The court decisions available on this website interpret and apply the New York Convention. These court decisions are in most cases published in the Yearbook Commercial Arbitration since its Volume I (1976).
The court decisions available on this website interpret and apply the New York Convention.
Most decisions are reported in the Yearbook Commercial Arbitration, published by ICCA since 1976, and are numbered as in the Yearbook (e.g., US no. 954).
Other decisions are indicated by country, date, and a short name (e.g., UK 18 June 2020 Alexander Brothers).
Court decisions can be searched by country and by topic.
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
High Court of Justice, Business and Property Courts Commercial Court (KBD), 1 November 2023, CL-2015-000396(Hulley Enterprises Limited, Yukos Universal Limited, and Veteran Petroleum Limited v. Russian Federation)
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
(Republic of Mozambique v. Privinvest Shipbuilding SAL (Holding))
201
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.
Scope of arbitration agreement
217
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.
High Court of Justice, Business and Property Courts of England and Wales, Commercial Court, 26 October 2022, Case No: CL-2015-000396
(Hulley Enterprises Limited et al. v. The Russian Federation)
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
High Court of Justice, Queen’s Bench Division, Commercial Court, 1 August 2022, Case No: CL-2022-000322
(QBE Europe SA/NV et al. v. Generali España de Seguros y Reaseguros)
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
Supreme Court of the United Kingdom, 26 October 2021
(Kabab-Ji SAL (Lebanon) v. Kout Food Group (Kuwait))
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
High Court of Justice, Queen’s Bench Division, Commercial Court, 26 April 2021, Case No: CL-2018-000809
(Chenco Chemical Engineering and Consulting GmbH v. Do Fluoride Chemicals Co Ltd)
301
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.
(Hulley Enterprises Limited et al. v. The Russian Federation)
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
High Court of Justice, Business and Property Courts of England and Wales, Queen's Bench Division, Commercial Court, 23 November 2020
(PAO Tatneft v. Ukraine)
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
500A
Residual power to enforce notwithstanding existence of ground for refusal
512
Ground c: Excess by arbitrator of his authority - Excess of authority
Supreme Court of the United Kingdom, 9 October 2020
(Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb)
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
High Court of Justice, Commercial Court, Queen’s Bench Division, 18 June 2020
(Alexander Brothers Limited (Hong KongS.A.R.) v. Alstom Transport SA and Alstom Network UK Limited)
524
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 Justice, Queen's Bench Division, Commercial Court, 31 March 2020
(Carpatsky Petroleum Corporation v. PJSC Ukrnafta)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
501
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.
Grounds are exhaustive
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
511
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.
Court of Appeal (Civil Division), 20 January 2020
Kabab-Ji S.A.L. v. Kout Food Group
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
High Court of Justice, Business and Property Courts of England and Wales, Technology and Construction Court (QBD), 13 August 2019
AIC Limited v. The Federal Airports Authority of Nigeria
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
511
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.
"Otherwise unable to present his case"
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
524
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.
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.
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.
Paragraph 2 - Distinction domestic-international public policy
524
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 court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
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.
Procedure for enforcement in general
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
524
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 court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
518
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.
Paragraph 2 - Distinction domestic-international public policy
524
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 court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
500A
Residual power to enforce notwithstanding existence of ground for refusal
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
511
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.
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.
Scope of arbitration agreement
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
500A
Residual power to enforce notwithstanding existence of ground for refusal
511
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.
"Otherwise unable to present his case"
516
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.
"Set aside"
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
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.
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
501
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.
Grounds are exhaustive
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
514
Ground e: Award not binding, suspended or set aside - "Binding"
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.
Grounds are exhaustive
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
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.
UK 93. High Court of Justice, Queen's Bench Division, Commercial Court, 27 July 2011
500A
Residual power to enforce notwithstanding existence of ground for refusal
514
Ground e: Award not binding, suspended or set aside - "Binding"
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
500A
Residual power to enforce notwithstanding existence of ground for refusal
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
222
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.
Arbitrator's competence and separability of the arbitration clause
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
704(C)
Art. VII(1): European Union (Treaties and Legislation)
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.
Referral to arbitration in general
220
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.
