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The New York Arbitration Convention

of 11958
Promotor : Prof. Mr P. Sanders

Co-referent : Prof. Mr J.C. Schultsz
'
A sales edition of this thesis will be published under ISBN 90 6544 035 6.
@ 1981 T.M.C. Asses Institute, The Hague

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording
or otherwise, without prior written permission of the publishers.
Manufactured in the Netherlands.
In memory of Louise
Acknowledgements
The one to whom I owe the greatest debt of gratitude is my thesis

director, Prof. Pieter Sanders. His guidance, critical and friendly at the
same time, during the years that I was his collaborator in editing the
court decisions on the New York Convention for the Yearbook Commercial Arbitration, has formed the bedrock of this study.
I like also t o express my gratitude t o my two other teachers in international commercial arbitration: Prof. Rent5 David, who introduced me
to the field when 1 was studying in Aix-en-Provence, and the late Prof.
Martin Domke, who shared his vast practical experience with me while I
studied at New York University.
My sincere thanks are due furthermore to the co-reader of the thesis,
Prof. Jan Schultsz, whose learned remarks have been very useful, to
Dr. Ernst Mezger for having perused the manuscript and provided it
with so many valuable observations, and to Dr. Harry Duintjer Tebbens
for his much appreciated aid in reading the proofs.
The Eastman Library of the American Arbitration Association, New
York, and the International Commercial Arbitration Library of the
T.M.C. Asser Institute for International Law, The Hague, have been
very helpful in providing me with many materials, which were, and still
are, very difficult to obtain elsewhere.
My colleagues in the law firm Van Doorne & Sjollema in Rotterdam
are t o be acknowledged for their generous support.
I wish to thank also the staff of the T.M.C. Asser Institute, especially
Miss Eonneke Hus, Mr. Cer de Roode, and Mr. Loek Straman, for all
the work done to convert the manuscript into this book.
I owe special thanks for the, always cheerful, administrative assistance of Misses Jolanda van Bodegraven, Karina Smit, and Netty Spil,
and, in particular, Eliane Hannema and Anneke Meijer.
My warmest thanks go to Mrs. Judy Freedberg, whose spirited assistance was invaluable in the research of the materials, the correction of
the English, and the indexing of the text.
Finally, I am deeply indebted to my parents whose unstinting encouragement and backing have, in fact, made the writing of this study
possible.
Amsterdam, June 198 1
T.M.C. ASSER INSTITUTE
- THE
HAGUE
Interuniversity Institute for International Law and the Law of the European Communities
Director : C.C.A. Voskuil

Deputy Director: J.A. Wade; Heads of Departments: H. Duintjer Tebbens (Private International
Law), KO Swan Sik (Public International Law), A.E. Kellermann (Law of the European Communities, General Secretary); Office Manager: G.J. de Roode.
The T.M.C. Asser Institute was founded in 1965 by the Dutch universities offering courses in
international law to promote education and research in the fields of law covered by the departments of the Institute: Private International Law, including International Commercial Arbitration, Public International Law and Law of the European Communities. The Institute discharges this task by the establishment and management of documentation and research projects, in some instances in co-operation with non-Dutch or international organisations, by the
dissemination of information deriving therefrom and by publication of monographs and series.
In addition, the Institute participates in the editing of the Yearbook Commercial Arbitration
and in the editing and publishing of, inter alia, the Netherlands International Law Review and
the Netherlands Yearbook of International Law.
Institute Address
Postbox
Telephone
Telex
: Alexanderstraat 20-22, The Hague
: 30461, 2500 GL The Hague

: (0)70 - 6 3 09 00
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Summary Table of Contents

Detaaed Table of Contents
Note to the Reader
p, xv
CHAPTER I
Part I-l
Part 1-2
p. 11
p. 12
Part 1-3
Part 1-4
FIELD OF APPLICATION
Foreign Arbitral Award (Art. 1)
Arbitration Agreement Falling Under the
Convention
Retroactivity
Domestic Law on Enforcement and Other
Treaties in the Field of Arbitration (Art. V%%)
CHAPTER %I lIENFORGEMENT OF THE ARBITRATION

AGREEMENT
Referral by Court t o Arbitration (Art. II(l)
Part 11-11
and (3))
Part 11-2
Written Form of the Arbitration Agreement
(Art. II(2))
CHAP'FER I11 ENFORCEMENT OF THE A R B I T M L

AWARD
Part 111-1
Procedure for Enforcement (Art. 111)
Conditions to be Fulfilled by the Claimant
Part 111-2
(Art. IV)
Grounds for Refusal of Enforcement in
Part 111-3
General (Art. V)
Grounds for Refusal of Enforcement to be
Part 111-4Proven by the Respondent (Art. V(1))
Public Policy as Ground for Refusal of En1
1
1
5
Part
forcement Ex Of4cio (Art. V(2))
p. 56
p. 72
p. 8 1
p. 121
p. 122
p. 170
p. 233
p. 234
p. 246
p. 264
p, 275
p. 359
SUMMARY md CONCLUSION
p. 383
INDEX
p. 451
Detailed Table of Coaate~ats
INTRODUCTION
A. Uniform Judicial Interpretation
B. History of the New York Convention
C, General Introduction to the New York Convention
CHAPTER 1 FIELD OF APPEICATIIBN
p. 1 1
P u t 1-1
Foreign Arbitrd Award (Art. 1)

Universality and First Reservation
Party's Nationality Excluded
No Internationality Required
Convention Not Applicable in Country of Origin
1-1.4.1
Enforcement
,
I- 1.4.2
Setting aside
Awards Not Considered as Domestic
1-1.5.1
Introduction
1-1.5.2
First b i t a t i o n : o d y awards made in the
country where the enforcement is sought
1-1.5.3
Second limitation: second criterion is dhcretionwy
1-1.5.4
The German implementing Law
1-1.5.5
Dead letter
"A-national9' Award
1-1.6.1
Concept of the "a-national" award
1-1.6.2
Does the "a-national9' award fall under the
Convention?
1-1.6.3
Refusal of enforcement of m "a-national"
award
1-1.6.4
Dutch Supreme Court: SEEE v. Yugoslavia
Arbitrato Irrituale etc.
Second Reservation ("Commercial Reservation9')
Uniform Interpretation (and Summary)
p. 12
Part 1-2
1-2.1
1-2.2
1-23
Arbitration A ~ e e m e n Falling
t
Under the Convention
Introduction
Agreement Providing for Arbitration in Another State
Agreement Providing for Arbitration in the Forum's State
1-2.3.4
Applicability of Artide II(3)
1-2.3.2
Nationality of the pasties
1-2.3.3
Subject matter of the arbitration agreement
Agreement Does Mot Indicate Place of Arbitration
Uniform Interpretation (and Summwy)
p. 56
1-2.4
1-2.5
Part 1Introduction
Implementing Acts
Judicial Interpretations
Retroactive Applicability in All Cases
.
.
.4 Domestic Law on Enforcement and Other Treaties in the Field
of Arbitration (Art. V1I)
Introduction
More-f avourable-right (mD)-provision
1-4.2.1
In general
1-4.2.2
Who may invoke?
No combination Convention with other possible
1-4.2.3
bases
Mfr-provision and the arbitration agreement
1-4.2.4
Relationship Between Convention and Domestic Law on
Enforcement of Foreign Arbitral Awards
Relationship Between Convention and Bilateral and Multilateral Treaties
1-4.4.1
In general
European Convention of 196 1
1-4 .dl.2
1-4.4.3
Other niultilateral conventions
(a) Washington Convention of 1965
(b) Moscow Convention of 1972
(c) Panama Convention of 1975
1-4.4.4
Bilateral treaties
Geneva Protocol of 1923 and Geneva Convention of 1927
(Art. V11(2))
Uniform Interpretation (and Summany)
CHAPTER 111 ENFORCEMENT OF THE ARBITRATION AGREEMENT
P a t 11-1 Referrd by Court to Arbitration (Art, I1(l) and (3))
11- 1.1
Introduction
Convention's provisions relating to referral
11-1.1.1
Convention's provisions and municipal law
11-1.1.2
Determination of the law applicable to the
11-1.1.3
arbitration agseement
11-1.2
Referral to Arbitration in General
11-1.2.1
Meaning and effect of "refer the parties to
arbitration"
(a) Meaning: stay of court proceedings on the
merits
(b) Effect: partial incompetence of the court
11-1.2.2
Actual submission to arbitration not required
11-1.2.3
Wefenal is mandatory
At the request of one of the parties only
11-1.2.4
11-1.2.5
Pre-award attachment not precluded
1%-1.3
Arbitration Agreement and Referral to Arbitration
11-1.3.1
Introduction
p. 121
xii
11- 1.3.1 .1
11-1.4
11- 1.5
Conditions for referral relating to arbitration

agreement
Separability o f the arbitral clause
11- 1.3.1.2
11-1.3.2
Difference in respect of a defined legal relationship
11-1.3.2.1
There must be a dispute
%I-1.3.2.2
Dispute must arise out o f a defined legal relationship, whether contractual or not
I%-1.3-3
Subject matter not capable of settlement by
arbitration
1%-1.3.4
Null and void, inoperative or incapable of being
performed
11-1 3.4.1
Introduction
"Null and void "
11- 13.4.2
11-1 -3.4.3
"Inoperative"
11- 1.3.4.4
'Tncapable o f being performed"
Multi-party Disputes and Referral to Arbitration
Uniform Interpretation (and Su'mmary)
Part 11-2 Written Form of the Arbitration Apeement (Art. II(2))

11-2, 1
Introduction
Character of the Written Form Requirement of Article II(2)
11-2.2
11-2.2.1
Introduction
XI-2.2.2
Uniform rule
11-2.2.3
Consequences of the uniform mle
(a) Maximum and minimum rule
(b) Proof by other means not possible
(c) Estoppel
11-2.2.4
Should an international arbitrator apply
Article 11(2)?
When is the Written Form Requirement of Article II(2)
11-2.3
Met?
11-2.3.1
Introduction
11-2.3.2
Whether signatures are necessary
11-2.3.3
Orally and tacitly accepted arbitration agreements excluded
11-2.3.4
Acceptance in writing of a contract containing
an arbitral clause in the case of an exchange
11-2.3.5
The submission agreement
1 1 Specific Cases
11-2.4.1
Exchange of telexes
11-2.4.2
Sales and purchase confixmation
11-2.4.3
Standard conditions
11-2.4.3.1
Autonomous interpretation o f Article ,II(2)
11-2.4.3.2
Articles 1341 and 1342 o f the Italian Civil
Code
11-2.4.3.3
Incorporation by reference
11-2.4.4
Agency
11-2.5
Unifom Interpretation (and Summary)
11-2.6
Is a Revision of Article IX(2) Needed?
...
Xlll
CHAPTER I11 ENFORCEMENT OF THE ARBITRAE AWARD

Part 111-8
111- 1.1
111- 1.2
111- 1.3
111- 1.4
111- 1.5
Procedure for Enforcement (Art. 111)

Legislative History
Rules of Procedure for Enforcement of Convention Award
Ently of Judgment Clause (United States)
Recognition of Awards
Part 111-2 Conditions to be Fulfilled by the Claimant (Art. V)

111-2.1
In General
111-2.2
Authentication and Certification under Article IV(1)
111-2.3
Translation (Art. IV(2))
111-2.4
Unifom Interpretation (and Summary)
P a t 111-3
111-3.1
111-3.2
111-3.3
P a t 111-4
111-4.1
111-4.2
111-4.3
Grounds for Refusal of Enforcement in Generd

(Art..V)
Main Features of the Grounds for Refusal of Enforcement
No Review of the Merits of the Arbitral Awafd
Grounds for Refusal of Enforcement to be Proven by the
Respondent (Art. V(1))
Ground a: Invalidity of the Arbitration Agreement
111-4.1.1
Incapacity of a party
111-4.1 .2
State or public body as party to the
arbitration agreement
111-4.1.3
Law applicable to the arbitration agreement
111-4.1.3.1 Introduction
111-4.1.3.2 Legislative history
111-4.1 3 . 3 Applicability o f Article 11
111-4.1.3.4 Matters left to the law applicable to the
arbitration agreement
111-4.1 3 . 5 Determination o f the law applicable to
the arbitration agreement
(a) Law to which the parties have subjected the arbitration agreement
(b) Law of the country where the award
was made
111-4.1.4
Uniform interpretation (and summary)
Ground b: Violation of Due Process
111-4.2.1
Introduction
111-4.2.2
Questions regarding Article V(l)(b)
111-4.2.3
Court decisions concerning due process
(a) No proper notice
(b) "Unable to present his case"
111-4.2.4
Ground c: Excess by Arbitrator of His Authority
111-4.3.1
In general
111-4.3.2
"Submission to arbitration"
xiv
111-4.4
111-4.5
Part 111-5
111-5.1
111-5.2
111-5.3
111-5.4
111-4.3.3
Court decisions regarding Article V(l)(c)
111-4.3.4
Partial enforcement
111-4.3.5
Award infra petita
111-4.3.6
Uniform interpretation(and summary)
Ground d: Irregularity in the Composition of the Arbitral
Tribunal or the Arbitral Procedure
111-4.4. 1
In general
111-4.4.2
Role of the law of the country wheh-e the arbitration took place according to Article V(l)(d)
111-4.4.3
Ground e: Award Mot Binding or Set Aside
111-4.5.1
Introduction
111-4.5.2
Award not "binding"
111-4.5.2.1 Legislative history
111-4.5.2.2 Meaning o f the term "binding"
111-4.5.2.3 Merger o f award into judgment
111-4.5.3
Award set aside or suspended
111-4.5.3.1 Award set aside
111-4.5.3.2 A ward suspended
111-4.5.3.3 Adjournment o f the decision o n enforcem e n t (Art. Vl)
111-4.5.3.4 Is the setting aside o f the a ward in the country
o f origin a necessary ground for refusal of enforcement?
111-4.5.4
Public Policy as Ground for Refusal of Enforcement
Ex Officio (Art. V(2))
In General
Non-arbitrable Subject Matter (Arts. V(2)(a) and II(1))
Other Grounds of Public Policy (Art. V(2)(b))
111-5.3.1
Introduction
111-5.3.2
Lack of impartiality of the arbitrator
111-5.3.3
Lack of reasons in award
SUMMARY and CONCLUSION

ANNEXES
A. Text of the Convention
English text
French text
Spanish text
B. List of Contracting States (including Reservations and Declarations)
C . List of Implementing Acts (including index)
D. Table of Court Decisions on the Convention (including index)
BIBLIOGRAPHY
A. New York Convention
B. General
'
p.
p.
p.
p.
p.
p.
p.
359
359
368
376
376
377
380
p. 382
INDEX
I. Index of Articles of the Convention
II. Index of Subject Matters
DUTCH SUMMARY and CONCLUSION
Note to the Reader

Text divisions
Main division:
First sub-division :
Second sub-division:
Third sub-division:
Fourth sub-division :
Chapter
Part
Section
Sub-section
Paragraph
I, 11 or 111
e.g., 11-2
e.g., 11-2.4
e.g., 11-2.4.3
e.g., 11-2.4.3.2
Footnotes
For the reader's convenience the use of abbreviations is avoided as
much as possible.
The court decisions on the New York Convention are identified between brackets by country and number. Full references for each court
decision can be found in Annex D, Table of Court Decisions, under the
country concerned, listed by number.
Cross-references are frequently given by means of supra and infra
with the purpose of facilitating isolated reading of a Part, Section, Subsection, or Paragraph. The cross-references are, however, not intended
as a replacement of the Table of Court Decisions (Annex D), the Index
of Articles of the Convention and the Index of Subject Matters to be
found at the end of this study.
The footnotes are numbered per Chapter (I, I1 and 111). If a crossreference is made to a footnote in a different Chapter, this is indicated
by a Roman numeral before the number of the footnote (e.g., reference
t o footnote 3 1 in Chapter 11 is made in footnote 1 17 of Chapter I by
means of "infia n. 11.31").
Date of completion
The study was completed on February 1, 1981. With a few exceptions, no materials issued after this date have been used.
Introduction
A.
Uniform Judicial Intelrpretatisn
1. It has become more and more recognized that for the settlement
of disputes between parties to an international transaction, arbitration
has clear advantages over litigation in national courts. The foreign court
can be an alien environment for a businessman because of his unfamiliarity with the procedure which may be followed, the laws t o be
applied, and even the mentality of the foreign judges. In contrash with
international commercial arbitration parties coming from different
legal systems can provide for a procedure which is mutually acceptable.
They can anticipate which law shall be applied: a particular law or even
a lex mercatoria of a trade. They can also appoint a person of their
choice having expert knowledge in the field.
These and other advantages are only potential until the necessary
legal framework can be internationally secured. This legal framework
should at least provide that the commitment t o arbitrate is enforceable
and that the arbitral decision can be executed in many countries,
precluding the possibility that a national court review the merits of the
decision.
One finds such a framework in the New York Convention. The
Convention has been adhered to by 56 States at the time of this
writing, among which are almost all important trading nations from the
Capitalist and Socialist world as well as many developing countries. The
Convention has frequently been applied in practice: the number of
court decisions reported in Volumes I(1976) - VI(198 1) of the Yearbook Commercial Arbitration ' amounts to 137. Consequently the
New York Convention can be considered as the most important Convention in the field of arbitration and as the cornerstone of current
international commercial arbitration.
2.The significance of the New York Convention for international
commercial arbitration makes it even more important that the Convention is interpreted uniformly by the courts. A review of the court
decisions on the Convention shows that such a uniform interpretation is
lacking in several respect^.^ This may lead t o an undesirable degree of
uncertainty which can be detrimental to the effectiveness of international commercial arbitration.
1. The Yearbook Commercial Arbitration (Deventer, the Netherlands) is under the General
Editorship of Prof. Pieter Sanders, and is published by the International Council for Commercial Arbitration (ICCA) with the cooperation (as of Volume IV (1979)) of the TM.C. Asser
Institute for International Law, The Hague. The Yearbook Commercial Arbitration will be referred to in this study as Yearbook.
2. See P. Sanders, "Commentary", in Yearboolc Vol. I (1976) p. 207, Vol. I1 ( 1 977) p. 254,
3. The lack of a uniform judicial interpretation of the Convention

has recently led to proposals being made with a view to clarifying and
complementing the New York Convention by means of revision in the
form of a Protocol. The Asian-African Legal Consultative Committee
( M L C C ) in 1976 adopted a recommendation on international commercial arbitration. by which it invited the United Nations Commission
on International Trade Law (WCITRAL) to consider the possibility of
preparing such a P r o t o ~ o l . ~
At WCITRAL3s tenth Session in May-June 1977, the predominant
opinion was that, if it were decided at a later stage to implement the
proposals of the AALCC, the preparation of a Protocol to the Convention would not be an appropriate a p p ~ o a c h . ~
This may indeed be questioned. It will take time t o establish such a
Protocol. Moreover, assuming that a Protocol may clarify and complement the New York Convention, it will still take considerable time
before all States Party to the New York Convention will also have
become Party to the Protocol. In the meantime, uncertainty will exist
as to whether the New York Convention or the Protocol, or even both,
will be applicable. This uncertainty may be aggravated if certain States
deem it unnecessary to join the Protocol. Furthermore, a Protocol,
however good its provisions may be, will require time before a more or
less uniform judicial interpretation can be achieved.
4. In view of these problems engendered by a revision of the Convention in the form of a Protocol, another approach would seem to be
more appropriate, namely a unification of judicial interpretation by
means of the comparative caselaw method. This approach has as objective to formulate one possibly acceptable interpretation on the basis of
a comparison of the court decisions given in respect of the Convention, which interpretation could be followed by the courts in the
Contracting States.
It is the latter approach which will be adopted in this study. However, if it appears that the unification of interpretation by means of the
comparative caselaw method is unable t o bridge the gap between the
diverging interpretations or t o fill a lacuna of the Convention, the
question of a revision in the form of a Protocol will be reconsidered.
It may be mentioned that the Draft Convention of 1955 of the United Nations
Economic and Social Council (ECOSOC), to be considered hereafter, contained an
Article XIII to the effect that disputes between two or more Contracting States
concerning the interpretation or application of the Convention, which could not be
settled by negotiation, could, at the request of any Contracting State to the clisand Vol. IV (1979) p. 231.
3. UN DOC A/CN.9/127. The recommendations are briefly commented upon in a note by
the Secretariat of UNCITRAL (A/CN.9/127/Add.l).
4. UN DOC A132117 Ann. I1 para. 31.
Introduction
pute, be refemed to the International Court of Justice for a decision. It provided

further that, when adhering to the Convention, a Contracting State could declare
that this Article would not apply to it.5
Article XIII was opposed by the delegate from the U.S.S.R., stating that as it
stood, it provided that States could be brought before the International Court of
Justice without their consent. He argued that this was contrary to the principles of
international law, in particular the principle that submission to the jurisdiction of
~ proposed an amendment that a dispute could be subthe Court was ~ o l u n t a r y .He
mitted to the Court only with the consent of the parties.' Other delegates, especially those from non-Socialist countries, were opposed to the Soviet amendment and
favoured the text as proposed by ECOSQC. Being deadlocked, the Conference decided not to insert in the Convention any provision concerning the resolution of
disputes arising out of its interpretation and application.
It should be observed that even without a provision to this effect, the International Court of Justice, in virtue of Article 36(9) of the Statute of the Court, has
jurisdiction over a dispute between Contracting States concerning the interpretation
of the Convention. Its jurisdiction is, however, dependent on the consent of the
Contracting States concerned to submit the dispute to the Court, unless a State has,
in accordance with Article 36(2), declared that it recognizes as compulsory ipso
facto and without special agreement, in relation to any other State accepting the
same obligation, the jurisdiction of the Court. Littera a of Article 36(2) mentions
specifically "the interpretation of a treaty9'. ,
In any case, the Article proposed by ECQSOC would not have had, and Article
36 of the Statute of the Court does not have, much practical relevance as it is
unlikely that States would be willing to submit disputes concerning the interpretation of the New York Convention to the International Court of Justice. The
unification of interpretation of the Convention is therefore principally left to the
volition of the courts of the Contracting States.
5. In choosing the approach of unifying the judicial interpretations of

the Convention by means of the compaative caselaw method, the
question of the rules of interpretation to be applied becomes particularly important.
For this question we should turn to the Vienna Convention on the
Law of Treaties of 1969, which entered into force on January 27, 1980
(also called the "Treaty of T r e a t i e ~ " ) .The
~ Convention lays down mles
for the interpretation of Treaties in Article 31 (headed "General Rule
of Interpretation"), Article 32 (headed ""Supplementary Means of
Interpretation"), and Article 33 (headed "Interpretation of Treaties
Authenticated in Two or More Languages").
5. UN DOC El2704 and Corr. 1.

