Guide
sorted by (Publication date descending, Resource ascending) Add to selection
Quick view
Refine your search
V(1) / V(1)(e) / 2. ANALYSIS (V(1)(e)) / B. What is a “competent authority” of the country “in which, or under the law of which”, the award was made? / b. The country “in which” or “under the law of which” the award was made /
24. In contrast with the solution stated above, in previous decisions the Indian Supreme Court considered that the expression “under the law of which” could designate the law applicable to the arbitration agreement or to the merits of the case. In most recent decisions, however, the Indian Supreme Court revised this case law. In the Balco case, the Indian Supreme Court ruled that the expression “under the law of which” referred to the procedural law of the arbitration in the case that it was different from the law of the seat of the arbitration, and not to the substantive law governing the underlying contract.58
58. Bharat Aluminum Co. v. Kaiser Aluminum Technical Service, Inc., Supreme Court, India, 6 September 2012, Civil Appeal No. 7019 of 2005. The Supreme Court added that the position adopted by Indian courts in the past, on the basis of which awards were set aside by Indian courts even when the seat of the arbitration was located abroad, amounted to ignoring “the spirit underlying the New York Convention which embodies a consensus evolved to encourage consensual resolution of complicated, intricate and in many cases very sensitive International Commercial Disputes”.
See in context
25. The same interpretation is shared by the commentators of the Convention.59
59. NADIA DARWAZEH, Article V(1)(e), in RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A GLOBAL COMMENTARY ON THE NEW YORK CONVENTION (H. Kronke, P. Nacimiento et al. ed., 2010), at 320-323; ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL INTERPRETATION (1981), at 350; CHRISTOPH LIEBSCHER, Article V, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS – COMMENTARY (R. Wolff ed., 2012), at 376, para. 409.
See in context
26. As a result, an award can in practice only be denied enforcement under the Convention if it has been set aside or suspended by the competent courts of the place of the arbitration, or as the case may be, competent courts in the country of the law chosen by the parties to govern the arbitration. If the award has been set aside or suspended in any other country, this does not constitute a valid ground for denying enforcement. For example, a United States court refused to dismiss the enforcement of an award on the ground that the Belize courts had ordered that its enforcement be suspended “in any jurisdiction outside of Belize”, while the place of the arbitration was England and the applicable procedural law was English law.60 A number of courts have held that, in practice, this provision amounts to granting the courts of the place of the arbitration exclusive jurisdiction to rule on requests for the setting aside or suspension of an arbitral award.61
60. Belize Social Development Ltd. (Belize) v. Government of Belize, Court of Appeals, D.C. Circuit, United States of America, 13 January 2012, 10-7167. See also Continental Transfert Technique Limited v. Federal Government of Nigeria, District Court for the District of Columbia, United States of America, 23 March 2010, Civil Action No. 08-2026 (PLF) (in a case where the seat of the arbitration was in the UK, ruling that an ex parte order issued by the courts of Nigeria and temporarily barring the Claimant “from seeking or continuing to [seek] the recognition and enforcement of the Final Award […] pending the hearing and determination” does not constitute a valid ground for refusing the enforcement of the award under Article V(1)(e)).
61. This has been repeatedly stated by the Court of Appeal of Cairo, for instance in Brothers for Import, Export and Supply Company (Egypt) v. Hano Acorporish (South Korea), Court of Appeal of Cairo, Egypt, 2 July 2008, 23/125 (stating that only the Courts of the country where the award was issued have jurisdiction to rule on requests for setting aside); The Commercial Company for Investment v. Bell Rover Shipping Limited, Court of Appeal of Cairo, Egypt, 19 March 1997, 68/113 (stating that only the Courts of the country where the award was issued have jurisdiction to rule on requests for the suspension of the enforcement of the arbitral award or its setting aside); Cairo for Real Estate Company v. Abdel Rahman Hassan Sharbatly, Court of Appeal of Cairo, Egypt, 26 February 2003, 23/119 (stating that only the Courts of the place of the arbitration have jurisdiction to rule on requests for setting aside). See also Karaha Bodas Co. (Cayman Islands) v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Indonesia), Court of Appeals, Fifth Circuit, United States of America, 23 March 2004, 02-20042, 03-20602. See also ICCA’S GUIDE TO THE INTERPRETATION OF THE 1958 NEW YORK CONVENTION, ICCA, 2011, at 102.
