Available documents (504)
21. Courts have found that only those decisions made by arbitrators that determine all or some aspects of the dispute, including jurisdiction,30 in a final and binding manner, can be considered “arbitral awards” within the meaning of the New York Convention.31 Accordingly, courts have found that in order for a decision to be considered an “arbitral award” under the New York Convention it needs to (i) be made by arbitrators (ii) resolve a dispute or part thereof in a final manner and (iii) be binding.32
30. See the chapter of the Guide on article I, paras. 28-32.
31. For a discussion of the effect of article I(2) and the notion of arbitral award within the meaning of the New York Convention, see the chapter of the Guide on article I, paras. 65-68.
32. See the chapter of the Guide on article V(1)(e), paras. 5-19.
See in context
22. First, reported case law shows that only decisions made by arbitrators are to be considered “awards” within the meaning of the New York Convention. For example, a United States court has held that a decision by the Permanent Court of Arbitration (“PCA”) denying a request for arbitration on the basis of a prima facie screening of the documentation submitted by the parties did not constitute an award within the meaning of the New York Convention. The court added that the decision of the PCA could not be regarded as an “award” because “no arbitrators were ever appointed to adjudicate the parties’ dispute”.33 Similarly, a United States court has held that a decision made by a third party determining a company’s share price was not an award made by arbitrators and the New York Convention was therefore inapplicable.34 Commentators are in broad agreement that decisions rendered in valuation and expert determination proceedings are not “awards made by arbitrators” and cannot be recognized and enforced under the New York Convention.35
33. Marks 3- Zet-Ernst Marks GmbH & Co. KG v. Presstek, Inc., District Court, District of New Hampshire, United States of America, 9 August 2005, Civ.05-CV-121-JD, XXXI Y.B. COM. ARB. 1256 (2006). See also, in the context of setting aside of an award, Société Opinter France v. Société Dacomex, Court of Appeal of Paris, France, 15 January 1985, 1986 REV. ARB. 87.
34. Frydman v. Cosmair Inc., District Court, Southern District of New York, United States of America, 25 July 1996, 94 Civ. 3772 LAP.
35. FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION 19, para. 25 (E. Gaillard, J. Savage eds., 1999); Bernd Ehle, Commentary on Article I, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS—COMMENTARY 26, 37 (R. Wolff ed., 2012); Domenico Di Pietro, What Constitutes an Arbitral Award Under the New York Convention, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS: THE NEW YORK CONVENTION IN PRACTICE 139, 145 (E. Gaillard, D. Di Pietro eds., 2008); CHARLES JARROSSON, LA NOTION D’ARBITRAGE 123, 158, 162 (1987).
See in context
23. Second, reported case law shows that decisions that finally resolve a dispute, either in whole or in part, are considered to be “awards” within the meaning of the Convention.36 For example, an Australian court held that for a decision to be an “arbitral award” within the meaning of the New York Convention, it needs to finally determine all or at least some of the matters submitted to the arbitral tribunal.37 Similarly, a United States court held that for a decision to be regarded as an “award”, it needs to finally and definitely dispose of a separate independent claim.38 In construing the “finality” requirement, a Colombian court held that awards are final “not because they put an end to the arbitration or to the tribunal’s function, but because they settle in a final manner some of the disputes that have been submitted to arbitration”.39
36. See the chapter of the Guide on article I, paras. 26-40.
37. Resort Condominiums International Inc. v. Ray Bolwell and Resort Condominiums, Pty. Ltd., Supreme Court of Queensland, Australia, 29 October 1993, XX Y.B. COM. ARB. 628 (1995).
38. Hall Steel Company v. Metalloyd Ltd., District Court, Eastern District of Michigan, Southern Division, United States of America, 7 June 2007, 492 F.Supp.2d 715, XXXIII Y.B. COM. ARB. 978 (2008).
39. Drummond Ltd. v. Instituto Nacional de Concesiones—INCO et al., Supreme Court of Justice, Colombia, 19 December 2011 and 3 May 2012, XXXVII Y.B. COM. ARB. 205 (2012) (with English translation). See also Resort Condominiums International Inc. v. Ray Bolwell and Resort Condominiums, Pty. Ltd., Supreme Court of Queensland, Australia, 29 October 1993, XX Y.B. COM. ARB. 628 (1995).