6. UN DOC E/CONF.26/SR.21.
7. UN DOC ElCONF.26lL.56.
8. Tractatenblad (Netherlands) 1972, no. 51. The Vienna Convention has not yet been adhered to by many States and applies, according to its Art. 4, only to treaties which are concluded
by States after its entry into force with regard to such States. However, the Convention may be
considered here, as it may be viewed as a codification of treaty law prevailing in international
case law, custom and legal doctrine. See generally for Arts. 31 and 32 of the ViennaConventlon,
H. Kock, Vertragsinterpretation und Vertragsrechtskonvention. Zur Bedeutung der Artikel 31
Introduction
Article 3 1 provides in paragraph 1 that "A treaty shall be interpreted

in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and
purpose". This general rule of interpretation will naturally be followed
in this study. It goes without saying that a treaty is t o be interpreted in
good faith. Although Article 3 1(1) emphasizes the importance of the
"ordinary meaning" of the terms of a treaty, what is "ordinary" for
one person may not be so for another person. It is clear, however, that
in any case an interpretation should not go squarely against the terms
of the Convention. The ordinary meaning of the terms of the Convention is, pursuant to Article 3 1( I ) , also t o be derived from the context in
which the terms are used and the object and purpose of the treaty. The
interpretation of the terms in their context is self-evident. As far as the
object and purpose of the New York Convention are concerned, they
are to facilitate the enforcement of arbitration agreements within its
purview and of foreign arbitral awards. This object and purpose must,
in the first place, be seen in the light of enhancing the effectiveness of
the legal regime governing international commercial arbitration.
Article 32 of the Vienna Convention provides that recourse may be
had to supplementary means of interpretation,, "including preparatory
works of the treaty", when the interpretation according to Article 3 1 :
(a) leaves the meaning ambiguous or obscure, or (b) leads to a result
which is manifestly absurd or unreasonable. This rule is also easily
accepted. As far as the legislative history of the New York Convention
is concerned, about which more later in this Introduction, a historic
interpretation mainly based on the preparatury works (travaux preparatoires), may sometimes be difficult as it is not always easy to ascertain
what was the consensus .at the New York Conference of 1958. However, the legislative history of the Convention will be reviewed in this
study to some extent in respect of certain provisions of the Convention
as it has proven that it generally assists in their understanding.
In this connection it may be added that frequently a comparison is
made with the Geneva Protocol on Arbitration Clauses of 1923 and the
Geneva Convention on the Execution of Foreign Arbitral Awards of
1927, because the New York Convention was conceived as the followup treaty. The Geneva Treaties may therefore also be of assistance in
interpreting the New York Convention.
Although the rules of interpretation of treaties are helpful and are
generally relied upon in this study, it is no secret that how they are
used (some may say "manipulated") may depend on the desired result.
Such use is not extraordinary, and even preferable to a conceptual use
und 32 der Wiener Vertragsrechtslconvention 1969 (Berlin 1976). An extensive bibliography is

appended to this study.
Introduction
of rules of interpretation, provided that it is made clear for which

reason the use is made. Having regard to the object and purpose of the
Convention and to the fact that the Convention is to be applied in so
many countries with so many different legal systems and concepts, in
this study the rules of interpretation are used in an attempt to provide
for solutions that are workable in current practice and likely to be
followed on a world-wide basis. It will be attempted to avoid overly
sophisticated interpretations, in particular those which read more into
the Convention than can be safely said to be provided by it.
6. The study primarily concerns the interpretations given by the
courts of the Contracting States. Current international commercial
arbitration cannot function without the assistance of the national
court^.^ The New York Convention is built upon this principle. It can
even be said that the Convention effectively derives its authority from
the national courts. The manner in which they interpret and apply
the Convention is the main source of its effectiveness.
Almost all court decisions considered in this study are reported in
the form of an extract in Volumes I(1976) - VI(1981) of the Yearbook Commercial Arbitration. However the judicial interpretations
referred to are based on the text of the original decisions. It may
therefore happen that a particular interpretation cannot be found
in the extract reported in the Yearbook. Copies of approximately 70
per cent of the original court decisions are compiled in Prof. G. Gaja9s
New York Convention. l o
Due to considerations of limited space and object, as well as the
danger of not seeing the forest for looking at the trees, the study will
not pay extensive attention to the more theoretical interpretations
advanced in scholarly writings.
In certain countries specific legislation has been enacted for the
implementation of the Convention. In some of these Acts attempts are
made to clarify or complement the Convention. As the courts in these
countries must as a rule base themselves on the enabling legislation,
their provisions will be taken into account where it is necessary.
7. The study is divided into the three main subjects areas where the
Convention is open to interpretaton: the field of application (Chapter
I), the enforcement of the arbitration agreement (Chapter IT), and the
enforcement of the award (Chapter 111). Within these areas the various
9. See H. Holtzmann, Arbitration and the Courts: Partners in a System o f International

Justice, Report submitted to the VIth International Arbitration Congress, Mexico City, March
1978. A French translation entitled "L'arbitrage et les tribunaux: des associ6s dans un systBme
de justice internationale" is published in Revue de l'arbitrage (1978) p. 253.
10. Dobbs Ferry 1978-1980. A full set of all original court decisions on the New York Convention is with the International Commercial Arbitration Library of the T M .C. Asser Institute
for International Law in The Hague.
issues are examined. For each issue a general explanation of those

Convention provisions concerned is given and the relevant court decisions are analyzed and compared, identifying those issues on which a
general consensus exists and those on which it does not. I11 respect of
the diverging interpretations, an attempt is then made to arrive at one
interpretation.
The Convention also involves certain questions on which a judicial
interpretation has not yet been given, but which are likely to come up
within the near future. Where it is appropriate, these questions are also
examined.
At the end of each Part the proposals for uniform interpretation
elaborated in respect of the Convention's issues as examined in that
Part, are summarized under the heading ""Uniform Interpretation".
B.
History of the New York Convention
8. At the beginning of this century, as international commercial

arbitration was becoming established, it had t o rely solely on domestic
arbitration laws. At that time national laws as well as the courts of
many countries were often unfavourable towards arbitration. These
laws were generally antiquated, and differed amongst themselves
considerably; several judicial authorities actually regarded arbitration as
their rival.
The increased use of international commercial arbitration after the
First World War led the then newly established International Chamber
of Commerce (ICC) in Paris to promote an international convention by
which one of the major obstacles of that time, the unenforceability of
the arbitral clause, referring future disputes to arbitration, would be
removed. The initiative, taken over by the League of Nations, resulted
in the Geneva Protocol on Arbitration Clauses of 1923."
Article 1 of the Geneva Protocol declared valid arbitration agreements "whether relating to existing or future differences". The Protocol also provided for the obligation of a court of a Contracting State to
refer the parties to arbitration if it was seized of a dispute regarding
which it had been agreed t o arbitrate.
The international validity and enforceability of the arbitral clause
being established, the following step, the international enforcement of
the arbitral award, did not take long. Under the auspices of the League
of Nations, the Geneva Convention on the Execution of Foreign
11. 27 Leagtie ofNations Treaty Series 158 (1924). See infra 1-4.5.
Introduction
Awards was concluded in 1927.12 It regulated the enforcementof

arbitral awards made in pursuance of an arbitration agreement falling
under the Geneva Protocol of 1923.13
Although the Geneva Treaties were undoubtedly an improvement in
comparison with the previous situation, they were still considered
inadequate.14 Their field of application was limited: the parties had to
be subject to the jurisdiction of different Contracting States, and the
arbitral award should have been made in a Contracting State. The
Geneva Convention placed upon the party seeking enforcement the
heavy burden of proving the conditions necessary for the enforcement.
One of these conditions was that the award had to become "final" in
the country where it was made ("country of origin"). Many courts
interpreted this condition as requiring a leave for enforcement (exequatur or the like) from the court of the country of origin. Since in the
country where enforcement was sought a leave for enforcement was
also needed, this interpretation amounted in practice to the system of
the so-called "double-exequatur".
Another condition was that in any case the constitution of the
arbitral tribunal and the arbitral procedure should have taken place in
conformity with the law governing the arbitral procedure; this has
almost always been the law of the country where the arbitration took
place.
It was especially the last-mentioned condition which prompted the
International Chamber of Commerce t o launch a project for a new
international convention after the Second World War. The Draft
Convention, issued in 1953, aimed essentially at an arbitration which
would not be governed by a national laws1'
The idea of a truly international commercial arbitration solely based
o n an international convention was, however, unacceptable for most
States. The United Nations Economic and Social Council (ECOSOC) to
whom the %CCDraft Convention was presented, came forward in 195 5
with another Draft Convention which remained much closer to the
Geneva Treaties. The title of the ECOSOC Draft Convention previewed
the difference: whilst the ICC Draft Convention referred t o 661nterna-
12. 92 League ofNations Treaty Series 302 (1929-1930). See infra 1-4.5.
13. See for the Geneva Treaties in general, H.-W. Greminger, Die Genfer Abkommen V O
1923 und 1927 Ik'ber die internationale private Schiedsgerichtsbarkeit (Winterthur 1957).
14. See E. Eorenzen, "Commercial Arbitration - International and Interstate Aspects", 43
Yale Law Journal (1933-1934) p. 716; "Commercial Arbitration - Enforcement of Foreign
Awards", 45 Yale Law Journal (1935-1936) p. 39; E. Mezger, "Zur Auslegung und Bewertung
der Genfer Schiedsabl<ommen von 1923 und 1927", 24 Rabels Zeitschrift fur auslandisches
und internationales Privatrecht (1959) p. 222.
15. International Chamber of Commerce, Enforcement o f International Arbitral Awards.
Report and Preliminary Draft Convention, ICC Brochure no. 174 (Paris 1953), reproduced in
UN DOC ElC.21373.
Introduction
tional Arbitral Awards" the ECOSOC Draft Convention mentioned

"Foreign Arbitral Awards".16
The ECOSOC Draft Convention was sent for comments and observations to a number of governments and inter- and non-governmental
organizations.17 In the light of the comments received, ECOSOC
decided to convene the "Conference on International Commercial
Arbitration". The Conference was held at the Headquarters of the
United Nations in New York from May 20 to June 10, 1958. The Conference, commonly called the New York Conference of 1958, resulted
in the adoption of what has become known as the New York Convention of 1958.18
C.
General Introduc%iomto the New York Convention
9. A general introduction t o the Convention may be best given by

highlighting the improvements of the Convention in comparison with
the Geneva Treaties.
The fundamental difference between the ICC Draft Convention of
1953 and the ECOSOC Draft Convention of 1955 was reconciled by a
compromise reached at the Conference: on the one hand, the title of
the Convention refers to a foreign award, which is defined in Article
1(1) as an award made in another country; on the other hand, as far as
the enforcement proceedings in another Contracting State are concerned, if the parties have made an agreement regarding the composition of the arbitral tribunal or the arbitral procedure, the arbitration
law of the country where the arbitration took place has not, according
to Article V(l)(d), to be taken into account. The latter provision is an
improvement in comparison with the Geneva Convention of 1927
which required as a condition for the enforcement of an award in
another Contracting State that the constitution of the tribunal and the
arbitral procedure had always to be in conformity with the law of the
place of arbitration.
The field of application of the New York Convention is broader than
that of the Geneva Treaties. The New York Convention applies to an
award made in any other State; it no longer requires that the parties be
subject to the jurisdiction of different Contracting States. A State
16. UN DOC El2704 and Corr. 1.
17. UN DOC El2822 and Add. 1-6; ElCONF.2613 and Add. 1 ; E/CONF.26/4.
18. The Summary Records of the New York Conference can be found in UN DOC
E/CONF.26/SR. 1-25. The amendments submitted by the Government delegations, the reports
of the Working Parties, and the text of the various Articles adopted at the Conference can be
found in UN DOC E/CONF.26/7 and L. 7-63. These documents are reproduced in G. Gaja, New
York Convention (Dobbs Ferry 1978-1980) Part 111.
Introduction
may, however, limit the applicability of the Convention to awards made

in other Contracting States only. This so-called first reservation, to be
found in Article I(3), has been used by two thirds of the Contracting
States.
A further improvement is that the burden of proof is shifted from
the party seeking enforcement to the party against whom the enforcement is sought. All the party seeking enforcement must do according to
Article IV is to supply the arbitration agreement and the award. It is
then up to the other party t o prove the existence of one of the grounds
for refusal limitatively set out in Article V(1). Article V(2) adds that
enforcement may be refused by a court on its own motion if the
subject matter of the difference is not capable of settlement by arbitration or if the award is contrary t o the public policy of that country.
Another improvement in comparison with the Geneva Convention is
the abolishment of the "double exequatur9'. The drafters of the New
York Convention effected this by providing that the award must be
"binding" on the parties, avoiding the more demanding term "final" as
used in the Geneva Convention.
Originally, it was envisaged at the New York Conference of 1958 t o
provide the invalidity of the arbitration agreement under the applicable
law as ground for refusal of the award only. It was the intention t o
leave the provisions concerning the formal validity of the arbitration
agreement and the referral by a court t o arbitration to a separate
Protocol. A similar division existed under the Geneva Treaties. Not
until the final days of the New York Conference was it realized that
such a separation could seriously hamper the effectiveness of the new
Convention. Consequently Article II was inserted in the Convention.
The Geneva Protocol of 1923 merely declared as valid an arbitration
agreement "relating t o existing or future differences". The Geneva
Convention of 1927 required, in addition, as one of the conditions for
enforcement of the award that the arbitration agreement be valid under
the law applicable thereto. Which form the arbitration agreement
should have was determined by that law. In comparison, the New York
Convention provides an internationally uniform rule for the form of the
arbitration agreement: the arbitration agreement must be in writing
which is defined as "an arbitral clause in a contract or an arbitration
agreement, signed by the parties or contained in an exchange of letters
or telegrams" (Art. II(2)).
The New York Convention does not provide for an overall regulation
of international commercial arbitration as do, for example, the
Washington Convention of 1965 l 9 and, to a lesser extent, the Euro-
19. See infra I-4.4.3a.
10
Introduction
pean Convention of 1961.20 Nor is the Convention a uniform law on

arbitration like, for instance, the European Uniform Law of 1966.
Rather, the New York Convention is in essence limited to two aspects of international commercial arbitration: the enforcement of those
arbitration agreements which come within its purview (Art. II(3)) and
the enforcement of foreign arbit.ra1 awards (Arts. I and III-VI).
20. See infra 1-4.4.2.

21. The Uniform Law is attached to the European Convention on Arbitration, done at
Strasbourg on January 20, 1966, European Treaty Series No. 56. The Convention has been
signed only by Austria and Belgium. Belgium has also deposited the instrument of ratification
on February 22, 1973, and has implemented the Uniform Law by a Law of July 4, 1972,
Monitelir belge of August 8, 1972.
Chapter I
Field of Application
The field of application of the New York Convention is delimited in
its title by the naming of "foreign arbitral awards". Article I of the
Convention states that a foreign award is an award made in the territory
of another State. This is, in fact, the definition of the scope of the Convention for the enforcement of the award. The various questions which
have arisen from this definition will be examined in the first Part of this
Chapter.
The Convention provides also for the enforcement of the arbitration
agreement (Art. II(3)). However, it does not state specifically which
arbitration agreements can be enforced under it. This question will be
considered in Part 2.
The Convention is silent on the question whether it has retroactive
effect. This question regarding the Convention's applicability will be
examined in Part 3.
Other multilateral and bilateral treaties, as well as domestic law, may
also form a basis for the enforcement of an agreement or award coming
within the purview of the New York Convention. To this end the
Convention contains in Article VII(1) a more-favourable-right-provision
and a compatibility provision. These provisions incidental t o the
Convention's applicability are the subject matter of the fourth and
last Part of this Chapter.
PART 1-1
I- 1.1
FOREIGN ARBITFRAL AWARD (ART. I)

Universa~tyand First Resewation
The title of the Convention refers t o the 66"rcognitionand enforcement of foreign arbitral awards". What is understood by a foreign
award can be found in Article I(1): an arbitral award made in the
territory of a State other than the State where the recognition and
enforcement of such award is sought. As no other condition is required,
the scope of the Convention is very broad: an award made in any
foreign country, whether in a Contracting State or not, falls under the
New York Convention. Such a definition of the field of application can
be said to be the modern tendency in international conventions.
Traditionally, international conventions were conceived to regulate
relations between Contracting States only. This was the case under the
Geneva Convention of 1927 which required that the award be made in
one of the Contracting States between persons who are subject t o their
jurisdiction. A more modern approach, as laid down in the first paragraph of Article I of the New York Convention, is to consider international conventions as the consensus on the state of international law public or private - in a certain field. Under this principle of universality, awards made in Contracting and non-Contracting States are treated
alike.
i
The principle of universality was, and still is, not generally accepted.
For this reason the drafters of the Convention also gave way to a
certain degree to the more traditional view. Accordingly, Article 1(3)
offers the possibility to the Contracting States to reserve the applicability of the Convention to "awards made only in the territory of another
Contracting State". Approximately two-thirds of the Contracting States
have used this reservation. l
An example of the universal applicability can be found in the enforcement under the Convention of an award made in the United Kingdom
before its adherence to the Convention in 1975 by a Court of Appeal in
Italy which country did not avail itself of any r e ~ e w a t i o n . ~
There are abundant examples of the application of the first reservation. A phrase which can frequently be found at the beginning of a
judgment is that since country X - the country where the enforcement
is sought - and country Y - the country where the award was made have adhered to the New York Convention, the Convention is appli1. See for the List of ratifications/accessions and resenrations, Annex B.
2. Corte di Appello of Florence, October 22, 1976, .A. Tradax Export v. Carapelli (Italy
no. 18).
Field o f Application
13
cable.3 Conversely, the first reservation has precluded the application of the New York Convention in a certain number of cases. A Court
of Appeal in F.R. Germany, which country has used the first reservation, refused to apply the Convention to an award made in the United
Kingdom at the time it had not adhered to the C ~ n v e n t i o n Similarly,
.~
the Federal Supreme Court of F.R. Germany did not apply the Conven- .
tion to an award made in Yugoslavia, a country which has still not
become a Party to the Convention.Vn both these cases the enforcement was granted on another basis. The outcome was less favourable
for the claimant seeking enforcement of an award made in the United
Kingdom at the time it was not yet a Contracting State before the
District Court of New York. Not only did the Court hold the Convention inapplicable, it also refused enforcemenL6
The use of the first reservation has less and less impact on the applicability of the New York Convention because of the increase in the
number of Contracting States. The principle of universality is therefore
gradually being revitalized. Nevertheless, when selecting a place of
arbitration, the parties should still take care that the country in question is a Contracting State. If the award is made in a non-Contracting
State, enforcement cannot take place on the basis of the New York
Convention in two-thirds of the Contracting States. This caution applies
especially to the Latin-American world where a relatively small number
of States are Party to the C o n v e n t i ~ n . ~
The first reservation is also called the reciprocity reservation. This must be understood in the sense that country A applies the Convention to awards made in coun-
3. See, e.g., Court of First Instance of Pisaeus, decision no. 1193 of 1968 (Greece 1-10. 1):
award made in F.R. Germany; Oberster Gerichtshof, November 17, 1965 (Austria no. 1):
award made in the Netherlands; Bundesgerichtshof, February 12, 1976 (F.R. Germ. no. 12):
award made in Romania; Obergericht of Basle, June 3, 1971 (Switz. no. 5): award made in the
Netherlands; Oberlandesgericht of Hamburg, July 27, 1978 (F.R. Germ. no. 18): award made in
the United Kingdom; U.S. District Court of New York, S.D., March 21,1977, Andros Compania Maritirna S.A. v. Andre 8c. Cie S.A. (U.S. no. 17): award made in the United ICingdom. The
Landgericht of Hamburg, April 24, 1979 (F .R. Germ. no. 21) erred when holding the Convention not applicable to an award made in Belgium on June 21, 1978, arguing that Belgium had
not become a Party to the Convention, whilst Belgium did ratify the Convention on August 18,
1975.
4. Oberlandesgericht of Hamburg, April 15, 1964 (F.R. Germ. no. 1).
5. Bundesgerichtshof, June 26, 1969. Die deutsche Rechtsprechung auf denz Gebiete des
internationalen Privatrechts (1970) no. 25 8.
6. U.S. District Court of New York, S.D., September 27, 1974, Splosna Plovba of Piran v.
Agrelak Steamship Corp. (US. no. 6). The refusal of enforcement was based on the fact that
the award had not been confirmed by the competent court in the United ICingdom. This decision must be considered out of line with previous decisions in which the courts in the United
States have never required a confirmation of the award by the foreign court. See for the leading
case on this point Gilbert v. Burnstine, 255 NY 348 (1931). See also infra 111-4.5.2.3 ("Merger
of Award into Judgment").
7. Chile, Columbia, Cuba, Ecuador, Mexico, and Trinidad and Tobago have adhered to the
Convention. The ratification by Peru is pending according to information given by government
14
t ~B
y because the latter country, by adhering to the Convention, has declared that
it will apply the Convention to awards made in country A.
The Russian delegate at the New York Conference of 1958 wished to make this
abundantly clear by pro osing the phrase "on the basis of reciprocity", which proposal found acceptance.' This addition must be deemed superfluous as the reciprocity in the above sense already ensues from the first reservation itself.
The express mention of reciprocity in the first reservation may even lead to confusion. The term reciprocity is commonly used in international law to denote that
in relations between two States each State gives the subjects of the other State certain privileges on the condition that its own subjects shall enjoy similar privileges in
the other State. However, since the condition of the party's nationality is excluded
as a condition for the Convention's applicability, as we will see in the following Section, the reciprocal treatment of subjects of States Party to the New Yorlc Convention is not to be talcen into account. Accordingly, the term reciprocity in the first
reservation is not to be understood in its ordinary sense in international law. An
example of the confusion between these two meanings of reciprocity can be found
in a decision of the District Court in Michigan to be discussed h e ~ e a f t e r . ~
In connection with the Convention's reciprocity provisions, mention should also
be made of Article XIV. That Article provides:
"A Contracting State shall not be entitled to avail itself of the present Convention against other States except t o the extent that it is itself bound to apply the
Convention."
This provision figured in the ECOSOC Draft Convention of l 955 as part of the
federal state clause (which has become Art. XI lo). The intention was to provide that if a constituent state or province of a Contracting State was not bound to
apply the Convention, other Contracting States were not bound t o apply the Convention to awards made in such constituent state or province. The New York Conference decided then to upgrade this provision to a general reciprocity clause in
view of the fact that no corresponding provisions were found in the commercial reservation of Article 1(3) (i.e., the second reservation) and the colonial clause (Art.
X) and that a general provision could remedy these defects."
The general reciprocity clause of Article XIV therefore renders the phrase "on
the basis of reciprocity" in the first reservation of Article 1(3) even more redundant, and it may be wondered why the phrase was not deleted when the general reciprocity clause was introduced.
Article XIV itself has not caused problems in practice. It has scarcely been
referred to by the courts and has not precluded enforcement of an award so far. As
far as the commercial reservation of Article 1(3) is concerned, Article XIV might be
invoked in a case where enforcment is sought in a Contracting State which has not
used the commercial reservation, in respect of an award relating to a non-commercial matter made in a Contracting State which has used the commercial reservation.
In such a case the court of the State where the enforcement is sought may be inclined t o refuse enforcement on the basis of lack of reciprocity, that is to say, on
the ground that the State in which the award was made would not enforce awards
made in the forum State relating to non-commercial matters.12
officials of this country. Instead, the Latin American countries have concluded the Panama
Convention of 1975, modelled after the New York Convention. See infra I-4.4.3~.
8. UN DOC ElCONF.26lSR.21.
9. See infra at n. 23.
10. UN DOC El2704 and Corr. 1, Art. X(2).
12. But see G. Gaja, "Problems of Applicability of International Conventions on Commer-
Another j~~triguing
question, whiclz has rlot been d e d t with by the courts so far,
is wh.ethes. the gel~eral.reciprocity clause of Article XlV app1i.e~also -I;o the issue
of xrbitrable subject matters. If, for example, a court hi a State refuses to enforce an award made in another State relathg to transfer of technology because i.t
considers this mntler as noi: capable of se.tt1elnen.t by wbitl.ation, may a couri: ii? mother State then reciprocate (or rather retaliate) by refuskg enforcement of awards
made
the first State relating to -the same sybject matter, although in the other
State such subject matter is considered as capable of settlement by arbitration?13
I- 1-2
Party's NatiganaEw Excluded
l4
The field of application of the Convention does not depend on the

nationality of the parties. Such a condition was contained in the
Geneva Convention of 1924 which required that the parties be subject
to the jurisdiction of different Contracting States.'"he
expression
"subject to the jurisdiction" of a State had caused uncertainty, as some
courts interpreted it as meaning nationality, whilst others considered it
as domicile.16 Moreover, as a consequence of the awakening principle
of universality, there was no longer any reason to make a Convention in
favour of subjects of a particular State only. Having omitted the condition, the New Uork Convention is broader and clearer in its scope than
its predecessor.
The abolishment of the nationality condition means, for example,
that a United States court will apply the Convention to an award made
in France between a United States corporation and Ethiopian party,
even though Ethiopia is not a Contracting State.17 The Geneva Convention would not have been applicable in this case, assuming the United
States had adhered to this Convention.
The Convention is also applicable to the situation where an award is
made abroad in an arbitration between parties of the same nationality.
This particular aspect has caused problems for the Italian courts.
cia1 Arbitration", in Commercial Arbitration - Essays in Memoriam Eugenio Minoli (Turin
1974) p. 191 at p. 215. In this publication various other problems concerning the extent to.
which States are bound by the Convention are dealt with.
13. See J. McMahon, "Implementation of the United Nations Convention on Foreign Arbitral Awards in the United States", 2 Journcal o f Maritime Law & Commerce (1970-1971) p. 735
at p. 759.
14. See for the meaning of "persons, whether physical or legal", infra 1114.1.2. ("State or
Public Body as Party to the Arbitration Agreement"). In the text the term "party's nationality"
is used as comprising the requirement that a party be subject to the jurisdiction of a State,
whether it be domicile, place of (habitual) residence, place of incorporation, or (principal)
place of business.
15. See infra n. 303.
16. See 13.-W. Greminger, Die Genfer A bkomnzen votz 1923 urzd 192 7 iiber die internationale
private SchiedsgerichPsbcarkeit (Winterthur 1957) p. 13.
17. U.S. Court of Appeals (5th Cir.), July 19, 1976, Imperial Ethiopian Government v .
Baruch Foster Corp. (U.S. no. 10).
16
Article 2 of the Italian Code of Civil Procedure provides namely:

