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.
United States Court of Appeals, District of Columbia Circuit, 30 July 2024, No. 23-7023
(Doraleh Container Terminal SA v. Republic of Djibouti)
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.
United States District Court, Eastern District of Virginia, Alexandria Division, 22 September 2023, Case No. 1:23-mc-1(First Kuwaiti General Trading & Contracting W.L.L. v. Kellogg Brown & Root International, Inc.)
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
United States District Court, Middle District of Florida, Fort Myers Division, 14 September 2023, Case Nos.: 2:23-cv-417-SPC-KCD; 2:23-cv-497-SPC-KCD (DAK Property Holdings, Inc. v. Independent Specialty Insurance Company and Certain Underwriters at Lloyd’s London, Subscribing to Certificate Number B604510568622021)
214-216
Field of application
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)
United States District Court, Southern District of New York, 11 September 2023, 22-cv-8848 (ER)
(Office Create Corporation v. Planet Entertainment, LLC, and Steve Grossman)
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.
United States District Court, Middle District of Florida, Tampa Division, 31 August 2023, Case No. 8:22-cv-2158-TPB-CPT
(United States of America v. Water Quality Insurance Syndicate v. The United Kingdom Mutual Steam Ship Assurance Association Limited)
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
214-216
Field of application
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)
United States District Court, Eastern District of Louisiana, 18 August 2023, CIVIL ACTION NO. 23-1689 SECTION: “E” (1)
(Evergreen Associates, Inc. Evergreen Lions Club v. Independent Specialty Insurance Company And Certain Underwriters At Lloyd’s London Subscribing To Binding Authority UMR B604510568622021)
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.
United States Court of Appeals, Eleventh Circuit, 18 August 2023, No. 21-14408
(Grupo Unidos por el Canal, S.A., SACYR, S.A. et al. v. Autoridad del Canal de Panama)
508
Ground b: Violation of due process in general
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.
United States District Court, Eastern District of Virginia, Newport News Division, 15 August 2023, Case No. 4:23cv56
(Keller North America, Inc. and Hampton Roads Connector Partners v. Certain Underwriters at Lloyd’s OP London and SCOR UK Company Limited)
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.
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)
United States District Court, Southern District of New York, 15 August 2023, No. 22-CV-9849 (LAP)
(Certain Underwriters at Lloyds, London, et al. v. 3131 Veterans Blvd LLC)
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.
United States District Court, District of Nevada, 11 August 2023, Case Number: 2:23-cv-00960-JCM-BNW
(Assuranceforeningen Skuld Gjensidig and Skuld Mutual Protection and Indemnity Association (Bermuda) Ltd. v. M&F Fishing, Inc., a Nevada Corporation)
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.
United States District Court, Middle District of Florida, Fort Myers Division, 2 August 2023, Case No.: 2:23-cv-497-SPC-KCD
(DAK Property Holdings, Inc. v. Independent Specialty Insurance Company and Certain Underwriters at Lloyd’s London, Subscribing to Certificate Number B604510568622021)
214-216
Field of application
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)
United States Court of Appeals, Ninth Circuit, 1 August 2023, No. 20-36024, No. 22-35085, No. 22-35103, D.C. No. 2:18-cv-01360-TSZ
(Devas Multimedia Private Limited v. Antrix Corp. 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.
United States District Court, Middle District of Florida, Fort Myers Division, 31 July, Case No.: 2:23-cv-417-SPC-KCD (DAK Property Holdings, Inc. v. Independent Specialty Insurance Company and Certain Underwriters at Lloyd’s London, Subscribing to Certificate Number B604510568622021)
214-216
Field of application
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)
United States District Court, Eastern District of Louisiana, 26 July 2023, CIVIL ACTION NO. 23-495 SECTION M (2)
(Maxwell Heirsch, Inc. d/b/a Visiting Angels v. Velocity Risk Underwriters, LLC, 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.
United States District Court, Eastern District of Pennsylvania, 18 July 2023, CIVIL ACTION No. 21-2845
(Jiangsu Beier Decoration Materials Co., Ltd. v. Angle World LLC)
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
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.
United States District Court, Southern District of New York, 17 July 2023, 22-CV-6977 (LAP)
(Zhongzhi Hi-Tech Overseas Investment Ltd. v. Vincent Wenyong Shi)
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.
