INTRODUCTION

ANALYSIS

• A. General principle

  • a. Obligation to recognize arbitral awards as binding and enforce them

    7. The first sentence of article III provides that “[e]ach Contracting State shall recognize arbitral awards as binding and enforce them”.³⁶⁵

    365. The obligation to recognize and enforce arbitral awards under the Convention is not binding on States that are not parties to the Convention. See The Attorney General of Belize v. BCB Holdings Limited and The Belize Bank Limited, Supreme Court, Belize, 8 August 2012, XXXVIII Y.B. Com. Arb. 324 (2013), in which the Belize Supreme Court ruled that it had no legal obligation to recognize and enforce arbitral awards in accordance with Article III because Belize was not a Contracting State.

    8. The general principle set forth by article III has been referred to by a number of courts as embodying Convention’s “pro-enforcement bias”. For example, a United States court stated that “[t]he Convention and its implementing legislation have a pro-enforcement bias [...]”, of which “[a]rt. III of the Convention is illustrative”.³⁶⁶The Court of Appeal of England and Wales also held that, pursuant to this principle, foreign arbitral awards are entitled to a “prima facie” right to recognition and enforcement.³⁶⁷ A number of other courts have expressed the same view.³⁶⁸

    366. Glencore Grain Rotterdam BV. v. Shivnath Rai Harnarain Company, Court of Appeals, Ninth Circuit, United States of America, 26 March 2002, 01-15539.

    367. See, e.g., Yukos Oil Co. v. Dardana Ltd., Court of Appeal, England and Wales, 18 April 2002, A3/2001/102.

    368. See, e.g., Gouvernement de la région de Kaliningrad (Fédération de Russie) v. République de Lituanie, Court of Appeals of Paris, France, 18 November 2010, 09/19535; Sojuznefteexport (SNE) (Russian Federation) v. Joc Oil Ltd. (Bermuda), Court of Appeal of Bermuda, Bermuda, 7 July 1989, XV Y.B. Com. Arb. 384 (1990); AO Techsnabexport (Russian Federation) v. Globe Nuclear Services and Supply, Limited (United States of America), District Court, District of Maryland, United States of America, 28 August 2009, AW-08-1521, XXXIV Y.B. Com. Arb. 1174 (2009); WTB—Walter Thosti Boswau Bauaktiengesellschaft (Germany) v. Costruire Coop. srl (Italy), Court of Cassation, Italy, 7 June 1995, 6426.

    9. Courts of the Contracting States have frequently pointed to the mandatory nature of the obligation under article III, which results from the word “shall”.³⁶⁹ For example, a court in Cameroon noted that “the meaning of article I and article III [...] is that Cameroon having signed the New York Convention of 1958 is bound to recognize and enforce arbitral awards made in another contracting State”.³⁷⁰ A Bulgarian court similarly found that “by virtue of Art. III [...], each signatory country [to the Convention] shall recognize the validity of the final arbitration award and shall allow its enforcement”.³⁷¹ An Italian court ruled that “article III of the Convention obliges sic et simpli[ci]ter a Contracting State to recognize and enforce an arbitral award”.³⁷² Courts in England³⁷³ and in Germany³⁷⁴ have also recognized the mandatory nature of article III.

    369. See, e.g., Altain Khuder LLC v. IMC Mining Inc., et al. and IMC Aviation Solutions Pty. Ltd. v. Altain Khuder LLC, Supreme Court of Victoria, Commercial and Equity Division, Commercial Court, Australia, 28 January 2011 and Supreme Court of Victoria, Court of Appeal, Australia, 22 August 2011, XXXVI Y.B. Com. Arb. 242 (2011); Merck & Co. Inc. (United States), Merck Frosst Canada Inc. (Canada), Frosst Laboratories Inc. (Colombia) v. Tecnoquimicas SA (Colombia), Supreme Court of Justice, Colombia, 24 March 1999, XXVI Y.B. Com. Arb. 755 (2001); Brace Transport Corp. of Monrovia, Bermuda v. Orient Middle East Lines Ltd., Supreme Court, India, 12 October 1993, 5438-39 of 1993; Guarantor (Russian Federation) v. Borrower (Swedish Company), Supreme Court, Judicial Collegium, Russian Federation, 22 May 1997, XXV Y.B. Com. Arb. 641 (2000); Jorf Lasfar Energy Company S.C.A. v. AMCI Export Corporation, District Court, Western District of Pennsylvania, United States of America, 5 May 2006, 05-0423.

    370. African Petroleum Consultants (APC) v. Société Nationale de Raffinage, High Court of Fako Division, OHADA, Cameroon, 15 May 2002, HCF/91/M/2001-2002.

    371. ECONERG Ltd. (Croatia) v. National Electricity Company AD (Bulgaria), Supreme Court of Appeal, Civil Collegium, Fifth Civil Department, Bulgaria, 23 February 1999, XXV Y.B. Com. Arb. 641 (2000).

    372. S.a.S. Wieland K. G. (Austria) v. Società Industriale Meridionale (S.I.M.) (Italy), Court of Appeal of Messina, Italy, 19 May 1976, V Y.B. Com. Arb. 266 (1980).

    373. Gater Assets Ltd. v. Nak Naftogaz Ukrainiy, Court of Appeal, England and Wales, 17 October 2007, A3/2007/0738, para. 11.

    374. Claimant (UK) v. Defendant (Germany), Oberlandesgericht, Rostock, Germany, 22 November 2001, 1 Sch 03/00, XXIX Y.B. Com. Arb. 732 (2004).

    10. Leading commentators similarly describe article III of the Convention as the source of the Contracting States’ obligation to recognize and enforce foreign arbitral awards.³⁷⁵ A number of these commentators also characterize this obligation as a “presumptive” one, or have referred to it as embodying the “pro-enforcement bias” of the Convention.³⁷⁶

    375. See, e.g., ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges 69 (P. Sanders ed., 2011); Ramona Martinez, Recognition and Enforcement of International Arbitral Awards Under the United Nations Convention of 1958: The “Refusal” Provisions, 24 Int’l Law 487, 495-96 (1990); Emilia Onyema, Formalities of the Enforcement Procedure (Articles III and IV), in Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice 597 (E. Gaillard, D. Di Pietro eds., 2008); Loukas A. Mistelis, Domenico D. Pietro, New York Convention, Article III [Obligation to Recognise and Enforce Arbitral Awards], in Concise International Arbitration 10 (L.A. Mistelis ed., 2010).

