Convention on the Recognition and Enforcement of Foreign Arbitral Awards

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New York Convention
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Parties to the convention include almost the full Americas, Europe, large parts of Asia, Oceania, and about 50% of Africa
Parties to the convention
Signed 10 June 1958 (1958-06-10)
Location New York, US
Effective 7 June 1959
Condition 3 ratifications
Signatories 24
Parties 153
Depositaries Secretary-General of the United Nations
Languages Arabic, Chinese, English, French, Russian and Spanish
Convention on the Recognition and Enforcement of Foreign Arbitral Awards at Wikisource

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention, was adopted by a United Nations diplomatic conference on 10 June 1958 and entered into force on 7 June 1959. The Convention requires courts of contracting states to give effect to private agreements to arbitrate and to recognize and enforce arbitration awards made in other contracting states. Widely considered the foundational instrument for international arbitration, it applies to arbitrations which are not considered as domestic awards in the state where recognition and enforcement is sought. Though other international conventions apply to the cross-border enforcement of arbitration awards, the New York Convention is by far the most important.

Background[edit]

In 1953, the International Chamber of Commerce (ICC) produced the first draft Convention on the Recognition and Enforcement of International Arbitral Awards to the United Nations Economic and Social Council. With slight modifications, the Council submitted the convention to the International Conference in the Spring of 1958. The Conference was chaired by Willem Schurmann, the Dutch Permanent Representative to the United Nations and Oscar Schachter, a leading figure in international law who later taught at Columbia Law School and the Columbia School of International and Public Affairs, and served as the President of the American Society of International Law.

International arbitration is an increasingly popular means of alternative dispute resolution for cross-border commercial transactions. The primary advantage of international arbitration over court litigation is enforceability: an international arbitration award is enforceable in most countries in the world. Other advantages of international arbitration include the ability to select a neutral forum to resolve disputes, that arbitration awards are final and not ordinarily subject to appeal, the ability to choose flexible procedures for the arbitration, and confidentiality.

Once a dispute between parties is settled, the winning party needs to collect the award or judgment. Unless the assets of the losing party are located in the country where the court judgment was rendered, the winning party needs to obtain a court judgment in the jurisdiction where the other party resides or where its assets are located. Unless there is a treaty on recognition of court judgments between the country where the judgment is rendered and the country where the winning party seeks to collect, the winning party will be unable to use the court judgment to collect.

Countries which have adopted the New York Convention have agreed to recognize and enforce international arbitration awards. As of November 2014, there are 153 State parties which have adopted the New York Convention: 151 of the 193 United Nations Member States, the Cook Islands (a New Zealand dependent territory), and the Holy See.[1] Forty-six U.N. Member States have not adopted the New York Convention and a number of British dependent territories have not had the Convention extended to them by Order in Council.

Summary of provisions[edit]

Under the Convention, an arbitration award issued in any other state can generally be freely enforced in any other contracting state, only subject to certain, limited defenses. These defenses are:

  1. a party to the arbitration agreement was, under the law applicable to him, under some incapacity;
  2. the arbitration agreement was not valid under its governing law;
  3. a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present its case;
  4. the award deals with an issue not contemplated by or not falling within the terms of the submission to arbitration, or contains matters beyond the scope of the arbitration (subject to the proviso that an award which contains decisions on such matters may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those matters not so submitted);
  5. the composition of the arbitral tribunal was not in accordance with the agreement of the parties or, failing such agreement, with the law of the place where the hearing took place (the "lex loci arbitri");
  6. the award has not yet become binding upon the parties, or has been set aside or suspended by a competent authority, either in the country where the arbitration took place, or pursuant to the law of the arbitration agreement;
  7. the subject matter of the award was not capable of resolution by arbitration; or
  8. enforcement would be contrary to "public policy".

Additionally, there are three types of reservations that countries may apply:[2]

  1. commercial reservation - some countries only enforce arbitration awards that are related to commercial transactions
  2. reciprocity reservation - some countries only enforce arbitration awards issued in a Convention member state
  3. reciprocity reservation - some countries only enforce arbitration awards if the prevailing party is from a Convention member state

States may make any or all of the above reservations. Because there are two similar issues conflated under the term "reciprocity", it is important to determine which such reservation (or both) an enforcing state has made.

