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VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / C. Interaction of the Convention with domestic law / a. Domestic law more favourable than article II /
31. Article VII(1) refers only to the enforcement of “arbitral awards” and not “arbitration agreements”. As commentators have noted, the omission of arbitration agreements from the text of article VII(1) was unintentional37 and can be explained by the inclusion of the provisions concerning arbitration agreements in the New York Convention at a very late stage of its negotiation.38
37. ICCA’S GUIDE TO THE INTERPRETATION OF THE 1958 NEW YORK CONVENTION: A HANDBOOK FOR JUDGES (P. Sanders ed., 2011), at 27; ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL INTERPRETATION (1981), at 86-88.
38. Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Sixteenth Meeting, E/CONF.26/SR.16 (Available on the Internet at www.uncitral.org).
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32. French courts have long considered that article VII(1) applies to the recognition and enforcement of arbitration agreements. Thus, in a series of decisions beginning in 1993, French courts have held that pursuant to article VII(1) of the Convention, arbitration agreements could be enforced under the more favourable provisions of French arbitration law, rather than the more stringent requirements of article II of the New York Convention.39
39. See Bomar Oil N.V. v. Etap — L’Entreprise Tunisienne d’Activités Pétrolières, Court of Cassation, France, 87-15.094, 9 November 1993, 1994 REV. ARB. 108; American Bureau of Shipping (ABS) v. Copropriété maritime Jules Verne, Court of Cassation, 03-12.034, France, 7 June 2006, 2006 REV. ARB. 945; S.A. Groupama transports v. Société MS Régine Hans und Klaus Heinrich K.G., Court of Cassation, France, 05-21.818, 21 November 2006. The former Article 1443 of the French Code of Civil Procedure, in force from 1981, stipulated that an arbitration agreement shall be contained in the main convention or in a document to which the convention refers, without setting further requirements for the validity of an arbitration agreement in international arbitration matters. The current Article 1507 of the French Code of Civil Procedure applicable to international commercial arbitration provides that “[a]n arbitration agreement shall not be subject to any requirements as to its form.” At the date of this Guide, there were no reported cases where a French court relied on this provision in application of article VII(1) of the Convention.
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33. As confirmation that article VII(1) also applies to arbitration agreements, at its thirty-ninth session, in 2006, UNCITRAL adopted a Recommendation regarding the interpretation of articles II(1) and VII(1) of the New York Convention. The Recommendation clarifies that article VII(1) “should be applied to allow any interested party to avail itself of rights it may have, under the law or treaties of the country where an arbitration agreement is sought to be relied upon, to seek recognition of the validity of such an arbitration agreement.”40
40. Official Records of the General Assembly, Sixty-first Session, Supplement No. 17 (A/61/17), annex II
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34. Since the UNCITRAL Recommendation, courts from a number of Contracting States have, in the application of article VII(1), enforced arbitration agreements pursuant to any less stringent formal requirements under their domestic laws. For instance, in a recent decision the German Federal Court of Justice enforced an arbitral award involving two commercial parties in light of the theory of kaufmännisches Bestätigungsschreiben, which recognizes that commercial contracts, including arbitration agreements, may be concluded by the tacit acceptance of a confirmation letter between merchants.41 Dutch courts have similarly applied article VII(1) to enforce awards pursuant to a domestic law provision which stipulates that, upon request, a court shall deem effective an arbitration agreement which is not included in a contract signed by the parties or contained in an exchange of letters or telegrams, conditions which are otherwise required to be met by article II of the New York Convention.42
41. Bundesgerichtshof, Germany, III ZB 69/09, 30 September 2010, SchiedsVZ 2010, 332. See also Kammergericht Berlin, Germany, 20 Sch 09/09, 20 January 2011; Oberlandesgericht Celle, Germany, 8 Sch 14/05, 14 December 2006. German courts enforced arbitration agreements pursuant to this notion even before the 2006 UNCITRAL Recommendation. See Oberlandesgericht Köln, Germany, 16 W 43/92, 16 December 1992. The concept, as it relates to arbitration agreements, was codified in 1998 at Section 1031(2) of the new German Code of Civil Procedure, which is contained in the rules concerning domestic awards. The Oberlandesgericht Frankfurt has considered that article VII(1) of the Convention, which refers to the laws that relate to the enforcement of foreign arbitral awards, would not necessarily lead to the application of Section 1031(2). See Oberlandesgericht Frankfurt, Germany, 26 Sch 28/05, 26 June 2006.
