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E/CONF.26/L.33 - Amendments proposed by the Netherlands, Sweden, the Committee, France, Pakistan and Israel- 28/05/1958
Date 28/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.3. Comparison of Drafts Relating to Articles III, IV and V of the Draft Convention - 29 May 1958 Country Netherlands | Sweden | France | Pakistan | Israel | United Kingdom Applicable NYC Provisions II | V | V(1)(c) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3358&opac_view=6 Attachment (1)
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Date 28/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Applicable NYC Provisions II | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(b) | VI Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3357&opac_view=6 Attachment (1)
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Comments Statement submitted by the Observer og the Hague Conference on Private International Law (8th session) Date 28/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.4. Statement submitted by the Observer of the Hague Conference on Private International Law Applicable NYC Provisions II Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3360&opac_view=6 Attachment (1)
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Date 28/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country Sweden Applicable NYC Provisions II Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3353&opac_view=6 Attachment (1)
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Date 27/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country United Kingdom Applicable NYC Provisions II Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3342&opac_view=6 Attachment (1)
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Date 26/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country Netherlands Applicable NYC Provisions II | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3335&opac_view=6 Attachment (1)
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Comments Proposed Definition of words "arbitral award" Date 26/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country Israel Applicable NYC Provisions II Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3336&opac_view=6 Attachment (1)
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Date 26/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country Japan | Sweden Applicable NYC Provisions II Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3338&opac_view=6 Attachment (1)
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Date 22/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country Sweden Applicable NYC Provisions II | V | V(1)(e) | V(2)(b) Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3322&opac_view=6 Attachment (1)
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Date 21/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country Poland Applicable NYC Provisions I | II | VII | VIII | IX Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3319&opac_view=6 Attachment (1)
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Date 08/04/1958 Classification (first level) A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations Classification (second level) A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958 Country Netherlands Applicable NYC Provisions I | II | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3307&opac_view=6 Attachment (1)
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Date 13/04/1956 Classification (first level) A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations Classification (second level) A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958 Country Hungary | Norway Applicable NYC Provisions I | II | V | V(1)(c) | V(1)(e) | V(2)(a) | VIII | XI Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3302&opac_view=6 Attachment (1)
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Date 03/04/1956 Classification (first level) A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations Classification (second level) A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958 Country Netherlands | United Kingdom Applicable NYC Provisions I | II | V | V(1)(c) | V(1)(d) | V(2)(b) | IX | XIV Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3301&opac_view=6 Attachment (1)
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Date 01/03/1956 Classification (first level) A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations Classification (second level) A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958 Country Greece Applicable NYC Provisions I | II | V | V(1)(d) | V(1)(e) | V(2)(a) Language(s) English | French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3299&opac_view=6 Attachment (1)
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Date 21/02/1956 Classification (first level) A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations Classification (second level) A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958 Country Egypt | Sweden Applicable NYC Provisions I | II | V | V(2)(b) | VII | VIII | IX | X | XI | XII | XIII | XIV | XV | XVI Language(s) English | French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3298&opac_view=6 Attachment (1)
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Comments Annex I: Comments by Governements (General observations and then comments on each article) Annex II: Comments by Non-Governmental Organizations (General observations and then comments on each article). Date 31/01/1956 Classification (first level) A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations Classification (second level) A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958 Country Austria | Belgium | Brazil | China | Denmark | France | India | Japan | Korea | Lebanon | Mexico | Philippines | Switzerland Applicable NYC Provisions I | II | III | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | VII | VIII | IX | X | XI | XII | XIII | XIV | XV | XVI Language(s) English | French | Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3297&opac_view=6 Attachment (1)
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Comments Meeting held at Headquarters, New York, on Thursday, 3 March 1955, at 10.50 a.m Date 29/03/1955 Classification (first level) D. Committee on the Enforcement of International Arbitral Awards Classification (second level) D.1. Summary Records of the Committee on the Enforcement of International Arbitral Awards Applicable NYC Provisions II | V | V(1)(d) | XII | XIII Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3429&opac_view=6 Attachment (1)
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Comments Annex: E/AC.42/4 - Draft Convention on the recognition and enforcement of foreign arbitral awards Date 28/03/1955 Classification (first level) A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations Classification (second level) A.1. ECOSOC: Report of the Committee on the Enforcement of Foreign Arbitral Awards: 18 March 1955 Country Australia | Belgium | Ecuador | Egypt | India | Sweden | United Kingdom Applicable NYC Provisions I | II | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | VII | VIII | IX | X | XI | XII | XIII | XIV | XV | XVI Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3295&opac_view=6 Attachment (1)
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II / 1. INTRODUCTION (II) / §1
1. Article II governs the recognition and enforcement of arbitration agreements. Provided that certain conditions are satisfied, article II mandates Contracting States to recognize an agreement in writing to submit disputes to arbitration and to enforce such an agreement by referring the parties to arbitration.
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10. The standard to be applied by the courts in determining whether the agreement is “null and void, inoperative or incapable of being performed” when deciding whether to refer the parties to arbitration therefore remains debated.16
16. For a full discussion, see infra paras. 79-99.
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100. Article II(3) requires national courts to refer the parties to arbitration “unless [they find] that the said agreement is null and void, inoperative or incapable of being performed.”
