The New York Convention

Scope and reservations (Article I)

The Convention applies to awards made in a State other than the one where recognition and enforcement are sought, and to awards not considered domestic there. On becoming a party, a State may declare that it will apply the Convention only to awards made in another Contracting State (the reciprocity reservation), and only to differences considered commercial under its national law (the commercial reservation). Check the enforcing State’s declarations in the UNCITRAL status table before relying on the Convention.

Arbitration agreements (Article II)

Each Contracting State recognises agreements in writing to submit disputes to arbitration. A court seized of a matter covered by such an agreement must, at the request of a party, refer the parties to arbitration unless the agreement is null and void, inoperative or incapable of being performed.

Recognition and procedure (Article III)

Each State recognises foreign awards as binding and enforces them under its own rules of procedure, but may not impose substantially more onerous conditions, or higher fees or charges, than for domestic awards.

The documents (Article IV)

The applicant supplies the duly authenticated original award or a duly certified copy, and the original arbitration agreement or a duly certified copy. If they are not in an official language of the enforcing State, certified translations are required.

The grounds for refusal (Article V)

Recognition and enforcement may be refused, at the request of the party against whom the award is invoked and on its proof, only if:

• V(1)(a) a party was under some incapacity, or the agreement is not valid under the law the parties chose or, failing any indication, the law of the country where the award was made;
• V(1)(b) the party was not given proper notice of the appointment of the arbitrator or of the proceedings, or was otherwise unable to present its case;
• V(1)(c) the award deals with a difference outside the terms of the submission — although the parts within it may still be enforced;
• V(1)(d) the composition of the tribunal or the procedure was not in accordance with the parties’ agreement or, failing agreement, the law of the country where the arbitration took place;
• V(1)(e) the award is not yet binding, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

The court may also refuse of its own motion if V(2)(a) the subject matter is not capable of settlement by arbitration under its law, or V(2)(b) recognition or enforcement would be contrary to its public policy.

Adjournment and security (Article VI)

If an application to set aside or suspend the award is pending at the seat, the enforcing court may adjourn its decision and, on the creditor’s application, order the debtor to give suitable security.

More favourable rights (Article VII)

The Convention does not deprive a party of any right to rely on a more favourable law or treaty of the enforcing State — the basis on which courts in some jurisdictions have enforced awards annulled at the seat.

Recognition and enforcement

Recognition treats the award as binding — as a defence to a fresh claim on the same issues, for example. Enforcement gives it effect against the debtor’s assets. Both run through national law: in the United States, Chapter 2 of the Federal Arbitration Act; in England and Wales, sections 100 to 104 of the Arbitration Act 1996; in many other States, legislation giving the Convention and the UNCITRAL Model Law the force of law. Time limits are set by that national law, not by the Convention — see award enforcement.