    376. See, e.g., Maxi Scherer, Article III (Recognition and Enforcement of Arbitral Awards; General Rule), in New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 of 10 June 1958—Commentary 193, 196 (R. Wolff ed., 2012);Emilia Onyema, Formalities of the Enforcement Procedure (Articles III and IV), in Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice 597 (E. Gaillard, D. Di Pietro eds., 2008); Andreas Börner, Article III, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 115 (H. Kronke, P. Nacimiento et al. eds., 2010). See also Gary B. Born, International Commercial Arbitration 3394 (2014).

    11. While parties seeking recognition and enforcement of foreign arbitral awards have often seized the courts of Contracting States where the award-debtor had assets, or where they believed the collection of a monetary award was more likely,³⁷⁷ neither article III nor any other provision of the Convention requires the presence of assets in the jurisdiction where recognition and enforcement is sought. With the exception of a German decision that refused enforcement of a foreign arbitral award in a case where the award-debtor had no assets in Germany,³⁷⁸ the courts of the Contracting States have not conditioned recognition and enforcement under the Convention to the presence of assets. Leading commentators confirm that the presence of assets in the jurisdiction in which recognition and enforcement is sought is not a condition of the recognition and enforcement of an award under the Convention.³⁷⁹

    377. See, e.g., Gulf Petro Trading Company Inc., et al. v. Nigerian National Petroleum Corporation, et al., Court of Appeals, Fifth Circuit, United States of America, 7 January 2008, 06-40713; Far Eastern Shipping Company v. AKP Sovocomflot (United Kingdom of Great Britain and Northern Ireland), Queen’s Bench Division, 14 November 1994, XXI Y.B. Com. Arb. 699 (1996); Brace Transport Corp. of Monrovia v. Orient Middle East Lines Ltd. and ors, Supreme Court, India, 12 October 1993, 5438-39 of 1993, in which the Supreme Court of India observed that “[w]hen it becomes necessary to enforce an international award [...] [t]he first step is to determine the country or countries in which enforcement is to be sought. In order to reach this decision, the party seeking enforcement needs to locate the State or States in which the losing party has (or is likely to have) assets available to meet the award”.

    378. Kammergericht [KG], Berlin, Germany, 10 August 2006, 20 Sch 07/04.

    379. See, e.g., Loukas A. Mistelis, Domenico D. Pietro, New York Convention, Article III [Obligation to Recognise and Enforce Arbitral Awards], in Concise International Arbitration 10 (L.A. Mistelis ed., 2010); Emilia Onyema, Formalities of the Enforcement Procedure Procedure (Articles III and IV), in Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice 597, 603 (E. Gaillard, D. Di Pietro eds., 2008).

    12. Although article III does not expressly provide that arbitral awards have res judicata effect, a number of national courts have ruled that it has such a consequence in practice. For example, a United States court ruled that “[t]hough the convention does not expressly speak to the res judicata effect of an international arbitral award [...] it reflects the principle that until it is successfully challenged, an arbitral award presumptively establishes the rights and liabilities of the parties to the arbitration.”³⁸⁰ This view is equally shared in commentary on the New York Convention.³⁸¹

    380. American Express Bank Ltd. v. Banco Español de Crédito S.A., Southern District Court of New York, United States of America, 13 February 2009, 1:06-cv-03484-RJH. See also Gulf Petro Trading Company Inc., et al. v. Nigerian National Petroleum Corporation, et al., Court of Appeals, Fifth Circuit, United States of America, 7 January 2008, 06-40713.

    381. See, e.g., Andreas Börner, Article III, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 115 (H. Kronke, P. Nacimiento et al. eds., 2010); Maxi Scherer, Article III (Recognition and Enforcement of Arbitral Awards; General Rule), in New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958—Commentary 193, 196-97 (R. Wolff ed., 2012); Gary B. Born, International Commercial Arbitration 3741 (2014).

  • b. Conditions laid down in the Convention

    13. Article III provides that Contracting States shall recognize and enforce arbitral awards “under the conditions laid down in the following articles [of the Convention]”

    14. Various courts have held that these “conditions” refer to the conditions set out in articles IV, V, VI and VII of the Convention.³⁸²

    382. For a detailed discussion of these provisions, see the chapters of the Guide on articles IV, V VI and VII. For example, a Swiss court stated that: “According to Art. III first sentence [...], foreign arbitral decisions are recognized and enforced in Switzerland if the requirements in Arts. IV et seq. Convention are met,” Italian party v. Swiss company, Bezirksgericht of Zurich, Switzerland, 14 February 2003, XXIX Y.B. Com. Arb. 819 (2004); See also D. S.A. (Spain) v. W. G.m.b.H.. (Austria), Oberster Gerichtshof, Austria, 26 April 2006, XXXII Y.B. Com. Arb. 259 (2007). An English court referred to “article III’s requirement that enforcement be accorded ‘under the conditions laid down in the following articles’ (viz articles IV/VI)”; Gater Assets Ltd. v. Nak Naftogaz Ukrainiy, Court of Appeals, England and Wales, 17 October 2007, A3/2007/0738.

    15. National courts have applied these conditions in reported case law on article III.³⁸³ For example, the Italian Court of Cassation overturned the decision of an appeals court granting recognition and enforcement of an arbitral award where the applicant had not produced an authenticated copy of the award as required by article IV, holding that this was an application condition of the Convention pursuant to article III.³⁸⁴ The Supreme Court of Georgia held that arbitral awards “shall be recognized as binding and enforceable” pursuant to article III and thus upheld an award after observing that there were no grounds to refuse recognition under article V of the Convention.³⁸⁵

