In the case of a federal or non-unitary State, the following provisions shall apply:
(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal authority, the obligations of the federal Government shall to this extent be the same as those of Contracting States which are not federal States;
(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent states or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Government shall bring such articles with a favorable recommendation to the notice of the appropriate authorities of constituent states or provinces at the earliest possible moment;
(c) A federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of this Convention, showing the extent to which effect has been given to that provision by legislative or other action.
Travaux préparatoires on Article XI
A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations
A.1. ECOSOC: Report of the Committee on the Enforcement of Foreign Arbitral Awards: 18 March 1955
A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958
A.3. Activities of Inter-Governmental and Non-Governmental Organizations in the Field of International Commercial Arbitration: Consolidated Report by the Secretary-General - 24 April 1958
B. United Nations Conference On International Commercial Arbitration: Documents
B.10. Text of Articles Adopted by the Conference: 4-6 June 1958
B.11. Text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards as Provisionally Approved by Drafting Committee 6-9 June 1958
B.14. Final Act and Convention on the Recognition and Enforcement of Foreign Arbitral Awards
C. Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958
D. Committee on the Enforcement of International Arbitral Awards
D.1. Summary Records of the Committee on the Enforcement of International Arbitral Awards
1. Article XI is of interest to relatively few States—namely, federal states where the central Government lacks treaty power to establish uniform law on matters covered by the Convention. It should be noted however that a State that has two or more territorial units is only entitled to make a declaration under article XI if different systems of law apply in those units in relation to matters dealt with in the Convention.
2. As shown in the travaux préparatoires, the text of article XI was the subject of lengthy debate. It has however not created any particular difficulty in practice. Similar provisions are commonly included in other international treaties.
3. In most of the Contracting States with a federal system (e.g., Austria, Germany, India, Switzerland, the United States) the enforcement of foreign arbitral awards is governed by federal legislation. In the United States, for instance, Congress implemented the Convention in 1970 by passing enabling legislation, making it the supreme law of the land that binds both the federal and state Governments. The Convention and its implementing legislation were subsequently codified as Chapter 2 of Title 9 of the United States Code (i.e., Chapter 2 of the Federal Arbitration Act (“FAA”)). As a result, United States courts are required to enforce all foreign arbitral awards, which are governed by the Convention, pursuant to Chapter 2 of the FAA. The United States Supreme Court has held that the Convention, as incorporated into federal law, is intended “to encourage the recognition and enforcement in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries”.1370 This rationale is also expressed in a decision from the United States District Court for the District of Columbia, which noted that “[b]y acting at the federal level, Congress ensured that the enforcement of foreign arbitral awards in the United States would be governed by one set of ‘uniform rules of procedure,’ rather than a diversity of state ones as might have occurred pursuant to article XI”.1371 In Sedco, the Court of Appeals for the Fifth Circuit proclaimed that since its enactment, the Convention has been “the Supreme law of the land” and therefore, “[a]ny law or decision prior in time to this express undertaking must be construed as consistent with the Convention or set aside by it”.1372
1372. Sedco Inc Mobile Drilling Uni Sedco v. Petroleos Mexicanos Mexican National Oil Co., Court of Appeals, Fifth Circuit, United States of America, 12 August 1985, 767 F.2d 1140. See also Murphy Oil USA Inc. v. SR International Business Insurance Company Ltd, District Court, Western District of Arkansas, United States of America, 20 September 2007, 07-CV-1071.
4. In a few Contracting States, the legislative power concerning the enforcement of foreign arbitral awards is divided between the federal and provincial levels. In Canada, the New York Convention has been implemented at the federal level through the United Nations Foreign Arbitral Awards Convention Act, which stipulates that the Convention applies only to “differences arising out of commercial legal relationships, whether contractual or not”. The Commercial Arbitration Act codified the UNCITRAL Model Law on International Commercial Arbitration at the federal level. In the words of the Canadian Federal Court of Appeal, this Act applies only “in relation to matters where at least one of the parties to the arbitration is Her Majesty in right of Canada, a departmental corporation or a Crown corporation or in relation to maritime or admiralty matters”.1373 The Court further explained that “[l]egislation has also been enacted to implement the New York Convention and the Model Law in each province and territory (to the exception of Quebec), which applies to most civil matters, except those falling under the jurisdiction of the Federal State. As a result, commercial disputes in Canada may be subject to either federal or provincial jurisdiction, depending on the subject matter of the dispute”. The Federal Court of Appeal specified that the enforcement of a foreign arbitral award in maritime matters falls under the jurisdiction of federal courts and reminded that “Parliament had jurisdiction to give the Convention the force of law in areas within its authority such as ‘navigation and shipping’”.1374
1373. Commercial Arbitration Act, R.S.C., 1985, c. 17 (2nd Supp.) Section 5(2).
1374. Northern Sales Company Limited v. Compania Maritima Villa Nova S.A., Federal Court of Appeal, Winnipeg Manitoba, Canada, 20 November 1991, XVIII Y.B. Com. Arb. 363 (1993).