United States District Court, Western District of North Carolina, Charlotte Division, 14 July 2023, 3:21-cv-133-MOC-DCK
(Zaklady Farmaceutycyne Polpharma, S.A. v. Kartha Pharmaceuticals, Inc.)
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.
United States Court of Appeals, Tenth Circuit, 13 July 2023, Nos. 21-5072 & 21-5081
(Baker Hughes Services International, LLC v. Joshi Technologies International, Inc.)
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
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
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
United States Court of Appeals, Second Circuit, 12 July 2023, 22-825-cv
(Olin Holdings Limited v. State of Libya)
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
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
512
Ground c: Excess by arbitrator of his authority - Excess of authority
United States District Court, Central District of California, 7 July 2023, EDCV 23-840 JGB (SPx)
(Prodigy Finance CM2021-1 DAC v. Mandeep Kaur Sohi)
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.
United States District Court, Southern District of New York, 29 June 2023, 22-cv-7503 (PKC); 21-cv-6704 (PKC)
(Preble-Rish Haiti, S.A., v. Republic of Haiti, Bureau de Monétisation des Programmes d'aide au Développement)
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)
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)
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
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
United States District Court, Eastern District of Louisiana, 28 June 2023, CIVIL ACTION NO. 22-2671 SECTION M (4)
(Thumbs Up Race Six, LLC v. Independent Specialty Insurance Company, 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.
United States District Court, Middle District of Florida, Orlando Division, 26 June 2023, Case No: 6:21-cv-611-WWB-LHP(Ivanilde Pistorello and Augusto Grando v. SUPRICEL Participacoes Ltda and Luis Guilherme Schnor)
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.
United States District Court, Southern District of New York, 23 June 2023, 22 Civ. 9628 (JPC)
(Trithorn Bulk A/S v. Duron Capital LLC)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
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.
United States District Court, Southern District of Florida, 14 June 2023, Civil Action No. 23-21536-Civ-Scola
(Miodrag Cakarevic, v. Royal Caribbean Cruises, LTD.)
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.
United States District Court, Eastern District of Louisiana, 6 June 2023, CIVIL ACTION NO: 22-4049 SECTION: “H”
(Robert Harvey et al. v. Certain Underwriters At Lloyd’s, London 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.
United States District Court, Northern District of California, San Jose Division, 5 June 2023, Case No. 22-mc-80313-VKD
(Fujitsu Semiconductor Limited v. Cypress Semiconductor Corporation)
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.
United States District Court, Eastern District of New York, 1 June 2023, 05-cv-4659(DLI)(JRC); 04-cv-1244(DLI)(JRC); 06-cv-5305(DLI)(JRC)
(Sylvester Dziennik, Mieczyslaw Kiersztyn, Ferdynand Kobieroski, individually and on behalf of all persons similarly situated v. Sealift, Inc., Sealift Holdings, Inc., Fortune Maritime Inc., Sagamore Shipping Inc., Victory Maritime, Inc.; and Josef Felskowski v. Sealift, Inc., Sagamore Shipping Inc.; and Mieczyslaw Kierstin v. M/V Advantage, et. al.)
209
Incorporation by reference and standard conditions
United States District Court, Middle District of Florida, Tampa Division, 15 May 2023, Case No. 8:22-cv-1876-WFJ-JSS
(T.T. International Co., Ltd. BMP International, Inc.; BMP USA, Inc.; IGAS USA, Inc.; and IGAS Holdings, Inc.)
214-216
Field of application
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)
United States Court of Appeals, Second Circuit, 17 April 2023, No. 22-832
(Iraq Telecom Limited v. IBL Bank S.A.L.)
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.
United States Court of Appeals, Eleventh Circuit, 13 April 2023, No. 20-13039
(Corporación AIC, SA v. Hidroeléctrica Santa Rita S.A.)
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
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.
United States District Court, Eastern District of Louisiana, 12 April 2023, Case No. 2:22-cv-03240
(Ishwar Krupa LLC v. Independent Specialty Insurance Company and Certain Underwriters at Lloyds and Other Insurers Subscribing to Binding Authority B604510568622021)
205
The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.