See in context
24. Third, reported case law shows that only a decision that is binding on the parties can be regarded as an “arbitral award” within the meaning of the New York Convention.40 For example, a German court has held that an award was binding because it was not subject to appeal either before another arbitral tribunal or a national court.41 Applying a similar approach, the French Court of Cassation refused to enforce an award on the ground that it was not binding because one of the parties was seeking review of the award before another arbitral tribunal.42
40. See the chapters of the Guide on article IV, paras. 68-72, and article V(1)(e), paras. 13-14. The burden of proving that an award has not become binding is on the party opposing enforcement.
41. See Bundesgerichtshof [BGH], Germany, 18 January 1990, III ZR 269/88.
42. La Société Diag v. The Czech Republic, Court of Cassation, France, 5 March 2014, 12-29.112.
See in context
25. Courts have applied the above two criteria—namely, the finality and the binding effect of an award—to decisions made by arbitrators when determining whether particular decisions qualify as “arbitral awards” under the Convention.
See in context
26. Courts have held that if a procedural order resolves an issue between the parties in a final manner, such order can be characterized as an “award” capable of being enforced under the New York Convention.43 For instance, the United States Court of Appeals for the Seventh Circuit held that a procedural order by which a tribunal directed one party to turn over certain tax records to the other was “final” and thus subject to recognition under the New York Convention. Another United States court has decided that a “Termination Order” ending arbitration proceedings for failure of the parties to pay the arbitration fees was a final award and enforceable under the Convention.44
43. Publicis Communication v. Publicis S.A., True North Communications Inc., Court of Appeals, Seventh Circuit, United States of America, 14 March 2000, 206 F.3d 725.
See in context
27. An Australian court has refused enforcement of an “Interim Arbitration Order and Award” by which the tribunal enjoined—until the final conclusion of the arbitration—a party from carrying out certain activities relating to a license contract, such as, inter alia, entering into a similar contract with another party or falling to carry out provisions of the license contract. The court found that the “Interim Arbitration Order and Award” did not amount to an enforceable award as it was of an “interlocutory and procedural nature” and did not attempt to finally solve the dispute between the parties.45
45. Resort Condominiums International Inc. v. Ray Bolwell and Resort Condominiums, Pty. Ltd., Supreme Court of Queensland, Australia, 29 October 1993, XX Y.B. COM. ARB. 628 (1995).
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / B. Meaning of “arbitral awards” / b. Awards on jurisdiction / §28
28. An issue that has arisen before courts is whether awards on jurisdiction are enforceable under the Convention. Reported case law on this issue is scarce and concerns the recognition and enforcement of awards that deal with both jurisdiction and the allocation of costs incurred during the jurisdictional phase of the proceedings.
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / B. Meaning of “arbitral awards” / b. Awards on jurisdiction / §29
29. Of the few reported cases, a United States court has held that an “Interim Final Arbitration Award” affirming jurisdiction and containing an assessment of costs was not enforceable under the New York Convention on the ground that arbitration proceedings were still ongoing and that the party seeking confirmation did not show that the enforcement of the award on jurisdiction was necessary to “preserve the status quo”.46 However, relying on previous case law, the court noted that an award need not conclusively resolve all matters in dispute for it to be eligible for recognition under the Convention, provided that the party seeking recognition and enforcement is able to identify an immediate need for relief.
46. Hall Steel Company v. Metalloyd Ltd., District Court, Eastern District of Michigan, Southern Division, United States of America, 7 June 2007, 492 F.Supp.2d 715, XXXIII Y.B. COM. ARB. 978 (2008).
See in context
3. First, article I gives the New York Convention a broader scope than the 1927 Geneva Convention. Pursuant to article I(1), the New York Convention applies to awards made in any foreign State, irrespective of whether that State is a Contracting State.3 During the United Nations Conference on International Commercial Arbitration convened for the preparation and adoption of the Convention (“the Conference”), it was noted that maintaining the wording of the 1927 Geneva Convention, which provided for enforcement of only those awards that were made in a Contracting State, could give rise to the “paradoxical” situation where the award creditor and award debtor are both nationals of Contracting States, but the award cannot be enforced under the Convention because the State in which the award was made is not a party to the Convention.4 To avoid such a situation, the drafters of the New York Convention discarded the mandatory reciprocity requirement contained in the 1927 Geneva Convention and replaced it with an opt-in reciprocity reservation at article I(3).