    383. See, e.g., Czarina, L.L.C. v. W.F. Poe Syndicate, Court of Appeals, Eleventh Circuit, United States of America, 4 February 2004, 03-10518; Greek Buyer v. Ukrainian Seller, Administrative Court of Appeal of Athens, Greece, 18 July 2011, XXXVII Y.B. Com. Arb. 234 (2012); Daihatsu Motor Co., Inc. (Japan) v. Terrain Vehicles, Inc. (United States), District Court, Northern District of Illinois, Eastern Division, United States of America, 29 May 1992, XVIII Y.B. Com. Arb. 575 (1993); WTB—Walter Thosti Boswau Bauaktiengesellschaft v. Costruire Coop. srl, Court of Cassation, Italy, 7 June 1995, 6426; Zeevi Holdings Ltd. (in receivership) (Israel) v. The Republic of Bulgaria, District Court of Jerusalem, Israel, 13 January 2009, XXXIV Y.B. Com. Arb. 632 (2009); Adamas Management & Services Inc. v. Aurado Energy Inc., Court of Queen’s Bench of New Brunswick, Canada, 28 July 2004, S/M/57/04, XXX Y.B. Com. Arb. 479 (2005); Brothers for Import, Export and Supply Company (Egypt) v. Hano Acorporish (Republic of Korea), Court of Appeal of Cairo, Egypt, 2 July 2008, 23/125; Egyptian British Company for General Development (GALINA) v. Danish Agriculture Seelizer Company, Court of Appeal of Cairo, Egypt, 26 May 2004, 7/121; Engineering Industries Company & Sobhi A. Farid Institute v. Roadstar Management & Roadstar International, Court of Appeal of Cairo, Egypt, 29 September 2003, 22/119; Nile Cotton Ginning Company v. Cargill Limited, Court of Appeal of Cairo, Egypt, 29 June 2003, 129/118; Hamdy Mohamed Abdel-Al v. Faj Henwa Berenger Corporation, Court of Appeal of Cairo, Egypt, 26 March 2003, 10/119; Cairo for Real Estate Company v. Abdel Rahman Hassan Sharbatly, Court of Appeal of Cairo, Egypt, 26 February 2003, 23/119.

    384. Globtrade Italiana srl v. East Point Trading Ltd, Court of Cassation, Italy, 8 October 2008, 24856.

    385. “S.F.M.” LLC v. Batumi City Hall, Supreme Court, Georgia, 15 May 2009, a-471-sh-21-09. See also Ltd. “R.L.” v. JSC “Z. Factory” Supreme Court, Georgia, 2 April 2004, a-204-sh-43-03.

    16. Courts of the Contracting States have confirmed that the “conditions” referred to in article III are those exclusively listed in the Convention and that no other condition contained in the Contracting States’ national laws shall apply at the recognition and enforcement stage. For instance, in a case where a party argued that enforcement should be refused because the award was rendered by an even number of arbitrators, which Italian law prohibits, the Italian Court of Cassation observed that none of the Convention’s exhaustive grounds included such a condition, and that the conditions under Italian law were irrelevant in this respect.³⁸⁶

    386. Nigi Agricoltura srl v. Inter Eltra Kommerz und Produktion GmbH, Supreme Court, Italy, 23 July 2009, 17312. See also Privilegiata Fabbrica Maraschino Excelsior Girolamo Luxardo SpA v. Agrarcommerz AG, Supreme Court of Cassation, Italy, 15 January 1992, XVIII Y.B. Com. Arb. 427 (1993).

    17. Leading commentators confirm that the “conditions” governing the recognition and enforcement of foreign arbitral awards are those exclusively listed by the Convention.³⁸⁷

    387. See, e.g., Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 239 (1981); Andreas Börner, Article III, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 115, 116 (H. Kronke, P. Nacimiento et al. eds., 2010); Maxi Scherer, Article III (Recognition and Enforcement of Arbitral Awards; General Rule), in New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958—Commentary 193, 202 (R. Wolff ed., 2012).

• B. Rules of procedure of the territory where the award is relied upon

  18. Article III provides that the recognition and enforcement of foreign arbitral awards shall be granted “in accordance with the rules of procedure of the territory where the award is relied upon.”

  19. As the travaux préparatoires make clear, the drafters of the New York Convention refrained from devising a harmonized set of procedural rules applicable to the recognition and enforcement of foreign arbitral awards in each Contracting State.³⁸⁸ As a result, the Convention does not refer to any specific set of rules, leaving it to each Contracting State to define the rules of procedure applicable to the recognition and enforcement of arbitral awards in its territory.³⁸⁹

  388. See Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Comments on Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, E/CONF.26/2, p. 4; Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Consideration of other measures for increasing the effectiveness of arbitration in the settlement of private law disputes, E/CONF.26/6, p. 12; Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Consideration of the draft convention on the recognition and enforcement of foreign arbitral awards, Text of Article II as adopted by the Conference at its 16^th meeting, E/CONF.26/L.47.

  389. The Spanish Supreme Court observed that Spanish procedural rules shall be applied to the recognition and enforcement of foreign arbitral awards pursuant to article III of the New York Convention because that article “does not itself provide for a particular recognition and enforcement mechanism”. Saroc, S.p.A. (Italy) v. Sahece, S.A. (Spain), Supreme Court, Spain, 4 March 2003, XXXII Y.B. Com. Arb. 571 (2007). See also Zeevi Holdings Ltd. v. The Republic of Bulgaria, Southern District of New York, United States of America, 29 March 2011, 09 Civ. 8856 (RJS), XXXVI Y.B. Com. Arb. 464 (2011).

  • a. Meaning of the rules of procedure of the territory where the award is relied upon

    20. Reported case law shows that the “rules of procedure of the territory where the award is relied upon” refer to the national procedural rules applicable in each Contracting State where recognition and enforcement is sought.

    21. In accordance with the wording of article III, courts of the Contracting States have applied the procedural rules of their national laws to the recognition and enforcement of arbitral awards, and not the laws of the country where the arbitration took place or any other law.³⁹⁰ For example, a United States court rejected the application of English procedural rules to the recognition and enforcement of an arbitral award in the United States, on the ground that enforcement was sought in the United States.³⁹¹ The Supreme Court of Canada held that the word “territory” in article III referred to the relevant provincial unit where enforcement was sought (in the case at hand, the province of Alberta), instead of the Contracting State in its entirety.³⁹² The courts of Cameroon,³⁹³ Bulgaria,³⁹⁴ the Czech Republic,³⁹⁵ Colombia,³⁹⁶ Egypt,³⁹⁷ England and Wales,³⁹⁸ France,³⁹⁹ Germany,⁴⁰⁰ Greece,⁴⁰¹ India,⁴⁰² Italy,⁴⁰³ Japan,⁴⁰⁴ the Netherlands,⁴⁰⁵ Portugal⁴⁰⁶, and Spain⁴⁰⁷ have followed the same approach. Leading commentators also confirm that article III requires courts to apply the national rules of procedure of their own country.⁴⁰⁸

    390. Kuwait No. 1, contract party v. contract party, Supreme Appeal Court, Cassation Circuit, (Kuwait), 21 November 1988, XXII Y.B. Com. Arb. 748 (1997). See also TermoRio S.A. E.S.P. (Colombia), LeaseCo Group and others v. Electranta S.P. (Colombia), et al., Court of Appeals, District of Columbia Circuit, United States of America, 25 May 2007, 06-7058, XXXIII Y.B. Com. Arb. 955 (2008); China National Building Material Investment Co., Ltd. (PR China) v. BNK International LLC (United States), District Court, Western District of Texas, United States of America, 4 December 2009, A-09-CA-488-SS, XXXV Y.B. Com. Arb. 507 (2010).