United States District Court, District of Columbia, 29 March 2023, Civil Case No. 21-3249 (RJL)
(Blasket Renewable Investments, LLC (as successor in title of AES Solar Energy Coöperatief U.A. and Ampere Equity Fund B.V. v. The Kingdom of Spain)
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)
United States District Court, Eastern District of Louisiana, 23 March 2023, CIVIL ACTION NO. 2:22-cv-3874; C/W 2:22-cv-3876
(Certain Underwriters At Lloyd’s, London Severally Subscribing To Certificate No. AMR-73525, et al. v. Belmont Commons L.L.C. d/b/a 925 Common and Belmont Delaware L.L.C.)
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)
United States District Court, Northern District of Iowa, Western Division, 23 March 2023, No. 22-CV-4047-CJW-KEM
(The United Mexican States v. Joshua Dean Nelson)
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
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.
United States District Court, Eastern District of Louisiana, 21 March 2023, CIVIL ACTION No. 23-334 SECTION I
(Stor-All Gentilly Woods, LLC v. Indian Harbor Insurance Co., et al.)
214-216
Field of application
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)
United States District Court, Northern District of Georgia, Atlanta Division, 17 March 2023, Civil Action No. 1:21-cv-04751-VMC
(Various Insurers, Reinsurers And Retrocessionaires Subscribing to Policy Numbers 106/IN/230/0/0, 28807G19, B080130181G19 B080131297G19, B080127577G19, B080130231G19, B080130291G19, B080130328G19, B080128807G19 and B080130331G19 DBD as subrogee of Shariket Kahraba Hadjret En Nouss v. General Electric International, Inc., General Electric Company, GE Power Services Engineering, GE Power, and Various John Doe Corporations)
214-216
Field of application
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)
United States District Court, Northern District of Texas, Fort Worth Division, 8 March 2023, Civil Action No. 4:22-cv-00662-O
(Ipsen Biopharm Ltd. v. Galderma Laboratories, L.P., and Galderma Research & Development, LLC)
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.
United States District Court, Eastern District of Louisiana, 23 February 2023, CIVIL ACTION NO. 23-18 SECTION M (4)
(Patricia S. Bopp, et al. v. Independent Specialty Insurance Company, et al.)
214-216
Field of application
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)
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)
United States District Court, Eastern District of Louisiana, 13 February 2023, CIVIL ACTION NO. 2:22-cv-3874; C/W 2:22-cv-3876(Certain Underwriters at Lloyd’s, London Severally Subscribing to Certificate No. AMR-73525, et al. v. Belmont Commons L.L.C. d/b/a 925 Common and Belmont Delaware L.L.C.)
226
II
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)
United States District Court, Southern District of Alabama, Southern Division, 13 February 2023, CIVIL ACTION NO. 22-00436-CG-N
(Phoenix East II Association, Inc. v. Certain Underwriters at Lloyd’s, et al.)
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.
United States District Court, Eastern District of Oklahoma, 9 February 2023, 20-CV-402-JWB(Krohmer Marina, LLC, an Oklahoma Limited Liability Company, doing business as Evergreen Marina, et al. v. Certain Underwriters at Lloyd’s, London and International Insurance Co. of Hannover SE)
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
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)
United States District Court, Eastern District of Louisiana, 9 February 2023, CIVIL ACTION NO. 22-4622 SECTION “L”, MAG “4”
(Coastal Cargo Company, LLC v. Tenaris Global Services (Canada) Inc.)
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”.
United States District Court, Southern District of New York, 9 February 2023, 22-cv-7569 (PKC)
(High Hope Zhongtian Corporation v. Sunbird USA Inc)
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.
United States District Court, Central District of California, 1 February 2023, LA CV16-05144 JAK (GJSx)
(Galaxia Electronics Co., Ltd. v. Luxmax, U.S.A., et al.)
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
505
Incapacity of party
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
512
Ground c: Excess by arbitrator of his authority - Excess of authority
514
Ground e: Award not binding, suspended or set aside - "Binding"
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.
United States District Court, Eastern District of Louisiana, 31 January 2023, CIVIL ACTION NO. 22-3404 SECTION M (5); 22-3405; 22-3407; 22-3408; 22-3411; 22-3412; 22-3413; 22-3414; 22-3415; 22-3416; 22-3417
(Parish of St. Charles v. HDI Global Specialty SE, et al.)