3. Javier Rubinstein, Georgina Fabian, The Territorial Scope of the New York Convention and Its Implementation in Common and Civil Law Countries, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS: THE NEW YORK CONVENTION IN PRACTICE 91, 95 (E. Gaillard, D. Di Pietro eds., 2008).
4. Travaux préparatoires, Recognition and Enforcement of Foreign Arbitral Awards, Report by the Secretary-General, Annex II, Comments by Non-Governmental Organizations, E/2822, p. 8.
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / B. Meaning of “arbitral awards” / b. Awards on jurisdiction / §30
30. The Supreme Court of Queensland, Australia, has held that an interim award refusing jurisdiction and containing a decision on costs is enforceable under the New York Convention. The court noted that the fact that “there was no determination [...] on the merits can have no relevance to the ability of the Respondent [...] to enforce the interim award [...] with respect to the costs”.47
47. Austin John Montague v. Commonwealth Development Corporation, Supreme Court of Queensland, Australia, 27 June 2000, Appeal No. 8159 of 1999, DC No. 29 of 1999, XXVI Y.B. COM. ARB. 744 (2001). See also Bundesgerichtshof [BGH], Germany, 18 January 2007, III ZB 35/06; Hanseatisches Oberlandesgericht [OLG] Hamburg, Germany, 14 March 2006, 6 Sch 11/05.
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / B. Meaning of “arbitral awards” / b. Awards on jurisdiction / §31
31. In one case, a Colombian court refused to grant enforcement of an “Interlocutory Award on Jurisdiction” on the ground that an award affirming the jurisdiction of a tribunal does not “substantially put an end to the arbitral proceedings and settle the dispute” and thus cannot be considered as falling under the New York Convention.48
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / B. Meaning of “arbitral awards” / b. Awards on jurisdiction / §32
32. Commentators have taken the view that awards on jurisdiction can be considered as genuine “awards” capable of recognition and enforcement under the New York Convention.49
49. FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION 739, para. 1357 (E. Gaillard, J. Savage eds., 1999); Domenico Di Pietro, What Constitutes an Arbitral Award Under the New York Convention, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS: THE NEW YORK CONVENTION IN PRACTICE 139, 153 (E. Gaillard, D. Di Pietro eds., 2008); GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 2935-36 (2014).
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / B. Meaning of “arbitral awards” / c. Interim or partial awards / §33
33. Courts have considered whether interim or partial awards are enforceable under the Convention. For example, a Bulgarian court has held that a partial award requiring one party to pay certain sums to the other was not enforceable under the Convention because it did not finally settle the dispute between the parties. The court added that the lack of finality was further demonstrated by the fact that the arbitration proceedings were still pending.50
50. ECONERG Ltd. v. National Electricity Company AD, Supreme Court of Appeal, Civil Collegium, Fifth Civil Department, Bulgaria, 23 February 1999, 356/99, XXV Y.B. COM. ARB. 678 (2000).
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / B. Meaning of “arbitral awards” / c. Interim or partial awards / §34
34. Other courts have held that an interim or partial award amounts to an “award” within the meaning of the Convention, if it finally determines at least part of the dispute referred to arbitration.51 For example, a German court held that an interim award containing a binding decision on some of the claims advanced is capable of recognition and enforcement under the New York Convention.52 Similarly, the Supreme Court of Justice of Colombia held that a “Partial Award” amounted to an “award” within the meaning of the New York Convention. In so doing, the court noted that the award settled in a final manner “several of the (counter-) claims”.53 Similarly, a United States court held that “an interim award that finally and definitely disposes of a separate, independent claim may be confirmed notwithstanding the absence of an award that finally disposes of all claims that were submitted to arbitration”.54 Noting that a partial award decided claims that were severable from the rest of the claims in the pending arbitration proceedings, the court granted recognition of the partial award under the New York Convention.
