1. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards was adopted by the United Nations following a diplomatic conference held in May and June 1958 at the United Nations Headquarters in New York.1 The New York Convention entered into force on 7 June 1959.2 At the date of this Guide, the Convention has 156 Contracting States.3
1. United Nations, Treaty Series, vol. 330, No. 4739; UN DOC E/CONF.26/SR. 1-25, Summary Records of the United Nations Conference on International Commercial Arbitration, New York, 20 May - 10 June 1958.
2. New York Convention, article XII.
3. The current status of the New York Convention is available on the UNCITRAL website [http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html].
2. UNCITRAL considers the New York Convention to be one of the most important United Nations treaties in the area of international trade law and the cornerstone of the international arbitration system.4 Since its inception, the Convention’s regime for recognition and enforcement has become deeply rooted in the legal systems of its Contracting States and has contributed to the status of international arbitration as today’s normal means of resolving commercial disputes.
4. See Renaud Sorieul, The Secretary of UNCITRAL, on the 1958 New York Convention Guide website [available at http://newyorkconvention1958.org].
3. States adhering to the New York Convention undertake to give effect to an agreement to arbitrate when seized of an action in a matter covered by an arbitration agreement, and to recognize and enforce awards made in other States, subject to specific limited exceptions.
4. By imposing stricter rules on recognition and enforcement of foreign arbitral awards, a Contracting State will breach its obligations under the Convention. This principle is reflected in article III, which grants Contracting States the discretion to determine the applicable rules for recognition and enforcement so long as, in doing so, they do not impose “substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards [...] than are imposed on the recognition or enforcement of domestic arbitral awards.”
The New York Convention sets a maximum level of control at the recognition and enforcement stage
5. The conditions for recognition and enforcement in the Convention establish a “ceiling”, or maximum level of control, which Contracting States may exert over arbitral awards and arbitration agreements. On the other hand, Contracting States are free to apply more liberal rules than those set forth in the Convention. The Convention’s aim is not to limit the pre-existing freedom of the Contracting States to treat foreign arbitral awards or arbitration agreements as favourably as they please, but rather to facilitate their recognition and enforcement to the greatest extent possible.
6. The New York Convention’s pro-enforcement policy is enshrined at article VII (1), which is considered to be one of its cornerstones.5 Known as the “more-favourable-right” provision, article VII (1) provides that, in addition to the Convention, a party seeking recognition and enforcement shall not be deprived of the right to rely on a more favourable domestic law or treaty. In accordance with article VII (1), a Contracting State will not be in breach of the Convention by enforcing arbitral awards and arbitration agreements pursuant to more liberal regimes than the Convention itself.
5. One commentator has described this provision as the “treasure, the ingenious idea” of the New York Convention. See Philippe Fouchard, Suggestions pour accroître l’efficacité internationale des sentences arbitrales, 1998 Rev. Arb. 653, 663.
7. The New York Convention therefore exists as a safeguard which guarantees a minimum standard of liberalism in its Contracting States, but which does not need to be applied. Today, in some of the most pro-arbitration jurisdictions, the number of cases referring to Convention is scarce precisely because the ordinary rules governing the recognition and enforcement of awards are more liberal and, in accordance with article VII (1), routinely applied without any need to refer to the Convention.6
6. See Dominique Hascher, Les perspectives françaises sur le contrôle de la sentence internationale ou étrangère, I (2) McGill Journal of Dispute Resolution 1 (2015).
The New York Convention contains its own mechanism for adapting to the development of international arbitration
8. While the New York Convention is undoubtedly the most significant international instrument for the recognition and enforcement of arbitral awards, it does not operate in isolation. In some circumstances, other international treaties, or the domestic law of the country where enforcement is sought, will also apply to the question of whether a foreign arbitral award should be recognized and enforced.
9. The genius of the New York Convention is to have foreseen, and made provision for, the progressive liberalization of the law of international arbitration. Article VII (1), which governs the relationship between the Convention and other applicable treaties and laws, derogates from the rules that normally govern the application of conflicting provisions of treaties, and provides that in the event that more than one regime might apply, the rule which shall prevail is neither the more recent nor the more specific, but instead that which is more favourable to the recognition and enforcement.7
7. See the comments of the Swiss Federal Supreme Court in Denysiana S.A. v. Jassica S.A., March 14, 1984, Arrêts du Tribunal Fédéral 110 Ib 191, 194, describing that article VII (1) enshrines the principle of maximum effectiveness (“règle d’efficacité maximale”).
10. While in recent years, some important scholars have suggested that the time has come to initiate a revision of the New York Convention,8 there is no danger in leaving the Convention in its current form.9 Article VII (1), which will grow in importance with the continued modernization of national arbitration laws, ensures that the Convention cannot freeze the development of international arbitration. It is this provision which has allowed courts in the Contracting States to advance many of the most important innovations underpinning the modern system of international arbitration. The Convention therefore possesses the necessary tools to ensure its durability while permitting the courts of Contracting States to continually improve upon it.
8. See, in particular, Pieter Sanders, A Twenty Years’ Review of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 13 Int’l Law 269 (1979); Jan Paulsson, Towards Minimum Standards of Enforcement: Feasibility of a Model Law, in Improving yhe Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention 574 (A.J. van den Berg ed., 1998); Albert Jan van den Berg, Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards, AJB Rev 06 (May 2008).
9. See Emmanuel Gaillard, The Urgency of Not Revising the New York Convention, in 50 Years of the New York Convention: ICCA International Arbitration Conference 689 (A.J. van den Berg ed., 2009); see also V.V. Veeder, Is There a Need to Revise the New York Convention?, in The Review of International Arbitral Awards, IAI Series on International Arbitration No. 6, 183 (2010).
The New York Convention has been applied in a consistent manner
11. This Guide serves as a reference tool that collates a wide range of decisions on the New York Convention and analyses extensively how courts of Contracting States interpret and apply its provisions.
12. The practices highlighted in the following chapters demonstrate that, despite the diversity of the Contracting States’ legal systems, the interpretation and application of the Convention has been rather consistent and in conformity with the Convention’s policy of favouring recognition and enforcement. Many Contracting States which first adhered to a more interventionist approach to international arbitration have, in accordance with obligations undertaken under the Convention, moved towards a liberal regime that limits court control over the arbitral process.
13. Almost 60 years after its creation, the New York Convention continues to fulfil its objective of facilitating the recognition and enforcement of foreign arbitral awards, and in the years to come, will guarantee the continued growth of international arbitration and create conditions in which cross-border economic exchanges can flourish.