1. Article XII governs the date of entry into force of the New York Convention.

2. The Convention entered into force on 7 June 1959, ninety days following the deposit of the instrument of ratification by Egypt, Israel, Morocco and the Syrian Arab Republic. In accordance with article XII, Contracting States became bound by the Convention upon its entry into force on 7 June 1959 or ninety days after the deposit of any subsequent instrument of ratification or accession.¹³⁷⁵

3. In addition to being relevant for the recognition and enforcement of arbitral awards under the Convention in the State concerned, the date on which the Convention becomes applicable in a given State may also be used as a point of reference when a State applies a reciprocity reservation.¹³⁷⁶

4. A question often arises whether the Convention applies to the recognition and enforcement of arbitration agreements entered into, and arbitral awards rendered, before the adoption of the Convention by the State concerned.

5. As shown by the travaux préparatoires, that matter was discussed by the State delegations, and a proposal was made, but not adopted, that the Convention should only apply to arbitral awards rendered after the date of adoption of the Convention.¹³⁷⁷ Some States objected to this proposal on the basis that many arbitral awards would be denied the benefit of the Convention, which was intended to apply to as many awards as possible. As explained by Israel’s representative, “[s]ince the purpose of the draft Convention was to make recognition and enforcement as easy as possible; it would be in accordance with sound legal practice for it to apply to awards made before the Convention’s entry into force”.¹³⁷⁸ The Swiss and French representatives further pointed out that “the Convention would apply only to unenforced awards which had not been brought before the courts. Such awards could not be many and there was no reason to exclude them. [...] The majority of such awards were voluntarily enforced and the draft Convention would therefore apply retroactively only to awards whose enforcement had been prevented by the bad faith of the losing party”.¹³⁷⁹

6. Since the Convention was adopted, very few States have formulated a reservation with regards to the retroactive application of the Convention.¹³⁸⁰

7. In the majority of Contracting States, courts have considered that the Convention applies to (i) arbitration agreements signed before the Convention’s entry into force in the enforcing State, and (ii) arbitral awards which pre-date the adoption of the Convention either by the State where the award was rendered or by the enforcing State.¹³⁸¹

8. First, courts have accepted to apply the Convention in situations where the contract containing the arbitration agreement had been signed before the Convention entered into force in the enforcing State.¹³⁸² For instance, the Brazilian Superior Court of Justice held, without referring to article XII of the Convention, that the fact that the arbitration agreement was signed prior to the Arbitration Act implementing the Convention was immaterial because procedural laws, such as the Arbitration Act, had immediate effect under Brazilian law.¹³⁸³

9. Second, with few exceptions,¹³⁸⁴ courts have applied the Convention when an arbitral award had been rendered in a State which had not yet acceded to the Convention. For instance, the English House of Lords applied the 1975 Arbitration Act implementing the New York Convention to an arbitral award rendered in Kuwait prior to Kuwait’s accession to the Convention. Without referring to article XII, the House of Lords held that the relevant time to assess whether a State was a “contracting state” was the time of enforcement, and not the time the award was made.¹³⁸⁵ Similarly, a German court applied the New York Convention to enforce an arbitral award rendered in London one month prior to the United Kingdom’s accession to the Convention. The Court held that the Convention, having a procedural character, applies retroactively.¹³⁸⁶ Courts have also applied the Convention when an award was rendered before the State in which enforcement is sought had acceded to the Convention. In the United States, for instance, the Court of Appeals for the Second Circuit held that the Convention should apply retroactively to an arbitral award rendered in Japan on 18 September 1970, even though the Convention only came into force in the United States on 20 December 1970.¹³⁸⁷

10. In the same vein, certain courts have applied the Convention retroactively in accordance with their national legislation implementing the Convention. For instance, the Canadian Federal Court applied the Convention with respect to an award rendered one year prior to Canada’s accession pursuant to section 4(2) of the United Nations Foreign Arbitral Awards Convention Act, which provides that the Convention is to apply to “arbitral awards and arbitration agreements whether made before or after the coming into force of this Act”.¹³⁸⁸