"Null and void", etc.
222
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.
Arbitrator's competence and separability of the arbitration clause
704(C)
Art. VII(1): European Union (Treaties and Legislation)
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
301
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.
Procedure for enforcement in general
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
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.
"Null and void", etc.
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
(Nigerian National Petroleum Corporation v. IPCO (Nigeria) Limited)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
High Court of Justice, Queen’s Bench Division, Commercial Court, 17 April 2008
(Nigerian National Petroleum Corporation v. IPCO (Nigeria) Limited)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
512
Ground c: Excess by arbitrator of his authority - Excess of authority
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
High Court of Justice, Queen’s Bench Division, Commercial Court, 15 February 2008
(Gater Assets Limited v. NAK Naftogaz Ukrainiy)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
(Fili Shipping Company Limited (14th Claimant) and others v. Premium Nafta Products Limited (20th Defendant) and others; before the Court of Appeal, see UK 77 A: Yuri Privalov and others v. Fiona Trust Holding Corporation and others)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
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.
Scope of arbitration agreement
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
High Court of Justice, Queen’s Bench Division, Commercial Court, 28 June 2007
(C v. D)
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
High Court of Justice, Queen’s Bench Division, Commercial Court, 22 March 2007
(Gater Assets Limited v. NAK Naftogaz Ukrainiy)
301
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.
Procedure for enforcement in general
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
524
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.
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
(Yuri Privalov and others v. Fiona Trust Holding Corporation and others; on appeal to the House of Lords, see UK 77 B: Fili Shipping Company Limited (14th Claimant) and others v. Premium Nafta Products Limited (20th Defendant) and others)
201
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.
Scope of arbitration agreement
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
220
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.
"Null and void", etc.
222
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.
Arbitrator's competence and separability of the arbitration clause
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
507
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.
Miscellaneous cases regarding the arbitration agreement
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration 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.
Arbitrator's competence and separability of the arbitration clause
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
Court of Appeal (Civil Division), 21 February 2006
(Ajay Kanoria, et al. v. Tony Francis Guinness)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
511
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.
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
301
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.
Procedure for enforcement in general
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
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.
Scope of arbitration agreement
217
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 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.
Procedure for enforcement in general
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
401
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.
Conditions to be fulfilled by petitioner in general
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
507
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.
Miscellaneous cases regarding the arbitration agreement
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
217
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.
Referral to arbitration in general
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
704(C)
Art. VII(1): European Union (Treaties and Legislation)
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.
(Welex AG v. Rosa Maritime Limited) (The EPSILON ROSA)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
301
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.
Procedure for enforcement in general
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
High Court of Justice, Queen’s Bench Division, Commercial Court, 14 October 2002
(Welex AG v. Rosa Maritime Limited) (The EPSILON ROSA)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
High Court, Queen’s Bench Division (Commercial Court), 28 August 2002
(ABCI v. Banque Franco-Tunisienne, et al.)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
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.
"Null and void", etc.
222
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.
Arbitrator's competence and separability of the arbitration clause
High Court of Justice, Queen’s Bench Division, Commercial Court, 25 April 2002
(Welex AG v. Rosa Maritime Limited) (The EPSILON ROSA)
209
Incorporation by reference and standard conditions
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
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.
Scope of arbitration agreement
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
217
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.
High Court, Queen’s Bench Division (Commercial Court), 7 December 2001
(ABCI v. Banque Franco-Tunisienne, et al.)
301
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.
Procedure for enforcement in general
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
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.
Scope of arbitration agreement
220
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.
"Null and void", etc.
222
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.
Arbitrator's competence and separability of the arbitration clause
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
518
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.
Paragraph 2 - Distinction domestic-international public policy
524
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.
(Inco Europe Ltd, et al. v. First Choice Distribution et al.)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
203-204
Formal validity, uniform law and municipal law
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
217
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.
Referral to arbitration in general
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
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.
Procedure for enforcement in general
511
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.
"Otherwise unable to present his case"
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
524
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.
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 court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
501
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.
Grounds are exhaustive
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
516
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.
"Set aside"
524
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.
(Inco Europe Ltd, et al. v. First Choice Distribution et al.)
