

CA Paris

Mar. 6, 1986

Rev. arb. 1987, 390

V 191

CA Paris

Jan. 20, 1987

Rev. arb. 1987, 482 = XIII Y.B. Com. Arb. 466 (1988)

II 75, 76, 130

CA Paris

Mar. 19, 1987

Rev. arb. 1987, 498

V 53

CA Paris

Nov. 27, 1987

Rev. arb. 1989, 63

V 139, 191

CA Paris

Jan. 12, 1988

Rev. arb. 1988, 691

V 53

CA Paris

Feb. 2, 1988

Rev. arb. 1989, 62

V 191

CA Paris

Feb. 14, 1988

Rev. arb. 1989, 691

V 193

CA Paris

Apr. 28, 1988

Rev. arb. 1989, 280

V 83

CA Paris

June 16, 1988

Rev. arb. 1989, 309

V 185, 557

CA Paris

June 28, 1988

Rev. arb. 1989, 328

V 341

CA Paris

Dec. 8, 1988

Rev. arb. 1990, 150 = XVI Y.B. Com. Arb. 540 (1991)

II 70

CA Paris

Oct. 31, 1989

Rev. arb. 1992, 90

II 255

CA Paris

Dec. 5, 1989

JDI 1990, 141

I 157

CA Paris

Dec. 12, 1989

Rev. arb. 1990, 863

II 167

CA Paris

Mar. 8, 1990

Rev. arb. 1990, 675

V 185, 557

CA Paris

Feb. 7, 1991

Rev. arb. 1992, 634

V 157

CA Paris

Mar. 29, 1991

Rev. arb. 1991, 478

V 431, 438

CA Paris

Nov. 29, 1991

Rev. arb. 1993, 617

V 230

CA Paris

Feb. 12, 1993

11(4) ASA Bull. 564 (1993) = Rev. arb. 1993, 259 = XIX Y.B. Com. Arb. 658 (1994)

V 189, 568

CA Paris

May 19, 1993

Rev. arb. 1993, 645

V 456

CA Paris

Sep. 30, 1993

Rev. arb. 1994, 359 = XX Y.B. Com. Arb. 198 (1995)

V 553, 576

CA Paris

Feb. 24, 1994

XXII Y.B. Com. Arb. 682 (1997)

V 78, VII 41

CA Paris

Mar. 3, 1994

JCP G 1995, II, 22367

III 15

CA Paris

Mar. 25, 1994

Rev. arb. 1994, 391

I 62

CA Paris

July 7, 1994

Rev. arb. 1995, 115

I 141

CA Paris

Oct. 27, 1994

Rev. arb. 1994, 709

V 516

CA Paris

Oct. 27, 1994

Rev. arb. 1995, 263

II 71

CA Paris

Sep. 22, 1995

Rev. arb. 1996, 101 = XXIVa Y.B. Com. Arb. 640 (1999)

V 232, 347

CA Paris

Feb. 16, 1996

Rev. arb. 1997, 244

V 188, 189, 192

CA Paris

Mar. 28, 1996

Rev. arb. 1997, 246

V 129, 191

CA Paris

Oct. 15, 1996

Rev. arb. 1997, 247

V 187

CA Paris

Nov. 7, 1996

Rev. arb. 1997, 249

V 129

CA Paris

Jan. 14, 1997

XXII Y.B. Com. Arb. 691 (1997)

V 78, 556, VII 43

CA Paris

Jan. 21, 1997

Rev. arb. 1997, 429

V 174

CA Paris

Oct. 23, 1997

Rev. arb. 1998, 143 = XXIII Y.B. Com. Arb. 644 (1998)

V 78, 539, 558

CA Paris

July 1, 1999

Rev. arb. 1999, 834 = XXIVa Y.B. Com. Arb. 296 (1999)

I 26, 61, V 184

CA Paris

Oct. 26, 1999

Rev. arb. 1999, 811 = XXV Y.B. Com. Arb. 454 (2000)

V 558

642

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Georgia Cases

Table of Cases and Awards Court

Date

Source

Art. para.

CA Paris

Aug. 10, 2000

XXVI Y.B. Com. Arb. 273 (2001)

I 148

CA Paris

Dec. 14, 2000

Rev. arb. 2001, 805

V 246

CA Paris

Sep. 27, 2001

Rev. arb. 2001, 916

V 51

CA Paris

Dec. 4, 2002

Rev. arb. 2003, 1286 = 18(2) Mealey’s Int’l Arb. Rep. D-1 (2003) = XXIX Y.B. Com. Arb. 657 (2004)

II 301, VII 45

CA Paris

June 2, 2004

Rev. arb. 2005, 675

V 436

CA Paris

June 10, 2004

XXX Y.B. Com. Arb. 499 (2005)

VI 15

CA Paris

Mar. 23, 2006

XXXII Y.B. Com. Arb. 282 (2007)

V 561

CA Paris

May 11, 2006

Rev. arb. 2007, 101

V 19

CA Paris

June 15, 2006

XXXI Y.B. Com. Arb. 635 (2006)

VII 110

CA Paris

Nov. 8, 2007

Rev. arb. 2007, 929 = D. 2008, 188

V 54, 147, 157

CA Paris

Nov. 8, 2007

Rev. arb. 2010, 308 = D. 2008, 180

V 147

CA Paris

Jan. 10, 2008

Rev. arb. 2008, 161 = XXXIII Y.B. Com. Arb. 480 (2008)

V 19, 147, 174, 192

CA Paris

Jan. 31, 2008

Rev. arb. 2008, 487

V 51, 147, 539

CA Paris

Feb. 17, 2011

XXXVI Y.B. Com. Arb. 590 (2011)

II 254

CA Paris

Nov. 17, 2011

Rev. arb. 2011, 1105

V 170a

CA Paris

Jan. 15, 2013

XXXVIII Y.B. Com. Arb. 373 (2013)

V 156

CA Paris

Dec. 17, 2015

RG No. 15/11667 (unreported), available at http://newyorkconven tion1958.org/index.php?lvl=notice_display&id=3452&opac_view=2 (last visited Apr. 29, 2019)

V1

CA Paris

Apr. 12, 2016

Rev. arb. 2016, 643

V 296

CA Reims

July 23, 1981

Rev. arb. 1982, 303 = IX Y.B. Com. Arb. 400 (1984)

V 185, 535

CA Reims

Nov. 2, 2011

Bertrand Derains and Yves Derains, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 29, 2019)

V 296

CA Rouen

Nov. 13, 1984

Rev. arb. 1985, 115 = XI Y.B. Com. Arb. 491 (1986)

I 111, VII 80, 81, 88

CA Versailles

Mar. 7, 1990

Rev. arb. 1991, 326

V 327

CA Versailles

Jan. 23, 1991

Rev. arb. 1991, 291 = XVII Y.B. Com. Arb. 488 (1992)

II 28

Président du TGI Paris

May 15, 1970

I Y.B. Com. Arb. 184 (1976)

V 192

TGI Paris

Jan. 13, 1981

JDI 1981, 365

I 156

TGI Paris

Mar. 4, 1981

Rev. arb. 1983, 466

V 416

TGI Paris

Dec. 13, 1988

Rev. arb. 1990, 521

II 48

TGI Paris

Nov. 22, 1989

Rev. arb. 1990, 693 = XVI Y.B. Com. Arb. 543 (1991)

III 12, 18

TGI Paris

Jan. 22, 2010

Rev. arb. 2010, 571

II 312

TGI Strasbourg

Oct. 9, 1970

II Y.B. Com. Arb. 244 (1977)

II 138, IV 10, V 359

Georgia Court

Date

File No.

Source

Art. para.

Sup. Ct.

July 6, 2012

a-492-sh-11-2012

CLOUT Case No. 1390

V 40

643

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Cases Germany

New York Convention

Germany Court

Date

File No.

Source

Art. para.

RG

Mar. 28, 1924

VII 455/23

RGZ 108, 139

V 582

BGH

Oct. 10, 1951

II ZR 99/51

NJW 1952, 27

V 129, 156

BGH

May 12, 1958

VII ZR 436/56

BGHZ 27, 249 = NJW 1958, 1538

V 578

BGH

Apr. 23, 1959

VII ZR 2/58

BGHZ 30, 89 = NJW 1959, 1438

V 515, 579

BGH

Oct. 8, 1959

VII ZR 87/58

NJW 1959, 2213

V 142, 143, 187, 191, 195

BGH

May 23, 1960

II ZR 75/58

NJW 1960, 1462

I 62, II 70

BGH

Nov. 22, 1962

VII ZR 55/61

WM 1963, 196

V 36 II 232

BGH

Nov. 28, 1963

VII ZR 112/62

NJW 1964, 591

BGH

Feb. 27, 1964

VII ZR 134/62

KTS 1964, 172

V 516, 578

BGH

Jan. 7, 1965

VII ZR 241/63

MDR 1965, 374

V 36

BGH

Dec. 6, 1965

III ZR 172/64

NJW 1966, 549

V 182

BGH

Oct. 25, 1966

KZR 7/65

BGHZ 46, 365 = NJW 1967, 1178

V 456, 579 II 51

BGH

May 22, 1967

VII ZR 188/64

BGHZ 48, 35 = NJW 1967, 2057

BGH

May 20, 1968

VII ZR 80/67

BGHZ 50, 191 = NJW 1968, 1928

II 272, V 57

BGH

Dec. 19, 1968

VII ZR 83/66, VII ZR 84/66

BGHZ 51, 255 = NJW 1969, 750

I 45, V 527

BGH

Feb. 27, 1969

KZR 3/68

NJW 1969, 978

Prel. Rem. 95, V 579

BGH

June 26, 1969

VII ZR 32/67

BGHZ 52, 184 = NJW 1969, 2093

I 83, 174, V 523

BGH

Feb. 27, 1970

VII ZR 68/68

NJW 1970, 1046

II 225, 226

BGH

May 25, 1970

VII ZR 157/68

IPRspr. 1970, No. 133, 455 = WM 1970, 1050 = II Y.B. Com. Arb. 236 (1977)

II 169, 175, VII 86

BGH

Nov. 5, 1970

VII ZR 31/69

BGHZ 54, 392 = KTS 1971, 104 = NJW 1971, 139

I 45, V 527

BGH

Jan. 7, 1971

VII ZR 160/69

BGHZ 55, 162 = NJW 1971, 986

V 523, 528

BGH

Oct. 21, 1971

VII ZR 45/70

ZZP 86 (1973), 46

V 549

BGH

Oct. 26, 1972

VII ZR 232/71

NJW 1973, 98

V 578

BGH

July 3, 1975

III ZR 78/73

BGHZ 65, 59 = JZ 1976, 245 = NJW 1976, 109

V 293, 536

BGH

Dec. 18, 1975

III ZR 103/73

NJW 1976, 852

II 69

BGH

Feb. 12, 1976

III ZR 42/74

NJW 1976, 1591 = RIW 1976, 449 = II Y.B. Com. Arb. 242 (1977)

II 138, 140, V 112, 233

BGH

May 16, 1977

VII ZR 311/75

WM 1977, 948

V 163

BGH

Mar. 9, 1978

III ZR 78/76

BGHZ 71, 131 = NJW 1978, 1744 = IV Y.B. Com. Arb. 264 (1979)

V 523, VII 20

BGH

Mar. 20, 1980

III ZR 151/79

BGHZ 77, 32 = NJW 1980, 2022

II 239

BGH

Oct. 8, 1981

III ZR 42/80

NJW 1982, 1224 = IPRax 1982, 143 = VIII Y.B. Com. Arb. 366 (1983)

I 42

BGH

Nov. 11, 1982

III ZR 77/81

NJW 1983, 867

V 129, 191, 195

BGH

Dec. 2, 1982

III ZR 85/81

NJW 1983, 1267

II 98, 173, 312

BGH

Mar. 12, 1984

II ZR 10/83

IPRax 1985, 218 = XIV Y.B. Com. Arb. 629 (1989)

V 447

BGH

May 10, 1984

III ZR 206/82

NJW 1984, 2763 = WM 1984, 101 = X Y.B. Com. Arb. 427 (1985)

I 50, II 140, V 413, 414, VII 51, 56

BGH

Sep. 26, 1985

III ZR 16/84

BGHZ 96, 40 = NJW 1986, 1436

V 69, 83, 129, 184, 271

BGH

May 5, 1986

III ZR 235/84

NJW 1986, 3079

V 292

BGH

May 15, 1986

III ZR 192/84

BGHZ 98, 70 = NJW 1986, 3027 = XII Y.B. Com. Arb. 489 (1987)

V 142, 293, 511, 514, 527, 530

BGH

Dec. 3, 1986

IVb ZR 80/85

NJW 1987, 651

V 35

644

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Germany Cases

Table of Cases and Awards Court

Date

File No.

Source

Art. para.

BGH

Mar. 26, 1987

III ZR 87/86

NJW-RR 1988, 572 = WM 1987, 731 = XIII Y.B. Com. Arb. 471 (1988)

I 82

BGH

June 15, 1987

II ZR 124/86

NJW 1987, 3193 = RIW 1987, 867 = XIX Y.B. Com. Arb. 653 (1994)

V 419, 434

BGH

Apr. 14, 1988

III ZR 12/87

BGHZ 104, 178 = NJW 1988, 3090 = RIW 1988, 642 = XV Y.B. Com. Arb. 450 (1990)

I 82, 83, V 156, 233, 297, 347

BGH

Nov. 24, 1988

III ZR 69/88

BeckRS 1988, 31067535

V 182

BGH

Jan. 26, 1989

X ZR 23/87

NJW 1989, 1477

V 527

BGH

Jan. 18, 1990

III ZR 269/88

BGHZ 110, 104 = NJW 1990, 2199 = XVII Y.B. Com. Arb. 503 (1992)

V 184, 185, 187, 511, 529, 543, 551, 553

BGH

Apr. 26, 1990

III ZR 56/89

IPRspr. 1990, No. 236, 508 = XXI Y.B. Com. Arb. 532 (1996)

V 142, 148, 184

BGH

July 12, 1990

III ZR 174/89

NJW 1990, 3210 = WM 1990, 1766

III 23, V 34, 193, 195, 563

BGH

Feb. 26, 1991

XI ZR 349/89

NJW-RR 1991, 757 = RIW 1991, 420 = XVII Y.B. Com. Arb. 513 (1992)

V 140, VII 20, 51, 110

BGH

June 6, 1991

II ZR 68/90

IPRax 1992, 382

V 434

BGH

Oct. 10, 1991

III ZR 141/90

BGHZ 115, 324 = NJW 1992, 575 = XIX Y.B. Com. Arb. 200 (1994)

II 69

BGH

May 14, 1992

III ZR 169/90

NJW 1992, 2299

V 129, 148, 184, 185, 187

BGH

June 4, 1992

IX ZR 149/91

NJW 1992, 3096

V 567

BGH

Mar. 4, 1993

IX ZB 55/92

NJW 1993, 1801

V 569 II 181

BGH

Sep. 21, 1993

XI ZR 52/92

NJW-RR 1993, 1519

BGH

Jan. 20, 1994

III ZR 143/92

BGHZ 125, 7 = NJW 1994, 1008

I 91, II 48

BGH

May 19, 1994

III ZR 130/93

NJW 1994, 2155

V 329a

BGH

Nov. 28, 1994

II ZR 11/94

NJW 1995, 583

I 45

BGH

Dec. 19, 1995

III ZR 194/94

NJW-RR 1996, 508

V 35

BGH

Mar. 29, 1996

II ZR 124/95

BGHZ 132, 278 = NJW 1996, 1753

V 433, 474, 527

BGH

Oct. 22, 1996

XI ZR 249/95

NJW 1997, 312

II 248

BGH

July 3, 1997

III ZR 75/95

NJW-RR 1997, 1289

V 34

BGH

Mar. 4, 1999

III ZR 72/98

BGHZ 141, 90 = NJW 1999, 2370

V 530

BGH

July 15, 1999

III ZB 21/98

BGHZ 142, 204 = NJW 1999, 2974

V 536

BGH

Aug. 17, 2000

III ZB 43/99

IPRax 2001, 458 = NJW 2000, 3650 = XXVI Y.B. Com. Arb. 771 (2001)

IV 27, 31, VII 32

BGH

Sep. 14, 2000

III ZR 33/00

NJW 2000, 3720

II 313

BGH

Nov. 2, 2000

III ZB 55/99

NJW 2001, 373 = WM 2001, 104 = XXVII Y.B. Com. Arb. 269 (2002)

I 74

BGH

Feb. 1, 2001

III ZR 332/99

IPRax 2001, 580 = NJW-RR 2001, 1059 = XXIX Y.B. Com. Arb. 700 (2004)

IV 27, V 64, 148, 285, 286, 293, 496, 527, 530, VII 56

BGH

Feb. 22, 2001

III ZB 71/99

NJW 2001, 1730 = XXIX Y.B. Com. Arb. 724 (2004)

IV 18, 27

BGH

May 10, 2001

III ZR 262/00

NJW 2001, 2176 = XXVIII Y.B. Com. Arb. 247 (2003)

V 473

BGH

Oct. 4, 2001

III ZR 281/00

NJW-RR 2002, 387 = NZG 2002, 83

II 223, 224, 225

BGH

Mar. 27, 2002

III ZB 43/00

NJW-RR 2002, 933

III 10

BGH

Sep. 25, 2003

III ZB 68/02

SchiedsVZ 2003, 281 = XXIX Y.B. Com. Arb. 767 (2004)

IV 34, 37, VII 41, 42, 44, 59

BGH

Mar. 10, 2004

IV ZR 143/03

NJW-RR 2004, 1275

II 248

BGH

May 27, 2004

III ZB 53/03

NJW 2004, 2226

I 45

BGH

July 19, 2004

II ZR 65/03

SchiedsVZ 2004, 259

V 433, 473

645

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Cases Germany Court

New York Convention

Date

File No.

Source

Art. para.

BGH

June 29, 2005

III ZB 65/04

SchiedsVZ 2005, 259

V 176

BGH

Sep. 21, 2005

III ZB 18/05

SchiedsVZ 2005, 306 = XXXI Y.B. Com. Arb. 679 (2006)

Prel. Rem. 64, VII 54, 58

BGH

Oct. 4, 2005

VII ZB 9/05

SchiedsVZ 2006, 47 = XXXI Y.B. Com. Arb. 698 (2006)

I 144

BGH

Feb. 23, 2006

III ZB 50/05

NJW 2007, 772 = SchiedsVZ 2006, 161 = XXXII Y.B. Com. Arb. 328 (2007)

II 114, V 549, VII 20, 41, 59

BGH

Jan. 18, 2007

III ZB 35/06

WM 2007, 1050

I 71

BGH

Jan. 25, 2007

VII ZR 105/06

SchiedsVZ 2007, 273

II 312 II 71

BGH

Mar. 1, 2007

III ZB 7/06

BGHZ 171, 245 = SchiedsVZ 2007, 160

BGH

Mar. 1, 2007

III ZR 164/06

SchiedsVZ 2007, 163

V 284

BGH

Nov. 8, 2007

III ZB 95/06

NJW-RR 2008, 659 = SchiedsVZ 2008, 40

II 70, III 23, V 36

BGH

Jan. 17, 2008

III ZB 11/07

NJW-RR 2008, 558

V 36

BGH

Apr. 17, 2008

III ZB 97/06

NJW-RR 2008, 1083 = SchiedsVZ 2008, 196

II 53, V 65, VII 57

BGH

May 21, 2008

III ZB 14/07

NJW 2008, 2718 = SchiedsVZ 2008, 195 = XXXIV Y.B. Com. Arb. 504 (2009)

V 286, 349, VII 88 V 140

BGH

Oct. 30, 2008

III ZB 17/08

SchiedsVZ 2009, 66

BGH

Jan. 13, 2009

XI ZR 66/08

SchiedsVZ 2009, 122

II 271

BGH

Jan. 15, 2009

III ZR 83/07

SchiedsVZ 2009, 126

V 142, 143, 157 VII 111

BGH

Feb. 5, 2009

IX ZB 89/06

SchiedsVZ 2009, 174

BGH

Apr. 6, 2009

II ZR 255/08

SchiedsVZ 2009, 233

V 474

BGH

Apr. 30, 2009

III ZB 91/07

NJW-RR 2009, 1582

II 272

BGH

July 2, 2009

IX ZR 152/06

IHR 2010, 178 = NJW 2009, 2826 = SchiedsVZ 2009, 285 = XXXV Y.B. Com. Arb. 374 (2010)

I 52, IV 15, V 414, VII 111

BGH

June 8, 2010

XI ZR 349/08

NJW-RR 2011, 548 = SchiedsVZ 2011, 46

II 35, 95, V 109

BGH

July 29, 2010

III ZB 48/09

SchiedsVZ 2010, 275

III 23

BGH

Sep. 30, 2010

III ZB 57/10

NJW-RR 2011, 213 = SchiedsVZ 2010, 330

III 23, V 35, 36

BGH

Sep. 30, 2010

III ZB 69/09

BGHZ 187, 126 = SchiedsVZ 2010, 332 = XXXVI Y.B. Com. Arb. 282 (2011)

II 111, 192, VII 48, 54

BGH

Dec. 16, 2010

III ZB 100/09

NJW 2011, 1290 = SchiedsVZ 2011, 105 = ZIP 2011, 302 = XXXVI Y.B. Com. Arb. 273 (2011)

V 65, 257, VII 57

II 35, 95

BGH

Mar. 5, 2011

XI ZR 373/08

NJW-RR 2011, 1350

BGH

June 30, 2011

III ZB 59/10

SchiedsVZ 2011, 281

V 468

BGH

July 14, 2011

III ZB 70/10

NJW 2011, 2977 = SchiedsVZ 2011, 284

II 48, 313

BGH

Nov. 30, 2011

III ZB 19/11

SchiedsVZ 2012, 41

V 19, 550

BGH

Mar. 28, 2012

III ZB 63/10

NJW 2012, 1811

V 536

BGH

Sep. 5, 2012

VII ZR 25/12

BeckRS 2012, 20587 = ZVertriebsR 2013, 895

V 435

BGH

Apr. 23, 2013

III ZB 59/12

SchiedsVZ 2013, 229 = XXXIX Y.B. Com. Arb. 394 (2014)

VII 88 V 35

BGH

June 6, 2013

I ZB 56/12

NJW-RR 2013, 1336

BGH

Dec. 18, 2013

III ZB 92/12

NJW-RR 2014, 953 = SchiedsVZ 2014, 31

V 36

BGH

May 8, 2014

III ZR 371/12

SchiedsVZ 2014, 151 = XXXIX Y.B. Com. Arb. 401 (2014)

II 44, VII 58 V 304

BGH

Dec. 11, 2014

I ZB 23/14

NJW-RR 2015, 1087

BGH

Mar. 31, 2016

I ZB 76/15

NJW-RR 2016, 1467 = RIW 2017, 68

V 36

BGH

Apr. 21, 2016

I ZB 7/15

NJW-RR 2016, 1464

V 63a

BGH

Oct. 6, 2016

I ZB 13/15

NJW-RR 2017, 313 = XLIII Y.B. Com. Arb. 445 (2018)

V 511, 553

646

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Germany Cases

Table of Cases and Awards Court

Date

File No.

Source

Art. para.

BGH

Mar. 16, 2017

I ZB 50/16

NJW 2017, 2115

V 463

BGH

Apr. 6, 2017

I ZB 32/16

SchiedsVZ 2017, 197

V 474 V 555

BGH

Oct. 11, 2018

I ZB 9/18

SchiedsVZ 2019, 150

BGH

Oct. 31, 2018

I ZB 2/17

SchiedsVZ 2019, 46

II 151a

BGH

Nov. 8, 2018

I ZB 24/18

MDR 2019, 631 = BeckRS 2018, 40831

II 44

BGH

Feb. 14, 2019

I ZB 33/18

SchiedsVZ 2019, 287

V 549, 549a

BayObLG

Sep. 17, 1998

4Z Sch 1/98

NJW-RR 1999, 644

II 138

BayObLG

Feb. 24, 1999

4Z Sch 17/98

NJW-RR 2000, 360

V 281

BayObLG

Dec. 15, 1999

4Z Sch 23/99

BB 2000, Beil. 12, p. 16 = IPRspr. 1999, No. 184, 477

V 69

BayObLG

Mar. 16, 2000

4Z Sch 50/99

NJW-RR 2001, 431 = XXVII Y.B. Com. Arb. 445 (2002)

V 64, 148, 157, 164, 168

BayObLG

Apr. 12, 2000

4Z Sch 2/00

NJW-RR 2001, 1363

V 35

BayObLG

Aug. 11, 2000

4Z Sch 5/00

RIW 2001, 140 = XXVII Y.B. Com. Arb. 451 (2002)

IV 37, VII 20

BayObLG

Oct. 25, 2001

4Z SchH 6/01

NJW-RR 2002, 323

II 300

BayObLG

Nov. 22, 2002

4Z Sch 13/02

NJW-RR 2003, 502 = SchiedsVZ 2003, 142 = XXIX Y.B. Com. Arb. 754 (2004)

I 42, 64, 82, IV 27, V 251, 363, VI 7

BayObLG

Dec. 12, 2002

4Z Sch 16/02

BayObLGZ 2002, 392 = NJW-RR 2003, 719 = XXIX Y.B. Com. Arb. 761 (2004)

II 53, 94, 95, 98, 175, IV 21, 23, V 42, 53, 125, VII 91

BayObLG

Nov. 20, 2003

4Z Sch 17/03

IPRspr. 2003, No. 204, 664 = XXIX Y.B. Com. Arb. 771 (2004)

V 493, 553, 560

BayObLG

Jan. 16, 2004

4Z Sch 22/03

SchiedsVZ 2004, 163

II 249

BayObLG

July 5, 2004

4Z Sch 9/04

SchiedsVZ 2004, 316 = XXX Y.B. Com. Arb. 563 (2005)

I 78, IV 37

BayObLG

Sep. 23, 2004

4Z Sch 5/04

XXX Y.B. Com. Arb. 568 (2005)

II 53, 272, 275, IV 37, V 48, 57, 80, 147, 300, 317, 337, 347

BayObLG

Nov. 9, 2004

4 Z Sch 17/04

Unreported, available at http://www.disarb. org (last visited Apr. 29, 2019)

V 525

KG

Mar. 7, 1995

14 U 2979/93

KGR 1996, 68

I 163, II 43, 50, 51

KG

Oct. 15, 1999

28 Sch 17/99

BB 2000, Beil. 8, p. 13 = XXVI Y.B. Com. Arb. 328 (2001) = CLOUT Case No. 373

II 48

KG

Aug. 13, 2001

2 W 8057/99

SchiedsVZ 2003, 239

II 314

KG

Mar. 13, 2002

23/29 Sch 20/ 01

XXXII Y.B. Com. Arb. 309 (2007)

V 293, VII 20

KG

Aug. 10, 2006

20 Sch 7/04

SchiedsVZ 2007, 108 = XXXII Y.B. Com. Arb. 363 (2007)

III 17, VII 57

KG

Apr. 17, 2008

20 Sch 2/08

IPRspr. 2008, No. 199, 638 = KGR 2008, 839 = XXXIV Y.B. Com. Arb. 510 (2009)

V 64, 168

KG

June 11, 2009

20 Sch 4/07

XXXV Y.B. Com. Arb. 369 (2010)

V 451, 586

KG

Jan. 18, 2010

20 Sch 9/09

SchiedsVZ 2011, 285

V 35

KG

June 4, 2012

20 Sch 10/11

SchiedsVZ 2013, 112 = XXXVIII Y.B. Com. Arb. 384 (2013)

II 53, 151, IV 37, V 553, VII 89

OLG Brandenburg

Sep. 2, 1999

8 Sch 1/99

BB 2001, Beil. 6, p. 21 = XXIX Y.B. Com. Arb. 697 (2004)

I 87, V 130, 139, 140, 549, 580

OLG Brandenburg

May 11, 2000

8 Sch 2/00

BeckRS 2005, 02036

V 549

OLG Brandenburg

June 13, 2002

8 Sch 2/01

IPRax 2003, 349 = IPRspr. 2002, No. 221, 559 = XXIX Y.B. Com. Arb. 747 (2004)

I 87, IV 37, V 42

OLG Brandenburg

July 24, 2015

11 Sch 2/13

SchiedsVZ 2016, 43

V 19, 35, 36, 39, 40, 41, 42

647

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Cases Germany

New York Convention

Court

Date

File No.

Source

Art. para.

OLG Bremen

Sep. 30, 1999

2 Sch 4/99

BB 2000, Beil. 12, p. 18 = XXXI Y.B. Com. Arb. 640 (2006)

II 243, V 139, 154, 175, 185, 255, 262, 309, 312, 318, 329, 341, 344, 496, 539, 543, 565

OLG Bremen

Nov. 10, 2005

2 Sch 2/05

OLGR Bremen 2006, 263

V 554

OLG Bremen

Oct. 30, 2008

2 Sch 2/08

OLGR Bremen 2009, 155

II 307

OLG Celle

June 5, 1981

–

VII Y.B. Com. Arb. 322 (1982)

VII 80

OLG Celle

Oct. 2, 2001

8 Sch 3/01

XXXII Y.B. Com. Arb. 303 (2007)

V 162, 163, 361

OLG Celle

Aug. 8, 2002

8 Sch 11/01

Unreported, available at http://www.disarb. org (last visited Apr. 29, 2019)

V 572

OLG Celle

Sep. 4, 2003

8 Sch 11/02

IHR 2004, 83 = SchiedsVZ 2004, 165 = XXX Y.B. Com. Arb. 528 (2005)

II 45, IV 21, V 42, 43, 125

OLG Celle

Nov. 20, 2003

8 Sch 2/03

XXX Y.B. Com. Arb. 547 (2005)

V 359, 543, VI 7

OLG Celle

Feb. 19, 2004

8 Sch 9/03

OLGR Celle 2004, 396

V 39

OLG Celle

Oct. 6, 2005

8 Sch 6/05

IPRspr. 2005, No. 188, 518 = XXXII Y.B. Com. Arb. 322 (2007)

V 324, 359, 496, 561, 567a

OLG Celle

Sep. 18, 2006

8 Sch 1/06

IPRspr. 2006, No. 215, 483

IV 14

OLG Celle

Dec. 14, 2006

8 Sch 14/05

XXXII Y.B. Com. Arb. 372 (2007)

IV 37, V 160, 166

OLG Celle

May 31, 2007

8 Sch 6/06

IPRspr. 2007, No. 218, 614 = XXXIII Y.B. Com. Arb. 524 (2008)

IV 37, V 184, 325, 336, 346, 530, 531, 543, 561

OLG Celle

Dec. 4, 2008

8 Sch 13/07

IPRspr. 2008, No. 207, 658

II 307

OLG Dresden

Dec. 5, 1994

2 U 1010/94

OLG-NL 1995, 63 = XXII Y.B. Com. Arb. 266 (1997)

II 48 V 291

OLG Dresden

Oct. 20, 1998

11 Sch 4/98

XXIX Y.B. Com. Arb. 673 (2004)

OLG Dresden

Jan. 13, 1999

11 Sch 6/98

XXIX Y.B. Com. Arb. 679 (2004)

V 568, 572

OLG Dresden

Feb. 20, 2001

11 Sch 2/00

CLOUT Case No. 454 = XXVIII Y.B. Com. Arb. 261 (2003)

V 279

OLG Dresden

Mar. 1, 2004

11 Sch 1/04

XXX Y.B. Com. Arb. 555 (2005)

IV 34

OLG Dresden

Apr. 20, 2005

11 Sch 1/05

SchiedsVZ 2005, 210

V 35, 140

OLG Dresden

Nov. 2, 2005

11 Sch 15/05

XXXI Y.B. Com. Arb. 718 (2006)

IV 37

OLG Dresden

Jan. 31, 2007

11 Sch 18/05

SchiedsVZ 2007, 327 = XXXIII Y.B. Com. Arb. 510 (2008)

V 349, 387, VII 88

OLG Dresden

Dec. 7, 2007

11 Sch 8/07

IHR 2008, 119 = XXXIII Y.B. Com. Arb. 549 (2008)

II 307, V 526, 548

OLG Dresden

Aug. 6, 2008

11 Sch 2/08

SchiedsVZ 2008, 309

V 531

OLG Düsseldorf

Nov. 8, 1971

6 U 52/70

DB 1972, 1060 = IPRspr. 1971, No. 161, 491 = II Y.B. Com. Arb. 237 (1977)

II 54, 98, 127, VII 51, 65, 67

OLG Düsseldorf

Oct. 27, 1975

6 U 2/75

BB 1976, 251

V 340

OLG Düsseldorf

May 26, 1995

17 U 240/94

IPRax 1997, 115

II 135

OLG Düsseldorf

Nov. 17, 1995

17 U 103/95

RIW 1996, 239

II 44

OLG Düsseldorf

Mar. 8, 1996

17 U 179/95

IPRax 1997, 118

II 135

OLG Düsseldorf

Feb. 23, 2000

6 Sch 2/99

EWiR 2000, 795 = 4(4) Int. A.L.R. N25 (2001)

I 102

OLG Düsseldorf

July 15, 2002

6 Sch 5/02

IPRspr. 2002, No. 222, 563

V 579

OLG Düsseldorf

Feb. 27, 2004

I-26 Sch 1/04

SchiedsVZ 2004, 161

II 223, 225

OLG Düsseldorf

July 21, 2004

VI Sch (Kart) 1/02

XXXII Y.B. Com. Arb. 315 (2007)

V 41

OLG Düsseldorf

Jan. 19, 2005

26 Sch 5/03

XXXI Y.B. Com. Arb. 663 (2006)

III 23

OLG Düsseldorf

Dec. 15, 2009

I-4 Sch 10/09

XXXV Y.B. Com. Arb. 386 (2010)

V 543, 561

OLG Düsseldorf

July 22, 2014

I-4 Sch 8/13

IPRspr. 2014, No. 272, 730 = NJOZ 2015, 636

II 98, V 65

OLG Frankfurt

Sep. 30, 1976

23 U 29/76

BB 1977, 17

V 190

648

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Germany Cases

Table of Cases and Awards Court

Date

File No.

Source

Art. para.

OLG Frankfurt

Sep. 24, 1985

5 U 167/84

NJW 1986, 2202

II 236

OLG Frankfurt

June 29, 1989

6 U (Kart) 115/88

RIW 1989, 911 = XVI Y.B. Com. Arb. 546 (1991)

IV 14, V 528, VII 20, 51 II 272

OLG Frankfurt

Oct. 10, 1998

1 U 163/96

IPRax 1999, 247

OLG Frankfurt

Nov. 24, 2005

26 Sch 13/05

SchiedsVZ 2006, 219

V 527

OLG Frankfurt

June 26, 2006

26 Sch 28/05

IPRax 2008, 517 = IPRspr. 2006, No. 212, 477 = XXXII Y.B. Com. Arb. 351 (2007)

II 52, 98, V 42, 60

OLG Frankfurt

Oct. 24, 2006

26 Sch 6/06

SchiedsVZ 2007, 217

II 232

OLG Frankfurt

May 10, 2007

26 Sch 20/06

SchiedsVZ 2007, 278

I 62, V 370

OLG Frankfurt

Oct. 4, 2007

26 Sch 8/07

SchiedsVZ 2008, 96

V 295a

OLG Frankfurt

Oct. 18, 2007

26 Sch 1/07

BeckRS 2011, 25398

V 157

OLG Frankfurt

Oct. 16, 2008

26 Sch 13/08

IPRspr. 2008, No. 203, 646 = XXXIV Y.B. Com. Arb. 527 (2009)

V 69, 363

OLG Frankfurt

Aug. 27, 2009

26 SchH 3/09

XXXV Y.B. Com. Arb. 377 (2010)

V 185, 543, VII 48

OLG Frankfurt

Nov. 23, 2009

26 SchH 12/09

SchiedsVZ 2010, 227

I 71

OLG Frankfurt

Feb. 17, 2011

26 Sch 13/10

SchiedsVZ 2013, 49

V 329

OLG Frankfurt

Jan. 16, 2014

26 Sch 2/13

SchiedsVZ 2014, 206 = XLI Y.B. Com. Arb. 480 (2016)

IV 27, 37, V 318, 324b, 517a, 517b, 530, 548, 549a, 561, VII 44

OLG Frankfurt

Apr. 11, 2014

26 Sch 13/13

SchiedsVZ 2014, 154

V 184

OLG Hamburg

Feb. 16, 1961

3 U 127/60

KTS 1962, 119

V 542

OLG Hamburg

Apr. 15, 1964

5 U 116/63

IPRspr. 1964/65, No. 275, 787 = II Y.B. Com. Arb. 233 (1977)

I 174

OLG Hamburg

Sep. 11, 1969

6 U 53/69

BB 1970, 53

V 536

OLG Hamburg

Mar. 27, 1975

6 U 147/74

IPRspr. 1975, No. 201, 519

V 550

OLG Hamburg

Apr. 3, 1975

6 U 70/74

MDR 1975, 940 = II Y.B. Com. Arb. 241 (1977)

V 142, 184, 189

OLG Hamburg

July 27, 1978

6 U 174/77

IV Y.B. Com. Arb. 266 (1979)

I 49, II 53, IV 13, V 139, 157, 160, 185, 413, 414, XII 11

OLG Hamburg

Sep. 22, 1978

14 U 76/77

RIW 1979, 482 = V Y.B. Com. Arb. 262 (1980)

II 173, 175

OLG Hamburg

Jan. 7, 1980

6 U 25/79

IPRax 1982, 146

I 62

OLG Hamburg

Sep. 6, 1984

6 U 50/84

RIW 1985, 490 = VersR 1985, 470

V 173, 530

OLG Hamburg

Jan. 26, 1989

6 U 71/88

IPRspr. 1990, No. 236, 508 = RIW 1991, 152 = XVII Y.B. Com. Arb. 491 (1992)

V 142, 184, 569

OLG Hamburg

Feb. 17, 1989

1 U 86/87

IPRspr. 1990, No. 237, 513 = RIW 1989, 574 = XV Y.B. Com. Arb. 455 (1990)

II 45, 225

OLG Hamburg

Nov. 5, 1991

6 W 43/91

RIW 1992, 939

V 569

OLG Hamburg

Mar. 12, 1998

6 U 110/97

IPRspr. 1999, No. 178, 425 = XXIX Y.B. Com. Arb. 663 (2004)

II 296, III 13, V 154, 538, 576

OLG Hamburg

July 30, 1998

6 Sch 3/98

NJW-RR 1999, 1738 = BB 1999, Beil. 4, p. 13 = XXV Y.B. Com. Arb. 714 (2000)

II 50, V 156, 178, 180, 247, 329a

OLG Hamburg

Sep. 4, 1998

14 U 111/98

NJW-RR 2000, 806

V 337

OLG Hamburg

Mar. 11, 2003

6 SchH 03/02

SchiedsVZ 2003, 191

V 295b

OLG Hamburg

Sep. 16, 2004

6 Sch 1/04

Unreported, available at http://www.disarb. org (last visited Apr. 16, 2019)

V 176

OLG Hamburg

Mar. 14, 2006

6 Sch 11/05

XXXIV Y.B. Com. Arb. 494 (2009)

IV 35

OLG Hamburg

May 30, 2008

11 Sch 9/07

BeckRS 2008, 20097, also available at http://www.disarb.org (last visited Apr. 29, 2019)

V 69

649

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Cases Germany

New York Convention

Court

Date

File No.

Source

Art. para.

OLG Hamburg

Feb. 3, 2012

6 Sch 2/11

XLI Y.B. Com. Arb. 468 (2016)

IV 28, 37, V 154, 176, 552, 553

OLG Hamburg

Dec. 21, 2012

6 Sch 19/12

SchiedsVZ 2013, 180

V 110

OLG Hamburg

June 29, 2015

6 Sch 19/14

BeckRS 2016, 00538

V 57, 257

OLG Hamm

Nov. 2, 1983

20 U 57/83

IPRax 1985, 218 = XIV Y.B. Com. Arb. 629 (1989)

V 147, 447

OLG Hamm

July 6, 1994

20 U 162/93

RIW 1994, 1052 = XXII Y.B. Com. Arb. 702 (1997)

V 294, VII 51

OLG Hamm

Nov. 15, 1994

29 U 70/92

IPRspr. 1994, No. 185, 416 = XXII Y.B. Com. Arb. 707 (1997)

II 35, 75

OLG Hamm

June 26, 1997

1 U 1/96

RIW 1997, 962

V 157, 160, 162, 166, 548

OLG Hamm

Mar. 7, 2000

15 W 355/99

BB 2000, 1159

V 473

OLG Hamm

June 20, 2001

8 Sch 2/00

NJW-RR 2001, 1362

V 35

OLG Hamm

Sep. 27, 2005

29 Sch 1/05

SchiedsVZ 2006, 106 = XXXI Y.B. Com. Arb. 685 (2006)

IV 27, 37, V 64, 148

OLG Hamm

Nov. 28, 2008

25 Sch 6/08

IPRspr. 2008, No. 206, 654 = XXXIV Y.B. Com. Arb. 536 (2009)

V 162, 188

OLG Hamm

July 13, 2012

I-25 Sch 3/11

SchiedsVZ 2013, 182

II 53, 151a

OLG Jena

Aug. 8, 2007

4 Sch 3/06

SchiedsVZ 2008, 44 = XXXIII Y.B. Com. Arb. 534 (2008)

V 139, 518b, 579

OLG Jena

Nov. 20, 2013

1 Sch 7/13

BeckRS 2016, 15021 = XL Y.B. Com. Arb. 422 (2015)

IV 37, 172, V 295b, 517, 572

OLG Karlsruhe

Mar. 13, 1973

8 U 129/72

II Y.B. Com. Arb. 239 (1977)

II 68, 71

OLG Karlsruhe

Nov. 29, 2001

9 Sch 02/01

Unreported, available at http://www.disarb. org (last visited Apr. 29, 2019)

V 39

OLG Karlsruhe

Mar. 3, 2005

9 Sch 01/01

Unreported, available at http://www.disarb. org (last visited Apr. 29, 2019)

V 328

OLG Karlsruhe

Mar. 27, 2006

9 Sch 2/05

SchiedsVZ 2006, 335 = XXXII Y.B. Com. Arb. 342 (2007)

V 64, 148, 181, 330

OLG Karlsruhe

July 3, 2006

9 Sch 1/06

SchiedsVZ 2006, 281 = XXXII Y.B. Com. Arb. 358 (2007)

V 64

OLG Karlsruhe

Sep. 14, 2007

9 Sch 2/07

SchiedsVZ 2008, 47 = XXXIII Y.B. Com. Arb. 541 (2008)

IV 37, V 64, 224, 300, 528

OLG Karlsruhe

Dec. 20, 2012

9 Sch 02/09

SchiedsVZ 2012, 101 = XXXVIII Y.B. Com. Arb. 379 (2013)

V 57, 65, 147, 195, 496, 542, 543, 549a, 561, 572, 580, VII 57

OLG Karlsruhe

Dec. 19, 2014

10 Sch 10/13

BeckRS 2016, 13702

V 232, 347

OLG Koblenz

Feb. 19, 2004

2 Sch 4/03

OLGR Koblenz 2004, 232, also available at http://www.disarb.org (last visited Apr. 29, 2019)

V 340

OLG Koblenz

July 28, 2005

2 Sch 4/05

SchiedsVZ 2005, 260 = XXXI Y.B. Com. Arb. 673 (2006)

II 296, III 23, V 110

OLG Koblenz

Nov. 27, 2012

2 Sch 2/12

IPRspr. 2012, No. 297, 699 = NJOZ 2013, 271

V 257, 297

OLG Köln

June 10, 1976

1 U 192/74

ZZP 91 (1978), 318 = IV Y.B. Com. Arb. 258 (1979)

IV 14, 30, V 145, 155, 281, VII 51, 59

OLG Köln

May 18, 1992

19 U 22/92

EuZW 1992, 711 = RIW 1992, 760 = XIX Y.B. Com. Arb. 856 (1994)

II 96, 173

OLG Köln

Dec. 16, 1992

16 W 43/92

IPRax 1993, 399 = RIW 1993, 499 = XXI Y.B. Com. Arb. 535 (1996)

II 156, 169, 175, V 162, 175, 359, VII 86

OLG Köln

Feb. 15, 2000

9 Sch 13/99

XXIX Y.B. Com. Arb. 715 (2004)

V 244, 549

OLG Köln

Nov. 13, 2000

9 Sch 4/00

XXIX Y.B. Com. Arb. 722 (2004)

IV 27

OLG Köln

Apr. 23, 2004

9 Sch 1/03

SchiedsVZ 2005, 163 = XXX Y.B. Com. Arb. 557 (2005)

IV 37, V 19, 35, 139, 140, 174, 184, 549, VII 44

650

Reemers Publishing Services GmbH O:/Beck/Wolff_978-3-406-71445-0/3d/04_Table of Cases and Awards.3d from 18.10.2019 11:06:06 3B2 9.1.580; Page size: 160.00mm  240.00mm

Germany Cases

Table of Cases and Awards Court

Date

File No.