"It talian jurisdiction (giurisdiz ione) may not be derogated by agreement in favour
of a foreign jurisdiction (giurisdizione) or arbitrators sitting abroad, unless it is in
respect of a case relating to obligations between foreigners, or an alien and a
citizen who neither resides nor is a domiciliary of the Republic, and the derogation is in the form of a written act."
On the basis of this Article, the Court of First Instance of Ravenna refused to
enforce an award made in London in an arbitration between two ltalians.lg The
Italian Supreme Court, however, reversed the decision on this point. It held that the
Convention as ius superveniens, supersedes Article 2 of the Italian Code of Civil
Procedure .2b
The Court of First Instance of Milan had apparently not taken notice of this
decision of its highest Court when shortly thereafter it refused, by virtue of Article
2 of the Italian Code of Civil Procedure, to enforce an award made in Hamburg between two ~talians.~'The Court of Appeal of Milan was needed to correct this
"oversight".22 In subsequent decisions the Italian courts have affirmed the decision
of the Italian Supreme Court, and this issue now seems to be settled.
In other countries the abolishment of the nationality condition

has not always been correctly applied either, although it has not led to
holding the Convention inapplicable.
For example, the District Court in Michigan stated, in respect of an award made
in Switzerland in an arbitration between a United States corporation and a company from West Germany:
"'Nor does the Court find any problem of lack of reciprocity that would preclude application of the convention. Note 10 to that convention (see U.S.C.A.
par. 201, Cum.1976, p. 58) reciting the German declaration states that '. . . The
Federal Republic of Germany will apply the Convention only to the recognition
and enforcement of awards made in the territory of another Contracting State'
(emphasis added by the Court)
West Germany, Switzerland and the United States are all Contracting States and
as the arbitration and award took place in Switzerland, it would be recognized
by West Gemany and also enforceable in the United
The District Court apparently refers to F.R. Germany because of the German
nationality of one of the parties involved. However, as the Convention excludes nationality as a requirement for its applicability, the Court missed the mark by
inquiring whether F.R. Germany would also have enforced the award. The United
18. See generally for Art. 2 of the Italian CCPr, G. Gaja, La deroga alla giurisdizione italiana
(Milan 1971). See also G, Rycchia, "An Italian Approach to International Conventions on Arbitration", in Commercial Arbitration - Essays in Memoriam Eugenio Minoli (Turin 1974) p. 393
at p. 406. Both authors deal with the term giurisdizione which has a somewhat different meaning
than jurisdiction.
19. Tribunale of Ravenna, April 15, 1970, S.p.A. Paulo Agnesi v. Augusto Miserocchi
(Italy no. 3).
20. Corte di Cassazione (Sez. Un.), December 13, 1971, no. 3620, Augusto Miserocchi v.
S.p.A. Paulo Agnesi (Italy no. 5).
21. Tribunale of Milan, December 11, 1972, Camillo v. CIPRA (Italy no. 6).
22. Corte di Appello of Milan, December 13, 1974, CIPRA v . Camillo, (Italy no. 12).
23. U.S. District Court, E.D. Michigan (South. Div.), August 9 , 1976, Audi-NSU Auto Union
A.G. v. Overseas Motors Inc. (U.S. no. 11).
1'7
States having used the first reservation of Article I(3), it only mattered that the
award was made in another Contracting State, namely Switzerland. As explained at
the end of the preceding Section, it is in this limited sense of territorial applicability
that the reciprocity underlying the first reservation is to be understood.
The law implementing the New York Convention in the United

States introduces to a certain extent the nationality condition for the
field of application as it declares in its Section 202:
"An agreement or award . . . which is entirely between citzens o f the United
States shall be deemed not t o fall under the Convention unless that relationship
involves property abroad, envisages performance or enforcement abroad, or has
some other reasonable relation with one or more foreign States" (emphasis
added).
Section 202 excludes an award made in a foreign country between

two United States citizens in respect of a domestic (U.S.) matter. As
the Convention does not impose the nationality of the parties as a
requirement for its applicability nor does it limit its scope to international commerce (see below), Section 202 must, in principle, be
deemed to be incompatible with the New York Convention on this
point. As will be explained in the following Section, reasons of public
policy must be deemed not to play a role in this case.
I- 1.3
No Internationality Required
The definition of a foreign award as "an award made in the territory

of another (Contracting) State9' has as consequence that in theory the
Convention also applies t o an award made in a foreign country in
respect of a matter which is purely domestic for the country where the
award was made. Thus, in Switzerland the enforcement of an award
made in Paris in a dispute between a merchant from Bordeaux and a
retailer in Nice concerning the sale of bottles of French wine will
fall under the New York Convention. Although the Convention is
primarily intended to facilitate arbitration in international commerce, it
does not contain any indication that the underlying transaction should
be international. An explanation of this absence is that, originally, the
title of the ICC Draft Convention of 1953 referred to "international
awards". As this expression was based on the concept of '6a-national"
awards - which concept was rejected in the subsequent ECOSOC
Draft of 1955 and probably also at the New York Conference of 1958
- it was thought advisable to change the title to "foreign" awards.
Moreover, it had proven difficult t o find an appropriate definition of
international commerce. The delegates therefore took it for granted
that the Convention would also apply to foreign awards concerning
domestic transactions.
It scarcely occurs in practice, and so far it has not occurred in any of
the reported cases, that enforcement of an award concerning a domestic
affair was sought abroad. However, one may conceive of the situation
where the losing party has assets abroad, for example, a bank account.
In principle there would not seem to exist an objection to enforcement
of such awards under the Convention. It can be considered as .a harmless "side-effect" of the broad definition of the scope of the Convention.
The possibility under the Convention for two parties of the same
nationality to arbitrate abroad on a domestic transaction could be used
in cases where their own arbitration law is unfavourable. For instance,
two English parties may wish to arbitrate in Paris on a domestic (English) transaction in order to avoid the supervision of English courts
over the arbitration." For the enforcement in the United Kingdom, the
award made in France would fall under the Convention thus excluding any form of judicial review of the merits of the arbitral decision.
The possibility could also be used in those cases where the country of
the parties does not have arbitration institutions for an adequate
administration of the arbitration.
It may be aslted whether an award made in these circumstances can
be refused enforcement in the country of the parties by virtue of the
public policy provision of Article V(2) of the Convention. We already
touched upon this problem in the preceding Section in connection
with Section 202 of the law implementing the Convention in the
United States. This Section declares expressly that a foreign award
made between two United States citizens in respect of a domestic
(U.S.) transaction will not fall under the New York C ~ n v e n t i o n .The
~~
New York Convention does not, in my opinion, imply such a reserve.
As noted before, the Convention conditions its scope neither upon the
nationality of the parties nor upon the international nature of the
transaction involved. The exclusion of these requirements cannot be
re-introduced through the backdoor by use of public policy. By adhering to the Convention, a State therefore assumes a limitation on its
public policy in regard to its own subjects.
24. The much criticized English Special Case procedure under which a question of fact or
law could be referred to the decision of the High Court has been abolished by the English Arbitration Act 1979. It is replaced by a right of appeal on a question of law to the High Court,
which right cannot be contracted out before the dispute has arisen in the case of domestic
transactions and a great number of i~lternationaltransactions. See C. Schmitthoff, "The United
Kingdom Arbitration Act 1979", in Yearbook Vol. V (1980) p. 231; R. Clark and D. Lange,
"Recent Changes in English Arbitration Practice Widen Opportunities for More Effective International Arbitrations", 35 Business Lawyer (1980) p. 1621; D. Lange, "Reform des englischen
Schiedsgerichtsrechts", 26 Reclzt der internationalen Wirtsckaft (1980) p. 616.
25. The reasonable relationship criterion of Sect. 202 is taken from Sect 1-105(1) of the
U.S. Uniform Commercial Code. See Senate Rep. no. 91-702 p. 6. Under that Section the
parties may designate the law of another State or of a foreign country to govern their transac-
19
This question must be distinguished from the question where parties

of the same nationality arbitrated abroad with the purpose of evading,
for example, mandatory tax laws. The enforcement of an award made
in such a case will fall under the New York Convention, but, unlike the
foregoing case, may, in my opinion, be refused by virtue of Article
V(2)(b). This case is not different from the case where parties of
different nationality have arbitrated abroad and the award violates
mandatory tax laws of the country where enforcement is sought.
1- 1.4
Conwnkion Not Appficable in Country of Origin
I- 1.4.1
Enforcement
The Convention is limited to the recognition and enforcement of a

foreign award. It does not apply in the country in which, or under the
law of which, that award was made (the "country of origin9'). A United
States Court of Appeals correctly did not apply the New York Convention to an award made in New York between a United States corporation and a Norwegian shipowner involving an international transact ion. 26
The non-applicability of the Convention to the enforcement of the
award in the country of origin - in which country the award is a
domestic award - does not matter so much since almost all countries
provide for relatively easy proceedings for the enforcement of domestic
awards.
It should, however, already be noted that, theoretically, the Convention may be applicable to the enforcement of an award in the country
where it is made; according to the second criterion of Article I(1), the
Convention "shall also apply to arbitral awards not considered as
domestic awards in the State where their recognition and enforcement
are sought". As it will be explained later, the second criterion extends
the field of application of the Convention to the enforcement in
country A of those awards which are rendered in that country under
the arbitration law of country B. The second criterion, however, has
not been applied in any of the reported cases.27
1- 1.4-2 Setting aside

According to Article V(l)(e) of the Convention, enforcement of an
award may be refused if the party against whom the enforcement of the
tion only if the transaction bears a reasonable relation with the State or country.
26. U.S. Court of Appeals (2nd Cir.), May 24, 1974, National Metal Converters Inc. v. I/
Stavborg (U.S. no. 2).
27. See i n f r ~11-1.5 ("Awards Not Considered as Domestic").
20
award is sought can prove that the award has been set aside in the
country in which, or under the law of which, that award was made.
This provision has a corollary provision in Article VI according to
which, in the case of application for a setting aside of the award in the
country of origin, the court before which enforcement of the award is
sought under the Convention may, if it thinks it proper, adjourn the
decision on enforcement. These provisions affirm the well-established
principle of current international commercial arbitration that the court
of the country of origin is exclusively competent to decide on the
setting aside of the award.
We will examine the Convention's provisions relating to setting aside
in more detail at a later stage.28 For the present question concerning
the Convention's field of application in regard of the arbitral award it
suffices t o observe that the Convention is not applicable in "ce action
for setting aside the award. This has been unanimously affirmed by the
courts.
An illustrative example is the Indian and French court decisions in the Saint-Gobain
v. FCIE-case." The French company Saint-Gobain had lost the arbitration conducted under the Arbitration Rules of the International Chamber of Commerce.
Thereupon, two procedures were started. The French company applied for a declaration that the award had no legal effect - which is tantamount to setting aside before the High Court of Delhi; the Indian corporation FCIL requested the enforcement of the award before the President of the Court of First Instance of Paris. Both
courts demonstrated a good understanding of the Convention.
Before the High court' of Delhi, the Indian corporation FCIL opposed the application of Saint-Gobain by asserting that the award was not made in India but in
Paris, and that therefore the Indian Arbitration Act of 1961, which implements the
New York Convention in India, was applicable, which Act does not provide for the'
setting aside of the award. The High Court overruled the objection of FCIL. It
found that the award had been made in India and hence Indian domestic arbitration
law was applicable. Referring expressly to Article V(l)(e) of the Convention, the
Court held that the Convention was not applicable and that it was competent to decide on the setting aside of the award on the basis of the Indian Arbitration Act of
1940 which applies to domestic arbitration. The High Court upheld the validity of
the award under the latter law.
The French Judge also found that the award was made in India. He therefore
held that the enforcement of the award was governed by the New York Convention. The Judge granted the enforcement.
Another example is a case in which the Court of First Instance in Hamburg had
set aside an award made in the same city on the ground that the arbitration agreement did not corn ly with the written form as required by Article II(2) of the New
York Convention? The Court of Appeal of Hamburg rightly corrected the Court
28. See infra 111-4.5.3.
29. President of Tribunal de grande instance of Paris, May 15, 1970; Cour d'appel of Paris
(1st Chamber), May 10, 1971 (France no. 1); High Court of Delhi, August 28, 1970, appeal
rejected by the Supreme Court, November 17, 1970, Compagnie de Saint-Gobain Bont-AMousson v. The Fertilizer Corporation of India Ltd. (FCIL) (India no. 2).
30. Landgericht of Hamburg, March 16, 1977 (F.R. Germ. no. 13).
21
of First Instance on this point, by holding that the Convention was not applicable
in this case, the award having been made in F.R. ~ e r m a n y . ~ '
A further example is the Court of Appeal of Cologne which refused enforcement
of an award, made in Denmark, under the onv vent ion.^^ The German respondent,
who had been blacltlisted by the Copenhagen Arbitration Committee, had not only
requested the refusal of the enforcement but also the setting aside of the award.
The Court of Appeal observed that the blacklisting gave the German respondent .a
justified interest in his request. However, the Court held that a foreign award can
only be refused enforcement, but that it cannot be set aside; the latter would be an
inpermissible interference with foreign arbitration.
The decision of the Court of Appeal of Paris in the famous GNMTC v.
Gotaverken-case is worth mentioning at this juncture.33 The case concerned an
award made between the Swedish shipbuilder Gotaverken and the Libyan State
enterprise GNMTC. The arbitration had been conducted under the Arbitration
Rules of the Internationd Chamber of Commerce and the award indicated Paris as
place of rendition.% The arbitral decision was that GNMTC had to take delivery of
three vessels built by Gotaverken and t o pay the latter the last instalment of the
purchase price, being US $ 30 million. GNMTC initiated before the Court of Appeal
of Paris an action to have the award set aside (appel en nullit&). The Court of k p peal dismissed the action on the ground that the award was not an award governed
by French arbitration law. As far as the New York Convention was concerned, the
Court of Appeal held this Convention inapplicable as follows:
"That the provisions of the New York Convention, destined to facilitate the recognition and enforcement of arbitral awards, are not applicable if the request
does not aim at the enforcement of an award rendered in an international arbitration;
That no decisive argument can be drawn from the Convention for holding that
the procedural law of the country where the arbitration takes place must be applied subsidiarily;
That, in addition, it must be recabled that France has used the reservation contained in Article I(3) of the New York Convention by declaring that it will apply
the Convention, on the basis of reciprocity, t o the recognition and enforcement
of awards made only in the territory of another Contracting State;"
The main reason for which the Court held the New York Convention inapplicable
can be found in the first paragraph of the quoted part of the decision: The Convention concerns only the enforcement of foreign arbitral awards 35 ; i t is inapplicable
to an action for setting aside o n which the Court had t o decide. On this point the
Court was undoubtedly c o r r e ~ t . ~
31. Oberlandesgericht of Hamburg, September 22, 1978 (F.R. Germ. no. 20).
32. Oberlandesgericht of Cologne, June 10,1976 (F.R. Germ. no. 14).
33. Cour d'appel (1st Chamber) of Paris, February 21, 1980 (France no. 3).
34. ICC Award made in cases nos. 2977, 2978 and 3033 in 1978, published in J. Wetter,
The International Arbitral Process: Public and Private (Dobbs Ferry 1979) Vol. I1 p. 179; an
extensive extract of the award is published in Yearbook Vol. VI (1981) p. 133.
35. The Court mentions "the enforcement of an award rendered in an international arbitration". This should, in my opinion, have read "the enforcement of an award rendered in another
Contracting State" or "the enforcement of an award which is not considered as domestic".
36. Fouchard in his comment on the Court of Appeal's decision (Journal du Droit International (1980) p. 669 at p. 673) is, in my opinion, not correct when he argues that the Convention is also applicable to means of recourse against an award. The author overlooks the fact
that according to Art. 1(1) of the Convention, the Convention applies only to "the recognition
and enforcement of arbitral awards made in the territory of a State other than the State where
22
The decision is mentioned in this Sub-section because of the Court's reasoning in

respect of the Convention's inappliability to the action for setting aside the award.
In the two other paragraphs, quoted for completeness' sake, the Court expresses
some additional - and, in my opinion, rather questionable - views regarding the
Convention which will be examined at a later stage.37
It may be observed that the fact that the Convention does not apply in
the action for setting aside the award in the country of origin, may, in
theory, undermine the limitative character of the grounds for refusal of
enforcement under the Convention and possibly also the uniform rule
of the written form requirement of Article 11(2) of the Convention.
Thus, in the country of origin a losing party may obtain a setting aside
on a ground not mentioned in Article V of the Convention. He can
subsequently resist enforcement on ground e of Article V(1) that the
award has been set aside in the country of origin. This has the effect
that the grounds for refusal of enforcement of the Convention may
indirectly be extended by the grounds for setting aside contained in the
arbitration law of the country of origin. Although this may be considered as a defect of the Convention, in practice it has not led to
diffic~lties.~"
I- 1.5
Awards Not Considered as Domestic
In the preceding Sections we have examined the definition of a

foreign award in Article I(1) of the Convention as being an award made
in the territory of another State. Article I(1 ), however, also contains a
second definition of a foreign award: "[The Convention] shall also
apply to arbitral awards not considered as domestic awards in the State
where their recognition and enforcement are sought." In order to
distinguish between the two definitions they will be called respectively
the first and the second criterion for the field of application of the
Convention.
As the outset it must be said that only the first criterion - an award
made in another (Contracting) State - plays a role in practice. The
second criterion - an award not considered as domestic: - has remained
a dead letter, and as explained below, should continue to do so. Nevertheless, this is a purposeful detour as the second criterion should not be
the recognition and enforcement of such awards are sought". See P. Sanders, "Consolidated
Commentary Vols. V and VI", in Yearbook Vol. VI (1981) p. 202 at p. 204.
3 7. See infra I- 1.5 ("Awards Not Considered as Domestic"), and 1-1.6 ("A-national Award").
38. See infra 111-4.5.3.4 ("Is the Setting Aside of the Award in the Country of Origin a
Necessary Ground for Refusal of Enforcement?").
23
g o r e d : it should be made clear that its non-application enhances a

miform application of the Convention.
How did the second criterion come in the Convention? For the
.nswer to this question we have to go back t o the ECOSOC Draft of
955.39 This Draft was based on the principle that an award is governed
)y the arbitration law of the country where the award is made. Certain
Xvil Law countries, like France and F.R. Germany, however, allow
,arties to agree that the award is to be governed by an arbitration law
lifferent from the law of the country in which the award is to be
nade. Thus if the parties have provided that an award is to be made in
?.R. Germany under French arbitration law, a German court may
Segard such award as foreign and a French court may hold it domestic.
The delegates from France and F.R. Germany succeeded in advocating this concept at the New York Conference of 1958.40 The definition
~f the ECOSOC Draft of l 955 that the Convention was to apply to
arbitral awards made in another State remained in the Convention, but
it was decided t o add as a second criterion that the Convention was also
to apply t o awards not considered as domestic awards.
In view of this extension of the field of application, the text of the
Convention was amended at two other places when the final text of the
Convention was adopted at the New York Conference." In the first
place, the text provided that enforcement of the award could be
refused if the arbitration agreement were invalid "under the law applicable t o it9'. This was amended to the effect that it reads now: "under
the law t o which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was made"
(Art., V(l)(a))." In the second place, the text provided that enforcement of the award could be refused if the award had been set aside "in
the country in which it was made". This was amended to the effect that
it reads now: "in the country in which, or under the law of which, that
award was made9' (Art. V( l)(e)).
The chosen formula for the second criterion, however, implies two
limitations. The first limitation is that it only concerns awards made in
the country where the enforcement is sought. The second limitation is
that a court may apply the second criterion at its discretion. The reason
for these two limitations is that the second criterion was added as a
compromise. The idea was that if certain countries such as France and
F.W. Germany wish to apply the Convention to awards governed by an
39. UN DOC El2704 and Corr. 1; see supra Introduction at n. 16.