217
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.
Referral to arbitration in general
220
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.
"Null and void", etc.
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
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.
Arbitrator's competence and separability of the arbitration clause
524
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.
Court of Appeal (Civil Division), 16 December 1997, Decision No. QBCMI 97/0769/B
(Soinco SACI and Eural Kft v. Novokuznetsk Aluminium Plant, et al.)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
301
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.
Procedure for enforcement in general
518
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.
Paragraph 2 - Distinction domestic-international public policy
Court of Appeal (Civil Division), 16 December 1997, Decision no. QBCMI/97/1265/B
(Soinco SACI and Eural Kft v. Novokuznetsk Aluminium Plant, et al.)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
Exchange of letters or telegrams
207
The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.
Means of communication for achieving the exchange in writing
208
The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.
Sales or purchase confirmation
209
Incorporation by reference and standard conditions
210
The court discusses these Articles, which require a specific, separate signature for (domestic) arbitration agreements.
Articles 1341 and 1342 Italian Civil Code
211
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
212
The court discusses issues specific to an arbitration agreement concluded through an agent or broker, e.g., whether the authorization to conclude it must also be in writing.
Agent/broker, etc.
213
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
Amendment or renewal
214
Agreement providing for arbitration in another State
214-216
Field of application
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
216A
Analogous applicability of Art. VII(1)
217
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
222
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.
Arbitrator's competence and separability of the arbitration clause
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
224
The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.
Declaratory judgment on validity arbitration agreement
225
Multi-party disputes: The court discusses the consolidation of arbitrations; also, whether the possibility of conflicting awards is a ground for refusing enforcement of an arbitration agreement.
Related arbitrations (consolidation, etc.)
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
301
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.
Procedure for enforcement in general
302
The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.
Discovery of evidence
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
304
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
Set-off/counterclaim
305
The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.
Entry of judgment clause
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
307
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Interest on award
401
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.
Conditions to be fulfilled by petitioner in general
402
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
Original or copy arbitral award
403
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.
Original or copy arbitration agreement
404
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
Authentication and certification
405
The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.
"At the time of application"
406
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
Translation (paragraph 2)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
500A
Residual power to enforce notwithstanding existence of ground for refusal
501
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.
Grounds are exhaustive
502
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.
No re-examination of the merits of the arbitral award
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
505
Incapacity of party
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
507
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.
Miscellaneous cases regarding the arbitration agreement
508
Ground b: Violation of due process in general
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
510
Due process: The court discusses what are to be considered proper time limits and notice periods that fulfill the requirement that the party opposing recognition and enforcement of the arbitral award was extended due process.
Time limits and notice periods
511
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.
"Otherwise unable to present his case"
512
Ground c: Excess by arbitrator of his authority - Excess of authority
512A
Partial enforcement (ultra petita)
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
514
Ground e: Award not binding, suspended or set aside - "Binding"
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
516
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.
"Set aside"
517
Award not binding, suspended or set aside: The court discusses the meaning of an award having been “suspended” in the country of origin, including when the award has been suspended by operation of law rather than by a court decision.
"Suspended"
518
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.
Paragraph 2 - Distinction domestic-international public policy
519
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Ground a: Arbitrability
520
Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.
Ground b: Public policy - Default of party
521
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.
Lack of impartiality of arbitrator
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Lack of reasons in award
523
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.
Irregularities in the arbitral procedure (see also Art. V(1)(b))
524
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.
Other cases
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
701
More-favorable right provision: The court discusses issues relating to the more-favorable right provision in general, including who may invoke it, and when.
More-favourable-right provision in general
702
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
Domestic law on enforcement of foreign award
703
See ¶¶ 703(A) – 704(B)
Bilateral and multilateral treaties in general
703(A)
Multilateral treaties
704
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
European Convention of 1961
704(A)
Panama Convention of 1975
704(B)
Bilateral Treaties
704(C)
Art. VII(1): European Union (Treaties and Legislation)
705
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
Relationship with Geneva Treaties of 1923 and 1927
911
The court discusses the extent of obligations under the Convention for federal and non-unitary States, in particular when subject matters dealt with by the Convention fall under the competence of constituent states or provinces.
