The New York Convention is a part of United States
law pursuant to
Title 9, section 201 of the United
States Code. The New York Convention is an international treaty
pursuant to which arbitration awards made in one country may be enforced
in another, as long as both countries adhere to the Convention. Many
nations do, and those that do not often adhere to other treaties providing
for international recognition of foreign arbitration awards. Law
and practice regarding the international enforcement of arbitration awards
is beyond the scope of this web page, other than that international enforcement
of arbitration awards and judgments is usually a very expensive proposition.
If one believes that an arbitration award may require international
enforcement, one should consult lawyers having skill in this area before
the arbitration is commenced.
Because court judgments (including court judgments
after court annexed arbitration) are often given limited recognition in
foreign countries, if one is entering into a business transaction where
the possibility of international enforcement is more than a remote possibility,
serious consideration should be given to incorporating provisions requiring
arbitration into the contract, drafted with a mind to how the award will
be enforced in all likely places where enforcement may be sought.
THE NEW YORK CONVENTION
United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (New York, 10 June 1958)
Article I
1. This Convention shall apply to the recognition and enforcement
of arbitral awards made in the territory of a State other than the State
where the recognition and enforcement of such awards are sought, and arising
out of differences between persons, whether physical or legal. It shall
also apply to arbitral awards not considered as domestic awards in the State
where their recognition and enforcement are sought.
2. The term "arbitral awards" shall include not only awards made by
arbitrators appointed for each case but also those made by permanent arbitral
bodies to which the parties have submitted.
3. When signing, ratifying or acceding to this Convention, or notifying
extension under article X hereof, any State may on the basis of reciprocity
declare that it will apply the Convention to the recognition and enforcement
of awards made only in the territory of another Contracting State. It
may also declare that it will apply the Convention only to differences
arising out of legal relationships, whether contractual or not, which
are considered as commercial under the national law of the State making
such declaration.
Article II
1. Each Contracting State shall recognize an agreement in writing
under which the parties undertake to submit to arbitration all or any
differences which have arisen or which may arise between them in respect
of a defined legal relationship, whether contractual or not, concerning
a subject matter capable of settlement by arbitration.
2. The term "agreement in writing" shall include an arbitral clause
in a contract or an arbitration agreement, signed by the parties or contained
in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a
matter in respect of which the parties have made an agreement within the
meaning of this article, at the request of one of the parties, refer the
parties to arbitration, unless it finds that the said agreement is null
and void, inoperative or incapable of being performed.
Article III
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
1. To obtain the recognition and enforcement mentioned in the preceding
article, the party applying for recognition and enforcement shall, at
the time of the application, supply:
(a) The duly authenticated original award or a duly certified copy
thereof;
(b) The original agreement referred to in article II or a duly certified
copy thereof.
2. If the said award or agreement is not made in an official language
of the country in which the award is relied upon, the party applying for
recognition and enforcement of the award shall produce a translation of
these documents into such language. The translation shall be certified
by an official or sworn translator or by a diplomatic or consular agent.
Article V
1. Recognition and enforcement of the award may be refused, at the
request of the party against whom it is invoked, only if that party furnishes
to the competent authority where the recognition and enforcement is sought,
proof that:
(a) The parties to the agreement referred to in article II were, under
the law applicable to them, under some incapacity, or the said agreement
is not valid under the law to which the parties have subjected it or, failing
any indication thereon, under the law of the country where the award was
made; or
(b) The party against whom the award is invoked was not given proper
notice of the appointment of the arbitrator or of the arbitration proceedings
or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling
within the terms of the submission to arbitration, or it contains decisions
on matters beyond the scope of the submission to arbitration, provided
that, if the decisions on matters submitted to arbitration can be separated
from those not so submitted, that part of the award which contains decisions
on matters submitted to arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral procedure
was not in accordance with the agreement of the parties, or, failing such
agreement, was not in accordance with the law of the country where the
arbitration took place; or
(e) The award has not yet become binding on the parties, or has been
set aside or suspended by a competent authority of the country in which,
or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused
if the competent authority in the country where recognition and enforcement
is sought finds that:
(a) The subject matter of the difference is not capable of settlement
by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary
to the public policy of that country.
Article VI
If an application for the setting aside or suspension of the award
has been made to a competent authority referred to in article V (1) (e),
the authority before which the award is sought to be relied upon may, if
it considers it proper, adjourn the decision on the enforcement of the award
and may also, on the application of the party claiming enforcement of the
award, order the other party to give suitable security.
