BERMUDA 3
Bermuda 3. Court of Appeal of Bermuda, 7 July 1989
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
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 principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.
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 questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.