Source

Art. para.

OLG Köln

Oct. 9, 2009

19 Sch 19/09

BeckRS 2011, 19885

V 153

OLG Köln

Sep. 26, 2013

19 Sch 15/11

XXXIX Y.B. Com. Arb. 399 (2014)

III 17

OLG Köln

Feb. 21, 2014

19 Sch 18/13

XL Y.B. Com. Arb. 425 (2015)

IV 35, 37, V 131

OLG Köln

Feb. 26, 2014

19 Sch 12/13

SchiedsVZ 2014, 203 = XLI Y.B. Com. Arb. 484 (2016)

IV 37, V 35, 286, 300, 304

OLG Köln

Oct. 6, 2014

19 Sch 17/13

IPRspr. 2014, No. 291, 772

V 65

OLG München

Feb. 13, 1995

17 U 6591/93

OLGR München 1995, 57

V 393

OLG München

Mar. 8, 1995

7 U 5460/94

NJW-RR 1996, 1532

II 139, 140

OLG München

June 22, 2005

34 Sch 10/05

SchiedsVZ 2005, 308

V 338

OLG München

Nov. 28, 2005

34 Sch 19/04

SchiedsVZ 2006, 111 = XXXI Y.B. Com. Arb. 722 (2006)

IV 37, V 153, 184, 536, VII 44

OLG München

Mar. 15, 2006

34 Sch 6/05

IPRspr. 2006, No. 206, 467 = OLGR München 2006, 404 = XXXIV Y.B. Com. Arb. 499 (2009)

IV 37, V 48, 57, 286, 305

OLG München

May 17, 2006

7 U 1781/06

WM 2006, 1556

II 307, V 434, 435

OLG München

Jan. 22, 2007

34 Sch 18/06

Unreported, available at http://www.disarb. org (last visited Apr. 16, 2019)

V 195

OLG München

Jan. 29, 2007

34 Sch 23/06

NJW 2007, 2129

V 549a

OLG München

Feb. 23, 2007

34 Sch 31/06

OLGR München 2007, 684 = XXXIII Y.B. Com. Arb. 517 (2008)

IV 37, V 536, VII 35

OLG München

Dec. 17, 2008

34 Sch 18/08

BeckRS 2011, 08218 = XXXV Y.B. Com. Arb. 359 (2010)

V 523

OLG München

Jan. 19, 2009

34 Sch 4/08

OLGR München 2009, 263 = XXXV Y.B. Com. Arb. 362 (2010)

V 42, 43, VII 89

OLG München

Apr. 20, 2009

34 Sch 17/08

OLGR München 2009, 482

V 190

OLG München

June 22, 2009

34 Sch 26/08

OLGR München 2009, 679 = SchiedsVZ 2010, 169 = XXXV Y.B. Com. Arb. 371 (2010)

IV 14, V 153, 185, 287, 317, 336, 518b, 561, VII 44

OLG München

Oct. 12, 2009

34 Sch 20/08

SchiedsVZ 2009, 340 = XXXV Y.B. Com. Arb. 383 (2010)

V 42, 125, VII 44

OLG München

Nov. 23, 2009

34 Sch 13/09

SchiedsVZ 2010, 50 = XXXVI Y.B. Com. Arb. 273 (2011)

II 99, VII 48

OLG München

Feb. 3, 2010

34 Sch 24/09

SchiedsVZ 2010, 336

I 99

OLG München

July 15, 2010

34 Sch 14/10

IPRspr. 2010, No. 305, 753

V 524

OLG München

July 4, 2011

34 Sch 20/11

XXXVII Y.B. Com. Arb. 229 (2012)

III 17, 18

OLG München

July 11, 2011

34 Sch 15/10

SchiedsVZ 2011, 337

II 130

OLG München

Nov. 14, 2011

34 Sch 10/11

SchiedsVZ 2012, 43 = XXXVII Y.B. Com. Arb. 231 (2012)

IV 37, V 153, 185, 542, 543, 551

OLG München

Feb. 28, 2012

34 Sch 30/10

Unreported, available at http://www.disarb. org (last visited Apr. 27, 2019)

I 30

OLG München

Mar. 6, 2012

34 Sch 3/10

XLI Y.B. Com. Arb. 472 (2016)

IV 27, V 193, 542, 543, 552, 553

OLG München

Apr. 11, 2012

34 Sch 21/11

IPRspr. 2012, No. 291, 670 = SchiedsVZ 2012, 156 = XXXIX Y.B. Com. Arb. 389 (2014)

IV 37, V 19, 174, 236, 332, 334

OLG München

June 21, 2012

34 Sch 7/12

XXXIX Y.B. Com. Arb. 392 (2014)

IV 37, V 154, 547

OLG München

July 30, 2012

34 Sch 18/10

SchiedsVZ 2012, 339 = XXXIX Y.B. Com. Arb. 394 (2014)

IV 37, V 566, VII 44, 57

OLG München

Nov. 19, 2012

34 Sch 7/11

SchiedsVZ 2013, 62 = XLI Y.B. Com. Arb. 476 (2016)

II 51, IV 13, 34, 37

OLG München

Feb. 25, 2013

34 Sch 12/12

SchiedsVZ 2013, 230

IV 14

OLG München

Mar. 27, 2013

34 Sch 27/10

SchiedsVZ 2013, 179

IV 27

OLG München

Jan. 15, 2015

U 1110/14 Kart

SchiedsVZ 2015, 40

V 561, 579

OLG München

May 19, 2015

34 Sch 24/14

SchiedsVZ 2016, 118

V 36a

651

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Cases Germany Court

Date

New York Convention File No.

Source

Art. para.

OLG München

Nov. 9, 2015

34 Sch 27/14

SchiedsVZ 2015, 303

V 338, 344

OLG München

Nov. 8, 2016

34 Sch 11/15

BeckRS 2016, 20383

V 35

OLG Naumburg

Feb. 21, 2002

10 Sch 8/01

NJW-RR 2003, 71

V 329a

OLG Naumburg

May 21, 2004

10 Sch 06/03

Unreported, available at http://www.disarb. org (last visited Apr. 29, 2019)

V 282, 332

OLG Naumburg

Mar. 4, 2011

10 Sch 4/10

SchiedsVZ 2011, 228 = XXXVII Y.B. Com. Arb. 226 (2012)

V 184, 185, 195, 234

OLG Nürnberg

Nov. 26, 1965

6 U 73/64

KTS 1966, 111

III 12

OLG Oldenburg

Feb. 1, 2005

9 SchH 03/04

Unreported, available at http://www.disarb. org (last visited Apr. 29, 2019)

II 53

OLG Rostock

Oct. 28, 1999

1 Sch 3/99

BB 2000, Beil. 37, p. 20 = XXV Y.B. Com. Arb. 717 (2000)

I 83, IV 18, 37, V 387, VII 35

OLG Rostock

Nov. 22, 2001

1 Sch 3/00

IPRax 2002, 401

V 42

OLG Saarbrücken

May 30, 2011

4 Sch 3/10

SchiedsVZ 2012, 47

III 23, IV 2, V 110, 140, 185

OLG Schleswig

June 24, 1999

16 SchH 1/99

XXIX Y.B. Com. Arb. 687 (2004)

V 142, 303, 318, 332, 496, 530

OLG Schleswig

Mar. 30, 2000

16 SchH 5/99

IPRspr. 2000, No. 185, 409 = RIW 2000, 706 = XXXI Y.B. Com. Arb. 652 (2006)

II 53, 75, 76, 137, 140, 234, IV 20, 31, V 42, 48, 53, 59, 64, 140, 148, 496, 557

OLG Schleswig

Oct. 19, 2000

16 Sch 01/00

Unreported, available at http://www.disarb. org (last visited Apr. 29, 2019)

V 223

OLG Schleswig

July 15, 2003

16 Sch 1/03

SchiedsVZ 2003, 237 = XXX Y.B. Com. Arb. 524 (2005)

IV 10, 27

OLG Schleswig

June 16, 2008

16 Sch 2/07

IPRspr. 2008, No. 200, 640 = XXXIV Y.B. Com. Arb. 516 (2009)

IV 27

OLG Schleswig

May 15, 2009

16 Sch 1/09

SchiedsVZ 2010, 276

IV 27

OLG Stuttgart

June 2, 1981

5 W 33/80

VII Y.B. Com. Arb. 326 (1982)

VII 65

OLG Stuttgart

Dec. 22, 1986

5 U 3/86

IPRax 1987, 369 = RIW 1988, 480

V 142, 514

OLG Stuttgart

Oct. 18, 1999

5 U 89/98

Unreported, available at http://www.disarb. org (last visited Apr. 29, 2019)

V 527

OLG Stuttgart

Oct. 4, 2000

1 Sch 13/99

OLGR Stuttgart 2001, 50

V 35

OLG Stuttgart

Mar. 15, 2001

1 Sch 5/00

IPRspr. 2001, No. 204, 437

V 543, 572

OLG Stuttgart

Dec. 6, 2001

1 Sch 12/01

XXIX Y.B. Com. Arb. 742 (2004)

V 53, 154, 184, 185, 193, 232, 246, 571

OLG Stuttgart

July 16, 2002

1 Sch 8/02

SchiedsVZ 2003, 84

V 292

OLG Stuttgart

Oct. 14, 2003

1 Sch 16/02

BeckRS 2003, 18189, also available at http://www.disarb.org (last visited Apr. 29, 2019)

V 80, 300, 303, 305, 317, 318, 332, 333, 338, 339, 542, 543

OLG Stuttgart

July 30, 2010

1 Sch 3/10

SchiedsVZ 2011, 49

V 193, 195

OLG Stuttgart

Dec. 29, 2011

5 U 126/11

BeckRS 2012, 18825

V 435 II 130, 177

OLG Stuttgart

Dec. 21, 2015

1 SchH 1/15

IHR 2016, 236

LG Berlin

Dec. 4, 1964

81 OH 8/64

KTS 1966, 182

V 557

LG Bonn

Nov. 3, 1995

5 AR 30/95

NJW 1996, 2168

V 295b

LG Bremen

Dec. 16, 1965

12 OH 2/65

IPRspr. 1964/65, No. 284, 808 = II Y.B. Com. Arb. 233 (1977)

II 98

LG Bremen

June 8, 1967

11 OH 11/66

II Y.B. Com. Arb. 234 (1977)

I 82, 83

LG Bremen

Jan. 20, 1983

–

XII Y.B. Com. Arb. 486 (1987)

V 156, 189

LG Hamburg

Dec. 19, 1967

–

II Y.B. Com. Arb. 235 (1977)

II 102, 156

LG Hamburg

Mar. 16, 1977

5 O 142/76

RIW 1978, 124 = III Y.B. Com. Arb. 274 (1978)

II 45, 156

LG Hamburg

Apr. 24, 1979

5 O 112/79

RIW 1979, 493 = V Y.B. Com. Arb. 264 (1980)

VII 65, 66, 69

652

Reemers Publishing Services GmbH O:/Beck/Wolff_978-3-406-71445-0/3d/04_Table of Cases and Awards.3d from 18.10.2019 11:06:09 3B2 9.1.580; Page size: 160.00mm  240.00mm

Table of Cases and Awards

Hong Kong

Cases

Court

Date

File No.

Source

Art. para.

LG Hamburg

Dec. 10 and 30, 1985

–

XII Y.B. Com. Arb. 487 (1987)

II 156, V 527, 530, 532

LG Hamburg

July 27, 1990

70 O 56/89

RIW 1991, 419

V 42

LG Hamburg

Sep. 18, 1997

305 O 453/96

XXV Y.B. Com. Arb. 710 (2000)

V 198, 243, 244, VII 89

LG Hannover

Nov. 20, 1980

–

VII Y.B. Com. Arb. 322 (1982)

II 98, 127

LG Heidelberg

Oct. 23, 1972

–

II Y.B. Com. Arb. 239 (1977)

II 68, 71

LG Krefeld

June 16, 2011

5 O 334/08

IPRspr. 2011, No. 302, 808

II 94

LG München I

June 20, 1978

–

V Y.B. Com. Arb. 260 (1980)

I 164, II 127, IV 21, V 523

LG Zweibrücken

Jan. 11, 1978

–

IV Y.B. Com. Arb. 262 (1979)

II 98, 102, V 19, 156, 157, 561

AG Singen

Oct. 26, 1983

3 C 177/83

IPRax 1984, 276

II 99

Greece Court

Date

Source

Art. para.

Areios Pagos

1973

I Y.B. Com. Arb. 186 (1976)

IV 2, 33

Areios Pagos

Jan. 14, 1977

IV Y.B. Com. Arb. 269 (1979)

V 61

Areios Pagos

Mar. 20, 1997

XXIII Y.B. Com. Arb. 654 (1998)

II 76

Areios Pagos

2007

XXXIII Y.B. Com. Arb. 570 (2008)

V 546

Areios Pagos

May 16, 2007

XXXIII Y.B. Com. Arb. 565 (2008)

III 26, V 557

Areios Pagos

June 30, 2009

XXXVI Y.B. Com. Arb. 284 (2011)

V 579

CA Athens

1972

I Y.B. Com. Arb. 186 (1976)

IV 33

CA Athens

1976

XIV Y.B. Com. Arb. 634 (1989)

I 142, II 148

CA Athens

1984

XIV Y.B. Com. Arb. 637 (1989)

V 557, 561

CA Athens

1984

XIV Y.B. Com. Arb. 638 (1989)

II 53, 157

CA Athens

July 18, 2011

XXXVII Y.B. Com. Arb. 234 (2012)

III 18, IV 32, V 560, 561, 567a

CA Patras

1982

XIV Y.B. Com. Arb. 636 (1989)

V 160

Hong Kong Parties

Court

Date

Source

Art. para.

A v. R

High Court (Court of First Instance)

Apr. 30, 2009

[2009] HKLRD 389

V 568

Apex Tech Investment Ltd. v. Chuang’s Development (China) Ltd.

High Court (Court of Appeal)

Mar. 15, 1996

[1996] 2 HKLR 155

V 142, 143

Astro v. Lippo

High Court (Court of Appeal)

Dec. 5, 2016

XLII Y.B. Com. Arb. 389 (2017)

IV 20

Brunswick Bowling & Billiards Corp. v. Shanghai Zhonglu Industrial Co. Ltd.

High Court (Court of Appeal)

Feb. 10, 2009

[2011] 1 HKLRD 707 = [2009] HKCFI 94

V 171, 192

China Nanhai Oil Joint Service Corp. Shenzhen Branch v. Gee Tai Holdings Co. Ltd.

Sup. Ct.

July 13, 1994

XX Y.B. Com. Arb. 671 (1995)

V 75, 280, 306, 315

Dana Shipping and Trading SA v. Sino Channel Asia Ltd.

High Court (Court of First Instance)

July 28, 2016

XLII Y.B. Com. Arb. 385 (2017)

V 387

Democratic Republic of the Congo v. FG Hemisphere Associates LLC

Court of Final Appeal

June 8, 2011

[2011] HKEC 747

I 150

FG Hemisphere Associates LLC v. Democratic Republic of the Congo

High Court (Court of First Instance)

Dec. 12, 2008

[2010] HKEC 194 = XXXIV Y.B. Com. Arb. 596 (2009)

I 150

653

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Cases Hong Kong

New York Convention

Parties

Court

Date

Source

Art. para.

Guangdong Agriculture Company Ltd. v. Conagra International (Far East) Ltd.

Sup. Ct.

Sep. 24, 1992

XVIII Y.B. Com. Arb. 187 (1993) = CLOUT Case No. 41

II 60

Guangdong New Technology Import & Export Corp. Jiangmen Branch v. Chiu Shing trading as B.C. Property & Trading Co.

Sup. Ct.

Aug. 23, 1991

XVIII Y.B. Com. Arb. 385 (1993)

IV 13, V 142, 165

Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd.

High Court

Nov. 1, 1996

[1996] 3 HKC 725

VI 7, 9, 19, 20

Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd.

Court of Final Appeal

Feb. 9, 1999

[1999] 2 HKC 205 = XXIVa Y.B. Com. Arb. 652 (1999)

V 56, 380, 514, 518b

J.J. Agro Industries (P) Ltd. v. Texuna International Ltd.

Sup. Ct.

Aug. 12, 1992

XVIII Y.B. Com. Arb. 396 (1993)

V 83, 519a, 553

Jiangxi Provincial Metal & Minerals Import & Export Corp. v. Sulanser Co. Ltd.

Sup. Ct.

Apr. 6, 1995

XXI Y.B. Com. Arb. 546 (1996)

II 104

Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

High Court (Court of First Instance)

Dec. 20, 2002

XXVIII Y.B. Com. Arb. 752 (2003)

VI 5, 18

Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

High Court (Court of First Instance)

Mar. 27, 2003

XXVIII Y.B. Com. Arb. 752 (2003)

V 244, 404, 405

Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

High Court (Court of Appeal)

Oct. 9, 2007

[2007] 5 HKC 91 = XXXIII Y.B. Com. Arb. 574 (2008)

V 562

L v. B

High Court (Court of First Instance)

May 5, 2016

[2016] HKEC 1100 = XLI Y.B. Com. Arb. 490 (2016)

III 9, VI 18

Logy Enterprise Ltd. v. Haikou City Bonded Area Wansen Products Trading Co.

High Court (Court of Appeal)

June 6, 1997

[1997] 2 HKC 481 = XXIII Y.B. Com. Arb. 660 (1998)

V 295, 531

Medison Co., Ltd. v. Victor (Far East) Ltd.

High Court (Court of First Instance)

Apr. 8, 2000

15(5) Mealey’s Int’l Arb. Rep. 15 (2000) = XXVI Y.B. Com. Arb. 774 (2001)

IV 27, 32

Pacific China Holdings Ltd. (in liquidation) v. Grand Pacific Holdings Ltd.

High Court (Court of Appeal)

May 9, 2012

[2012] HKCA 200 = XXXVIII Y.B. Com. Arb. 577 (2013)

V 130, 190

Paklito Investment Ltd. v. Klockner East Asia Ltd.

Sup. Ct.

Jan. 15, 1993

[1993] 2 HKLR 39 = XIX Y.B. Com. Arb. 664 (1994)

V 63b, 80, 139, 170, 177, 380

Polytek Engineering Co. Ltd. v. Hebei Import & Export Corp.

High Court (Court of Appeal)

Jan. 16, 1998

XXIII Y.B. Com. Arb. 666 (1998)

V 142, 177, 191, VI 7

Qinhuangdao Tongda Enterprise Development Co. v. Million Basic Co. Ltd.

Sup. Ct.

Jan. 5, 1993

[1993] 1 HKLR 173 = XIX Y.B. Com. Arb. 675 (1994)

V 157, 539

Shandong Hongri Acron Chemical Joint Stock Co. Ltd. v. Petrochina International (Hong Kong) Corp. Ltd.

High Court (Court of Appeal)

June 13, 2011

XXXVI Y.B. Com. Arb. 287 (2011)

III 26

Shenzhen Nan Da Industrial and Trade United Co. Ltd. v. FM International Ltd.

Sup. Ct.

Mar. 2, 1991

XVIII Y.B. Com. Arb. 377 (1993)

V 147

Société Nationale d’Opérations Pétrolières de la Côte d’Ivoire – Holding v. Keen Lloyd Resources Ltd.

High Court (Court of First Instance)

Dec. 20, 2001

XXIX Y.B. Com. Arb. 776 (2004)

V 361, 363, 365

Sun Tiang Gang v. Hong Kong & China Gas (Jilin) Ltd.

High Court (Court of First Instance)

Sep. 21, 2016

[2016] HKEC 2128

V 168

T v. C

High Court (Court of First Instance)

Mar. 14, 2016

XLI Y.B. Com. Arb. 487 (2016)

V 361a, 553, VI 6

654

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India Cases

Table of Cases and Awards Parties

Court

Date

Source

Art. para.

Tai Hing Cotton Mill Ltd. v. Glencore Grain Rotterdam BV

High Court (Court of Appeal)

Nov. 24, 1995

[1996] 1 HKC 363

II 263

Trade United Co. Ltd. v. FM International Ltd.

Sup. Ct.

Mar. 2, 1991

XVIII Y.B. Com. Arb. 377 (1993)

V 56

U v. S

High Court (Court of First Instance)

Sep. 6, 2018

[2018] HKCFI 2086 = XLIV Y.B. Com. Arb. ___ (2019)

VI 7

York Air Conditioning & Refrigeration Co. Inc. v. Lam Kwai Hung t/a North Sea A/C Electrical Engineering Co.

Sup. Ct.

Dec. 16, 1994

[1995] 1 HKC 287

V 208

India Parties

Court

Date

Source

Art. para.

Alcatel India Ltd. v. Koshika Telecom Ltd.

High Court of Delhi

Sep. 6, 2004

2004 Arb. L.R. 107

V 552

Alimenta S.A. v. National Agricultural Co-operative

Sup. Ct.

Jan. 9, 1987

[1987] INSC 6

II 137

Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc.

Sup. Ct.

Sep. 6, 2012

CLOUT Case No. 1424 = XXXVII Y.B. Com. Arb. 244 (2012)

V 41, 409

Brace Transport Corp. of Monrovia (Liberia) v. Orient Middle East Lines Ltd.

Sup. Ct.

Oct. 12, 1993

AIR 1994 SC 1715 = XXI Y.B. Com. Arb. 552 (1996)

III 17

Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd.

Sup. Ct.

May 9, 2006

2006 Arb. L.R. 201

V 172

COSID Inc. v. Steel Authority of India Ltd.

High Court of Delhi

July 12, 1985

XI Y.B. Com. Arb. 502 (1986)

V 414, 510, 511

Cruz City 1 Mauritius Holdings v. Unitech Ltd.

High Court of Delhi

Apr. 11, 2017

XLII Y.B. Com. Arb. 407 (2017)

V 148, 495, 561, 582

Daiichi Sankyo Company Ltd. v. Malvinder Mohan Singh

High Court of Delhi

Jan. 31, 2018

XLIII Y.B. Com. Arb. 459 (2018)

V 581

Django Navigation Ltd. v. Indo Ferro Metal Private Ltd.

High Court of Rajasthan

Feb. 2, 2018

XLIII Y.B. Com. Arb. 466 (2018)

V 561

Gas Authority of India, Ltd. v. SPIE-CAPAG, S.A.

High Court of Delhi

Oct. 15, 1993

AIR 1994 Delhi 75 = XXIII Y.B. Com. Arb. 688 (1998)

Prel. Rem. 28, II 30, 34, 55, VII 51

General Electric Co. v. Renusagar Power Co.

Sup. Ct.

Aug. 11, 1987

[1987] 4 S.C.C. 137 = XIV Y.B. Com. Arb. 663 (1989)

II 323

General Electric Co. v. Renusagar Power Co.

High Court of Bombay

Oct. 21, 1988

XV Y.B. Com. Arb. 465 (1990)

IV 14, 27

Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain (India)

High Court of Delhi

Nov. 27, 2008

541/1998 (unreported), available at https://indiankanoon.org/doc/ 106881467 (last visited Apr. 16, 2019)

IV 36, V 157

Harendra H. Mehta v. Mukesh H. Mehta

Sup. Ct.

May 13, 1999

[1999] 97 Com.Cas. 265 = XXV Y.B. Com. Arb. 721 (2000)

I 50, 75, IV 15, V 414

Indian Organic Chemical Ltd. v. Chemtex Fibres Inc.

High Court of Bombay

Apr. 4, 1977

AIR 1978 Bom. 106 = IV Y.B. Com. Arb. 271 (1979)

I 185

International Investor KCS v. Sanghi Polyesters Ltd.

High Court of Andhra Pradesh

Sep. 9, 2002

2003 (1) ALT 364 = XXX Y.B. Com. Arb. 577 (2005)

V 139, 149

Josef Meissner GmbH & Co. v. Kanoria Chemicals & Industries, Ltd.

High Court of Calcutta

Jan. 1, 1986

XIII Y.B. Com. Arb. 497 (1988)

I 185, II 70

Kamani Engineering Corp. v. Société de Traction

High Court of Bombay

July 10, 1963

AIR 1965 Bom. 114

I 185

Ludwig Wünsche & Co. v. Raunaq International

High Court of Delhi

Apr. 12, 1982

IX Y.B. Com. Arb. 403 (1984)

V 565

655

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Cases India

New York Convention

Parties

Court

Date

Source

Art. para.

Marriott International Inc. v. Ansal Hotels Ltd.

High Court of Delhi

July 5, 2000

XXVI Y.B. Com. Arb. 788 (2001)

I 66

Mukesh H. Mehta v. Harendra Mehta

High Court of Bombay

Feb. 24, 1995

1995 (2) Mah. L.J. 644

V 582

National Thermal Power Corp. v. The Singer Co.

Sup. Ct.

May 7, 1992

XVIII Y.B. Com. Arb. 403 (1993)

I 131, II 43

Northern Sales Co. Ltd. v. Reliable Extraction Industries Pvt. Ltd.

High Court of Bombay

Nov. 19, 1984

AIR 1985 Bom. 332 = XIV Y.B. Com. Arb. 644 (1989)

I 49, 50

Noy Vallesina Engineering Spa v. Jindal Drugs Ltd.

High Court of Bombay

June 5, 2006

2006 (5) Bom. C.R. 155

III 14

Orient Middle East Lines Ltd., Bombay v. M/s Brace Transport Corp. of Monrovia

High Court of Gujarat

Apr. 19, 1985

XIV Y.B. Com. Arb. 648 (1989)

III 14

Owners & Parties Interested in the Vessel M.V. Baltic Confidence v. State Trading Corp. of India

Sup. Ct.

Aug. 20, 2001

XXVII Y.B. Com. Arb. 478 (2002)

II 148, 149

Penn Racquet Sports v. Mayor International Ltd.

High Court of New Delhi

Jan. 11, 2011

XXXVI Y.B. Com. Arb. 293 (2011)

V 561, 586

Renusagar Power Co. Ltd. v. General Electric Co.

Sup. Ct.

Aug. 6, 1984

X Y.B. Com. Arb. 431 (1985)

II 223

Renusagar Power Co. Ltd. v. General Electric Co.

High Court of Bombay

Oct. 12, 1989

XVI Y.B. Com. Arb. 553 (1991)

IV 9, 13, 14, 28, 32, V 569

Renusagar Power Co. Ltd. v. General Electric Co.

Sup. Ct.

Oct. 7, 1993

AIR 1994 SC 860 = XX Y.B. Com. Arb. 681 (1995)

V 5, 19, 511, 555, 561, 569, 582, 585, 586

RM Investment & Trading Co. Pvt. Ltd. v. Boeing Co.

Sup. Ct.

Feb. 10, 1994

XXII Y.B. Com. Arb. 710 (1997)

I 184, 186

Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd.

Sup. Ct.

Aug. 12, 2005

[2005] 7 S.C.C. 234 = XXXI Y.B. Com. Arb. 747 (2006)

II 301, 307

Shri Lal Mahal Ltd. v. Progetto Grano SpA

Sup. Ct.

July 3, 2013

XXXVIII Y.B. Com. Arb. 397 (2013)

V 586

Smita Conductors Ltd. v. Euro Alloys Ltd.

Sup. Ct.

Aug. 31, 2001

XXVII Y.B. Com. Arb. 482 (2002)

II 99, V 583

Swiss Singapore Overseas Enterprises Pvt. Ltd. v. M/V African Trader

High Court of Gujarat

Feb. 5, 2005

XXXV Y.B. Com. Arb. 398 (2010)

I 174

Transocean Shipping Agency Ltd. v. Black Sea Shipping

Sup. Ct.

Jan. 14, 1998

XXIII Y.B. Com. Arb. 713 (1998)

V 531

Tropic Shipping Co. Ltd. v. Kothari Global Ltd.

High Court of Bombay

Oct. 9, 2001

2002 (3) Bom. L.R. 44

V 561

Union of India v. Lief Hoegh & Co.

High Court of Gujarat

May 4, 1982

AIR 1978 Gujarat 34 = IX Y.B. Com. Arb. 405 (1984)

I 142, 186

Venture Global Engineering v. Satyam Computer Systems Ltd.

Sup. Ct.

Jan. 10, 2008

[2008] 4 S.C.C. 190

V 519a

International Courts Court

Parties

Case

Date

Source

Art. para.

ECJ

Marc Rich & Co. AG v. Società Italiana Impianti PA

C-190/89

July 25, 1991

NJW 1993, 189

VII 111

ECJ

Van Uden Maritime BV v. Kommanditgesellschaft in Firma Deco-Line

C-391/95

Nov. 17, 1998

EuZW 1999, 413

VII 111

656

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Table of Cases and Awards

Israel

Cases

Court

Parties

Case

Date

Source

Art. para.

ECJ

Eco Swiss China Time Ltd. v. Benetton International NV

C-126/97

June 1, 1999

[1999] ECR I-3055 = EuZW 1999, 565 = XXIVa Y.B. Com. Arb. 629 (1999)

V 5, 431, 456, 457, 512, 579

ECJ

Überseering BV v. Nordic Construction Co. Baumanagement GmbH

C-208/00

Nov. 5, 2002

[2002] ECR I-9919 = NJW 2002, 3614

V 107

ECJ

Elisa María Mostaza Claro v. Centro Móvil Milenium SL

C-168/05

Oct. 26, 2006

[2006] ECR I-10421 = XXXII Y.B. Com. Arb. 127 (2007)

V 581

ECJ

Allianz SpA v. West Tankers Inc.

C-185/07

Feb. 10, 2009

SchiedsVZ 2009, 120

VII 112

ECJ

Gazprom OAO v. Lietuvos Respublika

C-536/13

May 13, 2015

EuZW 2015, 509

VII 112

ECHR

Suovaniemi v. Finland

Case 31737/96

Feb. 23, 1999

Unreported, available at http://echr.ketse.com/doc/ 31737.96-en-19990223/view/ (last visited Apr. 29, 2019)

V 530

PCIJ

Case of the Factory at Chorzow

Judgment No. 11

Dec. 16, 1927

PCIJ Series A, No. 13

III 9

ICJ

Reservations to the Convention on Genocide

General List No. 12

May 28, 1951

ICJ Reports 1951, p. 15

X 34

ICJ

Territorial Dispute (Libyan Arab Jamahiriya v. Chad)

General List No. 83

Feb. 3, 1994

ICJ Reports 1994, p. 6

Prel. Rem. 77

ICJ

Oil Platforms (Islamic Republic of Iran v. United States of America)

General List No. 90

Dec. 12, 1996

ICJ Reports 1996, p. 803

XVI 6, 7

ICJ

Kasikili/Sedudu Island (Botswana v. Namibia)

General List No. 98

Dec. 13, 1999

ICJ Reports 1999, p. 1045

Prel. Rem. 77

Ireland Parties

Court

Date

Source

Art. para.

Brorostrom Tankers AB v. Factorias Vulcano SA

High Court

May 19, 2004

XXX Y.B. Com. Arb. 591 (2005)

V 580

Kastrup Trae-Aluvinduet A/S v. Aluwood Concepts Ltd.

High Court

Nov. 13, 2009

XXXV Y.B. Com. Arb. 404 (2010)

V 183

Patrick Ryan v. Kevin O’Leary (Clonmel) Ltd.

High Court

Nov. 23, 2018

[2018] IEHC 660

V 40, 41

Yukos Capital SARL v. OAO Tomskneft

High Court

Mar. 13, 2014

[2014] IEHC 115

III 17

Israel Parties

Court

Date

Source

Art. para.

Alia – The Royal Airlines Plc (Royal Jordanian) v. Tiulei Hagalil Transport (1987) Ltd.

Tel Aviv District Court

June 15, 2014

XL Y.B. Com. Arb. 444 (2015)

II 27

Darie Engineering Ltd. v. Alstom International SAS

Tel Aviv District Court

Feb. 17, 2013

XXXIX Y.B. Com. Arb. 413 (2014)

II 88

Darie Engineering Ltd. v. Alstom International SAS

Sup. Ct.

Feb. 13, 2014

XXXIX Y.B. Com. Arb. 413 (2014)

II 88

Epis S.A. v. Medibar Ltd.

Jerusalem District Court

Nov. 23, 2004

XXXI Y.B. Com. Arb. 786 (2006)

V 147, 536

657

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Cases Israel

New York Convention

Parties

Court

Date

Source

Art. para.

Gad Chemicals Ltd. v. BIP Chemicals Ltd.

Sup. Ct.

Dec. 27, 2012

CLOUT Case No. 1329

V 41

The Ukrainian Ministry of Material Provisions v. Vioans Ltd.

Central District Court

Apr. 15, 2012

XXXVII Y.B. Com. Arb. 250 (2012) = CLOUT Case No. 1172

V 270, 293, 553

Zeevi Holdings Ltd. v. The Republic of Bulgaria

Jerusalem District Court

Jan. 13, 2009

XXXIV Y.B. Com. Arb. 632 (2009)

III 22, V 1, 21

Italy Court

Date

Source

Art. para.

Cass., sez. un.

Dec. 13, 1971

I Y.B. Com. Arb. 190 (1976)

II 27, 98, 138, XII 11

Cass., sez. un.

Nov. 10, 1973

I Y.B. Com. Arb. 192 (1976)

II 26

Cass., sez. un.

Apr. 8, 1975

II Y.B. Com. Arb. 247 (1977)

II 75

Cass., sez. un.

May 25, 1976

III Y.B. Com. Arb. 278 (1978)

II 75

Cass.

Jan. 20, 1977

IV Y.B. Com. Arb. 279 (1979)

V 166, 173, VII 65, 66

Cass., sez. un.

Jan. 25, 1977

IV Y.B. Com. Arb. 284 (1979)

II 27, V 448

Cass., sez. un.

May 12, 1977

IV Y.B. Com. Arb. 286 (1979)

II 89

Cass.

Apr. 17, 1978

IV Y.B. Com. Arb. 282 (1979)

I 87

Cass., sez. un.

May 18, 1978

V Y.B. Com. Arb. 267 (1980)

II 94, 149

Cass.

Sep. 18, 1978

IV Y.B. Com. Arb. 296 (1979)

I 39, V 60

Cass., sez. un.

Apr. 15, 1980

VI Y.B. Com. Arb. 233 (1981)

II 75

Cass., sez. un.

Oct. 7, 1980

VII Y.B. Com. Arb. 342 (1982)

II 76, VII 68

Cass.

Jan. 28, 1982

IX Y.B. Com. Arb. 423 (1984)

V 165, 166

Cass.

Feb. 8, 1982

IX Y.B. Com. Arb. 418 (1984)

V 344, 345, VII 78, 84, 90

Cass., sez. un.

July 6, 1982

IX Y.B. Com. Arb. 429 (1984)

I 39, II 96, 98

Cass., sez. un.

Dec. 15, 1982

X Y.B. Com. Arb. 464 (1985)

I 39, II 45, 156

Cass.

June 27, 1983

X Y.B. Com. Arb. 470 (1985)

IV 20, V 131, 160

Cass.

Dec. 20, 1983

X Y.B. Com. Arb. 473 (1985)

II 141

Cass.

Jan. 10, 1984

XI Y.B. Com. Arb. 513 (1986)

VII 86

Cass.

Feb. 21, 1984

X Y.B. Com. Arb. 480 (1985)

II 76

Cass.

July 30, 1984

XI Y.B. Com. Arb. 519 (1986)

II 58

Cass., sez. un.

June 3, 1985

XI Y.B. Com. Arb. 518 (1986)

II 153

Cass.

Jan. 27, 1986

XII Y.B. Com. Arb. 496 (1987)

V 166

Cass.

Mar. 15, 1986

XII Y.B. Com. Arb. 497 (1987)

II 75

Cass.

Feb. 12, 1987

XVII Y.B. Com. Arb. 525 (1992)

IV 26

Cass.

Apr. 3, 1987

XVII Y.B. Com. Arb. 529 (1992)

III 24, 26, 27, V 166

Cass.

Nov. 19, 1987

XIV Y.B. Com. Arb. 675 (1989)

V 131, 165, 166

Cass.

Apr. 3, 1989

XVI Y.B. Com. Arb. 588 (1991)

II 98

Cass.

Aug. 8, 1990

XVII Y.B. Com. Arb. 545 (1992)

V 157

Cass.

Jan. 25, 1991

XVII Y.B. Com. Arb. 554 (1992)

II 98

Cass.

Dec. 19, 1991

XVIII Y.B. Com. Arb. 419 (1993)

IV 26, 32

Cass.

Jan. 15, 1992

XVIII Y.B. Com. Arb. 427 (1993)

I 39, III 25

Cass.

Feb. 22, 1992

XVIII Y.B. Com. Arb. 433 (1993)

V 41, 131, 156, 160

Cass.

July 11, 1992

XXII Y.B. Com. Arb. 715 (1997)

II 94, 99, 142, V 19, 156, 547, 582, VII 32

Cass.

Nov. 12, 1992

XIX Y.B. Com. Arb. 692 (1994)

IV 32

Cass., sez. un.

Nov. 16, 1992

XIX Y.B. Com. Arb. 694 (1994)

II 94

Cass., sez. un.

Oct. 28, 1993

XX Y.B. Com. Arb. 739 (1995)

II 52, 98, 157

658

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Italy Cases

Table of Cases and Awards Court

Date

Source

Art. para.

Cass.

Jan. 20, 1995

XXI Y.B. Com. Arb. 602 (1996)

V 305, 527

Cass.

Mar. 14, 1995

XXI Y.B. Com. Arb. 607 (1996)

IV 10, 26

Cass., sez. un.

May 22, 1995

XXI Y.B. Com. Arb. 610 (1996)

II 76

Cass.

June 7, 1995

XXII Y.B. Com. Arb. 727 (1997)

I 62, IV 2

Cass.

Sep. 20, 1995

XXIVa Y.B. Com. Arb. 698 (1999)

IV 32

Cass.

Mar. 2, 1996

XXII Y.B. Com. Arb. 734 (1997)

II 138

Cass.

Apr. 23, 1997

XXIVa Y.B. Com. Arb. 709 (1999)

V 131, 156, 176

Cass.

Jan. 21, 2000

XXVII Y.B. Com. Arb. 492 (2002)

V 130, 131, 165, 166

Cass., sez. un.

Mar. 10, 2000

XXVI Y.B. Com. Arb. 816 (2001)

II 94, 98

Cass., sez. un.

Dec. 22, 2000

XXVII Y.B. Com. Arb. 506 (2002)

II 148

Cass.

Feb. 7, 2001

XXXII Y.B. Com. Arb. 390 (2007)

V 298

Cass.

Mar. 1, 2002

Riv. Dir. Int. Priv. Proc. 2003, 1047 = XXX Y.B. Com. Arb. 599 (2005)

II 271

Cass.

June 25, 2002

XXIX Y.B. Com. Arb. 784 (2004)

I 39

Cass.

June 28, 2002

XXVIII Y.B. Com. Arb. 810 (2003)

IV 32

Cass.

Apr. 17, 2003

XXXI Y.B. Com. Arb. 798 (2006)

III 12

Cass., sez. un.

Apr. 8, 2004

XXXI Y.B. Com. Arb. 802 (2006)

V 337, 516

Cass.

May 30, 2006

XXXII Y.B. Com. Arb. 406 (2007)

V 177

Cass.

Jan. 5, 2007

Riv. Dir. Proc. 2007, 1293 = XXXIII Y.B. Com. Arb. 596 (2008)

II 318

Cass.

Oct. 8, 2008

XXXIV Y.B. Com. Arb. 644 (2009)

IV 26, 32

Cass.

June 16, 2011

XXXVII Y.B. Com. Arb. 255 (2012)

II 138

Cass.

Nov. 24, 2015

XLI Y.B. Com. Arb. 503 (2016)

V 419, 466

Cass.

Sep. 18, 2017

XLIII Y.B. Com. Arb. 481 (2018)

II 135

CA Bari

Nov. 30, 1989

XXI Y.B. Com. Arb. 571 (1996)

IV 21

CA Bari

Mar. 19, 1991

XXI Y.B. Com. Arb. 585 (1996)

IV 32

CA Bologna

Dec. 21, 1991

XVIII Y.B. Com. Arb. 422 (1993)

V 456

CA Bologna

Feb. 4, 1993

XIX Y.B. Com. Arb. 700 (1994)

IV 14, 32

CA Bologna

Feb. 4, 1993

XXI Y.B. Com. Arb. 590 (1996) = Rev. arb. 1994, 303

I 62

CA Brescia

Dec. 27, 1980

VIII Y.B. Com. Arb. 383 (1983)

II 138, IV 10, V 166

CA Brescia

Apr. 10, 1985

XI Y.B. Com. Arb. 510 (1986)

VII 80

CA Firenze

Oct. 22, 1976

III Y.B. Com. Arb. 279 (1978)

I 39, V 465, VII 80, 90

CA Firenze

Oct. 8, 1977

IV Y.B. Com. Arb. 289 (1979)

II 98, 99, V 157

CA Firenze

Apr. 13, 1978

IV Y.B. Com. Arb. 294 (1979)

V 268, 277, 286

CA Firenze

Dec. 1, 1980

X Y.B. Com. Arb. 450 (1985)

I 49

CA Firenze

Jan. 19, 1981

X Y.B. Com. Arb. 453 (1985)

I 49

CA Firenze

June 3, 1988

XV Y.B. Com. Arb. 498 (1990)

I 87, V 166

CA Firenze

Nov. 29, 1991

XXI Y.B. Com. Arb. 587 (1996)

IV 26

CA Firenze

May 17, 2005

XXXII Y.B. Com. Arb. 403 (2007)

VI 8, 10

CA Genova

May 2, 1980

VIII Y.B. Com. Arb. 381 (1983)

V 39, 527

CA Genova

May 7, 1994

XXI Y.B. Com. Arb. 594 (1996)

II 161, V 426, 466

CA Milano

May 3, 1977

IV Y.B. Com. Arb. 284 (1979)

II 75

CA Milano

Dec. 21, 1979

VII Y.B. Com. Arb. 338 (1982)

IV 9

CA Milano

Oct. 4, 1991

XVIII Y.B. Com. Arb. 415 (1993)

II 76, V 131

CA Milano

Dec. 4, 1992

XXII Y.B. Com. Arb. 725 (1997)

V 496

CA Milano

July 12, 1995

XXIII Y.B. Com. Arb. 723 (1998)

III 19

CA Milano

July 9, 1996

XXIII Y.B. Com. Arb. 727 (1998)

III 24

659

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Cases Italy Court

New York Convention Date

Source

Art. para.