51. Resort Condominiums International Inc. v. Ray Bolwell and Resort Condominiums, Pty. Ltd., Supreme Court of Queensland, Australia, 29 October 1993, XX Y.B. COM. ARB. 628 (1995).
52. Oberlandesgericht [OLG] Thüringen, Germany, 8 August 2007, 4 Sch 03/06.
53. Drummond Ltd. v. Instituto Nacional de Concesiones—INCO et al., Supreme Court of Justice, Colombia, 19 December 2011 and 3 May 2012, XXXVII Y.B. COM. ARB. 205 (2012) (with English translation).
54. Alcatel Space, S.A. v. Alcatel Space Industries, S.A. and others, District Court, Southern District of New York, United States of America, 25 June 2002, 02 Civ.2674 SAS, XXVIII Y.B. COM. ARB. 990 (2003).
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / B. Meaning of “arbitral awards” / c. Interim or partial awards / §35
35. In an obiter dictum, the Italian Court of Cassation noted that a partial award on liability could be enforced in Italy under the New York Convention.55 The Court of Cassation added that a final award on the level of damages can be considered separately from an interim award on liability for the purposes of enforcement.
See in context
36. The Convention is silent on the question of its applicability to decisions that record the terms of a settlement between parties. During the Conference, the issue of the application of the Convention to such decisions was raised, but not decided upon.56 Reported case law does not address this issue.
56. Travaux préparatoires, Recognition and Enforcement of Foreign Arbitral Awards, Report by the Secretary-General, Annex I, Comments by Governments, E/2822, pp. 7, 10; Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Consideration of the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, E/CONF.26/L.26. See also Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Activities of Inter-Governmental and Non-Governmental Organizations in the Field of International Commercial Arbitration, Consolidated Report by the Secretary-General, E/CONF.26/4, p. 26.
See in context
37. The question of whether an award rendered in an arbitrato irrituale (informal arbitration) falls within the scope of the New York Convention has also arisen. An arbitrato irrituale is based on the parties’ intentions and results in an award which is essentially a contract. Awards rendered in such proceedings bind the parties as soon as they are rendered, but can only be enforced after being confirmed by a competent court.57
See in context
38. The German Supreme Court held that the Convention applies neither to the recognition nor the enforcement of a lodo irrituale, i.e., an award rendered in an arbitrato irrituale. The court noted that a lodo irrituale can be compared to an interlocutory decision “because it offers the possibility of obtaining a judgment thereon by which it becomes a final judgment”.58 A similar view has been taken by another German court that has held that an award which has the effect of a contract and not a judgment cannot be enforced under the New York Convention.59
58. Compagnia Italiana di Assicurazioni (COMITAS) S.p.A., Società di Assicurazioni Gia Mutua Marittima Nazionale (MUTUAMAR) S.p.A. and others v. Schwartzmeer und Ostsee Versicherungsaktiengesellschaft (SOVAG), Bundesgerichtshof [BGH], Germany, 8 October 1981, VIII Y.B. COM. ARB. 366 (1983) (with English translation).
See in context
39. On the other hand, in the context of proceedings in which one party sought a referral to arbitration pursuant to article II of the Convention, the Italian Court of Cassation noted obiter that a lodo irrituale falls within the scope of the Convention.60 The court reasoned that the fact that the New York Convention refers to “an arbitral award which has a binding force between the parties, [...] does not signify as such that the binding force must necessarily operate on the judicial level”.61 The court added that the New York Convention has eliminated the double exequatur requirement, and that therefore there is no need to obtain an exequatur decision in the State where a lodo irrituale was rendered in order for it to be enforceable under the Convention.62 In a further decision, also in the context of referral proceedings, the Italian Court of Cassation stated obiter that the New York Convention should be interpreted “as broadly as possible”, by taking into account “the difference in law and mentality in the various Contracting States”.63 The court reasoned that differences between a regular arbitration (i.e., arbitrato rituale) and an informal arbitration (i.e., arbitrato irrituale) should be irrelevant for the purposes of enforcement under the New York Convention.