40. See Report of Working Party no. 1 concerning Article 1,paragraph 1 (UN DOC EICONF.
26lL.42) and discussion at the Sixteenth Meeting of the Conference (UN DOC ElCONF.261
SR.16).
41. UIV DOC E/CONF.26/SR.23.
42. See for the legislative history, infra 111-4.1.3.2.
arbitration law as chosen by the parties other than that of the country
where made, it is their affair, but the countries which do not share this
view should not be obliged t o hold the Convention applicable to such
awards. This compromise may have enhanced the conclusion of the
Convention, but on paper it has made its field of application highly
complex. An examination of both limitations may make this clear.
1-1.5.2
First limitation: only cewrds made in the cozdnt.y where the

enforcement is sought
The first limitation that the second criterion applies only to an award
made in the country where the enforcement is sought can be found in
the text of the Convention: ""Ishall also apply t o . . ." It is intended as
an addition to the first criterion thereby widening the scope of the
Convention.
The fact that the second criterion was conceived as an addition to the first criterion
by the drafters of the Convention is clearly indicated in the Summary Records of
the New York Conference: The Belgian delegate had proposed l o amend the second
criterion to the effect that it read: "Nevertheless, [the Convention] shall not apply
to arbitral awards considered as domestic awards in the State where their recognition and enforcement are sought." To this proposal the Itabian delegate, who
formed part of Working Party no. 1, which prepared the text of the second
criterion, replied that it was even more restrictive than the ECOSOC Draft "since it
excluded even awards made abroad when they were regarded as domestic by the
country in which enforcement was sought. Far from reflecting the Working Party's
intentions, the Belgian amendment ran directly counter t o them, and he would
therefore be unable to support it." Thereupon the Belgian delegate withdrew his
proposed
The first criterion applies therefore in all cases where the award is
made in another (Contracting) State, wha'tever may be the applicable
arbitration law. The following example may clarify this.
The parties have agreed to arbitrate in country A under the arbitration law of country B. If country A allows to arbitrate under a foreign
arbitration law, it will consider the award resulting from such arbitration as non-domestic. Thus, if the enforcement of the award is sought
in country A, the Convention may be applicable by virtue of the second
criterion. If the Convention had not contained the second criterion, it
would not have been applicable as, according to the first criterion, it
applies only to an award made in another State. In this sense the second
criterion widens the scope of the Convention.
On the other hand, the second criterion does not narrow the scope of
the Convention. As the second criterion is an addition t o the first
25
criterion, both criteria cannot be used alternatively. Thus, if in the same

example country B allows to arbitrate in another country - in our
example country A - under its arbitration law, it will consider the
award as domestic. Nevertheless, if the enforcement of the award made
in country A, is sought in country B, the Convention will be applicable
in cougtry B in virtue of the first criterion. The second criterion is not
applicable to this case. It applies only in those cases where the enforcement of an award is sought in the country where made and the award is
governed by the arbitration of law of another country. A reasoning a
contrario on the basis of the second criterion alone that in the country
under whose law the award is made (country B) the Convention is not
applicable because the award is considered as domestic, is precluded.
It should be pointed out that this consequence does not parallel the
consequence of the definition of the scope of the Convention in the
first criterion, As explained in I- 1.4.1, the fact that the Convention
applies to the enforcement of an award made in another country,
precludes its applicability to the enforcement of the same award in the
country where it is made. The second criterion can be regarded as an
exception to this rule. However, one would have expected that if the
award is made under the law of another country, the Convention would
not be applicable to the enforcement of such award in that country.
This mirror situation would have been logical. However, the formula
used for the second criterion has broken down this logic.
Another consequence of the foregoing is also worth mentioning. Eilte the country
under whose law the award is made, third countries are obliged to apply the Convention by virtue of the first criterion. Thus an award made in country A under the
law of country B, will fall under the Convention if its enforcement is sought in
country C, D, etc. However, as it can be seen in the ECOSOC Draft of 1955, the
first criterion was based on the principle that the award is governed by the arbitration law of the country where it is made. It may now happen that the first criterion
applies to an award which is not governed by the law of the place of rendition. The
courts in country C, D, etc. must recognize the choice of a different arbitration law
by the parties, not because of the second criterion of the field of application - they
apply the first criterion - but because, as already mentioned, of what is provided in
Article V(l)(a) and (e): "the law to which t,he parties have subjected" the arbitration agreement, and "in the country in which, or under the law o f which" the
award is made.
1- 1.5.3 Second limitation: second criterion is discretionary

The second criterion will be applicable only if a court "considers9'an
award as non-domestic. It means that a court has the discretion whether
or not to apply the second criterion, and hence the Convention, to an
award made within its own territory. The discretionary power is the
result of the second criterion being a compromise.
The discretion of a court whether or not to consider an award made
within its own territory as domestic inaltes the faculty offered by the
Conven~ionto designate an arbitration law different from the country
where the award is to be made, a hazardous undertaking,
When envisaging arbitration in country A under the arbitration law of
country B, the parties should first ascertain whether the courts of
country A allow such a procedure. But the inquiry should not stop
here. They should also ascertain whether the courts of country B will
recognize the possibility to arbitrate in another country - in our
example country A - under its arbitration law.
It is well advised to check the attitude of the courts of both countries. This may be important for the purposes of knowing the courtof
which country is competent to render assistance In the arbitration, for
example for the appointment of the arbitrators, and to exercise the
control over the regularity of the arbitration and award, ordinarily
carried out in an action for the setting aside of the award.
If country A does not recognize the faculty t o designate a foreign
arbitration law, it will hold the award made within its territory to be
domestic. It will then also hold itself competent to entertain an action
for the setting aside of the award. But if at the same time country B
allows to arbitrate abroad under its arbitration law, it will also consider
the award as domestic and may hold itself equally competent to entertain an action for the setting aside of the award. This may result in the
undesirable situation where the setting aside of the award can be
requested in two countries. The reverse situation may be equally
undesirable: if country A recognizes the faculty, but country B does
not allow to arbitrate abroad under its arbitration law, the setting aside
cannot be sought in either country.
In other countries (C, D, etc.) the award made in country A will not
be a problem. These countries can only deal with the enforcement of
the award. As mentioned above, they have t o apply the Convention by
virtue of the first criterion, the award being made in another State.
It may be added that the use of the first reservation of Article I(3)
according to which the Convention will be applied to arbitral awards
made in other Contracting States only, does, in my opinion, not preclude the application of the second criterion. In this case, the first
reservation is to be applied by analogy, in the sense that the arbitration
law chosen by the parties must be the arbitration law of a Contracting
State.
In the aforementioned decision of the Court of Agped of Paris in the GNMTC v.
GGtaverken-case, the Court- seems to adhere to the contray view.w It may be re44. Cour d'appel (1st Chamber) of Paris, February 2 1,1980 (France no. 3). The part of the
Court's opinion concerning the New York Convention is quoted supra at n. 33.
field of Application
27
c d e d that the case concerned the application of the Libyan State enterprise
GNTMC for the setting aside of an award rendered in Paris under the Arbitration
Rules of the International Chamber of Commerce. The Court dismissed the application on the ground that the award was not an award governed by French arbitration
law. The Court held the New York Convention inapplicable as the Convention is
only concerned with enforcement of foreign arbitral awards.
As an additional argument for holding the Convention inapplicable, the Court referred to the fact that France has used the first reservation of Article I(3) of the
Convention. Apparently the Court thought that the Convention might have been
applicable on the basis of the second criterion because earlier in its opinion it had
qualified the award as non-domestic. The Court then found an argument in the text
of the Convention to preclude a possible applicability of the second criterion on the
basis of the first reservation.
However, the use of the first reservation must be deemed not to limit the Convention's field of application to the first criterion only. If this were the case, it is
unexplainable why France and F.R. Germany who introduced the second criterion
into the Convention, have used the first reservation. Rather, the reciprocity idea
underlying the first reservation indicates an interpretation by analogy. The idea is
that a State wishes to enforce awards made in another Contracting States only because these other States have expressed theis willingness to enforce awards made in
the own State by adhering to the Convention. The idea can be applied mutatis mutandis to awards rendered in the own State under the arbitration law of another
Contracting
Moreover, the additional argument of the Court of Appeal was superfluous. Even
if the Court had found that the first reservation does not preclude the application
of the second criterion, then the Convention would still have been inapplicable as
the case before it concerned m action for setting aside the award and not its enforcement.
1- 1.5.4
The German implementing Law
The Law implementing the Convention in F.R. Germany 46 is

probably the only law which deals to a certain degree with the second
criterion. Section 2 of this Law provides:
"(1) If an arbitral award falling under the Convention is made in another Contracting State under German procedural law, then the request for the setting
aside of this award can be made in F.R.' Germany. The setting aside is governed
by Sections 104 1, 1043, 1045( 1) and 1046 of the Code of Civil Procedure.
(2) If the request for enforcement of an award within the meaning of paragraph
1 is refused by virtue of Article V of the Convention, then the award shall be set
aside at the same time in case one of the grounds for setting aside set forth in
Section 1041 of the Code of Civil Procedure is present."
This Section only contemplates an award made in another country

under German arbitration law. (In the example above the other country
would be country A and F.R. Germany country B). It confirms the
45. See Fouchard in his comment on the Court's opinion in Journal du Droit International
(1980) p. 669 at p. 673.
46. See for references, Annex C.
28
interpretation advanced in 1-1.5.2 above that the Convention is applicable to the enforcement of an award rendered in another country
under the law of the country in which the enforcement is sought. The
Convention is applicable t o the enforcement of such award, notwithstanding the fact that according to the Law the award is to be considered as domestic. The latter aspect can be inferred from the provision
that a German court will be competent to set aside such award.
Section 2 is somewhat incomplete as it does not expressly regulate
the situation where the award is made in F.R. Germany under a foreign
arbitration law. It could have provided that in such a case no action for
setting aside the award would be possible before the German courts.
Probably, the German legislator deemed such a provision superfluous as
it is the generally accepted view in Germany.47
Section 2 of the German Law was applied by a German Court of
Appeal when it set aside an award made in Romania. This decision was
rightly reversed by the German Federal Supreme Court holding that
Section 2 was not applicable because the award was rendered in
Romania under Romanian arbitration laws48
I
I - 1.5.5
Dead letter
<
No court so far has held the Convention applicable to the enforcement of an award governed by a foreign arbitration law and made
within its own territory. In none of the cases reported in respect of the
Convention does it appear that the parties have expressly designated a
foreign arbitration law. This is not surprising in view of the complications and uncertainties connected with this faculty as offered by the
Convention. It is, therefore, justified to state that the second criterion
has turned out t o be a dead letter. It is submitted that it should remain
so because the first criterion is much more reliable for determining the
applicability of the Convention. It is here where practice has maintained uniformity in the application of the New York Convention.
1-1.6
""A-national" Award
Until now we have seen two types of awards which can be enforced
under the Convention. The first type concerns the vast majority of
cases and falls under the first criterion of Article I(1): the award made
47. K.H. Schwab, Schiedsgerichtsbarlceit,3d ed. (Munich 1979) p. 320.
48. Bundesgerichtshof, February 12, 1976 (F.R. Germ. no. 12). See also Landgericht of
Munich, June 20, 1978 (F.R. Germ. no. 19), in which the Court observed: "As the Dutch
a~bitraltribunal has. not applied German procedural law ... Sect. 2 of the implementing Act ...
is not applicable."
29
in the territory of another State under the arbitration law of that State.
The second type, falling under the second criterion of Article I(1), is
the rather theoretical case of an award which is not considered as a
domestic award because, although it is rendered in the State in which
the enforcement is sought, it is made under the arbitration law of
another State.
Since the beginning of the 50's there has been a tendency, in particular in French, German and Swiss legal thinking, t o admit a third type
of award, the so-called "a-national" award. This poses the question
whether such an award can be recognized and enforced under the New
York Convention. As it will be explained in this Section, the answer t o
this question is, in my opinion, negative.
First, the concept of an "a-national" award will be examined
(1-1.6.1). Thereafter, the reasons will be given why such award is not
contemplated by the Convention (1-1.6.2). Thirdly, it will be investigated how an allegedly '6a-nationa199award can be refused enforcement
under the Convention 1-1.6.3). Finally, the decisions of the Dutch
Supreme Court in the SEEE v. Yugoslavia-case will be discussed, as
they are concerned with the question of the "a-national" award and the
New York Convention (I- 1.6.4).
1- 1.6.1
Concept of the 'ha-national"award
The concept of an "a-national" award - sometimes also called a

"s~pranational~~,
"transnational", "expatriate", or "floating" award consists in essence of an award resulting from an arbitration which is
detached from the ambit of a national arbitration law by means of an
agreement of the parties." The authors have also invented a special
term for such an arbitration: they call it "de-nationalized" arbitration.
The concept of "de-nationalized" arbitration has certain advantages.
The pa'rties may arrange the arbitration themselves, or authorize the arbitrator t o do so,.as they deem fit, without having regard to national arbitration laws which may contain domestically influenced particularities. The arbitration can take place anywhere as the place of arbitration
would not entail the application of the arbitration law of the country
concerned. The exclusion of the applicability of a national arbitration
law may also have the effect that it excludes, in principle, the supervision or interference of fthe national courts over or with the arbitration. This type of arbitration may be especially appropriate for the
settlement of disputes between States and foreign enterprises, as foreign
enterprises do not like to arbitrate under the arbitration law of the
49. See, generally, Ph. Fouchard, L'arbitrage commercial international (Paris 1965) no.
508; see also P. Sanders, "Trends in the Field of International Commercial Arbitration",
Recueil des Cours, 1975-Vol. 11, p. 207 at p. 270 and references given.
State concerned, and States do not like t o be subjected to the (procedural) law and courts of other States.
The legal status of "de-nationalized" arbitration is, however, uncertain. It may encounter difficulties if the agreement on the composition
of the arbitral tribunal and on the arbitral procedure does not regulate
in sufficient detail the various aspects of these matters. These gaps
cannot be filled by falling back on a national arbitration law because
the parties have excluded its applicability.
Furtliermore, arbitration, international as it may be, needs at least a
supporting judicial authority (autoritk d 'appui), which is, failing an international authority competent in this respect, necessarily a national
court. For example, the assistance of a national court may be needed
for the appointment, replacement or challenge of an arbitrator. It is a
generally accepted principle of the international division of judicial
competence that the court of the country under the arbitration law of
which the arbitration is to talte, is taking, or took place, is the competent judicial authority in relation to arbitration. If the applicability of
an arbitration law is excluded, it will be difficult to find such court.
This problem will be even more compelling for the setting aside of an
award resulting from a "de-nationalized" arbitration. Before the court
~ ~ be
of which country should the setting aside of an " a - n a t i ~ n a laward
initiated? Yet, if in a "de-nationalized" arbitration, serious procedural
violations have been committed, the aggrieved party must have the right
to have such award set aside.
As far as the enforcement of an "a-national" award is concerned, the
courts of only a few countries are willing to recognize an award as "anational" and to enforce it as such.
In general, only a few countries, amongst which probably France, are
willing to recognize "de-nationalized" arbitration. In most countries the
concept of "de-nationalized" arbitration is unltnown. In these countries
the courts consider that arbitration is governed by the arbitration lam
of the country in which, or, rather theoretically, under the law of
which, the arbitration is to talte, is taking, or took place.
The Court of Appeal of Paris dismissed in the already mentioned GNMTC v. Gotaverken-case the application for setting aside the award on the ground that the award
was not governed by French arbitration law." It reached this conclusion on the
basis of the reasoning that (a) Article 11 of the Arbitration Rules of the Arbitration
Rules of the International Chamber of Commerce of 1975, under which the arbitration had been conducted, excludes the applicability of a national arbitration law,
(b) neither the parties nor the arbitrators had designated French arbitration law as
the law applicable to the arbitration, (c) Paris was chosen as place of arbitration
merely because of its neutrality.
50. Cour d'appel (1st Chamber) of Paris, February 2 1,1980 (France no. 3); see also supra at
n. 33 andinfra at n. 54.
The Court's interpretation of Article 11 of the ICC Arbitration Rules seems to
indicate that the Court is of the opinion that arbitration was 66"d-nationalized".51
As it will be explained presently, it is submitted that this interpretation is erroneous. The decision is mentioned here in order to demonstrate to what unsatisfactory
results the concept of ""d-nationalized9' arbitration may lead. Assuming that
GNMTC has a justified interest in the setting aside of the award, where could it now
initiate such action? There would be no other law than Fren.ch arbitration law
which could have governed this arbitration as the arbitration took place in Paris and
the award was made in that city. In my opinion, the decision of the Court of
Appeal of Paris is tantamount to a denial of justice.
A "de-nationalized" arbitration must be clearly distinguished from

an arbitration which is "internationalized" within the limits imposed by
a national arbitration law. Arbitration Rules of an arbitral institution
specialized in in-ternational commercial arbitration may well malte
allowance for the international aspects of the arbitrations conducted
under its Rules. For example, it can be provided that the nationality
of the sole or presiding arbitrator may not be that of either party
i n ~ o l v e d . ~ ~ u"internationalization"
ch
can be effectuated only to the
extent that the mandatory provisions of the applicable arbitration law
are not violated. In fact, when reference is made to "international
commercial arbitration" , it is in the sense of an arbitration "internationalized" within the limits of an applicable national arbitration
law, that this term is commonly used. The difference from the exceptiora'al "de-nationalized9 arbitration is that this concept relates t o an arbitration which is conducted in disregard of any arbitration law,
including its mandatory provisions.
At this juncture it is to be noted that none of the arbitral institutions
which are specialized in international commercial arbitrations provide
that the arbitrations conducted under their Arbitration Rules are entirely detached from the ambit of any national arbitration law. This is
exemplified by the Arbitration Rules of 1996 of the United Nations
Commission on International Trade Law (UNCITRAL) which provide
in Article I(2): "These Rules shall govern the arbitration except that
where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that
provision shall prevail."
This applies, in my opinion, also t o the arbitrations conducted under
the Axbitration Rules of the International Chamber of Commerce. The
"internationalization" of the ICC Rules goes only as far as is permitted
by the non-stringent rules of the applicable arbitration law.
5 1. This is also the sense in which Fouchard interprets this decision in his case comment in
Journal du Droit International (1980) p. 669.
52. E.g., Art. 11 of the Arbitration Rules of 1979 of the Netherlands Arbitration Institute.
32
Field o f A pplicatiou
The Rules of Conciliation and Arbitration of the International Chamber of Commerce are sometimes described as "truly international9' Arbitration Rules, thereby
suggesting that the arbitral procedure under the ICC Rules is detached from the
ambit of national arbitration laws. Such a "de-nationalization" of the arbitral procedure would be attained to even a larger degree in the latest edition of the Rules
(1 975, as amended in 1980 on some other minor points). Whereas Article 16 of the
4.955 edition of the ICC Rules provided :
"The rules by which the arbitration proceedings sh& be governed shall be these
Rules and, in the event of no provisions being made in these Rules, those of the
law of procedure chosen by the parties or, failing such choice, those of the law
of the country in which the arbitrator holds the proceedings."
Article 11 of the 1975 edition of the ICC Rules provides:
'The rules governing the proceedings before the arbitrator shall be those resulting from these Rules and, where these Rules are silent any rules which the parties (or, failing them, the arbitrator) may settle, [and 33] whether or not reference is thereby made to a municipal procedural law to be applied to the arbitration."
The difference between both provisions had induced the Court of Appeal of Paris in
the above mentioned GNMTC v. Gotaverkcen-case to consider the award made in
Paris as not being govemed by French arbitration law because Article1 1 of the
19'95 edition no longer attributes an even subsidiary applicability to the law of the
place of a r b i t ~ a t i o n .It~ ~decided so notwithstanding the fact that the ICC had
acknowledged that the award in question was subject t o French arbitration law, and
thatbefore the Swedish Supreme Court - but not before the French Court! - the
Swedish party had argued that the award was governed by French arbitration law.55
The opinion that under the ICC Asbitration Rules an arbitration can be "denationalized" is, in my opinion, incorrect. Although the ICC Arbitration Rules are
served with an "international sauce", the arbitration under these Rules, too, must
be deemed to be basically governed by the law of the place of arbitration or,
theoretically, the different arbitration law chosen by the parties or the arbitrator.
53. The word "and" appears in the English version of the 1975 edition of the Rules. This is
presumably a printing error as the French text reads:
"R2gles applicables d la procddure :
Les rhgles applicables A la prockdure devant l'arbitre sont celles qui risultent du present rhglement et, dans le silence de ce dernier, celles que les parties, ou 21 dBfaut l'arbitre, determinent en se rkfdrant ou non $ une loi interne de procidure applicable $ l'arbitrage." (emphasis added)
54. Cour d'appel (1st Chamber) of Paris, February 21,1980 (France no. 3); see also supra at
n. 33 and SO. The dismissal of the action for setting aside the award on the ground that the
award was not a "French" award may also have been influenced by the delicate issue caused by
the allegation of GNMTC that the arbitrators had denatured the contracts in question by disregarding the applicability of the "Boycott of IsraelM-clausescontained in them which pertain
to public policy in Libya.
55. Supreme Court, August 13, 19'19, Gotaverken v. GNMTC (Sweden no. 1). The correspondence between the ICC and the arbitrators and the parties from which it appears that the
ICC considered that the award was governed by French arbitration law is published in G. Wetter,
me International Arbipal Process: Public and Private (Dobbs Ferry 1979),Vol. 11 pp. 200-230,
In particular, by a letter of April 28, 1978, the Secretary of the ICC wrote to Gotaverken, i n t e ~
aga:
"Under the applicable procedural law (Paris has been the place of arbitration) a dissentinf
arbitrator can refuse to sign the award which has to be confirmed by the two other arbitra,
tors. Consequently, this award has been made in accordance with the ICC Rules of Concilia
tion and Arbitration and the procedural law applicable at the place of arbitration." (Wetter
pp. 229-230).
The crucial point is that an arbitral procedure - and award - can be considered t o
be "de-nationalized9' really only if the mandatory provisions of national arbitration
laws are made inapplicable.
The ICC Rules cannot be deemed to have gone t o such extent. This is confirmed
by Mr. Eisemann, the former Secretary-General of the ICC, who wrote when commenting upon the 1975 edition of the Rules:
"In a certain number of contracts, the parties fix the place of arbitration, but in
the majority of cases this is left to the Court of Arbitration to fix, bearing in
mind the convenience of the parties and of the arbitrators and also any possible
difficulties as t o mandatory procedural law in any particular place which might
otherwise be chosen. In so far as it is possible, the Rules try to avoid any confusion between the place of arbitration and the application of local procedural laws.
With the exception of mandatory provisions, the Rules leave the choice of procedure to the parties or, in default of agreement between the parties, to the arbitrators." (emphasis added) 56
The supremacy of the mandatory provisions of the arbitration law over the ICC
Rules is also confirmed by the court decisions involving ICC arbitration, with the
exception of the above quoted Court of Appeal of ~ a r i s . ~ ~
It should be emphasized that the question whether arbitration can be

"de-nationalized", must be distinguished from the question whether the
parties are free to provide that the arbitrator is not bound to apply a
national law to the substance of the dispute. Whilst the legal status of
"de-nationalized" arbitration is uncertain, the detachment of the substance from the ambit of national laws will generally not encounter difficulties. The main reason is that the national courts will as a rule not
review the merits of the arbitrator's decision. The 66de-nationalization'9
of the substance in international arbitration is, in fact, increasingly
gaining a c c e p t a n ~ e .This
~ ~ is a welcome development which may eventually lead to the establishment of a new arbitral lex mercatoria.
The concept of a 66de-nationalized99
arbitration and the ensuing "anational" award is attractive and deserves more support then it has received so far. However, the insufficient legal basis and the absence of
recognition by most national' courts make the agreement for "denationalized" arbitration a hazardous undertaking full of legal pitfalls.
Et is therefore not surprising that only in very exceptional cases such an
56. F. Eisemann, "The Revised Rules of Arbitration of the International Chamber of Comnerce", in Yearbook Vol. I (1976) p . 167 at pp. 168-169. In this connection Arts. 12 and 22
hay be quoted. Art. 12, headed "Place of Arbitration", provides:
"The place of arbitration shall be fixed by the Court [of Arbitration], unless agreed upon by
the parties."
k t . 22, headed "Malting of Award", provides:
"The arbitral award shall be deemed to be made at the place of the arbitration proceedings
and on the date when it is signed by the arbitrator."
57. E.g., Tribunal F6dCral Suisse, March 17, 1976, Bucher-Guyer S.A. v. Meiki Co. Ltd.,
frr6ts du Tribunal Fkddral 102 Ia 493, reported in Yearbook Vol. V (1980) p. 220.
5 8. See generally, J . Lew, Applicable Law in International Comnzercial Arbitration (Dobbs
?erry 1978); P. Sanders, "Trends in the Field of International Commercial Arbitration", Recueil
les Cours, 1975 Vol. 11, p. 207 at p. 238.
34
agreement is made. In most of those cases in which it is said that the

parties had provided for a "de-nationalized9' arbitration, it appears that
this was the interpretation of certain authors ex post, but that the parties at the time of concluding the agreement had no idea that they were
making such a daring agreement. In practice it is virtually always the
understanding of the parties that that if they have provided for arbitration in a certain country, the arbitration law of that country is. t o
govern their arbitration.
The sole realistic approach to providing the ""d-nationalized" arbitration and hence the "a-national" award with a sufficient legal basis
seems to be international conventions. Such a basis is provided for
investment disputes between States and foreign enterprises by the
Washington Convention of 1965 ." This brings us to the main question
of this Section, whether such a basis can also be found in the New York
Convention.
award fall under the Convention?