    391. Artemis Shipping & Navigation Co. S.A. v. Tormar Shipping AS, District Court, Eastern District of Louisiana, United States of America, 9 December 2003, 03-217.

    392. Yugraneft Corporation v. Rexx Management Corporation, Supreme Court, Canada, 20 May 2010, 2010 SCC 19.

    393. African Petroleum Consultants (APC) v. Société Nationale de Raffinage, High Court of Fako Division, OHADA, Cameroon, 15 May 2002, HCF/91/M/2001-2002.

    394. See, e.g., ECONERG Ltd. (Croatia) v. National Electricity Company AD (Bulgaria), Supreme Court of Appeal, Civil Collegium, Fifth Civil Department, Bulgaria, 23 February 1999, XXV Y.B. Com. Arb. 641 (2000).

    395. See, e.g., F&G A.S.R. v. K, s.p., Supreme Administrative Court, Czech Republic, 29 March 2001, XXXVIII Y.B. Com. Arb. 363 (2013).

    396. See, e.g., Merck & Co. Inc. (United States), Merck Frosst Canada Inc. (Canada), Frosst Laboratories Inc. (Colombia) v. Tecnoquimicas S.A. (Colombia), Supreme Court of Justice, Colombia, 24 March 1999, XXVI Y.B. Com. Arb. 755 (2001); Merck & Co. Inc. (United States), Merck Frosst Canada Ind. & Frosst Laboratories Inc. (Colombia) v. Tecnoquimicas S.A. (Colombia), Supreme Court of Justice, Colombia, 1 March 1999, E-7474; Sunward Overseas S.A. v. Servicios Maritimos Limitada Semar (Ltda.) (Colombia), Supreme Court of Justice, Colombia, 20 November 1992, XX Y.B. Com. Arb. 651 (1995); Petrotesting Colombia S.A. et al. v. Ross Energy S.A., Supreme Court of Justice, Colombia, 27 July 2011, XXXVII Y.B. Com. Arb. 200 (2012).

    397. See, e.g., Omnipol v. Samiram, Court of Appeal of Cairo, Egypt, 30 May 2005, 10/122.

    398. See, e.g., Gater Assets Ltd. v. Nak Naftogaz Ukrainiy, Court of Appeal, England and Wales, 17 October 2007, A3/2007/0738.

    399. See, e.g., S.A. Recam Sonofadex v. S.N.C. Cantieri Rizzardi de Gianfranco Rizzardi, Court of Appeal of Orleans, France, 5 October 2000; Société I.A.I.G.C.—Inter-Arab Investment Guarantee Corporation v. Société B.A.I.I.—Banque arabe et internationale d’investissement SA (BAII), Court of Appeal of Paris, France, 23 October 1997, 96/80232; Société Acteurs Auteurs Associés (A.A.A.) v. Société Hemdale Film Corporation, Court of First Instance of Paris, France, 22 November 1989, 10247/89.

    400. See, e.g., Bundesgerichtshof [BGH], Germany, 4 October 2005, VII ZB 09/05; Bundesgerichtshof [BGH], Germany, 4 October 2005, VII ZB 8/05.

    401. See, e.g., Not indicated v. Not indicated, Court of First Instance of Piraeus, Greece, 1968, I Y.B. Com. Arb. 185 (1976); Greek Buyer v. Ukrainian Seller, Court of Appeal of Athens, Greece, 18 July 2011, XXXVII Y.B. Com. Arb. 234 (2012).

    402. See, e.g., Orient Middle East Lines Ltd., Bombay and others (India) v. M/s Brace Transport Corporation of Monrovia and another (Liberia), High Court of Gujarat, India, 19 April 1985, XIV Y.B. Com. Arb. 648 (1989).

    403. See, e.g., WTB—Walter Thosti Boswau Bauaktiengesellschaft (Germany) v. Costruire Coop. srl (Italy), Court of Cassation, Italy, 7 June 1995, 6426.

    404. See, e.g., Zhe-jiang Provincial Light Industrial Products Import & Export Corp. (China) v. Takeyari K. K. (Japan), District Court of Okayama, Civil Section II, Japan, 14 July 1993, XXII Y.B. Com. Arb. 744 (1997).

    405. See, e.g., Société d’Etudes et de Commerce SA (France) v. Weyl Beef Products BV, Court of First Instance of Amelo, Netherlands, 19 July 2000, XXVI Y.B. Com. Arb. 827 (2001).

    406. T. S.A. v. S. S.A., Court of Appeal of Lisbon, Portugal, 8 June 2010, XXXVIII Y.B. Com. Arb. 438 (2013).

    407. See, e.g., Unión Naval de Levante S.A. (Spain) v. Bisba Comercial Inc. (Panama), Supreme Court, Spain, 9 October 2003, XXX Y.B. Com. Arb. 623 (2005); Saroc, S.p.A. (Italy) v. Sahece, S.A. (Spain), Supreme Court, Plenary Session, Spain, 4 March 2003, XXXII Y.B. Com. Arb. 571 (2007); Unión Naval de Levante S.A. (Spain) v. Bisba Comercial Inc. (Panama), Supreme Court, Spain, 9 October 2003, XXX Y.B. Com. Arb. 623 (2005); Mr. Genaro (Spain), Mr. Carmelo (Spain) and Agraria del Tormes S.A. (Spain) v. Majeriforeningen Danish Dairy Board (Denmark), Court of Appeal of Zamora, Spain, 27 November 2009, XXXV Y.B. Com. Arb. 454 (2010).

    408. See, e.g., William W. Park, Respecting the New York Convention, 18(2) ICC Bull. 65, 70 (2007); Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 236 (1981); Fouchard Gaillard Goldman on International Commercial Arbitration 982, para. 1671 (E. Gaillard, J. Savage eds., 1999); Andreas Börner, Article III, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 115, 117 (H. Kronke, P. Nacimiento et al. eds., 2010); Maxi Scherer, Article III (Recognition and Enforcement of Arbitral Awards; General Rule), in New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958—Commentary 193, 197 (R. Wolff ed., 2012); Emilia Onyema, Formalities of the Enforcement Procedure (Articles III and IV), in Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice 597, 603 (E. Gaillard, D. Di Pietro eds., 2008); Ramona Martinez, Recognition and Enforcement of International Arbitral Awards Under the United Nations Convention of 1958: The “Refusal” Provisions, 24 Int’l Law 487, 496 (1990); ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges 69 (P. Sanders ed., 2011).