214-216
Field of application
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)
United States District Court, District of Columbia, 26 January 2023, Civil Action No. 22-170 (BAH)
(Zhongshan Fucheng Industrial Investment Co., Ltd. v. Federal Republic of Nigeria)
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)
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)
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.
United States District Court, Eastern District of Louisiana, 25 January 2023, CIVIL ACTION NO. 22-3120 SECTION: "G"(1)
(Olsen Securities Corp., et al. v. Certain Underwriters at Lloyd’s London, et al.)
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.
United States District Court, Eastern District of Louisiana, 18 January 2023, CIVIL ACTION NO. 22-4401 SECTION I(Academy of the Sacred Heart of New Orleans v. Certain Underwriters At Lloyd’s London, et al.)
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.
United States District Court, Eastern District of Louisiana, 17 January 2023, 2:22-cv-01013-NJB-MBN
(Kronlage Family Limited Partnership v. Certain Underwriters at Lloyd’s and other Insurers Subscribing to Binding Authority Number B604510568622021, and Independent Specialty Insurance Co. (ISIC))
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.
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.
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)
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)
United States District Court, Southern District of New York, 13 January 2023, 13-cv-2581 (PKC) (JLC)
(CBF Indústria De Gusa S/A, Da Terra Siderúrgica Ltda, Fergumar - Ferro Gusa Do Maranhão Ltda, Ferguminas Siderúrgica Ltda, Gusa Nordeste S/A, Sidepar - Siderúrgica Do Pará S/A and Siderúrgica União S/A v. AMCI Holdings, Inc., American Metals & Coal International, Inc., Prime Carbon GmbH, Primetrade, Inc. and Hans Mende)
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
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Burden of proof on respondent
505
Incapacity of party
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.
United States Court of Appeals, Tenth Circuit, 10 January 2023, Case No. 21-1196 and No. 21-1324
(Compañía de Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V. et al.)
500A
Residual power to enforce notwithstanding existence of ground for refusal
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.
United States District Court, Eastern District of Louisiana, 3 January 2023, CIVIL ACTION NO. 2:22-cv-3874; 2:22-cv-3876(Certain Underwriters At Lloyd’s, London Severally Subscribing to Certificate NO. AMR-73525, et al. v. Belmont Commons L.L.C. d/b/a 925 Common and Belmont Delaware L.L.C., et al.)
214-216
Field of application
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)
United States Court of Appeals, District of Columbia Circuit, 21 December 2022, No. 21-7141
(The Republic of Moldova v. LLC SPC Stileks)
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.
United States District Court, Central District of California, 28 November 2022, 2:21-CV-09695-CAS (PD)
(Williams Grand Prix Engineering Limited v. Rokit Marketing Inc. & Rok Marketing LLC)
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.
United States District Court, Eastern District of Louisiana, 22 November 2022, CIVIL ACTION No. 22-1114 SECTION: “J”(3)
(Conti 11. Container Schiffarts-GmbH & Co. KG M.S. “MSC Flamina” v. MSC Mediterranean Shipping Company S.A.)
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.
United States District Court, Middle District of Florida, Orlando Division, 17 November 2022, Case No: 6:22-cv-915-RBD-EJK
(America Steel Trade Corporation v. Metalhouse, LLC)
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
306
The court discusses the applicable period of limitation for seeking enforcement of an award.
Period of limitation for enforcement
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
503
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
United States District Court, Southern District of Florida, 15 November 2022, Civil Action No. 22-20655-Civ-Scola
(Nikola Prcic v. Carnival Corporation and others)
214-216
Field of application
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)
United States District Court, Western District of Louisiana, Lake Charles Division, 8 November 2022, CASE NO. 2:17-CV-00472
(Daniel Gonzales Llagas v. Sealift Holdings Inc et al)
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.
United States Court of Appeals, Second Circuit, 3 October 2022, No. 20-4248
(Commodities & Minerals Enterprise Ltd. v. CVG Ferrominera Orinoco, C.A.)
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)
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
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
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.
United States Court of Appeals, Eleventh Circuit, 5 August 2022, No. 20-14206
(Ryan Maunes Maglana, on his own behalf and as a class representative of all other similarly situated Filipino crewmembers trapped aboard CELEBRITY cruise vessels et al. v. Celebrity Cruises, Inc.)
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.