60. Gaetano Butera v. Pietro e Romano Pagnan, Court of Cassation, Italy, 18 September 1978, 4167, IV Y.B. COM. ARB. 296 (1979); Colella Legnami S.p.A. v. Carey Hirsch Lumber Company, Court of Cassation, Italy, 6 July 1982, 4039, IX Y.B. COM. ARB. 429 (1984).
61. Gaetano Butera v. Pietro e Romano Pagnan, Court of Cassation, Italy, 18 September 1978, 4167, IV Y.B. COM. ARB. 296 (1979) (with English translation).
62. Id.
63. Colella Legnami S.p.A. v. Carey Hirsch Lumber Company, Court of Cassation, Italy, 6 July 1982, 4039, IX Y.B. COM. ARB. 429 (1984) (with English translation).
See in context
4. Second, the 1927 Geneva Convention applied only to arbitral awards that were rendered in proceedings “between persons who are subject to the jurisdiction of one of the High Contracting Parties”.5 Considering this requirement to be “vague and ambiguous”,6 the ad hoc Committee established by the United Nations Economic and Social Council (the “ECOSOC ad hoc Committee”) removed it from the 1955 draft Convention. The Yugoslav delegate then suggested that the requirement be reinstated,7 but this proposal was expressly rejected by the other delegates, thereby indicating that, unlike in the case of the 1927 Geneva Convention, the scope of application of the New York Convention does not depend on the nationality or residence of the parties to the arbitration proceedings.8
5. See article 1 of the 1927 Geneva Convention. See also Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Comments on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Note by the Secretary-General, E/CONF.26/2, p. 2.
6. Travaux préparatoires, Report of the Committee on the Enforcement of International Arbitral Awards, E/2704, E/AC.42/4/Rev.1., p. 7.
7. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Consideration of the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, E/CONF.26/L.12. See also Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Record of the Sixteenth Meeting, E/CONF.26/SR.16, p. 6.
8. The nationality or residence may, however, play a role in the context of “non-domestic awards”. An enforcing court may deem an award rendered in its territory “non-domestic” if one or both parties to arbitration are foreign or reside abroad. It should be noted that, in this regard, the nationality is used to enlarge the scope of the Convention, rather than to restrict it. See below paras. 53-55. See also ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL INTERPRETATION 15 (1981); GEORGIOS PETROCHILOS, PROCEDURAL LAW IN INTERNATIONAL ARBITRATION 360, para. 8.54 (2004).
See in context
40. Commentators are generally of the view that a lodo irrituale does not amount to an “arbitral award” under the New York Convention.64
64. See Bernd Ehle, Commentary on Article I, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS OF 10 JUNE 1958—COMMENTARY 26, 40 (R. Wolff ed., 2012); ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL INTERPRETATION 47 (1981); Domenico Di Pietro, What Constitutes an Arbitral Award Under the New York Convention, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS: THE NEW YORK CONVENTION IN PRACTICE 139, 148 (E. Gaillard, D. Di Pietro eds., 2008); contra GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 2925 (2014).
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / C. Arbitral awards falling within the scope of the Convention / §41
41. In the 1955 draft of the Convention, article I provided that the Convention applied to the “recognition and enforcement of arbitral awards made in the territory of a State other than the State in which such awards are relied upon”. The 1955 draft of the Convention adopted a “territorial criterion” for determining the application of the Convention, focusing on the place where the award was rendered. The application of this territorial criterion excluded from the scope of the Convention awards that were rendered in the State where recognition and enforcement was sought. This made the 1955 draft of the Convention more restrictive than the 1927 Geneva Convention.65
65. Pursuant to article 1, the 1927 Geneva Convention applied to awards rendered “in the territory of one of the High Contracting Parties”. This wording did not exclude from the scope of the 1927 Geneva Convention awards rendered in the States where enforcement was sought, provided that they were made between persons “subject to the jurisdiction of the Contracting States”. See also Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Comments on the Recognition and Enforcement of Foreign Arbitral Awards, Note by the Secretary-General, E/CONF. 26/2, p. 2.