CA Milano

Nov. 5, 2003

XXXII Y.B. Com. Arb. 397 (2007)

V 403

CA Milano

Apr. 29, 2009

XXXV Y.B. Com. Arb. 415 (2010)

V 558

CA Milano

Nov. 12, 2012

XXXIX Y.B. Com. Arb. 421 (2014)

III 17

CA Napoli

Dec. 13, 1974

I Y.B. Com. Arb. 193 (1976)

II 98, 99, III 24

CA Napoli

Feb. 20, 1975

IV Y.B. Com. Arb. 275 (1979)

IV 2, V 139, 166, 173, 353, 359

CA Napoli

Mar. 22, 1980

VIII Y.B. Com. Arb. 380 (1983)

II 45, 156

CA Napoli

May 18, 1982

X Y.B. Com. Arb. 461 (1985)

V 166

CA Salerno

Dec. 31, 1990

Riv. Dir. Int. Priv. Proc. 1992, 115 = XXI Y.B. Com. Arb. 576 (1996)

II 153, 273, 311

CA Trento

Jan. 14, 1981

VIII Y.B. Com. Arb. 386 (1983)

V 244, 260

CA Trieste

July 2, 1982

X Y.B. Com. Arb. 462 (1985)

IV 26, 32, VII 65

CA Venezia

May 21, 1976

III Y.B. Com. Arb. 277 (1978)

V 276

CA Venezia

Apr. 26, 1980

VII Y.B. Com. Arb. 340 (1982)

II 141

CA Venezia

Jan. 26, 1983

XII Y.B. Com. Arb. 493 (1987)

II 75

Tribunale di Bologna

July 18, 1987

XVII Y.B. Com. Arb. 534 (1992)

V 419, 455

Tribunale di Milano

Jan. 8, 1990

XVII Y.B. Com. Arb. 539 (1992)

II 28, 34

Tribunale di Napoli

June 30, 1976

IV Y.B. Com. Arb. 277 (1979)

III 11, V 19

Tribunale di Napoli

May 12, 1978

VIII Y.B. Com. Arb. 48 (1983)

VII 67

Tribunale di Savona

Mar. 26, 1981

X Y.B. Com. Arb. 455 (1985)

II 130

Japan Court

Date

Source

Art. para.

Tokyo High Court

Jan. 27, 1994

XX Y.B. Com. Arb. 742 (1995)

IV 13, V 295, 531

Okayama District Court

July 14, 1993

XXII Y.B. Com. Arb. 744 (1997)

V 415, VII 32

Yokohama District Court

May 3, 1980

VIII Y.B. Com. Arb. 394 (1983)

II 89

Kenya Parties

Court

Date

Source

Art. para.

Glencore Grain Ltd. v. TSS Grain Millers Ltd.

Mombasa High Court

July 5, 2002

XXXIV Y.B. Com. Arb. 666 (2009)

III 13, IV 2, 12, 13

Kassamali Gulamhussein & Co. v. Kyrtatas Brothers Ltd.

CA East Africa, Mombasa

July 4, 1968

[1968] 1 EA 542

VII 72

Kundan Singh Construction Ltd. v. Tanzania National Roads Agency

Nairobi High Court

Dec. 18, 2012

XL Y.B. Com. Arb. 449 (2015)

Prel. Rem. 29

OJSC Zarubezhnstroy Technology v. Gibb Africa Ltd.

Nairobi High Court

Mar. 31, 2017

XLII Y.B. Com. Arb. 421 (2017)

V 156, 586

Tanzania National Roads Agency v. Kundan Singh Construction Ltd.

Mombasa High Court

Aug. 15, 2013

XXXIX Y.B. Com. Arb. 431 (2014)

V 510, 561, 583b, 586

660

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Table of Cases and Awards

Lithuania

Cases

Parties

Court

Date

Source

Art. para.

Tracer Ltd. v. SGS Kenya Ltd.

High Court of Nairobi

Oct. 18, 2017

XLIV Y.B. Com. Arb. ___ (2019), also available at http://kenyalaw. org/caselaw/cases/export/143800/ pdf (last visited Apr. 29, 2019)

Prel. Rem. 29

Korea, Republic of Court

Date

Source

Art. para.

Sup. Ct.

Apr. 10, 1990

XVII Y.B. Com. Arb. 568 (1992)

V 160, 168

Sup. Ct.

Feb. 14, 1995

XXI Y.B. Com. Arb. 612 (1996)

IV 34, V 504

Sup. Ct.

Aug. 19, 2011

CLOUT Case No. 1294

V 310, 313

Kuwait Court

Date

Source

Art. para.

Supreme Appeal Court

Nov. 21, 1988

XXII Y.B. Com. Arb. 748 (1997)

III 25

Latvia Court

Date

Source

Art. para.

Sup. Ct.

Jan. 13, 2010

XL Y.B. Com. Arb. 453 (2015)

VII 89

Lebanon Court

Date

Source

Art. para.

Cour de Cassation

Dec. 18, 2007

1(1) Int’l J. Arab Arb. 398 (2009)

V 552

CA Beyrouth

Feb. 21, 2008

1(1) Int’l J. Arab Arb. 310 (2009)

V 496

Liechtenstein Court

Date

Source

Art. para.

OGH

June 7, 2013

XXXIX Y.B. Com. Arb. 434 (2014)

IV 34, 35

Lithuania Court

Date

Source

Art. para.

Lietuvos Aukšciausiasis Teismas

June 27, 2014

XXXIX Y.B. Com. Arb. 437 (2014)

V 513, 560, 561, 572, 583b

Lietuvos Aukšciausiasis Teismas

May 22, 2015

XL Y.B. Com. Arb. 667 (2015)

V 193

Lietuvos Aukšciausiasis Teismas

Sep. 25, 2015

XLI Y.B. Com. Arb. 507 (2016)

V 561, 567a, 570, 576

Lietuvos Apeliacinis Teismas

Dec. 17, 2012

XXXVIII Y.B. Com. Arb. 417 (2013)

V 583b, 586

661

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Cases Luxembourg

New York Convention

Luxembourg Court

Date

Source

Art. para.

CA

Nov. 24, 1993

XXI Y.B. Com. Arb. 617 (1996)

VI 4, V 244, 252, 496

CA

Jan. 28, 1999

XXIVa Y.B. Com. Arb. 714 (1999)

V 1, 21, 252, 448, 550, VII 35, 43

CA

June 25, 2015

XLII Y.B. Com. Arb. 425 (2017)

VI 8, 17

CA

Apr. 27, 2017

XLII Y.B. Com. Arb. 428 (2017)

V 364, 555

Malaysia Parties

Court

Date

Source

Art. para.

CTI Group Inc. v. International Bulk Carriers SPA

Federal Court, Civil Appeal

Aug. 10, 2017

[2017] 9 CLJ 499 = XLIII Y.B. Com. Arb. 514 (2018)

III 10, 11, 13

Harris Adacom Corp. v. Perkom Sdn Bhd

High Court of Kuala Lumpur

Dec. 10, 1993

XXII Y.B. Com. Arb. 753 (1997)

IV 14, V 583

Open Type Joint Stock Company Efirnoye – EFKO v. Alfa Trading Ltd.

High Court of Kuala Lumpur

Oct. 10, 2011

XXXVII Y.B. Com. Arb. 264 (2012)

V 555

Marshall Islands Parties

Court

Date

Source

Art. para.

Boreta Ltd. v. Constant Finance Ltd.

High Court

July 9, 2012

XLIII Y.B. Com. Arb. 519 (2018)

V 387

Mauritius Court

Date

Source

Art. para.

Sup. Ct.

Mar. 28, 2014

XXXIX Y.B. Com. Arb. 447 (2014)

V 493, 519

Mexico Court

Date

Source

Art. para.

Tribunal Superior de Justicia

Feb. 24, 1977

IV Y.B. Com. Arb. 301 (1979)

IV 10, 36, V 159

Tribunal Superior de Justicia

Aug. 1, 1977

IV Y.B. Com. Arb. 302 (1979)

IV 2, 36, V 159, 160

Moldova, Republic of Court

Date

Supreme Court of Justice June 22, 2006

Source

Art. para.

XLII Y.B. Com. Arb. 444 (2017)

Prel. Rem. 29

Morocco Court

Date

Source

Art. para.

CA Casablanca

June 21, 1983

XXI Y.B. Com. Arb. 627 (1996)

V 574

662

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Netherlands Cases

Table of Cases and Awards

Netherlands Court

Date

Source

Art. para.

HR

Oct. 26, 1973

Rev. arb. 1974, 318 = 65 ILR 356 (1973) = I Y.B. Com. Arb. 195 (1976)

I 111, 139, V 19

HR

June 25, 2010

XXXV Y.B. Com. Arb. 423 (2010)

III 25, V 388

HR

Nov. 24, 2017

XLIII Y.B. Com. Arb. 529 (2018)

V 387, 391, VII 18

HR

June 15, 2018

ECLI:NL:HR:2018:918, XLIV Y.B. Com. Arb. ___ (2019)

V 527

Hof Den Haag

Feb. 17, 1984

X Y.B. Com. Arb. 485 (1985)

II 98, 139

Gerechtshof Amsterdam

July 16, 1992

XIX Y.B. Com. Arb. 708 (1994)

V 144, 189, 540

Gerechtshof Amsterdam

Apr. 28, 2009

XXXIV Y.B. Com. Arb. 703 (2009)

V 77, 386a, 388, 391 V 386a

Gerechtshof Amsterdam

Sep. 18, 2012

XXXVIII Y.B. Com. Arb. 427 (2013)

Gerechtshof Amsterdam

June 24, 2014

XLI Y.B. Com. Arb. 518 (2016)

V 228a

Gerechtshof Amsterdam

Sep. 27, 2016

XLII Y.B. Com. Arb. 461 (2017)

V 387

Gerechtshof Amsterdam

Feb. 21, 2017

XLIII Y.B. Com. Arb. 523 (2018)

V 364

Gerechtshof Den Haag

Apr. 28, 1998

XXIII Y.B. Com. Arb. 731 (1998)

V 143, 144, 145, 541

Gerechtshof Den Haag

Feb. 22, 2000

XXIX Y.B. Com. Arb. 798 (2004)

II 231

Gerechtshof Den Haag

Mar. 24, 2005

XXXI Y.B. Com. Arb. 808 (2006)

V 457, 579

Gerechtshof Den Haag

July 23, 2014

XXXIX Y.B. Com. Arb. 456 (2014)

V 436

Gerechtshof Den Haag

Apr. 17, 2018

XLIII Y.B. Com. Arb. 535 (2018)

VI 7

Gemeenschappelijk Hof van Justitie van Aruba, Curaçao, Sint Maarten en van Bonaire, Sint Eustatius en Saba

Nov. 15, 2016

XLII Y.B. Com. Arb. 473 (2017)

V 223, 228a

Rechtbank Alkmaar

Oct. 18, 1979

VIII Y.B. Com. Arb. 398 (1983)

II 70, VII 20

X Y.B. Com. Arb. 487 (1985)

IV 35, V 353, 361, 363, 365, 395

Voorzieningenrechter, Rechtbank Amsterdam July 12, 1984

Voorzieningenrechter, Rechtbank Amsterdam Apr. 24, 1991

XVII Y.B. Com. Arb. 572 (1992)

V 157, 550

Rechtbank Amsterdam

Aug. 27, 2002

XXVIII Y.B. Com. Arb. 814 (2003)

V 281, 534

Voorzieningenrechter, Rechtbank Amsterdam June 18, 2009

XXXIV Y.B. Com. Arb. 715 (2009)

IV 27, V 156, 166 IV 35

Voorzieningenrechter, Rechtbank Amsterdam Sep. 1, 2011

XL Y.B. Com. Arb. 460 (2015)

Voorzieningenrechter, Rechtbank Amsterdam Nov. 17, 2011

XXXVII Y.B. Com. Arb. 274 (2012)

V 386a

Voorzieningenrechter, Rechtbank Amsterdam Apr. 16, 2012

XL Y.B. Com. Arb. 464 (2015)

Prel. Rem. 29, V 228a

Voorzieningenrechter, Rechtbank Amsterdam May 10, 2012

XXXVII Y.B. Com. Arb. 277 (2012)

III 14, IV 35, V 353, 553, VII 43

Voorzieningenrechter, Rechtbank Amsterdam June 21, 2012

XL Y.B. Com. Arb. 468 (2015)

IV 28

Voorzieningenrechter, Rechtbank Amsterdam July 26, 2012

XXXVII Y.B. Com. Arb. 282 (2012)

IV 35, V 157, 172, 539a

Voorzieningenrechter, Rechtbank Amsterdam Mar. 28, 2013

XXXVIII Y.B. Com. Arb. 434 (2013)

V 176, 228a, 318, 332

Voorzieningenrechter, Rechtbank Amsterdam Jan. 22, 2015

XL Y.B. Com. Arb. 471 (2015)

Prel. Rem. 29, IV 13, 28, 35

Voorzieningenrechter, Rechtbank Arnhem

Sep. 27, 2012

XXXVIII Y.B. Com. Arb. 431 (2013)

V 160

Voorzieningenrechter, Rechtbank Den Haag

June 23, 1972

V Y.B. Com. Arb. 269 (1980)

IV 35, VII 30

Voorzieningenrechter, Rechtbank Den Haag

Apr. 26, 1973

IV Y.B. Com. Arb. 305 (1979)

V 353

Voorzieningenrechter, Rechtbank Den Haag

May 27, 2004

XXXI Y.B. Com. Arb. 808 (2006)

V 579

Voorzieningenrechter, Rechtbank Dordrecht

June 30, 2010

XXXVI Y.B. Com. Arb. 299 (2011)

V 496, VII 44

663

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Cases Netherlands

New York Convention

Court

Date

Source

Art. para. II 98, 102

Rechtbank Rotterdam

June 26, 1970

I Y.B. Com. Arb. 194 (1976)

Rechtbank Rotterdam

Nov. 24, 1994

XXI Y.B. Com. Arb. 635 (1996)

V 185, VI 8

Arrondissementsrechtbank Rotterdam

Sep. 28, 1995

XXII Y.B. Com. Arb. 762 (1997)

VII 45

Voorzieningenrechter, Arrondissementsrechtbank Rotterdam

Oct. 2, 1997

XXIII Y.B. Com. Arb. 731 (1998)

V 173, 188, 514

Rechtbank Rotterdam

July 29, 2009

XXXIV Y.B. Com. Arb. 722 (2009)

VII 45

Rechtbank Rotterdam

Feb. 28, 2011

LJN: BP6101

V 157

Voorzieningenrechter, Rechtbank Rotterdam

Dec. 20, 2011

XXXVII Y.B. Com. Arb. 271 (2012)

III 19, V 160

Voorzieningenrechter, Rechtbank Rotterdam

Apr. 3, 2015

XLI Y.B. Com. Arb. 522 (2016)

IV 35

Voorzieningenrechter, Rechtbank Utrecht

Nov. 22, 1984

XI Y.B. Com. Arb. 521 (1986)

IV 2, V 414

Arrondissementsrechtbank Zutphen

Sep. 3, 1996

XXII Y.B. Com. Arb. 766 (1997)

V 294, 530

Arrondissementsrechtbank Zutphen

Nov. 11, 1998

XXIVa Y.B. Com. Arb. 724 (1999)

IV 35, V 147

New Zealand Parties

Court

Date

Source

Art. para.

Coromandel Land Trust v. MilkT Investments Ltd.

Hamilton High Court

May 28, 2009

[2009] NZHC 1753

V 178

Makan Distiller Ltd. v. Natural Sugars

Auckland High Court

Apr. 21, 2015

[2015] NZHC 1111 = XLI Y.B. Com. Arb. 526 (2016)

V 548

The Government of New Zealand v. Mobil Oil New Zealand Ltd.

Wellington High Court

June 1987

XIII Y.B. Com. Arb. 638 (1988)

V 456

Nigeria Parties

Court

Date

Source

Art. para.

Nigerian National Petroleum Corp. v. Lutin Investments Ltd.

Sup. Ct.

Jan. 13, 2006

[2006] 2 NWLR 506, also available at http:// www.nigeria-law.org/LawReporting/2006/Ni gerian National Petroleum Corporation V Lutin Investment Ltd & anr.htm (last visited Apr. 29, 2019)

IV 14, V 525

Sundersons Ltd. v. Cruiser Shipping Pte Ltd.

CA, Lagos Judicial Division

Feb. 7, 2014

XLI Y.B. Com. Arb. 535 (2016)

IV 28

Norway Court

Date

Source

Art. para.

CA Hålogaland

Aug. 16, 1999

XXVII Y.B. Com. Arb. 519 (2002)

II 76, 130, IV 21

Vardø Enforcement Court

July 10, 2002

XXVIII Y.B. Com. Arb. 821 (2003)

IV 35, V 185

Pakistan Parties

Court

Date

Source

Art. para.

HUBCO v. WAPDA

Sup. Ct.

June 14, 2000

(2000) 16 Arb. Int’l 439

V 465

Travel Automation Ltd. v. Abacus International Pvt. Ltd.

High Court of Karachi

Feb. 14, 2006

XXXII Y.B. Com. Arb. 438 (2007)

XII 11

664

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Qatar Cases

Table of Cases and Awards

Peru Court

Date

Source

Art. para.

Corte Suprema de Justicia

July 1, 2006

XXXIII Y.B. Com. Arb. 616 (2008)

III 13, 19

Corte Superior de Justicia de Lima

Apr. 28, 2011

XXXIX Y.B. Com. Arb. 467 (2014)

IV 2

Corte Superior de Justicia de Lima

Mar. 5, 2018

352-2017, XLIV Y.B. Com. Arb. ___ (2019)

V 495, 496, 498, 512, 514, 539

Philippines Parties

Court

Date

Source

Art. para.

Asset Privatization Trust v. Court of Appeals

Sup. Ct.

Dec. 29, 1998

G.R. No. 121171 (unreported), available at https://www.lawphil.net/judjuris/juri1998/ dec1998/gr_121171_1998.html (last visited Apr. 29, 2019)

V 563

Korea Technologies Co. v. Hon. A. Lerma and Pacific General Steel Manufacturing Corp.

Sup. Ct.

Jan. 7, 2008

XXXIII Y.B. Com. Arb. 632 (2008)

V 519a

National Steel Corp. v. Regional Trial Court of Lanao de Nostro

Sup. Ct.

Mar. 11, 1999

G.R. No. 127004 (unreported), available at https://lawphil.net/judjuris/juri1999/mar1999/ gr_127004_1999.html (last visited Apr. 29, 2019)

V 563

Poland Court

Date

Source

SN

Sep. 12, 2000

III CKN 1139/00

Art. para. V 137, 153, 181

SN

Jan. 23, 2015

XLI Y.B. Com. Arb. 538 (2016)

IV 27, 28

Portugal Court

Date

Source

Art. para.

Supremo Tribunal de Justiça

Oct. 9, 2003

XXXII Y.B. Com. Arb. 474 (2007)

V 548

Supremo Tribunal de Justiça

Feb. 25, 2014

XXXIX Y.B. Com. Arb. 474 (2014)

III 18

Supremo Tribunal de Justiça

Oct. 23, 2014

XLII Y.B. Com. Arb. 484 (2017)

V 512, 574, 581b

Supremo Tribunal de Justiça

Dec. 10, 2015

José-Miguel Júdice, a contribution by the ITA Board of Reporters, available at http://www.klu werarbitration.com (last visited Apr. 16, 2019)

V 143, 176

Supremo Tribunal de Justiça

Mar. 14, 2017

XLII Y.B. Com. Arb. 488 (2017)

V 511, 512, 516, 561, 567a, 583b

Tribunal da Relação de Lisboa

June 30, 2011

XXXVIII Y.B. Com. Arb. 440 (2013)

III 25

Tribunal da Relação de Lisboa

July 12, 2012

XXXVIII Y.B. Com. Arb. 443 (2013)

III 18, V 19, 567a

Tribunal da Relação de Lisboa

Jan. 16, 2014

XXXIX Y.B. Com. Arb. 477 (2014)

V 561

Tribunal da Relação do Porto

Sep. 9, 2013

XXXIX Y.B. Com. Arb. 474 (2014)

III 18

Qatar Court

Date

Source

Art. para.

Court of First Instance

Sep. 21, 2015

XLI Y.B. Com. Arb. 545 (2016)

IV 36

665

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Cases Romania

New York Convention

Romania Court

Date

Source

Art. para.

Sup. Ct.

Mar. 3, 2016

XLII Y.B. Com. Arb. 499 (2017)

Prel. Rem. 29

Russian Federation Court

Date

Source

Art. para.

Presidium of the Supreme Arbitrazh Court

Mar. 30, 2004

XXXIV Y.B. Com. Arb. 736 (2009)

VII 88

Presidium of the Supreme Arbitrazh Court

June 22, 2004

XXXIII Y.B. Com. Arb. 650 (2008)

V 131

Presidium of the Supreme Arbitrazh Court

Feb. 22, 2005

XXXIII Y.B. Com. Arb. 670 (2008)

V 168

Presidium of the Supreme Arbitrazh Court

Jan. 20, 2009

Ruling No. 10718/08, Case No. N А40-31732/07-30-319, Vestnik VAS RF, 2009, No. 5

V 156, 160, 164

Presidium of the Supreme Arbitrazh Court

Oct. 5, 2010

CLOUT Case No. 1140

V 368a

Supreme Arbitrazh Court

Mar. 22, 2010

XXXVI Y.B. Com. Arb. 315 (2011)

V 479

Supreme Arbitrazh Court

May 26, 2011

CLOUT Case No. 1411

V 41, 66

Collegium of the Supreme Arbitrazh Court

July 25, 2011

CLOUT Case No. 1409

V 160, 161, 204a

Collegium of the Supreme Arbitrazh Court

Sep. 5, 2011

Ruling No. ВАС-11492/11, Case No. А40-133433/10-63-1152 (unreported), available at http://www.con sultant.ru (last visited Apr. 16, 2019)

III 17

Supreme Arbitrazh Court

Aug. 27, 2012

XXXVIII Y.B. Com. Arb. 453 (2013)

V 523

Presidium of the Supreme Arbitrazh Court

Feb. 26, 2013

Information Letter No. 156 (unreported), available at http://www. arbitr.ru/as/pract/vas_info_letter/ 82122.html (last visited Apr. 29, 2019)

V 489, 514, 519, 530, 532, 561, 567a, 571, 574, 576, 581c, 584

Supreme Arbitrazh Court

June 24, 2014

XXXIX Y.B. Com. Arb. 483 (2014)

V 168

Sup. Ct., Judicial Collegium for Economic Disputes

Feb. 28, 2018

308-ЭС17-12100, XLIV Y.B. Com. Arb. ___ (2019)

V 519, 553

Federal Arbitrazh Court, Kemerovskaya Region

July 20, 2011

XXXVI Y.B. Com. Arb. 325 (2011)

III 7, 18, VII 88

Federal Arbitrazh Court, Moscow District

Sep. 22, 2005

XXXIII Y.B. Com. Arb. 678 (2008)

V 580

Federal Arbitrazh Court, Moscow District

Aug. 3, 2011

Ruling No. КГ-А40/7874-11, Case No. A40-133433/10-63-1152 (unreported), available at http://www.con sultant.ru (last visited Apr. 16, 2019)

III 17

Federal Arbitrazh Court, Moscow District

Dec. 11, 2015

XLI Y.B. Com. Arb. 550 (2016)

V 555

Federal Arbitrazh Court, North Caucasus District

Apr. 18, 2005

XXXIII Y.B. Com. Arb. 673 (2008)

V 160

Federal Arbitrazh Court, Northwestern District

Dec. 9, 2004

XXXIII Y.B. Com. Arb. 658 (2008)

V 147, 563

Federal Arbitrazh Court, Northwestern District

Feb. 12, 2007

XXXIII Y.B. Com. Arb. 695 (2008)

V 168

Federal Arbitrazh Court, Northwestern District

July 25, 2007

XXXIV Y.B. Com. Arb. 745 (2009)

VII 88

Federal Arbitrazh Court, Northwestern District

Mar. 10, 2011

XXXVI Y.B. Com. Arb. 322 (2011)

III 7

Federal Arbitrazh Court, Northwestern District

Aug. 3, 2017

Ruling No. Ф07-7671/2017, Case No. A56-26741/2017 (unreported), available at http://kad.arbitr.ru/ (last visited Apr. 16, 2019)

V 160

Federal Arbitrazh Court, Tomsk District

July 7, 2010

XXXV Y.B. Com. Arb. 435 (2010)

V 553

Federal Arbitrazh Court, Urals District

Oct. 12, 2005

XXXIII Y.B. Com. Arb. 687 (2008)

V 255

Moscow District Court

Oct. 31, 1995

XXIII Y.B. Com. Arb. 735 (1998)

V 19, 493, 525

666

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Table of Cases and Awards

South Africa

Cases

Court

Date

Source

Art. para.

Moscow District Court

Apr. 21, 1997

XXIII Y.B. Com. Arb. 745 (1998)

II 153

Serbia Court

Date

Source

Art. para.

High Commercial Court

Mar. 22, 2007

No. Pz. 9058/2006 (unreported), cited in A/CN.9/661, p. 7.

VII 45

Singapore Parties

Court

Date

Source

Art. para.

Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd.

High Court

May 10, 2006

[2006] 3 SLR(R) 174 = XXXII Y.B. Com. Arb. 489 (2007)

II 104, IV 20, V 41, 63b

AMZ v. AXX

High Court

Oct. 30, 2015

CLOUT Case No. 1660

V 270, 317

AYH v. AYI

High Court

Nov. 23, 2015

CLOUT Case No. 1659

V 245

BCY v. BCZ

High Court

Nov. 9, 2016

[2016] SGHC 249

II 233

Beijing Sinozonto Mining Investment Co. Ltd. v. Goldenray Consortium (Singapore) Pte Ltd.

High Court

Nov. 14, 2013

XXXIX Y.B. Com. Arb. 489 (2014)

V 519, 553, 561

Denmark Skibstekniske Konsulenter A/S I Likvidation v. Ultrapolis 3000 Investments Ltd.

High Court

Apr. 9, 2010

[2010] 3 SLR 661

IV 20

FirstLink Investments Corp. Ltd. v. GTPayment Pte. Ltd.

High Court

June 19, 2014

[2014] SGHCR 12 = XXXIX Y.B. Com. Arb. 493 (2014)

II 287, 288

Galsworthy Ltd. of the Republic of Liberia v. Glory Wealth Shipping Pte Ltd.

High Court

Oct. 14, 2010

[2011] 1 SLR 727

IV 20, V 63b

Hainan Machinery Import and Export Corp. v. Donald & McArthy Pte Ltd.

High Court

Sep. 29, 1995

XXII Y.B. Com. Arb. 771 (1997)

V 157, 334, 504, 511, 539, 547

Newspeed International Ltd. v. Citus Trading Pte Ltd.

High Court

June 4, 2001

[2003] 3 SLR(R) 1 = XXVIII Y.B. Com. Arb. 829 (2003)

V 63b, 380

PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. Astro Nusantara International BV

CA

Oct. 31, 2013

[2014] 1 SLR 372 = CLOUT Case No. 1662

V 63b, 348

Slovenia Court

Date

Source

Art. para.

Sup. Ct.

Oct. 11, 2011

CLOUT Case No. 1173

V 53

South Africa Parties

Court

Date

Source

Art. para.

Balkan Energy Ltd. v. The Government of the Republic of Ghana

High Court, Gauteng Local Division

June 29, 2017

XLIII Y.B. Com. Arb. 552 (2018)

III 17, IV 32

Jones v. Krok

High Court, Transvaal Provincial Division

Aug. 8/10, 1995

[1996] 1 S.A. 504

V 567

Laconian Maritime Enterprises Ltd. v. Agromar Lineas Ltd.

Sup. Ct.

Aug. 27, 1985

[1986] 3 S.A. 511 = XIV Y.B. Com. Arb. 693 (1989)

III 14

667

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Cases South Africa

New York Convention

Parties

Court

Date

Source

Art. para.

Phoenix Shipping Corp. v. DHL Global Forwarding SA (Pty) Ltd.

High Court, Western Cape Division

Feb. 24, 2012

XXXVII Y.B. Com. Arb. 290 (2012)

IV 20, V 523

Pierre Fattouche v. Mzilikazi Khumalo

High Court, Gauteng Division

May 6, 2014

XXXIX Y.B. Com. Arb. 498 (2014)

III 25

Spain Court

Date

Source

Art. para.

TS

Oct. 8, 1981

VIII Y.B. Com. Arb. 406 (1983)

I 87

TS

Mar. 3, 1982

IX Y.B. Com. Arb. 435 (1984)

V 156, 173

TS

Mar. 24, 1982

VIII Y.B. Com. Arb. 408 (1983)

IV 10, V 131, 157

TS

June 3, 1982

XI Y.B. Com. Arb. 527 (1986)

V 287

TS

July 13, 1982

XIV Y.B. Com. Arb. 699 (1989)

VII 91

TS

Jan. 14, 1983

XI Y.B. Com. Arb. 523 (1986)

IV 34, V 185, 305, 344, 547, VII 80, 89, 90

TS

Dec. 22, 1983

XI Y.B. Com. Arb. 531 (1986)

II 75, VII 86

TS

Feb. 10, 1984

X Y.B. Com. Arb. 493 (1985)

II 140, V 155, 156, 157 II 76, 130, 140

TS

Jan. 30, 1986

XIII Y.B. Com. Arb. 512 (1988)

TS

June 29, 1990

XVI Y.B. Com. Arb. 601 (1991)

VII 20, 31

TS

Feb. 27, 1991

XXI Y.B. Com. Arb. 678 (1996)

VII 89

TS

Apr. 16, 1996

XXVII Y.B. Com. Arb. 528 (2002)

II 98, VII 88

TS

Feb. 17, 1998

XXVII Y.B. Com. Arb. 533 (2002)

VII 20, 32

TS

May 5, 1998

XXVII Y.B. Com. Arb. 540 (2002)

II 99

TS

July 7, 1998

XXVII Y.B. Com. Arb. 546 (2002)

II 98, V 42, 125

TS

July 14, 1998

XXVI Y.B. Com. Arb. 851 (2001)

II 130, VII 86

TS

Oct. 6, 1998

XXVI Y.B. Com. Arb. 854 (2001)

II 98, VII 32

TS

Feb. 1, 2000

XXXII Y.B. Com. Arb. 507 (2007)

V 160

TS

Mar. 28, 2000

XXXII Y.B. Com. Arb. 518 (2007)

IV 2, 21

TS

Apr. 11, 2000

XXXII Y.B. Com. Arb. 525 (2007)

IV 20, V 147, 160, 539

TS

July 31, 2000

XXXII Y.B. Com. Arb. 532 (2007)

IV 21, V 139, 157, 165

TS

Nov. 28, 2000

XXXII Y.B. Com. Arb. 540 (2007)

IV 20, 21, V 163, 183

TS

Feb. 20, 2001

XXVI Y.B. Com. Arb. 858 (2001)

II 88, IV 21

TS

July 23, 2001

XXXI Y.B. Com. Arb. 825 (2006)

VII 89 III 18, 22, IV 21

TS

Nov. 13, 2001

XXXI Y.B. Com. Arb. 834 (2006)

TS

Feb. 26, 2002

XXXII Y.B. Com. Arb. 550 (2007)

IV 21

TS

Oct. 5, 2002

XXXII Y.B. Com. Arb. 555 (2007)

V 180

TS

Jan. 14, 2003

XXX Y.B. Com. Arb. 605 (2005)

IV 14, 21, 23, 26

TS

Mar. 4, 2003

XXXII Y.B. Com. Arb. 571 (2007)

IV 21, V 244

TS

Apr. 1, 2003

XXXII Y.B. Com. Arb. 582 (2007)

IV 21, 26, 32

TS

Apr. 29, 2003

XXXII Y.B. Com. Arb. 591 (2007)

IV 20, 21, VII 86

668

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Table of Cases and Awards

Spain

Cases

Court

Date

Source

Art. para.

TS

Oct. 7, 2003

XXX Y.B. Com. Arb. 617 (2005)

IV 21, V 307, 525

TS

Oct. 9, 2003

XXX Y.B. Com. Arb. 623 (2005)

VII 110

TS

Oct. 14, 2003

XXX Y.B. Com. Arb. 627 (2005)

V 131, 157, 162, 183

TS

Jan. 27, 2004

XXXII Y.B. Com. Arb. 597 (2007)

V 161, 183

TS

Feb. 3, 2004

XXXII Y.B. Com. Arb. 603 (2007)

V 131, 156

TS

July 20, 2004

XXXI Y.B. Com. Arb. 846 (2006)

V 353, 359, 360, 361, 365, VII 20, 32

TS

May 31, 2005

XXXII Y.B. Com. Arb. 608 (2007)

IV 21, V 157, 160

TS

Sep. 26, 2006

Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwer arbitration.com (last visited Apr. 29, 2019)

V 39

TS

Nov. 14, 2007

XXXIII Y.B. Com. Arb. 703 (2008)

VII 45, 80, 86

Tribunal Superior de Justicia de Catalunya

Nov. 17, 2011

XXXVII Y.B. Com. Arb. 297 (2012)

IV 32, V 157, 527

Tribunal Superior de Justicia de Catalunya

Mar. 15, 2012

XXXVIII Y.B. Com. Arb. 456 (2013)

Prel. Rem. 74, II 78, 111, 114, 130, V 160

Tribunal Superior de Justicia de Catalunya

Mar. 29, 2012

XXXVIII Y.B. Com. Arb. 459 (2013) = CLOUT Case No. 1417

Prel. Rem. 74, II 78, 111, 114, 130, V 40, 155, 157

Tribunal Superior de Justicia de Catalunya

May 30, 2012

XXXVIII Y.B. Com. Arb. 462 (2013)

V 193, 549a, 583b

Tribunal Superior de Justicia de Catalunya

Feb. 19, 2014

XLI Y.B. Com. Arb. 553 (2016)

IV 32, V 539, 552

Tribunal Superior de Justicia de Catalunya

May 15, 2014

8 Arbitraje 216 (2015)

V 184

Tribunal Superior de Justicia de Catalunya

Sep. 19, 2014

XLI Y.B. Com. Arb. 558 (2016)

III 18

Tribunal Superior de Justicia de Catalunya

Oct. 16, 2014

XLI Y.B. Com. Arb. 560 (2016)

V 288, 527

Tribunal Superior de Justicia de Catalunya

Dec. 15, 2016

XLII Y.B. Com. Arb. 520 (2017)

V 5, 19, 41, 198, 199, 583b, VI 10

Tribunal Superior de Justicia de Madrid

Sep. 28, 2016

XLIII Y.B. Com. Arb. 555 (2018)

V 357

Tribunal Superior de Justicia de Madrid

Feb. 14, 2017

XLIII Y.B. Com. Arb. 571 (2018)

V 357

Tribunal Superior de Justicia de Madrid

Jan. 23, 2018

1/2018, XLIV Y.B. Com. Arb. ___ (2019)

V 549a, 552, 561, 583b

Tribunal Superior de Justicia de la Comunidad Valenciana

Feb. 10, 2012

XXXIX Y.B. Com. Arb. 501 (2014)

V 131, 514, 555, VII 18

Tribunal Superior de Justicia de la Comunidad Valenciana

June 8, 2012

XL Y.B. Com. Arb. 483 (2015)

IV 2

Tribunal Superior de Justicia del País Vasco

Apr. 19, 2012

CLOUT Case No. 1416

V 52, 234

Audiencia Provincial de Barcelona

Apr. 29, 2009

XXXV Y.B. Com. Arb. 452 (2010)

VII 80

Audiencia Provincial de Gipuzkoa

May 28, 2009

Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwer arbitration.com (last visited Apr. 29, 2019)

V 19

669

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Cases Spain

New York Convention

Court

Date

Source

Art. para.

Audiencia Provincial de León

May 4, 2009

Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwer arbitration.com (last visited Apr. 29, 2019)

V 19

Audiencia Provincial de Madrid

Oct. 5, 2006

Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwer arbitration.com (last visited Apr. 16, 2019), also available at www.poderjudicial.es (last visited Apr. 16, 2019)

V 168

Audiencia Provincial de Madrid

Apr. 1, 2009

XXXV Y.B. Com. Arb. 448 (2010)

VII 76

Audiencia Provincial de Madrid

June 5, 2009

Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwer arbitration.com (last visited Apr. 29, 2019)

V 19

Audiencia Provincial de Madrid

Sep. 24, 2009

Fernando Mantilla Serrano, a contribution by the ITA Board of Reporters, available at http://www.kluwer arbitration.com (last visited Apr. 29, 2019)

V5

Audiencia Provincial de Madrid

July 20, 2015

Unreported, available at http://www.poderjudicial.es/ search/contenidos.action?action=contentpdf&reference =7514972&optimize=20151110 (last visited Apr. 16, 2019)

IV 26, 27

Audiencia Provincial de Sevilla

Dec. 10, 1991

XXII Y.B. Com. Arb. 780 (1997)

VII 47

Audiencia Provincial de Sevilla

July 21, 2011

XXXVII Y.B. Com. Arb. 295 (2012)

III 18

Juzgado de Primera Instancia e Instrucción N°3 de Rubí

June 11, 2007

XXXV Y.B. Com. Arb. 444 (2010)

V 543

Sweden Court

Date

Source

Art. para.

Högsta domstolen

Aug. 13, 1979

Rev. arb. 1980, 555 = VI Y.B. Com. Arb. 237 (1981)

I 112, V 19, 244, 250, 353, 361, 395, VI 6

Högsta domstolen

Apr. 16, 2010

SIAR 2009, 133 = XXXV Y.B. Com. Arb. 456 (2010)

V 160, 168

CA Svea

Mar. 21, 2001

XXVII Y.B. Com. Arb. 551 (2002)

V 226, 244

CA Svea

Feb. 28, 2005

XXX Y.B. Com. Arb. 139 (2005) = 20(7) Mealey’s Int’l Arb. Rep. A-1 (2005)

I 102

CA Svea

Apr. 5, 2009

T 980-06 (unreported), available at http://arbitration.practical law.com (last visited Apr. 29, 2019)

V 51

Switzerland Court

Date

Source

Art. para.

BG

Nov. 15, 1935

BGE 61 I 271

V 577

BG

Feb. 12, 1958

BGE 84 I 39

V 511

BG

Feb. 12, 1958

BGE 84 I 56

V 527

BG

Nov. 11, 1959

Rev. arb. 1960, 105

V 557

BG

Jan. 25, 1967

BGE 93 I 49

V 532

BG

May 3, 1967

BGE 93 I 265

V 527

BG

Feb. 3, 1971

BGE 97 I 151

V 511

BG

Dec. 12, 1975

BGE 101 Ia 521

V 557

BG

May 5, 1976

BGE 102 Ia 574

V 558

BG

Feb. 8, 1978

StR 34/1979, 559 = XI Y.B. Com. Arb. 538 (1986)

V 147, 176, 177, 191, 193, 322, 514

670

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Table of Cases and Awards Court

Date

Switzerland

Cases

Source

Art. para.

BG

Nov. 11, 1981

BGE 107 Ia 155

I 45

BG

Feb. 26, 1982

BGE 108 Ib 85 = JdT 1982 I 367 = IX Y.B. Com. Arb. 437 (1984)

I 82, 83, V 270, 273, 274, 310, 311, 353, 359

BG

Feb. 7, 1984

BGE 110 II 54 = XI Y.B. Com. Arb. 532 (1986)

II 28, 75, 76, 78, 84a, 140, 141, 148, 180

BG

Mar. 14, 1984

BGE 110 Ib 191 = XI Y.B. Com. Arb. 536 (1986)

I 133, VII 20, 34, 37, 42, 59

BG

Nov. 5, 1985

BGE 111 Ib 253 = XII Y.B. Com. Arb. 511 (1987)

II 50, 75, 76, 98, 130, VII 41

BG

Nov. 8, 1985

BGE 111 Ia 259

V 174

BG

Jan. 12, 1989

XV Y.B. Com. Arb. 509 (1990)

II 94, 130, 138, V 157, 174, 189, 190, 528, 531

BG

Apr. 7, 1989

BGE 115 II 102

V 563

BG

Oct. 3, 1989

BGE 115 II 288

V 563

BG

Aug. 21, 1990

BGE 116 II 373

V 185

BG

Nov. 14, 1990

BGE 116 II 634 = XVII Y.B. Com. Arb. 279 (1992)

V 561, 563

BG

Apr. 30, 1991

BGE 117 Ia 166

I 45

BG

July 1, 1991

BGE 117 II 346

V 179, 187, 188

BG

Apr. 28, 1992

BGE 118 II 193 = XVIII Y.B. Com. Arb. 143 (1993)

V 456

BG

May 11, 1992

10(3) ASA Bull. 381 (1992)

IV 14, V 174, 177

BG

June 23, 1992

11(1) ASA Bull. 58 (1993) = BGE 118 II 353 = XX Y.B. Com. Arb. 766 (1995)

II 161, V 418, 426, 428, 429, 431, 433, 466

BG

Dec. 22, 1992

14(4) ASA Bull. 646 (1996)

II 245

BG

Sep. 2, 1993

BGE 119 II 380

V 465

BG

Sep. 30, 1993

12(1) ASA Bull. 46 (1994) = BGE 117 Ia 365 = SZIER 1993, 199

I 32, 62

BG

Dec. 30, 1994

13(2) ASA Bull. 217 (1995) = XXI Y.B. Com. Arb. 172 (1996)

V 496

BG

Jan. 9, 1995

XXII Y.B. Com. Arb. 789 (1997)

IV 27, 28, 33, V 561, 569

BG

Jan. 16, 1995

BGE 121 III 38 = XXI Y.B. Com. Arb. 690 (1996)

II 53, 102, 114, 130, 140, 148, 300

BG

Mar. 21, 1995

14(2) ASA Bull. 255 (1996) = XXII Y.B. Com. Arb. 800 (1997)

II 228, 291

BG

Apr. 25, 1995

BGE 121 III 331

V 142

BG

Apr. 29, 1996

BGE 122 III 139 = 14(3) ASA Bull. 527 (1996)

Prel. Rem. 28, II 35, 300

BG

Sep. 6, 1996

15(2) ASA Bull. 291 (1997)

V 496

BG

Oct. 31, 1996

Digest of CAS Awards I 1986–1998, p. 585

II 28

BG

Jan. 28, 1997

16(1) ASA Bull. 118 (1998)

V 517, 576

BG

Mar. 24, 1997

BGE 124 II 272 = 15(2) ASA Bull. 316 (1997)

V 186

BG

July 27, 1997

18(1) ASA Bull. 96 (2000)

V 139

BG

Dec. 19, 1997

BGE 124 III 83 = XXIVa Y.B. Com. Arb. 727 (1999)

II 310

BG

June 9, 1998

16(3) ASA Bull. 653 (1998)

II 249

BG

Feb. 22, 1999

17(4) ASA Bull. 537 (1999) = RSDIE 2000, 575

V 186

BG

Sep. 30, 1999

18(1) ASA Bull. 109 (2000)

V 569

BG

Dec. 8, 1999

18(3) ASA Bull. 546 (2000)

II 245

BG

Sep. 10, 2001

20(3) ASA Bull. 473 (2002)

V 186

BG

May 31, 2002

XXVIII Y.B. Com. Arb. 835 (2003)

IV 21

BG

May 19, 2003

22(2) ASA Bull. 344 (2004)

II 225

671

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Cases Switzerland

New York Convention

Court

Date

Source

Art. para.