Parties to the Convention[edit]

As of November 2014, 151 of the 193 United Nations Member States have adopted the New York Convention. The Convention has also been ratified by Holy See and the Cook Islands. Forty-six U.N. Member States have not adopted the Convention. In addition, Taiwan has not been permitted to adopt the Convention (but generally enforces foreign arbitration judgments) and a number of British Overseas Territories have not had the Convention extended to them by Order in Council. British Overseas Territories to which the New York Convention has not yet been extended by Order in Council are: Anguilla, Falkland Islands, Turks and Caicos Islands, Montserrat, Saint Helena (including Ascension and Tristan da Cunha).

State Date of Ratification State Date of Ratification
 Afghanistan 30 November 2005  Albania 27 June 2001
 Algeria 7 February 1989  Antigua and Barbuda 2 February 1989
 Argentina 14 March 1989  Armenia 29 December 1997
 Australia 26 March 1975  Austria 2 May 1961
 Azerbaijan 29 February 2000  Bahamas 20 December 2006
 Bahrain 6 April 1988  Bangladesh 6 May 1992
 Barbados 16 March 1993  Belarus 15 November 1960
 Belgium 18 August 1975  Belize 26 November 1980 (extension notice)
 Benin 16 May 1974  Bhutan 25 September 2014  Bolivia 28 April 1995
 Bosnia and Herzegovina 1 September 1993  Botswana 20 December 1971
 Brazil 7 June 2002  Brunei Darussalam 25 July 1996
 Bulgaria 10 October 1961  Burkina Faso 23 March 1987
 Burundi 23 June 2014  Cambodia 5 January 1960
 Cameroon 19 February 1988  Canada 12 May 1986
 Central African Republic 15 October 1962  Chile 4 September 1975
 People's Republic of China 22 January 1987  Colombia 25 September 1979
 Democratic Republic of the Congo 5 November 2014  Costa Rica 26 October 1987  Côte d'Ivoire 1 February 1991
 Cook Islands 12 January 2009  Croatia 26 July 1993
 Cuba 30 December 1974  Cyprus 29 December 1980
 Czech Republic 30 September 1993  Denmark 22 December 1972
 Djibouti 14 June 1983  Dominica 28 October 1988
 Dominican Republic 11 April 2002  Ecuador 3 January 1962
 Estonia 30 August 1993  Fiji 26 December 2010
 Finland 19 January 1962
 France 26 June 1959  Gabon 15 December 2006
 Georgia 2 June 1994  Germany 30 June 1961
 Ghana 9 April 1968  Greece 16 July 1962
 Guatemala 21 March 1984  Guinea 23 January 1991
 Guyana 25 September 2014  Haiti 5 December 1983  Holy See 14 May 1975
 Honduras 3 October 2000  Hungary 5 March 1962
 Iceland 24 January 2002  India 13 July 1960
 Indonesia 7 October 1981  Iran, Islamic Republic of 15 October 2001
 Ireland 12 May 1981  Israel 5 January 1959
 Italy 31 January 1969  Jamaica 10 July 2002
 Japan 20 June 1961  Jordan 15 November 1979
 Kazakhstan 20 November 1995  Kenya 10 February 1989
 Korea, Republic of 8 February 1973  Kuwait 28 April 1978
 Kyrgyzstan 18 December 1996  Lao People's Democratic Republic 17 June 1998
 Latvia 14 April 1992  Lebanon 11 August 1998
 Lesotho 13 June 1989  Liberia 16 September 2005
 Lithuania 14 March 1995  Liechtenstein 5 October 2011
 Luxembourg 9 September 1983  Macedonia, The former Yugoslav Republic of 10 March 1994
 Madagascar 16 July 1962  Malaysia 5 November 1985
 Mali 8 September 1994  Malta 22 June 2000
 Marshall Islands 21 December 2006  Mauritania 30 January 1997
 Mauritius 19 June 1996  Mexico 14 April 1971
 Moldova, Republic of 18 September 1998  Monaco 2 June 1982
 Mongolia 24 October 1994  Montenegro 23 October 2006
 Morocco 12 February 1959  Mozambique 11 June 1998
 Myanmar 16 April 2013    Nepal 4 March 1998
 Netherlands 24 April 1964  New Zealand 6 January 1983
 Nicaragua 24 September 2003  Niger 14 October 1964
 Nigeria 17 March 1970  Norway 14 March 1961
 Oman 25 February 1999  Pakistan 14 July 2005
 Panama 10 October 1984  Paraguay 8 October 1997
 Peru 7 July 1988  Philippines 6 July 1967
 Poland 3 October 1961  Portugal 18 October 1994
 Qatar 30 December 2002  Romania 13 September 1961
 Russian Federation 24 August 1960  Rwanda 31 October 2008
 Saint Vincent and the Grenadines 12 September 2000  San Marino 17 May 1979
 Sao Tome and Principe 20 November 2012
 Saudi Arabia 19 April 1994  Senegal 17 October 1994
 Serbia 12 March 2001  Singapore 21 August 1986
 Slovakia 28 May 1993  Slovenia 6 July 1992
 South Africa 3 May 1976  Spain 12 May 1977
 Sri Lanka 9 April 1962  Sweden 28 January 1972
  Switzerland 1 June 1965  Syrian Arab Republic 9 March 1959
 Tanzania, United Republic of 13 October 1964  Tajikistan 14 August 2012
 Thailand 21 December 1959  Trinidad and Tobago 14 February 1966
 Tunisia 17 July 1967  Turkey 2 July 1992
 Uganda 12 February 1992  Ukraine 10 October 1960
 United Arab Emirates 21 August 2006  United Kingdom 24 September 1975
 United States 30 September 1970  Uruguay 30 March 1983
 Uzbekistan 7 February 1996  Venezuela 8 February 1995
 Viet Nam 12 September 1995  Zambia 14 March 2002
 Zimbabwe 26 September 1994