See in context
27. Article V(1)(e) allows national courts to refuse recognition or enforcement if it is established that, in the courts of the country in which, or under the law of which, the award was made, the award has been set aside or suspended.
See in context
28. As pointed out in the commentary on the chapeau of article V, the use of the term “may” in the chapeau of article V(1) indicates that national courts have the possibility to refuse enforcement of an award on the grounds listed in this article, but they are not obliged to do so.62 Furthermore, as discussed in the chapter of the Guide on article VII, a court will not breach the Convention by enforcing an arbitral award pursuant to more favourable provisions found in its domestic laws, in accordance with article VII(1). Accordingly, a number of courts have accepted to enforce awards suspended or set aside at the seat of the arbitration, either on the basis of the use of the term “may” in article V(1), or on the basis of a more favourable provision in the domestic law than article V(1)(e) in accordance with article VII(1).63
62. See the introduction to the chapter on article V(1). See also NADIA DARWAZEH, Article V(1)(e), in RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A GLOBAL COMMENTARY ON THE NEW YORK CONVENTION (H. Kronke, P. Nacimiento et al. ed., 2010), at 307-309; CHRISTOPH LIEBSCHER, Article V, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS – COMMENTARY (R. Wolff ed., 2012), at 356, para. 351. Some authors have however contested this interpretation, relying on the French version of the text of the Convention. See, on this debate, Philippe Fouchard, “La portée internationale de l’annulation de la sentence arbitrale dans son pays d’origine”, REV. ARB 1997, at 344; Jan Paulsson, “Enforcing Arbitral Awards Notwithstanding a Local Standard Annulment (LSA), ICC Bull. 9, no. 1 (1998) at 17.
63. See for instance, Société Bargues Agro Industrie SA v. Société Young Pecan Company, Court of Appeal of Paris, France, 10 June 2004, 2003/09894; Chromalloy Aeroservices v. Arab Republic of Egypt, District Court, District of Columbia, United States of America, 31 July 1996, 94-2339; Nigerian National Petroleum Corporation v. IPCO (Nigeria) Ltd., Court of Appeal, England and Wales, 21 October 2008, A3/2008/1037.PTA+(A); Buyer (Poland) v. Seller (Poland), Hanseatisches Oberlandesgericht [OLG] Hamburg, Germany, 24 January 2003, 11 Sch 06/01 and see the decisions cited in the chapter for article VII(1).
See in context
29. According to a commentator, this ground for refusal “seldom occurs and is almost never successful”,64 in a number of instances, national courts have rejected this ground for denying enforcement by applying national laws more favourable to enforcement than article V(1)(e) of the Convention.65 On the other hand, the Convention does not obligate courts to enforce awards that have been set aside at the place of arbitration, and in some cases, courts have denied enforcement pursuant to article V(1)(e) on this ground.66
64. ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL INTERPRETATION (1981), at 332.
65. See in particular the practice of the courts of France: Société Pabalk Ticaret Sirketi v. Société Anonyme Norsolor S.A., Court of Cassation, France, 83-11.355, 9 October 1984, 1985 REV. ARB., at 432, with English translation in 24 ILM, at 360 (1985); Bargues Agro Industrie S.A. v. Young Pecan Company, Court of Appeal of Paris, France, 10 June 2004, 2006 REV. ARB., at 154; Société PT Putrabali Adyamulia v. Société Rena Holding et Société Moguntia Est Epices, Court of Appeal of Paris, France, 31 March 2005, 2006 REV. ARB. 665, affirmed by Société PT Putrabali Adyamulia v. Rena Holding Société Moguntia Est Epices, Court of Cassation, France, 05-18053, 29 June 2007, 2007 REV. ARB., at 507; Direction Générale de l’Aviation Civile de l’Emiral de Dubai v. Société International Bechtel Co., Court of Appeal of Paris, France, 29 September 2005, 2006 REV. ARB., at 695; Société S.A. Lesbats et Fils v. Volker le Docteur Grub, Court of Appeal of Paris, France, 18 January 2007.