    22. In a number of reported cases on article III, courts have considered whether certain rules should be characterized as “conditions” governing the recognition and enforcement of foreign arbitral awards (which are exclusively listed in the Convention) or “rules of procedure” applicable to the recognition and enforcement of these awards (which are contained in national laws).

    23. Courts have considered that the “rules of procedure” that may be applied under article III should be interpreted narrowly, and should be determined independently of the categories observed under national laws. For instance, the Italian Court of Cassation held that “rules of procedure” should be interpreted restrictively and that the principle of lis pendens, despite being part of the Italian Code of Civil Procedure, could not be applied by the court by virtue of article III.⁴⁰⁹

    409. Privilegiata Fabbrica Maraschino Excelsior Girolamo Luxardo SpA v. Agrarcommerz AG, Court of Cassation, Italy, 15 January 1992, XVIII Y.B. Com. Arb. 427 (1993). See also Società La Naviera Grancebaco S.A. (Panama) v. Ditta Italgrani (Italy), Court of First Instance of Naples, Italy, 30 June 1976, IV Y.B. Com. Arb. 277 (1979).

    24. In the absence of any guidance in the text of the Convention, Contracting States are free to determine the content of the rules of procedure applicable to the recognition and enforcement of arbitral awards. For instance, the Supreme Court of Canada stated that the text of the Convention, including article III, must “be construed in a manner that takes into account the fact that it was intended to interface with a variety of legal traditions”.⁴¹⁰ The English High Court, when applying article III, also noted that “the court is not directly concerned to ensure that the English approach is the same as that adopted in other Convention states”.⁴¹¹

    410. Yugraneft Corporation. v. Rexx Management Corporation, Supreme Court, Canada, 20 May 2010, 2010 SCC 19.

    411. IPCO v. Nigerian National Petroleum Corp., High Court of Justice Queen’s Bench Division, England and Wales, 17 April 2008, 2004 Folio 1031. Courts of the United States have also recognized that the wording of article III entails that different procedural rules would be applied in the courts of various Contracting States. See Zeevi Holdings Ltd. v. The Republic of Bulgaria, District Court, Southern District of New York, United States of America, 29 March 2011, 09 Civ. 8856 (RJS), XXXVI Y.B. Com. Arb. 464 (2011); Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine and State of Ukraine, Court of Appeals, Second Circuit, United States of America, 15 November 2002, 017947, 01-9153; TermoRio S.A. E.S.P. (Colombia), LeaseCo Group and others v. Electranta S.P. (Colombia), et al., Court of Appeals, District of Columbia Circuit, United States of America, 25 May 2007, 06-7058, XXXIII Y.B. Com. Arb. 955 (2008).

    25. The flexibility afforded under article III to Contracting States to apply their national rules of procedure gives rise to the possibility that an award could be granted recognition and enforcement in one Contracting State and denied recognition and enforcement in another based on a rule of procedure that exists in the former but not the latter. However, reported case law provides very few examples of such situations.⁴¹²

    412. For example, both an Israeli court and a United States court were faced with the same award in which the underlying agreement to arbitrate provided that the award could only be enforced in Bulgaria. The United States Court, applying article III, enforced the forum selection clause pursuant to the doctrine of forum non conveniens and dismissed the case. Conversely, an Israel court granted enforcement, holding that the award could only be refused based on the grounds under article V of the Convention, which did not include the forum non conveniens doctrine. See Zeevi Holdings Ltd. (in receivership) (Israel) v. The Republic of Bulgaria, District Court of Jerusalem, Israel, 13 January 2009, XXXIV Y.B. Com. Arb. 632 (2009) and Zeevi Holdings Ltd. v. The Republic of Bulgaria, District Court, Southern District of New York, United States of America, 29 March 2011, 09 Civ. 8856 (RJS), XXXVI Y.B. Com. Arb. 464 (2011). On the issue of the applicability of the forum non conveniens doctrine under article III, see the chapter of the Guide on article III para. 32 and fn. 427.

  • b. Application by national courts

    26. In many of the reported cases on article III, courts have applied specific rules of procedure from their national legislation that govern the recognition and enforcement of foreign arbitral awards.⁴¹³

    413. See, e.g., Privilegiata Fabbrica Maraschino Excelsior Girolamo Luxardo SpA v. Agrarcommerz AG, Court of Cassation, Italy, 15 January 1992, XVIII Y.B. Com. Arb. 427 (1993); ECONERG Ltd. (Croatia) v. National Electricity Company AD (Bulgaria), Supreme Court of Appeal, Civil Collegium, Fifth Civil Department, Bulgaria, 23 February 1999, XXV Y.B. Com. Arb. 641 (2000); F&G A.S.R. v. K, s.p., Supreme Administrative Court, Czech Republic, 29 March 2001, XXXVIII Y.B. Com. Arb. 363 (2013); Société d’Etudes et de Commerce SA (France) v. Weyl Beef Products BV, Court of First Instance of Amelo, Netherlands, 19 July 2000, XXVI Y.B. Com. Arb. 827 (2001); Unión Naval de Levante S.A. v. Bisba Comercial Inc., Supreme Court, Spain, 9 October 2003, XXX Y.B. Com. Arb. 623 (2005); Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd. and ors, High Court of Gujarat, India, 19 April 1985, AIR 1986 Guj 62; Romanian Company v. Panamanian Company, Supreme Court, Romania, 3 June 1984, XIV Y.B. Com. Arb. 691 (1989); WTB—Walter Thosti Boswau Bauaktiengesellschaft (Germany) v. Costruire Coop. srl (Italy), Court of Cassation, Italy, 7 June 1995, 6426; Contract party v. Contract party, Supreme Appeal Court, Cassation Circuit, Kuwait, 21 November 1988, XXII Y.B. Com. Arb. 748 (1997); Al Ahram Beverages Company v. Société Française d’Etudes et de Construction, Court of Appeal of Tanta, Egypt, 17 November 2009, 42/42; Abdel Wahed Hassan Suleiman v. Danish Dairy and Agriculture Seelizer Company, Court of Appeal of Cairo, Egypt, 25 September 2005; Omnipol v. Samiram, Court of Appeal of Cairo, Egypt, 30 May 2005, 10/122; El Nasr Company for Fertilizers & Chemical Industries (SEMADCO) v. John Brown Deutsche Engineering, Court of Cassation, Egypt, 10 January 2005, 966/73; Orient Middle East Lines Ltd., Bombay and others (India) v. M/s Brace Transport Corporation of Monrovia and another (Liberia), High Court of Gujarat, India, 19 April 1985, XIV Y.B. Com. Arb. 648 (1989).