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / C. Arbitral awards falling within the scope of the Convention / §42
42. Delegates from several countries considered that the narrow territorial approach taken by the ECOSOC ad hoc Committee placed undue emphasis on the seat of arbitration, which was often chosen “as a matter of convenience”66 and could be “fortuitous and artificial”.67 For these reasons, delegates from Austria, Belgium, Germany, France, Italy, Netherlands, Sweden and Switzerland jointly proposed a draft amendment to article I(1), pursuant to which the Convention would apply to awards “other than those considered as domestic in the country in which they are relied upon”.68
66. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Comments on Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Note by the Secretary-General, E/CONF.26/2, p. 3.
67. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Record of the Fifth Meeting, E/CONF.26/SR.5, p. 8.
68. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Consideration of the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards - Austria, Belgium, Federal Republic of Germany, France, Italy, Netherlands, Sweden, Switzerland: amendment to article I, paragraph 1, of the draft Convention, E/CONF.26/L.6.
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / C. Arbitral awards falling within the scope of the Convention / §43
43. The matter was referred to a working party composed of representatives of ten States, which was tasked with reconciling the views of those “favouring the principle of the place of arbitration and those favouring the principle of the nationality of the arbitral award”.69 The working party proposed a text of article I, which was later adopted by the Conference that included both the “territorial” and the “non-domestic” criteria.70 The Convention thereby recognizes that Contracting States may want to consider factors other than the seat of the arbitration when determining whether an award falls within the scope of the Convention.71
69. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Consideration of the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards , Report of Working Party No. 1 on article I, paragraph 1 and article II of the draft Convention (E/2704 and Corr.1), E/CONF.26/L.42. The Working Group was composed of: Colombia, Czechoslovakia, the Federal Republic of Germany, France, India, Israel, Italy, Turkey, the Union of Soviet Socialist Republic and the United Kingdom.
70. See also Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Record of the Sixth Meeting, E/CONF.26/SR.6, p. 8.
71. Phillipe Fouchard, Quand un arbitrage est-il international?, 1970 REV. ARB. 59, 65. For the approach adopted under chapter 8 of the UNCITRAL Model Law on International Commercial Arbitration, see paragraph 50 of the Explanatory Note by the UNCITRAL secretariat on the Model Law, available on the Internet at www.unictral.org.
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / C. Arbitral awards falling within the scope of the Convention / a. Awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” / §44
44. Pursuant to the first sentence of article I(1), the New York Convention applies to awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought”. Unless a State has made a reciprocity reservation pursuant to article I(3),72 the Convention applies to awards made in any State, whether or not a Contracting State.73
72. See the chapter of the Guide on article I, paras. 70-82.
73. Black Sea Shipping Co. v. Italturist SpA, Court of Appeal of Milan, Italy, 4 October 1991, 1618, XVIII Y.B. COM. ARB. 415 (1993); Oberlandesgericht [OLG] Stuttgart, Germany, 18 October 1999, 5 U 89/98, XXIX Y.B. COM. ARB. 700 (2004); R S.A. v. A Ltd., Court of Justice of Geneva, Switzerland, 15 April 1999; Cadena de Tiendas Venezolanas SA - Cativen v. GMR Asesores SL Inmomercado and others, Court of Appeal of Madrid, Spain, 1 April 2009, 63/2009 (Section 10), XXXV Y.B. COM. ARB. 448 (2010). See also Bernd Ehle, Commentary on Article I, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS OF 10 JUNE 1958—COMMENTARY 26, 56 (R. Wolff ed., 2012); Javier Rubinstein, Georgina Fabian, The Territorial Scope of the New York Convention and Its Implementation in Common and Civil Law Countries, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS: THE NEW YORK CONVENTION IN PRACTICE 91, 95 (E. Gaillard, D. Di Pietro eds., 2008); ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL INTERPRETATION 12 (1981).
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / C. Arbitral awards falling within the scope of the Convention / a. Awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” / §45
45. In certain jurisdictions, the criterion expressed in the first sentence of article I(1) is the only one used to determine whether or not an award falls within the scope of the Convention. Thus, in several jurisdictions—including Australia,74 Brazil,75 Cameroon,76 England,77 Germany,78 Luxembourg,79 the Netherlands80 and Spain81—an award falls within the scope of the New York Convention only when it is made in a State other than the State where recognition and enforcement is sought.