The Convention has also been extended to a number of British Crown Dependencies, Overseas Territories, Overseas departments, Unincorporated Territories and other subsidiary territories of sovereign states.

 Puerto Rico|| ||  Réunion||

Territory Date of Ratification Territory Date of Ratification
 American Samoa  Aruba
 Ashmore and Cartier Islands  Australian Antarctic Territory
 Baker Island  Bermuda 14 November 1979
 British Virgin Islands 25 May 2014  Christmas Island 26 March 1975
 Cayman Islands 26 November 1980  Cocos (Keeling) Islands 26 March 1975
 Coral Sea Islands  Faroe Islands 10 February 1976
 French Guiana  French Polynesia 26 June 1959
 French Southern and Antarctic Lands  Gibraltar 24 September 1975
 Greenland 10 February 1976
 Guadeloupe  Guam 30 September 1970
 Guernsey 19 April 1985  Heard Island and McDonald Islands
 Howland Island  Isle of Man 22 February 1979
 Jarvis Island  Jersey 19 April 198
 Johnston Atoll  Kingman Reef
 Martinique  Mayotte
 Midway Atoll  Navassa Island
 New Caledonia 26 June 1959  Norfolk Island
 Palmyra Atoll  Panama Canal Zone
 Saint Pierre and Miquelon  United States Virgin Islands
 Wake Island  Wallis and Futuna

States which are not party to the Convention[edit]


 Andorra  Angola
 Cape Verde  Chad  Comoros
 Republic of the Congo  Equatorial Guinea  Eritrea
 Ethiopia  Gambia  Grenada
 Guinea-Bissau  Iraq  Kiribati
 North Korea  Libya  Malawi
 Maldives  Federated States of Micronesia  Namibia  Nauru
 Niue  Palau  Papua New Guinea  Saint Kitts and Nevis
 Saint Lucia  Samoa  Seychelles
 Sierra Leone  Solomon Islands  Somalia  South Sudan
 Sudan  Suriname  Swaziland  Taiwan
 Timor-Leste  Togo  Tonga
 Turkmenistan  Tuvalu  Vanuatu  Yemen

United States issues[edit]

Under American law, the recognition of foreign arbitral awards is governed by chapter 2 of the Federal Arbitration Act, which incorporates the New York Convention.[3]

Therefore, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention") preempts state law. In Foster v. Neilson, the Supreme Court held “Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without the aid of any legislative provision.” Foster v. Neilson, 27 U.S. 253, 314 (1829). See also Valentine v. U.S. ex rel. Neidecker, 57 S.Ct. 100, 103 (1936); Medellin v. Dretke, 125 S.Ct. 2088, 2103 (2005); Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2695 (2006). Thus, over a course of 181 years, the United States Supreme Court has repeatedly held that a self-executing treaty is an act of the Legislature (i.e., act of Congress).

External links[edit]

References[edit]

  1. ^ "Contracting States". Albert Jan van den Berg. 23 July 2011. Retrieved 23 July 2011. 
  2. ^ http://interarb.com/nyc/reservations New York Convention, 1958 - Reservations
  3. ^ "New York Arbitration". CMS Legal. Retrieved 21 May 2012. 

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