Travaux préparatoires on Article XIV
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
A.3. Activities of Inter-Governmental and Non-Governmental Organizations in the Field of International Commercial Arbitration: Consolidated Report by the Secretary-General - 24 April 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.10. Text of Articles Adopted by the Conference: 4-6 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
1. Pursuant to article XIV, a Contracting State may only require another Contracting State to apply the Convention to the extent that it is itself bound by it. Article XIV is a general reciprocity clause that applies to obligations between Contracting States under all provisions of the Convention. This distinguishes article XIV of the Convention from article I(3), which contains a specific reciprocity provision that may be invoked by private parties in the context of enforcement proceedings.1
1. Albert Jan van den Berg, Article XIV 914 General Reciprocity Clause, XXVIII Y.B. COM. ARB 699 (2003). See also Patricia Nacimiento, Article XIV, in RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A GLOBAL COMMENTARY ON THE NEW YORK CONVENTION 541, at 544 (H. Kronke, P. Nacimiento, D. Otto, N.C. Port eds., 2010).
2. As reflected in the travaux préparatoires, article XIV was originally drafted in almost identical wording as a second paragraph of the then article X addressing the rights and duties of federal or non-unitary contracting states (now article XI).2 As drafted at the time, this proposed reciprocity provision did not meet unanimous approval, as some delegations wished to clarify that it would only apply to federal states.3 It was not until the United Nations Conference on International Commercial Arbitration convened for the preparation and adoption of the Convention that the representative for Norway proposed an amendment for a general reciprocity clause that would stand as a separate article.4 A majority of the delegates accepted this amendment on the very last day of the Conference.
2. Travaux préparatoires, Report of the Committee on the Enforcement of International Arbitral Awards, E/2704, E/AC.42/4/Rev.1, at 15-16, and E/2704, E/AC.42/4/Rev.1, Annex, at 5.
3. See for example the comments by Yugoslavia on article X: Travaux préparatoires, Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, E/2822/Add.6, Annex, at 2-3.
4. Travaux préparatoires, Consideration of the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Item 4 of the Agenda), Norway : proposed amendment to the draft Convention, E.CONF.26/L.28; Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Twenty-Fourth Summary Meeting, E/CONF.26/SR.24, at 6-7.
3. Parties opposing enforcement of an arbitration agreement or an arbitral award have rarely invoked article XIV and its reciprocity requirement. Based on available case law at the time of this Guide, enforcement of an arbitral award has never been denied on the basis of article XIV.5
5. See e.g., Union of India, and others v. Lief Hoegh & Co. and others, High Court of Gujarat, India, 4 May 1982, AIR 1983 Guj 34; Audi NSU Auto Union A.G. v. Overseas Motors, Inc., District Court, Eastern District of Michigan, Southern Division, United States of America, 9 August 1976, II Y.B. COM. ARB 252 (1977); M.A. Industries Inc. v. Maritime Battery Ltd., New Brunswick Court of Queen’s Bench, Canada, 19 August 1991, XVIII Y.B. COM. ARB 354 (1993); Odin Shipping Co. (Pte) Ltd. v. Aguas Industriales de Tarragona, Supreme Court, Spain, 4 October 1983, XI Y.B. COM. ARB. 528 (1986). See also, with respect to the recognition and enforcement of an arbitration agreement: McDermott International v Lloyds Underwriters of London, Court of Appeals, Fifth Circuit, United States of America, 14 February 1992, XVIII Y.B. COM. ARB. 472 (1993); Ken Acosta (US), et al. and others v. Master Maintenance and Construction Inc., et al. and others, Court of Appeals, Fifth Circuit, United States of America, 8 June 2006, 05-30126
4. One example of an unsuccessful attempt to rely on article XIV’s reciprocity requirement is found in Fertilizer Corporation of India v. IDI Management Inc., a decision from the United States District Court for the Southern District of Ohio. An arbitral award was rendered in India against a U.S. corporation, which argued before the Court that it should not be enforced in the United States on grounds that India would not have enforced the award had it been rendered in the United States in its favour, and that therefore, “the reciprocity between India and the United States as required by the Convention [article XIV] was absent”.6 The contesting party further argued that article XIV requires courts to determine the extent to which India applies the Convention and whether India treats awards rendered in India in favour of Indian parties in a similar manner. The Court rejected this argument and enforced the award, finding that the Convention’s reciprocity requirement was satisfied in that case. It noted that article XIV gave “states a defensive right to take advantage of another state’s reservations with regard to territorial, federal or other provisions”. The Court added that, in any event, it was satisfied that Indian courts were not engaged in a “devious policy to subvert the Convention by denying non-Indians their just awards”.
5. In another case, the United States Court of Appeals for the Fifth Circuit emphasized the importance of respecting the reciprocity undertaking in article XIV. The Court reasoned that the rights of U.S. citizens under the Convention in other countries depend on the extent to which the United States “implements the Convention within its own borders”.7
6. Leading commentators have confirmed that article XIV does not allow a Contracting State which has not made any reservation, to deny enforcement of an award rendered in another Contracting State which has made reservations. Conversely, a State which formulated a reservation under article I(3) would not be permitted to invoke the Convention against another Contracting State which had ratified the Convention without making any reservation.8
8. See Angela Kolbl, Commentary on Article XIV, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A COMMENTARY 529, at 531 (R. Wolff ed., 2012); Patricia Nacimiento, Article XIV, in RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A GLOBAL COMMENTARY ON THE NEW YORK CONVENTION 541, at 544 (H. Kronke, P. Nacimiento, D. Otto, N.C. Port eds., 2010).