BG

Sep. 30, 2003

BGE 130 III 35

V 193

BG

Dec. 8, 2003

XXIX Y.B. Com. Arb. 834 (2004)

V 153, 361, 365

BG

Nov. 10, 2005

24(1) ASA Bull. 92 (2006)

V 70a

BG

Jan. 3, 2006

XXXII Y.B. Com. Arb. 619 (2007)

V 160

BG

Mar. 8, 2006

BGE 132 III 389 = Rev. arb. 2006, 763

Prel. Rem. 95, V 579

BG

July 20, 2007

25(4) ASA Bull. 798 (2007)

IV 15

BG

Jan. 9, 2008

26(2) ASA Bull. 329 (2008)

Prel. Rem. 28, II 28

BG

Feb. 29, 2008

2 Swiss Int’l Arb. L. Rep. 171 (2008)

V 228a

BG

Mar. 6, 2008

27(1) ASA Bull. 94 (2009)

V 70a

BG

Aug. 19, 2008

BGE 134 III 565

II 254

BG

Dec. 9, 2008

XXXIV Y.B. Com. Arb. 810 (2009)

IV 16, V 355, 361, 395

BG

Apr. 8, 2009

28(1) ASA Bull. 124 (2010)

V 147

BG

Jan. 6, 2010

28(4) ASA Bull. 772 (2010)

V 147

BG

Jan. 29, 2010

30(4) ASA Bull. 808 (2012)

V 185

BG

Feb. 15, 2010

28(2) ASA Bull. 277 (2010)

V 174

BG

Apr. 13, 2010

28(3) ASA Bull. 598 (2010)

I 58

BG

May 26, 2010

29(3) ASA Bull. 673 (2011)

V 131

BG

July 28, 2010

XXXVI Y.B. Com. Arb. 337 (2011)

IV 15, V 496, 530, 531

BG

Oct. 4, 2010

30(1) ASA Bull. 72 (2012) = XXXVI Y.B. Com. Arb. 340 (2011)

IV 27, V 65, 305, 496, 561

BG

Nov. 9, 2010

29(4) ASA Bull. 931 (2011)

V 193

BG

Nov. 10, 2010

29(1) ASA Bull. 110 (2011)

I 58

BG

Dec. 20, 2010

29(3) ASA Bull. 682 (2011)

V 185, 193

BG

Feb. 14, 2011

30(1) ASA Bull. 108 (2012)

V 204

BG

May 16, 2011

29(3) ASA Bull. 643 (2011)

V 142, 184, 186

BG

Dec. 16, 2011

34(2) ASA Bull. 482 (2016)

V 131

BG

Oct. 10, 2011

XXXVII Y.B. Com. Arb. 300 (2012)

Prel. Rem. 89, IV 27, 28, 33, 35, V 496, 514, 561, 583b

BG

Jan. 31, 2012

30(3) ASA Bull. 634 (2012)

V 142, 184, 186

BG

July 2, 2012

XXXVII Y.B. Com. Arb. 305 (2012)

V 572

BG

Feb. 20, 2013

31(3) ASA Bull. 659 (2013)

V 147, 192

BG

Apr. 17, 2013

32(1) ASA Bull. 108 (2014)

V 184

BG

June 27, 2013

32(1) ASA Bull. 48 (2014)

V 185

BG

July 15, 2013

31(4) ASA Bull. 853 (2013)

V 185, 193

BG

July 26, 2013

Rev. arb. 2013, 1066 = 32(2) ASA Bull. 326 (2014)

V 130, 152, 153, 154, 300

BG

Sep. 17, 2013

32(4) ASA Bull. 861 (2014), also available at http://swiss arbitrationdecisions.com (last visited Apr. 16, 2019)

V 185

BG

Feb. 4, 2014

32(2) ASA Bull. 356 (2014)

V 142, 175

BG

Feb. 5, 2014

32(2) ASA Bull. 367 (2014)

V 185, 193

BG

Apr. 3, 2014

32(3) ASA Bull. 575 (2014)

V 70a

BG

Apr. 7, 2014

32(4) ASA Bull. 854 (2014)

V 184

BG

Sep. 15, 2014

34(4) ASA Bull. 1015 (2016)

V 130, 131, 140, 159, 160, 168

BG

Sep. 25, 2014

XLI Y.B. Com. Arb. 564 (2016)

IV 7, V 514, 553

672

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Table of Cases and Awards

Switzerland

Cases

Court

Date

Source

Art. para.

BG

Feb. 26, 2015

33(3) ASA Bull. 576 (2015) = XLI Y.B. Com. Arb. 567 (2016)

V 1, 130, 131, 147, 153, 514, 555, 583b

BG

Apr. 15, 2015

33(2) ASA Bull. 406 (2015)

V 253

BG

May 29, 2015

33(3) ASA Bull. 599 (2015)

V 555

BG

Aug. 17, 2015

34(1) ASA Bull. 134 (2016)

V 293

BG

Oct. 6, 2015

BGE 141 III 495

V 170b, 185

BG

Dec. 10, 2015

34(2) ASA Bull. 449 (2016)

V 53

BG

Feb. 4, 2016

34(2) ASA Bull. 482 (2016) = XLI Y.B. Com. Arb. 573 (2016)

IV 28, 33, 35, V 53

OG Basel-Land

June 3, 1971

BJM 1973, 193 = IV Y.B. Com. Arb. 309 (1979)

II 98, 102, IV 34, V 157, 166, 181

OG Basel-Land

July 5, 1994

XXI Y.B. Com. Arb. 685 (1996)

II 94, 98, 102, 138, 141

Appellationsgericht Basel-Stadt

Sep. 6, 1968

I Y.B. Com. Arb. 200 (1976)

V 326

Appellationsgericht Basel-Stadt

Jan. 2, 1984

IPRax 1985, 44

V 233

Appellationsgericht Basel-Stadt

Feb. 27, 1989

BJM 1991, 144 = XVII Y.B. Com. Arb. 581 (1992)

III 13, 25, V 1, 21, 142, 162, 183

CJ

July 5, 1963

Rev. arb. 1965, 152

V 164

CJ

May 12, 1967

I Y.B. Com. Arb. 199 (1976)

XII 11

CJ

June 6, 1967

SJZ 1968, 56 = I Y.B. Com. Arb. 199 (1976)

II 99, 102

CJ

Sep. 17, 1976

SJ 1977, 505 = IV Y.B. Com. Arb. 311 (1979)

IV 34, V 511

CJ

Apr. 14, 1983

XII Y.B. Com. Arb. 502 (1987)

II 130

CJ

Dec. 11, 1997

15(4) ASA Bull. 667 (1997) = XXIII Y.B. Com. Arb. 764 (1998)

II 140, IV 28

CJ

Apr. 15, 1999

18(4) ASA Bull. 786 (2000) = XXVI Y.B. Com. Arb. 863 (2001)

IV 2, 11, 20, 27, 33, 35

CJ

Mar. 22, 2013

Unreported, available at http://newyorkconvention1958.org/ index.php?lvl=notice_display&id=3687&opac_view=2 (last visited Apr. 29, 2019)

V1

CJ

Apr. 11, 2014

Unreported, available at http://newyorkconvention1958.org/ index.php?lvl=notice_display&id=3692 (last visited Apr. 16, 2019)

V 131

Camera di Esecuzione e Fallimenti, Canton Ticino

June 19, 1990

XX Y.B. Com. Arb. 762 (1995)

V 147, 154, 511, 561

Tribunal cantonal, Canton de Vaud

Mar. 30, 1993

13(1) ASA Bull. 64 (1995)

II 26

OG Zug

Feb. 27, 1998

SJZ 2000, 298 = XXIX Y.B. Com. Arb. 805 (2004)

IV 34

OG Zürich

July 17, 2003

XXIX Y.B. Com. Arb. 819 (2004)

IV 34

HG Zürich

Dec. 14, 1989

XVIII Y.B. Com. Arb. 442 (1993)

II 78, 141

HG Zürich

Apr. 20, 1990

8(2) ASA Bull. 183 (1990) = XVII Y.B. Com. Arb. 584 (1992)

IV 27, 28, VII 20

HG Zürich

Aug. 25, 1992

ZEuP 1994, 682

II 26, 142

Bezirksgericht Affoltern am Albis

May 26, 1994

SJZ 1997, 223 = XXIII Y.B. Com. Arb. 754 (1998)

V 145, 530, 532

Tribunal de première instance, Republique et canton de Genève

May 22, 2014

Unreported, cited in Netherlands: Gerechtshof Amsterdam, XLIII Y.B. Com. Arb. 523 (2018)

V 364

673

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Cases Switzerland

New York Convention

Court

Date

Source

Art. para.

Kantonsgericht Zug

Aug. 16, 2006

GVP 2006, 179

II 159

Bezirksgericht Zürich

Feb. 14, 2003

XXIX Y.B. Com. Arb. 819 (2004)

IV 13, 33, 34, V 159, 359, 365, 448, VII 20, 35, 37

Tunisia Court

Date

Source

Art. para.

Cour de Cassation

Nov. 10, 1993

XXIII Y.B. Com. Arb. 770 (1998)

I 187

Turkey Court

Date

Source

Art. para.

4th Commercial Court of Ankara

Mar. 1, 1995

No. 95/140 (unreported)

V 510

Uganda Parties

Court

Date

Source

Art. para.

Mungereza v. Price Waterhouse Coopers

CA

Aug. 26, 2002

[2002] 1 EA 174

V 548

Ukraine Court

Date

Source

Art. para.

Sup. Ct.

Oct. 21, 2009

CLOUT Case No. 1330

V 19

Sup. Ct.

Nov. 24, 2010

CLOUT Case No. 1380

V 1, 5, 19, 21, 41

Sup. Ct.

Sep. 30, 2015

Yaroslav Petrov and Anna Tkachova, a contribution by the ITA Board of Reporters, available at http://www.kluwerarbitration.com (last visited Apr. 16, 2019)

V 160

Sup. Ct.

Feb. 24, 2016

XLI Y.B. Com. Arb. 581 (2016)

V 510, 583b, 586

CA Dnipropetrovsk

Mar. 28, 2011

XXXVIII Y.B. Com. Arb. 468 (2013)

V 160, 168

CA Kiev

Sep. 17, 2015

XLI Y.B. Com. Arb. 577 (2016)

V 510, 549, 583b, 586

Pechersk District Court, Kyiv

June 8, 2015

XL Y.B. Com. Arb. 492 (2015)

V 160, 539

Prymorskyi District Court, Odessa

Aug. 16, 2012

XXXVIII Y.B. Com. Arb. 473 (2013)

V 168

United Arab Emirates Court

Date

Source

Art. para.

Court of Cassation of Abu Dhabi

June 16, 2011

1(1) BCDR Int’l Arb. Rev. 125 (2014)

III 7

Court of Cassation of Dubai

Aug. 18, 2013

1(1) BCDR Int’l Arb. Rev. 137 (2014)

III 17

674

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Table of Cases and Awards

United Kingdom

Cases

United Kingdom of Great Britain and Northern Ireland Parties

Court

Date

Source

Art. para.

Abdullah M Fahem & Co. v. Mareb Yemen Insurance Co.

EWHC

Mar. 7, 1997

XXIII Y.B. Com. Arb. 789 (1998)

II 137

Adams v. Cape Industries plc

EWCA

July 27, 1989

[1990] Ch 433

V 563

AIG Capital Partners Inc. v. Kazakhstan

EWHC

Oct. 20, 2005

[2005] EWHC 2239 (Comm)

I 157

Al-Naimi v. Islamic Press Agency Inc.

Technology and Construction Court

Oct. 2, 1998

[1999] CLC 212

II 60

Anthony Lombard-Knight v. Rainstorm Pictures Inc.

EWCA

Mar. 27, 2014

[2014] EWCA Civ 356 = XXXIX Y.B. Com. Arb. 512 (2014)

IV 13, 20, 28, V 160

Apis AS v. Fantazia Kereskedelmi KFT

EWHC

Sep. 21, 2001

[2001] All E.R. 348

VI 18, 19

Braes of Doune v. Alfred McAlpine Business Services, Ltd.

EWHC

Mar. 13, 2008

[2008] EWHC 426

V 410

Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corp.

HL

Nov. 10, 1980

[1981] AC 909

II 298

Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd.

EWCA

Jan. 22, 1992

XVIII Y.B. Com. Arb. 446 (1993)

II 60

Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd.

HL

Jan. 21, 1993

[1993] AC 334 = XIX Y.B. Com. Arb. 736 (1994)

II 263, 267, V 405

Chantiers de l’Atlantique S.A. v. Gaztransport & Technigaz S.A.S.

EWHC

Dec. 20, 2011

[2011] EWHC 3383

V 142

China Agribusiness Development Corp. v. Balli Trading

EWHC

Jan. 20, 1997

XXIVa Y.B. Com. Arb. 732 (1999)

V 77, 317, 320, 322, 324

Comdel Commodities Ltd. v. Siporex Trade S.A.

EWHC

Nov. 20, 1986

XIV Y.B. Com. Arb. 725 (1989)

II 55

Compania Sud-Americana de Vapores SA v. Nippon Yusen Kaisha

EWHC

July 9, 2009

[2009] EWHC 1606

V 142, 176

Cukurova Holding A.S. v. Sonera Holding B.V.

Judicial Committee of the Privy Council

May 13, 2014

[2014] UKPC 15 = XXXIX Y.B. Com. Arb. 516 (2014)

V 19, 176, 226, 228a, 332, 495, 558

Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan

EWCA

July 20, 2009

[2009] EWCA Civ 755

IV 16

Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan

SCUK

Nov. 3, 2010

[2010] UKSC 46 = 2010 WL 4276039 = XXXVI Y.B. Com. Arb. 357 (2011)

II 254, 255, IV 20, V 63b, 77, 99, 127

Dallal v. Bank Mellat

EWHC

July 26, 1985

[1986] All E.R. 239 = [1986] 2 WLR 745 = XI Y.B. Com. Arb. 547 (1986)

Prel. Rem. 22, I 89

Dalmia Dairy Industries Ltd. v. National Bank of Pakistan

EWCA

Apr. 4, 1977

[1978] 2 Lloyd’s Rep 223

V 585

Deutsche Schachtbau- und Tiefbohrgesellschaft m. b. H. v. Shell International Petroleum Co. Ltd.

EWCA

Mar. 24, 1987

[1990] 1 AC 295 = XIII Y.B. Com. Arb. 522 (1988)

V 495

Diag Human SE v. The Czech Republic

EWCA

May 22, 2014

[2014] EWHC 1639 (Comm) = XXXIX Y.B. Com. Arb. 521 (2014)

III 26, V 364

Dowans Holding SA v. Tanzania Electric Supply Co. Ltd.

EWHC

July 27, 2011

XXXVI Y.B. Com. Arb. 363 (2011)

VI 7, 8

675

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Cases United Kingdom

New York Convention

Parties

Court

Date

Source

Art. para.

Downing v. Al Tameer Estab.

EWCA

May 22, 2002

[2002] EWCA Civ 721 = 2002 WL 820014

II 309

E. D. & F. Man (Sugar) Ltd. v. Yani Haryanto

EWCA

Dec. 21, 1990

[1991] IL Pr. 393

V 555

Eastern European Engineering Ltd. v. Vijay Construction (Pty.) Ltd.

EWHC

Apr. 11, 2017

XLII Y.B. Com. Arb. 549 (2017)

VI 17

Eastern European Engineering Ltd. v. Vijay Construction (Pty.) Ltd.

EWHC

Oct. 11, 2018

[2018] EWHC 2713 (Comm)

V 317, 517b, 518b, 553

Econet Satellite Services v. Vee Networks

EWHC

July 13, 2006

[2006] EWHC 1664

V 214

Enderby Town Football Club Ltd. v. The Football Association Ltd.

EWCA

Oct. 12, 1970

[1971] Ch 591 = [1971] 1 All E.R. 215

V 489

Far Eastern Shipping Co. v. AKP Sovcomflot

EWHC

Nov. 14, 1994

XXI Y.B. Com. Arb. 699 (1996)

III 24, VI 8, 13

Federal Bulk Carriers, Inc. v. C. Itoh & Co. Ltd.

EWCA

Oct. 10, 1988

1989 WL 649805

II 44

Fiona Trust & Holding Corp. v. Privalov

HL

July 30, 2007

[2007] EWCA Civ 20

II 225, 226, 261, 297

Fowler v. Merrill Lynch Pierce Fenner and Smith, Inc.

EWHC

June 10, 1982

X Y.B. Com. Arb. 499 (1985)

II 69

Fulham Football Club (1987) Ltd. v. Richards

EWCA

July 21, 2011

[2011] EWCA Civ 855

V 475

Gater Assets Ltd. v. NAK Naftogaz Ukrainiy

EWHC

Mar. 22, 2007

XXXIII Y.B. Com. Arb. 721 (2008)

V 551

Gater Assets Ltd. v. NAK Naftogaz Ukrainiy

EWCA

Oct. 17, 2007

[2007] EWCA Civ 988 = XXXIII Y.B. Com. Arb. 721 (2008)

III 7, 13

Good Challenger Navegante SA v. Metalexportimport SA

EWCA

Nov. 24, 2003

[2003] EWCA Civ 1668

III 14

Halki Shipping Corp. v. Sopex Oils Ltd.

EWCA

Dec. 19, 1997

[1998] 1 Lloyd’s Rep 465 = XXIII Y.B. Com. Arb. 802 (1998)

II 60, 263

Halpern v. Halpern

EWHC

Mar. 24, 2006

XXXI Y.B. Com. Arb. 964 (2006)

V 407

Hassneh Insurance Co. of Israel v. Mew

EWHC

Dec. 22, 1992

[1996] 2 Lloyd’s Rep 243 = XIX Y.B. Com. Arb. 223 (1994)

III 13

Hiscox v. Outhwaite

HL

July 24, 1991

[1992] 1 AC 562 = [1991] 3 WLR 297 = [1991] 3 All E.R. 641 = XVII Y.B. Com. Arb. 599 (1992)

I 100, 101, V 118

IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp.

EWHC

Apr. 27, 2005

XXXI Y.B. Com. Arb. 853 (2006)

V 395, VI 5, 6, 7, 8, 18, 20

IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp.

EWHC

Mar. 14, 2014

XXXIX Y.B. Com. Arb. 507 (2014)

VI 6, 7, 8, 9

IPCO (Nigeria) Ltd. v. Nigerian National Petroleum Corp.

EWCA

Nov. 10, 2015

XLI Y.B. Com. Arb. 590 (2016)

VI 18, 19

Irvani v. Irvani

EWCA

Dec. 9, 1999

[2000] 1 Lloyd’s Rep 412

V 141

JSC Aeroflot-Russian Airlines v. Berezovsky

EWCA

July 2, 2013

[2013] EWCA Civ 748

II 287

Kanoria v. Guinness

EWCA

Feb. 21, 2006

[2006] 2 All E.R. 413 = XXXI Y.B. Com. Arb. 943 (2006)

V 156

Konkola Copper Mines Plc v. U&M Mining Zambia Ltd.

EWHC

July 15, 2014

[2014] EWHC 2374 (Comm)

I 26

Lemenda Trading Co. v. African Middle East Petroleum Co.

EWHC

Nov. 3, 1987

[1988] QB 448

V 576

Lesotho Highlands Dev. Auth. v. Impregilo SpA

HL

June 30, 2005

[2005] 3 WLR 129

V 198

Lonrho Ltd. v. The Shell Petroleum Co. Ltd.

EWHC

Jan. 31, 1978

IV Y.B. Com. Arb. 320 (1979)

II 70

676

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Table of Cases and Awards

United Kingdom

Cases

Parties

Court

Date

Source

Art. para.

Malicorp Ltd. v. Government of the Arab Republic of Egypt

EWHC

Feb. 19, 2015

[2015] EWHC 361 (Comm) = XLI Y.B. Com. Arb. 585 (2016)

V 192, 386a

Margulead Ltd. v. Exide Tech.

EWHC

May 6, 2004

[2004] EWHC 1019

V 190

Minmetals Germany GmbH v. Ferco Steel Ltd.

EWHC

Jan. 20, 1999

[1999] CLC 647 = [1999] 1 All E.R. 315 = XXIVa Y.B. Com. Arb. 739 (1999)

V 139, 148, 157, 191, 254, 544

National Navigation v. Endesa Generacion SA

EWCA

Dec. 17, 2009

[2009] EWCA Civ 1397

VII 116

Naviera Maritima Peruana S.A. v. Compania Internacional de Seguros de Peru

EWCA

Nov. 10, 1987

XIII Y.B. Com. Arb. 156 (1988)

V 411

Nigerian National Petroleum Corp. v. IPCO (Nigeria) Ltd.

EWCA

Oct. 21, 2008

[2008] EWCA Civ 1157 = XXXIII Y.B. Com. Arb. 788 (2008)

V 83

Nikolay Viktorovich Maximov v. OJSC Novolipetsky Metallurgichesky Kombinat

EWHC

July 27, 2017

XLII Y.B. Com. Arb. 558 (2017)

V 387

Nisshin Shipping Co. Ltd. v. Cleaves & Co. Ltd.

EWHC

July 16, 2003

[2003] EWHC 2602 (Comm)

II 257

Nova (Jersey) Knit Ltd. v. Kammgarn Spinnerei GmbH

HL

Dec. 6, 1976

[1977] 1 WLR 713 = IV Y.B. Com. Arb. 314 (1979)

V 208

Omnium de Traitement et de Valorisation SA v. Hilmarton Ltd.

EWHC

May 24, 1999

XXIVa Y.B. Com. Arb. 777 (1999)

V 561

Overseas Union Insurance Ltd. v. AA Mutual International Insurance Co. Ltd.

EWHC

Jan. 21, 1988

[1988] 2 Lloyd’s Rep 63

II 288

Paczy v. Haendler & Natermann GmbH

EWCA

Dec. 3, 1980

[1981] 1 Lloyd’s Rep 302 = IX Y.B. Com. Arb. 445 (1984)

II 314, 315

Paul Smith Ltd. v. H & S International Holdings Co.

EWHC

Feb. 18, 1991

XIX Y.B. Com. Arb. 725 (1994)

II 47

Pencil Hill Ltd. v. US Citta Di Palermo S.p.A.

EWHC

Jan. 19, 2016

XLII Y.B. Com. Arb. 535 (2017)

V 567a

Peterson Farms Inc. v. C Farming Ltd.

EWHC

Feb. 4, 2004

[2004] All E.R. 50 = 2004 Arb. L.R. 573

II 255

Premium Nafta Products Ltd. v. Fili Shipping Co. Ltd.

HL

Oct. 17, 2007

[2007] UKHL 40 = [2007] Bus. L.R. 1719 = [2007] 1 Lloyd’s Rep 254

II 225, 226, 261, 296, 297, V 110

Privalov v. Fiona Trust Holding Corp.

EWCA

Jan. 24, 2007

XXXII Y.B. Com. Arb. 654 (2007)

V 431, 465

Privalov v. Fiona Trust Holding Corp.

HL

Oct. 17, 2007

XXXII Y.B. Com. Arb. 654 (2007)

V 431, 465

Richardson v. Mellish

Court of Common Pleas

July 2, 1824

[1824] All E.R. 258

V 489

Rosseel N.V. v. Oriental Commercial Shipping (UK) Ltd.

EWHC

Nov. 16, 1990

[1991] 2 Lloyd’s Rep 625 = XVI Y.B. Com. Arb. 615 (1991)

III 7, 17, IV 16, V 1, 21

S.L. Sethia Liners Ltd. v. State Trade Corp. of India Ltd.

EWCA

Oct. 14, 1985

XIV Y.B. Com. Arb. 710 (1989)

II 60

Sandra Gasser v. Henry Hunter Stinson

EWHC

June 15, 1988

No. Ch-88-g-2191 (unreported)

I 45

Sinocore International Co. Ltd. v. RBRG Trading (UK) Ltd.

EWHC

Feb. 17, 2017

XLII Y.B. Com. Arb. 538 (2017)

V 553, 576

Sir Frederick Snow & Partners v. Minister of Public Works of the Government of the State of Kuwait

HL

Mar. 1, 1984

X Y.B. Com. Arb. 508 (1985)

XII 11

Soinco SACI v. Novokuznetsk Aluminium Plant

EWCA

Dec. 16, 1997

[1998] 2 Lloyd’s Rep 337 = XXIII Y.B. Com. Arb. 795 (1998)

III 14, V 582

Soleh Boneh Int. Ltd. v. Uganda

EWCA

Mar. 12, 1993

XIX Y.B. Com. Arb. 748 (1994)

VI 1, 7, 18, 19, 20

677

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Cases United Kingdom

New York Convention

Parties

Court

Date

Source

Art. para.

Soleimany v. Soleimany

EWCA

Feb. 19, 1998

[1999] QB 785

V 575, 576

Sucafina SA v. Rotenberg

EWCA

May 16, 2012

[2012] EWCA Civ 637

I 26

Sulamerica CIA Nacional De Seguros SA v. Enesa Engenharia SA

EWHC

Jan. 19, 2012

[2012] EWHC 42 (Comm)

II 233

Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania and AB Geonafta

EWCA

Nov. 13, 2006

[2006] EWCA Civ 1529

I 143

The Rena K

EWHC

Jan. 13, 1978

[1978] 1 Lloyd’s Rep 545 = [1979] QB 377 = IV Y.B. Com. Arb. 323 (1979)

II 316

Toepfer International G.m.b.H. v. Molino Boschi SRL

EWHC

Jan. 17, 1996

XXIII Y.B. Com. Arb. 774 (1998)

II 60

Tongyuan (USA) International Trading Group v. Uni-Clan Ltd.

EWHC

Jan. 19, 2001

XXVI Y.B. Com. Arb. 886 (2001)

V 33, 320, 331

Travis Coal Restructured Holdings LLC v. Essar Global Fund Ltd.

EWHC

July 24, 2014

[2014] EWHC 2510 (Comm)

VI 7, 8

Vervaeke v. Smith

HL

Apr. 7, 1982

[1982] 2 All E.R. 144

V 555

Westacre Investments Inc. v. Jugoimport SDPR Holding Co.

EWHC

Dec. 19, 1997

XXIII Y.B. Com. Arb. 836 (1998)

V 576

Westacre Investments Inc. v. Jugoimport SDPR Holding Co.

EWCA

May 12, 1999

[2000] QB 288 = XXIVa Y.B. Com. Arb. 753 (1999)

V 576

Yukos Capital S.A.R.L. v. OJSC Rosneft Oil Co.

EWCA

June 27, 2012

XXXVII Y.B. Com. Arb. 312 (2012)

V 386a, 518b

Yukos Capital S.A.R.L. v. OJSC Rosneft Oil Co.

EWHC

July 3, 2014

XXXIX Y.B. Com. Arb. 526 (2014)

V 386a

Yukos Oil Co. v. Dardana Ltd.

EWCA

Apr. 18, 2002

XXVII Y.B. Com. Arb. 570 (2002)

IV 20, V 42, 44, 126, VI 2, 18

Zambia Steel & Building Supplies Ltd. v. James Clark & Eaton Ltd.

EWCA

May 16, 1986

XIV Y.B. Com. Arb. 715 (1989)

II 98, 137

Zavod Ekran OAO v. Magneco Metrel UK, Ltd.

EWHC

Sep. 1, 2017

[2017] EWHC 2208 (Comm) = XLIII Y.B. Com. Arb. 576 (2018)

V 161

United States of America Parties

Court

Date

Source

Art. para.

AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc.

Court of Appeals (2nd Cir.)

Mar. 23, 1998

139 F.3d 980 (2d Cir. 1998) = XXIVa Y.B. Com. Arb. 813 (1999)

V 55, 147, 293, 530

Aasma v. Am. S.S. Owners Mut. Prot. & Indem.

District Court (N.D. Ohio)

Jan. 8, 2003

238 F. Supp. 2d 918 (N.D. Ohio 2003) = XXVIII Y.B. Com. Arb. 1140 (2003)

V 249, 572

Abu Dhabi Inv. Auth. v. Citigroup, Inc.

District Court (S.D.N.Y.)

Mar. 4, 2013

6(2) Int’l J. Arab. Arb. 77 (2014) (S.D.N.Y. 2013)

V 170b, 174, 185

Acosta III v. Master Maint. & Constr., Inc.

Court of Appeals (5th Cir.)

June 8, 2006

452 F.3d 373 (5th Cir. 2006)

XIV 2

Admart AG v. Stephen & Mary Birch Found.

Court of Appeals (3rd Cir.)

Aug. 28, 2006

457 F.3d 302 (3d Cir. 2006)

III 7

Affymax, Inc. v. Ortho-McNeilJansen Pharm., Inc.

Court of Appeals (7th Cir.)

Oct. 3, 2011

660 F.3d 281 (7th Cir. 2011)

V 23

Aggarao v. MOL Ship Mgmt. Co.

Court of Appeals (4th Cir.)

Mar. 16, 2012

675 F.3d 355 (4th Cir. 2012)

II 307

678

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Table of Cases and Awards

United States

Cases

Parties

Court

Date

Source

Art. para.

Aggarao v. MOL Ship Mgmt. Co.

District Court (D. Md.)

Aug. 7, 2014

XL Y.B. Com. Arb. 504 (2015) (D. Md. 2014)

V 581a

Agroeng’g v. Am. Custom Serv., Inc.

District Court (E.D.N.Y.)

June 7, 1996

XXII Y.B. Com. Arb. 990 (1997) (E.D.N.Y. 1996)

II 94, IV 20

Air Line Pilots Ass’n Int’l v. Trans States Airlines, LLC

Court of Appeals (8th Cir.)

May 3, 2011

638 F.3d 572 (8th Cir. 2011)

V 23

Al Haddad Bros. Enters. v. M/S Agapi

District Court (D. Del.)

May 8, 1986

635 F. Supp. 205 (D. Del. 1986) = XII Y.B. Com. Arb. 549 (1987)

IV 13, 23, V 287

Al Haddad Bros. Enters. v. M/S Agapi

Court of Appeals (3rd Cir.)

Feb. 18, 1987

813 F.2d 396 (3d Cir. 1987)

IV 13, 23

Allied-Bruce Terminix Co. v. Dobson

Sup. Ct.

Jan. 18, 1995

513 U.S. 265 (1995)

V 460

Alto Mar Girassol v. Lumbermens Mut. Cas. Co.

District Court (N.D. Ill.)

Apr. 12, 2005

XXX Y.B. Com. Arb. 1152 (2005) (N.D. Ill. 2005)

V 395, VI 6, 8, 9, 10, 11, 12, 19, 20

Alvarado Vera v. Cruise Ships Catering & Servs. Int’l, N.V.

Court of Appeals (11th Cir.)

Dec. 3, 2014

XL Y.B. Com. Arb. 528 (2015) (11th Cir. 2014)

II 145, 146

Am. Bureau of Shipping v. Tencara Shipyard S.P.A.

Court of Appeals (2nd Cir.)

Mar. 17, 1999

170 F.3d 349 (2d Cir. 1999)

II 259

Am. Constr. Mach. & Equip. Corp. v. Mechanised Constr. of Pak. Ltd.

District Court (S.D.N.Y.)

Mar. 23, 1987

659 F. Supp. 426 (S.D.N.Y. 1987)

V 23, 556

Am. Constr. Mach. & Equip. Corp. v. Mechanised Constr. of Pak. Ltd.

Court of Appeals (2nd Cir.)

Sep. 14, 1987

828 F.2d 117 (2d Cir. 1987)

V 556

Am. Dredging Co. v. Miller

Sup. Ct.

Feb. 23, 1994

510 U.S. 443 (1994)

III 22

Am. Safety Equip. Corp. v. J.P. Maguire & Co.

Court of Appeals (2nd Cir.)

Mar. 20, 1968

391 F.2d 821 (2d Cir. 1968)

V 455

Am. Univ. of Antigua Coll. of Med. v. Leeward Constr. Co.

District Court (S.D.N.Y.)

May 1, 2015

XL Y.B. Com. Arb. 578 (2015) (S.D.N.Y. 2015)

I 62, V 193

Ameropa AG v. Havi Ocean Co.

District Court (S.D.N.Y.)

Feb. 16, 2011

XXXVI Y.B. Com. Arb. 433 (2011) (S.D.N.Y. 2011)

V 562, 585

Amizola v. Dolphin Shipowner, S.A.

District Court (E.D. La.)

Oct. 19, 2004

354 F. Supp. 2d 689 (E.D. La. 2004) = XXXI Y.B. Com. Arb. 947 (2006)

I 184

Andros Compania Maritima S.A. v. André & Cie., S.A.

District Court (S.D.N.Y.)

Mar. 21, 1977

III Y.B. Com. Arb. 293 (1978) (S.D.N.Y. 1977)

II 36

Anhui Provincial Imp. & Exp. Corp. v. Hart Enters. Int’l, Inc.

District Court (S.D.N.Y.)

May 6, 1996

1996 U.S. Dist. LEXIS 6041 (S.D.N.Y. 1996) = 1996 WL 229872 = XXII Y.B. Com. Arb. 979 (1997)

V 160, 547

Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd.

Court of Appeals (6th Cir.)

Feb. 13, 2009

556 F.3d 459 (6th Cir. 2009)

II 323

AO Techsnabexport v. Globe Nuclear Servs. & Supply, Ltd.

District Court (D. Md.)

Aug. 28, 2009

656 F. Supp. 2d 550 (D. Md. 2009) = XXXIV Y.B. Com. Arb. 1174 (2009)

I 62, V 41

AO Techsnabexport v. Globe Nuclear Servs. & Supply, Ltd.

Court of Appeals (4th Cir.)

Dec. 15, 2010

XXXVI Y.B. Com. Arb. 407 (2011) (4th Cir. 2010)

V 322, 543

Apple & Eve, LLC v. Yantai N. Andre Juice Co.

District Court (E.D.N.Y.)

Apr. 27, 2009

610 F. Supp. 2d 226 (E.D.N.Y. 2009)

II 272

Arnold v. Arnold Corp.

Court of Appeals (6th Cir.)

Dec. 3, 1990

920 F.2d 1269 (6th Cir. 1990)

II 247

Arthur Andersen LLP v. Carlisle

Sup. Ct.

May 4, 2009

129 S. Ct. 1896 (2009)

II 273

Ascension Orthopedics, Inc. v. Curasan AG

District Court (W.D. Tex.)

Sep. 20, 2006

2006 WL 2709058 (W.D. Tex. 2006) = XXXII Y.B. Com. Arb. 871 (2007)

II 224, 225

Asphalt Trader Ltd. v. Taryn Capital Energy, L.L.C.

District Court (D. Utah)

Sep. 27, 2016

XLIII Y.B. Com. Arb. 592 (2018) (D. Utah 2016)

IV 13

679

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Cases United States

New York Convention

Parties

Court

Date

Source

Art. para.

AT&S Transp., LLC v. Odyssey Logistics & Tech. Corp.

Sup. Ct. (N.Y. App. Div.)

Oct. 24, 2005

803 N.Y.S.2d 118 (App. Div. 2005)

II 249

Audi-NSU Auto Union AG v. Overseas Motors, Inc.

District Court (E.D. Mich.)

Mar. 15, 1977

III Y.B. Com. Arb. 291 (1978) (E.D. Mich. 1977)

III 26

AVR Communications, Ltd. v. Am. Hearing Sys., Inc.

District Court (D. Minn.)

Jan. 31, 2014

XXXIX Y.B. Com. Arb. 587 (2014) (D. Minn. 2014)

III 7

Avraham v. Shigur Express Ltd.

District Court (S.D.N.Y.)

Sep. 1, 1989

XVI Y.B. Com. Arb. 624 (1991) (S.D.N.Y. 1989)

V 23

Baker Marine Ltd. v. Chevron Ltd.

Court of Appeals (2nd Cir.)

Aug. 12, 1999

191 F.3d 194 (2d Cir. 1999) = XXIVa Y.B. Com. Arb. 909 (1999)

V 387, VII 43

Balkan Energy Ltd. v. Republic of Ghana

District Court (D.D.C.)

Mar. 22, 2018

XLIII Y.B. Com. Arb. 730 (2018) (D.D.C. 2018)

V 489, 512a

Banco de Seguros del Estado v. Mut. Marine Offices, Inc.

District Court (S.D.N.Y.)

Aug. 6, 2002

230 F. Supp. 2d 362 (S.D.N.Y. 2002)

V 372

Banco de Seguros del Estado v. Mut. Marine Office, Inc.

Court of Appeals (2nd Cir.)

Sep. 18, 2003

344 F.3d 255 (2d Cir. 2003) = XXIX Y.B. Com. Arb. 1070 (2004)

V 573

Basargin v. Shipowners’ Mut. Prot. & Indem. Ass’n

District Court (D. Alaska)

Feb. 16, 1995

XXII Y.B. Com. Arb. 894 (1997) (D. Alaska 1995)

II 153

Base Metal Trading, Ltd. v. OJSC Novokuznetsky Aluminum Factory

Court of Appeals (4th Cir.)

Mar. 6, 2002

283 F.3d 208 (4th Cir. 2002) = XXVII Y.B. Com. Arb. 902 (2002)

III 17

Bautista v. Star Cruises

Court of Appeals (11th Cir.)

Jan. 18, 2005

396 F.3d 1289 (11th Cir. 2005) = XXX Y.B. Com. Arb. 1071 (2005)

I 184, II 285, 307

Baxter Int’l, Inc. v. Abbott Laboratories

Court of Appeals (7th Cir.)

Jan. 16, 2003

315 F.3d 829 (7th Cir. 2003) = XXVIII Y.B. Com. Arb. 1154 (2003)

V 579

Bayer Cropscience AG v. Dow Agrosciences LLC

District Court (E.D. Va.)

Jan. 15, 2016

XLI Y.B. Com. Arb. 658 (2016) (E.D. Va. 2016)

V 583a

Bayer Cropscience AG v. Dow Agrosciences LLC

Court of Appeals (Fed. Cir.)

Mar. 1, 2017

XLII Y.B. Com. Arb. 681 (2017) (Fed. Cir. 2017)

V 583a

BCB Holdings Ltd. v. Gov’t of Belize

District Court (D.D.C.)

June 24, 2015

110 F. Supp. 3d 233 (D.D.C. 2015) = XL Y.B. Com. Arb. 590 (2015)

Prel. Rem. 29, V 26, 489, 585

Becker Autoradio U.S.A., Inc. v. Becker Autoradiowerk GmbH

Court of Appeals (3rd Cir.)

July 17, 1978

585 F.2d 39 (3d Cir. 1978) = V Y.B. Com. Arb. 272 (1980)

II 89

Beiser v. Weyler

Court of Appeals (5th Cir.)

Mar. 19, 2002

284 F.3d 665 (5th Cir. 2002)

XIV 2

Belcourt v. Grivel, S.L.R.

District Court (D. Utah)

Nov. 9, 2009

2009 WL 3764085 (D. Utah 2009)

II 278

Belize Bank Ltd. v. Gov’t of Belize

District Court (D.D.C.)

June 8, 2016

XLI Y.B. Com. Arb. 715 (2016) (D.D.C. 2016)

V 26, 530

Belize Bank Ltd. v. Gov’t of Belize

Court of Appeals (D.C. Cir.)

Mar. 31, 2017

XLII Y.B. Com. Arb. 698 (2017) (D.C. Cir. 2017)

V 531

Belize Soc. Dev. Ltd. v. Gov’t of Belize

District Court (D.D.C.)

Dec. 11, 2013

5 F. Supp. 3d 25 (D.D.C. 2013) = XXXIX Y.B. Com. Arb. 574 (2014)

III 22, IV 27, V 26

Belize Soc. Dev. Ltd. v. Gov’t of Belize

Court of Appeals (D.C. Cir.)

July 21, 2015

794 F.3d 99 (D.C. Cir. 2015)

V 26

Bergesen v. Joseph Müller AG

District Court (S.D.N.Y.)

Oct. 7, 1982

548 F Supp. 650 (S.D.N.Y. 1982)

I 123

Bergesen v. Joseph Müller AG

Court of Appeals (2nd Cir.)

June 17, 1983

710 F.2d 928 (2d Cir. 1983) = IX Y.B. Com. Arb. 487 (1984)

I 123, IV 13

Biotronik Mess- und Therapiegeräte GmbH & Co. v. Medford Med. Instrument Co.

District Court (D.N.J.)

May 12, 1976

415 F. Supp. 133 (D.N.J. 1976) = II Y.B. Com. Arb. 250 (1977)

V 157

Bitumenes Orinoco, S.A. v. New Brunswick Power Holding Corp.

District Court (S.D.N.Y.)

Jan. 31, 2007

2007 U.S. Dist. LEXIS 10138 (S.D.N.Y. 2007) = XXXII Y.B. Com. Arb. 991 (2007)

II 130

Black & Veatch Int’l Co. v. Wartsila NSD N. Am., Inc.

District Court (D. Kan.)

Dec. 18, 1998

XXV Y.B. Com. Arb. 878 (2000) (D. Kan. 1998)

II 151

680

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Table of Cases and Awards

United States

Cases

Parties

Court

Date

Source

Art. para.

Borden, Inc. v. Meiji Milk Products Co.

Court of Appeals (2nd Cir.)

Nov. 21, 1990

919 F.2d 822 (2d Cir. 1990)

II 319

Borsack v. Chalk & Vermilion Fine Arts, Ltd.

District Court (S.D.N.Y.)

Aug. 7, 1997

XXIII Y.B. Com. Arb. 1038 (1998) (S.D.N.Y. 1997)

II 151

Bothell v. Hitachi Zosen

District Court (W.D. Wash.)

May 19, 2000

97 F. Supp. 2d 1048 (W.D. Wash. 2000) = XXVI Y.B. Com. Arb. 939 (2001)

II 93, 140

Brandeis Intsel Ltd. v. Calabrian Chems. Corp.

District Court (S.D.N.Y.)

Jan. 5, 1987

656 F. Supp. 160 (S.D.N.Y. 1987) = XIII Y.B. Com. Arb. 543 (1988)

V 23, 24, 83, 244, 563

Bridas S.A.P.I.C. v. Turkmenistan

Court of Appeals (5th Cir.)

Sep. 9, 2003

345 F.3d 347 (5th Cir. 2003)

II 243

Brier v. Northstar Marine, Inc.

District Court (D.N.J.)

July 1, 1992

1992 WL 350292 (D.N.J. 1992) = XIX Y.B. Com. Arb. 766 (1994)

I 125, 131

Buckeye Check Cashing, Inc. v. Cardegna

Sup. Ct.

Feb. 21, 2006

546 U.S. 440 (2006)

II 298, 305, V 110

Caja Nacional de Ahorro y Seguros v. Deutsche Rückversicherung AG

District Court (S.D.N.Y.)

Aug. 1, 2007

2007 U.S. Dist. LEXIS 56197 (S.D.N.Y. 2007) = 2007 WL 2219421 = XXXIII Y.B. Com. Arb. 997 (2008)

V 140, 563

Calbex Mineral Ltd. v. ACC Res. Co.

District Court (W.D. Pa.)

Mar. 13, 2015

90 F. Supp. 3d 442 (W.D. Pa. 2015) = XL Y.B. Com. Arb. 563 (2015)

V 142, 270

Camilo Costa v. Celebrity Cruises, Inc.

District Court (S.D. Fla.)

Feb. 25, 2011

XXXVI Y.B. Com. Arb. 435 (2011) (S.D. Fla. 2011)

V 523

Cape Flattery Ltd. v. Titan Mar., LLC

Court of Appeals (9th Cir.)