    27. Only a few reported cases have addressed the situation where the national law of a Contracting State does not contain any rules of procedure specifically applicable to the recognition and enforcement of foreign arbitral awards. Indian courts have held that, in the absence of such rules, procedural rules applicable to the recognition and enforcement of domestic arbitral awards should be transposed to foreign arbitral awards.⁴¹⁴ The Cairo Court of Appeal confirmed that Contracting States are not obliged to enact specific rules of procedure to govern the recognition and enforcement of foreign arbitral awards.⁴¹⁵ Commentators on the New York Convention equally consider that where a Contracting State’s national law does not contain specific procedural rules applicable to the recognition and enforcement of foreign arbitral awards, the procedural rules governing domestic arbitral awards should be applied.⁴¹⁶

    414. Orient Middle East Lines Ltd., Bombay and others (India) v. M/s Brace Transport Corporation of Monrovia and another (Liberia), High Court of Gujarat, India, 19 April 1985, XIV Y.B. Com. Arb. 648 (1989). The Indian court held that “if the said [domestic] Act is silent with regard to any procedural aspect [...], then [the Code of Civil Procedure and other procedural statutes] of this country where the award is relied upon have to be followed”.

    415. Ahmed Mostapha Shawky v. Andersen Worldwide & Wahid El Din Abdel Ghaffar Megahed & Emad Hafez Ragheb & Nabil Istanboly Akram Istanboly, Court of Appeal of Cairo, Egypt, 23 May 2001, 25/116.

    416. See, e.g., Fouchard Gaillard Goldman on International Commercial Arbitration 982, para. 1671 (E. Gaillard, J. Savage eds., 1999); Emilia Onyema, Formalities of the Enforcement Procedure (Articles III and IV), in Enforcement of Arbitration Agreements and International Arbitral Awards—The New York Convention in Practice 597, 603 (E. Gaillard, D. Di Pietro eds., 2008); Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 238 (1981).

    28. Different types of domestic procedural rules have been applied in reported case law on article III.

    29. In a number of cases, courts have applied national rules that determine the competent authority to hear applications for recognition and enforcement of foreign arbitral awards. For example, the Supreme Court of Romania held that, in accordance with article III, the court having jurisdiction to hear applications for recognition and enforcement of foreign arbitral awards was to be determined in accordance with rules of procedure of Romanian law.⁴¹⁷ Similarly, a court in Cameroon observed that the determination of the specific court having jurisdiction to hear a request for recognition and enforcement of a foreign arbitral award should be a matter of Cameroon law.⁴¹⁸

    417. Romanian Company v. Panamanian Company, Supreme Court, Romania, 3 June 1984, XIV Y.B. Com. Arb. 691 (1989).

    418. African Petroleum Consultants (APC) v. Société Nationale de Raffinage, High Court of Fako Division, OHADA, Cameroon, 15 May 2002, HCF/91/M/2001-2002. For other examples, see, e.g., Court of Appeal of Porto, Portugal, 21 June 2005, 0427126; Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd. and ors, High Court of Gujarat, India, 19 April 1985, AIR 1986 Guj 62; Centrotex, S.A. (Czech Republic) v. Agencia Gestora de Negocios, S.A. (Agensa) (Spain), Supreme Court, Spain, 13 November 2001, XXXI Y.B. Com. Arb. 834 (2006).

    30. In other reported cases on article III, courts have held that the limitation period applicable to an application for recognition and enforcement of a foreign arbitral awards is a procedural rule governed by national law. For instance, the Supreme Court of Canada, after interpreting the text of the Convention and its travaux préparatoires, held that the Convention “was intended to allow Contracting States to impose time limits on the recognition and enforcement of foreign arbitral awards if they so wished”.⁴¹⁹ Courts in Russian Federation,⁴²⁰ India⁴²¹ and the United Kingdom⁴²² have equally applied limitation periods found in their national procedural rules pursuant to article III of the Convention.

    419. Yugraneft Corporation. v. Rexx Management Corporation, Supreme Court, Canada, 20 May 2010, 2010 SCC 19.

    420. OAO Ryazan Metal Ceramics Instrumentation Plant (Russian Federation), Constitutional Court, Russian Federation, 2 November 2011, 1479-O-O/2011.

    421. Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd. and ors, High Court of Gujarat, India, 19 April 1985, AIR 1986 Guj 62.

    422. The Government of Kuwait v. Sir Frederick Snow & Partners and Others (United Kingdom of Great Britain and Northern Ireland), Court of Appeal, United Kingdom, 17 March 1983, IX Y.B. Com. Arb. 451 (1984).

    31. Leading commentators confirm that the determination of the court having jurisdiction to hear requests for recognition and enforcement of foreign arbitral awards, or of the limitation periods applicable to recognition and enforcement, constitute procedural issues that should be governed by the Contracting States’ national laws.⁴²³

    423. See Maxi Scherer, Article III (Recognition and Enforcement of Arbitral Awards; General Rule), in New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958— Commentary 193, 199-202 (R. Wolff ed., 2012); Andreas Börner, Article III, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 115, 122-27 (H. Kronke, P. Nacimiento et al. eds., 2010); Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 240 (1981). See also United Nation Commission on International Trade Law, Report on the survey relating to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), A/CN.9/656/ Add.1, at 2/3.

    32. Reported case law provides other isolated examples where courts have applied national rules of procedure to the recognition and enforcement of foreign arbitral awards, some of which have been criticized by commentators. These include rules concerning the ranking of creditors’ claims,⁴²⁴ the setting-off of claims,⁴²⁵ the enforcement of a forum selection clause,⁴²⁶ the doctrine of forum non conveniens⁴²⁷ and issues of diplomatic protection.⁴²⁸

    424. See, e.g., Artemis Shipping & Navigation Co. SA v. Tormar Shipping AS, District Court, Eastern District of Louisiana, United States of America, 9 December 2003, 03-217.