66. See in particular the practice of the courts of the United States and Germany: Baker Marine Ltd. v. Chevron Limited, Chevron Corp., Inc. and others v. Danos and Curole Marine Contractors, Inc., Court of Appeals, Second Circuit, United States of America, 12 August 1999, 97-9615 and 97-9617 (refusing to enforce an award on the ground that it was annulled by the Nigerian courts of the seat); TermoRio S.A. E.S.P. (Colombia) v. Electranta S.P. (Colombia), Court of Appeals, D.C. Circuit, United States of America, 25 May 2007, 06-7058 (refusing to enforce an award annulled by the courts of the seat, namely Colombian courts); Oberlandesgericht [OLG] Rostock, Germany, 28 October 1999, 1 Sch 03/99 (denying enforcement of an award set aside at the seat of the arbitration, namely Moscow).
See in context
3. Article V(1)(e) of the New York Convention was drafted with a view to remedy these shortcomings. The drafters of the New York Convention abandoned the requirement of finality of the award, thereby putting an end to the mechanism of double exequatur, while providing that the non-binding nature of the award could still constitute a valid ground for refusing recognition and enforcement.4 The Chairman of the Working Party in charge of drafting article V(1)(e) explained this decision as follows: “The text of paragraph 1 (e) of [article V] was drafted with the aim of making the Convention acceptable to those States which considered an arbitral award to be enforceable only if it fulfilled certain formal requirements which alone made the award binding on the parties. The Working Party agreed that an award should not be enforced if under the applicable arbitral rules it was still subject to an appeal which had a suspensive effect, but at the same time felt that it would be unrealistic to delay the enforcement of an award until all the time limits provided for by the statutes of limitations had expired or until all possible means of recourse, including those which normally did not have a suspensive effect, have been exhausted and the award has become ‘final’.”5
4. NADIA DARWAZEH, Article V(1)(e), in RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A GLOBAL COMMENTARY ON THE NEW YORK CONVENTION (H. Kronke, P. Nacimiento et al. ed., 2010), at 306-307; ICCA’S GUIDE TO THE INTERPRETATION OF THE 1958 NEW YORK CONVENTION, ICCA, 2011, at 110.
5. Travaux préparatoires, Comments on Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, E/CONF.26/SR.17, at 3.
See in context
30. In cases where this ground for denying enforcement has been applied, courts have held that the award must have been effectively set aside for it to be denied enforcement, and that the mere initiation of setting aside proceedings does not constitute a valid ground.67 A Russian court decided that if the award had effectively been set aside, however, this would constitute a sufficient ground for denying enforcement; whether or not the decision setting aside the award is subject to appeal is irrelevant.68
67. See supra paragraph 12.
68. Ciments Français (France) v. OAO Holding Company Siberian Cement (Russia), OOO Financial Industrial Association Sibconcord (Russia), Istanbul Çimento Yatırımları (Turkey), Federal Arbitrazh Court for the West-Siberian District, Russia, 5 December 2011, A27-781/2011.
See in context
31. Article V(1)(e) of the Convention also allows parties to challenge the enforcement of an award if the award has been “suspended”. The Convention does not provide guidance as to the definition of the term “suspended”; nevertheless, with very few exceptions,69 the majority of courts agree that this refers to a formal suspension resulting from a court decision. The Swiss Federal Tribunal, for instance, held that this rule covers a situation in which a court, “noticing that a fault is likely to impact the award, prevents its enforcement until such time as the issue is settled substantively by the court examining the action to set aside the award”. In that case, a court decision dismissing the claimant’s request to wind up the respondent was found not to call into question the validity of the award or to formally suspend its enforcement.70
69. See for instance Creighton Limited v. The Government of the State of Qatar (Ministry of Public Works), District Court, District of Columbia, United States of America, 22 March 1995, 94-1035 RMU, XXI Y. B. COM. ARB. (1996), at 751-758 (refusing to enforce an award on the ground that the initiation of annulment proceedings in France had, at the time, the effect of automatically suspending it).
