Court Decisions

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).

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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.

Court Decisions

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2022 Seychelles

Excerpt Topics

SEYCHELLES 5
Court of Appeal, 21 October 2022, Civil Appeal SCA 28/2020

(Vijay Construction (Proprietary) Limited v. Eastern European Engineering Limited)

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention
2021 Argentina

Excerpt Topics

ARGENTINA 9
Corte Suprema de Justicia de la Nación, 5 August 2021

(Milantic Trans S.A. v. Ministerio de la Producción (Astilleros Río Santiago))

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

301

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general

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
2020 Canada

Excerpt Topics

CANADA 44
Court of Queen’s Bench for Saskatchewan, 31 December 2020, QBG 368 of 2020

(Parrish & Heimbecker Ltd. v. TSM Winny AG 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

404

The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

Authentication and certification

500

The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

Grounds for refusal of enforcement in general

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
2020 United States

Excerpt Topics

UNITED STATES 1004
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", Â¶106)
2019 Seychelles

Excerpt Topics

SEYCHELLES 2
Supreme Court of Seychelles, 29 July 2019
European Engineering Ltd v. SJ (Seychelles) 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
2018 Philippines

Excerpt Topics

PHILIPPINES 9
Supreme Court of the Republic of the Philippines,  First Division, 5 December 2018
Mabuhay Holdings Corporation v. Sembcorp Logistics Limited

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

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

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.

Other cases
2018 Netherlands

Excerpt Topics

NETHERLANDS 64

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

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

516

Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.

"Set aside"

524

Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

Other cases
2017 Seychelles

Excerpt Topics

SEYCHELLES 1

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
2017 Netherlands

Excerpt Topics

NETHERLANDS 62

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

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.

"Set aside"
2017 Singapore

Excerpt Topics

SINGAPORE 14

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

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.

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
2016 Spain

Excerpt Topics

SPAIN 90

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

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

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

500

The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

Grounds for refusal of enforcement in general
2014 United States

Excerpt Topics

UNITED STATES 820

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
2012 Belize

Excerpt Topics

BELIZE 2 A
Court of Appeal of Belize, 8 August 2012

(The Attorney General of Belize v. BCB Holdings Limited, 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

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

303

The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

Estoppel/waiver

500A Residual power to enforce notwithstanding existence of ground for refusal

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

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.

Other cases
2012 United States

Excerpt Topics

UNITED STATES 772

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

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

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)
2012 Switzerland

Excerpt Topics

SWITZERLAND 46

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

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)

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
2012 Colombia

Excerpt Topics

COLOMBIA 8 B
Corte Suprema de Justicia, Civil Cassation Chamber, 3 May 2012

(Drummond Ltd. v. Instituto Nacional de Concesiones – INCO, 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

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

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

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

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

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"

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
2012 India

Excerpt Topics

INDIA 47

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

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

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.

"Set aside"
2011 Colombia

Excerpt Topics

COLOMBIA 8 A
Corte Suprema de Justicia, Civil Cassation Chamber, 19 December 2011

(Drummond Ltd. v. Instituto Nacional de Concesiones – INCO, 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

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

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

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

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

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"

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

COLOMBIA 7

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

303

The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

Estoppel/waiver

401

The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

Conditions to be fulfilled by petitioner in general

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

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

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

514 Ground e: Award not binding, suspended or set aside - "Binding"

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.

Other cases
2011 United States

Excerpt Topics

UNITED STATES 752

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

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)

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
2011 Romania

Excerpt Topics

ROMANIA 4

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
2011 Peru

Excerpt Topics

PERU 3

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

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

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
2010 France

Excerpt Topics

FRANCE 50

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
2010 United Kingdom

Excerpt Topics

UK 92

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

500A Residual power to enforce notwithstanding existence of ground for refusal

506

Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

Law applicable to the arbitration agreement

507

Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

Miscellaneous cases regarding the arbitration agreement
2010 Portugal

Excerpt Topics

PORTUGAL 3

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

301

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general
2009 Poland

Excerpt Topics

POLAND 1

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

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
2009 United Kingdom

Excerpt Topics

UK 87

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

301

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general

303

The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

Estoppel/waiver

500

The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

Grounds for refusal of enforcement in general

506

Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

Law applicable to the arbitration agreement

507

Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

Miscellaneous cases regarding the arbitration agreement
2008 United Kingdom

Excerpt Topics

UK 82 B
Court of Appeal (Civil Division), 21 October 2008

(Nigerian National Petroleum Corporation v. IPCO (Nigeria) Limited)

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

101

The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)

110

The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.

Arbitral award: types

512 Ground c: Excess by arbitrator of his authority - Excess of authority

601

The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

Adjournment of decision on enforcement

UK 82 A
High Court of Justice, Queen’s Bench Division, Commercial Court, 17 April 2008

(Nigerian National Petroleum Corporation v. IPCO (Nigeria) Limited)

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

101

The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)

110

The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.

Arbitral award: types

512 Ground c: Excess by arbitrator of his authority - Excess of authority

601

The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

Adjournment of decision on enforcement
2008 United States

Excerpt Topics

UNITED STATES 633

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

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
2007 United States

Excerpt Topics

UNITED STATES 614 B
United States Court of Appeals, Seventh Circuit, 29 August 2007

(Certain Underwriters at Lloyd’s v. Argonaut Insurance Company)

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

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, Â¶204)

229

Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.