    425. See Rumanian Firm C. v. German (F.R.) party Landgericht [LG] Hamburg, Oberlandesgericht [OLG] Hamburg, Germany, 27 March 1974, 27 March 1975, II Y.B. Com. Arb. 240 (1977). This decision has been criticized in the doctrine. See, e.g., Andreas Börner, Article III, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 115, 130-31 (H. Kronke, P. Nacimiento et al. eds., 2010); Maxi Scherer, Article III (Recognition and Enforcement of Arbitral Awards; General Rule), in New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Commentary 193, 203-04 (R. Wolff ed., 2012), who considers that “permitting counter-claims or set-off defenses during recognition or enforcement proceedings is contrary to Articles III and V.”

    426. Zeevi Holdings Ltd. v. The Republic of Bulgaria, District Court, Southern District of New York, United States of America, 29 March 2011, 09 Civ. 8856 (RJS), XXXVI Y.B. Com. Arb. 464 (2011).

    427. Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine and State of Ukraine, Court of Appeals, Second Circuit, United States of America, 15 November 2002, 01-7947, 01-9153. Such an interpretation has been widely criticized by commentators. See, e.g., American Law Institute, Restatement of the Law—The United States Law of International Commercial Arbitration, Tentative Draft No. 4 (April 17, 2015); George A. Bermann, ‘Domesticating’ the New York Convention: the Impact of the Federal Arbitration Act, 2(2) J. Int. Disp. Settlement 317, 326 (2011); Maxi Scherer, Article III (Recognition and Enforcement of Arbitral Awards; General Rule), in New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958—Commentary 193, 203 (R. Wolff ed., 2012); William W. Park, Respecting the New York Convention, 18(2) ICC Bull. 65, 68-72 (2007); Dimitri Santoro, Forum Non Conveniens: A Valid Defense under the New York Convention?, 21 ASA Bull. 713, 723 (2003).

    428. See, e.g., Bundesgerichtshof[BGH], Germany, 4 October 2005, VII ZB 09/05; Bundesgerichtshof, Germany, 4 October 2005, VII ZB 8/05.

• C. There should not be imposed substantially more onerous conditions or higher fees or charges than are imposed on the recognition or enforcement of domestic arbitral awards

  33. The second sentence of article III provides that “[t]here shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards”. This rule limits the Contracting States’ discretion to determine the rules of procedure applicable to the recognition and enforcement of foreign arbitral awards in their territories. As the travaux préparatoires show, the purpose of this limitation, which has been referred to as the “national treatment” or “non-discrimination” rule,⁴²⁹ is to prevent national courts from imposing “unduly complicated enforcement procedures” and insurmountable procedural hurdles at the recognition and enforcement stage.⁴³⁰

  429. See Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Tenth Meeting, E/CONF.26/SR.10, pp. 3 and 7. Other expressions have been used by national courts, such as “the non-discrimination provision”, “the discrimination prohibition in article III” or the “principle of equivalence”. OAO Rosneft (Russian Federation) v. Yukos Capital s.a.r.l. (Luxembourg), Supreme Court, Netherlands, 25 June 2010, XXXV Y.B. Com. Arb. 423 (2010); Catz International BV. v. Gilan Trading KFT, Provisions Judge of the District Court of Rotterdam and Court of Appeal of The Hague, Netherlands, 28 February 2011 and 20 December 2011, XXXVII Y.B. Com. Arb. 271 (2012); Supreme Court of Justice, Portugal, 19 March 2009, 299/09; Supreme Court of Justice, Portugal, 22 April 2004, 04B705; Gater Assets Ltd. v. Nak Naftogaz Ukrainiy, Court of Appeal, England and Wales, 17 October 2007, A3/2007/0738; Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine and State of Ukraine, Court of Appeals, Second Circuit, United States of America, 15 November 2002, 01-7947, 01-9153.

  430. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Comments on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, E/CONF.26/2, p. 4; Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Consideration of the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards—Amendment to article II of the Draft Convention (United Kingdom), E/CONF.26/L.11; Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Tenth Meeting, E/CONF.26/SR.10, p. 3; Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Consideration of the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards—Proposed amendment to the United Kingdom amendment to Article II of the draft Convention (Israel), E/CONF.26/L.21.

  34. While the second sentence of article III prevents Contracting States from discriminating against foreign arbitral awards, nothing prevents Contracting States from imposing conditions to the recognition and enforcement of foreign arbitral awards that are less onerous than those imposed on domestic awards. The travaux préparatoires confirm that the drafters of the New York Convention intentionally rejected the idea that the rules of procedure applicable to the recognition and enforcement of foreign and domestic awards should be identical.⁴³¹

  431. See Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Tenth Meeting, E/CONF.26/SR.10, p. 5; Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Eleventh Meeting, E/CONF.26/SR.11, p. 5.

  35. This view is also confirmed in reported case law. For example, an Italian Court of Appeal held that Article 825 of the Italian Code of Civil Procedure, which requires a deposit of a domestic award within five days after it has been signed by the arbitrators and an order for enforcement of the award by the court, should not apply to foreign arbitral awards.⁴³²

  432. Ditte Frey Milota and Seitelberger v. Ditte F. Cuccaro e figli, Court of Appeal of Naples, Italy, 13 December 1974, I Y.B. Com. Arb. 193 (1976).

  36. Leading commentators confirm that the second sentence of article III does not entail that the rules of procedure applicable to the recognition and enforcement of foreign arbitral awards should necessarily be identical to the ones applicable to domestic awards.⁴³³

  433. See, e.g., Fouchard Gaillard Goldman on International Commercial Arbitration 982, para. 1671 (E. Gaillard, J. Savage eds., 1999); Andreas Börner, Article III, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 115, 119 (H. Kronke, P. Nacimiento et al. eds., 2010).

  • a. Meaning of “conditions or fees or charges”

    37. The Convention does not define the terms “conditions”, “fees” or “charges” The specific meaning of these terms has been considered in very few reported cases.

    38. In one reported case where a party objected to the enforcement of an award on the ground that the costs of the arbitration awarded by the arbitral tribunal were “extravagant”, a Greek court held that the notion of “fees or charges” under the Convention refers to “the expenses of the proceedings for the declaration of enforcement of the foreign arbitral award”, and not to the procedural costs awarded by the foreign arbitral tribunal.⁴³⁴

    434. Shipowner (Malta) v. Contractor, Supreme Court, Greece, 2007, XXXIII Y.B. Com. Arb. 565 (2008).

    39. The term “conditions” has been interpreted as referring to the procedural rules and conditions for recognition and enforcement under a Contracting State’s national law, and not the substantive grounds for refusal to recognize and enforce under article V of the Convention.⁴³⁵

    435. See Maxi Scherer, Article III (Recognition and Enforcement of Arbitral Awards; General Rule), in New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958— Commentary 193, 205 (R. Wolff ed., 2012).