Article XI: Federal State Clause
914
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
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.
Scope of arbitration agreement
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
229
Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.
Measures in aid of arbitration anti-suit injunction
303
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
Estoppel/waiver
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
507
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.
Miscellaneous cases regarding the arbitration agreement
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
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.
Referral to arbitration in general
220
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.
"Null and void", etc.
223
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
704(C)
Art. VII(1): European Union (Treaties and Legislation)
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.
Referral to arbitration in general
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
704(C)
Art. VII(1): European Union (Treaties and Legislation)
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.
Procedure for enforcement in general
515
Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.
Merger of award into judgment
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Adjournment of decision on enforcement
704(C)
Art. VII(1): European Union (Treaties and Legislation)
The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.
Bill of lading and charter party
214-216
Field of application
217
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 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 whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.
Scope of arbitration agreement
217
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.
Referral to arbitration in general
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
Concurrent court proceedings ("indivisibility")
704(C)
Art. VII(1): European Union (Treaties and Legislation)
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.
Referral to arbitration in general
227
Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
214-216
Field of application
220
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.
"Null and void", etc.
221
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
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.
Scope of arbitration agreement
222
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.
Arbitrator's competence and separability of the arbitration clause
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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
516
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.
"Set aside"
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
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.
Scope of arbitration agreement
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
220
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.
"Null and void", etc.
222
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.
Arbitrator's competence and separability of the arbitration clause
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 whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
219
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
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 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 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 determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
222
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.
Arbitrator's competence and separability of the arbitration clause
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
301
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.
Procedure for enforcement in general
506
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Law applicable to the arbitration agreement
512
Ground c: Excess by arbitrator of his authority - Excess of authority
524
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 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.
Referral to arbitration in general
218
The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.
Referral is mandatory
226
Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.
Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
The court discusses how to determine that there is a dispute as a condition for referral to arbitration.
There must be a dispute
222
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.
Arbitrator's competence and separability of the arbitration clause
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
501
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.
Grounds are exhaustive
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
514
Ground e: Award not binding, suspended or set aside - "Binding"
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.
Referral to arbitration in general
228
Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.
Pre-award attachment and other provisional measures
High Court, Queen’s Bench Division (Commercial Court), 19 March 1984
(SPP (Middle East) Ltd. v. The Arab Republic of Egypt; National Bank of Egypt; The Governor and Company of the Bank of England; Midland Bank Plc; UBaf Bank; Lloyds Bank Plc; and Lloyds Bank International Limited)
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
505
Incapacity of party
601
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
(SPP (Middle East) Ltd. v. The Arab Republic of Egypt; National Bank of Egypt; The Governor and Company of the Bank of England; Midland Bank Plc; UBaf Bank; Lloyds Bank Plc; and Lloyds Bank International Limited)
001
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
Interpretation of the Convention
101
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
102
The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).
Arbitral award not considered as domestic (paragraph 1)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
104
The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards.
Convention's applicability in other cases
105
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
"Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
106
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
Problems concerning the identity of a party
107
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
Second reservation ("commercial reservation") (paragraph 3)
108
The court discusses whether procedures akin to arbitration fall under the Convention.
Arbitral award: arbitrato irrituale (Italy) and other procedures akin to arbitration
109
The court discusses whether an “a-national” award falls under the Convention.
Arbitral award: "a-national" award
110
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
Arbitral award: types
111
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
Permanent arbitral bodies (paragraph 2)
112
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
Retroactivity
113
The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.
Implementing legislation
114
The court discusses whether awards rendered by the Iran-US Claims Tribunal fall under the Convention.
Iran-US Claims Tribunal
201
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.
Scope of arbitration agreement
202
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Contents of arbitration agreement
203
Uniform rule
203-204
Formal validity, uniform law and municipal law
204
The court discusses whether the definition of what constitutes an “arbitration agreement in writing” in the sense of the Convention is an internationally uniform rule prevailing over domestic law, and whether this uniform rule sets a maximum or a minimum requirement for the formal validity of the arbitration agreement.
Formal validity and municipal law
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
Signatures
206
The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.
