The court decisions available on this website interpret and apply the New York Convention. These court decisions are published in the Yearbook Commercial Arbitration since its Volume I (1976).
For instructions on how to search for court decisions per topic and per country in this website, please refer to our helpful access guide here.
The Court enforced an ICC award rendered in Paris, holding that the sole arbitrator did not decide beyond the terms of reference and, contrary to the defendant’s allegation, did not admit electronic evidence that had been illegally obtained.
High Court of Kenya, Nairobi, Milimani Commercial and Tax Division, 6 November 2020, Misc. Civil Case No 65 of 2018
(SGS Kenya Limited v. Tracer Limited)
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
The High Court granted recognition and enforcement of an award of the Milan Chamber of Arbitration, finding that the applicant had submitted the necessary documents, that the award was final, and that the recognition and enforcement of the award would not be contrary to Kenyan public policy, which was to be interpreted narrowly; rather, it would be in line with the Kenyan public policy to promote dispute resolution by way of arbitration. The Court referred to the doctrine of competence-competence, noting that it was accepted in Kenyan jurisprudence and codified in the 1995 Kenyan Arbitration Act.
High Court of Kenya, Nairobi, Milimani Commercial and Tax Division, 7 September 2020, Miscellaneous Cause No E517 of 2019
(Federica Martina Ferro v. Gabriella Zouras Ferro)
The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.
Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
High Court of Kenya, Nairobi, Commercial & Tax
Division, Milimani, 15 July 2019
Royal Exchange PLC v. Patrick Nyaemba Tumbo
High Court of Kenya, Nairobi, Commercial & Tax
Division, Milimani, 15 July 2019
Royal Exchange PLC v. Patrick Nyaemba Tumbo
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.
Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.
Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.
Kenya No. 2019-3. Jatin Shantilal Malde et al. v. Transmara Investment Limited, High Court of Kenya, Nairobi, Commercial & Admiralty Division, Petition No. 18 of 2018, 20 July 2018
The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.
The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Kenya 7. Jatin Shantilal Malde et al. v. Transmara Investment Limited, High Court of Kenya, Nairobi, Commercial & Admiralty Division, Petition No. 18 of 2018, 20 July 2018
The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.
The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Kenya No. 4. Tracer Limited v. SGS Kenya Limited et al., High Court of Kenya, Milimani Commercial and Tax Division, Misc. Civil Case No. 331 of 2015, 18 October 2017
Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.
Kenya 6. Tracer Limited v. SGS Kenya Limited et al., High Court of Kenya, Milimani Commercial and Tax Division, Misc. Civil Case No. 331 of 2015, 18 October 2017
Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.
Kenya 2. High Court of Kenya, 15 August 2013
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
Kenya No. 3. Foxtrot Charlie Inc (Panama) v. Afrika Aviation Handlers Limited et al., High Court of Kenya, Nairobi, Milimani Commercial Courts, Commercial and Tax Division, Civil Suit 557 of 2004, 29 May 2012
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
Kenya 5. Foxtrot Charlie Inc (Panama) v. Afrika Aviation Handlers Limited et al., High Court of Kenya, Nairobi, Milimani Commercial Courts, Commercial and Tax Division, Civil Suit 557 of 2004, 29 May 2012
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
Kenya 1. High Court, Mombasa, 5 July 2002
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.
Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.
Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.
Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.