July 26, 2011

647 F.3d 914 (9th Cir. 2011)

II 225

Cara’s Notions, Inc. v. Hallmark Cards

Court of Appeals (4th Cir.)

Mar. 31, 1998

140 F.3d 566 (4th Cir. 1998)

V 472

Carter v. Countrywide Credit Indus., Inc.

Court of Appeals (5th Cir.)

Mar. 5, 2004

362 F.3d 294 (5th Cir. 2004)

V 41

Castro v. Tri Marine Fish Co.

District Court (W.D. Wash.)

July 31, 2017

XLIII Y.B. Com. Arb. 638 (2018) (W.D. Wash. 2017)

V 130, 581a

Castro v. Tri Marine Fish Co.

Court of Appeals (9th Cir.)

Apr. 15, 2019

921 F.3d 766 (9th Cir. 2019)

I 78

CBF Industria de Gusa v. AMCI Holdings, Inc.

District Court (S.D.N.Y.)

Apr. 9, 2014

2014 U.S. Dist. LEXIS 49368 (S.D.N.Y. 2014) = XXXIX Y.B. Com. Arb. 609 (2014)

Prel. Rem. 29

CEEG (Shanghai) Solar Sci. & Tech. Co. v. Lumos LLC

District Court (D. Colo.)

May 29, 2015

2015 U.S. Dist. LEXIS 69829 (D. Colo. 2015) = XL Y.B. Com. Arb. 586 (2015)

V 41, 161

CEEG (Shanghai) Solar Sci. & Tech. Co. v. Lumos LLC

Court of Appeals (10th Cir.)

July 19, 2016

XLII Y.B. Com. Arb. 607 (2017) (10th Cir. 2016)

V 280

Century Indem. Co. v. Axa Belg.

District Court (S.D.N.Y.)

Sep. 24, 2012

2012 WL 4354816 (S.D.N.Y. 2012)

V 172

Century Indem. Co. v. Certain Underwriters at Lloyd’s, London

Court of Appeals (3rd Cir.)

Oct. 15, 2009

584 F.3d 513 (3d Cir. 2009) = XXXV Y.B. Com. Arb. 485 (2010)

II 139, 234

Cerner Middle E. Ltd. v. iCapital, L.L.C.

District Court (D. Or.)

Mar. 27, 2017

XLIII Y.B. Com. Arb. 616 (2018) (D. Or. 2017)

III 17

Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co.

Court of Appeals (7th Cir.)

Aug. 29, 2007

500 F.3d 571 (7th Cir. 2007)

II 234

Chevron Corp. v. Republic of Ecuador

District Court (D.D.C.)

June 6, 2013

949 F. Supp. 2d 57 (D.D.C. 2013) = XXXIX Y.B. Com. Arb. 550 (2014)

III 7, VI 6

China Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp.

Court of Appeals (3rd Cir.)

June 26, 2003

334 F.3d 274 (3d Cir. 2003) = XXIX Y.B. Com. Arb. 1003 (2004)

IV 21, V 1

China Nat’l Bldg. Material Inv. Co. v. BNK Int’l LLC

District Court (W.D. Tex.)

Dec. 4, 2009

XXXV Y.B. Com. Arb. 507 (2010) (W.D. Tex. 2009)

V 547

681

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Cases United States

New York Convention

Parties

Court

Date

Source

Art. para.

China Nat’l Chartering Corp. v. Pactrans Air & Sea, Inc.

District Court (N.D. Ill.)

Dec. 6, 2012

2012 U.S. Dist. LEXIS 172899 (N.D. Ill. 2012) = XXXVIII Y.B. Com. Arb. 496 (2013)

III 14, V 174

China Three Gorges Project Corp. v. Rotec Indus.

District Court (D. Del.)

Aug. 2, 2005

2005 WL 1813025 (D. Del. 2005) = XXXI Y.B. Com. Arb. 1231 (2006)

III 23, V 38

Chloe Z Fishing Co. v. Odyssey Re (London) Ltd.

District Court (S.D. Cal.)

Apr. 26, 2000

109 F. Supp. 2d 1236 (S.D. Cal. 2000) = XXVI Y.B. Com. Arb. 910 (2001)

II 104, 105, 130, 229, 307

Chromalloy Aeroservs., Inc. v. Arab Republic of Egypt

District Court (D.D.C.)

July 31, 1996

939 F. Supp. 907 (D.D.C. 1996) = XXII Y.B. Com. Arb. 1001 (1997)

I 105, V 77, 244, 388, 389, VII 41, 43

CHS Europe SA v. El Attal

District Court (S.D.N.Y.)

July 22, 2010

2010 U.S. Dist. LEXIS 76619 (S.D.N.Y. 2010)

III 22

Circuit City Stores v. Adams

Sup. Ct.

Mar. 21, 2001

532 U.S. 105 (2001)

V 476

Citigroup Global Mkts., Inc. v. Bacon

Court of Appeals (5th Cir.)

Mar. 5, 2009

562 F.3d 349 (5th Cir. 2009) = XXXIV Y.B. Com. Arb. 337 (2009)

V 23

Clinique La Prairie, S.A. v. The Ritz Carlton Hotel Co.

District Court (S.D.N.Y.)

Mar. 27, 2009

2009 WL 884671 (S.D.N.Y. 2009) = XXXIV Y.B. Com. Arb. 1049 (2009)

I 60

Coenen v. R.W. Pressprich & Co.

Court of Appeals (2nd Cir.)

Jan. 12, 1972

453 F.2d 1209 (2d Cir. 1972)

II 229

Coimex Trading (Suisse) S.A. v. Cargill Int’l S.A.

District Court (S.D.N.Y.)

Apr. 15, 2005

2005 U.S. Dist. LEXIS 6589 (S.D.N.Y. 2005) = XXXI Y.B. Com. Arb. 1090 (2006)

II 137

Comedy Club, Inc. v. Improv W. Assoc.

Court of Appeals (9th Cir.)

Jan. 29, 2009

553 F.3d 1277 (9th Cir. 2009)

V 23

Comm’ns Imp. Exp. S.A. v. Republic of the Congo & Caisse Congolaise d’Amortissement

Court of Appeals (D.C. Cir.)

July 11, 2014

757 F.3d 321 (D.C. Cir. 2014) = XXXIX Y.B. Com. Arb. 629 (2014)

III 24

Commercial Risk Reins. Co. v. Sec. Ins. Co. of Hartford

District Court (S.D.N.Y.)

Nov. 30, 2007

526 F. Supp. 2d 424 (S.D.N.Y. 2007)

V 335

Commercial Union Ins. Co. v. Lines

District Court (S.D.N.Y.)

Dec. 18, 2002

239 F. Supp. 2d 351 (S.D.N.Y. 2002)

III 13

Commercial Union Ins. Co. v. Lines

Court of Appeals (2nd Cir.)

Aug. 5, 2004

378 F.3d 204 (2d Cir. 2004)

III 13

Compagnie des Bauxites de Guinée v. Hammermills, Inc.

District Court (D.D.C.)

May 29, 1992

1992 WL 122712 (D.D.C. 1992) = XVIII Y.B. Com. Arb. 566 (1993)

V 139, 315, 320

Compagnie Noga d’Importation et d’Exportation S.A. v. Russian Federation

District Court (S.D.N.Y.)

Sep. 19, 2002

2002 WL 31106345 (S.D.N.Y. 2002) = XXVIII Y.B. Com. Arb. 1025 (2003)

III 23, V 31

Compagnie Noga d’Importation et d’Exportation S.A. v. Russian Federation

Court of Appeals (2nd Cir.)

Mar. 16, 2004

361 F.3d 676 (2d Cir. 2004)

III 23

Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc.

District Court (E.D. La.)

Jan. 26, 2000

XXV Y.B. Com. Arb. 1115 (2000) (E.D. La. 2000)

VI 5, 7, 16, 17, 20

Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc.

District Court (E.D. La.)

Mar. 14, 2001

XXVI Y.B. Com. Arb. 1066 (2001) (E.D. La. 2001)

IV 20

Consorcio Rive, S.A. de C.V. v. Briggs of Cancun, Inc.

Court of Appeals (5th Cir.)

Nov. 26, 2003

82 Fed. Appx. 359 (5th Cir. 2003) = XXIX Y.B. Com. Arb. 1160 (2004)

V 130, 181, 548

Cont’l Grain Co. v. Foremost Farms, Inc.

District Court (S.D.N.Y.)

Mar. 23, 1998

1998 WL 132805 (S.D.N.Y. 1998) = XXV Y.B. Com. Arb. 820 (2000)

I 123, IV 13

Cooper v. Ateliers de la Motobécane, S. A.

Court of Appeals (N.Y.)

Nov. 18, 1982

57 N.Y.2d 408 (1982) = IX Y.B. Com. Arb. 482 (1984)

II 267, 288

Copal Co. v. Fotochrome, Inc.

Court of Appeals (2nd Cir.)

May 29, 1975

517 F.2d 512 (2d Cir. 1975) = I Y.B. Com. Arb. 202 (1976)

V 5, 139, 580, VII 30, XII 11

Copape Produtos de Pétroleo LTDA. v. Glencore Ltd.

District Court (S.D.N.Y.)

Feb. 8, 2012

2012 WL 398596 (S.D.N.Y. 2012)

II 141

682

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Table of Cases and Awards

United States

Cases

Parties

Court

Date

Source

Art. para.

Corcoran v. Ardra Ins. Co.

Sup. Ct. (N.Y. App. Div.)

Apr. 10, 1990

XVI Y.B. Com. Arb. 663 (1991) (N.Y. App. Div. 1990)

V 101, 419

Coutinho Caro & Co. U.S.A., Inc. v. Marcus Trading, Inc.

District Court (D. Conn.)

Mar. 14, 2000

2000 U.S. Dist. LEXIS 8498 (D. Conn. 2000) = XXVI Y.B. Com. Arb. 894 (2001)

V 409, 561

Covington Marine Corp. v. Xiamen Shipbuilding Indus. Co.

Court of Appeals (5th Cir.)

Dec. 21, 2012

504 Fed. Appx. 298 (5th Cir. 2012) = XXXVIII Y.B. Com. Arb. 505 (2013)

III 17

Cox v. Fremont County Pub. Bldg. Auth.

Court of Appeals (10th Cir.)

Sep. 3, 1969

415 F.2d 882 (10th Cir. 1969)

II 60

CP Constr. Pioneers Baugesellschaft Anstalt v. Gov’t of the Republic of Ghana

District Court (D.D.C.)

Aug. 12, 2008

XXXIII Y.B. Com. Arb. 1211 (2008) (D.D.C. 2008)

VI 7

Crystallex Int’l v. Venezuela

District Court (D.D.C.)

Mar. 25, 2017

XLII Y.B. Com. Arb. 692 (2017) (D.D.C. 2017)

V 23, 481, 566

Cvoro v. Carnival Corp.

District Court (S.D. Fla.)

Nov. 28, 2016

XLII Y.B. Com. Arb. 668 (2017) (S.D. Fla. 2016)

Prel. Rem. 29, V 581a

Cvoro v. Carnival Corp.

District Court (S.D. Fla.)

Apr. 5, 2018

XLIII Y.B. Com. Arb. 745 (2018) (S.D. Fla. 2018)

V 581a

Czarina, L.L.C. v. W.F. Poe Syndicate

Court of Appeals (11th Cir.)

Feb. 4, 2004

358 F.3d 1286 (11th Cir. 2004) = XXIX Y.B. Com. Arb. 1200 (2004)

V 44, 127

Daesang Corp. v. NutraSweet Co.

Sup. Ct. (N.Y.)

May 15, 2017

58 N.Y.S.3d 873 (2017)

V 23

Daesang Corp. v. NutraSweet Co.

Sup. Ct. (N.Y. App. Div.)

Sep. 27, 2018

167 A.D.3d 1 (2018)

V 23

Dandong Shuguang Axel Corp. v. Brilliance Mach. Co.

District Court (N.D. Cal.)

June 1, 2001

2001 U.S. Dist. LEXIS 7493 (N.D. Cal. 2001) = XXVII Y.B. Com. Arb. 617 (2002)

V 225, 567

David L. Threlkeld & Co. v. Metallgesellschaft Ltd.

Court of Appeals (2nd Cir.)

Jan. 15, 1991

923 F.2d 245 (2d Cir. 1991)

II 192, 225, 234

Deiulemar Compagnia di Navigazione, S.p.A. v. Transocean Coal Co.

District Court (S.D.N.Y.)

Nov. 30, 2004

XXX Y.B. Com. Arb. 990 (2005) (S.D.N.Y. 2004)

V 280, 288, 337

Diag Human S.E. v. Czech Republic, Ministry of Health

District Court (D.D.C.)

Aug. 14, 2014

XXXIX Y.B. Com. Arb. 641 (2014) (D.D.C. 2014)

V 364

Diag Human S.E. v. Czech Republic, Ministry of Health

District Court (D.D.C.)

Sep. 27, 2017

XLIII Y.B. Com. Arb. 655 (2018) (D.D.C. 2017)

V 364

DiMercurio v. Sphere Drake Ins., Inc.

Court of Appeals (1st Cir.)

Jan. 31, 2000

202 F.3d 71 (1st Cir. 2000)

II 301

Dumitru v. Princess Cruise Lines, Ltd.

District Court (S.D.N.Y.)

July 29, 2010

732 F. Supp. 2d 328 (S.D.N.Y. 2010)

II 307

E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S.

Court of Appeals (3rd Cir.)

Oct. 15, 2001

269 F.3d 187 (3d Cir. 2001)

II 257

Ecopetrol S.A. v. Offshore Exploration & Prod. LLC

District Court (S.D.N.Y.)

Sep. 10, 2014

46 F. Supp. 3d 327 (S.D.N.Y. 2014) = XL Y.B. Com. Arb. 511 (2015)

V 369

EDF Int’l S.A. v. YPF S.A.

District Court (D. Del.)

Aug. 13, 2009

2009 U.S. Dist. LEXIS 72696 (D. Del. 2009)

III 14

Employers Ins. of Wausau v. Banco de Seguros del Estado

Court of Appeals (7th Cir.)

Dec. 15, 1999

199 F.3d 937 (7th Cir. 1999)

V 139, 140, VII 101

Empresa Constructora Contex Limitada v. Iseki, Inc.

District Court (S.D. Cal.)

July 28, 2000

106 F. Supp. 2d 1020 (S.D. Cal. 2000) = XXVI Y.B. Com. Arb. 1164 (2001)

V 181

Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc.

Court of Appeals (2nd Cir.)

Mar. 31, 2005

XXX Y.B. Com. Arb. 1136 (2005) (2d Cir. 2005)

V 41, 280

Eres, N.V. v. Citgo Asphalt Ref.

District Court (S.D. Tex.)

May 14, 2010

2010 U.S. Dist. LEXIS 47691 (S.D. Tex. 2010) = XXXV Y.B. Com. Arb. 540 (2010)

II 146

683

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Cases United States

New York Convention

Parties

Court

Date

Source

Art. para.

ESAB Group, Inc. v. Zurich Ins.

Court of Appeals (4th Cir.)

July 9, 2012

XXXVII Y.B. Com. Arb. 402 (2012) (4th Cir. 2012)

III 17

ESCO Corp. v. Bradken Res. Pty Ltd.

District Court (D. Or.)

Jan. 31, 2011

XXXVI Y.B. Com. Arb. 428 (2011) (D. Or. 2011)

V 572

Escobar v. Celebration Cruise Operator, Inc.

Court of Appeals (11th Cir.)

June 25, 2015

805 F.3d 1279 (11th Cir. 2015)

II 307

Essex Cement Co. v. Italmare, S.p.A.

District Court (S.D.N.Y.)

May 13, 1991

763 F. Supp. 55 (S.D.N.Y. 1991)

V 190

Europcar Italia S.p.A. v. Maiellano Tours, Inc.

Court of Appeals (2nd Cir.)

Sep. 2, 1998

156 F.3d 310 (2d Cir. 1998) = XXIVa Y.B. Com. Arb. 860 (1999)

V 41, 562, VI 1, 6

Evergreen Sys., Inc. v. Geotech Lizenz AG

District Court (E.D.N.Y.)

Oct. 28, 1988

697 F. Supp. 1254 (E.D.N.Y. 1988)

III 23

Exportkhleb v. Maistros Corp.

District Court (S.D.N.Y.)

Apr. 22, 1992

XVIII Y.B. Com. Arb. 550 (1993) (S.D.N.Y. 1992)

II 52

Fabergé Int’l, Inc. v. Di Pino

Sup. Ct. (N.Y.)

July 2, 1985

109 A.D.2d 235 (1985) = XII Y.B. Com. Arb. 536 (1987)

II 215

Fed. Deposit Ins. Corp. v. IIG Capital, LLC

District Court (S.D. Fla.)

Sep. 26, 2011

XXXVIII Y.B. Com. Arb. 479 (2013) (S.D. Fla. 2011)

V 171

Fed. Deposit Ins. Corp. v. IIG Capital, LLC

Court of Appeals (11th Cir.)

Aug. 7, 2013

XXXVIII Y.B. Com. Arb. 479 (2013) (11th Cir. 2013)

V 171

Fed. Gov’t of Nigeria v. Cont’l Transfert Technique Ltd.

Court of Appeals (D.C. Cir.)

Jan. 16, 2015

XL Y.B. Com. Arb. 544 (2015) (D.C. Cir. 2015)

VI 10, 12

Ferrara S. p. A. v. United Grain Growers Ltd.

District Court (S.D.N.Y.)

Dec. 2, 1977

441 F. Supp. 778 (S.D.N.Y. 1977) = IV Y.B. Com. Arb. 331 (1979)

II 140, V 156, 168

Ferrara S. p. A. v. United Grain Growers Ltd.

Court of Appeals (2nd Cir.)

May 8, 1978

580 F.2d 1044 (2d Cir. 1978)

V 168

Fertilizer Corp. of India v. IDI Mgmt., Inc.

District Court (S.D. Ohio)

June 9, 1981

517 F. Supp. 948 (S.D. Ohio 1981) = VII Y.B. Com. Arb. 382 (1982)

I 83, 189, III 23, V 198, 234, 244, 248, 359, VI 1, XIV 2

Fiat S.p.A. v. Ministry of Fin. & Planning of the Republic of Surin.

District Court (S.D.N.Y.)

Oct. 12, 1989

1989 WL 122891 (S.D.N.Y. 1989) = XXIII Y.B. Com. Arb. 880 (1998)

I 123, V 83, 198, 255, 260, 320, 347

Figueiredo Ferraz e Engenharia de Projeto Ltda v. Republic of Peru

Court of Appeals (2nd Cir.)

Dec. 14, 2011

665 F.3d 384 (2d Cir. 2011) = XXXVII Y.B. Com. Arb. 346 (2012)

III 22, V 25

Firooz Ghassabian v. Fatollah Hematian

District Court (S.D.N.Y.)

Aug. 27, 2008

XXXIII Y.B. Com. Arb. 1224 (2008) (S.D.N.Y. 2008)

I 47

First Inv. Corp. v. Fujian Mawei Shipbuilding, Ltd.

Court of Appeals (5th Cir.)

Dec. 21, 2012

703 F.3d 742 (5th Cir. 2012) = XXXVIII Y.B. Com. Arb. 509 (2013)

III 17

First State Ins. Co. v. Banco de Seguros del Estado

Court of Appeals (1st Cir.)

June 27, 2001

254 F.3d 354 (1st Cir. 2001)

V 166, 168

Fitzpatrick Int’l v. Republic of Equatorial Guinea

District Court (S.D. Tex.)

Oct. 7, 2013

2013 WL 5964560 (S.D. Tex. 2013), VI 11 also available at http://newyorkcon vention1958.org/index.php?lvl=notice _display&id=1617&opac_view=2 (last visited Apr. 29, 2019)

Fitzroy Eng’g Ltd. v. Flame Eng’g, Inc.

District Court (N.D. Ill.)

Dec. 2, 1994

1994 U.S. Dist. LEXIS 17781 (N.D. Ill. 1994) = XXI Y.B. Com. Arb. 744 (1996)

V 130, 157, 536

Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A.

District Court (S.D. Fla.)

June 4, 2003

267 F. Supp. 2d 1335 (S.D. Fla. 2003) = 2003 U.S. Dist. LEXIS 9868 = XXIX Y.B. Com. Arb. 882 (2004)

V 403, 404, VII 43

Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A.

Court of Appeals (11th Cir.)

July 20, 2004

377 F.3d 1164 (11th Cir. 2004)

V 196

684

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Table of Cases and Awards

United States

Cases

Parties

Court

Date

Source

Art. para.

Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A.

District Court (S.D. Fla.)

May 12, 2009

613 F. Supp. 2d 1362 (S.D. Fla. 2009) = XXXIV Y.B. Com. Arb. 1088 (2009)

V 181, 227, 244

Francisco v. Stolt Achievement MT

Court of Appeals (5th Cir.)

June 4, 2002

293 F.3d 270 (5th Cir. 2002)

II 285

Frazier v. CitiFinancial Corp.

Court of Appeals (11th Cir.)

Apr. 30, 2010

604 F.3d 1313 (11th Cir. 2010)

V 23

Freaner v. Lutteroth Valle

District Court (S.D. Cal.)

Aug. 22, 2013

XXXIX Y.B. Com. Arb. 559 (2014) (S.D. Cal. 2013)

II 93, 105, VII 99, 105

Frontera Res. Azer. Corp. v. State Oil Co. of Azer. Republic

Court of Appeals (2nd Cir.)

Sep. 28, 2009

582 F.3d 393 (2d Cir. 2009) = XXXIV Y.B. Com. Arb. 1186 (2009)

III 17, V 25

Frydman v. Cosmair, Inc.

District Court (S.D.N.Y.)

June 30, 1995

XXI Y.B. Com. Arb. 784 (1996) (S.D.N.Y. 1995)

I 42

Fuller Co. v. Compagnie des Bauxites de Guinee

District Court (W.D. Pa.)

Oct. 19, 1976

421 F. Supp. 938 (W.D. Pa. 1976)

II 37

Fyrnetics (H.K.) Ltd. v. Quantum Group, Inc.

Court of Appeals (7th Cir.)

June 18, 2002

293 F.3d 1023 (7th Cir. 2002)

II 249

G.E. Transp. S.p.A. v. Republic of Albania

District Court (D.D.C.)

Mar. 16, 2010

XXXV Y.B. Com. Arb. 519 (2010) (D.D.C. 2010)

VI 6

Gas Natural Aprovisionamientos, Sdg, S.A. v. Atl. LNG Comp. of Trin. & Tobago

District Court (S.D.N.Y.)

Sep. 16, 2008

2008 WL 4344525 (S.D.N.Y. 2008) = XXXIV Y.B. Com. Arb. 966 (2009)

V 195, 244

Generica Ltd. v. Pharm. Basics, Inc.

Court of Appeals (7th Cir.)

Sep. 29, 1997

125 F.3d 1123 (7th Cir. 1997) = XXIII Y.B. Com. Arb. 1076 (1998)

V 139, 140, 174, 175, 176, 178, 179, 552

Generica Ltd. v. Pharm. Basics, Inc.

District Court (N.D. Ill.)

Sep. 18, 1996

1996 WL 535321 (N.D. Ill. 1996) = XXII Y.B. Com. Arb. 1029 (1997)

V 19, 130, 543, 552

Genesco, Inc. v. T. Kakiuchi & Co.

Court of Appeals (2nd Cir.)

Apr. 1, 1987

815 F.2d 840 (2d Cir. 1987)

II 225

George Watts & Son, Inc. v. Tiffany & Co.

Court of Appeals (7th Cir.)

Apr. 16, 2001

248 F.3d 577 (7th Cir. 2001)

V 23, 24

Geotech Lizenz AG v. Evergreen Sys., Inc.

District Court (E.D.N.Y.)

Oct. 27, 1988

697 F. Supp. 1248 (E.D.N.Y. 1988) = XV Y.B. Com. Arb. 562 (1990)

V 31, 139, 156, 157, 160, 228

Gesco Ltd. v. Han Yang Corp.

District Court (D.N.J.)

Oct. 29, 1986

XV Y.B. Com. Arb. 575 (1990) (D.N.J. 1986)

VI 16

Getma Int’l v. Republic of Guinea

District Court (D.D.C.)

Nov. 3, 2015

XLI Y.B. Com. Arb. 630 (2016) (D.D.C. 2015)

V 386a

Getma Int’l v. Republic of Guinea

District Court (D.D.C.)

June 9, 2016

XLI Y.B. Com. Arb. 721 (2016) (D.D.C. 2016)

VI 6, 12

Getma Int’l v. Republic of Guinea

District Court (D.D.C.)

July 7, 2017

XLII Y.B. Com. Arb. 706 (2017) (D.D.C. 2017)

V 387

Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co.

Court of Appeals (9th Cir.)

Mar. 26, 2002

284 F.3d 1114 (9th Cir. 2002) = XXVII Y.B. Com. Arb. 922 (2002)

III 7, 17

Gold Reserve Inc. v. Venezuela

District Court (D.D.C.)

Nov. 20, 2015

146 F. Supp. 3d 112 (D.D.C. 2015) = XLI Y.B. Com. Arb. 648 (2016)

V 170b, 175, 190, 567, VI 6, 8

Gov’t of Belize v. BCB Holdings Ltd.

Court of Appeals (D.C. Cir.)

May 13, 2016

2016 WL 3042521 (D.C. Cir. 2016) = XLI Y.B. Com. Arb. 710 (2016)

V 26, 583b

Green Tree Fin. Corp. v. Randolph

Sup. Ct.

Dec. 11, 2000

531 U.S. 79 (2000)

V 460

Guang Dong Light Headgear Factory Co. v. ACI Int’l, Inc.

District Court (D. Kan.)

May 10, 2005

2005 U.S. Dist. LEXIS 8810 (D. Kan. 2005) = XXXI Y.B. Com. Arb. 1105 (2006)

IV 13, 21

Gulf Petro Trading Co. v. Nig. Nat’l Petroleum Corp.

District Court (N.D. Tex.)

Oct. 23, 2003

288 F. Supp. 2d 783 (N.D. Tex. 2003) = XXIX Y.B. Com. Arb. 1114 (2004)

III 14

Haasbroek v. Princess Cruise Lines, Ltd.

District Court (S.D. Fla.)

Dec. 12, 2017

XLIII Y.B. Com. Arb. 696 (2018) (S.D. Fla. 2017)

II 44, 54

685

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Cases United States

New York Convention

Parties

Court

Date

Source

Art. para.

Hall Steel Co. v. Metalloyd Ltd.

District Court (E.D. Mich.)

June 7, 2007

XXXIII Y.B. Com. Arb. 978 (2008) (E.D. Mich. 2007)

V 372

Hall Street Assocs., L.L.C. v. Mattel

Sup. Ct.

Mar. 25, 2008

128 S. Ct. 1396 (2008) = XXXIII Y.B. Com. Arb. 258 (2008)

V 23

Hanskar Shipping Co. v. Iron Ore Co. of Can.

District Court (S.D.N.Y.)

Feb. 1, 1980

IX Y.B. Com. Arb. 465 (1984) (S.D.N.Y. 1980)

II 55

Hardy Expl. & Prod. (India), Inc. v. Gov’t of India, Ministry of Petroleum & Nat. Gas

District Court (D.D.C.)

June 7, 2018

XLIII Y.B. Com. Arb. 757 (2018) (D.D.C. 2018)

V 561, 570, 585, 586, VI 6

Hart Surgical, Inc. v. Ultracision, Inc.

Court of Appeals (1st Cir.)

Apr. 5, 2001

244 F.3d 231 (1st Cir. 2001)

I 62

HBC Solutions, Inc. v. Harris Corp.

District Court (S.D.N.Y.)

July 18, 2014

XXXIX Y.B. Com. Arb. 634 (2014) (S.D.N.Y. 2014)

I 33a, 123

Hewlett-Packard, Inc. v. Berg

District Court (D. Mass.)

Nov. 7, 1994

867 F. Supp. 1126 (D. Mass. 1994)

III 23, IV 27, 28

Hewlett-Packard, Inc. v. Berg

Court of Appeals (1st Cir.)

Aug. 3, 1995

XXI Y.B. Com. Arb. 808 (1996) (1st Cir. 1995)

VI 13

Higgins v. SPX Corp.

District Court (W.D. Mich.)

Apr. 18, 2006

2006 WL 1008677 (W.D. Mich. 2006)

V 26

Hoteles Condado Beach v. Union De Tronquistas Local 901

Court of Appeals (1st Cir.)

May 31, 1985

763 F.2d 34 (1st Cir. 1985)

V 174, 175, 176, 184

HSMV Corp. v. ADI Ltd.

District Court (C.D. Cal.)

Nov. 8, 1999

72 F. Supp. 2d 1122 (C.D. Cal. 1999) = XXV Y.B. Com. Arb. 1074 (2000)

V 530

HSN Capital LLC v. Productora y Comercializador de Television, S.A. de C.V.

District Court (M.D. Fla.)

July 5, 2006

2006 WL 1876941 (M.D. Fla. 2006) = XXXII Y.B. Com. Arb. 774 (2007)

V 294, 563

Hulley Enters. Ltd. v. Russian Federation

District Court (D.D.C.)

Sep. 20, 2016

XLII Y.B. Com. Arb. 645 (2017) (D.D.C. 2016)

VI 6

IDS Life Ins. Co. v. Sunamerica, Inc.

Court of Appeals (7th Cir.)

Dec. 18, 1996

103 F.3d 524 (7th Cir. 1996)

II 319

Imam Shah v. Blue Wake Shipping

District Court (W.D. La.)

Aug. 30, 2016

XLII Y.B. Com. Arb. 633 (2017) (W.D. La. 2016)

II 145

Imperial Ethiopian Gov’t v. Baruch-Foster Corp.

Court of Appeals (5th Cir.)

July 19, 1976

535 F.2d 334 (5th Cir. 1976) = II Y.B. Com. Arb. 252 (1977)

III 13, IV 20, V 55, 61, 305

In re Bruce Terminix Co.

Sup. Ct. (Tex.)

June 5, 1998

988 S.W.2d 702 (Tex. 1998)

II 224

In re Mercury Constr. Corp. v. Moses H. Cone Mem’l Hosp.

Court of Appeals (4th Cir.)

Aug. 12, 1981

656 F.2d 933 (4th Cir. 1981)

II 287

In re the Arbitration between Barbier & Shearson Lehman Hutton, Inc.

District Court (S.D.N.Y.)

Dec. 3, 1990

752 F. Supp. 151 (S.D.N.Y. 1990)

V 567

Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH

Court of Appeals (11th Cir.)

May 22, 1998

141 F.3d 1434 (11th Cir. 1998) = XXIVa Y.B. Com. Arb. 819 (1999)

I 123, V 23, 174, 190, 315

Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GmbH

Court of Appeals (4th Cir.)

Mar. 14, 2000

206 F.3d 411 (4th Cir. 2000) = XXV Y.B. Com. Arb. 1146 (2000)

II 259, 260

Int’l Shoe Co. v. Washington

Sup. Ct.

Dec. 3, 1945

326 U.S. 310 (1945)

III 17

Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial

District Court (S.D.N.Y.)

Aug. 24, 1990

745 F. Supp. 172 (S.D.N.Y. 1990) = XVII Y.B. Com. Arb. 639 (1992)

V 23, 55, 147, 237, 244, 404, 563, 569

Int’l Trading & Indus. Inv. Co. v. Dyncorp Aerospace Tech. AS

District Court (D.D.C.)

Jan. 21, 2011

763 F. Supp. 2d 12 (D.D.C. 2011) = XXXVI Y.B. Com. Arb. 415 (2011)

V 244, 359, 361a, 403, 412a

Intel Capital (Cayman) Corp. v. Hsia

District Court (N.D. Cal.)

Oct. 16, 2015

2015 U.S. Dist. LEXIS 154191 (N.D. Cal. 2015) = XLI Y.B. Com. Arb. 625 (2016)

V 142, 570

Intel Capital v. Shan Yi

District Court (E.D. Mich.)

Nov. 13, 2015

XLI Y.B. Com. Arb. 639 (2016) (E.D. Mich. 2015)

V 168

686

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Table of Cases and Awards

United States

Cases

Parties

Court

Date

Source

Art. para.

InterCarbon Bermuda, Ltd. v. Caltex Trading & Transp. Corp.

District Court (S.D.N.Y.)

Jan. 12, 1993

146 F.R.D. 64 (S.D.N.Y. 1993) = XIX Y.B. Com. Arb. 802 (1994)

V 140, 180, 312, 329

InterDigital Communications, Inc. v. Huawei Inv. & Holding Co.

District Court (S.D.N.Y.)

Feb. 23, 2016

XLI Y.B. Com. Arb. 677 (2016) (S.D.N.Y. 2016)

VI 6

InterGen N.V. v. Grina

Court of Appeals (1st Cir.)

Sep. 22, 2003

344 F.3d 134 (1st Cir. 2003) = XXIX Y.B. Com. Arb. 1080 (2004)

II 234, 244, 257, 323

Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH

District Court (S.D. Fla.)

May 2, 2017

XLIII Y.B. Com. Arb. 626 (2018) (S.D. Fla. 2017)

III 7, IV 2, V 130, 153, 552

Iran Aircraft Indus. v. AVCO Corp.

Court of Appeals (2nd Cir.)

Nov. 24, 1992

980 F.2d 141 (2d Cir. 1992) = XVIII Y.B. Com. Arb. 596 (1993)

I 89, V 139, 140, 174, 178

Ishwar Jain v. Henri Courier de Mere

Court of Appeals (7th Cir.)

Apr. 3, 1995

51 F.3d 686 (7th Cir. 1995) = XXI Y.B. Com. Arb. 759 (1996)

V 407

Island Creek Coal Sales Co. v. City of Gainesville

Court of Appeals (6th Cir.)

Mar. 15, 1984

729 F.2d 1046 (6th Cir. 1984)

I 26, V 369, 372

Island Territory of Curaçao v. Solitron Devices, Inc.

District Court (S.D.N.Y.)

Dec. 26, 1973

356 F. Supp. 1 (S.D.N.Y. 1973) = I Y.B. Com. Arb. 200 (1976)

I 184

J.A. Jones, Inc. v. Bank of Tokyo-Mitsubishi, Ltd., N.Y. Branch

District Court (E.D.N.C.)

Feb. 11, 1999

XXV Y.B. Com. Arb. 901 (2000) (E.D.N.C. 1999)

V 223

J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A.

Court of Appeals (4th Cir.)

Dec. 13, 1988

863 F.2d 315 (4th Cir. 1988) = XV Y.B. Com. Arb. 543 (1990)

II 255, V 223

Jam. Commodity Trading Co. v. Connell Rice & Sugar Co.

District Court (S.D.N.Y.)

July 2, 1991

1991 U.S. Dist. LEXIS 8976 (S.D.N.Y. 1991) = XVIII Y.B. Com. Arb. 466 (1993)

V 23, 415

Japan Sun Oil Co. v. M/V MAASDIJK

District Court (E.D. La.)

Sep. 28, 1994

XXII Y.B. Com. Arb. 884 (1997) (E.D. La. 1994)

II 138

Jiangsu Changlong Chems., Co. v. Burlington Bio-Med. & Scientific Corp.

District Court (E.D.N.Y.)

Nov. 22, 2005

399 F. Supp. 2d 165 (E.D.N.Y. 2005) = XXXI Y.B. Com. Arb. 1316 (2006)

IV 2, 20, V 157

Jorf Lasfar Energy Co. v. AMCI Exp. Corp.

District Court (W.D. Pa.)

Dec. 22, 2005

XXXI Y.B. Com. Arb. 1370 (2006) (W.D. Pa. 2005)

VI 6, 8, 9, 10, 12, 19

Jorf Lasfar Energy Co. v. AMCI Exp. Corp.

District Court (W.D. Pa.)

May 5, 2006

2006 U.S. Dist. LEXIS 28948 (W.D. Pa. 2006) = 2006 WL 1228930 = XXXII Y.B. Com. Arb. 713 (2007)

V 157, 179, 359, 363, 365, 545, 548

Joselito Madriaga Lim v. Adelito M. Aganon

Court of Appeals (5th Cir.)

Mar. 24, 2005

XXX Y.B. Com. Arb. 1119 (2005) (5th Cir. 2005)

XI 12

JSC Surgutneftegaz v. President & Fellows of Harvard Coll.

District Court (S.D.N.Y.)

Aug. 3, 2005

2005 WL 1863676 (S.D.N.Y. 2005)

II 289

Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd.

District Court (S.D.N.Y.)

Aug. 6, 1997

XXIII Y.B. Com. Arb. 1029 (1998) (S.D.N.Y. 1997)

II 93

Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd.

Court of Appeals (2nd Cir.)

July 29, 1999

186 F.3d 210 (2d Cir. 1999) = XXIVa Y.B. Com. Arb. 900 (1999)

II 93

Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

District Court (S.D. Tex.)

Dec. 4, 2001

190 F. Supp. 2d 936 (S.D. Tex. 2001) = XXVII Y.B. Com. Arb. 814 (2002)

V 165

Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

Court of Appeals (5th Cir.)

Mar. 23, 2004

364 F.3d 274 (5th Cir. 2004) = XXIX Y.B. Com. Arb. 1262 (2004)

Prel. Rem. 89, III 13, V 139, 140, 174, 175, 178, 306, 315, 322, 327, 405, 409

Karen Mar. Ltd. v. Omar Int’l, Inc.

District Court (E.D.N.Y.)

Apr. 23, 2004

322 F. Supp. 2d 224 (E.D.N.Y. 2004)

V 579

Keytrade USA, Inc. v. Ain Temouchent M/V

Court of Appeals (5th Cir.)

Mar. 23, 2005

404 F.3d 891 (5th Cir. 2005)

II 245

Khan v. Parsons Global Sers. Ltd.

District Court (D.D.C.)

Mar. 30, 2007

480 F. Supp. 2d 327 (D.D.C. 2007)

II 307

687

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Cases United States

New York Convention

Parties

Court

Date

Source

Art. para.

Kirschner v. West Co.

District Court (E.D. Pa.)

Jan. 15, 1965

247 F. Supp. 550 (E.D. Pa. 1965)

V 55

Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust

Court of Appeals (2nd Cir.)

Aug. 30, 2013

729 F.3d 99 (2d Cir. 2013)

V 332

Korea Wheel Corp. v. JCS Corp.

District Court (W.D. Wash.)

Dec. 16, 2005

XXXI Y.B. Com. Arb. 1367 (2006) (W.D. Wash. 2005)

VI 13

Koster v. Lumbermens Mut. Cas. Co.

Sup. Ct.

Mar. 10, 1947

330 U.S. 518 (1947)

III 22

KT Corp. v. ABS Holdings, Ltd.

District Court (S.D.N.Y.)

July 12, 2018

2018 WL 3435405 (S.D.N.Y. 2018) = XLIV Y.B. Com. Arb. ___ (2019)

V 23

La. Safety Ass’n of Timbermen – Self Insurers Fund v. Certain Underwriters at Lloyd’s, London

Court of Appeals (5th Cir.)

Nov. 9, 2009

587 F.3d 714 (5th Cir. 2009)

II 180

Laminoirs-Trefileries-Cableries de Lens S. A. v. Southwire Co.

District Court (N.D. Ga.)

Jan. 18, 1980

484 F. Supp. 1063 (N.D. Ga. 1980) = VI Y.B. Com. Arb. 247 (1981)

V 83, 176, 519a, 569, 570

Landmark Ventures, Inc. v. Insightec, Ltd.

District Court (S.D.N.Y.)

Nov. 25, 2014

63 F. Supp. 3d 343 (S.D.N.Y. 2014)

V 294, 335

LaPine v. Kyocera Corp.

District Court (N.D. Cal.)

May 23, 2008

2008 WL 2168914 (N.D. Cal. 2008) = XXXIV Y.B. Com. Arb. 951 (2009)

I 124, V 139

Ledee v. Ceramiche Ragno

District Court (D.P.R.)

Nov. 16, 1981

VIII Y.B. Com. Arb. 416 (1983) (D.P.R. 1981)

II 36

Ledee v. Ceramiche Ragno

Court of Appeals (1st Cir.)

Aug. 4, 1982

684 F.2d 184 (1st Cir. 1982) = IX Y.B. Com. Arb. 471 (1984)

II 27, 36, 37, 215, 285, 307, V 496

Libancell S.A.L. v. Republic of Lebanon

District Court (S.D.N.Y.)

May 16, 2006

XXXI Y.B. Com. Arb. 1486 (2006) (S.D.N.Y. 2006)

V 403

Liberian E. Timber Corp. v. Gov’t of the Republic of Liberia

District Court (S.D.N.Y.)

Dec. 12, 1986

650 F. Supp. 73 (S.D.N.Y. 1986)

I 157

Liberty Re (Berm.) Ltd. v. Transam. Occidental Life Ins. Co.

District Court (S.D.N.Y.)

May 23, 2005

2005 U.S. Dist. LEXIS 9774 (S.D.N.Y. 2005) = XXXI Y.B. Com. Arb. 1125 (2006)

III 13

Libyan Am. Oil Co. v. Socialist People’s Libyan Arab Jamahirya

District Court (D.D.C.)

Jan. 18, 1980

482 F. Supp. 1175 (D.D.C. 1980) = VI Y.B. Com. Arb. 248 (1981)

V 454

Libyan Am. Oil Co. v. Socialist People’s Libyan Arab Jamahirya

Court of Appeals (D.C. Cir.)

May 6, 1981

684 F.2d 1032 (D.C. Cir. 1981) = VII Y.B. Com. Arb. 381 (1982)

V 454

Lindo v. NCL (Bah.) Ltd.

Court of Appeals (11th Cir.)

Aug. 29, 2011

652 F.3d 1257 (11th Cir. 2011) = XXXVII Y.B. Com. Arb. 330 (2012)

II 307, V 434

Linley Inv. v. Jamgotchian

Court of Appeals (9th Cir.)

Nov. 14, 2016

XLII Y.B. Com. Arb. 658 (2017) (9th Cir. 2016)

V 280

Lito Martinez Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG

District Court (E.D. La.)

Jan. 27, 2014

XXXIX Y.B. Com. Arb. 581 (2014) (E.D. La. 2014)

V 19, 581a

Lito Martinez Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG

Court of Appeals (5th Cir.)

Apr. 16, 2015

XL Y.B. Com. Arb. 572 (2015) (5th Cir. 2015)

V 581a

Liu Luwei v. Phyto Tech Corp.

District Court (C.D. Cal.)

June 18, 2018

2018 WL 6016958 (C.D. Cal. 2018) = XLIV Y.B. Com. Arb. ___ (2019)

V 561, 563

Loucks v. Standard Oil Co. of N.Y.

Court of Appeals (N.Y.)

July 12, 1918

224 N.Y. 99 (1918)

V 561

Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading, Inc.

Court of Appeals (2nd Cir.)

June 7, 2001

252 F.3d 218 (2d Cir. 2001)

II 225

Lummus Global Amazonas, S.A. v. Aguaytia Energy Del Peru, S.R. LTDA

District Court (S.D. Tex.)

June 4, 2002

256 F. Supp. 2d 594 (S.D. Tex. 2002)

III 13

688

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Table of Cases and Awards

United States

Cases

Parties

Court

Date

Source

Art. para.

M&C Corp. v. Erwin Behr GmbH & Co. KG

Court of Appeals (6th Cir.)

July 3, 1996

87 F.3d 844 (6th Cir. 1996) = XXII Y.B. Com. Arb. 993 (1997)

V 23, 244, 248, 404, 563

Mangistaumunaigaz Oil Prod. Ass’n v. United World Trade, Inc.