I- 1.6.2 Does the 'ha-national"
It was the International Chamber of Commerce which first launched
the idea of an arbitral award completely independent of any national
arbitration law in its Draft Convention of 1953. This idea was not taken
over in the ECOSOC Draft Convention of 1955. Although the extensive
debates at the New York Conference are not entirely clear on this
point, it can be assumed that the idea was also rejected by the majority
of the delegates. The legislative history of the Convention therefore
would indicate that the Convention is not to apply to an "a-national"
award.
The Geneva Convention of 1927 provided in Article l(2)(c) that to obtain enforcement of the award it was necessary:
"That the award has been made 'by the arbitral tribunal provided for in the subission to arbitration or constituted in the manner agreed upon by the parties
a d in conformity with the law governing the arbitration procedure." (emphasis
added)
The "law governing the arbitration procedure" was in turn defined in Article 2(1)
of the Geneva Protocol of 1923 as follows:
'"he arbitral procedure, including the constitution of the arbitral tribunal, shall
be governed by the will of the parties and by the law of the country in whose
territory the arbitration takes place." (emphasis added)
According to the prevailing interpretation, these provisions mean that even in
the case of an agreement of the parties on the composition of'the arbitral tribunal
and the arbitral procedure, these matters had to comply with at least the mandatory provisions of the law of the country where the arbitration took place, when
enforcement of an award was sought under the Geneva Convention of 192'7.~'
"5,
59. See infra I-4.4.3a.

60. See H.-W. Greminger, Die Genfer Ablcommen von 1923 und 1927 uber die internationale private Schiedsgerichtsbarkeit (Winterthur 1957) p. 3 3 and p. 56.
35
Moreover, compliance of these matters with the governing law and, if any, the
agreement of the parties had to be proven by the claimant "when necessa~y"according to Article 4(1)(3) of the Geneva Convention of 1927.
The International Chamber of Commerce considered the Geneva Convention's
main defect to be that it provided for "the enforcement of only those awards that
are strictly in accordance with the rules of procedure laid down in the law of the
country where the arbitration took place". According to the ICC "there could
be no progress without full recognition of the conception of international awards
. . . i.e., an award completely independent of national laws".61 It therefore proposed a Draft Convention for the enforcement of "international" arbitral awards.
In pursuit of the idea of the internationd award, the ICC provided in Article III(b)
of its Draft Convention of 1953 that it would be necessary in order to obtain enforcement :
"that the composition of the arbitral authority and the arbitral procedure shall
have been in accordance with the agreement of the parties or, failing agreement
between the parties in this respect, in accordance with the law of the country
where the arbitration took place."
The ECOSOC Committee was not charmed by the conception of the ICC of an
"award completely independent of national laws", arguing that it might well
involve ousting the jurisdiction of the courts of the country where the arbitration
took place. This was, accordhg to the Committee, unacceptable as the exclusion of
any control by national courts might lead to injustice and abuse. The ECOSOC
Committee therefore referred, for the scope of its Draft Convention of 1955, to the
enforcement of "foreign9' awards instead of "international" awards as the ICC
Draft did. On the other hand, the Committee recognized that where the parties had
agreed regarding the arbitrd procedure, it might be unnecessary and perhaps cumbersome to prescribe that the composition of the arbitral tribunal and the arbitral
procedure "should follow in all details the requirements of national
The
Committee conceived the following solution for this problem in its Draft Convention: Enforcement of the award may be refused if the court is satisfied:
"that either the composition of the arbitral authority or the arbitral procedure
was not in accordance with the agreement of the parties to the extent that such
agreement was lawful in the country where the arbitration took place, or, failing
such agreement between the parties in this respect, was not in accordance with
the law of the country where the arbitration took place." (emphasis added)
This attempt of the ECOSOC Committee to find a compromise between the Geneva
Convention of 1927 and the ICC Draft Convention of 1953 was doomed to failure:
u at should be understood by "lawful9'? No wonder that the ECOSOC formula
found strong opposition, inter alia, from the Governments of France, F.R. Germany and Switzerland. They pointed out that this provision could cause the frustration of awards if any differences, however small and insignificant, would be found
to occur between the arbitral procedure agreed upon by the parties and the law of
the country where the arbitration took place.63 In other words, they interpreted
the ECOSOC formula in the same sense as the Geneva Treaties.
During the New York Conference the ECOSOC Committee's proposal that the
Convention was to apply to the enforcement of "foreign" awards was retained.
However, the Committee's formula concerning the agreement regarding the compo61. International Chamber of Commerce, Enforcement of International Arbitral Awards.
Report and Preliminary Draft Convention, ICC Brochure no. 174 (Paris 1953) p. 7 (reproduced
in UN DOC ElC.21373).
62. UN DOC El2704 and Corr. 1 , paras. 43-44.
63. UN DOC El2822 p. 8.
sition of the arbitral tribunal and the arbitral procedure was hotly debated. The
delegates, inter alia, from Italy, Norway and Turkey, wished to keep the formula,
arguing that the impression should not be left that the parties could agree on the
composition of the arbitral tribunal m d the arbitral procedure independent of any
law. The French delegate responded that the "[The] Committee's Draft recognized
the autonomy of the parties only to destroy it immediately".@
Working,Party No. 3, to which the drafting of the provision was referred, came
up with a text which is identical to the present text of Article V(l)(d). As it had decided to delete the ECOSOC formula reading "to the extent that such agreement
was lawful in the country where the arbitration took place", the text was similar to
the one proposed by the International Chamber of Commerce in its Draft Convention of 1953.
The members of Working Party No. 3 gave seemingly contradictory explanations
why the ECOSOC formula had been deleted. According to the Summary Records,
the Chailman of the Working Party declared that according to paragraph ](a):
"the enforcement of the award can be refused if the agreement of the parties to
submit to arbitration was not valid under the applicable law. In view of the
added provision the Working Party agreed that there was no need to subordinate
the arbitral procedure chosen by the parties to the law of the country where the
arbitration took place . . .,765 .
On the other hand, the Italian member of WorkingParty No. 3 stated:
"the text of paragraph l(d) prepared by the Working Party, although similar to
the proposal originally submitted by the International Chamber of Commerce,
had been inserted on the understanding that the parties enjoyed discretion only
to the extent that they could select the national law applicable in the matter.
Consequently, the Working Party's text should not be interpreted to mean that
the parties could agree to disregard all national laws and determine some special
procedure applicable to their case alone."66
Considering the text proposed by the Working Party, the delegate from Yugoslavia
moved for an amendment to reinstate the ECOSOC
The delegate from
the United Kingdom opposed to this amendment declaring that as a member of the
ECOSOC Committee he had originally put forward the formula, but it was now incompatible with the terms of paragraph l(a). The Yugoslav amendment did not
attain the required majority.68
Apparently, the reference to paragraph l(a), according to which enforcement of
the award could be refused if the arbitration agreement was not valid "under the
law applicable to it" (as the text stood at that stage of the Conference 69), convinced the majority of the delegates that no mention of the applicable law was needed
in paragraph l(d). Presumably, they supposed that where the arbitration agreement
is governed by a national law, the arbitral procedure would also be governed by a
law. On the otherlhand, the deletion of the ECOSOC formula may be deemed to
have been prompted by the desire to abandon the cumbersome requirement of the
Geneva Convention of 1927 that in the enforcement proceedings of an award under
the Convention, the law of the country could interfere in the case that the parties
had made an agreement on the composition of the arbitral tribunal and the arbitral
procedure. This could make clear that, although Article V(l)(d) of the Convention
64. UN DOC E/CONF.26/SR.12,14 and 17.

6 5 . UN DOC E/CONF.26/SR.17.
66. Id.
67. UN DOC E/CONF.26/L.45.
69. See infra 111-4.1.3.2 (legislative history of the conflict rules of Art. V(1) (a)).
1I
37
is similar t o the text proposed by the ICC in its Draft Convention of 1953 conceming "international" awards, it was not intended to provide in Article V(l)(d) for the
'6de-nationalized" agreement of the parties on the arbitral tribunal and arbitral procedure. Considered in this fight, the seemingly contradictory explanations of the
Chairman and the Italian member of Working Party No. 3 would point to the same
thing, namely the extent of control by the court before which the enforcement of
the award is sought under the Convention over the regularity of the composition of
the arbitral tribunal and the arbitral procedure.
It is not only the legislative history of the Convention which seems

to be contrary to the Convention's applicability to the "a-national"
award. The system and text of the Convention too appear t o be against
such interpretation. The Convention applies to the enforcement of an
award made in another State. Those who advocate the concept of the
66a-nationa199
award, on the other hand, deny that such award is made in
any particular country ("sentence flottante9', "sen tence apatride").
How could such award then fit into the Convention's scope?
Leaving aside this argument, the true question for the problem of the
Convention's applicability to the "a-national" award is whether the
Convention requires for its field of application that the award be governed by a national arbitration law. The definition of the Convention's
scope in Article I(1) and (3) does not state expressly that the award
made in another (Contracting) State must be subject to a national arbitration law. However, this is clearly implied if Article I is read in conjunction with the other provisions of the Convention. According t o
Article V(l)(a) enforcement of an award may be refused if the respondent can prove that the arbitration agreement is invalid "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".
Even more significant is Article V(l)(e) according to which enforcement of an award may be refused if the respondent can prove that the
award has been set aside by a court of "the country in which, or under
the law of which, that award was made". Especially the latter provision
indicates that the Convention is built on the presumption that the
award is governed by a national arbtiration law since the setting aside
of an award belongs to the exclusive jurisdiction of the court under
whose arbitration law the award is made. The argument that for the "anational" award Article V(l)(a) and (e) can be considered as non-written would be an interpretation which goes squarely against the text of
the Convention.
It is advanced that the second criterion of the Convention's field of
application as contained in Article I(1), i.e., that the Convention applies
also to arbitral awards which are not considered as domestic, would also
include "a-national" awards. 70 However, the legislative history of the
70. This is the opinion of Fouchard in his case comment on the Cour d'appel (1st Chamber)
Reld of Application
Convention is unequivocally clear that this criterion was inserted for
the enforcement of those awards, which are made in the State where
the enforcement is sought, under the arbitration law of another State.71
Such an award is definitely not an " a - n a t i ~ n a laward,
~ ~ and it has never
been the intention to include this type of award when drafting the
second criterione7"hat
was observed above for the relationship between the first criterion of Article I(4) and Article V( l)(a) and (e) must
be deemed to apply with equal force t o the relationship between
the second criterion of Article I( 1) and Article V( l)(a) and (e).
It is also argued that Article V(l)(d) would provide a basis for applying the Convention to the enforcement of an award which is not
governed by a national arbitration law.73 That provision declares that
the enforcement of an award may be refused if the respondent can
prove that:
"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".
According to this provision, the agreement of the parties on the composition of the arbitral tribunal and the arbitral procedure ranks first;
only in the absence of such agreement the law of the country where the
arbitration took place is to be talten into account.
The argument is based on two considerations. First, the legislative
history of the Convention would indicate that by this provision the
drafters of the Convention intended to provide for the possibility of a
"de-nationalized" arbitration and hence an "a-national" award. The
legislative history as outlined above, however, seems t o negate such
intent, or, at least, is unclear in this respect.
The second consideration is that since Article V(l)(d) is significantly
different from Article V(l)(a) and (e), it must mean something different. Thus, Article V(l)(d) would have t o be interpreted according to what
it says: if there is an agreement of the parties on the composition of the
arbitral tribunal and the a,rbitral procedure, the agreement need not
be governed by a national arbitration law.74 It is, however, inconceivof Paris, February 21, 1980 (France no. 3) GNMTC v. Gotaverkeil in Journal du Droit International (1980) p. 669 at 673.
7 1. See supra 1-1.5 ("Awards Not Considered as Domestic").
72. Accord, P. Sanders, "Consolidated Commentary Vols. V and VI", in Yearbook Vol. VI
(1981) p. 202 at p. 204.
73. This is the opinion of the Dutch Supreme Court, discussed infra 1-1.6.4 The literature
concerning Art. V(l) (d) and the question of "de-nationalization" is abundant. Extensive references can be found in G. Gaja, "Introduction", inNew Yorlc Convention (1978-1980) I.C.3 at
11. 67-70.
74. See P. Schlosser, Das Recht cler privaten internationalen Schiedsgerichtsbarlceit (Tiibingen 1975) no. 420; K.-H. Schwab, Schiedsgerichtsbarlceit, 3d ed. (Munich 1979) p. 381; Ph.
able that, whereas Article V(l)(a) and (e) refer to a law applicable to
the arbitration agreement and award, a "legal vacuum" could exist between the two in respect of the composition of the arbitral tribunal and
the arbitral p r ~ c e d u r e . ~ '
It is true that the present text of Article V(l)(d) is open to confusion. However, the arguments used by those who interpretthis provision as including the "de-nationalized" arbitration do not sound convincing in view of the history, system and text of the Convention. It is
submitted that a more realistic interpretation is that this provision is
aimed at a reduction of the extent of judicial control over the regularity
of the arbitration when the enforcement of the award is sought under
the Convention in another State. This interpretation was already
alluded t o at the end of the discussion of the legislative history above.76
The provision seems to be inspired by the concern of the drafters of the
Convention about the extensive control which a court could exercise
under the Geneva Convention of 192'7. I will elaborate my interpretation of Article V(l)(d) when examining this provision as ground for
refusal of enforcement of the award.77 For the purposes of the present
discussion it may suffice t o mention that this interpretation means that
if the parties have made an agreement in respect of the composition of
the arbitral tribunal and the arbitral procedure, it is no ground for refusal of enforcement that such agreement violates the law governing the
arbitration. For such a violation the aggrieved party should ask the
setting aside of the award in the country of origin. If the setting aside is
accorded in that country, then, and only then, the enforcement may be
refused in another Contracting State on the basis of Article V(l)(e) of
the Convention providing that enforcement of the award may be
refused if the award
. . has been set aside . . .. by a competent
authority of the country in which, or under the law of which, that
award was made".
"".
It should be made patently clear that even if it were assumed that Article V(l)(d)
of the Convention were to include "de-nationalized9' arbitration, this would affect
only the enforcement proceedings of the award resulting therefrom (the "a-national" a ~ a r d ) This
. ~ would have two consequences.
Fouchard, L'arbitrage commercial international (Paris 1965) no. 512.

75. Accord, F.-E. Klein, "La Convention de New York pour la reconnaissance et l'ex6cution
des sentences arbitrales BtrangBres", 57 Revue Suisse de Jurisprudence (1961) p. 229 at p. 248;
A. Biilow, "La convention des parties relative ii la procBdure d'arbitrage visBe 2 l'art. 5 al. 1
Lit. d de la Convention de New York", in Arbitrage Commercial - Essays in Memoriam Eugenio
Minoli (Turin 1974) p. 81.
76. See supra at n. 65-69.
77. See infra 111-4.4.2 ("The Role of the Law of the Country Where the Arbitration Took
Place According to Article V ( l ) (d)").
78. The reasoning as elaborated in the text applies mutatis mutandis to the enforcement of
an agreement aiming at such award. In this case too, enforcement cannot be based on the Con-
40
The first consequence would be that a "de-nationalized9' arbitration cannot be

based on the Convention at other instances, as the Convention is inapplicable thereto. Thus, when the Court of Appeal of Paris observed in the GNMTC v. Gotavevkencase that no argument can be drawn from the New York Convention that the law
of the place of arbitration would apply subsidiariay ", such statement is h c o l ~ e c t
not only because the Convention does suppose that a national arbitration law is applicable, but also because the Court should not have applied the Convention at all,
as the action before it concerned an action for setting aside the award.
The second consequence would be that, h any case, the Convention would give
an insufficient legal basis for '6de-nationalized9' arbitration.. It would not provide
"de-nationalized" arbitration with an overall regulation as, for instance, the
Washington Convention of 1965 does for investment disputes between States and
foreign private parties.
I - 1.6.3 Re&sa% of enforcement of an 'ha-national9'

award
Having concluded that the Convention requires for its field of application that the award be governed by a national arbitration law and
that therefore an "a-national" award cannot be enforced on the basis of
the Convention, a following question is how this requirement can be effectuated under the Convention.
It is submitted that, as an award not governed by any national arbitration law is so exceptional, the presumption must be that, if an award
is made in the territory of another (Contracting) State, that award is
governed by the arbitration law of that State, Accordingly, when seeking enforcement of an award under the Convention, the claimant need
not prove that the award is governed by the law of the State in which it
is made (which condition, moreover, he is not required to fulfil according to Art. IV). Nor does the court need t o examine on its own motion
whether the award is governed by a national arbitration law. It is the
respondent who has the onus of proving that enforcement cannot be
granted on the basis of the Convention because the award is not governed by a national law.
This burden of proof will be especially difficult for him as he may
resist enforcement only on the grounds exhaustively listed in Article
V(1). In fact, the only possibility to oppose to enforcement on the
ground that the award is not governed by an arbitration law, is to obtain a declaration of the court in the country in which the award was
made that the award is not an award within the purview of its arbitration law. This declaration can be equated to a setting aside for which
enforcement may be refused according to Article V( l )(e).80
vention (i.e., its Art. II(3)). When dealing with the question which arbitration agreements can
be enforced under the Convention (see infra I-2), I will not refer again to this type of agreement.
79. Cour d'appel (1st Chamber) of Paris, February 21, 1980 (France no. 3). See supra at
n. 33.
80. This, of course, does not apply if the claimant can in turn establish that the award is
41
I- 1.6.4 Dutch Supreme Court: SEEE v. Yugoslavia