Measures in aid of arbitration anti-suit injunction
2007 Canada

Excerpt Topics

CANADA 24

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

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.
2007 Spain

Excerpt Topics

SPAIN 65

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

301

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general

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

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

511

Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

"Otherwise unable to present his case"

513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure

514 Ground e: Award not binding, suspended or set aside - "Binding"

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

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

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(C) Art. VII(1): European Union (Treaties and Legislation)
2006 Australia

Excerpt Topics

AUSTRALIA 30 A
Federal Court of Australia, New South Wales District Registry, 22 August 2006

(Pan Australia Shipping Pty Ltd v. The Ship COMANDATE (NO 2))

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

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

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

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

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

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)
2006 United States

Excerpt Topics

UNITED STATES 614 A
United States District Court, Northern District of Illinois, Eastern Division, 8 August 2006

(Certain Underwriters at Lloyd’s v. Argonaut Insurance Company)

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

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, Â¶204)

229

Related court proceedings: The court discusses measures in aid of arbitration (e.g., anti-suit injunction). This topic also includes the issue of the relationship between the Convention and the recognition of a foreign judgment on the validity of the arbitration agreement.

Measures in aid of arbitration anti-suit injunction

UNITED STATES 531 B
United States District Court, Northern District of Illinois, Eastern Division, 19 April 2006

(Sankyo Corporation (Japan), et al. v. Nakamura Trading 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

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

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
2005 Germany

Excerpt Topics

GERMANY 91

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

301

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general

703(A) Multilateral treaties

704(B) Bilateral Treaties

GERMANY 92

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

301

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general

703(A) Multilateral treaties

704(B) Bilateral Treaties
2005 Canada

Excerpt Topics

CANADA 22

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

227

Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

Concurrent court proceedings ("indivisibility")
2005 United States

Excerpt Topics

UNITED STATES 531 A
United States Court of Appeals, Sixth Circuit, 15 March 2005

(Sankyo Corporation (Japan), et al. v. Nakamura Trading 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

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

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
2004 United Kingdom

Excerpt Topics

UK 67

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

217

The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

Referral to arbitration in general

224

The court discusses whether a declaratory judgment on the validity of the arbitration agreement is available under the Convention.

Declaratory judgment on validity arbitration agreement

704(C) Art. VII(1): European Union (Treaties and Legislation)
2004 United States

Excerpt Topics

UNITED STATES 528

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)

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

306

The court discusses the applicable period of limitation for seeking enforcement of an award.

Period of limitation for enforcement

500

The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

Grounds for refusal of enforcement in general

505 Incapacity of party
2004 Spain

Excerpt Topics

SPAIN 46

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)

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

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

514 Ground e: Award not binding, suspended or set aside - "Binding"

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

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

704(B) Bilateral Treaties
2001 Sweden

Excerpt Topics

SWEDEN 5

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

301

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general

512 Ground c: Excess by arbitrator of his authority - Excess of authority
2000 United States

Excerpt Topics

UNITED STATES 340

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)

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

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)

203-204 Formal validity, uniform law 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

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

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

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

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

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.

Other cases
1999 United States

Excerpt Topics

UNITED STATES 330

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

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

203-204 Formal validity, uniform law and municipal law

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

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, Â¶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", Â¶106)

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 287

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

205

The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.

Signatures

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

214-216 Field of application
1999 Cyprus

Excerpt Topics

CYPRUS 1

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

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
1997 United Kingdom

Excerpt Topics

UK 49 A
Court of Appeal (Civil Division), 16 December 1997, Decision No. QBCMI 97/0769/B

(Soinco SACI and Eural Kft v. Novokuznetsk Aluminium Plant, et al.)

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

301

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general

518

Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

Paragraph 2 - Distinction domestic-international public policy

UK 49 B
Court of Appeal (Civil Division), 16 December 1997, Decision no. QBCMI/97/1265/B

(Soinco SACI and Eural Kft v. Novokuznetsk Aluminium Plant, et al.)

001

The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.

Interpretation of the Convention

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
1996 United States

Excerpt Topics

UNITED STATES 228

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)

205

The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.

Signatures

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

301

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general

503

The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

Burden of proof on respondent

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 224

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

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

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

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", Â¶106)

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
1995 United States

Excerpt Topics

UNITED STATES 216

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

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

UNITED STATES 211

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

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

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.

214-216 Field of application
1995 Singapore

Excerpt Topics

SINGAPORE 1

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

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

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

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

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

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

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
1995 Italy

Excerpt Topics

ITALY 144

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

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

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

500

The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

Grounds for refusal of enforcement in general

501

The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.

Grounds are exhaustive

502

The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

No re-examination of the merits of the arbitral award

503

The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

Burden of proof on respondent
1994 Switzerland

Excerpt Topics

SWITZERLAND 30

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)

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

504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II

506

Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

Law applicable to the arbitration agreement

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
1994 India

Excerpt Topics

INDIA 25

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

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)

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

227

Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

Concurrent court proceedings ("indivisibility")
1992 Italy

Excerpt Topics

ITALY 142

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)

203-204 Formal validity, uniform law and municipal law

206

The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.

Exchange of letters or telegrams

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

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

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

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

504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II

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

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

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

704(B) Bilateral Treaties
1988 Kuwait

Excerpt Topics

KUWAIT 1

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)

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

503

The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

Burden of proof on respondent

514 Ground e: Award not binding, suspended or set aside - "Binding"

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