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102. On the other hand, the United States Court of Appeals for the Second Circuit determined that it had jurisdiction to establish whether an arbitration agreement existed before referring the dispute to the arbitrators.152 In so ruling, the Court did not refer to any exceptions provided for under article II(3).
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103. Article II(3) of the Convention is silent with regards to the legal standard for determining whether an arbitration agreement is null and void. Some courts consider that the issue is to be determined under the applicable municipal law, either the lex fori153 or the law applicable pursuant to the conflict-of-laws rule contained in article V(1)(a) of the Convention.154
153. Piero Bernardini, Arbitration Clauses: Achieving Effectiveness in the Law Applicable to the Arbitration Clause, in IMPROVING THE EFFICIENCY OF ARBITRATION AGREEMENTS AND AWARDS: 40 YEARS OF APPLICATION OF THE NEW YORK CONVENTION, 1998 ICCA CONGRESS SERIES 197 (Albert Jan van den Berg ed., 1998).
154. Federal Supreme Court, Switzerland, 21 March 1995, 5C.215/1994/lit.
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105. In addition, parties have sought to invalidate arbitration agreements and escape their obligation to arbitrate by arguing that the main contract containing the agreement was null and void. The vast majority of courts distinguish between the invalidity of the contract and the invalidity of the arbitration agreement in accordance with the principle of the severability of the arbitration agreement – sometimes referred to as the principle of autonomy.
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106. In Fiona Trust, the Court of Appeal of England and Wales stayed the judicial proceedings before it pursuant to Section 9(1) of the 1996 Arbitration Act (giving effect to article II(1) of the New York Convention) as the applicant alleged the invalidity of the overall contract, but did not challenge the validity of the arbitration agreement itself.159 Relying heavily on the severability principle, the Court of Appeal held that a dispute regarding the invalidity of the overall contract, but not specifically directed at the arbitration agreement, should be addressed by the arbitrators. In the same manner, a Dutch court held that “the validity of the arbitration agreement is ascertained separately, independent of the validity of the main contract in respect of which arbitration has been agreed, even if both are contained in the same document.”160 The Madras High Court similarly made express reference to the “doctrine of separability”, and referred the parties to arbitration on the basis that “[t]he plaintiffs cannot ignore the Arbitration Clause and invoke the jurisdiction of a Civil Court, just on the basis that even according to the defendants the underlying agreement was void.”161
159. Fiona Trust & Holding Corp. v. Privalov, Court of Appeal, England and Wales, 24 January 2007, 2006 2353 A3 QBCMF, upheld by Fili Shipping Co Ltd and others v Premium Nafta Products Ltd and others, House of Lords, England and Wales, 17 October 2007.
160. Claimant v. Ocean International Marketing B.V., et al, Court of First Instance of Rotterdam, Netherlands, 29 July 2009, 194816/HA ZA 03-925.
161. Ramasamy Athappan and Nandakumar Athappan v Secretariat of Court, International Chamber of Commerce, High Court of Madras, India, 29 October 2008. See also: Oberlandesgericht [OLG] Celle, Germany, 8 Sch 3/01, 2 October 2001.
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107. The severability doctrine has been endorsed by most countries,162 arbitral institutions,163 UNCITRAL instruments on arbitration,164 and leading commentators who consider that an arbitration agreement constitutes an agreement within an agreement.165
162. See e.g., Swiss Private International Law, Chapter 12, article 178(3), Colombian Arbitration Act, article 5; French arbitration law, article 1447; English Arbitration Act, article 7; Australian Arbitration Act, Chapter VI, article 16; Brazilian Arbitration Act, article 8; Chinese Arbitration Act, article 19.
163. UNCITRAL Arbitration Rules, article 23(1); ICC Arbitration Rules, article 6(4); LCIA Arbitration Rules, article 23(1).
164. Article 16(1) of the UNCITRAL Model Law on Arbitration provides that “an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.” A list of countries that have enacted legislation based on the UNCITRAL Model Law on Arbitration is available on the Internet at http://www.uncitral.org.
165. R. Doak Bishop, Wade M. Coriell, Marcelo Medina, The ‘Null and Void’ Provision of the New York Convention, supra note 124, at 278.
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108. Courts generally assess the standard of “inoperability” under the broader expression “null and void, inoperative or incapable of being performed” without any further distinction. However, the relevant case law suggests that the word “inoperative” covers situations where the arbitration agreement has become inapplicable to the parties or their dispute.166
166. See e.g., Golden Ocean Group Ltd v. Humpuss Intermoda Transportasi TBK Ltd & anr, High Court of Justice, England and Wales, 16 May 2013, [2013] EWHC 1240.
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109. For instance, in circumstances where the parties had waived their right to arbitrate by initiating judicial proceedings, an Indian court has held that the arbitration agreement was inoperative under Section 45 of the Indian Arbitration Act of 1996 which mirrors article II(3) of the Convention.167 Accordingly, it refused to refer to arbitration the parties which had submitted numerous civil and criminal suits before Indian courts.
167. Ramasamy Athappan and Nandakumar Athappan v Secretariat of Court, International Chamber of Commerce, High Court of Madras, India, 29 October 2008. See also the citations at para. 67.
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