42. Claimant v. Ocean International Marketing B.V., et al, Rechtbank, Rotterdam, Netherlands, 29 July 2009, 194816/HA ZA 03-925.
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35. The domestic laws of certain other national legal systems also contain fewer formal requirements for an arbitration agreement than the New York Convention. For example, Switzerland’s international arbitration law provides that an arbitration agreement shall be valid if it is made “in writing, by telegram, telex, telecopier or any other means of communication which permits it to be evidenced by text.”43 In a still broader manner, the United Kingdom Arbitration Act explicitly stipulates that the writing need not be signed by one of the parties and may result from a recording by one of the parties, or by a third party if authorized by parties to the agreement.44 A party seeking enforcement of an arbitral award could avail itself of these provisions pursuant to article VII(1) of the Convention.
43. Switzerland, Private International Law Act, 1987, Article 178(1).
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36. Article IV of the New York Convention sets out the documents to be submitted by a petitioner to the enforcing court at the time of a request for recognition and/or enforcement, namely: a duly authenticated original award or duly certified copy thereof, the original agreement referred to in article II or a duly certified copy thereof and translations of these documents into the language of the country where the award is relied upon, where relevant.
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38. Likewise, German courts have referred to the more favourable provisions of their domestic law to dispense with the requirement under article IV(2) of the Convention that an interested party produce translations of the award and the original arbitration agreement.46 The same approach has been followed by courts in Switzerland, which apply the more favourable provision in Article 193(1) of the Swiss Private International Law Act.47
46. For instance, Oberlandesgericht Celle, Germany, 8 Sch 14/05, 14 December 2006; Kammergericht Berlin, 20 Sch 07/04, 10 August 2006. See also Oberlandesgericht München, 28 November 2005; Oberlandesgericht Hamm, 27 September 2005; Oberlandesgericht Köln, 23 April 2004
47. Federal Supreme Court, Switzerland, 2 July 2012, Decision 5A_754/2011. Courts in the Netherlands have also enforced awards pursuant to Article 1076 of the Netherlands Civil Procedure Code, which is more favourable than article IV of the Convention: Dubai Drydocks v. Bureau voor Scheeps- en Werktuigbouw [X] B.V., Rechtbank, Dordrecht, Netherlands, 30 June 2010, 79684/KG RK 09-85.
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39. Pursuant to article VII(1) of the New York Convention, an interested party may seek the application of a national law if that is more favourable than the provisions of the Convention, including the grounds for refusal listed in article V. Among these grounds, article V(1)(e) provides that recognition and enforcement may be refused if the award “has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.”
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4. The drafters of the New York Convention built on article 5 of the 1927 Geneva Convention by adding the rule that the provisions of the Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of awards entered into by the Contracting States.4 This first part of article VII(1) has been referred to as “the compatibility provision”. The second part of article VII(1), which allows an interested party to rely on a more favourable treaty or domestic law concerning recognition or enforcement instead of the Convention, has become widely known as the “more-favourable-right” provision.5
4. Travaux préparatoires, Report of the Committee on the Enforcement of International Arbitral Awards, E/AC.42/4/Rev.1 (Available on the Internet at www.uncitral.org), p. 15.
5. ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL INTERPRETATION (1981), at 81; Emmanuel Gaillard, The Relationship of the New York Convention with other Treaties and with Domestic Law, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS: THE NEW YORK CONVENTION IN PRACTICE (E. Gaillard, D. Di Pietro eds., 2008), at 70.
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40. The legislative history of the Convention does not discuss the relationship between articles V(1)(e) and VII(1). In particular, there is no record that the State delegates or their governments contemplated whether an award that has been set aside or suspended could be enforced through the application of article VII(1).
