CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ 60 YEARS OF THE NEW YORK CONVENTION ON THE RECOGNITION… writing” is exhaustive, meaning that the requirements stipulated in Article II (2) are exclusive criteria for qualifying an agreement to be in writing, or whether it is the bottom line, meaning that, while these criteria, if met, will constitute an agreement in writing, other indications of a writing would suffice as well as. The writing requirement of Article II seems to be inconsistent with contemporary business practices and to this effect the United Nations Commission on International Trade Law adopted Recommendation of 2006 suggesting that the definition of “in writing” in Article II (2) of the New York Convention shall be read as non-exhaustive (“UNCITRAL Recommendation of 2006”). 25 The UNCITRAL Recommendation of 2006 shall be instructive to national judges encouraging them to take a more liberal approach to interpret Article II (2) as to reflect on widening use of electronic commerce. 26 The opponents of the changes, thus, believe that the issue of the written form has been fixed and it does not justify interfering with the text of the Convention. The main proponent of the reforms, Professor van den Berg, opposes that the UNCITRAL Recommendation of 2006 does not respect the French and Spanish versions of the Conventions and that such a reading of Article II is contrary to drafting history and to the cannons of interpretation under the Vienna Convention on the Law of Treaties. 27 In addition, Professor van den Berg claims that the suggested interpretation has its limits as the text of Article II (2) requires either a signed contract or an exchange, which excludes less formal ways of acceptance. 28 More Favourable Right Another topic that has been identified for potential improvement is the “more favourable right provision of Article VII. Article VII basically stipulates that the Convention is the minimum standard and that States can always be more liberal in their arbitration laws. In other words, if domestic law or other treaties provide a more favourable right than the Convention to a party seeking to enforce an award, then that party can rely on the domestic law or the relevant treaty. The first question arises as to whether the Article applies not only to arbitral awards but also to arbitration agreements. An argument in favour of the application of Article VII to arbitration agreements can be based on the interpretation technique by analogy and given the purpose of Article VII of facilitating enforcement. Support for this position can be also found in the UNCITRAL Recommendation of 2006 which suggests reading Article VII as including arbitration agreements as well as arbitral awards. The second question is whether the domestic regime and the New York Convention regime are mutually exclusive or parties can be cherry-picking across the regimes. The latter option was applied by many judges and according to the proponent of the changes, Professor 25 UNCTRAL. Recommendation Regarding the Interpretation of Article II, Paragraph 2, and Article VII, paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (July 7, 2006). [online]. Available at: . [Accessed: 1. 6. 2018]. 26 Ibid. 27 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]. 28 VAN DEN BERG, Albert J. Explanatory Note. Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards. 29 May 2008. [online]. Available at: , para 33. [Accessed: 1. 6. 2018].

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