70. Swiss Federal Tribunal, Switzerland, 21 March 2000, 5P.371/1999.
See in context
32. Likewise, it is understood that the automatic suspension resulting from the initiation of an action to set aside the award in the court of the originating jurisdiction does not meet the requirement of article V(1)(e). As noted by some commentators, if the term “suspension” were to refer to the automatic suspension of an award in the originating jurisdiction pending an action to set aside, this would defeat the whole system of the Convention, as it would suffice that the party opposing enforcement could initiate an application to set aside the award at the place of arbitration so that the award be refused enforcement everywhere.71 In Switzerland, for instance, a party challenged the enforcement pursuant to article V(1)(e) on grounds that the initiation of setting aside proceedings at the courts of the place of arbitration in France automatically suspended the effects of the award. The Swiss Federal Tribunal held that the correct interpretation of the Convention should be that the suspension of the award in the originating jurisdiction would only constitute a ground for challenge if it were granted by a judicial decision, but not when it simply arises from an action brought against the award.72 In AB Götaverken, the Swedish Supreme Court confirmed that the reference to a “suspended” award under article V(1)(e) refers to “a situation where, after specific consideration of the matter, the foreign authority orders the setting aside of a binding and enforceable award or the suspension of its enforcement”. As a result, the court rejected the respondent’s contention that enforcement should be denied on the ground that a recourse to set aside had been initiated in France, the country where the award was issued.73 The same principle led a US court to deny the enforcement of an award. After confirming that “article V(1)(e) of the Convention require[s] a ‘competent authority’ to suspend the award, not just a statutory stay”, the court held that, in that case, the stay ordered by the Argentinean courts was not merely an “automatic” stay resulting from the initiation of setting aside proceedings or a “pre-ordered” formality, and on that basis dismissed the request to enforce the award.74
71. ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL INTERPRETATION (1981), at 352. See also NADIA DARWAZEH, Article V(1)(e), in RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A GLOBAL COMMENTARY ON THE NEW YORK CONVENTION (H. Kronke, P. Nacimiento et al. ed., 2010), at 341-342; FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION (E. Gaillard, J. Savage eds., 1999), at 980-981, para. 1690; CHRISTOPH LIEBSCHER, Article V, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS – COMMENTARY (R. Wolff ed., 2012), at 372, paras. 395-396.
72. Company X SA v. Y Federation, Swiss Federal Tribunal, Switzerland, 9 December 2008, 4A_403/2008.
73. AB Götaverken v. General National Maritime Transport Company (GMTC), Libya and others, Supreme Court, Sweden, 13 August 1979, SO 1462. See also The Republic of Gabon v. Swiss Oil Corporation, Grand Court, Cayman Islands, 17 June 1988, XIV Y. B. COM. ARB. (1989), at 621-626 (ruling that the automatic suspension of the effect of the award due to the initiation of a recourse to set aside the award under French law does not amount to “a competent authority [acting] consciously to stay the [award]” and therefore is not a ground to refuse enforcement under Art. V(1)(e)); S.A. Recam Sonofadex v. S.N.C. Cantieri Rizzardi de Gianfranco Rizzardi, Court of Appeal of Orleans, France, 5 October 2000 (stating that the suspensive effect of setting aside proceedings initiated at the seat of the arbitration, namely Italy, does not amount to an effective suspension required by Article V(1)(e) and cannot serve as a valid ground to reject the recognition and enforcement of the Award).
74. EDF International S.A. v. YPF S.A., District Court for the District of Delaware, United States of America, 20 November 2008, Civil Action No. 08-167-JJF.