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41. The final text of the New York Convention does not prohibit a court in a Contracting State from recognizing or enforcing such an award, if it can be recognized or enforced pursuant to that State’s domestic law or another treaty to which it is party. In application of the more-favourable-right provision under article VII(1), courts in certain Contracting States have thus consistently enforced awards that have been set aside or suspended.
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42. For instance, in a series of decisions beginning in 1984, French courts have established a rule that a party opposing enforcement is precluded from relying on grounds for non-enforcement under article V(1)(e) of the Convention in light of the more limited grounds under French law.48 In the Hilmarton case of 1994, the Court of Cassation enforced an award rendered in Switzerland despite the fact that it had been set aside by the Swiss Federal Supreme Court and a new arbitral tribunal had been constituted to hear the dispute. The Court reasoned that “the award rendered in Switzerland is an international award which is not integrated in the legal system of that State, so that it remains in existence even if set aside and its recognition in France is not contrary to public policy.”49
48. The former Article 1502 of the French Code of Civil Procedure, in force until 2011, provided an exhaustive list of the five grounds upon which recognition and enforcement could be refused in France. See Société Pabalk Ticaret Sirketi v. Société Anonyme Norsolor, Court of Cassation, France, 83-11.355, 9 October 1984, 1985 REV. ARB. 431, with English translation in 24 ILM 360 (1985). Articles 1520 and 1525(4) of the French Code of Civil Procedure that is currently in force provide for the same grounds for refusal.
49. Société OTV v. Société Hilmarton, Court of Cassation, France, 10 June 1997. XX Y.B. Com. Arb. 663, at 665, para. 5. The new tribunal ordered to be constituted by the Swiss Federal Supreme Court then rendered a conflicting second award ordering the respondent to pay a consulting fee under the contract at issue. The French Court of Cassation rejected a lower court ruling recognizing the second award and held that only the first award was recognized in France, ruling that the recognition in France of the first award, set aside outside France, necessarily prevented the recognition or enforcement in France of the second award
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43. French courts have followed this reasoning in a series of subsequent cases.50 In the 2007 Putrabali decision, for instance, the Court of Cassation affirmed that “[a]n international arbitral award, which is not anchored in any national legal order, is a decision of international justice whose validity must be ascertained with regard to the rules applicable in the country where its recognition and enforcement are sought. Under article VII [the interested party] (...) could invoke the French rules on international arbitration, which do not provide that the annulment of an award in the country of origin is a ground for refusing recognition and enforcement of an award rendered in a foreign country”.51
50. Bargues Agro Industrie S.A. (France) v. Young Pecan Company (US), Court of Appeal, Paris, France, 10 June 2004, 2004 REV. ARB. 733; PT Putrabali Adyamulia v. S.A. Rena Holding, Court of Appeal, Paris, France, 31 March 2005, 2006 REV. ARB. 665, affirmed by PT Putrabali Adyamulia v. S.A. Rena Holding, Court of Cassation, France, 05-18053, 29 June 2007, 2007 REV. ARB. 507; Direction Generate de l’Aviation Civile de I’Emiral de Dubai v. International Bechtel Co., LLP, Court of Appeal, Paris, France, 29 September 2005, 2006 REV. ARB. 695.
51. PT Putrabali Adyamulia v. S.A. Rena Holding, Court of Cassation, France, 05-18053, 29 June 2007, 2007 REV. ARB. 507, affirming PT Putrabali Adyamulia v. S.A. Rena Holding, Court of Appeal, Paris, France, 31 March 2005, 2006 REV. ARB. 665.
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44. The same year, the Paris Court of Appeal found that the rule according to which the setting aside of an arbitral award in a foreign country does not affect the right of the interested party to request the enforcement of the award in France (since the arbitrator is not part of the national legal order of the country where the award was rendered) constitutes a “fundamental principle under French law.”52
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45. In the 1996 Chromalloy decision, the United States District Court of Columbia took a similar view and allowed an application to enforce an award rendered in Egypt and subsequently annulled by a Court of Appeal in Egypt.53 The Court considered that in contrast to article V of the Convention, which sets out a “permissive standard” under which a court “may” refuse to enforce an award, article VII(1) “mandates that this Court must consider [the interested party’s] claims under applicable U.S. law.” The Court analyzed whether the Egyptian Court’s reasons for vacating the award were grounds that would have justified vacating a domestic award under Section 10 of the Federal Arbitration Act, Chapter 1. It held that, because the award would not have been vacated under Section 10, it should enforce the award in accordance with article VII(1) of the Convention.