District Court (D. Colo.)

June 17, 1997

XXIVa Y.B. Com. Arb. 806 (1999) (D. Colo. 1997)

III 23, IV 28, V 31, 548

Maritima De Ecologia, S.A. de C.V. v. Sealion Shipping Ltd.

District Court (S.D.N.Y.)

Apr. 15, 2011

2011 U.S. Dist. LEXIS 41148 (S.D.N.Y. 2011) = XXXVI Y.B. Com. Arb. 467 (2011)

II 98

Mastrobuono v. Shearson Lehman Hutton, Inc.

Sup. Ct.

Mar. 6, 1995

XXI Y.B. Com. Arb. 181 (1996) (Sup. Ct. 1995)

V 248

McCreary Tire & Rubber Co. v. CEAT, S.p.A.

Court of Appeals (3rd Cir.)

July 8, 1974

501 F.2d 1032 (3d Cir. 1974) = I Y.B. Com. Arb. 203 (1976)

II 190, 267, 319, 323

McDermott Int’l, Inc. v. Lloyds Underwriters of London

Court of Appeals (5th Cir.)

Oct. 3, 1991

XVIII Y.B. Com. Arb. 472 (1993) (5th Cir. 1991)

I 189, XIV 8

Meadows Indem. Co. v. Baccala & Shoop Ins. Servs., Inc.

District Court (E.D.N.Y.)

Mar. 29, 1991

760 F. Supp. 1036 (E.D.N.Y. 1991) = XVII Y.B. Com. Arb. 686 (1992)

II 159

Med. Shoppe Int’l, Inc. v. Turner Invs., Inc.

Court of Appeals (8th Cir.)

July 21, 2010

614 F.3d 485 (8th Cir. 2010)

V 23

MediVas, LLC v. Marubeni Corp.

District Court (S.D. Cal.)

June 4, 2014

2014 U.S. Dist. LEXIS 77698 (S.D. Cal. 2014) = XXXIX Y.B. Com. Arb. 625 (2014)

V 157

Melton v. Oy Nautor A.b.

Court of Appeals (9th Cir.)

Dec. 7, 1998

1998 U.S. App. LEXIS 22100 (9th Cir. 1998) = XXIVa Y.B. Com. Arb. 871 (1999)

III 22

Mesa Power Group, LLC v. Gov’t of Canada

District Court (D.D.C.)

June 15, 2017

255 F. Supp. 3d 175 (D.D.C. 2017)

V 23

MGM Prods. Group, Inc. v. Aeroflot Russian Airlines

District Court (S.D.N.Y.)

May 14, 2003

573 F. Supp. 2d 772 (S.D.N.Y. 2003) = 2003 WL 21108367

V 504

MGM Prods. Group, Inc. v. Aeroflot Russian Airlines

Court of Appeals (2nd Cir.)

Feb. 9, 2004

91 Fed. Appx. 716 (2d Cir. 2004) = 2004 WL 234871 = XXIX Y.B. Com. Arb. 1215 (2004)

Prel. Rem. 89, V 504

Mgmt. & Technical Consultants SA v. Parsons-Jurden Int’l Corp.

Court of Appeals (9th Cir.)

July 8, 1987

XIII Y.B. Com. Arb. 611 (1988) (9th Cir. 1987)

V 198, 199, 234

Millicom Int’l V N.V. v. Motorola, Inc.

District Court (S.D.N.Y.)

Mar. 28, 2002

2002 WL 472042 (S.D.N.Y. 2002) = XXVII Y.B. Com. Arb. 948 (2002)

I 123, 127, V 234

Millmaker v. Bruso

District Court (S.D. Tex.)

Jan. 25, 2008

2008 WL 219551 (S.D. Tex. 2008) = XXXIII Y.B. Com. Arb. 1103 (2008)

I 124

Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Def. Sys., Inc.

District Court (S.D. Cal.)

Dec. 7, 1998

29 F. Supp. 2d 1168 (S.D. Cal. 1998) = XXIVa Y.B. Com. Arb. 875 (1999)

V 193, 234, 242, 253

Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc.

District Court (C.D. Cal.)

Jan. 14, 1988

XIV Y.B. Com. Arb. 763 (1989) (C.D. Cal. 1988)

I 89

Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc.

Court of Appeals (9th Cir.)

Oct. 23, 1989

887 F.2d 1357 (9th Cir. 1989) = XV Y.B. Com. Arb. 605 (1990)

I 89, 112, II 151a

Ministry of Def. of the Islamic Republic of Iran v. Gould, Inc.

Court of Appeals (9th Cir.)

June 30, 1992

XVIII Y.B. Com. Arb. 590 (1993) (9th Cir. 1992)

I 89, 112, V 41

Mirza v. Cachet Hotel Group Ltd. Cayman L.P.

District Court (C.D. Cal.)

Nov. 17, 2017

XLIII Y.B. Com. Arb. 687 (2018) (C.D. Cal. 2017)

II 27

Mitchell v. Tillett

District Court (N.D. Cal.)

Oct. 28, 2016

XLII Y.B. Com. Arb. 653 (2017) (N.D. Cal. 2016)

Prel. Rem. 29

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.

Court of Appeals (1st Cir.)

Dec. 20, 1983

723 F.2d 155 (1st Cir. 1983) = X Y.B. Com. Arb. 519 (1985)

V 419, 455

689

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Cases United States

New York Convention

Parties

Court

Date

Source

Art. para.

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.

Sup. Ct.

July 2, 1985

473 U.S. 614 (1985) = 105 S. Ct. 3346 = XI Y.B. Com. Arb. 555 (1986)

II 159, 223, 224, 225, 302, 307, V 419, 431, 434, 438, 439, 456, 457, 511, 524, 579

Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukr.

Court of Appeals (2nd Cir.)

Nov. 15, 2002

311 F.3d 488 (2d Cir. 2002) = XXVIII Y.B. Com. Arb. 1096 (2003)

III 17, 22, V 25

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.

Sup. Ct.

Feb. 23, 1983

460 U.S. 1 (1983)

II 225, 310

Motorola Credit Corp. v. Uzan

Court of Appeals (2nd Cir.)

Oct. 22, 2004

388 F.3d 39 (2d Cir. 2004)

II 233

Murphy Oil USA, Inc. v. SR Int’l Bus. Ins. Co.

District Court (W.D. Ark.)

Sep. 20, 2007

2007 WL 2752366 (W.D. Ark. 2007)

XI 12

Nanda v. Nanda

District Court (N.D. Tex.)

June 12, 2012

XXXVII Y.B. Com. Arb. 399 (2012) (N.D. Tex. 2012)

I 123

Nanda v. Nanda

District Court (N.D. Tex.)

Dec. 3, 2012

2012 U.S. Dist. LEXIS 171228 (N.D. Tex. 2012) = XXXVIII Y.B. Com. Arb. 492 (2013)

III 13, V 173

Nanko Shipping, Guinea v. Alcoa, Inc.

District Court (D.D.C.)

Sep. 14, 2018

XLIII Y.B. Com. Arb. 772 (2018) (D.D.C. 2018)

II 153

Nat’l Dev. Co. v. Khashoggi

District Court (S.D.N.Y.)

Jan. 23, 1992

XVIII Y.B. Com. Arb. 506 (1993) (S.D.N.Y. 1992)

V 181

Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n

District Court (S.D.N.Y.)

Sep. 3, 2015

125 F. Supp. 3d 449 (S.D.N.Y. 2015)

V 176, 189

Nat’l Iranian Oil Co. v. Ashland Oil, Inc.

Court of Appeals (5th Cir.)

May 21, 1987

817 F.2d 326 (5th Cir. 1987) = XIII Y.B. Com. Arb. 591 (1988)

II 36, 37

Nat’l Oil Corp. v. Libyan Sun Oil Co.

District Court (D. Del.)

Mar. 15, 1990

733 F. Supp. 800 (D. Del. 1990) = XVI Y.B. Com. Arb. 651 (1991)

V 23, 234, 237, 244, 568, 585

Nat’l Wrecking Co. v. Int’l Bhd. of Teamsters, Local 731

Court of Appeals (7th Cir.)

Apr. 7, 1993

990 F.2d 957 (7th Cir. 1993)

V 51

Navarette v. Silversea Cruises Ltd.

District Court (S.D. Fla.)

Mar. 7, 2016

XLI Y.B. Com. Arb. 681 (2016) (S.D. Fla. 2016)

V 581a

Newco Ltd. v. Gov’t of Belize

District Court (D.D.C.)

Aug. 7, 2015

XLI Y.B. Com. Arb. 607 (2016) (D.D.C. 2015)

V 409

Newco Ltd. v. Gov’t of Belize

Court of Appeals (D.C. Cir.)

May 13, 2016

2016 WL 3040824 (D.C. Cir. 2016) = XLI Y.B. Com. Arb. 713 (2016)

V 26, 512a

Nicor Int’l Corp. v. El Paso Corp.

District Court (S.D. Fla.)

Nov. 24, 2003

2003 U.S. Dist. LEXIS 21306 (S.D. Fla. 2003) = XXIX Y.B. Com. Arb. 1140 (2004)

V 350, 403, VII 101

Nissan N. Am., Inc. v. Jim M’Lady Oldsmobile, Inc.

Court of Appeals (7th Cir.)

May 11, 2007

486 F.3d 989 (7th Cir. 2007)

II 89

Nissho Iwai Corp. v. M/V Joy Sea

District Court (E.D. La.)

Jan. 8, 2002

2002 WL 27764 (E.D. La. 2002) = XXVII Y.B. Com. Arb. 869 (2002)

V 525

Nitron Int’l Corp. v. Panagia Mar., Inc.

District Court (S.D.N.Y.)

Apr. 16, 1999

1999 U.S. Dist. LEXIS 5318 (S.D.N.Y. 1999) = XXV Y.B. Com. Arb. 924 (2000)

V 448

Northrop Corp. v. Triad Fin. Establishment

Court of Appeals (9th Cir.)

Mar. 3, 1987

811 F.2d 1265 (9th Cir. 1987)

V 576

NTT DoCoMo, Inc. v. Ultra d.o.o.

District Court (S.D.N.Y.)

Oct. 12, 2010

XXXVI Y.B. Com. Arb. 387 (2011) (S.D.N.Y. 2010)

V 561, 563

Office of Supply, Gov’t of Republic of Korea v. N.Y. Navigation Co.

Court of Appeals (2nd Cir.)

Nov. 8, 1972

496 F.2d 377 (2d Cir. 1972)

V 23

Oilcakes & Oilseeds Trading Co. v. Sinason Teicher Inter Am. Grain Corp.

Sup. Ct. (N.Y.)

Feb. 4, 1958

170 N.Y.S.2d 378 (1958)

I 51, V 413

690

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Table of Cases and Awards

United States

Cases

Parties

Court

Date

Source

Art. para.

OJSC Ukrnafta v. Carpatsky Petroleum Corp.

District Court (S.D. Tex.)

Oct. 2, 2017

XLIII Y.B. Com. Arb. 664 (2018) (S.D. Tex. 2017)

Prel. Rem. 29, III 7, 17, IV 27, V 130, 193, 555, 563

Oriental Commercial & Shipping Co. v. Rosseel, N.V.

District Court (S.D.N.Y.)

Mar. 4, 1985

609 F. Supp. 75 (S.D.N.Y. 1985)

II 130

Oriental Commercial & Shipping Co. v. Rosseel, N.V.

District Court (S.D.N.Y.)

July 12, 1991

769 F. Supp. 514 (S.D.N.Y. 1991) = XVII Y.B. Com. Arb. 696 (1992)

IV 16, V 414

Oscanyan v. Arms Co.

Sup. Ct.

Oct. Term, 1880

103 U.S. 261 (1880)

V 576

Outokumpu Stainless USA, LLC v. Converteam SAS

District Court (S.D. Ala.)

Jan. 30, 2017

XLII Y.B. Com. Arb. 661 (2017) (S.D. Ala. 2017)

II 153

Outokumpu Stainless USA, LLC v. Converteam SAS

Court of Appeals (11th Cir.)

Aug. 30, 2018

902 F.3d 1316 (11th Cir. 2018) = XLIII Y.B. Com. Arb. 765 (2018)

II 151

Overseas Cosmos, Inc. v. NR Vessel Corp.

District Court (S.D.N.Y.)

Dec. 8, 1997

1997 WL 757041 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1096 (1998)

II 52, IV 13, 27, 28, V 157, 178, 547

P.T. Reasuransi Umum Indon. v. Evanston Ins. Co.

District Court (S.D.N.Y.)

Dec. 21, 1992

1992 U.S. Dist. LEXIS 19753 (S.D.N.Y. 1992) = 1992 WL 400733 = XIX Y.B. Com. Arb. 788 (1994)

V 139, 320, 335, 545

Pac. Reins. Mgmt. Corp. v. Ohio Reins. Corp.

Court of Appeals (9th Cir.)

June 5, 1991

935 F.2d 1019 (9th Cir. 1991)

I 26

Pagaduan v. Carnival Corp.

Court of Appeals (2nd Cir.)

Sep. 18, 2017

709 Fed. Appx. 713 (2d Cir. 2017) = XLIII Y.B. Com. Arb. 652 (2018)

II 145

PAO Tatneft v. Ukraine

District Court (D.D.C.)

Mar. 19, 2018

301 F. Supp. 3d 175 (D.D.C. 2018) = XLIII Y.B. Com. Arb. 725 (2018)

V 364, VI 6

Parsons & Whittemore Overseas Co. v. Société Générale de l’Industrie du Papier (RAKTA)

Court of Appeals (2nd Cir.)

Dec. 23, 1974

508 F.2d 969 (2d Cir. 1974) = I Y.B. Com. Arb. 205 (1976)

Prel. Rem. 89, V 5, 139, 140, 176, 198, 199, 234, 244, 249, 495, 504, 511, 563, 585

PDV Sweeny, Inc. v. ConocoPhillips Co.

District Court (S.D.N.Y.)

Sep. 1, 2015

XLI Y.B. Com. Arb. 615 (2016) (S.D.N.Y. 2015)

V 567a, 586

Peters Fabrics, Inc. v. Jantzen, Inc.

District Court (S.D.N.Y.)

Mar. 21, 1984

582 F. Supp. 1287 (S.D.N.Y. 1984)

V 190

Piper Aircraft Co. v. Reyno

Sup. Ct.

Dec. 8, 1981

454 U.S. 235 (1981)

III 22

Podar Bros. v. I.T.A.D. Assocs.

Court of Appeals (4th Cir.)

Jan. 9, 1981

636 F.2d 75 (4th Cir. 1981) = VII Y.B. Com. Arb. 379 (1982)

II 100

Polimaster Ltd. v. RAE Sys., Inc.

District Court (N.D. Cal.)

Jan. 23, 2009

XXXIV Y.B. Com. Arb. 1014 (2009) (N.D. Cal. 2009)

V 276

Polimaster Ltd. v. RAE Sys., Inc.

District Court (9th Cir.)

Sep. 28, 2010

623 F.3d 832 (9th Cir. 2010)

V 270

Polytek Eng’g Co. v. Jacobson Cos.

District Court (D. Minn.)

Dec. 12, 1997

XXIII Y.B. Com. Arb. 1103 (1998) (D. Minn. 1997)

II 138

Prima Paint Corp. v. Flood & Conklin Mfg. Co.

Sup. Ct.

June 12, 1967

388 U.S. 395 (1967)

II 297, 298, V 110, 465

Productos Mercantiles e Industriales, S.A. v. Faberge USA, Inc.

Court of Appeals (2nd Cir.)

Apr. 18, 1994

23 F.3d 41 (2d Cir. 1994) = XX Y.B. Com. Arb. 955 (1995)

VII 101

Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional de Venez.

District Court (S.D.N.Y.)

Sep. 30, 1992

802 F. Supp. 1069 (S.D.N.Y. 1992) = XIX Y.B. Com. Arb. 825 (1994)

VII 101

Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional de Venez.

Court of Appeals (2nd Cir.)

Apr. 6, 1993

991 F.2d 42 (2d Cir. 1993) = XIX Y.B. Com. Arb. 825 (1994)

VII 101

691

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Cases United States

New York Convention

Parties

Court

Date

Source

Art. para.

Publicis Communication v. True N. Communications, Inc.

Court of Appeals (7th Cir.)

Mar. 14, 2000

206 F.3d 725 (7th Cir. 2000) = 15(4) Mealey’s Int’l Arb. Rep. B-1 (2000) = 18(2) ASA Bull. 427 (2000) = XXV Y.B. Com. Arb. 1152 (2000)

I 26, 60, V 369, 371, 372

Qingdao Free Trade Zone Genius Int’l Trading Co. v. P & S Int’l, Inc.

District Court (D. Or.)

Sep. 16, 2009

2009 WL 2997184 (D. Or. 2009)

V 162

R.M.F. Global, Inc. v. Cattan

District Court (W.D. Pa.)

Mar. 6, 2006

2006 WL 544294 (W.D. Pa. 2006) = XXXI Y.B. Com. Arb. 1439 (2006)

V 131, 547

R3 Aerospace v. Marshall of Cambridge Aerospace Ltd.

District Court (S.D.N.Y.)

May 29, 1996

927 F. Supp. 121 (S.D.N.Y. 1996)

I 185

Ramos-Santiago v. United Parcel Serv.

Court of Appeals (1st Cir.)

Apr. 24, 2008

524 F.3d 120 (1st Cir. 2008)

V 23

Rent-A-Center, W., Inc. v. Jackson

Sup. Ct.

June 21, 2010

561 U.S. 63 (2010) = 130 S. Ct. 2772

II 296

Republic of Argentina v. BG Group

District Court (D.D.C.)

Jan. 21, 2011

XXXVI Y.B. Com. Arb. 420 (2011) (D.D.C. 2011)

V 560

Republic of Ecuador v. Chevron Corp.

Court of Appeals (2nd Cir.)

Mar. 17, 2011

XXXVI Y.B. Com. Arb. 451 (2011) (2d Cir. 2011)

II 151a

Republic of Ecuador v. Chevrontexaco Corp.

District Court (S.D.N.Y.)

Oct. 22, 2004

376 F. Supp. 2d 334 (S.D.N.Y. 2004)

II 279

Research & Dev. Ctr. “Teploenergetika”, LLC v. EP Int’l, LLC

District Court (E.D. Va.)

Apr. 26, 2016

182 F. Supp. 3d 556 (E.D. Va. 2016) = XLI Y.B. Com. Arb. 701 (2016)

V 181, 489, 586

Reynolds v. Int’l Amateur Athletic Fed’n

District Court (S.D. Ohio)

July 13, 1993

XXI Y.B. Com. Arb. 715 (1996) (S.D. Ohio 1993)

I 45

Reynolds v. Int’l Amateur Athletic Fed’n

Court of Appeals (6th Cir.)

May 17, 1994

23 F.3d 1110 (6th Cir. 1994)

I 45

Rhone Mediterranee Compagnia Francese di Assicurazioni e Riassicurazoni v. Lauro

Court of Appeals (3rd Cir.)

July 6, 1983

712 F.2d 50 (3d Cir. 1983)

II 229, 289, 307

Richard P. Ieyoub, Attorney General ex rel. State of La. v. Am. Tobacco Co.

District Court (W.D. La.)

Sep. 11, 1997

XXIII Y.B. Com. Arb. 1068 (1998) (W.D. La. 1997)

II 60

Riley v. Kingsley Underwriting Agencies, Ltd.

Court of Appeals (10th Cir.)

July 17, 1992

969 F.2d 960 (10th Cir. 1992)

II 307

Rimac Internacional Cia. de Seguros y Reaseguros, S.A. v. Exel Global Logistics, Inc.

District Court (S.D.N.Y.)

June 29, 2009

2009 WL 1868580 (S.D.N.Y. 2009) = XXXIV Y.B. Com. Arb. 1132 (2009)

VII 101

Roadtechs, Inc. v. MJ Highway Tech., Ltd.

District Court (E.D. Va.)

Jan. 19, 2000

79 F. Supp. 637 (E.D. Va. 2000)

II 319

Roberts Irrigation Co. v. Hortau Corp.

District Court (W.D. Wis.)

June 20, 2016

XLII Y.B. Com. Arb. 591 (2017) (W.D. Wis. 2016)

II 89

Rusoro Mining Ltd. v. Venezuela

District Court (D.D.C.)

Mar. 2, 2018

XLIII Y.B. Com. Arb. 714 (2018) (D.D.C. 2018)

V 199

Rodriguez de Quijas v. Shearson/Am. Express, Inc.

Sup. Ct.

May 15, 1989

490 U.S. 477 (1989)

V 23, 477

RZS Holdings AVV v. PDVSA Petroleos S.A.

District Court (E.D. Va.)

Feb. 5, 2009

598 F. Supp. 2d 762 (E.D. Va. 2009) = 2009 U.S. Dist. LEXIS 47126 = XXXIV Y.B. Com. Arb. 1023 (2009)

I 124, VII 101

Salini Costruttori S.P.A. v. Kingdom of Morocco

District Court (D.D.C.)

Feb. 10, 2017

233 F. Supp. 3d 190 (D.D.C. 2017) = XLIII Y.B. Com. Arb. 604 (2018)

Prel. Rem. 29, V 479

Sanluis Devs., L.L.C. v. CCP Sanluis, L.L.C.

District Court (S.D.N.Y.)

June 3, 2008

556 F. Supp. 2d 329 (S.D.N.Y. 2008) = XXXIII Y.B. Com. Arb. 1172 (2008)

VII 101

Sarhank Group v. Oracle Corp.

Court of Appeals (2nd Cir.)

Apr. 14, 2005

404 F.3d 657 (2d Cir. 2005)

II 255

692

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Table of Cases and Awards

United States

Cases

Parties

Court

Date

Source

Art. para.

Saudi Iron & Steel Co. v. Stemcor USA Inc.

District Court (S.D.N.Y.)

Oct. 16, 1997

1997 WL 642566 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1082 (1998)

V 23, 533

Saudi Iron & Steel Co. v. Stemcor USA Inc.

District Court (S.D.N.Y.)

Dec. 22, 1997

1997 WL 790746 (S.D.N.Y. 1997) = XXIII Y.B. Com. Arb. 1082 (1998)

V 427

SBMH Group DMCC v. Noadiam USA, LLC

District Court (S.D. Fla.)

Sep. 15, 2017

XLIII Y.B. Com. Arb. 646 (2018) (S.D. Fla. 2017)

II 146

Scandinavian Reins. Co. v. Saint Paul Fire & Marine Ins. Co.

Court of Appeals (2nd Cir.)

Feb. 3, 2012

668 F.3d 60 (2d Cir. 2012)

V 294

Scherk v. Alberto-Culver Co.

Sup. Ct.

June 17, 1974

417 U.S. 506 (1974)

II 192, 224, V 477

Sci. Applications Int’l Corp. v. Hellenic Republic

District Court (D.D.C.)

Jan. 5, 2017

XLII Y.B. Com. Arb. 678 (2017) (D.D.C. 2017)

VI 6

Sea Bowld Marine Group LDC v. Oceanfast Pty, Ltd.

District Court (S.D. Fla.)

May 5, 2006

432 F. Supp. 2d 1305 (S.D. Fla. 2006) = XXXII Y.B. Com. Arb. 719 (2007)

II 229, 307

Sedco, Inc. v. Petroleos Mexicanos Mex. Nat’l Oil Co.

Court of Appeals (5th Cir.)

Aug. 12, 1985

767 F.2d 1140 (5th Cir. 1985) = XII Y.B. Com. Arb. 539 (1987)

II 27, 215, 285

Seed Holdings, Inc. v. Jiffy Int’l AS

District Court (S.D.N.Y.)

Mar. 21, 2014

5 F. Supp. 3d 565 (S.D.N.Y. 2014)

I 33a

Seetransport Wiking Trader Schiffahrtsgesellschaft mbH & Co. v. Navimpex Centrala Navala

Court of Appeals (2nd Cir.)

Mar. 16, 1993

989 F.2d 572 (2d Cir. 1993) = XIX Y.B. Com. Arb. 812 (1994)

III 14, 17

SEI Societa Esplosivi Industriali SpA v. L-3 Fuzing & Ordnance Sys.

District Court (D. Del.)

Feb. 17, 2012

843 F. Supp. 2d 509 (D. Del. 2012)

V 131

Sesostris SEA v. Transportes Navales SA

District Court (D. Mass.)

Dec. 28, 1989

727 F. Supp. 737 (D. Mass. 1989) = XVI Y.B. Com. Arb. 640 (1991)

V 167

Shaheen Natural Res. Co. v. Sonatrach

District Court (S.D.N.Y.)

Nov. 15, 1983

X Y.B. Com. Arb. 540 (1985) (S.D.N.Y. 1983)

II 53, V 130, 289, 306

Sharp Corp. v. Hisense USA Corp.

District Court (D.D.C.)

Nov. 13, 2017

292 F. Supp. 3d 157 (D.D.C. 2017) = XLIII Y.B. Com. Arb. 678 (2018)

Prel. Rem. 29, III 17, V 583b

Shearson/Am. Express, Inc. v. McMahon

Sup. Ct.

June 8, 1987

482 U.S. 220 (1987)

II 224, V 477

Sierra v. Cruise Ships Catering & Servs. Int’l, N.V.

Court of Appeals (11th Cir.)

Nov. 10, 2015

XLI Y.B. Com. Arb. 636 (2016) (11th Cir. 2015)

II 145, 146

Sistem Muhendislik Insaat Ve Ticaret, A.S. v. The Kyrgyz Republic

District Court (S.D.N.Y.)

Sep. 30, 2016

XLII Y.B. Com. Arb. 650 (2017) (S.D.N.Y. 2016)

V 25

Skandia Am. Reins. Corp. v. Caja Nacional de Ahorro y Seguro

District Court (S.D.N.Y.)

May 21, 1997

XXIII Y.B. Com. Arb. 956 (1998) (S.D.N.Y. 1997)

VI 17, 20

Slaney v. Int’l Amateur Athletic Fed’n

Court of Appeals (7th Cir.)

Mar. 27, 2001

244 F.3d 580 (7th Cir. 2001) = XXVI Y.B. Com. Arb. 1091 (2001)

I 45, II 157, V 140

Slinger Mfg. Co. v. Nemak, S.A.

District Court (E.D. Wis.)

Sep. 24, 2008

2008 WL 4425889 (E.D. Wis. 2008)

II 319

Smagin v. Yegiazaryan

District Court (C.D. Cal.)

Mar. 17, 2016

XLII Y.B. Com. Arb. 580 (2017) (C.D. Cal. 2016)

V 361

SMG Swedish Mach. Group, Inc. v. Swedish Mach. Group, Inc.

District Court (N.D. Ill.)

Jan. 4, 1991

XVIII Y.B. Com. Arb. 457 (1993) (N.D. Ill. 1991)

II 69

Smith/Enron Cogeneration, Ltd. v. Smith Cogeneration Int’l, Inc.

Court of Appeals (2nd Cir.)

Dec. 8, 1999

198 F.3d 88 (2d Cir. 1999) = 1999 U.S. App. LEXIS 32097 = XXV Y.B. Com. Arb. 1088 (2000)

Prel. Rem. 28, II 215, 234

Sonatrach v. Distrigas Corp.

District Court (D. Mass.)

Mar. 17, 1987

1987 U.S. Dist. LEXIS 11805 (D. Mass. 1987) = XX Y.B. Com. Arb. 795 (1995)

V 468, 511

693

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Cases United States

New York Convention

Parties

Court

Date

Source

Art. para.

Sonera Holding B.V. v. Çukurova Holding A.S.

District Court (S.D.N.Y.)

Sep. 10, 2012

895 F. Supp. 2d 513 (S.D.N.Y. 2012) = XXXVIII Y.B. Com. Arb. 483 (2013)

III 22, 25, V 176, 228a, 332

Sonera Holding B.V. v. Çukurova Holding A.S.

Court of Appeals (2nd Cir.)

Apr. 25, 2014

750 F.3d 221 (2d Cir. 2014)

III 17

Spector & Specurity Indus. Ltd. v. Torenberg

District Court (S.D.N.Y.)

May 5, 1994

852 F. Supp. 201 (S.D.N.Y. 1994) = XX Y.B. Com. Arb. 962 (1995)

V 534, 563

Sperry Int’l Trade, Inc. v. Gov’t of Israel

Court of Appeals (2nd Cir.)

Jan. 21, 1982

670 F.2d 8 (2d Cir. 1982)

I 70

Sperry Int’l Trade, Inc. v. Gov’t of Israel

Court of Appeals (2nd Cir.)

Sep. 3, 1982

689 F.2d 301 (2d Cir. 1982)

I 26

Sphere Drake Ins. v. Marine Towing, Inc.

District Court (E.D. La.)

Dec. 28, 1992

XIX Y.B. Com. Arb. 792 (1994) (E.D. La. 1992)

II 98, 102

Sphere Drake Ins. v. Marine Towing, Inc.

Court of Appeals (5th Cir.)

Mar. 23, 1994

16 F.3d 666 (5th Cir. 1994) = XX Y.B. Com. Arb. 937 (1995)

II 93

Spier v. Calzaturificio Tecnica SpA

District Court (S.D.N.Y.)

June 29, 1987

XIII Y.B. Com. Arb. 602 (1988) (S.D.N.Y. 1987)

I 28, VI 5, 7, 17

Spier v. Calzaturificio Tecnica S.p.A.

District Court (S.D.N.Y.)

Oct. 22, 1999

XXV Y.B. Com. Arb. 1042 (2000) (S.D.N.Y. 1999)

V 387

Splosna Plovba of Piran v. Agrelak S.S. Corp.

District Court (S.D.N.Y.)

Sep. 24, 1974

381 F. Supp. 1368 (S.D.N.Y. 1974) = I Y.B. Com. Arb. 204 (1976)

I 174

Springs Cotton Mills v. Buster Boy Suit Co.

Sup. Ct. (N.Y. App. Div.)

Dec. 29, 1949

88 N.Y.S.2d 295 (App. Div. 1949)

V 413

Standard Bent Glass Corp. v. Glassrobots Oy

Court of Appeals (3rd Cir.)

June 20, 2003

333 F.3d 440 (3d Cir. 2003) = XXIX Y.B. Com. Arb. 978 (2004)

II 93, 138

Stati v. Republic of Kazakhstan

District Court (D.D.C.)

Aug. 5, 2016

XLII Y.B. Com. Arb. 619 (2017) (D.D.C. 2016)

VI 6

Stati v. Republic of Kazakhstan

District Court (D.D.C.)

Mar. 23, 2018

XLIII Y.B. Com. Arb. 737 (2018) (D.D.C. 2018)

V 553

Stawski Distrib. Co. v. Browary Zywiec S.A.

Court of Appeals (7th Cir.)

Mar. 4, 2005

XXX Y.B. Com. Arb. 923 (2005) (7th Cir. 2005)

V 244

Steel Corp. of the Philip. v. Int’l Steel Servs., Inc.

District Court (W.D. Pa.)

July 31, 2006

XXXII Y.B. Com. Arb. 789 (2007) (W.D. Pa. 2006)

V 299, 404, 409

Steel Corp. of the Philip. v. Int’l Steel Servs., Inc.

District Court (W.D. Pa.)

Feb. 6, 2008

XXXIII Y.B. Com. Arb. 1125 (2008) (W.D. Pa. 2008)

V 404, 405

Steel Corp. of the Philip. v. Int’l Steel Servs., Inc.

Court of Appeals (3rd Cir.)

Nov. 19, 2009

XXXV Y.B. Com. Arb. 501 (2010) (3d Cir. 2009)

V 556

Stephen & Mary Birch Found., Inc. v. Admart AG

Court of Appeals (3rd Cir.)

Aug. 8, 2006

XXXII Y.B. Com. Arb. 800 (2007) (3d Cir. 2006)

VI 13

Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.

Sup. Ct.

Apr. 27, 2010

559 U.S. 662 (2010)

V 19

Stone & Webster, Inc. v. Triplefine Int’l Corp.

Court of Appeals (2nd Cir.)

Dec. 20, 2004

118 Fed. Appx. 546 (2d Cir. 2004) = XXX Y.B. Com. Arb. 1035 (2005)

V 572

Su Zhou Tian Lu Steel Co. v. Sherman Int’l Corp.

District Court (W.D. Pa.)

Oct. 27, 2008

2008 WL 4790728 (W.D. Pa. 2008)

V 23

Suazo v. NCL (Bah.) Ltd.

Court of Appeals (11th Cir.)

May 10, 2016

822 F.3d 543 (11th Cir. 2016) = XLI Y.B. Com. Arb. 706 (2016)

II 307

Sumitomo Corp. v. Oshima Shipbuilding Co.

District Court (S.D.N.Y.)

Oct. 12, 1979

477 F. Supp. 737 (S.D.N.Y. 1979) = VI Y.B. Com. Arb. 245 (1981)

II 38

Sunshine Mining Co. v. United Steelworkers of Am.

Court of Appeals (9th Cir.)

Mar. 25, 1987

823 F.2d 1289 (9th Cir. 1987)

V 140

Sural (Barb.) Ltd. v. Gov’t of the Republic of Trin. & Tobago

District Court (S.D. Fla.)

Aug. 12, 2016

2016 U.S. Dist. LEXIS 107041 (S.D. Fla. 2016) = XLII Y.B. Com. Arb. 625 (2017)

V 147, 170b, 174

Technetronics, Inc. v. Leybold AG

District Court (E.D. Pa.)

June 9, 1993

XIX Y.B. Com. Arb. 843 (1994) (E.D. Pa. 1993)

II 153

694

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Table of Cases and Awards

United States

Cases

Parties

Court

Date

Source

Art. para.

Telcordia Techs., Inc. v. Telkom SA Ltd.

Court of Appeals (3rd Cir.)

Aug. 14, 2006

XXXII Y.B. Com. Arb. 810 (2007) (3d Cir. 2006)

VI 11

Telenor Mobile Commc’ns AS v. Storm LLC

District Court (S.D.N.Y.)

Nov. 2, 2007

524 F. Supp. 2d 332 (S.D.N.Y. 2007) = XXXIII Y.B. Com. Arb. 1041 (2008)

V 131, 139, 245

Tempo Shain Corp. v. Bertek, Inc.

Court of Appeals (2nd Cir.)

July 21, 1997

120 F.3d 16 (2d Cir. 1997)

V 175

Tennessee Imps., Inc. v. Filippi

District Court (M.D. Tenn.)

Aug. 14, 1990

745 F. Supp. 1314 (M.D. Tenn. 1990) = XVII Y.B. Com. Arb. 620 (1992)

II 48, 319, 323

TermoRio S.A. E.S.P. v. Electranta S.P.

Court of Appeals (D.C. Cir.)

May 25, 2007

2007 U.S. App. LEXIS 12201 (D.C. Cir. 2007) = XXXIII Y.B. Com. Arb. 955 (2008)

V 387, 391, VII 43, 101

TermoRio S.A. E.S.P. v. Electrificadora del Atlantico S.A. E.S.P.

District Court (D.D.C.)

Mar. 17, 2006

421 F. Supp. 2d 87 (D.D.C. 2006) = 2006 WL 695832 = XXXI Y.B. Com. Arb. 1457 (2006)

III 22, VII 43, 101

Thai-Lao Lignite (Thai.) Co. v. Gov’t of the Lao People’s Democratic Republic

District Court (S.D.N.Y.)

Aug. 3, 2011

2011 U.S. Dist. LEXIS 87844 (S.D.N.Y. 2011) = XXXVI Y.B. Com. Arb. 491 (2011)

III 22

Thai-Lao Lignite (Thai.) Co. v. Gov’t of the Lao People’s Democratic Republic

District Court (S.D.N.Y.)

Feb. 6, 2014

XXXIX Y.B. Com. Arb. 592 (2014) (S.D.N.Y. 2014)

Prel. Rem. 29, V 386a

Thai-Lao Lignite (Thai.) Co. v. Gov’t of the Lao People’s Democratic Republic

Court of Appeals (2nd Cir.)

July 20, 2017

XLII Y.B. Com. Arb. 713 (2017) (2d Cir. 2017)

Prel. Rem. 29

Thomas v. A.R. Baron & Co.

District Court (S.D.N.Y.)

June 3, 1997

967 F. Supp. 785 (S.D.N.Y. 1997)

II 247

Thomson-CSF, S.A. v. Am. Arb. Ass’n

Court of Appeals (2nd Cir.)

Aug. 24, 1995

64 F.3d 773 (2d Cir. 1995)

II 243, 260

TMCO Ltd. v. Green Light Energy Solutions R&D Corp.

District Court (N.D. Cal.)

Nov. 14, 2017

XLIII Y.B. Com. Arb. 684 (2018) (N.D. Cal. 2017)

V 130, 566

TMR Energy Ltd. v. State Prop. Fund of Ukr.

Court of Appeals (D.C. Cir.)

June 17, 2005

411 F.3d 296 (D.C. Cir. 2005) = XXX Y.B. Com. Arb. 1179 (2005)

V 26

Todd v. S.S. Mut. Underwriting Ass’n (Berm.)

Court of Appeals (5th Cir.)

Mar. 18, 2010

601 F.3d 329 (5th Cir. 2010) = XXXVI Y.B. Com. Arb. 370 (2011)

II 243

Todd v. S.S. Mut. Underwriting Ass’n (Berm.)

District Court (E.D. La.)

Mar. 28, 2011

2011 WL 1226464 (E.D. La. 2011) = XXXVI Y.B. Com. Arb. 370 (2011)

II 151, 232

Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp.

District Court (S.D. Tex.)

July 7, 1997

978 F. Supp. 266 (S.D. Tex. 1997) = XXIII Y.B. Com. Arb. 995 (1998)

I 123, V 140, 553, 580

Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp.

Court of Appeals (5th Cir.)

Dec. 8, 1998

161 F.3d 314 (5th Cir. 1998) = XXIII Y.B. Com. Arb. 995 (1998)

V 140

Transatl. Bulk Shipping Ltd. v. Saudi Chartering S.A.

District Court (S.D.N.Y.)

Apr. 16, 1985

622 F. Supp. 25 (S.D.N.Y. 1985) = XI Y.B. Com. Arb. 576 (1986)

III 17

Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London

Court of Appeals (8th Cir.)

July 10, 1997

119 F.3d 619 (8th Cir. 1997)

II 192

Transmarine Seaways Corp. v. Marc Rich & Co.

District Court (S.D.N.Y.)

June 15, 1979

480 F. Supp. 352 (S.D.N.Y. 1979) = VI Y.B. Com. Arb. 244 (1981)

V 562

Transrol Navegacao v. Redirekommanditselskaber Merc Scandia XXIX

District Court (S.D.N.Y.)

Dec. 11, 1991

XVIII Y.B. Com. Arb. 499 (1993) (S.D.N.Y. 1991)

II 53

Trevino Hernandez, S. de R.L. de C.V. v. Smart & Final, Inc.

District Court (S.D. Cal.)

June 17, 2010

2010 U.S. Dist. LEXIS 60755 (S.D. Cal. 2010) = XXXV Y.B. Com. Arb. 551 (2010)

V 543, VII 101

Tropical Cruise Lines, S.A. v. Vesta Ins. Co.

District Court (S.D. Miss.)

May 6, 1992

805 F. Supp. 409 (S.D. Miss. 1992) = XVIII Y.B. Com. Arb. 557 (1993)

I 62

Tuca v. Ocean Freighters, Ltd.

District Court (E.D. La.)

Apr. 5, 2006

XXXI Y.B. Com. Arb. 1474 (2006) (E.D. La. 2006)

II 93

695

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Cases United States

New York Convention

Parties

Court

Date

Source

Art. para.

Ukrvneshprom State Foreign Econ. Enter. v. Tradeway, Inc.

District Court (S.D.N.Y.)

Mar. 12, 1996

1996 WL 107285 (S.D.N.Y. 1996) = XXII Y.B. Com. Arb. 958 (1997)

V 157, 178, 493

Underhill v. Hernandez

Sup. Ct.

Nov. 29, 1897

168 U.S. 250 (1897)

V 451

United Paperworkers Int’l Union v. Misco, Inc.

Sup. Ct.

Dec. 1, 1987

108 S. Ct. 364 (1987) = 484 U.S. 29 = 98 L. Ed. 2d 286

V 19, 586

United Steelworkers of Am. v. Am. Mfg. Co.

Sup. Ct.

June 20, 1960

363 U.S. 564 (1960)

V 476

United Steelworkers of Am. v. Enter. Wheel & Car Corp.

Sup. Ct.

June 20, 1960

363 U.S. 593 (1960)

V 476

United Steelworkers of Am. v. Warrior & Gulf Navigation Co.

Sup. Ct.

June 20, 1960

363 U.S. 574 (1960)

V 476

Vanquish Worldwide LLC v. United Sadat Transp. & Logistics Co.

District Court (D. Wyo.)

Jan. 19, 2016

Unreported, available at http:// newyorkconvention1958.org/doc_ num_data.php?explnum_id=3158 (last visited Apr. 29, 2019) (D. Wyo. 2016)

V 322, 332

Vegter v. Forecast Fin. Corp.

District Court (W.D. Mich.)

Nov. 20, 2007

2007 WL 417847 (W.D. Mich. 2007)

II 307

Venco Imtiaz Constr. Co. v. Symbion Power LLC

District Court (D.D.C.)

May 31, 2017

XLIII Y.B. Com. Arb. 633 (2018) (D.D.C. 2017)

V 555, VI 6

Venco Imtiaz Constr. Co. v. Symbion Power LLC

Court of Appeals (D.C. Cir.)

July 10, 2018

2018 WL 3407572 (D.C. Cir. 2018) = XLIV Y.B. Com. Arb. ___ (2019)

V 511, 555

Vento v. Crithfield

District Court (D.V.I.)

Sep. 30, 2015

2015 U.S. Dist. LEXIS 132576 (D.V.I. 2015) = XLI Y.B. Com. Arb. 620 (2016)

IV 27

Ventura de Rendon v. Ventura

District Court (S.D. Fla.)

Aug. 8, 2018

2018 WL 4496300 (S.D. Fla. 2018) = XLIV Y.B. Com. Arb. ___ (2019)

V 270

Venture Global Eng’g, LLC v. Satyam Computer Servs., Ltd.

Court of Appeals (6th Cir.)

May 25, 2007

233 Fed. Appx. 517 (6th Cir. 2007) = XXXIII Y.B. Com. Arb. 970 (2008)

V 299, 337

Verolme Botlek B.V. v. Lee C. Moore Corp.

District Court (N.D. Okla.)

Sep. 7, 1995

XXI Y.B. Com. Arb. 824 (1996) (N.D. Okla. 1995)

II 138, IV 2

Victrix S.S. Co. v. Salen Dry Cargo AB

Court of Appeals (2nd Cir.)

Aug. 5, 1987

825 F.2d 709 (2d Cir. 1987) = XV Y.B. Com. Arb. 534 (1990)

IV 15, V 580

Vimar Seguros y Reaseguros, SA v. M/V Sky Reefer

Sup. Ct.

June 19, 1995

515 U.S. 528 (1995)

V 435

Wachovia Sec., LLC v. Brand

Court of Appeals (4th Cir.)

Feb. 16, 2012

671 F.3d 472 (4th Cir. 2012)

V 23

Waterside Ocean Navigation Co. v. Int’l Navigation Ltd.

Court of Appeals (2nd Cir.)

June 18, 1984

737 F.2d 150 (2d Cir. 1984)

IV 15

Wilko v. Swan

Sup. Ct.

Dec. 7, 1953

346 U.S. 427 (1953)

V 23, 477

Williams v. Deutsche Bank AG

District Court (N.D. Tex.)