See in context
4. Courts from various countries have consistently referred to the abrogation of double exequatur as one of the major innovations of the New York Convention. For example, the English High Court of Justice held that “[i]t is common ground that the intention of the New York Convention was to make enforcement of a Convention award more straightforward, and in particular to remove the previous necessity for a double exequatur – i.e. the need, before a Convention award could be enforced in any other jurisdiction, for it to be shown that it has first been rendered enforceable in the jurisdiction whose law governs the arbitration […].”7 Likewise, the Swiss Federal Tribunal held that “the authors of the Convention wanted to exclude the requirement of exequatur in the award’s country of origin, as well as any other proceedings to confirm that the award is enforceable in that country […].”7 Numerous other courts have similarly confirmed this principle.8
6. Dowans Holding S.A. v. Tanzania Electric Supply Co. Ltd., High Court of Justice, England and Wales, 27 July 2011, 2010 Folio 1539.
7. Y v. X, Swiss Federal Tribunal, Switzerland, 3 January 2006, 5P.292/2005.
8. See, for instance, SPP (Middle East) Ltd. v. The Arab Republic of Egypt, President of the District Court of Amsterdam, Netherlands, 12 July 1984, X Y. B. COM. ARB. (1985), at 487-489 (stating that “the drafters of the Convention chose the word ‘binding’ in order to abolish the requirement of the double exequatur which was the result of the word ‘final’ in the Geneva Convention of 1927)”; German (F.R.) party v. Dutch party, President of Rechtbank, The Hague, Netherlands, 26 April 1973, Yearbook Commercial Arbitration 1979 – at 305 -306 (stating that “[a]n important improvement of the New York Convention for the Execution of Foreign Arbitral Awards of 1927 is the fact that the double exequatur ‘leave for enforcement’ is abolished”); Joseph Müller AG v. Bergesen und Obergericht (II. Zivilkammer) des Kantons Zürich, Court of First Instance, Switzerland, 26 February 1982 (holding that “the aim of the New York Convention it to avoid the double exequatur”); Company X SA v. Y Federation, Swiss Federal Tribunal, Switzerland, 9 December 2008, 4A_403/2008 (holding that “the New York Convention sought to prevent “double enforcement”). See also Palm and Vegetable Oils SDN. BHD. v. Algemene Oliehandel International B.V., President of Rechtbank, Court of First Instance of Utrecht, Netherlands, 22 November 1984, XI Y. B. COM. ARB. (1986), at 521-522 (ruling that “in view of the legislative history of the Convention, the latter implies that for obtaining a leave for enforcement abroad, i.e. the Netherlands, it is not required that in the country of origin, i.e. England, a definitive leave for enforcement be given”); Court of Appeal of the Republic and Canton of Ticino, Switzerland, 22 August 2012, 14.2012.102; Obergericht des Kantons Zürich, Switzerland, 8 December 1980, II.ZK.Nr. 8 A/80 (stating that “the New York Convention sought to avoid ‘double exequatur’”).
See in context
5. The question of when an award becomes binding gave rise to a number of discussions among members of the Working Party in charge of drafting article V(1)(e). Some delegates’ view was that it should mean that the award is no longer open to ordinary, as opposed to extraordinary, means of recourse.9 This distinction, being unknown in a number of legal systems, was eventually not retained. The drafters of the Convention decided not to define the term “binding” in the Convention itself, leaving it to the courts to decide the conditions under which an award should be considered as such.
9. Travaux préparatoires, Comments on Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, E/CONF.26/SR.11-14, SR17. See also ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL INTERPRETATION (1981), at 334-336.
