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    The document discusses the pros and cons of creating a new convention to supplement the existing New York Convention on the recognition and enforcement of foreign arbitral awards from 1958. Some of the key issues identified that could be addressed include clarifying the scope of application, rules on arbitration agreements, enforcement of interim measures, grounds for refusing enforcement, and standardizing procedures. While judicial interpretation and model laws have addressed some problems, there are still divergences between countries that could potentially be resolved by a new convention. However, others argue there is no need to fix what isn't broken and that a new convention could create new uncertainties and confusion. The document does not take a clear position and contemplates both sides of the issue.

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    The document discusses the pros and cons of creating a new convention to supplement the existing New York Convention on the recognition and enforcement of foreign arbitral awards from 1958. Some of the key issues identified that could be addressed include clarifying the scope of application, rules on arbitration agreements, enforcement of interim measures, grounds for refusing enforcement, and standardizing procedures. While judicial interpretation and model laws have addressed some problems, there are still divergences between countries that could potentially be resolved by a new convention. However, others argue there is no need to fix what isn't broken and that a new convention could create new uncertainties and confusion. The document does not take a clear position and contemplates both sides of the issue.

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    The document discusses the pros and cons of creating a new convention to supplement the existing New York Convention on the recognition and enforcement of foreign arbitral awards from 1958. Some of the key issues identified that could be addressed include clarifying the scope of application, rules on arbitration agreements, enforcement of interim measures, grounds for refusing enforcement, and standardizing procedures. While judicial interpretation and model laws have addressed some problems, there are still divergences between countries that could potentially be resolved by a new convention. However, others argue there is no need to fix what isn't broken and that a new convention could create new uncertainties and confusion. The document does not take a clear position and contemplates both sides of the issue.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
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    15 views19 pages

    Bona Fide

    Uploaded by

    oluchi
    The document discusses the pros and cons of creating a new convention to supplement the existing New York Convention on the recognition and enforcement of foreign arbitral awards from 1958. Some of the key issues identified that could be addressed include clarifying the scope of application, rules on arbitration agreements, enforcement of interim measures, grounds for refusing enforcement, and standardizing procedures. While judicial interpretation and model laws have addressed some problems, there are still divergences between countries that could potentially be resolved by a new convention. However, others argue there is no need to fix what isn't broken and that a new convention could create new uncertainties and confusion. The document does not take a clear position and contemplates both sides of the issue.

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    of 19

    Pros and cons:

    New New York Convention?

    Prof. Alan Uzelac


    University of Zagreb
    NYC Day 1998

    Albert Jan van den Berg, Striving for uniform interpretation


    NYC Day 1998

    Werner Melis, Considering the advisability of preparing an additional Convention


    General considerations
    No need Confusion
    ???
    “All problems can
    be resolved
    “The shortcomings
    by appropriate
    cannot be remedied
    judicial
    by interpretation, model
    interpretation.”
    legislation or
    interpretative instruments.”
    90%

    Outdated Inappropriate
    The Wish List
    (a) The absence of a global field of
    application of the Convention; Scope
    (b) The written form requirement of
    the arbitration agreement; Arbitration
    (c) The possibility of enforcement of agreement
    interim measures;
    (d) Discretionary power to enforce Interim
    an award where a ground for measures
    refusal exists;
    (e) Waiver of a ground for refusal of Grounds
    enforcement;
    (f) The annulment of the award in
    the country of origin; and
    Procedure
    (g) Procedure for enforcement of a
    Convention award.
    Scope

    • The NYC 1958 does not apply to the enforcement of


    arbitral awards made in the country of origin (the
    notion of “foreign” and “international”);
    • The notion of “commercial”: possibility to use the
    reservations, dependant on the law of the country of
    enforcement;
    Scope
    • Scope issues are • One needs a uniform and
    resolved by the national harmonized regime for
    arbitration law. enforcement of domestic
    • Should UNCITRAL and foreign awards.
    abandon “international” • There should be a
    and “commercial”? definition of “international”
    • There were no major as in the UNCITRAL
    problems with Model Law.
    reservations (but there • Reservations should be
    may be if they are not discouraged.
    permitted).
    Arbitration agreements

    • The NYC 1958 does not define arbitration


    agreements to which it relates.
    • No rules on mandatory referral to arbitration.
    • The strict rules on written form of the arbitration
    agreement.
    Arbitration agreements
    • The courts have enforced • It is needed to have
    the agreements that universal and harmonized
    would produce the rules. The courts do not
    enforceable awards. follow the same
    • The form requirements approach.
    were interpreted in a • The text of the NYC
    broad way by many literally requires a strict
    courts. written form.
    • The revised UML and the • Not all legal cultures and
    recommendation on traditions allow changing
    interpretation resolve the the black-letter law by
    problem. interpretation.
    Interim measures

    • The NYC 1958 does not contain clear rules on the


    enforceability of arbitrators’ decisions on interim
    measures.
    • Otherwise, no rules on the enforcement of specific
    types of awards (partial, interlocutory etc.) exist in
    the NYC.
    Interim measures
    • Revision of the UML • No harmonized
    provides universal approach to the
    solutions for interim enforcement of
    measures. interim measures.
    • The revised • Arbitral interim
    UNCITRAL Arbitration measures still not
    Rules will contribute enforced in a large
    to harmonisation. number of countries.
    • Are we ready for the • The hoax of “ex parte”
    uniform solutions? has to be uniformly
    resolved.
    Grounds

    • Some courts consider that grounds for refusal of


    enforcement are not exhaustive.
    • Some counts consider that they may enforce an
    award even if there is a ground for refusal.
    • Some grounds are ambigous and open to different
    interpretations.
    • No rules on waiver of the grounds for refusal.
    • Specific issue of the enforcement of awards that
    were set aside in the country of origin.
    Grounds
    • Generally, the courts • Grounds for refusal
    have applied the grounds should be drafted in a
    from the NYC correctly. more consistent or
    • Grounds for refusal are narrower way.
    broadly accepted, also • The borders of discretion
    inserted in the UML and to enforce / not to enforce
    many national laws. an award must be clearly
    • Divergent views on defined.
    enforceability are not the
    fault of the Convention.
    Procedure

    • The procedure of enforcement is regulated by


    national law;
    • Different time-limits for enforcement;
    • More or less onerous conditions for applicants:
    costs, fees, documents to be submitted;
    • Excessive formalism in interpretation of some
    provisions (e.g. “duly authenticated”);
    • Jurisdiction and legal remedies are vastly different,
    as well as the timeframes needed for enforcement.
    Procedure
    • harmonization of • a special international
    procedures can be instrument on procedure
    achieved by softer means of enforcement is
    (education, guides); needed;
    • it is difficult to expect • some points of
    harmonization in matters divergence have to be
    inherent to national unified (e.g. time-limit,
    procedural laws; costs);
    • the jurisdiction and legal • some formal
    remedies depend on requirements have to be
    constitutional specificities relaxed (duly
    and national legal culture authenticated);
    and tradition. • the approach to
    jurisdiction should be
    harmonized.
    Would we
    Is like to do it?
    it broke?

    Are we ripe?
    Can we solve all problems
    Shall we do it?
    by interpretation?
    If yes, when?
    BURIDAN’S ASS CONTEMPLATING THE ISSUE…

    PRO? CONTRA?

    … between 50th and 60th anniversary of the NYC….

    DON’T
    FIX IT! TOUCH!
    Thank you!

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