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E/CONF.26/L.34 - Federal Republic of Germany: amendments to Articles 3, 4, 5- 28/05/1958
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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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 Yugoslavia Applicable NYC Provisions V | V(1)(e) | V(2)(b) Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3356&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 Applicable NYC Provisions V | V(1)(d) | V(1)(e) | V(2)(b) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3333&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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Date 23/05/1958 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 Applicable NYC Provisions III | V | V(1)(d) | V(1)(e) | V(2)(b) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3332&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 24/04/1958 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.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 Applicable NYC Provisions I | IV | V | V(1)(d) | V(1)(e) | V(2)(b) | VIII | XI | XIV Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3308&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 10/03/1958 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 New Zealand Applicable NYC Provisions I | IV | V | V(1)(a) | V(1)(b) | V(1)(d) | V(2)(b) | V(1)(c) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3306&opac_view=6 Attachment (1)
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Date 06/03/1958 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.4. Comments on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Note by the Secretary-General: 6 March 1958 Applicable NYC Provisions I | III | 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=3309&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 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 3.10 p.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 V | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3430&opac_view=6 Attachment (1)
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Comments Meeting held at Headquarters, New York, on Monday, 7 March 1955, at 2.50 p.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 IV | V | V(1)(d) | V(2)(a) | V(2)(b) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3432&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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Comments Meeting held at Headquarters, New York, on Tuesday, 1 March 1955, at 11.15 a.m Date 23/03/1955 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 V | V(1)(c) | V(2)(b) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3426&opac_view=6 Attachment (1)
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Comments Meeting held at Headquarters, New York, on Wednesday, 2 March 1955, at 10.45 a.m Date 23/03/1955 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 I | V | V(2)(b) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3427&opac_view=6 Attachment (1)
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Comments Annex: Draft Convention on the Recognition and Enforcement of foreign arbitral awards Date 21/03/1955 Classification (first level) D. Committee on the Enforcement of International Arbitral Awards Country Australia | Belgium | Ecuador | Egypt | India | Sweden | United Kingdom Applicable NYC Provisions III | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | VIII Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3422&opac_view=6 Attachment (1)
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Date 21/01/1955 Classification (first level) D. Committee on the Enforcement of International Arbitral Awards Country Greece | India | Lebanon | Luxembourg | Philippines | Sweden | Yugoslavia Applicable NYC Provisions V | V(1)(d) | V(1)(e) | V(2)(b) Language(s) English | French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3420&opac_view=6 Attachment (1)
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Comments This document contains Brochure 174, received by the Secretary-General on 17 September 1953 and dated 10 September 1953 Date 28/10/1953 Classification (first level) D. Committee on the Enforcement of International Arbitral Awards Applicable NYC Provisions V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | III Language(s) English | French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3418&opac_view=6 Attachment (1)
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V(2) / V(2)(b) / 1. INTRODUCTION (V(2)(b)) / §1
1. Article V(2)(b) of the New York Convention enables the courts of a Contracting State to refuse recognition and enforcement of an award when they find that such recognition or enforcement would be contrary to its public policy.
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10. There have been occasions where courts considered that public policy is not a concept that lends itself to a precise definition. The Court of Appeal of England and Wales held that the public policy exception under the New York Convention encompasses cases where “the enforcement of the award would be clearly injurious to the public good or, possibly, enforcement would be wholly offensive to the ordinary reasonable and fully informed member of the public on whose behalf the powers of the state are exercised”.14 At the same time, the Court of Appeal acknowledged that “[c]onsiderations of public policy can never be exhaustively defined, but they should be approached with extreme caution”.15
14. Deutsche Schachtbau-und Tiefbohrgesellschaft m.b.H. v. Shell International Petroleum Co. Ltd., Court of Appeal, England and Wales, 24 March 1987, [1990] 1 A.C. 295.
15. Id.
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11. Some jurisdictions have emphasized the relationship between public policy and national interest or national sovereignty. For example, when reviewing the compatibility of awards with public policy under the New York Convention, the Brazilian Superior Court of Justice has indicated that “the issue [before it] does not have a public policy character and that it does not relate to the concept of national sovereignty”.16 Similarly, the Indian courts have held that an award is contrary to public policy if its enforcement would be contrary to “the interests of India”.17
17. See Renusagar Power Co. Ltd. v. General Electric Company & anor., Supreme Court, India, 7 October 1993; Penn Racquet Sports v. Mayor International Ltd., High Court of Delhi, India, 11 January 2011; Shri Lal Mahal Ltd. v. Progetto Grano S.p.A., Supreme Court, India, 3 July 2013. See also, for a national-interest-based analysis of public policy, Petrotesting Colombia S.A. & Southeast Investment Corp. v. Ross Energy S.A., Supreme Court of Justice, Colombia, 27 July 2011. The Indonesian courts are also reported to have taken a similar approach by which national interest is considered part of Indonesian public policy: see Fifi Junita, Refusing Enforcement of Foreign Arbitral Awards Under Article V(2)(b) of the New York Convention: The Indonesian Perspective, CONTEMP. ASIA ARB. J. 301(2009), at 320.
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12. The Russian courts have taken the following view. The Highest Arbitrazh Court of the Russian Federation has relied on the concept of public policy to deny recognition and enforcement of awards that produce results contrary to the “universally recognized moral and ethical rules or threaten the citizens’ life and health or the security of the State”.18
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14. In relation to the question whether there is a universal or transnational character to the concept of public policy, different jurisdictions have taken different approaches. The Supreme Court of India has held that providing a transnational definition of the concept of public policy is unworkable and accepted the principle that public policy in article V(2)(b) of the New York Convention should be taken to mean the public policy of the enforcement forum.22 In contrast, the Italian courts have stated that public policy refers to “a body of universal principles shared by nations of the same civilization, aiming at the protection of fundamental human rights, often embodied in international declarations or conventions”.23
22. See Renusagar Power Co. Ltd. v. General Electric Company & anor., Supreme Court, India, 7 October 1993. See also Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd., Court of Final Appeal, Hong Kong, 9 February 1999, [1999] 2 HKC 205, agreeing with the conclusion reached by the Supreme Court of India.
23. Allsop Automatic Inc. v. Tecnoski snc, Court of Appeal of Milan, Italy, 4 December 1992, XXII Y.B. COM. ARB. 725.
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15. The Highest Arbitrazh Court of the Russian Federation has often referred to public policy as constituting “universally recognized moral and ethical rules”24 or “fundamental and universal legal principles of highest imperative nature, of particular social and public significance, and forming the basis of the economic, political and legal system of the State”.25
25. Presidium of the Highest Arbitrazh Court, Russia, Information Letter No. 156 of 26 February 2013, p. 2.
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16. In Switzerland, a 2006 decision of the Federal Tribunal concluded that “an award is incompatible with public policy if it disregards essential and widely recognized values which, according to the conceptions prevailing in Switzerland, should form the basis of any legal order”.26
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17. As public policy is generally interpreted to mean those fundamental rules of the State where recognition and enforcement of an award is sought from which no derogation can be allowed, the question arises as to whether the forum’s mandatory rules should be considered as part of its public policy, and consequently an exception to recognition and enforcement of an award under the New York Convention.27
27. Bernard Hanotiau & Olivier Caprasse, Public Policy in International Commercial Arbitration, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS, THE NEW YORK CONVENTION IN PRACTICE 787, at 791-794 (E. Gaillard, D. Di Pietro, eds. 2008).
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