See in context
6. Some courts have assessed the binding nature of the award by reference to the law of the country in which the award was rendered.10 For instance, in a case where a party opposed enforcement on the ground that the award had not been duly delivered to it, and hence was allegedly not binding, a Swiss court decided that “[t]he issue whether an arbitral award has become binding on the parties, for instance by rendition, oral communication, written statement or communication to the parties or by expiry of the time limit for a legal means [of appeal] is governed in first instance by the law applicable to the arbitration”. In that case, the court considered that the party opposing enforcement had not proved that the alleged difficulties in the delivery of the award resulted in it being non-binding under Swiss law, and therefore rejected the party’s request that enforcement be denied.11 In Compagnie-de-Saint-Gobain-Pont-à-Mousson, where the party opposing enforcement had argued that the award had not become binding on the parties in the country of the seat, the Court of Appeal of Paris noted that the courts of the seat themselves, namely Indian courts, had declared that the award was binding, and on that ground granted the request for enforcement.12 Courts in Germany,13 Italy,14 the United States,15 and Switzerland16 have similarly referred to the law of the country where the arbitration took place as being the law applicable to determining the binding nature of the award.
10. For a description of this approach, see FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION (E. Gaillard, J. Savage eds., 1999), at 974-975, paras. 1681-1683; NADIA DARWAZEH, Article V(1)(e), in RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A GLOBAL COMMENTARY ON THE NEW YORK CONVENTION (H. Kronke, P. Nacimiento et al. ed., 2010), at 312-313.
11. Italian Party v. Swiss Company, Court of First Instance, Zurich, Switzerland, 14 February 2003, XXIX Y. B. COM. ARB. (2004), at 819-833.
12. Compagnie de Saint-Gobain – Pont-à-Mousson v. The Fertilizer Corporation of India Limited, Paris Court of Appeal, France, 10 May 1971.
13. Oberlandesgericht [OLG] Düsseldorf, Germany, 19 January 2005, I-26 Sch 5/03 (dismissing the request for recognition of an award on the ground that the claims decided in the award had been set-off under Romanian law, the law of the seat of the arbitration); Seller v. Buyer, Oberlandesgericht [OLG] Celle, Germany, 6 October 2005, 8 Sch 06/05 (holding that whether an award is binding is to be determined pursuant to the law of the arbitration, in this case Russian law, and that the Russian law requirement that each party receive a copy of the arbitral award signed by the arbitrators for the award to be binding was met in this case).
14. Carters (Merchants) Ltd. v. Francesco Ferraro, Corte Di Appello Di Napoli, Italy, 20 February 1975, IV Y. B. COM. ARB. (1979), at 275-276 (referring to the law applicable at the seat of the arbitration, namely English law, to rule on the binding nature of the award).
15. Pactrans Air & Sea, Inc. v. China National Chartering Corp., et al., District Court, Northern District of Florida, United States of America, 29 March 2010, 3:06-cv-369/RS-EMT (in a case where the seat of the arbitration was China, holding that the award was binding on the ground that, under Chinese arbitration law, “the legal effects of the award letter begin on the day it is written”).
16. Denysiana S.A v. Jassica S.A, Swiss Federal Tribunal, Switzerland, 14 March 1984 (in a case where the seat of the arbitration was Paris, stating that “the party opposing the enforcement must prove that the award has not yet become binding or set aside or suspended, pursuant to the law governing the arbitration”, namely French law).
See in context
7. Under a second approach, sometimes referred to as an “autonomous approach”, courts have relied on their own interpretation of what a binding award under article V(1)(e) should be. In the majority of cases, courts following this approach have ruled that an award shall be considered as binding if it is no longer open to ordinary means of recourse, namely those where the substance of the award is reviewed, even if extraordinary means of recourse are still available, including actions to set aside.17 For example, the Swiss Federal Tribunal ruled that foreign arbitral awards are binding on parties under article V(1)(e) when they “can no longer be appealed by ordinary means.”18 Likewise, in a case where the place of the arbitration was London, a Dutch court held that because “no ordinary means of recourse [could] be made against the arbitral award in question”, the award had “become binding on the parties within the meaning of the Convention.”19 In Hong Kong, courts have ruled that an award is “binding” when it is “no longer open to an appeal on the merits.”20
17. For a description of this second approach, see FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION (E. Gaillard, J. Savage eds., 1999), at 972, para. 1679; NADIA DARWAZEH, Article V(1)(e), in RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: A GLOBAL COMMENTARY ON THE NEW YORK CONVENTION (H. Kronke, P. Nacimiento et al. ed., 2010), at 311-312; CHRISTOPH LIEBSCHER, Article V, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS – COMMENTARY (R. Wolff ed., 2012), at 360, paras. 361, 364.