53. Chromalloy Aeroservices Inc. v. Ministry of Defence of the Republic of Egypt, 939 F. Supp. 907 (D.D.C.1996). See David W. Rivkin, The Enforcement of Awards Nullified in the Country of Origin: The American Experience, in ICCA CONGRESS SERIES NO. 9, IMPROVING THE EFFICIENCY OF ARBITRATION AGREEMENTS AND AWARDS: 40 YEARS OF APPLICATION OF THE NEW YORK CONVENTION 528 (A.J. van den Berg ed., 1998); See Emmanuel Gaillard, The Relationship of the New York Convention with other Treaties and with Domestic Law, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS: THE NEW YORK CONVENTION IN PRACTICE (E. Gaillard, D. Di Pietro eds., 2008), at 80-86; Georgios C. Petrochilos, Enforcing Awards Annulled In Their State Of Origin Under The New York Convention, 48 ICLQ 856 (1999).
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46. Conversely, the New York Convention does not require courts in the Contracting States to recognize an award that has been set aside or suspended and they will not violate the Convention by refusing to do so.
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47. Some courts have decided that the enforcement of an award should be refused if it has been set aside in the country where it was rendered. German courts, for instance, have adopted this position based on the previous version of the Code of Civil Procedure, which required the validity (“Rechtswirksamkeit”) of a foreign arbitral award as a precondition for its enforcement,54 as well as the new German Code of Civil Procedure, which provides that recognition and enforcement “shall be granted in accordance with [the New York Convention]”, including the grounds for refusal under article V(1)(e).55
54. Oberlandesgericht, Rostock, Germany, 1 Sch 03/99, 28 October 1999. See Klaus Sachs, The Enforcement of Awards Nullified in the Country of Origin: The German Experience, in ICCA CONGRESS SERIES NO. 9, IMPROVING THE EFFICIENCY OF ARBITRATION AGREEMENTS AND AWARDS: 40 YEARS OF APPLICATION OF THE NEW YORK CONVENTION 552 (A.J. van den Berg ed., 1998).
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48. Similarly, courts in the United States of America have distinguished the 1996 Chromalloy decision and have declined to enforce awards that have been annulled or suspended.56 For instance, in the 1999 decision Baker Marine, the Court of Appeals for the Second Circuit refused to enforce two awards rendered in Nigeria and set aside by the Nigerian courts, rejecting the argument of the interested party that the awards were set aside for reasons that would not be recognized under United States law as valid grounds for vacating an award. The Court reasoned that the “mechanical application of domestic arbitral law to foreign awards under the Convention would seriously undermine finality and regularly produce conflicting judgments.”57
56. Baker Marine Ltd. v. Chevron Ltd., United States Court of Appeal, Second Circuit, United States of America, 12 August 1999, 191 F.3d 194 (2nd Cir. 1999); TermoRio S.A. E.S.P. v. Electrificadora del Atlantico S.A. E.S.P., District Court, District of Columbia, United States of America, 17 March 2006, 421 F. Supp. 2d 87 (D.D.C. 2006); Martin Spier v. Calzaturificio Tecnica, S.p.A, District Court, Southern District of New York, United States of America, 22 October 1999, 86 Civ. 3447.
57. Baker Marine Ltd. v. Chevron Ltd., United States Court of Appeal, Second Circuit, United States of America, 12 August 1999, 191 F.3d 194 (2nd Cir. 1999). The Court distinguished Chromalloy on the basis of the nationality of the interested party, who was not a United States citizen, and of a provision in the arbitration clause stating that the decision of the arbitrator “could not be subject to any appeal or other recourse”.