The question whether an "a-national" award falls under the Convention has been decided affirmatively by the Dutch Supreme Court in the
Dutch part of the "continuing ~ t . o r y '-~ already lasting more than 25
years - of the SEEE v. Yugoslavia drama. The Supreme Court found,
however, that the award in question did not constitute such an award.
In the arbitration, in which Yugoslavia did not participate, an award
was made by two arbitrators, Messrs. Panchaud and Ripert, in the Canton Vaud, Swit~erland.~'After the award had been deposited by SEEE
with the Tribunal of the Canton Vaud, Yugoslavia instituted an action
for setting aside. The Tribunal did not set aside the award, but ordered
that the award be given back to the party who had deposited it on the
ground that the decision was not an arbitral award within the meaning
of Article 516 of the Code of Civil Procedure of the Canton Vaud
which required an odd number of arbitrator^.^^
After several unsuccessful attempts t o have the award enforced in a
number of countries, enforcement was sought in the Netherlands. The
Hague Court of Appeal also refused enforcement, holding that the
~~
award was not an award within the meaning of the C o n ~ e n t i o n .The
Court reasoned that, although Article V(l)(d) gives the parties the freedom to regulate the composition of the arbitral tribunal and the arbitral
procedure, the award must by virtue of Article V(l)(e) be deemed to
be governed by a national law. As the Tribunal of the Canton Vaud did
not consider the award as governed by its Code oi Civil Procedure, the
Court deemed that the award had not been made in the territory of another Contracting State, and that, hence, the Convention was inapplicable.
The Court of Appeals was undoubtedly correct that Article V(l)(e)
implies that the Convention applies only to an award which is governed
by a national law. However, the Court ignored the system of the Convention that the fact that an award is not governed by a national law is
to be proven on the basis of the grounds for refusal of enforcement
enumerated in Article V(1). If it had reasoned that the giving back of
the award by the Tribunal of the Canton Vaud was to be equated to a
setting aside within the meaning of Article V(l)(e), the Dutch part in
the drama would presumably have ended at the next round before the
made under the arbitration law of a State other than the State where it is made. But this is
a hypothetical case.
81. The award is published in French and English in Journal du Droit International (1959)
p. 1074.
82. Tribunal of the Canton Vaud, February 12, 1957, affirmed by the Tribunal Fkdkral
(Chambre de droit public), September 18, 1957, published in Revue critique de droit international privd (1958) p. 358.
83. Hof of The Hague, September 8,1972 (Neth. no. 2A).
42
Dutch Supreme Court. Instead, it took three more rounds before that
became clear.
The Dutch Supreme Court quashed the decision of the Court of Appeal of The Hague.s4 The Supreme Court reasoned that the court before which the enforcement of a Convention award is sought may not,
before giving its decision, examine the relationship between the award
and the law of the country where it was made and, failing such relationship, refuse enforcement. According t o the Supreme Court, the relationship between the award and the law of a particular country need
only to be examined within the limits necessary for an examination to
be carried out following the invocation that the grounds mentioned in
Article V(1) exist, in particular, grounds, a, d and e. The Supreme
Court concluded that the Court of Appeal had reached its decision on
incorrect grounds because it had refused enforcement outside the limits
for an examination of the grounds for refusal set forth in Article V(1).
The Supreme Court was right in holding that an enforcement court
may not examine on its own motion whether the award is governed by
a national law. The fact that the Supreme Court did not mention that
the giving back of the award could be equated to a setting aside within
the meaning of Article V(l)(e) is because the Court had something
different in mind: it ,appeared from its second decision in this case that
the Court meant with this reasoning the "a-national" award.
The Hague Court of Appeal again refused enforcement, this time
based on a violation of public policy.85 SEEE appealed thereupon for a
second time to the Dutch Supreme Court. The latter reversed the
Hague Court of Appeal on the public policy issue 8 6 , but then reached
the conclusion that the order of the Tribunal of the Canton Vaud was
to be equated to a setting aside of the arbitral award as mentioned in
Article V(l)(e) of the C ~ n v e n t i o n . ~ ~
"All is well, that ends well9', one would think. However, the Supreme
Court added in an obiter dictum that it would have reached the same
decision if, on the basis of Article V(l)(d) of the Convention, it is assumed that the Convention also includes the recognition of arbitral
awards made by arbitrators which, as a consequence of the procedural
rules adopted by the parties in their agreement, cannot be deemed to
have been rendered according to the law of a particular country. By
malting this additional observation the Court indicated what it meant
81.. Hoge Raad, October 26, 1973 (Neth. no. 2B).
85. Hof of The Hague, October 25,1974 (Neth. no. 2C).
86. See inpa 111-3.2 ("No Review of the Merits of the Arbitral Award").
87. Hoge Raad, November 7, 1975 (Neth. no. 2D). It is interesting to note that in his comment on the first decision of the Dutch Supreme Court in the SEEE v. Yugoslavia case, Prof.
Battifol had suggested that the order of the Tribunal of the Canton Vaud t o give back the
award could be equated to a setting aside within the meaning of Art. V(l) (e), see Revue de
l'arbitrage (1974) p. 326 at p. 330.
43
by its reasoning in its first decision in this case, i.e, the award resulting
from an arbitration which is "de-nationalized" by the agreement of
the parties. It is interesting to see how the Supreme Court reconciled
both decisions: it argued that in the present case there could be no
question of such an award since the arbitration agreement in question
dated from long before the conclusion of the Convention and, hence,
~ ~ as
that the agreement could not have aimed at an " a - n a t i ~ n a laward
allegedly envisaged by the Convention.
The decisions of the Dutch Supreme Court imply a distinction between an award that is the result of an arbitration which is "de-nationalized" by the agreement of the parties - the "a-national" award - and
an award which is not governed by an arbitration law for another
reason. In the former case the Supreme Court considers on the basis 01
Article V(l)(d) that such award can be enforced under the Convention.
In the latter case, as exemplified by the SEEE v. Yugoslavia award, the
Supreme Court considers the award unenforceable under the Convention because of Article V(l)(e). There is no need to repeat here the arguments, elaborated in the preceding Sub-sections for which the view of
the Supreme Court that an "a-national" award can be enforced under
the Convention is to be rejected. The distinction implied by the
Supreme Court is therefore unnecessary as the Convention must be
deemed to imply the requirement that in any case an award be governed by a national law on arbitration. If it can be proven that an award is
not governed by an arbitration law, it cannot be enforced under the
Convention. The decision of the Supreme Court demonstrates that this
proof can be furnished on the basis of Article V(l)(e).
It may be recalled that in the GNMTC v. Gotaverken-case the Court of Appeal of
P a t s dismissed the application for setting aside the award made in Paris considering
that the award was not an award governed by French arbitration law.'"he
Court's
rewnso~gindicates that it regads the arbitration as 6"de-nationalized''~8gIt may
therefore be fortunate for Gotaverken, which had sought the enforcement of the
award in Sweden, that the Swedish Supreme Court refused to adjourn its decision
on the enforcement and granted the enforcement of the award under the Convention before the Court of Appeal of Paris rendered its d e c i ~ i o n The
. ~ Swedish Supreme Court had no difficulty in considering the award as having been made under
French arbitration law. If the decision of the Court of Appeal of Paris had been rendered before the decision of the Swedish Supreme Court, the Swedish Supreme
Court might have faced a problem similar to the one before the Dutch Supreme
Court in the SEEE v. Yugoslavia-case.
88. COUPd'appel(1st Chamber) of Paris, February 21, 1980, GNMTC v. Gotaverken (France
no. 3).
89. See supra at n. 50-51 and 54-56.
90. Swedish Supreme Court, August 13, 1979, Gijtaverken v. GNMTC (Sweden no. 1):See
also infra 111-4.5.3.3 ("Adjournment of the Decision on Enforcement (Art. &TI)").
44
I- 1.7
Arbitrats Irritua%eetc.
The criteria whereby an award falls under the New York Convention
have now been examined, except for the commercial reservation of Article %(3)about which in 1-1.8 hereafter. We have, however, not yet
dealt with the question of when an arbitral award can be considered as
such under the Convention. This question has come up in practice in
connection with the Italian institution ltnown as arbitato irrituale ("informal" or "free" arbitration).
The New York Convention itself does not give a definition of what
must be understood by an arbitral award. It seems therefore appropriate to distill the notion of what constitutes an arbitral award from
what is generally understood by arbitration in the national legal systems. Virtually all countries have a Law on Arbitration contained either
in the provisions of the Code of Civil Procedure or in a separate Arbitration Act.g1 Although these Laws differ greatly amongst themselves,
in principle, they have in common that arbitration is understood as the
resolution of a dispute between two or more parties by a third person
(arbitrator) who derives his powers from an agreement (arbitration
agreement) of the parties, and whose decision is binding upon them.
The gist of the notion of arbitration as regulated by most of the Laws
on Arbitration is that it is conceived as a substitute for court litigation.
Accordingly, the majority of the Laws on Arbitration imply that the
matter submitted to the arbitrator must concern a judicially triable
issue.
The matters which can generally not be submitted to arbitration are, for instance,
the cases where the sole task entrusted to the third person is the determination of
the amount due for losses under an insurance policy, the technical verification of a
vessel under construction with the drawings, the determination of goods in conformity with contractual description 92, and the completion of terms of the contract
which the parties have deliberately left open at the conclusion thereof (the so-called
"filling of gaps").93 It should be noted, however, that in certain countries some of
91. An example of one of the few countries which does not (yet) have an Arbitration Law
is Saudi Arabia. See S. Hejailan, "National Report Saudi Arabia", in Yearbook Vol. IV (1979)
p. 162. On the other hand, there are still a considerable number of countries which d o not have an
adequate arbitration law, especially in Africa and Latin America, see my articles "Arbitration
and the Third World", in the Financial Times, December 6, 1978, p. 11, and "Arbitrage commercial en Amerique latine", Revue de l'arbitrage (1979) p. 123.
92. The determination of whether the quality of goods is in conformity with the contractual
description is commonly referred to as "quality arbitration". In many cases this is a misleading
term as it is not arbitration proper but pertains legally to a procedure akin to arbitration. See
for quality arbitration, K. Straatmann, "Die Qualitatsarbitrage. Eine Rechtsschopfung des
Ueberseehandels", in H.-P. Ipsen et al. eds., Recht Ueber See. Festschrift fur Rolf Stodter zum
70. Geburtstag am 22. April 1979 (Heidelberg 1979) p. 109.
93. See for a general discussion of the filling of gaps in a contract by third persons, Fifth
International Arbitration Congress, New Delhi 1975, Proceedings (New Delhi 1976), Working
Group 4. The reports and communications of Working Group 4 are reproduced in French in
4.5
these matters are nevertheless considered to be arbitrable, or at least, it is current

practice to do so." It would carry too fax to make in this study a comparative examination on this question, although there is, in my opinion, a great need for such
examination.
As arbitration has the effect of excluding the competence of the

courts, the statutory provisions on arbitration have been enacted to give
this means of private settlement of disputes the necessary safeguards.
The Laws on Arbitration therefore lay down - although with differing
degrees of comprehensiveness - provisions for the f o m and contents of
the arbitration agreement and for the arbitral procedure, and usually
provide for a summary procedure for the enforcement of the award.
The courts can be called upon for their assistance in the constitution of
the arbitral tribunal and the proper functioning of the arbitral procedure, and they can exercise a control over the regularity of the arbitration and award, usually in a special procedure for setting aside the
award or equivalent procedure.
For matters which can generally not be submitted to the decision of
a court and hence not to arbitration as regulated by the Law on Arbitration, certain legal systems have develop'ed procedures akin to what
may be called arbitration proper. These procedures are, for instance,
Schiedsgutachten in Austria and F.R. Germany (as opposed to Schiedsgen'chtsbarlceit which is arbitration proper) ", bindend advies in
Indonesia and the Netherlands 96, valuation or appraisal in England and
the United States 9 7 , and arbitrato irrituale in Italy (see hereafter). As a
rule, it is characteristic of these procedures that the proceedings are not
adversary and that the third person makes the decision on the basis of
his expert ltnowledge and experience. They are sometimes referred to as
arbitration of civil law, as opposed to procedural law arbitration.'"
Revue d e l'arbitrage (1975) p. 3; see also P. Sanders, "Trends in the Field of International Commercial Arbitration", Recueil des Cours, 1975-Vol. 11, p. 207 at p. 227. The International
Chamber of Commerce has recently made available Rules for the Adaption of Contracts (in
force as of June 1978, ICC Publication no. 326). In these Rules the ICC has based the adaption
of contracts solely on contract. Accordingly, Art. l l ( 3 ) provides:
"When the third person takes a decision, that decision is binding on the parties to the same
extent as the contract in which it is deemed to be incorporated. The parties agree to give
effect t o such a decision as if it were the expression of their own will."
94. For example, in California and New York appraisal can be achieved by means of arbitration. See M. Domke, infra n. 97.
95. See generally, K.-H. Schwab, Schiedsgerichtsbarkeit, 3d ed. (Munich 1979) p. 5 ; 0.
Glossner, "National Report F.R. Germany", in Yearbook Vol. IV (1979) p. 60 at p. 61.
96. P. Sanders, "National Report Netherlands", in Yearboolc Vol. VI (1981) p. 60 at p. 61;
R. Soebekti "National Report Indonesia", in Yearbook Vol. V (1980) p. 84 at p. 86.
97. J. Paris, The Law and Practice ofArbitration (London 1974) p. 10; M. Domke, The Law
and Practice o f Commercial Arbitration (Mundelein 1968-1979) p. 6.
98. R. David, "L'arbitrage en droit civil, technique de rCgulation des contracts", in Milanges dkdibs ri Gabriel Mar@ (To~llouse1979) p. 383.
4.6
From the legal point of view, the above procedures are purely contractual. They are not governed by the provisions of the Law on hrbitration. Consequently, they are not subject t o the procedural safeguards
offered by that Law. They cannot, as a rule, benefit from the assistance
of the courts, for instance, for the appointment of the third person in
cases where the parties have failed to agree thereon. The decision of the
third person merely has the force of a contract between the parties. It
cannot be enforced as an award in a summary procedure, but only by
means of an ordinary contract action, which may include a review by
the court of the merits of the decision.
As already mentioned, failing a definition of what must be understood by an arbitral award under the New York Convention, this notion
should be distilled from what is generally understood by arbitration
under the national legal systems. This appears t o be the procedures governed by the Law on Arbitration; procedures akin to arbitration not
governed by the Law on Arbitration fall outside this notion. Accordingly, those decisions which are not considered as the result of arbitration
proper in the country of origin mustbe deemed not t o come within the
purview of the New York Convention and cannot be enforced as a foreign arbitral award under it.99 This may also be regarded as having been
the understanding of the drafters of the Convention who did not discuss the topic at all.
This interpretation of the meaning of an arbitral award under the
New York Convention is not followed by the Italian Supreme Court.
The case, to be discussed hereafter, concerned the question whether
arbitrato irrituale falls under the New York Convention, which question
was answered in the affirmative by the Italian Supreme Court.
Before discussing the interpretation given by the Supreme Court, it
may be appropriate for the proper understanding of the Court's decision t o dedicate a few words to the Italian arbitrato* irrit~ale.~OO
Arbitration proper (arbitrato rituale, formal arbitration) is governed by
Sections 806-831 of the Italian Code of Civil Procedure of 1942. As
those provisions were felt to be quite burdensome - for instance, the
award must, on pain of nullity, be deposited with the court within five
days after rendition, and the deposit involves a tax of 2 per cent on the
sum awarded - practice started to use the contractual institution,
originally intended for valuation etc., as a substitute for formal arbitra-
99. This applies mutatis mutandis to the enforcement of an agreement concerning a procedure akin t o arbitration. In this case too, the enforcement cannot be based on the Convention
(i.e., its Art. II(3)). When dealing with the question which arbitration agreements can be enforced under the Convention (see inpa I-2), I wiU not refer again to this type of agreement.
100. See generally, G . Bernini, "National Report Italy", in Yearbook Vol. VI (1981) p. 24;
see also G. Recchia, "Arbitrato irrituale", in Appendice del Novissimo Digesto Itnliano (Turin
1979) pp. 3- 19, which includes an extensive bibliography.
47
tion, This procedure became known as arbitrato irrituale (informal or

free arbitration) and was recognized as valid by the Italian courts.
Arbitrato irrituale is a contractual institution, and the decision resulting
therefrom represents an agreement concluded by the parties themselves.
Arbitrato irrituale is not subject to any of the formalities prescribed for
arbitrato rituale in the Italian Code of Civil Procedure. The decision
(lodo irrituale) need not, for example, be filed with the court; and the
enforcement cannot be effected as an award, but only on the basis of a
contract action.
Against this domestic background in practice of arbitrato irrituale as
a replacement for arbitmto rituale, it is not so suprising that the Italians
wished that this practice be recognized under the New York Convention as well. The Italian Supreme Court fulfilled their wish in a case concerning the enforcement of an award rendered under the aegis of the
London Corn Trade Association (LCTA) whish award the Court qualified as rendered in an arbitrato irrituale. O1
The Italian Supreme Court's main argument for holding the Convention applicable t o arbitrato irrituale was that the Convention only requires the award to be binding on the parties (Art. V(l)(e)). The Geneva Convention of l 927, which is replaced by the New York Convention
by virtue of Article VI1[(2), was generally interpreted as requiring a
leave for enforcement (exequatur or the like) from the court of the
country where the award was made. Because an exequatur can be obtained only in the case of formal arbitration, the Geneva Convention
was limited to formal arbitration. Since the New York Convention
abolishes the requirement of the exequatur from the country of origin,
and prescribes the award only t o be binding - a requirement with
which arbitrato iwituale complies - the Convention also applies to free
arbitration.
It is submitted that this interpretation is not in conformity with the
intention of the drafters of the Convention. The Convention was
devised with the purpose of facilitating the enforcement of foreign arbitral awards. For this reason, the requirement of an exequatur in the
country of origin, as implicitly prescribed by the Geneva Convention of
1927, was abolished, because it was regarded as an unnecessary and
time consuming hurdle. The drafters of the New York Convention
therefore provided in Article V(l)(e) that enforcement of the award
may be refused if the respondent proves that the award has not become
"binding9' on the parties (instead of "final" as required by the Geneva
Convention). The word "binding" is to be interpreted as meaning
that the award is no longer open t o ordinary means of recourse (appeal
101. Corte di Cassazione (Sez. Un.), September 18, 1978, no. 4167, Butera v. Pagnan (Italy
no. 33).
48
on the merits to a court or t o an arbitral instance).lo2 It was never the

intention, by providing in Article V(l)(e) that the award has only to be
binding on the parties to widen the scope of the Convention for procedures akin to arbitration, but taking place outside the Laws on Arbitration.
Moreover, the decision of the Italian Supreme Court implies a certain
anomaly: A lodo irrituale cannot be enforced as an award if it is rendered in Italy, whilst such decision can be enforced as an award under
the Convention if it is rendered abroad. The anomaly is that the Italian
lodo ivvituale can be enforced by means of a contract action only, including a possible review of the merits, while the foreign counterpart
can be enforced in special proceedings within the confines of the Convention, i.e., with a limited number of defences and without a review of
the merits. This was one of the main reasons for which the Court of
First Instance of Hamburg, in my opinion rightly, declined to apply the
Convention t o the request for the enforcement of a lodo irrituale made
in Italy, holding that such a decision is not an arbitral award within the
meaning of the Convention.lo3
It may be observed that by qualifying arbitration of the London Corn Trade Association (LCTA) as arbitra to irrituale, the Italian Supreme Court misapprehends English arbitration law. LCTA arbitration is divided into two categories: quality arbitration and technical arbitration. The first category concerns the determination
whether the goods delivered are in conformity with the contractual description and
can therefore be considered as valuation which is not governed by the English Arbitration Act. The second category is technical arbitration which relates to questions
of contract interpretation and the like, thus judicially triable issues. Leaving aside
the question whether quality arbitration of the LCTA could be regarded as a counterpart of arbitrato irrituale, the case in question concerned the issue whether the
seller was required under the contract to provide the buyer an import licence,
which is beyond any doubt an issue to be resolved by technical arbitration falling
under the English Arbitration Act. The Italian Supreme Court does not make this
distinction, but considers the entire English arbitration as arbitrato irrituale. However, the English Arbitration Acts of 1950 and 1979 are the foremost examples of a
counterpart of judicial proceedings. Thus, if the parties cannot agree on the appointment of the arbitrators, the court can be requested to appoint them (Sects. 810 of the 1950 Act). The award can be set aside (Sect. 23 of the 1950 Act) and is
appealable to the court in a number of cases (Sects. 1 4 of the 1979 Act). The argument of the Supreme Court that an English award does not need an exequatur
(leave for enforcement) "which would bring the decision on the judicial level", does
not sound convincing. Section 16 of the 1950 Act provides that the award is final
and binding on the parties. A leave for enforcement is only necessary if the enforcement of the awad is sought (Sect. 26). This is different under Italian law where
only the exequatur can confer the binding force upon the award (Art. 825(3)
of the Italian Code of Civil Procedure). Presumably, this latter provision of Italian
law put the Court on the wrong track.
102. See infra 111-4.5.2 ("Award Not 'Binding' ").
103. Landgericht of Hamburg, January 18,1979 (F.R. Germ. no. 22).
4.9
The Court of Appeal of Venice in this case was more correct on this point by
holding that the LCTA arbitration is arbitration proper. The latter view was also
adhered to by the Court of Appeal of Florence in another case concerning arbitration under the Grain and Feed Trade Association (GAFTA) in
Leaving aside the arguments based on the general notion of arbitration ifi the majority of national legal systems as well as on the Convention's history, should the Convention be interpreted as applying to arbitrato irrituale, because the matters submitted to it and the manner in
which the parties and the third person proceed could In fact be equated
to arbitration proper? This problem applies also t o a certain extent to
the Dutch bindend advies, which, in practice sometimes has a great deal
in common with arbitration proper as regulated by the Dutch Code of
Civil Procedure. From the practical point of view, it would make sense.
If practice so desires, but uses different legal institutions on the ground
that the existing ones are insufficient, it should be recognized by means
of an appropriate interpretation.
Nevertheless, the sociological approach is to be rejected in this case.
In the first place, it would create uncertainty as to under which circumstances arbitrato irrituale or bindend advies could be equated to arbitration. In the second place, and this argument applies irrespective of the
question whether the just mentioned distinction should be made, it
should be recalled that within the system of the New York Convention,
the arbitral award, international as it may be, is always governed by a
national law.lo5 If by this law, the Law on Arbitration only is meant, it
will have the advantage that international commercial arbitration is surrounded by the procedural safeguards of that Law and is backed up by
the courts. If, on the other hand, it would also include procedures akin
t o arbitration, no such safeguards and assistance are available and much
uncertainty may be the result.lo6
A decision resulting from procedures akin t o arbitration must be distinguished from a settlement recorded in the form of an award. The
104. Corte di Appello of Florence, October 22, 1976, S.A. Tradax Export v. Carapelli (Italy
no. 18). GAFTA (Grain and Feed Trade Association) is the result of a merger in 1971 of LCTA
(London Corn Trade Association) with the London Cattle Food Trade Association (LCFTA).
Arbitration under GAFTA is quite similar to the former LCTA arbitration. The Corte di
Appello of Bari, May 30, 1973, Antionio Casulli v. Tradax England Ltd. (Italy no. 8) held also
that LCTA arbitration was arbitrato rituale.
105. See supra I- 1.6.2 ("Does the 'A-national' Award Fall under the Convention?").
106. Accord, P. Sanders, "Consolidated Commentary Vols. 111 and V", in Yearboolc Vol. IV
(1979) p. 231 at p. 233; K.-H. Schwab, Schiedsgerichtsbarkeit, 3d ed. (Munich 1979) p. 321;
W. Wenger, Zllrn obligationenrechtlichen Schiedsverfahren im Schweizerischen Reclzt (Bern
1968) p. 184; see also, P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) no. 634; Contra, R. David, supra n. 98, at p. 402, and many Italian
authors.
50
Field o f A pplicatiorz
award on agreed terms, as this type of award is called, can be deemed to

come withill the purview of the Convention, provided that in the country of origin such award is considered as a genuine award, which is almost always the case.
It regularly occurs that the parties reach an settlement and that this settlement is recorded in the form of an arbitral award. This may facilitate a possible enforcement
of the settlement if subsequently a party does not abide by its terms. Several Arbitration Rules contain express provisions t o this effect.lo7 In most countries such an
award is treated as a genuine award and can be enforced as such.lo8 There would
therefore not exist an objection against the enforcement of the award on agreed
terms under the Convention. The grounds for refusal of enforcement enumerated in
Article V ( l ) can be applied by analogy. Conversely, if in the country of origin the
award on agreed terms is not considered as a genuine award, no enforcement can be
sought under the onv vent ion.'^^ Insofar as it could be researched, no case has been
reported in which enforcement of the award on agreed terms was sought under the
Convention.
In some countries, lilte Denmark and the Netherlands, a settlement between the
parties can be easily made enforceable if certain formalities ase f~lfilled."~As this
settlement in executory form does not constitute an arbitral award, its enforcement
cannot be based on the Convention. For the purposes of a possible enforcement in
other States it is therefore recommended t o record the settlement in the form of an
asbitral award if this is possible under the law of the country of origin.
Some countries, such as Austria, F.R. Germany, and Switzerland, provide in
their Laws on Arbitration for a specific regulation for a settlement arrived at
during an arbitration and recorded in the form of an "award9' (Schiedsvergleich).'ll It is doubted whether the Schiedsvergleich falls under the Convention.'12 It is submitted that there is no place for such doubt as the Schiedsvergleich
is essentially the same as an award on agreed terms for which specific statutory provisions have been enacted.ll3 It may be added that in several bilateral treaties concluded by F.R. Germany with other countries concerning the reciprocal recognition
and enforcement of judgments and arbitral awards the Schiedsvergleich is expressly
equated t o the arbitral award.'" At the New York Conference of 1958, F.R. Ger-
107. E.g., UNCITRAL Arbitration Rules, Art. 34; Arbitration Rules of the International
Chamber of Commerce, Art. 17; Commercial Arbitration Rules of the American Arbitration
Association, Sect. 43.
108. See the National Reports on the law and practice of arbitration in the Yearboolc Vols.
1 (1976) - VI (1981), sub Chap. V.6 "Settlement". A difference exists as whether or not the arbitrators are obliged to record the settlement in the form of an award.
109. This is, for instance, the case in Colombia and the Netherlands. The situation is unclear in Costa Rica, Venezuela, P.R. China, Algeria and Libya.
110. See J. Trblle, "National Report Denmark", in Yearboolc Vol. V (1980) p. 28 at p. 36;
P. Sanders, "National Report Netherlands", in Yearbook Vol. VI (1981) p. 60 at p. 77.
111. Austria: Sect. 1 no. 16 of the Law on Execution; F.R. Germany: Sect. 1044.a of the
CCPr (See generally, F. Bauer, Der schiedsrichterliche Vergleich (Munich 1971)); Switzerland:
Art. 34 of the Intercantonal Arbitration Convention (Concordat) of 1969.
112. H. Strohbach, "National Report German Democratic Republic", in Yearbook Vol. I
(1976) p. 40 at p. 48; W. Melis, "National Report Austria", in Yearboolc Vol. IV (1979) p. 21
at p. 36.
113. Accord, I<.-H. Schwab, Schiedsgerichtsbarlceit, 3 ed. (Munich) p. 442 and pp. 232-233.
114. Bilateral treaties with Switzerland of 1929 (Art. 9(3)), with Italy of 1936 (Art. 8(3)),
with Belgium of 1958 (Art. 13(2)), with Austria of 1959 (Art. 12(2)), with Greece of 1961
d
51
many had submitted a proposal to apply the Convention also to "settlements arrived at before an arbitral authority with a view to terminating pending proceedings",
which proposal was made t o take "into consideration specific problems of German
procedural law in respect of settlements 115 , but this proposal was neither discussed nor voted upon.
>?
I- 1.8
Second Rese~vation("Commercial Resewation")
Article I(3) contains two possible resewations.l16 The first reservation concerning the enforcement of awards made in other Contracting
States only has been discussed in 1-1 . l oThe second reservation of Article I(3) permits a State to reserve the applicability of the Convention: ". . . only to differences arising out of legal relationships, whether
contractual or not, which are considered as commercial under the law
of the State making such declaration."
The latter reservation was inserted because it was believed that,
otherwise, it would be impossible for certain Civil Law countries, which
distinguished between commercial and non-commercial transactions, to
adhere t o the Convention, As of today 20 Contracting States out of 56
have used the commercial reservation,
In France, for example, only arbitral clauses concerning commercial matters are
valid: Article 631 of the Commercial Code (introduced by the Law of December
3 1, 1925).'17 At the New York Conference of 1958 it was said that Belgium could
not adhere t o the Convention if the Convention did not contain the possibility t o
limit the application t o commercial transactions only.118 Nevertheless, when adhering t o the Convention on August 18, 1975, Belgium did not use the commercial reservation. On the other hand, France did use the second reservation.
The commercial reservation was already contained in Article I(2) the

