CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ 60 YEARS OF THE NEW YORK CONVENTION ON THE RECOGNITION… its success through an impressive number of contracting States 1 and is still proving its success story – there have been around 15 new accessions within the last ten years. 2 The New York Convention applies to the recognition and enforcement of foreign arbitral awards and the referral by a domestic court to arbitration proceedings. It facilitates the enforcement of foreign arbitral awards in the territory of any of its numerous signatory States irrespective of the arbitration rules under which the proceedings were conducted. In States which did not make a so-called reciprocity reservation the Convention applies to the enforcement of all foreign awards regardless of the country in which they were rendered, i.e. including awards made in States which are not contracting parties to the New York Convention. 3 This approach guarantees the widest scope of application of the Convention. The New York Convention is frequently praised as one of the most important and successful United Nations treaties in the area of international trade law, 4 a champion among the treaties, 5 or expressed in opulent words “a secular, sacred text of the greatest practical significance to every inhabitant of the 21 st Century’s global village.” 6 It is without doubt that the Convention helped the business community to enter into cross-border transactions and make direct investments abroad. The New York Convention has brought a reasonable certainty for parties that their arbitration agreements and arbitral awards will be enforced. Under the New York Convention the courts of the contracting State will recognize written arbitration agreements and at the request of one of the parties will refer to arbitration any matter brought before them in respect of which there is an arbitration agreement. The only exception is a situation where the arbitration agreement is null and void, inoperative or incapable of being performed. 7 The contracting States shall also recognize foreign arbitral awards as biding and enforce them in accordance with their rules of procedure with limited grounds for refusal of enforcement. 8 Without the Convention in place domestic procedures for recognition and enforcement of a foreign award would have to be followed. These procedures vary from country to country and can be quite cumbersome with a degree of uncertainty as regards the results achieved. The New York Convention is often claimed to have a pro-enforcement bias. When comparing its enforcement mechanism with the Convention’s predecessors, i.e. the Geneva Protocol of 1923 9 and the Geneva Convention of 1927, 10 such statement is accurate. The New York Convention brought a substantial improvement and simplification of the enforcement 1 At present the UNCITRAL Secretariat reports 159 contracting States. See UNCITRAL. [online]. Available at: . [Accessed: 1. 6. 2018]. 2 See the status of the New York Convention. UNCITRAL. [online]. Available at: . [Accessed: 1. 6. 2018]. 3 Out of 159 contracting States approx.73 made the reciprocity reservation. 4 See UNCITRAL. Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), 2016 Edition. [online]. Available at: , p. IX. [Accessed: 1. 6. 2018]. 5 See e.g. PAULSON, Marike R. P. The 1958 New York Convention from an Unusual Perspective: Moving Forward by Parting With It. Indian Journal of Arbitration Law , 2017, Vol. 5, Issue 2, p. 23. 6 See VEEDER, Johnny. Is There a Need to Revise the New York Convention. Key Note Speech. In GAILLARD, Emmanuel (ed.) The Review of International Arbitral Awards , IAI Forum, 2008, p. 186. 7 Article II of the New York Convention. 8 Article III and V of the New York Convention. 9 Geneva Protocol on Arbitration Clauses of 24 September 1923. 10 Convention on the Execution of Foreign Arbitral Awards of 26 September 1927.

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