74. FG Hemisphere Associates LLC v. Democratic Republic of Congo, Supreme Court of New South Wales, Australia, 1 November 2010, [2010] NSWSC; Uganda Telecom Ltd. v. Hi-Tech Telecom Pty Ltd., Federal Court, Australia, 22 February 2011, NSD 171 of 2010. See also Section 3 of the 1974 Australian International Arbitration Act, amended in 2011 (“Foreign award means an arbitral award made, in pursuance of an arbitration agreement, in a country other than Australia, being an arbitral award in relation to which the Convention applies”).
75. Nuovo Pignone SPA and others v. Petromec Inc. and Marítima Petróleo e Engenharia Ltda, Superior Court of Justice, Brazil, 24 May 2011, Special Appeal 1.231.554. See Article 34 of the 1996 Brazilian Arbitration Act (“A foreign arbitral award is an award made outside of the national territory”).
77. Yukos Oil Co. v. Dardana Ltd., Court of Appeal, England and Wales, 18 April 2002, [2002] EWCA Civ 543; IPCO v. Nigerian National Petroleum Corp., High Court of Justice, England and Wales, 17 April 2008, [2008] EWHC 797 (Comm). See also Section 100(1) of the 1996 English Arbitration Act (“'[a] New York Convention award’ means an award made, in pursuance of an arbitration agreement, in the territory of a state (other than the United Kingdom) which is a party to the New York Convention”).
78. German courts initially held that an award falls within the scope of the Convention when a foreign procedural law governs the arbitration proceedings, irrespective of the place where the award is made. After the adoption of the 1998 German Arbitration Act, German courts have held that the only relevant criterion to be taken into account when determining whether an award is domestic or falls within the scope of the Convention, is the geographical location where the award was rendered. See Oberlandesgericht [OLG] München, Germany, 28 November 2005, 34 Sch 019/05; Kammergericht [KG] Berlin, Germany, 17 April 2008, 20 Sch 02/08, XXXIV Y.B. COM. ARB. 510 (2009).
79. Kersa Holding Company Luxembourg v. Infancourtage, Famajuk Investment and Isny, Court of Appeal, Luxembourg, 24 November 1993, XXI Y.B. COM. ARB. 617 (1996).
80. LoJack Equipment Ireland Ltd. v. A, Voorzieningenrechter, Court of First Instance of Amsterdam, Netherlands, 18 June 2009, 411230/KG RK 08-3652, XXXIV Y.B. COM. ARB. 715 (2009). See also article 1075 of the 2004 Netherlands Arbitration Act (“An arbitral award made in a foreign State to which a treaty concerning recognition and enforcement is applicable may be recognized and enforced in the Netherlands”).
81. Cadena de Tiendas Venezolanas SA - Cativen v. GMR Asesores SL Inmomercado and others, Audiencia Provincial, Court of Appeal of Madrid, Spain, 1 April 2009, 63/2009 (Section 10), XXXV Y.B. COM. ARB. 448 (2010). See also article 46 (1) of the 2003 Spanish Arbitration Act as amended in 2011 (“A foreign award is an award which has been issued outside of Spanish territory”).
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / C. Arbitral awards falling within the scope of the Convention / a. Awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” / §46
46. The Indian Supreme Court initially held that awards rendered in the territory of another State under Indian procedural law were domestic awards and did not fall within the scope of the New York Convention.82 More recently, the Indian Supreme Court has reversed this approach and held that awards rendered in the territory of another State “would only be subject to jurisdiction of Indian courts when [they] are sought to be enforced in India” in accordance with the legislative provisions implementing the New York Convention. The Court added that this holding would be applicable ex nunc “to all arbitration agreements executed [after 6 September 2012]”.83
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / C. Arbitral awards falling within the scope of the Convention / a. Awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” / §47
47. In China, courts have held that an award falls within the scope of the Convention when it is rendered under the auspices of a foreign arbitral institution. In one case, a court held that an award rendered in Paris fell within the scope of the New York Convention because it was rendered by “the arbitral tribunal of the International Chamber of Commerce” (“ICC”).84 In another case, a court held that an award rendered in Mongolia was subject to enforcement under the Convention, because it “was made by a Mongolian institution”.85 Chinese courts have further held that awards rendered in ad hoc arbitration proceedings are enforceable under the New York Convention provided that the seat of the arbitration is in a country other than China.86
84. Hemofarm DD, MAG International Trade Holding DD, Suram Media Ltd. v. Jinan Yongning Pharmaceutical Co. Ltd., Supreme People’s Court, China, 2 June 2008, [2008] Min Si Ta Zi No. 11 (unofficial translation).