Geneva Protocol of 1923, and had not caused difficulties in practice.
Under the New York Convention, most courts have so far also given a
broad interpretation to the meaning of commercial. For example, the
District Court in New York rejected the contention that an award concerning a contract to operate an electronics manufacturing industry on
(Art. 14(2)), and with Tunisia of 1966 (Art. 52(2)). The text of these treaties can be found in
Schwab, supra n. 113, Chapter 59.
115. UN DOC E/CONFq26/L.34 (Art. V quinter) and SR.14.
116. As far as the permissable reservations on the Convention are concerned, para. 14 of the
Final Act (UN DOC E/CONF.26/8/Rev. 1 and E/CONF.26/9/Rev. 1) declares:
"The Conference decided that, without prejudice to the provisions of Articles I(3), X, XI
and XIV, no reservations shall be admissible to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards."
117. See for the new French arbitration law and Art. 631 of the Commercial Code, infra n.
11.3 1.
52
the Island Curaqao, which would result in the creation of several

thousand local jobs, was not commercial. Although the impact of the
commercial reservation was not entirely clear for the Court, it supposed
that the reservation excluded "matrimonial and other domestic relations awards, political awards, and the like".'lg
It should be noted that Section 202 of the law implementing the New York Convention in the United States states that "An cubitration agreement or arbitral award
arising out of a legal relationship . . . which is considered as commercial, including a
transaction, contract, or agreement described in Section 2 of this title, falls under
the Convention." Section 2 refers to maritime transactions or contracts evidencing
commerce, which latter term is defined in Section 1 as "commerce among the
several States or with foreign nations". Section 1 concludes with ". . . but nothing
herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate c ~ r n r n e r c e ~ ~ . ~ ~ ~
In one case, however, a United States District Court resorted to the

commercial reservation in order to deny the application of the Convention.12' We will discuss this decision at a later stage.'" Here it may
suffice to mention that the Court refused to refer the parties to arbitration in London in a dispute concerning salvage services rendered to a
United States warship on the ground that under the Public Vessels Act,
recovery against the Government can only take place by suit in the
appropriate Federal District Court. With express reference to the
commercial reservation, the Court observed: "Whatever uncertainties
may arise when agencies of governments engage in commercial transactions, relations arising out of the activities of warships have never
been regarded as 6commercia19within the context of sovereign immunity''.
119. U.S. District Court of New York, S.D., February 14, 1973, Island Territory of Curaqao
Solitron Devices Inc. (U.S. no. 1). Cf the same Court, June 28, 1976, Antco Shipping Co.
Ltd. v. Sidermar S.p.A. (U.S. no. 9) at 215 n. 8: maritime contract for affreightment was expressly held to be commercial.
120. The U.S. District Court of New York, S.D., October 12, 1979, Sumito Colp. et al. v.
Parakopi Compania Maritima S.A. (U.S. no. 31) held that "commerce" in Sect. 1does not control
the meaning of "commercial" in Sect. 202. The case involved a request under Sect. 203 for the
appointment of a third arbitrator in an arbitration to take place in New York between a Japanese shipbuilder and a Greek principal concerning a bulk carrier constructed in Japan. The
defendant had asserted the lack of jurisdiction of the Court on the ground that the Sect. 1
definition of "commerce" has been construed not to include purely foreign transactions and that
therefore the dispute was excluded from the coverage of Sects. 202 and 203. The Court rejected the assertion arguing that no reference was made in Sect. 202 to Sect. 1.
See for a discussion of the commercial reservation and the United States: J. McMahon,
"Implementation of the United Nations Convention on Foreign Arbitral Awards in the United
States", 2 Journal ofMaritime Law & Commerce (1971) p. 735 at p. 742.
121. U.S. District Court of New York, S.D., December 21, 1976, B.V. Bureau Wijsmuller
V. United States of America (U.S. no. 15).
122. See infra 111-5.2 ("Non-arbitrable Subject Mattes (Arts. V(2) (a) and II(1))").
V.
53
This case must be considered as an exception in the long line of

United States court decisions in which a favourable attitude towards
the Convention has been expressed. Moreover, the case involves consicierations of public policy rather than the true meaning of " ~ o m m e r c i a l ~ ~ .
I t may be added that in the field of sovereign immunity it is not always
easy to distinguish between commercial transactions (acta jure gestionis)
and non-commercial ones (acta jure imperii).123
When it was agreed to insert the commercial reservation at the New
York Conference of 1958, it was thought that it could not cause any
harm.624 However, more recently it has become apparent that "commercial" may be understood differently in various countries.
In a case involving, inter alia, transfer of technology, the High Court of Bombay
gave a rather restrictive interpretation of the commercial reservation.'" A group
of United States corporations agreed by three agreements with an Indian company
to construct a polyester staple fibre plant in India. The agreement included the
supply of technical designs and transfer of technical information required for the
implementation of the project. When a dispute arose between the parties, the
Indian party sued the United States group before the Bombay High Court. The
United States party applied for a stay of the proceedings by invoking the irbitral
clauses, two of which provided for arbitration in London under the Arbitration
Rules of the International Chamber of Commerce.
The Judge held that the application for the stay fell under the Indian Arbitration
Act of 1961 which implements the New York Convention in India. Section 2 of
this Act provides:
"In this Act, unless the context otherwise requires, 'foreign award' means an
award on differences between persons arising out of legal relationships, whether
contractual or not, considered as commercial under the law in force in India,. . ."
After having observed that the agreements in question "cover a broad spectrum of
commercial activity", and that "the relationship established by the said agreements
is commercial in character9>,the Judge said:
"The inescapable conclusion that agreements are commercial however does not
clinch the issue. Such a characterization does not amount to saying that the
agreements between the plaintiffs and the defendants come within the purview
of Section 2 read with Section 3 [concerning stay of court proceedings] of the
196 1 Act, The expression occurring in Section 2 is legal relationships, whether
contractual or not, considered as commercial under the law in force in India
[emphasis supplied by the Judge]. In other words, before provisions of Section 3
can be invoked, the agreement must be an agreement embodying a relationship
considered commercial under a provision of law. In my opinion, in order to invoke the provisions of Section 3, it is not enough to establish that an agreement
is commercial. It must also be that it is commercial by virtue of a provision of
law or an operative legal principle in force in India."
123. See further for the question of the capacity of a State to agree to arbitration and the
question of immunity, infra 111-4.1.2.
125. High Court of Bombay, April 4, 1977, India Organic Chemicals, Ltd. v. Chemtex
Fibres Inc. et al. (India no. 4); see also infva at n. 11.135-138.
As the counsel for the defendants was unable t o call in aid any statutoay provision
or any operative legal principle in India, the Judge held that "the agreements
though commercial do not fall within the coverage of Section 3 of the 1961 Act".
Accordingly, the Judge refused to stay the court proceedings.
Such an overly literal and narrow interpretation of the t e r n "commercial9' is inconsistent with the underlying purpose of the Convention of facilitating enforce,ment within the framework of international commercial ~ b i t r a t i 0 n . IThe
~ ~ expression "under the laws in force in India" may have been easily given a broader meaning.12' One can only speculate as t o what may have been the domestic reason behind this Indian decision. In any event, this interpretation will make foreign enterprises uncertain as to whether an arbitral clause contained in a contract concluded
with an Indian party will be e n f o ~ c e a b l e . ' ~ ~
The commercial reservation refers to the law of the forum for determining what is commercial. Apart from the problem of giving a satisfactory definition of commerce on an international level, the New York
Convention does not offer the possibility of a uniform interpretation in
this respect. The question whether the commercial reservation will
effectively become a stumbling-block for a uniform application of the
Convention, depends therefore on the attitude of the courts of the Contracting States towards the Convention. Perhaps, those courts whose
domestic law gives a narrow definition of "commerce", could nevertheless interpret commerce under the Convention in a broader sense by
applying by analogy the international public policy test. As we will
later see, the courts in several countries have held that what is a violation of public policy under their domestic law, will not necessarily be a
violation of public policy on the international level.129 Thus, the field
of international public policy is smaller than that of domestic public
policy. Mutatis mutandis this test could be the test applied t o "commerce": what is non-commercial in domestic relations may be considered as commercial for the purpose of the Convention.
I- 1.9
The sole determining criterion for the question t o which arbitral

awards the New York Convention applies is, according to Article ][(I),
whether the arbitral award is made in the territory of another State. If
126. At an earlier occasion, the High Court of Bombay had held that transfer of technology
cannot be submitted to arbitration: Kamani Engineering Corp. v. SociBt6 de Traction, All
India Reports 1965 Bombay 114. This case was, however, distinguished in the Chemtex case
which was considered by the Judge as covering more than transfer of technology.
127. See for criticism, P. Sanders, "Consolidated Commentary Vols. I11 and IVY',in Yearbook Vol. IV (1979) p. 231 at p. 236.
128. It may be mentioned that the Andean Pact countries, of which Colombia and Ecuador
are New York Convention countries, seem not to allow arbitration in the field of transfer of
technology either: Art. 51 of Decision no. 24 (Andean Foreign Investment Code) adopted on
December 30, 1971, reproduced in 16 International Legal Materials (1977) p. 138 at p. 153.
129. See irzfra 111-5.1 ("Public Policy in General").
Field of Applicatio~z
55
the State where the enforcement is sought has used the first reservation
of Article %(3), the Convention applies only to the enforcement of
awards made in the territory of other Contracting States (pp. 12-15).
The nationality of the parties is not a criterion for the applicability of
the New York Convention (pp. 15-1 7). Nor must the underlying transaction be international, although it scarcely occurs that enforcement of
an award relating to a purely domestic affair will be sought in a foreign
country (pp. 17- 19).
The Convention does not apply to the enforcement of an award
made in the country where the enforcement is sought (p. 19). Nor
does it apply to the setting aside of an arbitral award, which matter the
Convention refers t o the exclusive competence of the court in the country in which, or under the law of which, the award is made (pp. 19-22).
The second criterion for the field of application as mentioned in
Article I(1) of the Convention that it also applies to awards which are
considered as non-domestic, forms merely an addition to the first
criterion of an award made in another State. The first criterion applies
therefore in all cases where the award is made in another (Contracting)
State. The second criterion concerns only awards made in the territory
of the State where the enforcement is sought. The courts have the
discretion to consider such award non-domestic (i.e., that it is governed
on the basis of an agreement of the parties by a foreign arbitration law).
The second criterion is, however, predominantly a doctrinal curiosity,
which has not been applied in practice so far, and which can, and
should, be disregarded because of the intricacies resulting therefrom
(pp. 22-29).
The Convention presupposes that an award is governed by a national
arbitration law, which will almost always be the law of the country
where the award is made, and excludes therefore the 6'a-national"
award. No arguments can be drawn from Article V(l)(d) according to
which the enforcement of an award may be refused if the composition
of the arbitral tribunal 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, as this provision must be deemed not to apply to "de-nationalizedy9arbitration (pp. 29-43).
The Convention applies only t o awards rendered in arbitration
proper, i s . , arbitration governed by a Law on Arbitration. Decisions
rendered in procedures not governed by Law on Arbitration, such as
the Italian avbitrato irritzaale, do not come within the purview of the
scope of the Convention (pp. 44-5 1).
The uniform definition of the t e r n "commercial" as used in the
second reservation of Article I(3) may be achieved by applying the test
of distinguishing between domestic and international commercial matters (pp. 5 1-54).
56
PART 1-2 ARBITRATION AGREEMENT FALLmG

UNDER THE CONVENTION
1-2.1
Introduction
It may be recalled that the New York Convention basically contemplates two actions: the enforcement of the arbitral award and the enforcement of the arbitration agreement. Which arbitral awards can be
enforced under the Convention has been examined in Part 1-1. We will
now examine which arbitration agreements can be enforced under the
Convention.
The enforcement of the arbitration agreement is provided by Article
II(3), which states that a 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 Article 11, shall, at the request of one
of the parties, refer the parties t o arbitration.l3' If a court is to hold
the New York Convention applicable to an action for the enforcement
of the arbitration agreement, the agreement must meet a certain number of conditions amongst which that the agreement must be in writing
as required by Article II(2) of the Convention.131
The Convention, however, only speaks definitively of its field of application in respect of the arbitral award, viz., a foreign award, which is
an award made in another State. It does not define which arbitration
agreement shall come within its purview if enforcement of such an
agreement is sought pursuant to Article II(3).
The reason why the Convention does not define its scope in respect
of the arbitration agreement was touched upon in the Introduction
under no. 9. Originally, it was the intention to leave the provisions concerning the formal validity of the arbitration agreement and the obligatory referral to arbitration t o a separate Protocol. At the end of the
New York Conference of 1958, it was realized that this was not desirable. Article I1 was drafted in a race against time, with, as consequence,
the omission of an indication as to which arbitration agreements the
Convention would apply.
For resolving the question which arbitration agreement can be enforced under the Convention, it would be consistent to interpret Article
130. The Convention does not use the term "enforcement" with regard to the arbitration
agreement, but speaks more in general about "recognition" (Art. II(1)). In order to identify
the referral by the court to arbitration pursuant to Art. II(3), the more specific term "enforce
ment" is used in the text in a manner which corresponds to the term "enforcement" in connection with the arbitral award. See for the referral to arbitration infra 11-1.
131. See infra 11-2 ("Written Form of the Arbitration Agreement").
57
II(3) in conformity with Article I, which is mainly based on the place

of rendition of the award.13"s
the place of rendition of the award
must be considered also the place of arbitration, we may examine
hereafter three categories of arbitration agreements:
('1) an agreement providing for arbitration in another State than that
where the agreement is invoked (1-2.2 infm)
(2) an agreement providing.for an arbitration in the State where the
agreement is invoked (1-2.3 infra)
(3) an agreement which does not indicate where the arbitration is to
take place (1-2.4 infra).
1-22
Ageement Providing for Arbitration in Another State
In the case of an agreement providing for arbitration in another

State, Article I of the Convention could be applied by analogy. As the
Convention applies to the enforcement of an award made in another
State, it could apply to the enforcement of an agreement providing for
arbitration in another State.
An examination of the court decisions in which an application under
Article II(3) was made, reveals that the majority of them involved an
agreement providing for arbitration in another State.133The application
of the Convention to this category of arbitration agreements appears t o
be so self-evident that almost no court gave an explanation why it applied the Convention. One of the few examples of an express reference
regarding this category can be found in a decision of the Italian
132. Accord, P. Sanders, "Consolidated Commentary Vols. III and IV" in Yearbook Vol.
IV (1979) p. 231 at p. 237, and "Consolidated Commentary Vols. V and VI", in Yearbook Vol.
VI (1981) p. 202 at p. 205. A somewhat different interpretation is that Art. II(3) applies to
those arbitration agreements which may lead to an award which will fall under the Convention
(e.g., K.-H. Schwab, Schiedsgerich tsbarkeit, 3d ed, (Munich 1979) p. 323 ; P. Schlosser, Das
Recht der internationalen privaten Schiedsgerichtsbarlceit (Tiibingen 1975) no. 70). This interpretation, however, fails to provide for criteria according to which it can be determined that an
arb'itration agreement will result in an arbitral award which could possibly be enforced in another Contracting State. Moreover, it can by no means be ascertained at the time the enforcement of the arbitration agreement is sought, whether the enforcement will be requested in a
Contracting State other than the State where the award will be made. This interpretation has
not been adopted by any court so far, nor has it been laid down in any implementing Act.
133. E.g., Corte di Cassazione (Sez. Un.), February 27, 1970, no. 470, Dreyfus Corp. v.
Oriana (Italy no. 2): arbitration in London; Moscow City Court (Civ. Dep't), May 6, 1968,
Ingostrakh v. Aabis Rederi (U.S.S.R. no. 1): arbitration in London; Corte di Cassazione (Sez.
Un.), April 8, 1975, no. 1269, Tomasos v. Sorveglianza (Italy no. 13): arbitration in London;
Landgericht of Hamburg, April 20, 1977 (F.R. Germ. no. 15): arbitration in Zurich; House of
Lords, February 16, 1977, Nova (Jersey) Knit Ltd. v. Kammgarn Spinnerei G.m.b.H. (U.IC.
no. 2): arbitration in F.R. Germany; U.S. District Court, C.D. California, December 2, 1976,
Star-Kist Foods Inc. et al. v. Diaken Hope S.A. et al. (U.S. no. 14): arbitration in London; U.S.
District Court of New York, S.D. December 27, 1977, Dale Metals Corp. v. KIWA Chemical Industry Corp. (U.S. no. 21); arbitration in Japan; Court of First Instance of Tunis, March 22,
1976, Soci8t8 Tunisienne d'Electricit8 et de Gaz (STEG) v. Sociktd Entrepose (Tunisia no. 1):
arbitration in Geneva.
Field of A pplica lion

Supreme Court which declared parenthetically that the New York Convention was applicable because the agreement providing for arbitration
in Paris could be considered as a "foreign arbitration agreement".13"
A question concerning the applicability of Article II(3) of the Convention to an agreement providing for arbitration in another State is
whether the agreement should have an international element. An arbitration agreement can be deemed "internationalwin its broad sense if,
seen from the court before which is invoked, at least one of the parties
to it is foreign, or if it involves a relationship (contract) which has legal
(i.e., connected with legal norms in force in several States) and/or economic (i.e., transfer of money, goods or services across national borders) contacts with more than one State. These criteria, in my opinion,
should not be used on a mutually exclusive basis, but can be used
whenever applicable. 135
It will rarely happen that an agreement invoked in a State other than
the State where the arbitration takes, or is to take, place concerns a
subject matter which has legal or economic contacts with the State
where the arbitration is to take place only and involves parties who are
both subject to the jurisdiction of the latter State. If such a case occurs,
it may be pointed out that the Convention does not exclude the enforcement of an award made in another State in respect of a matter
which is purely domestic for that State.13'j
It is, however, not so unlikely that an agreement provides for arbitration abroad between two parties who are both subject to the jurisdiction of the State where the agreement is invoked. Some places are quite
popular for certain types of arbitration. An example is maritime arbitration in London. What has been observed in respect of an arbitral award
made abroad between two nationals of the State where the enforcement is sought can be applied here by analogy.13' As the Convention
excludes the nationality of the parties from its scope for the enforcement of the award, by analogy, the enforcement of an agreement providing for arbitration abroad between two parties from the State where
the agreement is invoked may be considered to fall under Article II(3).
This application by analogy has been confirmed by the Italian
Supreme Court. As explained before, the exclusion of the parties' nationality from the Convention's scope had initially caused problems for
134. Corte di Cassazione (Sez. Un.), November 10, 1973, no. 2969, Rodriquez v. Supramar
A.G. (Italy no. 10).
135. See Ph. Fouchard, "Un arbitrage quand est-il international?", Revue de l'arbitrage
(1970) p. 59. See more generally for the question when a contract can be considered international, G. Delaume, "What is an International Contract? An American and Gallic Dilemma", 28
International and Comparative Law Quarterly (1979) p. 25 8.
136. See supra I- 1.3 ("No Internationality Required").
137. See supra 1-1.2 ("Party's Nationality Excluded").
59
the Italian courts in view of Article 2 of the Italian Code of Civil Procedure which prohibits two Italians to arbitrate in a foreign
In the leading Supreme Court decision Miserocchi v. Baolo Agnesi it
was held that the Convention supersedes Article 2 of the Italian Code
of Civil Procedure in respect of an award made abroad between two
Italian nati0na1s.l~~In a subsequent decision, the Italian Supreme
Court held the same for an action for the enforcement of an agreement
providing for arbitration between two Italians in Eondon.140 It should,
however, be noted that in the just mentioned Italian case the contract
to which the arbitration agreement related, had contacts with several
countries (i.e., a charter-party concluded in Paris) for which reason it
could be considered as "international9'. If the contract had legally and
economically been located in Italy only, it would have been questionable whether the Italian Supreme Court would have applied the New
York Convention, although even in this case the Convention should, in
my opinion, be applied. There is no such case in point, however,
either in Italy or elsewhere.
The law implementing the Convention in the United States appears
to exclude such a case from the Convention's applicability as Section
202 of that law provides that the Convention does not apply to an
agreement providing for arbitration abroad between two United States
citizens unless it involves a legal relationship which has some reasonable
relation with one or more foreign States.14' It may, however, be argued
that even in this case an application by analogy to Article I is justified.
The scope of the Convention is not limited to awards with an international element. It also covers the theoretical possibility of an award
made abroad concerning an affair which is entirely domestic for the
country where the enforcement is sought. If the enforcement of an
award made abroad between two United States nationals concerning a
purely domestic (U.S.) affair may not be refused for this reason only in
the United States, the same would apply to the enforcement of the
arb'Mration agreement. As was argued in respect of the enforcement of
the award, Section 202 of the United States Act must be considered to
be incompatible with the New York Convention in respect of the
enforcement of the arbitration agreement on this point
The Arbitration Act of 1975, which implements the Convention in the United
Kingdom, does not provide for the restriction of Section 202 of the
United States Act. Rather, this Act applies to the enforcement of any
138. Id.
139. Corte di Cassazione (Sez. Un.), December 13, 1971, no. 3620 (Italy no. 5).
140. Corte di Cassazione (Sez. Un.), January 25, 1977, no. 361, Total v. AchiUe Lauro
(Italy no. 26).
141. The same internationality is required for an agreement between two U.S. parties
providing for arbitration within the United States, see infra 1-2.3.3.
142. See supra 1-1.3.
60
arbitration agreement providing for arbitration abroad, irrespective of

the nationality of the parties or the internationality of the subject
matter. The Act applies therefore to arbitration in Paris between two
British nationals concerning a domestic (U.K.) t r a n ~ a c t i o n . ' ~ ~
It should be emphasized that the question of the applicability of Article II(3) to the
case where the agreement providing for arbitration abroad does not have an international element, must be distinguished from the refusal of enforcement of the agreement because the subject matter of the agreement is not capable of settlement by
arbitration (Art, II(1)) or the agreement is "null and void, inoperative or incapable
of being performed9' (Art. II(3)). These grounds cannot be applied on the sole
ground that the agreement is not "international9'. On the other hand, if two parties
of the same nationality have agreed to arbitrate abroad with the clear purpose of escaping, for example, from the application of mandatory tax laws, it can be argued
that enforcement may be refused on the grounds just mentioned.
The application by analogy to Article I may give rise to another question: What may be considered the Convention's applicability t o arbitration agreements providing for arbitration in another State if a State has
resewed the Convention's applicability t o awards made in other Contracting States only (the first reservation of Article I(3))? Is the Convention's applicability then also limited to agreements providing for arbitration in other Contracting States only? The same question can be
aslted for the commercial reservation.
Few courts have touched upon this question. In a case which
involved arbitration in London, the District Court in New York held
the Convention applicable, observing that: ". . . were England not a
signatory to the Convention, the latter's applicability to the present
case would not be so certain, notwithstanding the seemingly broad encompass of Section 202, in view of the reservation attaching to the
United States9accession to the C ~ n v e n t i o n . ' ~ ' ~ ~
The doubts cast by the District Court must be deemed justified. If
Article I is applied by analogy t o the arbitration agreement providing
for arbitration in another State, it seems illogical to confine the analogous application to the first paragraph of Article I only. The applicability of the Convention to arbitral awards is defined by both paragraph 1
and paragraph 3. It would be rather strange if a court of a country
where the first reservation has been used would, under the New York
Convention, not enforce an award made in a non-Contracting State, and
yet could be obliged to apply the Convention in cases of referral to
arbitration in such State. The same reasoning could apply t o the commercial reservation as
143. See for the U.K. Act, infi.0 1-2.3.2.
144. U.S. District Court of New York, S.D., March 21, 1977 Andros Compania Maritirna
S.A. v. Andri: & Cie, S.A. (U.S. no. 17).
145. See, e.g., U.S. District Court of New York, S.D., April 25, 1978, Siderius Inc. v. Corn-
1-23
Agreement Providing for Arbitration in the Forum's State
In the case of an agreement providing for arbitration in the State in

which the agreement is invoked, Article I obviously cannot be applied
by analogy. However, this would not be a reason t o deny the applicability of the Convention to this category of arbitration agreements as
the implementing Act of Sweden seems to do.
Section 1 of the Swedish Foreign Arbitration Agreements and Awards Act of 197 1
:
(as amended in 1976) provides
"An arbitration agreement shall be considered as 'foreign' if it stipulates that the
proceedings are to take place outside Sweden.
An arbitration agreement which does not indicate whether the proceedings are
t o take place within or outside Sweden shall be considered as 'foreign' if both
parties were resident outside Sweden."
This provision seems to indicate that if the arbitration agreement provides expressly
for arbitration within Sweden, the implementing Act, and hence the Convention, is
not applicable. There may be one remote possibility that the Act nevertheless
applies to arbitration within Sweden as may be inferred from the second paragraph:
if the agreement does not indicate the place of arbitration and two non-Swedish are
party to it, it may happen that for some reason the arbitration will take place in
Sweden (for example, the parties, arbitrators, or arbitrral institution concerned subsequently designate Sweden as place of arbitration).
This interpretation may be said to be too restrictive. Although the