United States Court of Appeals, Second Circuit, 8 July 2022, Docket Nos. 19-3159(L), 19-3361
(Esso Exploration and Production Nigeria Limited et al. v. Nigerian National Petroleum Corporation)
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
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.
United States Court of Appeals, Eleventh Circuit, 8 July 2022, No. 17-10944
(Outokumpu Stainless USA, LLC et al. v. Coverteam SAS, a foreign corporation now known as GE Energy Power Conversion France SAS, Corp.)
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)
United States District Court, District of Wyoming, 7 July 2022, Case No. 21-CV-223-F
(Gramercy Distressed Opportunity Fund II, L.P. et al. v. Oleg Bakhmatyuk et al.)
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
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)
United States Court of Appeals, Fourth Circuit, 24 June 2022, No. 20-1633
(Rachan Damidi Reddy v. Rashid A. Buttar)
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
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
United States District Court, District of Columbia, 14 June 2022, Civil Action No. 20-1795 (ABJ)
(Gebre LLC v. Kyrgyz Republic)
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
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.
United States District Court, Southern District of California, 9 May 2022, Case No.: 3:21-cv-1425-W-DEB
(General Marine II, LLC v. Michael Kelly)
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
505
Incapacity of party
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.
United States District Court, Middle District of Florida, Tampa Division, 27 April 2023, Case No: 8:22-cv-2478-KKM-SPF
(The Pointe On Westshore, LLC v. Certain Underwriters of Lloyd’s London Subscribing to Policy Number AMR-65342, et al.)
214-216
Field of application
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
United States District Court, Southern District of New York, 26 January 2022, 21-cv-6704 (PKC)
(Preble-Rish Haiti, S.A. v. Republic of Haiti, Bureau de Monétisation de Programmes d'Aide au Développement)
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
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.
"Otherwise unable to present his case"
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.
United States District Court, Northern District of California, San Jose Division, 4 January 2022, Case No. 20-CV-08033-LHK
(Youlin Wang v. Richard Kahn et al.)
214
Agreement providing for arbitration in another State
215
Agreement providing for arbitration within forum's State
216
No place of arbitration designated
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.
United States Court of Appeals, District of Columbia Circuit, 28 December 2021, No. 20-7091
(AO Tatneft v. Ukraine, c/o Mr. Pavlo Petrenko, Minister of Justice)
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
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.
United States District Court, Southern District of Florida, 9 December 2021, Civil Action No. 20-24867-Civ-Scola
(Grupo Unidos por el Canal, S.A. and others v. Autoridad del Canal de Panama)
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
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
508
Ground b: Violation of due process 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"
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
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
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.
United States Court of Appeals for the Ninth Circuit, 12 August 2021
(Waleed Khalid Abu Al-Waleed Al Hood Al-Qarqani & Ors. v. Chevron Corporation & Anr.)
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
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
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.
United States District Court, Northern District of New York, 3 August 2021
(Chongqing Loncin Engine Parts Co. Ltd. & Anr v. New Monarch Machine Tool, Inc.)
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
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
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
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.
United States District Court, District of Columbia, 14 June 2021
(Compagnie Sahélienne d'Entreprise v. Republic of Guinea)
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.
United States District Court, Southern District of Florida, Miami Division, 28 May 2021
(The Government of the Cooks Islands v. Dwane L. Hubbart)
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.
United States District Court, Southern District of New York, 5 May 2021
(d'Amico Dry D.A.C v. Tremond Metals Corp.)
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.
United States District Court, Central District of California, 15 April 2021
(Martin Kenney & Co. v. Roger Corman)
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
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
513
Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
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
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))
United States District Court, District of California, 8 April 2021
(Lilian Padilla Ayala v. Teledyne Defense Electronics & Ors.)
103
The court discusses the impact of the nationality of the parties on the application of the Convention.
Nationality of the parties no criterion
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)
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.
United States District Court, Northern District of Illinois, 12 March 2021
(Bartlit Beck LLP v. Kazuo Okada)
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.
United States District Court, Southern District of Florida, 18 February 2021, Case No. 20-24829-CIV-COOKE/O'SULLIVAN
(Thamalassen Sungaralingum v. Carnival Corporation and Heinemann American Cruise Retail, LLC)
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.