Feb. 9, 2006

2006 U.S. Dist. LEXIS 75426 (N.D. Tex. 2006) = XXXII Y.B. Com. Arb. 683 (2007)

II 27

Williams v. Walker-Thomas Furniture Co.

Court of Appeals (D.C. Cir.)

Aug. 11, 1965

350 F.2d 445 (D.C. Cir. 1965)

II 307

Willis v. Shearson/Am. Express, Inc.

District Court (M.D.N.C.)

Aug. 31, 1983

569 F. Supp. 821 (M.D.N.C. 1983)

V 567

Xiangkai Xu v. China Sunergy (US) Clean Tech Inc.

District Court (N.D. Cal.)

July 20, 2016

XLII Y.B. Com. Arb. 612 (2017) (N.D. Cal. 2016)

Prel. Rem. 29

Yahoo! Inc. v. Microsoft Corp.

District Court (S.D.N.Y.)

Oct. 21, 2013

983 F. Supp. 2d 310 (S.D.N.Y. 2013)

I 71a

Yasuda Fire & Marine Ins. Co. of Europe v. Cont’l Cas. Co.

Court of Appeals (7th Cir.)

Oct. 7, 1994

37 F.3d 345 (7th Cir. 1994)

I 26, V 372

York Hannover Holding A.G. v. Am. Arbitration Ass’n

District Court (S.D.N.Y.)

May 11, 1993

1993 WL 159961 (S.D.N.Y. 1993) = XX Y.B. Com. Arb. 856 (1995)

V 530

696

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Table of Cases and Awards

Cases

Zimbabwe

Parties

Court

Date

Source

Art. para.

Yukos Capital s.a.r.l. v. OAO Samaraneftegaz

District Court (S.D.N.Y.)

Aug. 6, 2013

963 F. Supp. 2d 289 (S.D.N.Y. 2013) = XXXVIII Y.B. Com. Arb. 533 (2013)

V 139, 161

Yukos Capital s.a.r.l. v. OAO Samaraneftegaz

Court of Appeals (2nd Cir.)

Nov. 4, 2014

XL Y.B. Com. Arb. 520 (2015) (2d Cir. 2014)

V 493

Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc.

Court of Appeals (2nd Cir.)

Sep. 10, 1997

126 F.3d 15 (2d Cir. 1997) = XXIII Y.B. Com. Arb. 1058 (1998)

I 123, V 1, 21, 23, 244, 353, 378, 379, 563

Zeevi Holdings Ltd. v. Republic of Bulgaria

District Court (S.D.N.Y.)

Mar. 29, 2011

2011 U.S. Dist. LEXIS 38556 (S.D.N.Y. 2011)

III 24

Zeevi Holdings Ltd. v. Republic of Bulgaria

Court of Appeals (2nd Cir.)

Aug. 24, 2012

2011 U.S. Dist. LEXIS 38556 (2d Cir. 2012) = XXXVII Y.B. Com. Arb. 420 (2012)

V 25

Zeiler v. Deitsch

Court of Appeals (2nd Cir.)

Aug. 23, 2007

500 F.3d 157 (2d Cir. 2007) = XXXIII Y.B. Com. Arb. 839 (2008)

I 123, V 287

Zephyros Mar. Agencies, Inc. v. Mexicana de Cobre, S.A.

District Court (S.D.N.Y.)

June 17, 1987

662 F. Supp. 892 (S.D.N.Y. 1987)

I 21

Ziad Sakr Fakhri v. Marriot Int’l Hotels Inc.

District Court (D. Md.)

Aug. 12, 2016

201 F. Supp. 3d 696 (D. Md. 2016) = XLIII Y.B. Com. Arb. 585 (2018)

Prel. Rem. 29

Zurich Am. Ins. Co. v. Watts Indus., Inc.

Court of Appeals (7th Cir.)

Aug. 2, 2005

417 F.3d 682 (7th Cir. 2005)

II 244, 260

Venezuela, Bolivarian Republic of Court

Date

File No.

Source

Art. para.

Sup. Ct.

Nov. 3, 2010

No. 1067/2010

XXXVI Y.B. Com. Arb. 496 (2011)

II 301

Zimbabwe Parties

Court

Date

Source

Art. para.

Dajen (Pvt) Ltd. v. Durco (Pvt) Ltd.

Sup. Ct.

June 22, 1998

1998 (2) ZLR 255 = XXIVa Y.B. Com. Arb. 353 (1999)

V 555

Durco (Pvt) Ltd. v. Dajen (Pvt) Ltd.

High Court

July 10, 1997

1997 (2) ZLR 199 = XXIVa Y.B. Com. Arb. 352 (1999)

V 555

697

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Awards

New York Convention

II. Table of Awards Ad hoc Arbitrations Parties

Decision

Date

Source

Art. para.

BP Exploration Co. (Libya) Ltd. v. Government of the Libyan Arab Republic

Final award

Oct. 10, 1973

53 ILR 297 (1979)

I 142

Commune X. v. Y. SA

Partial award

2010

29(2) ASA Bull. 338 (2011)

V 452

Libyan American Oil Co. (LIAMCO) v. Libya

Final award

Apr. 12, 1977

20 ILM 1 (1981) = IV Y.B. Com. Arb. 177 (1979)

I 142

Sapphire International Petroleum Ltd. v. National Iranian Oil Co.

Final award

Mar. 15, 1963

35 ILR 136 (1967)

I 142

Texaco Overseas Petroleum Co. (TOPCO) and California Asiatic Oil Co. v. Libya

Final award

Jan. 19, 1977

17 ILM 1 (1978) = 53 ILR 389 (1978)

I 142

Bulgarian Chamber of Commerce and Industry, Arbitration Court Parties

Case No.

Decision

Date

Source

Art. para.

Bulgarian sport organisation v. Greek sport organisation

Case No. 151/1984

Award

Dec. 3, 1984

XV Y.B. Com. Arb. 63 (1990)

II 48

Creditor v. Debtor

Case No. 60/1980

Award

Oct. 1, 1980

XII Y.B. Com. Arb. 84 (1987)

V 212

Lebanese Company v. Two Bulgarian State Enterprises

Case No. 80/1970

Award

May 12, 1971

IV Y.B. Com. Arb. 191 (1979)

II 187

Chamber of Arbitration of Milan Parties

Decision

Date

Source

Art. para.

Shareholders in Company X srl (Italy) v. Company X srl (Italy)

Final award

Sep. 23, 1997

XXIII Y.B. Com. Arb. 93 (1998)

V 432, 433

Hamburger Freundschaftliche Arbitrage Parties

Decision

Date

Source

Art. para.

German (F.R.) seller v. Dutch buyer

Award

Jan. 15, 1976

III Y.B. Com. Arb. 212 (1978)

II 187

International Centre for Settlement of Investment Disputes (ICSID) Parties

ICSID Case No.

Decision

Date

Source

Art. para.

Amco Asia Corp. v. Republic of Indonesia

ARB/81/1

Decision on jurisdiction

May 10, 1988

XIV Y.B. Com. Arb. 92 (1989), also available at http://icsid.worldbank.org (last visited Apr. 16, 2019)

III 9

698

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Awards

Table of Cases and Awards Parties

ICSID Case No.

Decision

Date

Source

Art. para.

Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic

ARB/97/3

Decision on the continued stay of enforcement of the award (annulment proceeding)

Nov. 4, 2008

Unreported, available at http://icsid.worldbank.org (last visited Apr. 29, 2019)

I 156

Enron Creditors Recovery Corp. (formerly Enron Corp.) and Ponderosa Assets, L.P. v. Argentine Republic

ARB/01/3

Decision on the continued stay of enforcement of the award (annulment proceeding)

Oct. 7, 2008

Unreported, available at http://icsid.worldbank.org (last visited Apr. 29, 2019)

I 155

Malaysian Historical Salvors SDN BHD v. The Government of Malaysia

ARB/05/ 10

Annulment decision

Apr. 16, 2009

Unreported, available at http://icsid.worldbank.org (last visited Apr. 9, 2019)

Prel. Rem. 77

International Chamber of Commerce (ICC) Case

Parties

Decision

Date

Source

Art. para.

Case No. 1110

Argentine Engineer v. British Company

Award

1963

XXI Y.B. Com. Arb. 47 (1996)

V 464

Case No. 2626

German company v. Italian company

Final award

1977

JDI 1978, 981

II 250

Case No. 3572

Deutsche Schachtbau- und Tiefbohrgesellschaft mbH (DST) v. The Government of the State of R’as Al Khaimah (UAE)

Final award

1982

XIV Y.B. Com. Arb. 111 (1989)

II 232

Case No. 4131

Dow Chemical v. Isover Saint Gobain

Interim award

Sep. 23, 1982

JDI 1983, 899 = IX Y.B. Com. Arb. 131 (1984)

II 253, V 205

Case No. 4145

Establishment of Middle East country X v. South Asian construction company

First interim award

1983

XII Y.B. Com. Arb. 97 (1987)

V 465

Case No. 5124

Sofidif

Interim award

Dec. 2, 1988

Unreported

V 214

Case No. 5971

Swedish Company v. Two entities from the former Yugoslavia

Final award

–

13(4) ASA Bull. 728 (1995)

V 212

Case No. 6379

Principal v. Distributor

Final award

1990

XVII Y.B. Com. Arb. 212 (1992)

II 240

Case No. 6474

Supplier (European country) v. Republic of X

Partial award

1992

XXV Y.B. Com. Arb. 279 (2000)

V 430, 465

Case No. 6531

Seller v. Buyer

Final award

1991

XVII Y.B. Com. Arb. 221 (1992)

II 173

Case No. 7337

Distributor v. Manufacturer

Interim award

1996

XXIVa Y.B. Com. Arb. 149 (1999)

II 249

Case No. 9667

Sociéte X v. Sociéte Y

Final award

Aug. 10, 1998

JDI 2000, 1096

I 73

Case No. 10617

–

Partial award

2000

SchiedsVZ 2003, 45

V 124

Case No. 11405

–

Interim award

Nov. 29, 2001

Unreported

II 254

Case No. 12363/ACS

Germany v. Italy

Partial award

Dec. 23, 2003

24(3) ASA Bull. 462 (2006)

V 217

699

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Awards

New York Convention

Internationales Schiedsgericht der Bundeskammer der Gewerblichen Wirtschaft in Österreich Case

Decision

Date

Source

Art. para.

SCH-4318

Final award

June 15, 1994

RIW 1995, 590

II 99

Iran-US Claims Tribunal Case

Parties

Decision

Date

Source

Art. para.

No. 41-48-3

American Bell International Inc. v. Islamic Republic of Iran, Ministry of Defense

Interlocutory award

June 11, 1984

X Y.B. Com. Arb. 274 (1985)

V 217

No. 314-24-1

Starrett Housing Corp. v. The Government of the Islamic Republic of Iran

Final award

Aug. 14, 1987

XIII Y.B. Com. Arb. 271 (1988)

V 340

Nederlands Arbitrage Instituut Parties

Decision

Date

Source

Art. para.

American (N.Y.) seller v. Norwegian buyer

First and interlocutory opinion

Sep. 15, 1977

VI Y.B. Com. Arb. 142 (1981)

II 187

Netherlands Oils, Fats and Oilseeds Trade Association Parties

Decision

Date

Source

Art. para.

Dutch private company (seller) v. Tunisian private company (buyer)

Award

Mar. 20, 1977

III Y.B. Com. Arb. 225 (1978)

II 187

Schiedsgericht des Deutschen Kaffeeverbands an der Handelskammer Hamburg Parties

Decision

Date

Source

Art. para.

Panamanian buyer v. Papua New Guinean seller

Final award

Sep. 28, 1992

XIX Y.B. Com. Arb. 48 (1994)

II 48

700

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Index Bold text refers to Articles of the Convention, light text to paragraph numbers.

A Abusive procedural determinations Õ Public policy/abusive procedural determinations Accession to the NYC Prel. Rem. 5, 55, VIII 8 et seq., IX 6 et seq., Õ Contracting States to the NYC – acceding entities IX 7 et seq. – coming into force Prel. Rem. 18, IX 12, XII 9 et seq. – Cook Islands IX 9 et seq. – extension to territories X 10 et seq. – Holy See IX 8 – instrument of accession IX 12 – invitation by the General Assembly IX 11 – notification of the UN Secretary-General XV 6 et seq. – Palestine IX 10a – potential Member States VIII 8 et seq. – procedure IX 12 – process VIII 14 et seq., XII 5 et seq. – ratification Õ Ratification of the NYC – retroactive effect Õ Retroactive application of the NYC – signature VIII 17 – succession of States IX 13 et seq. – UNCITRAL Report (2008) Prel. Rem. 97 et seq. – United Nations, members IX 7 – ways to join the NYC VIII 14 et seq. Achievements of the NYC Prel. Rem. 38 et seq. Act of State Õ Arbitrability/act of State Acta jure gestionis et imperii Õ Sovereign immunity/defense of sovereign immunity Ad hoc arbitration V 407 Adjournment of enforcement of the award V 357, 401, VI 6 et seq., 23 – court discretion VI 6 et seq. – good faith VI 9 – mechanics VI 16 – security VI 17 et seq. Adjudication I 35 Advance on costs Õ Costs/refusal to advance costs – all cost advances borne by one party V 350 Adversarial proceedings, right to Õ Inability to present one’s case Agency Õ Arbitration agreement/conclusion via proxy

Amiable compositeur Õ Award/ex aequo et bono Amman Convention Õ Arab Convention A-national award Õ Award/a-national award Annulment Õ Award/annulment Antitrust law Õ Arbitrability/antitrust law Appeal – on a question of law Õ English Arbitration Act 1996/appeal on a question of law – to another tribunal V 363 et seq. Application for recognition and enforcement of awards Õ Security – adjournment of enforcement decision Õ Adjournment of enforcement of the award – arbitration agreement IV 19 et seq. – authentication and certification of the award IV 8 et seq., 15 – authentication and certification, competence IV 13 – authentication and certification, double legalization IV 10 – authentication, law governing the validity IV 9 et seq. – award IV 14 et seq. – burden of proof IV 2 et seq., 12, 20 et seq., V 12, 41 et seq., 125 et seq. – copy of the arbitration agreement IV 24 – copy of the award, certified IV 18 – counter-claim defense III 23 – deviating national provisions IV 36 – equity IV 31 – evidentiary requirements IV 27 et seq. – exemption from supplying required documents IV 25 et seq. – forum non conveniens III 22 – inter partes application III 13 – more favorable national law Õ More-favorable-rights provision/on requirements of application for recognition and enforcement of awards – original award, duly authenticated IV 17 – requirements III 10 et seq., IV 1, 14 et seq., V 12 – set-off defense Õ Award/set-off defense – supply of documents IV 8 et seq. – timeframe for supply of required documents IV 32 – translation IV 7, 33 et seq. – type of proceedings III 11 et seq. – validation principle IV 12

701

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Index Application to set aside or suspend the award Application to set aside or suspend the award VI 1 et seq., 13 Appointment of arbitrators Õ Composition of the tribunal/appointment of arbitrators Arab Convention VII 27 Arbitrability V 418 et seq. – act of State V 451 et seq. – antitrust law V 455 et seq. – arbitration agreement Õ Arbitration agreement/arbitrability – arbitration agreement null and void V 426 – combined choice of law and choice of forum clause V 434 et seq. – concept V 424 – consumer law V 458 et seq. – copyright V 470 et seq. – custody V 463 – definition V 418, 425 et seq. – design V 470 et seq. – determination ex officio V 448 – discretion to recognize and enforce V 449 – distributorship contract V 462 – divorce V 463 – domain name dispute V 471 – family and succession law V 463 – Geneva Convention Õ Geneva Convention/ arbitrability – governing law V 425, 446 et seq. – illegality (bribery, corruption, etc.) and embargos V 464 et seq. – insolvency V 467 et seq. – intellectual property V 470 et seq. – international arbitrability V 438 – internationally mandatory rules V 434 et seq. – intra-corporate dispute V 473 et seq. – labor law V 476 – legal incapacity V 428 – legislation conferring jurisdiction to state courts V 430 – limitations on defining arbitrability V 441 et seq. – mandatory law claims V 433 – notion V 418, 438 – objective arbitrability V 429 et seq. – partial arbitrability V 449 – patent V 470 et seq. – range V 419 et seq. – safety-valve mechanism V 421 – securities law V 477 et seq. – shareholder agreement V 473 et seq., Õ Arbitration agreement/shareholder agreement – shareholder resolution V 473 et seq. – shareholder-corporation disputes V 473 et seq. – subjective arbitrability V 428 et seq., VII 87, Õ Arbitration agreement/capacity of the parties, Õ Incapacity of the parties to conclude an arbitration agreement

702

New York Convention

– substantive invalidity, distinction V 425 et seq. – tax dispute V 479 – third party claim Õ Arbitration agreement/ third party Arbitral award Õ Award Arbitral clause in a contract or arbitration agreement Õ “In writing” requirement/arbitral clause in a contract or arbitration agreement Arbitral institution, choice of inexistent arbitral institution II 313, Õ Arbitration agreement/ inoperative Arbitral seat Õ Place of arbitration Arbitral tribunal Õ Tribunal Arbitration agreement – agency Õ Arbitration agreement/conclusion via proxy – agreement of the parties II 42 et seq. – applicability of the NYC Prel. Rem. 28, I 92, II 22 et seq., 202 et seq. – arbitrability II 158 et seq. – arbitral clause in a contract or arbitration agreement II 56 et seq. – authentication IV 8, 22 – burden of producing V 126 – burden of proof for existence of an arbitration agreement II 287 et seq., V 41 et seq., 125 et seq., 131, Õ Application for recognition and enforcement of awards/burden of proof – capacity of the parties II 46, 242, V 85, 88 et seq., 97 et seq., 102 et seq. – certification IV 8, 25, Õ Application for recognition and enforcement of awards/copy of the arbitration agreement – choice of law II 232 et seq., V 17, 113 et seq., 121, 278, 434 et seq. – conclusion II 43 – conclusion of a new arbitration agreement as remedy for defective arbitration agreements II 50 – conclusion via email Õ “In writing” requirement/email – conclusion via proxy II 45, 156, 245 et seq., 257, V 123 et seq. – conclusion, governing law II 42 et seq., V 85, 111 et seq. – consent II 43 – contract amendment II 145 et seq., V 231 – copy, duly certified Õ Application for recognition and enforcement of awards/copy of the arbitration agreement – corporations’ capacity V 107 – cure of deficiencies II 51, 157 – defective II 49 et seq. – defined legal relationship II 65 et seq. – differences II 60 et seq., 262 et seq.

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Index – dispute II 60 et seq., 262 et seq. – domestic agreement II 208 et seq., V 438 et seq. – effects of recognition II 180 et seq. – elements II 47 et seq. – enforcement Prel. Rem. 27, II 191, 192, 202, 212, 215, V 106 – estoppel II 52 et seq., 259 et seq. – European Convention Õ European Convention – foreign II 26 et seq., 204 et seq. – foreign parties II 214 et seq. – form II 293, 305, V 85, 109, 110, 122, Õ “In writing” requirement – framework agreement II 66 – general terms and conditions I 29, II 132 et seq. – governing law II 42, 227 et seq., 291, V 93, 105 et seq., 205 et seq. – group of companies II 251 et seq. – in writing Õ “In writing” requirement – incapable of being performed II 311 et seq. – incapacity of the parties Õ Arbitration agreement/capacity of the parties – inoperative II 309 et seq. – internationality II 212, 215 – invalidity Õ Arbitration agreement/validity – legal entities under public law I 139 et seq., V 99 et seq., 102 et seq., Õ Arbitrability/act of State – multiple contracts V 222 et seq. – non-signatory II 244 et seq., 254 et seq., Õ Arbitration agreement/third party – null and void II 304 et seq., V 108 et seq. – post-award phase II 39 – pre-award phase II 23 et seq. – prevalent party under an arbitration agreement Õ Composition of the tribunal/unequal standing in the appointment of arbitrators – public policy defense II 307 – recognition II 40 et seq., 180 et seq., 191 – recognition v. validity II 181 – recognition, burden of proof II 176a et seq. – recognition, effects in arbitral proceedings II 187 et seq. – recognition, effects in court proceedings II 182 et seq. – recognition, more favorable national law Õ More-favorable-rights provision/on recognition of arbitration agreements – recognition, request under Art. II(3) II 270 et seq. – recognizability II 72 et seq. – referenced documents Õ “In writing” requirement/reference to any document containing an arbitration clause – referral to arbitration Prel. Rem. 27, Õ Referral to arbitration

Award

Index

– remedy for defective arbitration agreements II 49 et seq. – scope of application of Art. II II 22 et seq., 202 et seq. – scope, factual II 223 et seq., 261, V 204 et seq. – scope, personal II 243 et seq. – shareholder agreement I 29, Õ Arbitrability/ shareholder agreement – state entity Õ Arbitration agreement/legal entities under public law – submission to arbitration I 29 et seq., 87 et seq., II 68 et seq., VII 98 – successor II 249 et seq. – termination II 55 – third party II 150 et seq., 243 et seq., 257 et seq., V 255, 348, 431 – translation Õ Application for recognition and enforcement of awards/translation – validity II 13 et seq., 164 et seq., 299 et seq., IV 20, V 87, 108 et seq., 425 et seq. Arbitration, definition Prel. Rem. 2 et seq. Arbitrato irrituale Õ Informal arbitration Arbitrator I 27 et seq. Arbitrators’ names Õ Proper notice/lack of arbitrators’ names Argentina Õ Declarations made by Contracting States/Argentina Attorney fees Õ Public policy/attorney fees Australia Õ Declarations made by Contracting States/Australia, Õ Grounds for refusal of enforcement/additional grounds in Australia Authentic text of the NYC Annex I, Õ Languages/authentic languages of the NYC Authentication and certification of the award Õ Application for recognition and enforcement of awards/authentication and certification of the award Authority to conclude arbitration agreements Õ Arbitration agreement/conclusion via proxy Avail against other Contracting States XIV 6 et seq. Award Õ Application for recognition and enforcement of awards – adjudication bodies, other I 32 et seq. – a-national award I 105 et seq., V 525 – annulled award, enforcement Õ Award not yet binding/award set aside – annulment V 148 et seq., 385 et seq., VI 3, 15, Õ Award not yet binding/award set aside – applicability of the NYC I 136 – application to set aside Õ Award not yet binding/award set aside – authentication and certification Õ Application for recognition and enforcement of awards/authentication and certification of the award

703

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Index Award – award suspended Õ Award not yet binding/ award suspended – binding award I 79 et seq., III 9, Õ Award not yet binding/binding, definition – carrying out Õ Award/enforcement – challenge Õ Award not yet binding/award set aside – confirmation Õ Award/recognition – consent award Õ Award/on agreed terms – copy, certified Õ Application for recognition and enforcement of awards/copy of the award, certified – counter-claim defense III 23, V 29, 31 et seq., 216 et seq., 219 et seq. – defective Õ Grounds for refusal of enforcement, Õ Award/partial recognition and enforcement – definition I 13 – denomination I 24 et seq. – discrimination of foreign awards III 24 et seq. – dissenting opinion IV 14 – due process violation Õ Due process – duly authenticated Õ Application for recognition and enforcement of awards/original award, duly authenticated – emergency arbitrator decision I 71a et seq. – enforcement Prel. Rem. 5, 6 et seq., 13, 24, I 164, III 7 et seq., IV 14 et seq., V 1 et seq., 365, VI 2 et seq., Õ Application for recognition and enforcement of awards – enforcement fee III 26 et seq. – enforcement, application of the lex fori Õ Court proceedings/lex fori, application on recognition and enforcement – enforcement, grounds for refusal Õ Grounds for refusal of enforcement – enforcement, jurisdiction Õ Court proceedings/jurisdiction over recognition and enforcement of awards – enforcement, limitation period V 415 – enforcement, right to choose action Õ Exequatur/parallel entitlement – enforcement, time limit Õ Court proceedings/time limit on recognition and enforcement of awards – ex aequo et bono I 163, V 236 et seq., 338, 341, 459, 572 – final Prel. Rem. 4, I 55 et seq., Õ Award not yet binding – foreign I 93 et seq. – governing law I 14 et seq., V 409 et seq. – interim award Õ Interim award, enforceability – interim award ordering reimbursement of advances on costs I 72 et seq. – interlocutory decision I 66 et seq. – interpretation, functional I 40

704

New York Convention – non-domestic award I 114 et seq. – non-domestic award, interpretation in China I 129 – non-domestic award, interpretation in the US I 122 et seq. – not yet binding on the parties Õ Award not yet binding – on agreed terms I 74 et seq. – on arbitrators’ fees V 536 – on interim or provisional measures I 65 – partial award I 62 et seq., V 367 et seq., 371 – partial recognition and enforcement V 81 et seq., 252 et seq., 258 et seq., 449, 519a – pending setting-aside proceedings Õ Award not yet binding/pending setting-aside proceedings – preclusive effect Õ Award/res iudicata – presumptive obligation to recognize and enforce III 7 et seq. – procedural order I 57 – provisional enforcement III 19 – qualification as award I 20 et seq. – recognition Prel. Rem. 22 et seq., I 164, III 7 et seq., IV 14 et seq., Õ Application for recognition and enforcement of awards – res iudicata Prel. Rem. 23, I 55, III 9, V 357, 386, 431, 436, 555 – review of the award Õ Grounds for refusal of enforcement/scope of court review of the award – review of the merits of the award Õ Grounds for refusal of enforcement/review of the merits of the award – set aside Õ Award not yet binding/award set aside – set-off defense III 23, V 209 et seq. – subject matter, no restriction I 161 et seq. – temporary decision I 66 et seq., 69 et seq. – third party V 255, 348, Õ Award/counterclaim defense – translation Õ Application for recognition and enforcement of awards/translation – validity VI 7, 18 Award not yet binding V 351 et seq. – authority competent for suspension V 403 et seq. – award set aside Prel. Rem. 29 et seq., V 357, 377 et seq., 380, 412, 556, VII 43, 88, Õ Enforcement under the European Convention – award set aside after enforcement V 416 et seq. – award suspended V 395 et seq. – binding, definition V 357 et seq. – burden of proof V 353a, 356, 359 – discretion of the court to enforce the award V 5, 49, 74 et seq., 351 – enforcement under more favorable domestic law V 390, Õ More-favorable-rights provi-

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Index

– – – – –

sion/on the recognition and enforcement of awards enforcement under the European Convention V 392 et seq., VII 88 et seq., Õ European Convention pending setting-aside proceedings V 380, VI 4 et seq. recognition of setting-aside decision V 394a stay of enforcement proceedings at the seat of arbitration V 397 et seq. time limit, expiration V 415

B Bar admission Õ Flawed proceedings/bar admission of party representative Best practice Õ Public policy/best practice Bilateral agreements on recognition and enforcement VII 20 et seq., Õ Multilateral agreements on recognition and enforcement – choice between the NYC and bilateral agreements VII 23 et seq. Bilateral investment treaties (BITs) Õ Investment arbitration Bill of exchange V 207 et seq. Bill of lading containing an arbitration clause Õ “In writing” requirement/bill of lading, Õ “In writing” requirement/reference to any document containing an arbitration clause Bindend advies Õ Informal arbitration Binding award Õ Award not yet binding/binding, definition Blank signature Õ “In writing” requirement/ blank signature Blanket referral to the NYC Õ More-favorablerights provision/blanket referral to the NYC Bona fides Õ Good faith Boycott legislation V 583 Bribery Õ Illegality Browse-wrap Õ “In writing” requirement/clickwrap and browse-wrap Brussels I Regulation Õ Council Regulation (EC) No. 44/2001 Brussels I Regulation (Recast) Õ Regulation of the European Parliament and of the Council (EU) No. 1215/2012 Burden of proof – application for recognition and enforcement Õ Application for recognition and enforcement of awards/burden of proof – award not yet binding Õ Award not yet binding/burden of proof – conclusion of an arbitral agreement Õ Arbitration agreement/burden of proof for existence of an arbitration agreement, Õ Arbitration agreement/recognition, burden of proof – grounds for refusal of enforcement Õ Grounds for refusal of enforcement/ burden of proof

Comity

Index

– “in writing” requirement Õ “In writing” requirement/burden of proof – referral to arbitration Õ Referral to arbitration/burden of proof – security Õ Security/burden of proof C Calculation error Õ Public policy/calculation error Calvo doctrine Õ Panama Convention/Calvo doctrine Capable of settlement by arbitration Õ Arbitrability Capacity to conclude an arbitration agreement Õ Arbitration agreement/capacity of the parties Causality Õ Composition of the tribunal/causality between violation and resulting award, Õ Due process/causality between violation and resulting award, Õ Flawed proceedings/causality between procedural irregularity and resulting award, Õ Public policy/ causality between violation and resulting award, Õ Tribunal/excess of competence, causality Certification – of the arbitration agreement Õ Arbitration agreement/certification – of the award Õ Application for recognition and enforcement of awards/authentication and certification Challenge of arbitrators Õ Tribunal/challenge of arbitrators Charges for recognition and enforcement of awards Õ Award/enforcement fee Charter party Õ “In writing” requirement/ charter party Cherry picking Õ More-favorable-rights provision/mixing multiple enforcement regimes China Õ Declarations made by Contracting States/China, Õ Place of arbitration/determination in China Choice of forum clause II 47, V 229 et seq. Choice of law clause – and choice of forum clause Õ Arbitrability/ combined choice of law and choice of forum clause – law governing the arbitral proceedings V 271 – law governing the arbitration agreement Õ Arbitration agreement/choice of law – law governing the merits V 434 et seq. Click-wrap Õ “In writing” requirement/clickwrap and browse-wrap Colonial clause Õ Geneva Treaties/colonial clause Colonies Õ Contracting States to the NYC/ colonies, dependent territories Comity Õ Public policy/comity among States

705

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Index Commercial agent law Commercial agent law Õ Public policy/commercial agent law Commercial reservation Õ Reservation/commercial reservation Company law Õ Public policy/company law Competence for authentication and certification of the award Õ Application for recognition and enforcement of awards/authentication and certification, competence Competence of the tribunal Õ Tribunal/competence Competence-competence II 297, 299, Õ Separability Competition law Õ Public policy/competition law Composition of the tribunal V 269 et seq. – absence of party agreement V 275 et seq. – agreement by the parties V 270 et seq. – appointment of arbitrators V 280 – appointment of arbitrators, form V 285 – arbitrator qualification Õ Composition of the tribunal/qualification of arbitrators – causality between violation and resulting award V 300 et seq. – estoppel V 306 et seq. – gaps in the party agreement V 276 – governing rules V 270 et seq. – impartiality of the tribunal Õ Tribunal/impartiality – implied party agreement V 271 – incapacity of arbitrators V 292 – lex arbitri V 275 et seq. – mandatory provisions of the lex arbitri V 272 et seq. – modification of the party agreement V 279 – notice of appointment, lack of designation of the arbitrators’ names Õ Proper notice/lack of arbitrators’ names – number of arbitrators V 286 et seq. – preclusion V 305 et seq. – public policy violation V 527 et seq. – qualification of arbitrators V 280, 291 et seq. – time limits, violation V 297 – truncated tribunal V 349 – unequal standing in the appointment of arbitrators V 282 et seq., 527 – waiver V 305 et seq. Conciliation I 32 Conference on International Commercial Arbitration Õ UN Conference on International Commercial Arbitration Confidentiality III 13 Confirmation judgment Õ Exequatur Conflict of interest Õ Composition of the tribunal/impartiality of the tribunal Conflict of law rules in the NYC II 227 et seq., V 85, 105

706

New York Convention Conflicts between the NYC and other treaties VII 28 et seq. Consent Õ Arbitration agreement/consent Consolidation of arbitral proceedings Õ Flawed proceedings/consolidation of proceedings Constituent elements of the arbitration agreement Õ Arbitration agreement/elements Constitution of the tribunal Õ Composition of the tribunal, Õ Public policy/constitution of the tribunal Constitutional principles Õ Public policy/constitutional principles Consumer – arbitrability Õ Arbitrability/consumer law – contracts containing an arbitration clause V 458 et seq. – mandatory legislation Õ Public policy/consumer law Context Õ Interpretation of the NYC/methods Contract addendum Õ “In writing” requirement/contract addendum Contracting States to the NYC Annex II, Õ Accession to the NYC – colonies, dependent territories X 10 et seq. – evidence XII 12 – federal States XI 9 et seq. Contractual autonomy of the parties V 17, 273, 432, Õ European Convention/party autonomy – limits V 58, 205, 272 et seq. – public interest V 58, 72 Contractual penalty Õ Public policy/contractual penalty Contradictory award Õ Public policy/contradictory award Contradictory behavior Õ Good faith/contradictory behavior, Õ Preclusion/contradictory behavior Convention on Jurisdictional Immunities of States and Their Property (UN) Õ UN Convention on Jurisdictional Immunities of States and Their Property Convention on the Execution of Foreign Arbitral Awards Õ Geneva Convention Convention on the Use of Electronic Communications in International Contracts (UN) Õ UN Convention on the Use of Electronic Communications in International Contracts Cook Islands Õ Accession to the NYC/Cook Islands Copy of the arbitration agreement, certified Õ Application for recognition and enforcement of awards/copy of the arbitration agreement Copy of the award, certified Õ Application for recognition and enforcement of awards/copy of the award, certified

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Index Copyright Õ Arbitrability/copyright Corporations’ capacity to enter into arbitration agreements Õ Arbitration agreement/corporations’ capacity Corruption V 464 et seq., Õ Illegality, Õ Public policy/bribery Costs Õ Security – allocation III 27, V 249, 536, 572 – court fees III 26 et seq. – delay in payment VI 9, 10 – recognition and enforcement of awards Õ Award/enforcement fee – refusal to advance costs II 316 – reimbursement of advances on costs as an award V 368a Council Regulation (EC) No. 44/2001 VII 110 et seq., Õ Regulation of the European Parliament and of the Council (EU) No. 1215/2012 – arbitration-related court proceedings VII 111 – entry into force Prel. Rem. 20 – exclusion of arbitration VII 111 et seq. – revision and perspective VII 113 et seq. – scope of application VII 110 et seq. Counter-claim defense Õ Application for recognition and enforcement of awards/counter-claim defense, Õ Award/counter-claim defense Country in which the award was made Õ Place of arbitration Court fees Õ Costs/court fees Court proceedings – adjournment of enforcement Õ Adjournment of enforcement of the award – application to set aside the award V 440 – declaratory judgment on validity of the arbitration agreement II 186 – interim measures Õ Provisional measures – interim relief Õ Provisional measures – jurisdiction over recognition and enforcement of awards III 17 et seq., Õ Award/ enforcement – jurisdiction over the existence of a valid arbitration agreement II 217 et seq. – lex fori, application on recognition and enforcement III 10 et seq., 20 et seq. – order to provide security Õ Security/court discretion – parallel proceedings under the European Convention II 324 – provisional measures Õ Provisional measures – referral to arbitration Õ Referral to arbitration – request to assist arbitration II 184, 222 – suspension of the award Õ Award not yet binding/award suspended

Defective arbitration agreement

Index

– termination of court proceedings Õ Referral to arbitration – time limit for raising objections in arbitral proceedings II 54 – time limit on recognition and enforcement of awards III 14 et seq., V 377, 415 – validity of the arbitration agreement, review II 299 et seq. Criminal conduct, prosecution V 465, Õ Illegality Criminal law Õ Public policy/criminal law Criticisms of the NYC Prel. Rem. 61 et seq. Cross examination Õ Inability to present one’s case/cross examination Cure of deficiencies Õ Arbitration agreement/ cure of deficiencies Custody Õ Arbitrability/custody D Damages Õ Public policy/damages De facto award Õ Award/qualification Declarations made by Contracting States X 10 et seq., Annex II – Argentina X 39 – Australia X 13 – China X 24 – declarations made X 11 et seq. – definition X 31 et seq., Õ Reservation – Denmark X 14, 25 – Djibouti X 15a – extension to other territories X 11 et seq. – France X 15 et seq. – inadmissible declarations X 45 – Malta X 41 – Mauritius X 16 – Netherlands X 17 – New Zealand X 18 et seq. – Norway X 42 – not stipulated by the NYC X 31 et seq. – notification of the UN Secretary-General XV 6 et seq. – Portugal X 26 et seq. – subsequent extension X 22 et seq. – Tajikistan X 43 – taking effect X 21 – uncovered territories X 30 – United Kingdom X 20, 28 – United States X 29 – Vietnam X 44 – Yugoslavia X 40 Declaratory judgment on validity of the arbitration agreement Õ Court proceedings/declaratory judgment on validity of the arbitration agreement Deemed service Õ Proper notice/deemed service Default Õ Due process/default proceedings, Õ Public policy/default of a party Defective arbitration agreement Õ Arbitration agreement/defective

707

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Index Defined legal relationship Defined legal relationship Õ Arbitration agreement/defined legal relationship Delay in payment Õ Costs/delay in payment Deliberations Õ Flawed proceedings/deliberations Delivery of the award Õ Flawed proceedings/ award, delivery Delocalized proceedings Õ Award/a-national award Denmark Õ Declarations made by Contracting States/Denmark Denunciation of the NYC Prel. Rem. 59 et seq., XIII 7 et seq. – alternative reasons for denunciation XIII 12 et seq. – cessation of extension to other territories XIII 17 et seq. – concerning dependencies of the Member State XIII 18 – notification of the UN Secretary-General XV 6 et seq. – procedure XIII 9 et seq. – relevance XIII 14 et seq. – taking effect XIII 10 – temporal effect XIII 19 et seq. – termination, other reasons XIII 11 et seq. – written notification XIII 8 Deposition of the NYC XVI 8 Design Õ Arbitrability/design Differences II 60 et seq. – between persons I 138 et seq., Õ Arbitration agreement/capacity of the parties – in respect of a defined legal relationship Õ Arbitration agreement/differences Disclosure of legal opinion Õ Inability to present one’s case/disclosure of legal opinion Disclosure of partiality Õ Composition of the tribunal/impartiality of the tribunal Disclosure requests Õ Inability to present one’s case/disclosure requests Discretion – of the court Õ Adjournment of enforcement of the award/court discretion, Õ Arbitrability/discretion to recognize and enforce, Õ Award not yet binding/discretion of the court to enforce the award, Õ Grounds for refusal of enforcement/discretion – of the tribunal Õ Flawed proceedings/discretion of the tribunal Discrimination against foreign awards Õ Award/discrimination of foreign awards Dispute Õ Arbitration agreement/differences Dispute board I 32 Dissenting opinion IV 14 Distributorship contract Õ Arbitrability/distributorship contract Divorce Õ Arbitrability/divorce

708

New York Convention Djibouti Õ Declarations made by Contracting States/Djibouti Doctrine of forum non conveniens Õ Forum non conveniens Doctrine of merger Õ Exequatur/doctrine of merger Doctrine of separability Õ Separability Doctrine of severability Õ Separability Documents required for recognition and enforcement of awards Õ Application for recognition and enforcement of awards Documents-only arbitration Õ Inability to present one’s case/right to oral hearing Domain name dispute Õ Arbitrability/domain name dispute Domestic arbitration agreement Õ Arbitration agreement/domestic agreement Domestic award Õ Award/applicability of the NYC Double exequatur Õ Exequatur/principle of double exequatur, Õ Geneva Convention Double recovery Õ Public policy/double recovery Drafting history Prel. Rem. 48 et seq., I 7 et seq., II 4 et seq., 193 et seq., III 3 et seq., IV 4 et seq., V 6 et seq., 87, 132 et seq., 200, 265 et seq., 355 et seq., 422 et seq., 482 et seq., VI 3, VII 8 et seq., VIII 3 et seq., IX 4 et seq., X 3 et seq., XI 3 et seq., XII 3 et seq., XIII 3 et seq., XIV 3 et seq., XV 3 et seq., XVI 4 et seq. Due process V 128 et seq., Õ Inability to present one’s case, Õ Proper notice – burden of proof Õ Grounds for refusal of enforcement/burden of proof – causality between violation and resulting award V 142 et seq., 517a et seq. – default proceedings V 157 – duty to evaluate party submissions V 184 – equal treatment guarantee V 170 et seq. – ex officio court control V 154 – failure to object in setting-aside proceedings V 148 et seq. – fairness, minimal requirements of due process V 140 – governing law V 136 et seq. – inconsistent award V 186 – other grounds, relation V 150 et seq. – party-agreed standards V 151 et seq. – prior disclosure of the tribunal’s legal opinion V 195 – public policy Õ Public policy/due process – public policy, relation V 153 et seq., 514, Õ Public policy/international due process – surprise decision V 192 et seq., 342, 542 – translator, interpreter V 163, 183 – uniform standard V 141

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Index – unreasoned award V 185, 341, 343, 557 et seq. – violation V 128 et seq. – waiver of procedural irregularities V 145 et seq. Duly authenticated award Õ Application for recognition and enforcement of awards/original award, duly authenticated E EC law Õ Public policy/EC law Economic effect of NYC accession Prel. Rem. 20a ECOSOC Õ UN Economic and Social Council Electronic communication Õ “In writing” requirement/electronic communication Electronic Communications Convention Õ UN Convention on the Use of Electronic Communications in International Contracts Electronic signature Õ “In writing” requirement/electronic signature Email – conclusion of arbitration agreement via email Õ “In writing” requirement/email – transmission of the award V 346 Embargo Õ Illegality Emergency arbitrator Õ Award/emergency arbitrator decision Employment law Õ Public policy/employment law Enforcement judgment IV 15, Õ Application for recognition and enforcement of awards, Õ Award/enforcement English Arbitration Act 1975 II 263 English Arbitration Act 1996 II 263, V 247 – appeal on a question of law Prel. Rem. 36 Equal treatment of the parties V 170 et seq., Õ Due process/violation Equity Õ Application for recognition and enforcement of awards/equity Estoppel Õ Preclusion/estoppel – composition of the tribunal Õ Composition of the tribunal/estoppel – contradictory behavior Õ Good faith/contradictory behavior, Õ Preclusion/contradictory behavior – defective arbitration agreement Õ Preclusion/defective arbitration agreement, Õ Arbitration agreement/estoppel – regarding right to request referral to arbitration Õ Waiver/of the right to request referral to arbitration European Convention Annex V 3 – award not yet binding Õ Award not yet binding/enforcement under the European Convention – differences to the NYC VII 85 et seq. – form requirements for arbitration agreements II 172 et seq., VII 86 et seq.