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49. By contrast, a court’s refusal to enforce an award that has been set aside or suspended could constitute a violation of the European Convention which, when applicable,58 expressly limits the grounds for refusal that are set out at article V of the New York Convention. In this relation, Article IX(2) of the European Convention provides that where a State is party to both the European Convention and the New York Convention, a court’s discretion to refuse enforcement on the basis of an award having been set aside shall be limited to those cases where the award has been set aside for one of the limited reasons enumerated in its Article IX(1).59
58. For the application of the European Convention, see the United Nations Treaty Collection.
59. Article IX(1) of the European Convention provides in full: “1. The setting aside in a Contracting State of an arbitral award covered by this Convention shall only constitute a ground for the refusal of recognition or enforcement in another Contracting State where such setting aside took place in a State in which, or under the law of which, the award has been made and for one of the following reasons: (a) the parties to the arbitration agreement were under the law applicable to them, under some incapacity or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made, or (b) the party requesting the setting aside of the award was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration need not be set aside; (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or failing such agreement, with the provisions of Article IV of this Convention. 2. In relations between Contracting States that are also parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10th June 1958, paragraph 1 of this Article limits the application of Article V (1) (e) of the New York Convention solely to the cases of setting aside set out under paragraph 1 above.”
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5. While it may be useful for certain analytical purposes to bisect the paragraph into two parts, article VII(1), when read as a whole, enshrines the notion of “more favourable right”. The first part of article VII(1) is merely a precursor to the second part, confirming that the validity of other treaties is not affected by the Convention, such that they can be relied upon by an interested party if more favourable. Thus, article VII(1) ensures that whenever the New York Convention proves to be less favourable than the provisions of another treaty or law of the country where recognition or enforcement is sought by a party seeking “to avail himself of an arbitral award”, the more favourable rules shall prevail over the rules of the New York Convention.
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50. Pursuant to its obligation under the European Convention, the Austrian Supreme Court has enforced an award that had been set aside for violation of public policy in Slovenia, reasoning that “[p]ursuant to Article IX(1) of the European Convention, even the annulment of an award for public policy of the country of origin (…) is not one of the grounds for refusal exhaustively listed (…) and is therefore not a ground for refusing enforcement in the enforcement state.”60
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51. Article VI of the New York Convention provides that a court before which the enforcement of the award is sought “may”, if it considers it proper, adjourn its decision on enforcement if the award is subject to an action for setting aside in the country in which, or under the law of which, it is made. In application of article VII(1) of the Convention, courts have applied domestic laws more favourable to recognition and enforcement than article VI in order to dispense with any suspensive effect of an action for setting aside.
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52. For instance, in a 1999 decision, the Luxembourg Court of Appeal considered the argument of the party opposing enforcement that an award rendered in Switzerland had no res judicata effect in light of proceedings to set the award aside at the Swiss Federal Supreme Court and that pursuant to article VI of the New York Convention, enforcement proceedings in Luxembourg should be suspended pending this decision. Rejecting this argument, the Court noted that “the principle of favor arbitrandum (…) permeates the Convention” and in particular article VII(1), which is “aimed at making the enforcement of foreign awards possible in the highest number of cases.” The Court reasoned that “according to the Convention the Luxembourg court can only deny enforcement on one of the grounds provided for in its national law.” Since Article 1028(3) of the Luxembourg Code of Civil Procedure does not include the challenge of the award abroad among its grounds for refusal, it refused to suspend its decision and enforced the award.61
61. Sovereign Participations International S.A. v. Chadmore Developments Ltd., Court of Appeal, Luxembourg, 28 January 1999.
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53. French courts have also refused to suspend enforcement proceedings pending an action to set aside an award. In the 2004 Bargues Agro case, for instance, the Paris Court of Appeal refused to stay the enforcement of an award rendered in Belgium pending the conclusion of setting aside proceedings there, applying the more favourable provisions of French law.62 The Court noted that because the award was rendered in the context of an international arbitration, it was not anchored in the national legal order of Belgium and its potential setting aside could not prevent its recognition and enforcement in another Contracting State. The Court thus held that article VI of the Convention “is of no use in the context of the recognition and enforcement of an award under [the then applicable] Article 1502 of the Code of Civil Procedure.”
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