85. Aiduoladuo Co., Ltd. v. Zhejiang Zhancheng Construction Group Co., Ltd., Supreme People’s Court, China, 8 December 2009, [2009] Min Si Ta Zi No. 46 (unofficial translation).
See in context I / 2. ANALYSIS (I) / ARTICLE I(1) / C. Arbitral awards falling within the scope of the Convention / a. Awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” / §48
48. With respect to jurisdictions—including Belgium, France, Panama, Peru, Sweden, Switzerland, and Tunisia—that allow parties, in certain circumstances, to opt out of setting aside actions altogether,87 the question has arisen whether an award would still be enforceable under the New York Convention if the parties had availed themselves of this possibility. Although there is no reported case law on this issue, commentators have generally taken the view that the waiver does not have any bearing on the enforceability of the award under the Convention,88 and that a party may nevertheless seek the enforcement of such award, pursuant to the first sentence of article I(1) of the New York Convention.89 Indeed, the Convention applies to awards made in the territory of another Contracting State, without requiring that a certain level of control be exercised in the territory of that State.90
87. See, e.g., article 1718 of the 2013 Belgian Judicial Code, article 1522 of the 2011 French Civil Code of Procedure; article 36 of the 2006 Panama Legislative Decree; article 63(8) of the Peruvian 2008 Legislative Arbitration Decree; article 51 of the 1999 Swedish Arbitration Act; article 192 of the 1987 Swiss Private International Law Act; article 78(6) of the 1993 Tunisian Arbitration Code.
88. ADAM SAMUEL, JURISDICTIONAL PROBLEMS IN INTERNATIONAL COMMERCIAL ARBITRATION: A STUDY OF BELGIAN, DUTCH, ENGLISH, FRENCH, SWEDISH, SWISS, U.S. AND WEST GERMAN LAW 296 (1989).
89. See, e.g., Markus Wirth, Chapter 12 PILA—Is it Time for Reform? If Yes, What Shall be Its Scope in NEW DEVELOPMENTS IN INTERNATIONAL COMMERCIAL ARBITRATION 51, 72 (C. Muller, A. Rigozzi eds., 2011); Bernard Hanotiau, Olivier Caprasse, Introductory Report, in THE REVIEW OF INTERNATIONAL ARBITRAL AWARDS, IAI SERIES ON INTERNATIONAL ARBITRATION NO. 6, 7, 84 (E. Gaillard ed., 2010); Jan Paulsson, Arbitration Unbound in Belgium, 2(1) ARB. INT’L 72-73 (1986); Emmanuel Gaillard, The Enforcement of Awards Set Aside in the Country of Origin, 14 ICSID REV. 16, 34 (1999); Domitille Baizeau, Commentary on Chapter 12 PILS, Article 192: Waiver of annulment, in ARBITRATION IN SWITZERLAND: THE PRACTITIONER’S GUIDE 283, 291 (M. Arroyo ed., 2013); Elliott Geisinger, Alexandre Mazuranic, Challenge and Revision of the Award, in INTERNATIONAL ARBITRATION IN SWITZERLAND: A HANDBOOK FOR PRACTITIONERS 223, 258 (E. Geisinger, N. Voser eds., 2nd ed. 2013).
90. The same conclusion applies with respect to the “non-domestic criterion” set out in the second sentence of article I(1) of the Convention. See, e.g., Federal Tribunal, Switzerland, 31 October 2005, 4P/198/2005/sza. Article 192(2) of the Swiss Private International Law Act provides that “if the awards are to be enforced in Switzerland, the New York Convention of June 10, 1958 on the Recognition and Enforcement of Foreign Arbitral Awards applies by analogy”. See also article 78(6) of the 1993 Tunisian Arbitration Code, article 51 of the 1999 Swedish Arbitration Act and article 1522 (2) of the 2011 French Civil Code of Procedure.
See in context