United States District Court, Eastern District of Louisiana, 18 February 2021, CIVIL ACTION NO. 20-1550 SECTION: "G"(1)
(Clean Pro Carpet & Upholstery Care, Inc., et al. v. Upper Pontalba of Old Metairie Condominium Association, Inc., 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
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)
United States District Court, Southern District of Florida, 5 February 2021, Case No. 20-21713-CIV-MARTINEZ/AOR
(Eco Brands, LLC, a Delaware limited liability company, derivatively by and through its member Midas Financial Group, LLC, a Delaware limited liability company v. Eco Brands, LLC)
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
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)
United States District Court, Middle District of Louisiana, 2 February 2021, CIVIL ACTION NO. 20-102-JWD-SDJ
(Georgetown Home Owners Association, Inc. v. Certain Underwriters at Lloyd's, London, Severally Subscribing to Policy Number AMR-60507, et al.)
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
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.
United States District Court, District of Columbia, 26 January 2021, Case No. 20-cv-00763 (APM)
(UAB Skyroad Leasing v. OJSC Tajik Air)
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.
United States Court of Appeals, Ninth Circuit, 20 January 2021, No. 18-35573
(Balkrishna Setty, Individually and as General Partner in Shrinivas Sugandhalaya Partnership with Nagraj Setty; Shrinivas Sugandhalaya (Bng) LLP v. Shrinivas Sugandhalaya LLP)
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
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)
United States District Court, Southern District of New York, 18 January 2021, 20-CV-2626 (VEC)
(George Moundreas & CO SA v. Jinhai Intelligent Manufacturing Co Ltd f/k/a Jinhai Heavy Industry Co Ltd, 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.
United States Court of Appeals, District of Columbia Circuit, 15 January 2021, No. 19-7106 Consolidated with 19-7142
(LLC SPC Stileks v. The Republic of Moldova)
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)
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.
United States District Court, Southern District of Texas, Houston Division, 21 December 2020, CIVIL ACTION NO. H-20-00285
(Sergiy Gumenyuk v. Marlow Navigation Company, Ltd, 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.
United States Court of Appeals, Eleventh Circuit, 15 December 2020, No. 20-11420 Non-Argument Calendar
(Gerardo Jose Guarino v. Productos Roche S.A.)
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
504
Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
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
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
"Proper notice"
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
United States District Court, Eastern District of Louisiana, 14 December 2020, CIVIL ACTION NO. 20-2326 SECTION "B"(5)
(1010 Common, LLC v. Certain Underwriters at Lloyd's, London)
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.
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
United States District Court, Southern District of New York, 30 November 2020, as amended 10 December 2020, 1:19-cv-11654-ALC
(Commodities & Minerals Enterprise, Ltd. v. CVG Ferrominera Orinoco C.A.)
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
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.
United States Court of Appeals, Second Circuit, 25 November 2020, 19-3400-cv
(Rodrigo R. Pagaduan v. Carnival Corporation, dba Carnival Cruise Lines)
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"
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.
United States District Court, Eastern District of New York, 25 November 2020, 20 CV 1068 (LDH) (CLP)
(WJ Holding Limited and Stubrick Limited v. Shireen Maritime Ltd 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.
United States District Court, District of Columbia, 20 November 2020, Civil Action No. 14-1996 (BAH)
(Hulley Enterprises Ltd., et al. v. The Russian Federation)
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.
United States District Court, Southern District of Texas, 17 November 2020
(Waleed Bin Al-Qarqani et al. v. Arab American Oil Company et al.)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
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
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.
United States District Court, Southern District of Florida, 10 November 2020, Case No. 20-cv-22911-BLOOM/Louis
(Antonio Sisca v. HAL Maritime, Ltd. 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.
United States District Court, Southern District of New York, 6 November 2020, 20-CV-747 (JMF)
(Baris Ozkaptan v. Citigroup, Inc.)
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.
United States District Court, District of Nevada, 2 November 2020, Case No. 3:19-cv-00610-LRH-WGC
(Elko Broadband Ltd. v. Dhabi Holdings PJSC, 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
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)
United States District Court, Northern District of California, 28 October 2020, Case No. 20-cv-05791-VC
(Michael Pak v. Eocell, Inc. et al.)
