CYIL vol. 9 (2018)

MONIKA FEIGERLOVÁ CYIL 9 ȍ2018Ȏ process. It abolished the double exequatur and introduced limited number of grounds for objecting the enforcement of foreign arbitral awards. The burden of proof was shifted to the respondent and it also gave a wider effect to the enforcement of arbitration agreements. Despite its success a number of inaccuracies, redundancies and imperfections of the text of the New York Convention that cause difficulties to courts around the world in interpreting the Convention have been identified. Some scholars and practitioners call for revisiting the document as regards for example loosening the requirement of a written form for an arbitration agreement, amending the scope of its applicability so as to include interim measures and emergency measures of protection or settlement and mediation agreements, or only refining some of its provisions to make them concise and clear for judges interpreting the Convention around the globe and, thus, achieving the desired uniform interpretation. Specific provisions on enforcement of arbitral awards against sovereign States are another point for a debate. On the other hand, opponents of changes to the document praise the generality and stability of the instrument and express doubts that any interference with the text might not outweigh the rewards. 11 In addition, the multiplicity of jurisdictions that interpret the Convention will never arrive at fully harmonized results despite numerous efforts that seek to promote the uniformity of interpretation and application of the Convention by national courts. A number of initiatives aimed at analysing the decisions rendered on the basis of the New York Convention have been put forward and provide a comparative understanding of how the Convention is interpreted and applied. 12 The summaries of national courts’ decisions help to understand how various issues have been addressed in both civil law and common law jurisdictions in order to achieve universal and harmonious interpretation. The Convention, however, permits the application of national rules, if they are more favourable to the matter at hand, which by itself disturbs the desired harmonized results. The article will first analyse topics that merit the consideration for amendment. It will then focus on one area relating to the enforcement of interim measures of protection, including a suggestion of an amendment to an existing provision of the New York Convention. Final remarks will address the overall functionality of the instrument at the times of a more and more globalized world. Potential Areas for Amendment Already at the 40 th and 50 th anniversaries of the adoption of the New York Convention the questions of a reform started to resonate. 13 Upon the celebration of 50 years a so-called Miami 11 See e.g. GAILLARD, Emmanuel. Is There a Need to Revise the New York Convention? Dispute Resolution International (IBA) , Volume 2, No. 1, May 2008. 12 See e.g. http://www.newyorkconvention.org (information collected in association with the International Council for Commercial Arbitration and kluwerarbitration.com), or http://newyorkconvention1958.org (Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York) prepared by Professor Emmanuel Gaillard and Professor George Bermann at the request of UNCITRAL). See also UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), 2016 Edition http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/2016_ Guide_on_the_Convention.pdf. [Accessed: 1. 6. 2018]. 13 See e.g. FAVRE-BULLE, Xavier. 50 Years of the New York Convention on Enforcement of Awards: Conventional Wisdom and Recent Developments. In MÜLLER, Christoph, BESSON, Sébastien, RIGOZZI, Antonio (eds.) New Developments in International Commercial Arbitration , Schultness Editions Romandes, 2008, p. 61 et seq.;

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