Article VII
1. The provisions of the present Convention shall not affect the validity
of multilateral or bilateral agreements concerning the recognition and
enforcement of arbitral awards entered into by the Contracting States nor
deprive any interested party of any right he may have to avail himself of
an arbitral award in the manner and to the extent allowed by the law or
the treaties of the country where such award is sought to be relied upon.
2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva
Convention on the Execution of Foreign Arbitral Awards of 1927 shall cease
to have effect between Contracting States on their becoming bound and to
the extent that they become bound, by this Convention.
Article VIII
1. This Convention shall be open until 31 December 1958 for signature
on behalf of any Member of the United Nations and also on behalf of any
other State which is or hereafter becomes a member of any specialized agency
of the United Nations, or which is or hereafter becomes a party to the
Statute of the International Court of Justice, or any other State to which
an invitation has been addressed by the General Assembly of the United
Nations.
2. This Convention shall be ratified and the instrument of ratification
shall be deposited with the Secretary-General of the United Nations.
Article IX
1. This Convention shall be open for accession to all States referred
to in article VIII.
2. Accession shall be effected by the deposit of an instrument of
accession with the Secretary-General of the United Nations.
Article X
1. Any State may, at the time of signature, ratification or accession,
declare that this Convention shall extend to all or any of the territories
for the international relations of which it is responsible. Such a declaration
shall take effect when the Convention enters into force for the State concerned.
2. At any time thereafter any such extension shall be made by notification
addressed to the Secretary-General of the United Nations and shall take
effect as from the ninetieth day after the day of receipt by the Secretary-General
of the United Nations of this notification, or as from the date of entry
into force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not
extended at the time of signature, ratification or accession, each State
concerned shall consider the possibility of taking the necessary steps
in order to extend the application of this Convention to such territories,
subject, where necessary for constitutional reasons, to the consent of the
Governments of such territories.
Article XI
In the case of a federal or non-unitary State, the following provisions
shall apply:
(a) With respect to those articles of this Convention that come within
the legislative jurisdiction of the federal authority, the obligations
of the federal Government shall to this extent be the same as those of Contracting
States which are not federal States;
(b) With respect to those articles of this Convention that come within
the legislative jurisdiction of constituent states or provinces which are
not, under the constitutional system of the federation, bound to take legislative
action, the federal Government shall bring such articles with a favourable
recommendation to the notice of the appropriate authorities of constituent
states or provinces at the earliest possible moment;
(c) A federal State Party to this Convention shall, at the request
of any other Contracting State transmitted through the Secretary-General
of the United Nations, supply a statement of the law and practice of the
federation and its constituent units in regard to any particular provision
of this Convention, showing the extent to which effect has been given to
that provision by legislative or other action.
Article XII
1. This Convention shall come into force on the ninetieth day following
the date of deposit of the third instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the
deposit of the third instrument of ratification or accession, this Convention
shall enter into force on the ninetieth day after deposit by such State
of its instrument of ratification or accession.
Article XIII
1. Any Contracting State may denounce this Convention by a written
notification to the Secretary-General of the United Nations. Denunciation
shall take effect one year after the date of receipt of the notification
by the Secretary-General.
2. Any State which has made a declaration or notification under article
X may, at any time thereafter, by notification to the Secretary-General
of the United Nations, declare that this Convention shall cease to extend
to the territory concerned one year after the date of the receipt of the
notification by the Secretary-General.
3. This Convention shall continue to be applicable to arbitral awards
in respect of which recognition and enforcement proceedings have been
instituted before the denunciation takes effect.
Article XIV
A Contracting State shall not be entitled to avail itself of the present
Convention against other Contracting States except to the extent that it
is itself bound to apply the Convention.
Article XV
The Secretary-General of the United Nations shall notify the States
contemplated in article VIII of the following:
(a) Signatures and ratifications in accordance with article VIII;
(b) Accessions in accordance with article IX;
(c) Declarations and notifications under articles I, X and XI;
(d) The date upon which this Convention enters into force in accordance
with article XII;
(e) Denunciations and notifications in accordance with article XIII.
Article XVI
1. This Convention, of which the Chinese, English, French, Russian
and Spanish texts shall be equally authentic, shall be deposited in the
archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit a certified
copy of this Convention to the States contemplated in article VIII.