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
United States Court of Appeals, Eleventh Circuit, 28 October 2020, No. 19-12100
(Lynn McCullough, et al. v. AIG Insurance Hong Kong Limited)
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
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)
United States District Court, Southern District of Florida, 23 October 2020, Case No. 20-cv-23715-BLOOM/Louis
(Fnu Isanto, as Personal Representative of the Estate of Fnu Pujiyoko, deceased v. Royal Caribbean Cruises, Ltd.)
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.
United States District Court, District of Montana, Missoula Division, 22 October 2020, CV 19-196-M-DLC
(Montana Association of Counties Property and Casualty Trust v. Certain Underwriters at Lloyds)
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.
United States District Court, Southern District of Florida, 22 October 2020, CASE NO. 1:19-cv-24416-GAYLES/OTAZO-REYES
(Ramesh Cheruvoth v. Seadream Yacht Club, Inc. 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.
United States District Court, Northern District of California, 9 October 2020, Case No. 20-cv-05236-JST
(Arnold Leong v. Warren Havens)
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.
United States District Court, Southern District of Florida, 7 October 2020, CASE NO.: 1:20-22133-CIV-MARTINEZ
(Ryan Maunes Maglana et al. v. Celebrity Cruises Inc.)
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.
United States District Court, Eastern District of Louisiana, 29 September 2020, CIVIL ACTION NO: 19-14017 SECTION: T(3)
(Woodward Design + Build, LLC v. Certain Underwriters at Lloyd's London, 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.
United States District Court, Eastern District of Louisiana, 16 September 2020 and 14 October 2020, CIVIL ACTION NO. 20-1525 SECTION "F"
(Neptune Shipmanagement Services (Pte.), Ltd. et al. v. Vinod Kumar Dahiya)
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.
United States District Court, Eastern District of Louisiana, 16 September 2020, CIVIL ACTION NO. 20-1527 SECTION "F"
(Vinod Kumar Dahiya v. Talmidge International Ltd., 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.
United States District Court, Eastern District of Arkansas, Central Division, 14 September 2020 and 28 September 2020, CASE NO. 4:20CV00530 SWW
(Tetronics International Limited v. Blueoak Arkansas LLC)
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.
United States District Court, Southern District of New York, 14 September 2020, 1:19-cv-8669-MKV
(Major League Baseball Properties, Inc. v. Corporacion de Television y Microonda Rafa, S.A.)
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.
United States District Court, Southern District of New York, 3 September 2020, 18-CV-8408 (VEC) (BCM)
(SSI (Beijing) Company Ltd. v. Prosper Business Development Corporation)
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.
United States District Court, Northern District of California, 31 August 2020
(Flextronics International USA, Inc. v. Murata Manufacturing Co., Ltd. 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
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
United States District Court, Southern District of New York, 28 August 2020, 17 Civ. 3145 (PGG)
(TBC Consultoria em Investimentos Financeiros Ltda. v. Gradual Corretora de Cambio, Titulos e Valores Mobiliarios S.A.)
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
Grounds for refusal of enforcement in general
522
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
United States District Court, Southern District of Florida, 25 August 2020, Case No. 20-cv-23505-BLOOM/Louis
(Peter David Ullrich, et al. v. Clarisse Ullrich, et al.)
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
United States District Court, District of Columbia, 13 May 2020 and 24 August 2020
(PAO Tatneft v. Ukraine)
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
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.
United States Court of Appeals, Tenth Circuit, 17 August 2020, No. 19-1151
(Compañía de Inversiones Mercantiles, S.A. v. Grupo Cementos de Chihuahua, S.A.B. de C.V.)
514
Ground e: Award not binding, suspended or set aside - "Binding"
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.
United States Court of Appeals, Eleventh Circuit, 10 August 2020, No. 19-12463 Non-Argument Calendar
(Martha Phillips, et al. v. NCL Corporation Ltd., a foreign corporation doing business as Norwegian Cruise Lines)
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.
United States District Court, Southern District of New York, 30 July 2020, 18-CV-8408 (VEC) (BCM)
(SSI (Beijing) Company Ltd. v. Prosper Business Development Corporation)
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)
● United States District Court, Southern District of New York, 30 July 2020, 20-cv-2284 (LJL)
(PB Life and Annuity Co. Ltd. v. Universal Life Insurance Company)
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"
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
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.
