CYIL vol. 9 (2018)

MONIKA FEIGERLOVÁ CYIL 9 ȍ2018Ȏ place. 19 In general, the enthusiasm for arbitration has weakened in recent years by dramatic development of investment arbitration which has not been perceived by many States positively and, thus, has created an unfavourable climate for a change. The idea of introducing an appeal on the merits in investment arbitration raises doubts of whether it would be even possible today to achieve such a liberal text as found in the New York Convention. In this context, the arbitration community praises the wording of the Convention even more than before ten years ago and at one of the many events organized to celebrate the 60 th anniversary some speakers called for the Convention to be awarded the Nobel Peace Prize. 20 The main proponent of the reform, Professor van den Berg, does not give up his efforts and remains optimistic. It took 25 years to replace the Geneva Protocol and the Geneva Convention, maybe 60 years are needed to amend the New York Convention. 21 Professor van den Berg identified two reasons for the effectiveness of the New York Convention being at risk. In his view, the scheme of the Convention no longer corresponds to the needs of the global community and the misguided judicial interpretation has precipitated the text beyond recognition. 22 He believes that an amendment is the only viable solution and UNICTRAL guidelines or other harmonizing instruments are not sufficient. 23 Although, there is no consensus on the actual need for a new convention or an update of the old convention and it is claimed that a uniform interpretation of the current text can be achieved by improving legislative and treaty interpretation tools and techniques, 24 the Miami Draft Convention of 2008 can, nevertheless, provide a useful starting-point for a detailed discussion over the problematic provisions of the New York Convention and a platform for reaching a possible consensus on concrete revisions, interpretation guidelines or accepted common practices. The article will not deal with all suggestions introduced by the Miami Draft Convention by analysing article by article. It will highlight the widely accepted shortcomings and then will focus on a potential change of the definition of the arbitral award in the Convention. Written Form of the Arbitration Agreement One of the most frequent complaints about the current system is Article II (1) and its requirement of the written form of the arbitration agreement. The plain text does not seem to cover tacit acceptance unlike many modern arbitration laws that contain less stringent criteria. The most controversial question is whether the definition of “an agreement in 19 E.g. the celebration of the 60 th anniversary organized under the auspices of UNCITRAL is yet to take place on 26 June 2018 in the UN Headquarters in New York. Program is available at: . [Accessed: 1. 6. 2018]. 20 ROSS, Alison. A Nobel Prize for the New York Convention? Global Arbitration Review . 10 May 2018. [online]. Available at: < https://globalarbitrationreview.com/article/1169361/a-nobel-prize-for-the-new-york- convention>. [Accessed: 1. 6. 2018]. 21 Report of the lecture “60 Years of the New York Convention – a Rewind to Fast-Forward”, 8 March 2018. [online]. Available at: . [Accessed: 1. 6. 2018]. 24 See for example efforts of UNCITRAL (Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)), of the ICC (ICC Task Force on National rules of procedure for recognition and enforcement of foreign arbitral awards pursuant to the New York Convention of 1958) or of the ICCA (ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges, 2011.) 22 Ibid. 23 Ibid.

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