United Kingdom / 01 March 1984 / England and Wales, House of Lords / Minister of Public Works of the Government of the State of Kuwait v. Sir Frederick Snow & Partners
| Country | United Kingdom |
| Court | England and Wales, House of Lords |
| Date | 01 March 1984 |
| Parties | Minister of Public Works of the Government of the State of Kuwait v. Sir Frederick Snow & Partners |
| Applicable NYC Provisions | VII | VII(2) |
| Source |
[1984] A.C. 426 | online: ICLR |
| Languages | English |
| Summary | In 1979, the claimant State commenced proceedings in England under the Arbitration Act 1975 (U.K.) (“the Act”) to enforce an award made in 1973 by a Kuwaiti arbitrator concerning disputes arising out of a contract for the construction of an international airport in Kuwait. In 1973, when the award was made, the claimant State was not a party to the NYC, but by 1979, when the enforcement proceedings were commenced, it had become a party. The defendants resisted enforcement on the basis that a foreign award could only qualify as a “Convention award” for the purposes of the Act (being defined as “an award made in pursuance of an arbitration agreement in the territory of a state, other than the United Kingdom, which is a party to the [NYC]”) if the State in which it was made was already a party to the NYC at the date of the award. The claimant State argued that a foreign award could qualify as a “Convention award” if the State in which it was made had become a party to the NYC by the date on which the enforcement proceedings were commenced. At first instance, it was held that the award was not a “Convention award” for the purposes of the Act and could not be enforced under it. The claimant State appealed. The Court of Appeal allowed the appeal. The defendants appealed. The House of Lords dismissed the defendants’ appeal, their Lordships preferring the meaning of the expression “Convention award” in the Act contended for by the claimant State. In so ruling, their Lordships noted that in case they were wrong in their view that the meaning of the expression “Convention award” was unambiguous, it was permissible to refer to the text of the NYC in order to obtain assistance in resolving any ambiguity. Such assistance was to be found in Article VII (2) NYC, the effect of which is that, upon two or more States which were parties to the 1923 Geneva Protocol on Arbitration Clauses and the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards becoming parties to the NYC, the two earlier treaties shall no longer apply as between such States. If the expression “Convention award” was construed in the way contended for by the defendants, the result of Article VII (2) NYC would be to produce a lacuna in the reciprocal recognition and enforcement of awards as between many States. They gave the following illustration. First, suppose that before 1975, states A and B were both parties to the Geneva Treaty of 1927. In that case, awards made in state A could be enforced pursuant to that treaty in state B, and vice versa. Next, suppose that in 1975 both states A and B became parties to the NYC. Then, on the defendants' construction of the expression “Convention award”, an award made in state A in, say, 1970, could not be enforced as a Convention award in state B because, at the time when such award was made, state A was not yet a party to the NYC. At the same time, by reason of Article VII(2) NYC, the award made in state A could not be enforced in state B under the Geneva Treaty of 1927, because that treaty would, upon states A and B becoming parties to the NYC in 1975, have ceased to have effect as between them. |
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