  • b. Application by national courts

    40. The second sentence of article III has been applied in a number of reported cases.⁴³⁶

    436. See, e.g., Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Company, Court of Appeals, Ninth Circuit, United States of America, 26 March 2002, 01-15539; Company Y v. State X and Company Z, Court of Appeal, Berlin, Germany, 10 August 2006, XXXII Y.B. Com. Arb. 363 (2007); B. v. A., Court of Appeal of Lisbon, Portugal, 12 July 2012, XXXVIII Y.B. Com. Arb. 443 (2013); Xilam Films v. Lnk-Video S.A, Court of Appeal of Lisbon, Portugal, 12 July 2012, 7328/10.0TBOER.L1-1; Court of Appeal of Coimbra, Portugal, 19 January 2010, 70/09.6TBCBR.C1; Court of Appeal of Evora, Portugal, 31 January 2008, 1141/06-2; Court of Appeal of Porto, Portugal, 26 October 2004, 0325170; Court of Appeal of Porto, Portugal, 2 October 2001, 0120965; OAO Rosneft (Russian Federation) v. Yukos Capital s.a.r.l. (Luxembourg), Supreme Court, First Chamber, Netherlands, 25 June 2010, XXXV Y.B. Com. Arb. 423 (2010); S.A. (Belgium) v. B Sociedade Nacional, S.A, Supreme Court of Justice, Portugal, 19 March 2009, 299/09, XXXVI Y.B. Com. Arb. 313 (2011).

    41. In some cases, courts have declined to impose certain conditions on the recognition and enforcement of foreign arbitral awards which they held did not apply to domestic awards. For example, the Portuguese Supreme Court ruled that a party seeking enforcement of a foreign arbitral award did not need to obtain prior recognition of that award, because such a requirement did not apply to domestic awards.⁴³⁷ The Dutch Supreme Court held that imposing a rule that allowed parties to appeal in cassation a decision granting enforcement to foreign arbitral awards would violate article III, because the same possibility was not available for domestic awards rendered in the Netherlands.⁴³⁸ In a similar vein, an Egyptian court considered that the provisions of the Egyptian Code of Civil and Commercial Procedure governing the enforcement of foreign arbitral awards imposed conditions that were more onerous than the conditions imposed by the Egyptian Arbitration Law to the recognition and enforcement of domestic awards and, on that basis, decided to apply the latter provisions to the recognition and enforcement of a foreign arbitral award.⁴³⁹ A Hong Kong court similarly held that requiring a creditor to provide security to enforce a foreign award would impose more onerous conditions than the ones faced by a creditor seeking to enforce a domestic award because “a creditor seeking to enforce a domestic award [...] would have no such liability”.⁴⁴⁰

    437. S.A. (Belgium) v. B Sociedade Nacional, S.A., Supreme Court of Justice, Portugal, 19 March 2009, XXXVI Y.B. Com. Arb. 313 (2011).

    438. OAO Rosneft (Russian Federation) v. Yukos Capital s.a.r.l. (Luxembourg), Supreme Court, Netherlands, 25 June 2010, XXXV Y.B. Com. Arb. 423 (2010).

    439. Al Ahram Beverages Company v. Société Française d’Etudes et de Construction, Court of Appeal of Tanta, Egypt, 17 November 2009, 42/42; Omnipol v. Samiram, Court of Appeal of Cairo, Egypt, 30 May 2005, 10/122; Abdel Wahed Hassan Suleiman v. Danish Dairy and Agriculture Seelizer Company, Court of Appeal of Cairo, Egypt, 25 September 2005; El Nasr Company for Fertilizers & Chemical Industries (SEMADCO) v. John Brown Deutsche Engineering, Court of Cassation, Egypt, 10 January 2005, 966/73; John Brown Deutsche Engineering v. El Nasr Company for Fertilizers & Chemical Industries (SEMADCO), 32/119, Court of Appeal of Cairo, Egypt, 6 August 2003, 32/119; United Engineering Industrial v. Mirco Trading SI, Court of Appeal of Cairo, Egypt, 27 July 2003, 7/120.

    440. T.K. Bulkhandling GmbH v. Meridian Success International Ltd., Court of First Instance, High Court of Hong Kong Special Administrative Division, 28 November 1990, 1998 No. MP 4765. See also Shandong Hongri Acron Chemical Joint Stock Company Limited v. PetroChina International (Hong Kong) Corporation Limited, Court of Appeal, Hong Kong, 13 June 2011, 25 July 2011 and 11 August 2011, XXXVI Y.B. Com. Arb. 287 (2011).

    42. In other cases, courts have rejected arguments that the conditions applicable to the recognition and enforcement of foreign arbitral awards were more onerous than those applicable to domestic ones.⁴⁴¹ For instance, a Swiss court considered that the use of oral proceedings in the context of the enforcement of a foreign award was not contrary to article III on the ground that oral proceedings could also be used for the enforcement of domestic awards.⁴⁴² Likewise, a United States court held that the fact that the legislation applicable to domestic awards which automatically designated the venue in the district where the arbitral award was rendered, but not for foreign awards, was “not so onerous [to the recognition or enforcement of foreign arbitral awards] that [the court] should disregard the plain meaning of [its national law] in an effort to honor the spirit of Article III”.⁴⁴³ The court observed that, in such a situation, parties could achieve the same result by providing for a place of arbitration in their agreement.

    441. See, e.g., Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine and State of Ukraine, Court of Appeals, Second Circuit, United States of America, 15 November 2002, 01-7947, 01-9153, where a United States court held that the doctrine of forum non conveniens did not create more onerous conditions on foreign arbitral awards since this doctrine also applies to domestic arbitrations.

    442. N. Z. v. I. (Romania), Court of Appeal of Basel-Stadt, Switzerland, 27 February 1989, XVII Y.B. Com. Arb. 581 (1992). For other examples, see also Gouvernement de la Fédération de Russie v. Compagnie Noga d’importation et d’exportation, Court of Appeal of Paris, France, 22 March 2001, 2001/208101.

    443. Canada Inc. (f/k/a Nora Beverages, Inc.) v. North Country Natural Spring Water Ltd., District Court, Eastern District Pennsylvania, United States of America, 21 October 2002, 02-1416.