United States District Court, District of Columbia, 23 July 2020, No. 19-cv-3443 (KBJ)
(Cef Energia, B.V., et al. v. Italian Republic)
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.
United States District Court, Eastern District of Texas, Beaumont Division, 17 July 2020, NO.1:18-CV-00178-MAC
(Psara Energy, Ltd. v. Space Shipping, Ltd. et al.)
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
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
United States Court of Appeals, Fifth Circuit, 16 July 2020, No. 19-20435
(Vantage Deepwater Company et al. v. PETROBRAS America, Incorporated et al.)
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.
United States District Court, Southern District of New York, 15 July 2020, 20-cv-3029 (LJL)
(Precision Castparts Corp., et al. v. Schultz Holding GmbH & Co. KG, et al.)
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.
United States District Court, Southern District of California, 1 July 2020, Case No.: 3:19-CV-1979 W (AHG)
(Mullen Technologies, Inc. v. Qiantu Motor (Suzhou) Ltd.)
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.
United States District Court, Southern District of New York, 27 May 2020 and 23 June 2020, 19 Civ. 9347 (ER)
(Seaport Global Holdings LLC v. Petaquilla Minerals Ltd)
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
500
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
United States Court of Appeals, District of Columbia Circuit, 19 June 2020
(Federal Republic of Nigeria et al. v. Process and Industrial Developments 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)
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.
United States Court of Appeals, Fourth Circuit, 8 June 2020
(Denver Global Products, Inc. v. Roger Leon et al.)
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
215
Agreement providing for arbitration within forum's State
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.
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
United States District Court, Southern District of Texas, Corpus Christi Division, 2 June 2020, CIVIL ACTION NO. 2:20-CV-065
(Nueces County, Texas v. Certain Underwriters at Lloyd’s of London, 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.
Supreme Court of the United States, 1 June 2020
GE Energy Power Conversion France SAS, Corp., fka Converteam SAS v. Outokumpu Stainless USA, LLC 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
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)
United States District Court, Eastern District of Pennsylvania, 29 May 2020, CIIVIL ACTION NO. 18-1973
(CPR Management, S.A. v. Devon Park Bioventures, L.P. et al.)
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
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.
United States District Court, Southern District of Texas, Houston Division, 29 May 2020, CIVIL ACTION NO. 19-cv-00974
(5556 Gasmer Mgmt. LLC v. Underwriters at Lloyd’s, London)
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.
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)
United States District Court, District of Kansas, 22 May 2020, Case No. 20-mc-0105-EFM-GEB
(Dreymoor Fertilizers Overseas Pte. Ltd. v. Avagro, LLC, and UAB Avagro)
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)
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
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
United States District Court, Eastern District of Texas, Sherman Division, 21 May 2020, Civil Action No. 4:19-CV-00648-ALM
(Bayco Products Inc. v. ProTorch Company Inc. et al.)
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
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)
United States District Court, Southern District of New York, 12 May 2020, 20-cv-2284 (LJL)
(PB Life and Annuity Co. Ltd. v. Universal Life Insurance Company)
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
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.
United States District Court, Western District of North Carolina, Charlotte Division, 4 May 2020, DOCKET NO. 3:18-cv-00172-FDW-DSC
(Rachan Damidi Reddy v. Rashid A. Buttar)
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.
"Otherwise unable to present his case"
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.
United States District Court, District of Columbia, 22 April 2020, Civil Action No.: 18-2228 (RC)
(Entes Industrial Plants, Construction and Erection Contracting Co. Inc. v. The Kyrgyz Republic and The Ministry of Transport and Communications of the Kyrgyz Republic)
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).
United States District Court, Southern District of Florida, 10 April 2020, Civil Action No. 20-20059-Civ-Scola
(Productos Roche S.A. v. Iutum Services Corp. et al.)
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
509
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
United States District Court, District of Columbia, 4 December 2020, Case No. 18-cv-594 (CRC)
(Process and Industrial Developments Limited v. Federal Republic of Nigeria, et al.)
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)
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.
US No. 2020-9, OJSC Ukrnafta v. Carpatsky Petroleum Corporation, United States Court of Appeals, Fifth Circuit, No. 19-20011, 6 April 2020
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
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
505
Incapacity of party
508
Ground b: Violation of due process 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"
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"
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.
