1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the deposit of the third instrument of ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession.
Travaux préparatoires on Article XII
A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations
A.1. ECOSOC: Report of the Committee on the Enforcement of Foreign Arbitral Awards: 18 March 1955
A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958
B. United Nations Conference On International Commercial Arbitration: Documents
B.9. Amendments by Governmental Delegations to the Drafts Submitted by the Working Parties and Further Suggested Drafts 3-5 June 1958
B.11. Text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards as Provisionally Approved by Drafting Committee 6-9 June 1958
B.14. Final Act and Convention on the Recognition and Enforcement of Foreign Arbitral Awards
C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958
D. Committee on the Enforcement of International Arbitral Awards
D.1. Summary Records of the Committee on the Enforcement of International Arbitral Awards
ANALYSIS1. Article XII governs the date of entry into force of the New York Convention.2. The Convention entered into force on 7 June 1959, ninety days following the deposit of the instrument of ratification by Egypt, Israel, Morocco and the Syrian Arab Republic. In accordance with article XII, Contracting States became bound by the Convention upon its entry into force on 7 June 1959 or ninety days after the deposit of any subsequent instrument of ratification or accession.1
1. For issues relating to the date of entry into force of the convention, see Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), Note by the Secretariat, A/CN.9/656, paras. 14-17.3. In addition to being relevant for the recognition and enforcement of arbitral awards under the Convention in the State concerned, the date on which the Convention becomes applicable in a given State may also be used as a point of reference when a State applies a reciprocity reservation.2
2. For a more detailed discussion on the reciprocity reservation, see the commentary on article I of the New York Convention.4. A question often arises whether the Convention applies to the recognition and enforcement of arbitration agreements entered into, and arbitral awards rendered, before the adoption of the Convention by the State concerned.5. As shown by the travaux préparatoires, that matter was discussed by the State delegations, and a proposal was made, but not adopted, that the Convention should only apply to arbitral awards rendered after the date of adoption of the Convention.3 Some States objected to this proposal on the basis that many arbitral awards would be denied the benefit of the Convention, which was intended to apply to as many awards as possible. As explained by Israel’s representative, “[s]ince the purpose of the draft Convention was to make recognition and enforcement as easy as possible; it would be in accordance with sound legal practice for it to apply to awards made before the Convention's entry into force”.4 The Swiss and French representatives further pointed out that “the Convention would apply only to unenforced awards which had not been brought before the courts. Such awards could not be many and there was no reason to exclude them. […] The majority of such awards were voluntarily enforced and the draft Convention would therefore apply retroactively only to awards whose enforcement had been prevented by the bad faith of the losing party”.5
3. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Twentieth Meeting, E/CONF.26/SR.20, at 12, where the Delegation from Yugoslavia questioned whether the Convention would “apply to [foreign arbitral awards] which had become operative after entry force [of the Convention] or also to those which had become operative before”. The drafting proposal to limit application of the convention to arbitral awards rendered after the coming into force of the Convention read: “This convention shall apply only to arbitral awards rendered after the entry into force of the Convention”.
4. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Twenty-first Meeting, E/CONF.26/SR.21, at 2.
5. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Twenty-first Meeting, E/CONF.26/SR.21, at 2-3.6. Since the Convention was adopted, very few States have formulated a reservation with regards to the retroactive application of the Convention.6
6. See information on reservations under the New York convention on the internet at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html.7. In the majority of Contracting States, courts have considered that the Convention applies to (i) arbitration agreements signed before the Convention’s entry into force in the enforcing State, and (ii) arbitral awards which pre-date the adoption of the Convention either by the State where the award was rendered or by the enforcing State.7
7. Albert Jan van den Berg, Does the New York Arbitration Convention of 1958 apply retroactively?: decision of the House of Lords in Government of Kuwait v. Sir Frederic Snow, 1 ARB. INT’L 103 (1985).8. First, courts have accepted to apply the Convention in situations where the contract containing the arbitration agreement had been signed before the Convention entered into force in the enforcing State.8 For instance, the Brazilian Superior Court of Justice held, without referring to article XII of the Convention, that the fact that the arbitration agreement was signed prior to the Arbitration Act implementing the Convention was immaterial because procedural laws, such as the Arbitration Act, had immediate effect under Brazilian law.9
8. Republic of Ecuador, Petroecuador (Ecuador) v Chevron Texaco Corporation, District Court, Southern District of New York, United States of America, 27 June 2005, XXXI Y.B. COM. ARB. 1162 (2006); Travel Automation Ltd. V. Abacus International Pvt. Ltd and others, High Court of Karachi, Pakistan, Suit No. 1318 of 2004, 14 February 2006, XXXII Y.B. COM. ARB (2007).9. Second, with few exceptions,10 courts have applied the Convention when an arbitral award had been rendered in a State which had not yet acceded to the Convention. For instance, the English House of Lords applied the 1975 Arbitration Act implementing the New York Convention to an arbitral award rendered in Kuwait prior to Kuwait’s accession to the Convention. Without referring to article XII, the House of Lords held that the relevant time to assess whether a State was a “contracting state” was the time of enforcement, and not the time the award was made.11 Similarly, a German court applied the New York Convention to enforce an arbitral award rendered in London one month prior to the United Kingdom’s accession to the Convention. The Court held that the Convention, having a procedural character, applies retroactively.12 Courts have also applied the Convention when an award was rendered before the State in which enforcement is sought had acceded to the Convention. In the United States, for instance, the Court of Appeals for the Second Circuit held that the Convention should apply retroactively to an arbitral award rendered in Japan on 18 September 1970, even though the Convention only came into force in the United States on 20 December 1970.13
10. See Societe Nationale pour la Recherche, le transport et la Commercialisation des Hydrocarbures (Sonatrach) v Ford, Bacon and Davis Inc., Court of First Instance of Brussels, Belgium, 6 December 1988, XV Y.B. COM. ARB. 370 (1990). See also Murmansk State Steamship Line v. Kano Oil Millers Ltd., Supreme Court, Nigeria, 11 December 1974, VII Y.B. COM. ARB. 349 (1982); Commoditex S.A. v. Alexandria Commercial Co., Court of Justice of Geneva, Switzerland, 12 May 1967, I Y.B. COM. ARB. 199 (1976).
11. Sir Frederic Snow & Partners and Others (UK) v. Minister Public Works of the Government of Kuwait, House of Lords, England and Wales, 1 March 1984, X Y.B. COM. ARB. 508 (1985).
12. German (F.R.) buyer v English seller, Hanseatisches Oberlandesgericht [OLG] Hamburg, Germany, 27 July 1978, IV Y.B. COM. ARB. 266 (1979). See also: German party v. Austrian party, Oberster Gerichtshof, Austria, 17 November 1965, I Y.B. COM. ARB. 182 (1976)
13. Copal Co Ltd. v. Fotochrome Inc., District Court, Eastern District of New York, United States of America, 4 June 1974 and Copal Co Ltd. v. Fotochrome Inc., Court of Appeals, Second Circuit, United States of America, 29 May 1975, I Y.B. COM. ARB. 202 (1976).10. In the same vein, certain courts have applied the Convention retroactively in accordance with their national legislation implementing the Convention. For instance, the Canadian Federal Court applied the Convention with respect to an award rendered one year prior to Canada’s accession pursuant to section 4(2) of the United Nations Foreign Arbitral Awards Convention Act, which provides that the Convention is to apply to “arbitral awards and arbitration agreements whether made before or after the coming into force of this Act”.14
14. Compania Maritima Villa Nova S.A. c. Northern Sales Co., Federal Court of Appeal, Canada, 20 November 1991.