Summary LLM International Dispute Resolution - International Commercial Arbitration II - Module 8 (Recognition & Enforcement I)
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Course
LLM
Institution
Queen Mary, University Of London (QMUL)
What are the key features of New York Convention?
What is the scope of application of New York Convention?
What are the fundamental principles of interpreting Article V?
How can parties be prevented from resisting enforcement?
How is Article V(1)(a) interpreted?
How is Article V(1)(b) interpre...
What are the key features of the New York Convention?
Obtaining recognition (Articles III and IV)
Article III commands signatory States to ensure that their courts enforce awards, which
establishes a presumption that the award is enforceable. ‘Each Contracting State shall
recognize arbitral awards as binding and enforce them in accordance with the rules of
procedure of the territory where the award is relied upon, under the conditions laid down in
the following articles. There shall not be imposed substantially more onerous conditions or
higher fees or charges on the recognition or enforcement of arbitral awards to which this
Convention applies than are imposed on the recognition or enforcement of domestic arbitral
awards.’
Article IV applies such presumption subject to the applicant submitting: (i) the award; (ii)
the arbitration agreement; and (iii) translations thereof. The court looks at the evidence
prima facie.
Reservations (Article I(3))
Article I(3) allows Contracting States to restrict the application of the Convention only to the
recognition and enforcement of awards made in the territory of another Contracting State.
Approximately two-thirds of the Contracting States have made this reservation. A court in a
State which has made the reservation of reciprocity will apply the Convention only if the
award has been made in the territory of another Contracting State, or if the award is non-
domestic and shows links to another Contracting State. As more countries become
Convention countries, the reciprocity reservation becomes less significant1. The Model Law
requires the recognition and enforcement of an arbitral award ‘irrespective of the country in
which it was made’2.
Contracting States may restrict the application of the Convention only to differences arising
out of legal relationships, whether contractual or not, which are deemed commercial under
the national law of the State making such declaration. Approximately one-third of the
Contracting States have made this reservation. The commercial reservation has led to
difficulties of interpretation even within the same state, as is shown by Indian Organic3 where
the agreement was not considered commercial, as ‘It must also be established that it is
commercial by virtue of a provision of law or an operative legal principle in force in India’.
Whereas in Union of India4, the Court ruled that ‘commerce’ is ‘a word of the largest import
and takes in its sweep all the business and trade transactions in any of their forms, including
the transportation, purchase, sale and exchange of commodities between the citizens of
different countries’. Ultimately, each national state may decide for itself under the
Convention what relationships it considers to be ‘commercial’ for the purposes of the
commercial reservation5.
1
Redfern & Hunter, International Arbitration (OUP, 2015), Chapter 11, para 11.45.
2
UNCITRAL Model Law, Articles 35 and 36.
3
Indian Organic Chemical Ltd v Subsidiary 1 (US), Subsidiary 2 (US), and Chemtex Fibres Inc (Parent Co.)
(US) (1979) IV YBCA 271.
4
Union of India and ors v Lief Hoegh Co. (Norway) (1984) IX YBCA 405.
5
Redfern & Hunter, International Arbitration (OUP, 2015), Chapter 11, para 11.50.
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