Excess of jurisdiction

Index

– influence on the lex arbitri V 345 – law applicable to arbitration agreements II 237 – more favorable provisions VII 62, 84 – NYC, relation II 168, VII 62, 80 et seq. – parallel court proceedings Õ Court proceedings/parallel proceedings under the European Convention – party autonomy VII 90 et seq. – practical relevance VII 75 et seq. – preclusion of objections V 394, VII 89 – provisional measures Õ Provisional measures/under the European Convention – public policy exception Õ Public policy/European Convention – recognition and enforcement of awards VII 88 et seq. – recognition of arbitration agreements II 170 et seq., VII 86 et seq. – remedy for defective arbitration agreement II 176 – scope of application II 216, V 345, VII 78 et seq. – time limits for referral to arbitration II 280 et seq., Õ Referral to arbitration/request European Convention on State Immunity (1972) I 140 Evidence Õ Flawed proceedings/taking of evidence, Õ Inability to present one’s case/access to evidence – access V 189 – exclusion V 174 et seq., 541 – expert evidence V 177, 340 – illegal evidence V 554 – “in writing” requirement, evidentiary nature Õ “In writing” requirement/evidentiary nature – presentation V 182, 334 – right to submit V 174 et seq. – taking of evidence Õ Public policy/evidence, taking – witness evidence V 176, 318, 332 et seq., 552 Ex aequo et bono Õ Award/ex aequo et bono, Õ Grounds for refusal of enforcement/ ex aequo et bono decisions Ex officio Õ Grounds for refusal of enforcement/ex officio Ex parte application for enforcement of awards Õ Application for recognition and enforcement of awards/inter partes application Ex parte communication Õ Public policy/ex parte communication Excess of competence Õ Tribunal/excess of competence Excess of jurisdiction Õ Tribunal/excess of jurisdiction

709

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Index Exchange Exchange – of letters and telegrams Õ “In writing” requirement/letters and telegrams – of statements of claim and defense Õ “In writing” requirement/exchange of statements of claim and defense Exchange control Õ Public policy/exchange control Exequatur I 47 et seq., V 360, Õ Award/enforcement – doctrine of merger I 47, IV 15, V 413 et seq. – exequatur sur exequatur ne vaut I 49 – parallel entitlement I 50 et seq. – principle of double exequatur Prel. Rem. 46, 53, I 39, IV 16, V 15, 353, 355, 357, VII 64, Õ Geneva Convention – right to choose enforcement action Õ Exequatur/parallel entitlement Expenses – allocation of costs Õ Costs/allocation – recognition and enforcement of awards Õ Award/enforcement fee – refusal to advance costs Õ Costs/refusal to advance costs Expert Õ Flawed proceedings/expert Expert determination I 32, 33, V 340 Expert knowledge Õ Inability to present one’s case/expert knowledge Extension – of deadlines Õ Flawed proceedings/extension of deadlines – of scope of the arbitration agreement Õ “In writing” requirement/extension of scope of the arbitration agreement – of the contract Õ “In writing” requirement/ extension of the contract – to other territories Õ Declarations made by Contracting States F Facts of common knowledge Õ Inability to present one’s case/facts of common knowledge Family law Õ Arbitrability/family and succession law Favor arbitrandum Õ Pro-enforcement bias Favor recognitionis Õ Pro-enforcement bias Fax (telecopy) Õ “In writing” requirement/fax (telecopy) Federal Arbitration Act (US) I 122, V 23, 25, 77 – implementation of the NYC I 122 et seq. Federal States Õ Contracting States to the NYC/ federal States Fee Õ Award/enforcement fee Finality Õ Award/final Flawed proceedings V 308 et seq. – award, delivery V 346 – bar admission of party representative V 325

710

New York Convention – causality between procedural irregularity and resulting award V 316 et seq. – commencement and early stages of the proceedings V 324 et seq. – consolidation of proceedings V 326 et seq. – definition of proceedings V 314 – delegation of proceedings V 340 – deliberations V 349 – discretion of the tribunal V 247, 315, 329 et seq., 335, 388, 390 – expert V 340 – extension of deadlines V 335 – failure to raise objection Õ Flawed proceedings/waiver, preclusion – governing rules V 309 et seq. – gravity requirement V 319 – hearing venue V 331 – language V 336 – law on substance V 337 – notification of decision on the tribunal’s competence V 328 – oral hearing, refusal to schedule V 329a et seq. – pre-arbitration proceedings V 324a – prejudice requirement V 320 et seq. – reasons for the award V 341 et seq. – rendition of the award V 338 et seq. – rules agreed upon by the parties V 310 et seq., 313, 329 – rules determined by the lex arbitri V 312, 313 – taking of evidence V 329 et seq. – time limit, violation V 347 – waiver, preclusion V 46 et seq., 322, 334 – witness hearing V 332 et seq. Floating arbitration Õ Award/a-national award Foreign award Õ Award/foreign Forum non conveniens III 22, V 22, 25 et seq. Framework agreement Õ Arbitration agreement/framework agreement France Õ Declarations made by Contracting States/France Fraud Õ Public policy/fraud Functus officio I 55 Fundamental rights Õ Public policy/fundamental rights Future of the NYC Prel. Rem. 69 et seq. G Gambling Õ Public policy/gambling General terms and conditions Õ Arbitration agreement/general terms and conditions Geneva Convention Prel. Rem. 45, IV 4 et seq., V 88, 353, 355, Annex V 2 – arbitrability V 422 et seq. – cease to be in effect VII 3, 7 et seq., 66 et seq. – differences to NYC V 11 et seq.

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Index – public policy V 482 – refusal of enforcement V 132, 265 Geneva Protocol Prel. Rem. 43, VII 3, 7 et seq., 64 et seq., Annex V 1 Geneva Treaties Prel. Rem. 41 et seq., VII 3, 64 et seq., Õ Geneva Convention, Õ Geneva Protocol – colonial clause VII 70 – practical relevance VII 3, 7 et seq., 71 et seq. – replacement by the NYC VII 66 et seq. Good faith Õ Preclusion/good faith – bad faith VI 9 – contradictory behavior II 53, 272, V 48 et seq., 103, 147 – interpretation of the NYC Prel. Rem. 80 Grounds for refusal of enforcement Õ Arbitrability, Õ Award not yet binding, Õ Due process, Õ Flawed proceedings, Õ Inability to present one’s case, Õ Proper notice, Õ Public policy, Õ Rules on substance, Õ Time limit – additional grounds in Australia V 27 – additional grounds in the United States V 22 et seq. – award exceeding submissions of the parties Õ Ne ultra petita, Õ Grounds for refusal of enforcement/excess of tribunal’s competence – award set aside Õ Award not yet binding/ award set aside – award suspended Õ Award not yet binding/ award suspended – burden of pleading Õ Grounds for refusal of enforcement/grounds to be pleaded by the parties – burden of proof V 125 et seq., Õ Application for recognition and enforcement of awards/ burden of proof – courts’ duty to examine enforcement conditions V 13, 40, 448, 517, 519 et seq. – discretion V 74 et seq. – ex aequo et bono decisions V 236 et seq. – ex officio V 13, 40 – excess of tribunal’s competence Õ Tribunal/ excess of jurisdiction – exhaustive list V 14, 19, 21 et seq. – foreign court decisions, effect V 518a et seq. – forum non conveniens V 25 et seq. – grounds to be pleaded by the parties V 39 – improper composition of the tribunal Õ Composition of the tribunal – incapacity of the parties to conclude an arbitration agreement Õ Arbitration agreement/capacity of the parties – invalidity of the arbitration agreement V 92 et seq. – manifest disregard of the law V 22 et seq. – matter not arbitrable Õ Arbitrability

Hypothetical draft convention

Index

– non-participation in arbitral proceedings V 62 – objections arising after the award V 28 et seq. – overview Prel. Rem. 67, V 85 – partial recognition and enforcement Õ Award/partial recognition and enforcement – participation in arbitral proceedings without timely objection to defects V 51 et seq. – preclusion and limits V 46 et seq., 58 et seq., 257, Õ Grounds for refusal of enforcement/ preclusion under the European Convention – preclusion under the European Convention VII 89 – preclusion, applicable law V 48 et seq. – preclusion, prerequisites V 50 – predominant position of one of the parties Õ Composition of the tribunal/unequal standing in the appointment of arbitrators – proper notification, lack of Õ Proper notice – remedies at the seat of the arbitration, failure to make use of V 63 et seq. – review of the merits of the award V 19 et seq., 235 et seq., 244, 299, 337, 344, 361 et seq., 561 et seq. – right to be heard Õ Inability to present one’s case – scope of court review of the award V 19, 456, Õ Grounds for refusal of enforcement/ review of the merits of the award – stay of enforcement at the seat of arbitration Õ Award not yet binding/stay of enforcement at the seat of arbitration – unreasoned awards Õ Due process/unreasoned awards – violation of parties’ choice of substantive law Õ Grounds for refusal of enforcement/ excess of tribunal’s competence – waiver V 68 et seq., 73, 257 et seq. Group of companies Õ Arbitration agreement/ group of companies, Õ “In writing” requirement/group of companies Group of contracts V 222 et seq., Õ Arbitration agreement/third party, Õ Arbitration agreement/multiple contracts H Handwritten Õ “In writing” requirement/ handwritten Hearing venue Õ Flawed proceedings/hearing venue History of the NYC Prel. Rem. 41 et seq., Õ Geneva Treaties, Õ Drafting history Holy See Õ Accession to the NYC/Holy See Hong Kong X 24, XIII 18 Hypothetical draft convention Prel. Rem. 69

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Index ICC Task Force Report I ICC Task Force Report Prel. Rem. 100 et seq. ICSID arbitration I 151 et seq., Õ Investment arbitration – Additional Facility Rules VII 94 – enforcement of ICSID awards I 157 – enforcement of ICSID awards under the NYC I 159, VII 93 et seq. – ICSID Convention of 1965 I 152, VII 92 et seq. – public policy VII 92 Illegality – arbitrability Õ Arbitrability/illegality (bribery, corruption, etc.) and embargos – civil claims in connection with illegality V 465, 575 et seq. – illegally obtained evidence V 554 – procedural fraud V 553 Immunity Õ Sovereign immunity Immunity of States and property Õ UN Convention on Jurisdictional Immunities of States and Their Property Impartiality of the tribunal Õ Composition of the tribunal/impartiality of the tribunal, Õ Public policy/impartiality of the tribunal, Õ Tribunal/impartiality Implementing legislation Prel. Rem. 97 et seq., 102 et seq. Import or export restrictions Õ Public policy/ import or export restrictions “In writing” requirement II 3, 73 et seq. – accessibility of information II 131 – arbitral clause in a contract or arbitration agreement II 92 et seq. – bill of lading II 147 et seq. – blank signature II 95 – burden of proof II 176a – charter party II 147 et seq. – classification II 74 et seq. – click-wrap and browse-wrap II 130a – contract addendum II 145 et seq. – contract conclusion, relation II 85 et seq. – contractual elements requiring written form II 87 et seq. – critique Prel. Rem. 63 et seq., II 17 – details II 91 et seq. – electronic communication II 129 et seq., Õ UN Convention on the Use of Electronic Communications in International Contracts – electronic signature II 129a – email Prel. Rem. 66, II 120, 129, 130, Õ “In writing” requirement/unlisted options, Õ Recommendation (UNCITRAL) regarding the interpretation of Art. II(2) and VII(1) – European Convention, relation II 168 et seq. – evidentiary nature II 77 – evidentiary purpose II 79 et seq.

712

New York Convention – exchange of statements of claim and defense II 122 – extension of scope of the arbitration agreement II 88 – extension of the contract II 145 et seq. – factual situations II 124 et seq. – fax (telecopy) II 130 – group of companies II 155, 251 et seq. – handwritten II 94 – history II 9, 11 et seq., 15 – individual need for protection II 84a – interaction with the lex arbitri II 166 et seq. – legal character II 74 – letters and telegrams II 97 et seq. – minimum and maximum rule II 76 – modern means of communication II 109, Õ Recommendation (UNCITRAL) regarding the interpretation of Art. II(2) and VII(1) – modernization II 17 et seq. – more lenient national law Õ More-favorablerights provision/form requirements – non-exhaustive character II 76 et seq., 104 et seq., Õ “In writing” requirement/unlisted options, Õ Recommendation (UNCITRAL) regarding the interpretation of Art. II(2) and VII(1) – novation II 145 et seq. – oral extension of written contract V 225a – oral or tacit acceptance II 125 – rationale II 78 et seq., 108 et seq. – record in any form II 117 et seq. – reference to any document containing an arbitration clause II 123, 145 et seq. – remedy for lack of form Õ Arbitration agreement/cure of deficiencies – settlement II 145 et seq. – signature, signed by the parties II 94 et seq. – stages of arbitration II 90 – successor II 152 et seq. – telex (teleprinter) II 130 – third party beneficiary II 150 et seq. – UNCITRAL Recommendation Õ Recommendation (UNCITRAL) regarding the interpretation of Art. II(2) and VII(1) – uniform rule II 75 – unilaterally written form II 125 et seq. – unlisted options II 103 et seq., 112 – warning purpose II 81 et seq. Inability to present one’s case V 169 et seq., Õ Evidence – access to evidence V 188 et seq., 551, Õ Evidence – contradictory award V 186 – cross examination V 176 – disclosure of legal arguments Õ Due process/ surprise decision – disclosure of legal opinion V 195

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Index – – – – –

disclosure requests V 174 equal treatment V 170 et seq. expert evidence Õ Evidence/expert evidence expert knowledge V 191 external events preventing parties’ appearance V 178, 181, 548 – facts of common knowledge V 191 – language of hearings V 183, 336, 525 – notice on expert report Õ Evidence/expert evidence – out of court knowledge V 191 – right to comment V 187 et seq. – right to have submissions considered V 184 et seq. – right to make submissions V 178 et seq. – right to oral hearing V 179 et seq., 548 – right to submit evidence Õ Evidence – surprise decision Õ Due process/surprise decision – time limits set by the tribunal V 172 et seq., 335, 545 – unreasoned award V 185 – video conference V 552 Incapable of being performed Õ Arbitration agreement/incapable of being performed Incapacity defense Õ Grounds for refusal/incapacity of the parties to conclude an arbitration agreement Incapacity of arbitrators Õ Composition of the tribunal/incapacity of arbitrators Incapacity of the parties to conclude an arbitration agreement V 97 et seq., 428, Õ Arbitrability/legal incapacity, Õ Arbitration agreement/capacity of the parties Independence of the arbitration agreement Õ Separability Informal arbitration I 36 et seq. – bindend advies I 36, 42 – lodo irrituale I 37 – lodo irrituale, enforcement I 39 et seq. Infra petita V 252 Inoperative Õ Arbitration agreement/inoperative Insolvency – arbitrability Õ Arbitrability/insolvency – public policy Õ Public policy/insolvency law Institutional rules V 406 et seq. Insufficient notice period Õ Proper notice/insufficient notice period Intellectual property Õ Arbitrability/intellectual property Intent of the parties to conclude an arbitration agreement II 68 et seq. Inter partes application for enforcement Õ Application for recognition and enforcement of awards/inter partes application

Jurisdiction

Index

Inter-American Commercial Arbitration Commission Õ Panama Convention/Inter-American Commercial Arbitration Commission, arbitration rules Inter-American Convention on International Commercial Arbitration Õ Panama Convention Interest Õ Public policy/interest Interim award, enforceability I 65 et seq., V 367 et seq., 369 et seq. Interim measures Õ Provisional measures Interim relief Õ Provisional measures Interlocutory award, enforcement Õ Award/ interlocutory decision, Õ Interim award, enforceability Internal tribunals I 44 et seq. International Court of Justice VIII 12 International legal principles V 239 et seq. International public policy Õ Public policy Internationality requirement for awards I 134 Internationally mandatory rules Õ Arbitrability/internationally mandatory rules Internet arbitration Õ Place of arbitration/internet arbitration Interpretation of the NYC Prel. Rem. 72 et seq., Õ Travaux préparatoires, Õ Proenforcement bias, Õ Recommendation (UNCITRAL) regarding the interpretation of Art. II(2) and VII(1) – context Prel. Rem. 80, 84 et seq. – issues Prel. Rem. 92 et seq. – methods Prel. Rem. 78 et seq. – rules Prel. Rem. 72 et seq. Invalidity of the arbitration agreement Õ Arbitration agreement/validity, Õ Grounds for refusal of enforcement/invalidity of the arbitration agreement Investigation by the court Õ Public policy/investigation by the court Investment arbitration I 151 et seq., 160, II 151a, VII 92 et seq. – ICSID Convention Õ ICSID arbitration/ICSID Convention – non-ICSID arbitration I 160 – sovereign immunity Õ Sovereign immunity/ ICSID arbitration Iran-United States Claims Tribunal I 88 et seq. Iura novit curia V 448, 519, VII 41 J Juge d’appui VII 111 Jurisdiction Õ Public policy/jurisdiction, lack of – excess Õ Tribunal/excess of jurisdiction – over enforcement of awards Õ Award/enforcement

713

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Index Jurisdiction – over existence of a valid arbitration agreement Õ Court proceedings/jurisdiction over the existence of a valid arbitration agreement – over recognition and enforcement of awards Õ Court proceedings/jurisdiction over recognition and enforcement of awards K Kompetenz-Kompetenz Õ Competence-competence L Labor law Õ Arbitrability/labor law Lack of arbitrators’ names in the notice of the appointment of the arbitrator Õ Proper notice/lack of arbitrators’ names Lack of funding II 314, Õ Arbitration agreement/inoperative Language Õ Flawed proceedings/language, Õ Proper notice – authentic languages of the NYC XVI 5 et seq. – of hearings Õ Inability to present one’s case/ language of hearings, Õ Public policy/language – of notifications Õ Proper notice/language of notifications – translation to non-authentic languages XVI 3 Law or treaties allowing to avail oneself of an arbitral award Õ More-favorable-rights provision/law or treaties allowing to avail oneself of an arbitral award Law – governing the arbitral procedure Õ Due process/governing law – governing the conclusion of the arbitration agreement Õ Arbitration agreement/conclusion – governing the merits of the dispute Õ Choice of law clause/law governing the merits – governing the parties’ capacity to conclude arbitration agreements Õ Arbitration agreement/capacity of the parties – governing the validity of the arbitration agreement Õ Arbitration agreement/choice of law – governing the validity of the authentication of awards Õ Application for recognition and enforcement of awards/authentication, law governing the validity – of the enforcement State V 49, 61 – of the seat of arbitration V 206, 262, 264, 275 et seq., 312, Õ lex arbitri – on substance Õ Rules on substance Leave for enforcement V 413 et seq., Õ Exequatur/principle of double exequatur Legal entities under public law Õ Arbitration agreement/legal entities under public law

714

New York Convention Legal successor Õ Arbitration agreement/third party Legislative history Õ Interpretation of the NYC/ methods Letter Õ “In writing” requirement/letters and telegrams Lex arbitri V 52, 243, 247, 290, 329a Lex fori Õ Court proceedings/lex fori, application on recognition and enforcement Lex mercatoria Õ International legal principles Lex validitatis IV 12 Limitation Õ Time limit – public policy Õ Public policy/limitation, statutes of – recognition and enforcement Õ Court proceedings/time limit on recognition and enforcement of awards – referral to arbitration Õ Referral to arbitration Locus arbitri Õ Place of arbitration Lodo irrituale Õ Informal arbitration/lodo irrituale M Macao X 24, XIII 18 Malta Õ Declarations made by Contracting States/Malta Mandatory law claims Õ Arbitrability/mandatory law claims, Õ Public policy/mandatory commercial law Manifest disregard of the law Õ Grounds for refusal of enforcement/manifest disregard of the law, Õ Public policy/manifest disregard of the law Matter not capable of settlement by arbitration Õ Arbitrability/legal incapacity, Õ Arbitrability/objective arbitrability Mauritius Õ Declarations made by Contracting States/Mauritius Maximum effectiveness Õ Multilateral agreements on recognition and enforcement/maximum effectiveness principle Maximum rule Õ “In writing” requirement/ minimum and maximum rule Mediation, conversion of settlement into award I 76 et seq. Member States to the NYC Õ Contracting States to the NYC MERCOSUR VII 27 Merger, doctrine of Õ Exequatur/doctrine of merger Merit-based defense Õ Award/counter-claim defense Merits of the award Õ Grounds for refusal of enforcement/review of the merits of the award Minimum rule Õ “In writing” requirement/ minimum and maximum rule

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Index Minors, protection of Õ Public policy/minors, protection of Model Law – adoption Prel. Rem. 33 – Art. 7 (form requirements) II 80, 84, 114 et seq., 123i – Art. 9 (interim measures) II 183a, 266 – Art. 31 (form and content of the award) V 117 – Art. 34 (setting aside an award) Prel. Rem. 31 et seq. – harmonizing effect Prel. Rem. 31 Model Law on International Commercial Arbitration Õ Model Law Modernization of Art. II Õ Recommendation (UNCITRAL) regarding the interpretation of Art. II(2) and VII(1) Montevideo Convention VII 27, 108 More-favorable-rights provision VII 35 et seq., Õ Council Regulation (EC) No. 44/2001 – action ex contractu VII 52 – addressee VII 37 et seq. – blanket referral to the NYC VII 53 et seq. – cherry picking Õ More-favorable-rights provision/mixing multiple enforcement regimes – conflict of law rules, reference to VII 58 – ex officio application VII 41 – form requirements VII 2, 48 – ICSID Convention Õ ICSID arbitration – iura novit curia VII 41 – law or treaties allowing to avail oneself of an arbitral award VII 49 et seq. – mixing multiple enforcement regimes II 179, VII 51, 59 et seq. – more favorable provisions under the European Convention VII 62, 84 – national law referring to the NYC VII 53 et seq. – notion VII 35 – on recognition and enforcement of awards VII 42 et seq. – on recognition of arbitration agreements II 178, VII 2, 45 et seq. – on requirements of application for recognition and enforcement of awards IV 37 – Panama Convention Õ Panama Convention – party request VII 40 et seq. – scope VII 58 – waiver VII 63 Moscow Convention VII 76 Multilateral agreements on recognition and enforcement VII 20 et seq., Õ Multilateral treaties on arbitration, Õ More-favorablerights provision – compatibility provision VII 17 et seq. – lex posterior derogat legi priori Õ Multilateral agreements on recognition and enforcement/ subsequently concluded agreements

OHADA Treaty

Index

– maximum effectiveness principle VII 18, 28, 33 et seq., Õ Pro-enforcement bias – more favorable agreement, determination VII 23 et seq. – previously concluded agreements VII 28 et seq., 49 et seq. – subsequently concluded agreements VII 31 et seq., 49 et seq. Multilateral treaties on arbitration Õ Arab Convention, Õ MERCOSUR, Õ Montevideo Convention, Õ Moscow Convention, Õ NAFTA, Õ OHADA Treaty, Õ Panama Convention, Õ Paris Agreement, Õ Riyadh Agreement N NAFTA VII 27 Nationalities of the parties I 133 Ne ultra petita V 245 et seq., 339 Netherlands Õ Declarations made by Contracting States/Netherlands New Zealand Õ Declarations made by Contracting States/New Zealand Non-binding award Õ Award not yet binding Non-contractual arbitration I 31, II 57 Non-contractual disputes, applicability of the NYC I 162 Non-signatory Õ Arbitration agreement/nonsignatory, Õ Arbitration agreement/third party Non-unitary States XI 9 et seq. Norway Õ Declarations made by Contracting States/Norway Notice Õ Proper notice – of appointment of the arbitrator Õ Proper notice/of the appointment of the arbitrator – of date and place of the hearing Õ Proper notice/of hearing details – of hearing details Õ Proper notice/of hearing details Notifications XV 6 et seq. Novation Õ “In writing” requirement/novation Null and void, arbitration agreement Õ Arbitrability/agreement null and void, Õ Arbitration agreement/null and void Number of arbitrators Õ Composition of the tribunal/number of arbitrators Nunc pro tunc V 251 O Object and purpose Õ Interpretation of the NYC/methods Objections arising after the award Õ Grounds for refusal of enforcement/objections arising after the award Objectives of the NYC Prel. Rem. 17 Obligation to enforce awards Õ Award/enforcement, Õ Pro-enforcement bias OHADA Treaty VII 27

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Index Onus of proof Onus of proof regarding application for recognition and enforcement Õ Application for recognition and enforcement of awards/burden of proof Oral extension of written contract Õ “In writing” requirement/oral extension of written contract Oral hearing Õ Flawed proceedings/oral hearing, refusal to schedule Oral or tacit acceptance Õ “In writing” requirement/oral or tacit acceptance Ordre public Õ Public policy Original award Õ Application for recognition and enforcement of awards/original award, duly authenticated P Palestine Õ Accession to the NYC/Palestine Panama Convention VII 95 et seq., Annex V 4 – Calvo doctrine VII 95 – differences to the NYC VII 102 et seq. – Inter-American Commercial Arbitration Commission, arbitration rules VII 103 et seq. – international arbitration, definition VII 99 – International Centre for Dispute Resolution VII 104 – NYC, relation VII 100 et seq. – practical relevance VII 95 et seq. – reciprocity requirement VII 99 – recognition and enforcement of awards VII 107 et seq. – recognition of arbitration agreements VII 105 et seq. – scope of application VII 97 et seq. – telex communication VII 105 Parallel entitlement Õ Exequatur/parallel entitlement Paris Agreement VII 77 Partial award, enforcement V 371, Õ Interim award, enforceability Partial recognition Õ Award/partial recognition and enforcement Party autonomy Õ Contractual autonomy of the parties Party consent Õ Arbitration agreement/consent Patent law Õ Arbitrability/patent, Õ Public policy/patent law Period of limitation Õ Limitation Permanent arbitral bodies I 85 et seq. Personal law of the parties to an arbitration agreement Õ Arbitration agreement/capacity of the parties Place of arbitration V 331, 405 et seq. – definition and determination I 99 et seq., II 26, V 116 et seq., 275, 354, 383 et seq., 403 et seq., Õ Territorial principle – determination in China I 129 – internet arbitration V 408

716

New York Convention – not yet determined II 33 et seq., 206, 235, V 406 et seq. – remedies Õ Grounds for refusal of enforcement/remedies at the seat of the arbitration, failure to make use of Portugal Õ Declarations made by Contracting States/Portugal Power of attorney – governing law II 45 – to conclude arbitration agreements Õ Arbitration agreement/conclusion via proxy Pre-arbitration proceedings, failure to conduct Õ Flawed proceedings/pre-arbitration proceedings Preceding regimes to the NYC Õ Geneva Treaties Preclusion Õ Good faith – contradictory behavior V 57 – defective arbitration agreement, remedies II 49 et seq. – estoppel V 55 – failure to make use of legal remedies V 63 et seq. – flawed proceedings Õ Flawed proceedings/ waiver, preclusion – flawed tribunal composition Õ Composition of the tribunal/preclusion – good faith V 57 – no participation in arbitral proceedings V 62, 334 – of grounds for refusal of enforcement of the arbitration agreement Õ Grounds for refusal of enforcement/preclusion and limits – preclusive effect of the award Õ Award/res iudicata – reliance V 50, 54, 57, 65 – waiver V 55 Principle of competence-competence Õ Competence-competence Principle of maximum effectiveness Õ Maximum effectiveness Privity of contracts II 243, Õ Arbitration agreement/third party Pro-arbitration bias V 5, 474, Õ Pro-enforcement bias Procedural efficiency II 54, V 30, 38, 54 Procedural fairness Õ Due process Procedural guarantees Õ Due process Procedural order Õ Award/procedural order Procedural public policy Õ Public policy/procedural public policy Procedural theory I 10, 116 et seq., Õ Territorial principle Pro-enforcement bias Prel. Rem. 88 et seq., I 5, 121, III 1, 7 et seq., IV 2, V 4, 41, 264, 315, VII 2, 5, Õ Pro-arbitration bias Proper notice V 155 et seq. – addressee of notification V 167 et seq.

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Index – deemed service V 168 – difficulties locating addressee Õ Proper notice/deemed service – form of notification V 159 et seq. – insufficient notice period V 165 – lack of arbitrators’ names V 155 – language of notifications V 161 et seq. – of hearing details V 156 et seq. – of the appointment of the arbitrator V 155, 164 et seq., 546 – of the arbitral proceedings V 156, 547 – timing of notification V 164 et seq. Prospective waiver doctrine Õ Arbitrability/ combined choice of law and choice of forum clause Protocol on Arbitration Clauses Õ Geneva Protocol Provisional enforcement of awards Õ Award/ provisional enforcement Provisional measures II 221, 266 et seq. – application of Art. II(3) II 183a, 221 – enforceability V 372 – interim measures as awards I 65 et seq., V 372 et seq. – under the European Convention II 268 et seq. – under the NYC I 65 et seq., II 266 et seq., V 367 et seq., 372 et seq. Proxy Õ Arbitration agreement/conclusion via proxy Public policy V 480 et seq. – abusive procedural determinations V 524 – aggravating procedural stipulations V 524 et seq. – arbitrability, relation V 492 – arbitration agreement Õ Arbitration agreement/public policy defense – Art. V(1)(b), relation V 514 – attorney fees V 572 – award set aside V 556 – best practice V 507 et seq. – bribery V 576 – calculation error V 571 – causality between violation and resulting award V 517a et seq. – comity among States V 512a – commercial agent law V 581b – company law V 581c – competition law V 579 – concept Prel. Rem. 68, 93, V 488 et seq. – conduct of the proceedings V 549 et seq. – constitution of the tribunal V 527 et seq. – constitutional principles V 583b – consumer law V 581 – contractual penalty V 567a – contradictory award V 558 – costs V 572 – criminal law V 575 et seq.

Public policy

Index

– damages V 567 et seq. – default of a party V 547 – domestic award, no less favorable standard V 505 – double recovery V 567 – due process V 537 et seq. – EC law Prel. Rem. 95, V 579, 581 – employment law V 581a – European Convention V 520 – evidence, taking V 551 et seq. – ex parte communication V 534 – exchange control V 582 – fact finding V 517 – foreign court decisions, effect V 518a et seq. – fraud V 553 – function and definition Prel. Rem. 94, V 480, 488 et seq. – fundamental principles pertaining to justice or morality V 560 et seq. – fundamental rights V 583b – gambling V 577 – Geneva Convention Õ Geneva Convention/ public policy – governing law V 493 – ICSID arbitration VII 92 – impartiality of the tribunal V 530 et seq. – import or export restrictions V 583 – insolvency law V 580 – interest V 569 et seq. – interests of the enforcement country V 586 – international best practice V 507 et seq. – international due process V 537 et seq. – international public policy V 5, 496 et seq., 511 – internationalized standards V 496 et seq. – investigation by the court V 517, 519 – jurisdiction, lack of V 523 – language V 525 – limitation, statutes of V 565 – limitations to public policy standard V 499 et seq. – mandatory commercial law V 578 et seq. – manifest disregard of the facts V 564 – manifest disregard of the law V 23 et seq., 563 – minors, protection of V 581 – national policy and interests V 585 et seq. – national sovereignty V 586 – obstructions V 491 – patent law V 583a – preclusion V 518 – procedural public policy V 522 et seq. – punitive damages V 567 – purpose and relevance V 489 – recognition and enforcement contrary to public policy V 515 et seq. – representation by a lawyer V 539a – res iudicata V 555

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Index Public policy – révision au fond V 561 et seq. – right to be heard V 539 et seq. – rules serving the State’s essential political, social or economic interests V 574 et seq. – safety-valve mechanism V 490 – secretary of the tribunal V 529 – security V 573 – separation of powers V 583b – sharia V 561, 569 – sovereignty of Contracting States over defining public policy V 494 et seq. – sovereignty of parliament V 583b – standard V 494 et seq. – States’ obligations under international law V 584 – statutes of limitation V 565 – subject matter V 515 et seq. – substantive law V 525 – substantive public policy V 559 et seq. – threshold, minimum V 504 – transnational public policy V 496 – typical issues V 521 et seq. – unlawful relief V 566 – unreasoned award V 557 – venue V 525 – violation V 3, 20, 480 et seq. – waiver V 518 Punitive damages V 248, 567 Q Qualification of arbitrators Õ Composition of the tribunal/qualification of arbitrators R Ratification of the NYC – formal requirements VIII 19 – instrument VIII 18 – number of instruments for coming into force XII 5 – relevance VIII 21 Ratione materiae Õ Arbitrability, Õ Arbitration agreement/capacity of the parties, Õ Incapacity of the parties to conclude an arbitration agreement Reasons for the award Õ Unreasoned award Reciprocity clause XIV 6 et seq., Õ Reservation/reciprocity reservation, Õ Panama Convention/reciprocity – waiver of the right to make reservations XIV 6 Recognition – and enforcement, application for Õ Application for recognition and enforcement of awards – and enforcement, distinction Prel. Rem. 21 – of arbitration agreements Õ Arbitration agreement/recognition – of awards Õ Award/recognition

718

New York Convention Recommendation (UNCITRAL) regarding the interpretation of Art. II(2) and VII(1) Prel. Rem. 66, 74, II 16 et seq., 111, 177, VII 47, Annex III, IV 2 Record in any form Õ “In writing” requirement/record in any form Referral to arbitration – burden of proof II 287 et seq. – court decision II 284 et seq. – court discretion II 322 et seq. – party requesting referral II 273 – prerequisites II 286 et seq. – refusal II 303 et seq. – request Prel. Rem. 27, II 270 et seq., 318 – time limits II 274 et seq., 280 et seq. – waiver II 274 et seq. Reform efforts Prel. Rem. 61 et seq. Refusal to advance costs Õ Costs/refusal to advance costs Refusal to refer to arbitration Õ Referral to arbitration Regulation of the European Parliament and of the Council (EU) No. 1215/2012 VII 110 et seq., 115 et seq. Relevance of the NYC Prel. Rem. 18 et seq., 38 et seq. Re-litigation of disputes Õ Award/res iudicata Remedies at the seat of the arbitration Õ Grounds for refusal of enforcement/ remedies at the seat of the arbitration, failure to make use of Report, 2008 UNCITRAL Report Õ Accession to the NYC/UNCITRAL Report (2008) Request for court assistance Õ Court proceedings/request to assist arbitration Request to refer to arbitration Õ Referral to arbitration/request Requirements for arbitrators Õ Composition of the tribunal/qualification of arbitrators Res iudicata Õ Award/res iudicata Reservation I 165 et seq., Annex II – admissibility X 34 et seq. – commercial reservation Prel. Rem. 8, 52, I 4, 165, 179 et seq., II 38 – definition X 33 – individual reservations made by the Contracting States X 31 et seq. – reciprocity reservation Prel. Rem. 8, 52, I 4, 165, 170 et seq., II 37, 123f, XIV 8, Õ Reciprocity clause – relationship between reservations I 188 et seq. – reservations following successions X 46 Restrictions on import and export of goods V 583 Retroactive application of the NYC Prel. Rem. 56 et seq., XII 6 et seq., 11 et seq.

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Index Review of the merits of the award Õ Grounds for refusal of enforcement/review of the merits of the award Révision au fond Õ Grounds for refusal of enforcement/review of the merits of the award, Õ Public policy/révision au fond Right – to be heard or to present one’s case Õ Inability to present one’s case – to be represented by a lawyer Õ Public policy/representation by a lawyer – to comment Õ Inability to present one’s case/ right to comment – to have submissions considered Õ Inability to present one’s case/right to have submissions considered – to make submissions Õ Inability to present one’s case/right to make submissions – to oral hearing Õ Inability to present one’s case/right to oral hearing Riyadh Agreement VII 27 Rules of procedure Õ Court proceedings/lex fori, application on recognition and enforcement Rules on substance – incorrect application V 244 – incorrect rules V 235 et seq. S Safety-valve mechanism Õ Arbitrability/safetyvalve mechanism, Õ Public policy/safetyvalve mechanism Scope of application – of Art. II (arbitration agreements) II 22 et seq., 202 et seq. – of the NYC I 11 et seq. – temporal scope of application of the NYC Õ Retroactive application of the NYC Seat of arbitration Õ Place of arbitration Second-look doctrine V 456, 579 Secretary of the tribunal Õ Public policy/secretary of the tribunal Securities law Õ Arbitrability/securities law Security – application to grant security VI 17 – burden of proof VI 19 – court discretion VI 18 et seq. – definition VI 2 – order to give suitable security VI 23 – payment VI 1, 10, 18, 22 – public policy Õ Public policy/security – recognition and enforcement proceedings III 13 – variations VI 23 et seq. Separability II 167, 294 et seq., V 110, 115, 464 Separation of powers Õ Public policy/separation of powers

Substantive public policy

Index

Set-off defense Õ Award/set-off defense Setting aside Õ Application to set aside or suspend the award, Õ Award not yet binding/award set aside, Õ Award not yet binding/pending setting-aside proceedings, Õ Court proceedings/application to set aside the award, Õ Due process/failure to object in setting-aside proceedings, Õ Model Law/ Art. 34 (setting aside an award), Õ Public policy/award set aside Settlement Õ Award/on agreed terms, Õ “In writing” requirement/settlement Shareholder agreement Õ Arbitrability/shareholder agreement, Õ Arbitration agreement/ shareholder agreement Shareholder resolution Õ Arbitrability/shareholder resolution Shareholder-corporation disputes, arbitrability Õ Arbitrability/shareholder-corporation disputes Sharia Õ Public policy/sharia Shortcomings of the NYC Prel. Rem. 62 et seq. Signature Õ “In writing” requirement/signature, signed by the parties, Õ Accession to the NYC/signature Signed by the parties Õ “In writing” requirement/signature Sovereign immunity – defense of sovereign immunity I 140 – execution of State property I 146 et seq. – ICSID arbitration I 154, 157 – implicit waiver I 143, 145 Sovereignty Õ Public policy/national sovereignty Sovereignty of parliament Õ Public policy/sovereignty of parliament Spirit of the Convention Prel. Rem. 17 State entities Õ Arbitration agreement/legal entities under public law State where the award was made Õ Place of arbitration State-controlled entities Õ Arbitration agreement/legal entities under public law Stay of litigation Õ Referral to arbitration Subject matter of the difference not capable of settlement by arbitration Õ Arbitrability Subjective arbitrability Õ Arbitration agreement/capacity of the parties, Õ Incapacity of the parties to conclude an arbitration agreement Submission agreement Õ Arbitration agreement/submission to arbitration Substantially more onerous conditions, prohibition III 25 et seq. Substantive public policy Õ Public policy/substantive public policy

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Index Succession Succession – arbitration agreement Õ Arbitration agreement/third party, Õ Arbitration agreement/ successor – form requirement for arbitration agreement Õ “In writing” requirement/successor – of States Õ Accession to the NYC/succession of States – succession law Õ Arbitrability/family and succession law Surprise decision Õ Due process/surprise decision T Tajikistan Õ Declarations made by Contracting States/Tajikistan Tax dispute Õ Arbitrability/tax dispute Telegrams Õ “In writing” requirement/letters and telegrams Telex (teleprinter) Õ “In writing” requirement/ telex (teleprinter), Õ Panama Convention/ telex communication Temporal scope of application of the NYC Õ Retroactive application of the NYC Termination – of court proceedings Õ Referral to arbitration – of the arbitration agreement Õ Arbitration agreement/termination – of the NYC Õ Denunciation of the NYC Terms of reference II 96, IV 24, V 53, 202, 241, 253, VII 89 Territorial principle I 5, 94 et seq., II 26 et seq., V 382 et seq., Õ Place of arbitration Territories – accession Õ Accession to the NYC/extension to territories – Contracting States Õ Contracting States to the NYC/colonies, dependent territories – declarations Õ Declarations made by Contracting States/extension to other territories, Õ Declarations made by Contracting States/uncovered territories – denunciation Õ Denunciation of the NYC/ cessation of extension to other territories Third party – award against third party Õ Award/third party – not having concluded the arbitration agreement Õ Arbitration agreement/third party – third party beneficiary Õ “In writing” requirement/third party beneficiary Time limit Õ Limitation – for arbitrator appointment Õ Composition of the tribunal/time limits, violation – for conducting the arbitral proceedings Õ Flawed proceedings/time limit, violation

720

New York Convention – for objections in arbitral proceedings Õ Court proceedings/time limit for raising objections in arbitral proceedings – for recognition and enforcement Õ Award/ enforcement, limitation period, Õ Award not yet binding/time limit, expiration, Õ Court proceedings/time limit on recognition and enforcement of awards – for referral to arbitration Õ Referral to arbitration/time limits – for supply of required documents for recognition and enforcement Õ Application for recognition and enforcement of awards/timeframe for supply of required documents – restricting the tribunal’s jurisdiction V 232 et seq. – set by the tribunal Õ Inability to present one’s case/time limits set by the tribunal Title of the NYC Prel. Rem. 21 et seq. Trade sanctions Õ Illegality Translation of the award Õ Application for recognition and enforcement of awards/ translation Transmission of certified copies of the NYC XVI 9 Transnational public policy Õ Public policy/ international public policy Travaux préparatoires Prel. Rem. 91, An‐ nex IV, Õ Drafting history Tribunal – amiable compositeur Õ Award/ex aequo et bono – appointment of arbitrators Õ Composition of the tribunal/appointment of arbitrators – challenge of arbitrators V 281 – competence II 187, V 338, Õ Competencecompetence, Õ Grounds for refusal of enforcement/excess of tribunal’s competence – composition Õ Composition of the tribunal – decision, choice of form I 58 – definition I 28 – discretion to conduct proceedings Õ Flawed proceedings/discretion of the tribunal – excess of competence V 234 et seq., 338 – excess of competence, causality V 256 – excess of jurisdiction V 203 et seq., 348, 523, Õ Ne ultra petita, Õ Tribunal/ competence – impartiality V 293 et seq., 530 et seq., Õ Composition of the tribunal – improper constitution Õ Composition of the tribunal – lack of jurisdiction V 203 et seq., 348, 523, Õ Tribunal/competence – number of arbitrators Õ Composition of the tribunal/number of arbitrators – statutory arbitral tribunal I 30, 91

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Index Truncated tribunal Õ Composition of the tribunal/truncated tribunal U UN Conference on International Commercial Arbitration Prel. Rem. 49 UN Convention on Jurisdictional Immunities of States and Their Property I 140, 143, 145 et seq. UN Convention on the Use of Electronic Communications in International Contracts II 110, 120 et seq., 123a et seq., 129, Õ Recommendation (UNCITRAL) regarding the interpretation of Art. II(2) and VII(1) UN Economic and Social Council Prel. Rem. 49 UNCITRAL Model Law on International Commercial Arbitration Õ Model Law UNCITRAL Recommendation on Art. II(2), VII(1) Õ Recommendation (UNCITRAL) regarding the interpretation of Art. II(2) and VII(1) UNIDROIT Principles V 239, 242 United Kingdom Õ Declarations made by Contracting States/United Kingdom United States Õ Declarations made by Contracting States/United States, Õ Grounds for refusal of enforcement/additional grounds in the United States Unlawful relief Õ Public policy/unlawful relief Unreasoned award Õ Due process/unreasoned award, Õ Flawed proceedings/reasons for the award, Õ Inability to present one’s case/ unreasoned award, Õ Public policy/unreasoned award V Validation principle Õ Application for recognition and enforcement of awards/validation principle Validity of the arbitration agreement Õ Arbitration agreement/validity Venire contra factum proprium Õ Good faith/ contradictory behavior Venue Õ Flawed proceedings/hearing venue, Õ Public policy/venue

Yugoslavia

Index

Video conference Õ Inability to present one’s case/video conference Vienna Convention on the Law of Treaties, applicability to NYC Prel. Rem. 73 et seq., VII 18, 28, 32, 34, 83 Vietnam Õ Declarations made by Contracting States/Vietnam W Waiver Õ Preclusion – of Art. VII(1) alt. 2 Õ More-favorable-rights provision/waiver – of grounds for refusal of enforcement of awards Õ Grounds for refusal of enforcement/waiver – of public policy infringements Õ Public policy/waiver – of sovereign immunity Õ Sovereign immunity/implicit waiver – of the right to make reservations Õ Reciprocity clause waiver of the right to make reservations – of the right to object against procedural irregularities Õ Due process/waiver of procedural irregularities, Õ Flawed proceedings/ waiver, preclusion – of the right to object against the composition of the tribunal Õ Composition of the tribunal/waiver – of the right to request referral to arbitration II 274 et seq., Õ Referral to arbitration/ waiver WIPO VIII 11, IX 8 Withdrawal from the NYC Õ Denunciation of the NYC Witness evidence Õ Evidence/witness evidence Witness hearing Õ Flawed proceedings/witness hearing Wording Õ Interpretation of the NYC/methods Y Yugoslavia Õ Declarations made by Contracting States/Yugoslavia

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