18. Company X SA v. State Y, Swiss Federal Tribunal, Switzerland, 9 December 2008, 4A_403/2008. See also Y v. X, Swiss Federal Tribunal, Switzerland, 3 January 2006, 5P.292/2005 (stating that an award can be considered as binding under Art. V(1)(e) when “an ordinary appeal against the award is no longer possible”); X v. Y, Swiss Federal Tribunal, Switzerland, 21 February 2005, 5P.353/2004 (stating that the binding nature of an award shall been recognised as soon as the award becomes “res judicata and can no longer be appealed”); X v. Y, Cour de Justice de Genève, 1ère section, Switzerland, 23 September 2004 (ruling that an award is binding as soon as the award has res judicata effect and is not subject to ordinary recourse).
19. Palm and Vegetable Oils SDN. BHD. v. Algemene Oliehandel International B.V., President of Rechtbank of Utrecht, Netherlands, 22 November 1984. See also SPP (Middle East) Ltd. v. The Arab Republic of Egypt, President of the District Court of Amsterdam, Netherlands, 12 July 1984, X Y. B. COM. ARB. (1985), at 487-489 (ruling that “an arbitral award is not binding if it is open to appeal on the merits before a judge or an appeal arbitral tribunal”).
20. Société Nationale d’Opérations Pétrolières de la Côte d’Ivoire – Holding v. Keen Lloyd Resources Limited, High Court of the Hong Kong Special Administrative Region, Court of First Instance, Hong Kong, 20 December 2001, 55 of 2011, XXIX Y. B. COM. ARB. (2004), at 776-783. See also Diag Human SE v. Czech Republic, High Court, Queen’s Bench Division, United Kingdom, 22 May 2014 (stating that “if an award is subject to ‘ordinary’ recourse, it will not be binding”).
See in context
8. These approaches to assessing the binding nature of an award are not necessarily mutually exclusive, and in a number of instances, courts have applied them in combination.21 For example, in a case where the place of the arbitration was Paris, and after declaring that an award should be considered as binding “if it is no longer open to an appeal on the merits”, the High Court of Hong Kong referred to both the arbitration rules and the provisions of the French arbitration law to determine whether the award could be subject to an appeal on the merits.22 In other cases, national courts refrained from applying the requirements of the law of the seat when these requirements would have led to a result contrary to the purpose of the New York Convention, for instance a requirement that the award be granted a national exequatur to become binding.23
21. See CHRISTOPH LIEBSCHER, Article V, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS – COMMENTARY (R. Wolff ed., 2012), at 362, paras. 364-365; FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION (E. Gaillard, J. Savage eds., 1999), at 975, para. 1683.
22. Société Nationale d’Opérations Pétrolières de la Côte d’Ivoire – Holding v. Keen Lloyd Resources Limited, High Court of the Hong Kong Special Administrative Region, Court of First Instance, Hong Kong, 20 December 2001, 55 of 2011, XXIX Y. B. COM. ARB. (2004), at 776-783.
23. See infra., para 11.
See in context
9. In line with these decisions, for the purposes of assessing the binding nature of an award under the Convention, some commentators have distinguished between, on the one hand, the principles which were clearly intended to apply under the Convention and, on the other hand, the residual grounds found in the law of the country where the award was rendered which the party opposing enforcement is likely to invoke.24
24. See FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION (E. Gaillard, J. Savage eds., 1999), at 976, para. 1684; CHRISTOPH LIEBSCHER, Article V, in NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS – COMMENTARY (R. Wolff ed., 2012), at 360, para. 360.
See in context