Convention does, in theory, not exclude domestic cases as we have seen
in the foregoing Section, the primary goal of the Convention is to facilitate the enforcement of agreements and awards in international commercial arbitration. Accordingly, the main purpose of the Convention's
provisions concerning the arbitration agreement is t o give uniform rules
for the form of the arbitration agreement ("in writing"), and to assure
that international commercial arbitration will not be frustrated by
court litigation on the same merits as covered by the arbitration agreement. It is obvious that the purposes of uniformity can be fulfilled only
if the arbitration agreement is enforceable under Article II(3) in all
Contracting States, including the State where the arbitration is to take
place. Two examples may clarify this.
pania de Arcero del Pacifio (U.S. no. 25).

The case concerned an arbitration taking place in Chile in respect of the quality and condition of steel delivered by the U.S. corporation Siderius to the Chilean company Compania de
Arcero. The Court made an express link between Art. I1 and the commercial reservation of Art.
I(3), and concluded that the dispute in question arose out of a classical commercial relationship.
In England the courts have discretionary power under domestic arbitration law whether to refer the parties to arbitration. In contrast,
under the New York Convention they do not have this discretionary
power, but must refer the parties, at the request of one of them, to
a r b i t r a t i ~ n . ' If
~ ~Article II(3) applied only to arbitration abroad, any
international commercial arbitration taking place in London - and
there are many of them - would fall outside the reach of this Article
and its mandatory character. The drafters of the English Arbitration
Act of 1975 did not follow this narrow interpretation, as we will see
below.
The second example is the case where an arbitration agreement is
valid under the Convention, but not under domestic law. In this case it
could happen that the enforcement of an agreement, providing for
international commercial arbitration within the country where that
agreement is invoked, is refused, whilst the ensuing award could have
been valid in other Contracting States.
The Supreme Court of Austria had t o cope with the latter situation.'" An arbitration agreement concluded between an Austrian and a Swiss party by an exchange of
telexes provided for arbitration in Vienna. Under Austrian law an exchange of
telexes does not meet the written form required for the arbitration agreement; it is
generally considered, however, that such an exchange meets the requirement of
Article II(2) of the onv vent ion.'^^ The Austrian Supreme Court held Article I1 of
the Convention applicable, inter alia, on the ground that the agreement was "international", and upheld the validity of the arbitration agreement in question.
The broader interpretation that the Convention also applies to agreements providing for arbitration within the forum's State finds its most
emphatic confirmation in Section 206 of the Law implementing the
Convention in the United States. The Section reads: "A court having
jurisdiction under this Chapter may direct that arbitration be held in accordance with the agreement at any place therein provided for, whether
that place is within or without the United States. . . ." (emphasis added)
The broader interpretation of the Convention on this point can also
be found in the English Arbitration Act of 1975.lS0 Similarly, in court
decisions of both States as well as in those in Austria and the Netherlands, which will be discussed presently, the Convention has been held
applicable to the enforcement of an agreement providing for arbitration
within the own territory. The Swedish Act, which seems to limit the
Convention's applicability to agreements providing for arbitration in another State only, can therefore be regarded as a minority opinion.
147. See infru 11- 1.2.3 ("Referral Is Mandatory").

148. Oberster Gerichtshof, November 17, 1971 (Austria no. 2).
149. See infvn 11-2.4.1 ("Exchange of Telexes").
150. See infru 1-2.3.2.
63
The principle being that Article II(3) of the Convention also applies
to an agreement providing for arbitration in the State where its enforcement is sought, it remains to be determined to which arbitration agreements of this category Article II(3) applies. An acceptable interpretation
would be that these agreements are only those which have an international element. The reason for the limitation in this category of agreements is that the primary goal of the Convention is international commercial arbitration. If any agreement providing for arbitration in the
forum's State were to fall under the Convention, quite a number of
domestic arbitration laws would be upset as they lay down rules for the
formal validity of the arbitration agreement and the referral t o arbitration which are different from Article II of the Convention.
For these reasons the opinion of some authors that any arbitration
agreement falls under Article II of the Convention irrespective of the
place of arbitration provided therein, is t o be rejected.l5I It may be
added that no court has interpreted the Convention is such a broad
sense.'5Wor is it provided in any implementing Act that Article II of
the Convention supersedes domestic law in all cases.
The limitation to international cases for agreements providing for
arbitration in the forum's State is confirmed by the aforementioned
courts and implementing Acts of the United Kingdom and the United
States. However, a certain degree of disagreement exists as to the
question when an agreement can be considered as 66internationa199.153
This disagreement is reflected in the court decisions and implementing
Acts in regard to the agreement providing for arbitration in the forum's
State. We will therefore examine the two main cirteria for considering
an agreement "international" - the nationality of the parties and the
subject matter of the agreement - in the following.
1-2.3.2
Nationality of the parties
The criterion that at least one of the parties be a foreign national for
determining the applicability of Article II(3) t o an agreement providing
for arbitration in the State in which it is invoked, can be found in the
English Arbitration Act of 19'75. Section 1 concerning the "Effect of
arbitration agreements on court proceedings" provides in its second
151. This opinion is advanced, inter alia, by R. Luzzatto, "Accordi internazionali e diritto
interno in materia di arbitrato: la Convenzione di New York del1958", 4 Rivista di Diritto Internazionale Privato e Processuale (1968) p. 24 at p. 46.
152. A decision of the Landgericht of Hamburg, March 16, 1977 (F.R. Germ. no. 13)
would imply that Art. I1 applies to any arbitration agreement. This view has rightly been corrected by the Oberlandesgericht of Hamburg, September 22, 1978 (F.R. Germ. no. 20). See
supra at n. 30-31.
153. See supra n. 135.
64
paragraph: "This section applies t o any arbitration agreement which is

not a domestic arbitration agreement . . . .
What is understood by a "domestic agreement9?is defined in paragraph 4 of Section 1 as follows:
99
""I this Section 'domestic arbitration agreement9 means an arbitration agreement which does not provide, expressly or by implication, for arbitration in a
State other than the United Kingdom and to which neither
(a)'an individual who is national of, or habitually resident in, any State other
than the United Kingdom, nor
(b) a body corporate which is incorporated in, or whose central management and
control is exercised in, any State other than the United Kingdom,
is a party at the time the proceedings ape commenced." (emphasis added)
Therefore, according t o the English Arbitration Act of 19'75, an

arbitration agreement is domestic only if two conditions are met: (1)
both parties must be British and (2) the agreement must provide for
arbitration in the United Kingdom. Consequently, any arbitration
agreement which does not meet one or both conditions will be "international" - although the English Act does not use this expression and will fall under Article II(3) of the Convention.
It means, in the first place, that Article II(3) of the Convention applies t o an agreement providing for arbitration outside the United Kingdom without any requirement as to the nationality of the parties or the
internationality of the subject matter of the agreement. We need not
come back on this (first) category of arbitration agreements as it was
already discussed in 1-22 supra.
It means for the (second) category of arbitration agreements presently under discussion that where the agreement provides for arbitration
within the United Kingdom, such agreement will fall under Article II(3)
of the Convention as soon as one of the parties is non-British. This aspect of Section l(2) jo (4) of the Arbitration Act of 1975'has been applied by the English courts in three cases.
The first case concerned an agreement for the construction and operation of a pipeline in Zimbabwe (formerly Rhodesia) between a U.K. company and its Mozambique subsidiary on the one hand and a number of oil companies from various
countries on the other.'% When the U.K. company and its Mozambique subsidiary
sued the defendant oil companies in the High Court of London, two of the oil
companies moved for a stay of the court action on the basis of the clause contained
in the agreement providing for arbitration in London. The Judge held the Arbitration Act of 1975 applicable to the arbitral clause in question:
"Section 1 [of the 1975 Act] applies to any arbitration agreement which does
not come within the definition of a domestic arbitration agreement. The [agree-
154. High Court (Chancery Division), January 31, 1978, Lonrho Ltd. v. Shell et al. (U.K.
no. 5).
65
ment in question] does not come within that definition because foreign corporations are party to it."
The second case concerned a dispute between a Mauritius and a U.M. company, on
the one hand, and a Panamanian shipowner and his U.K. insurer on the other. The
first mentioned sued the shipowner and his insurer for damages caused to cargo before the Admiralty Court on the basis of the bill of lading which incorporated the
terms of the charter party including a clause .providing for arbitration in London.
The Judge held the Arbitration Act of 1975 applicable
". . . since the shipowners were a body incorporated in Panama and since their
central management and control were exercised in Greece . . . 18s
The third case concerned a dispute arising out of a charter party between a United
States corporation as shipowner and U.K. company as charterers. The shipowners
sued for wrongful repudiation of the charter party by the charterers. On the basis
3f the clause contained in the charter party which provided for arbitration in
London, the charterers applied for a stay of the court proceedings. Without any discussion on this point, the Judge held that the arbitral clause fell under the Arbitra:ion Act of 1975.lS6
It should be recalled that in these three English cases the outcome could have
been different if the arbitral clause was considered as not coming within the purview of the Arbitration Act of 1975. Under the latter Act the stay of court prozeedings is mandatory, whereas under the English Arbitration Act of 1950 (i.e.,
domestic arbitration), the courts have a discretionary power t o grant a stay.
,Y
The application of the criterion that a least one of the parties is a foreign national can also be found in a case decided by the Court of First
[nstance of Rotterdam.lS7 The case involved a contract of sale between
a Dutch and an Israeli company which contained an arbitral clause
providing for arbitration in Rotterdam. Considering whether the Court
should refer the parties t o arbitration, it held the New Yorlc,Convention
applicable "because both the Netherlands and Israel have ratified this
Convention9'.
The summary reasoning of the Rotterdam Court gives rise to a question in connection with the criterion under discussion: must the nationality of a party be that of a Contracting State if the forum State has
used the first reservation of Article I(3)? We already saw the effect of
the first reservation on the Convention's scope in respect of the arbitration agreement in the case where the agreement provides for arbitration
in another State.lS8 We see here another possible effect of the first
reservation which is based on the principle of reciprocity.lS9 However,
as mentioned earlier, the principle of reciprocity applies only t o a
155. Admiralty Court (Q.B. Div.), January 13, 1978, The Mauritius Sugar Syndicate et al.
Black Lion Shipping Co. S.A. (U.IC. no. 6).
156. Court of Appeal, July 20-21, 1977, Icoch Shipping Inc. v. Associated Bulk Carriers
Ltd. (U.IC. no. 3).
157. Rechtbanlc of Rotterdam, June 26, 1970, Israel Chemicals & Phosphates Ltd. v. N.V.
4lgemene Oliehandel (Neth. no. 1).
158. See supra at n. 144.
159. See supra 1-1.1 ("Universality and First Reservation").
1.
66
reciprocal treatment of awards rendered in the tei-ritory of either

State. Because the nationality of the parties is excluded for determining
the scope of the Convention as far as the arbitral award is concerned,
the general reciprocity clause of Article XIV, which is redundantly repeated in Article I(3), must be deemed not to apply to the nationality
of the parties.160
The use of the criterion of a party's nationality for determining the
field of application of the Convention in respect of an agreement
providing for arbitration in the forum's State is based on a different
purpose. It is a yardstick to determine whether such arbitration agreement is domestic or international. This has nothing to do with considerations of reciprocity. Accordingly, the nationality of a party need not
be that of a Contracting State. This view is confirmed by the Arbitration Act of 1975, which does not require that the foreign party have
nationality of another Contracting State.
The definition given in the Arbitration Act 1975 excludes the case
where two British parties have agreed to arbitrate disputes arising out of
an international transaction in London. This case would fall under the
Arbitration of 1950. Although it has not yet happened in practice it is
not unliltely that the case will come up. Many foreign companies have
British subsidiaries which conclude international contracts providing for
arbitration in London. In this respect the law of the United States
appears to be broader, as we will see hereafter.
A complicated mixture of the first reservation, the law governing the arbitration
and the party's nationality for determining the Convention's applicability to the
enforcement of the arbitration agreement, including - contrary t o the view expressed above - considerations of reciprocity in respect of the parties' nationality,
can be found in the Australian implementing Act of 1974.161 Section 7(1) of that
Act provides:
"Where (a) the procedure in relation to arbitration under an arbitration agreement is
governed, whether by virtue of the express terms of the agreement or otherwise,
by the law of a Convention country;
(b) the procedure in relation to arbitration under an arbitration agreement is
governed, whether by virtue of the express terms of the agreement or otherwise,
by the law of a country not being Australia or a Convention country, and a
party to the agreement is Australia or a State or a person who was, at the time
when the agreement was made, domiciled or ordinarily resident in Australia;
(c) a party to an arbitration agreement is the Government of a Convention
country or of part of a Convention country or the Government of a territory
of a Convention country, being a territory to which the Convention extends;
or
160. See supra I- 1.2 ("Party's Nationality Excluded").

67
(d) a party to an arbitration agreement is a person who was, at the time when
the agreement was made, domiciled or ordinarily resident in a country that is a
Convention country,
this section applies to the agreement."
1-2.3.3
Subject matter o f the arbitrution agreement
It was already observed in 1-2.3.1 that the law implementing the

New York Convention in the United States is the only one which expressly declares that a court may also direct that arbitration be held
within the United States (Sect. 206). This rule is qualified by Section
202, second sentence, which reads as follows:
"An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless that relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one
or more foreign states."
This part of Section 202 read in conjunction with Section 206

implies, in the first place, that Article II(3) of the Convention applies in
any case to agreements to arbitrate to which at least one of the parties
is non-American, irrespective whether the place of arbitration is within
or without the United States.16%pparentlly, it is presumed that such
agreement always relates to an international transaction.
Both Sections imply, in the second place, that Article II(3) also
applies to agreements between two U.S. parties, irrespective whether
the place of arbitration is within or without the United States, provided
that the underlying transaction is international. The United States law
therefore includes an agreement providing for arbitration in the United
States between two American nationals if the agreement relates to a
subject matter which is international.
This aspect of the United States Act was discussed in depth by the
The
U.S. District Court for the Western District of Penn~y1vania.l~~
case concerned a dispute between two U.S. corporations in respect of
the construction of a drying and calcining plant in the Republic of
162. Examples of cases in \vhich arbitration agreements between an United States citizen
and a foreign national, and between foreign nationals, providing for arbitration within the
United States, were held to fall under the New York Convention are: U.S. District Court of
New York, S.D., June 28, 1976, Antco Shipping Co. v. Sidermar (U.S. no. 9): agreement between Bahamian and Italian party providing for arbitration in New York; District Court of
New York, S.D., December 2, 1977, Ferrara S.p.A. v. United Grain Growers Ltd. (U.S. no. 20):
agreement between Italian and Canadian party providing for arbitration in New York; U.S.
District Court of California, N.D., September 26, 1977, Carolina Power & Light Comp. v.
G.I.E. URANEX (U.S. no. 23): agreement between United States and French party providing
for arbitration in New York.
163. U.S. District Court of Pennsylvania, W.D., October 19, 1976, Fuller Company v.
Compagnie des Bauxites de Guinee (U.S. no. 13).
68
Guinea. The arbitral clause in the contract provided for arbitration

in Geneva under the Arbitration Rules of the International Chamber of
Commerce. The parties had subsequently agreed that arbitration was t o
be held in Pennsylvania. Thereupon a controversy arose between the
parties whether a certain meeting between them had amounted to a
settlement. One of the parties went to the U.S. District Court for a declaratory judgment seeking a determination of the binding effect of the
alleged settlement. The other party moved for a stay of the court proceedings in favour of arbitration. In determining whether it had jurisdiction under the law implementing the New York Convention in the
United States, the Court stated that the jurisdictional requirement
would be met if "any oney9of the four conditions mentioned in Section
202 were met, viz.:
(1) The agreement involves property located abroad;
(2) The agreement envisages performance abroad;
(3) The agreement envisages enforcement abroad; or
(4) The agreement has some other reasonable relation with one or
more foreign States.
The Court concluded that the contract in question bore a sufficient
connection with the Republic of Guinea ("envisages performance
abroad"). Accordingly, it could sustain jurisdiction under the New
Yorlc Convention.
The U.S. District Court for the Southern District of New York came to an opposite
conclusion in a dispute between an American corporation (Coastal), on the one
hand, and a corporation incorporated in Panama (Zenith) and another American
corporation (Sea-King) on the other.'@ Coastal sued to recover the value of oil
which was aboard Zenith's ship that vanished without a trace on a transatlantic
voyage from England to the United States. On the basis of the arbitral clause in the
bill of lading providing for arbitration in New York, defendant Zenith moved for an
order t o refer the dispute to arbitration. The Court held that the arbitration agreement did not fall under the New York Convention:
"The instant case, however, appears to fall within the exception of the Convention's applicability provided in 9 U.S.C. Sect. 202, in that this action arises out
of a contract,i.e., a bill of lading, 'entirely between citizens of the United States'.
Coastal is clearly an American corporation, and, while Zenith is a Panamanian
corporation, it appears from the evidence in the case thus far adduced that it
has its principal place of business in New York City, thereby malcing it a 'citizen
of the United States' for the purposes of that Section, and removing the contract
from the terms of the Convention."
One wonders why the Court did not apply the reasonable relation test of the second
sentence of Section 202 in this case. If it had done so, the outcome could have been
different as transport of oil from England to the United States can be deemed tol!?
performance abroad or at least to have a reasonable relation with a foreign State.
V.
164. U.S. District Court of New York, S.D., August 18, 1977, Coastal States Trading Inc.
Zenith Navigation S.A. (U.S. no. 19).
165. It should be noted that, curiously enough, the Court considered Zenith a "foreign cor-
69
As far as the agreement providing for arbitration in the State where it

is invoked is concerned, the English Arbitration Act of 1975 makes the
applicability of Article II(3) of the Convention dependent on the condition that at least one of the parties be a foreign national. The United
States Act goes one step further by providing that an agreement between two American parties providing for arbitration in the United
States will also fall under Article II(3) of the Convention if it involves a
legal relationship which has a relation with one or more foreign States.
By using these criteria both Acts attempt to distinguish domestic agreements from international ones. The United States Act can be said to be
more complete in arriving at a satisfactory delimitation of an international agreement. This term can, however, only be inferred from both
Acts as neither one uses the term "international" expressis verbis.
An outright qualification of "international" can be found in the already quoted decision of the Austrian Supreme
In that case an arbitration agreement providing for arbitration at the Arbitration Court of the Vienna Commodity Exchange
had been concluded between an Austrian and a Swiss party for settling a dispute
arisen out of a contract of sale. The Court, however, did not state for which reason
it considered the arbitration agreement international.
1-2.4
Agreement Does Not Indicate Place of Arbitration
Although it happens less and less frequently, parties may have

omitted to indicate the place of arbitration in their agreement. It may
also be that the parties have referred in their agreement to Arbitration
Rules of an arbitration institute which Rules provide that the administering authority has to designate the place of arbitration, and that
~ ~ addition, some
authority has not yet made the d e ~ i g n a t i 0 n . l In
arbitral clauses and Arbitration Rules provide that under certain conditions arbitration can be initiated in the country of either party (the socalled 66home-on-home93
arbitral clause)@
'. '
For determining whether such an arbitration agreement falls under
Article II(3) of the Convention, the same test of internationality as ap-
poration" for the purposes of the New York State attachment statute (NYCPLR Sect. 6201 et
seq.).
166. Oberster Gerichtshof, November 17, 1971 (Austria no. 2). Cf. supra at n. 148.
167. Arbitration Rules usually provide that the administering authority will determine the
place if the parties are unable to reach agreement thereon. See, e.g., ICC Rules Art. 12. Under
Art. 16(1) of the UNCITRAL Arbitration Rules the arbitral tribunal shall determine the place
of arbitration "having regard to the circumstances of the arbitration", unless the parties have
agreed upon the place where the arbitration is to be held.
168. The RUCIP (Rggles et usages du comnzerce inter-europden de pommes de terre) Arbitration Rules provide, for instance, that arbitration in first instance must be instituted in the
country of the respondent (Art. 2 of the Rules).
7'0
plied to the agreement providing for arbitration in the State where the
agreement is invoked, can be adopted. This seems to be the only possible solution as, failing the place of arbitration, Article I cannot be
applied by analogy as was possible for the agreement providing for
arbitration in another State. 169 On the other hand, the interpretation
that any arbitration agreement would fall under the Convention has to
be rejected as being too broad. 170
One of the few examples in which the place of arbitration could not be detesmined at the time the enforcement of the agreement was sought can be found in a
case decided by the German Court of First Instance of Eleidelberg.l7' The case
involved an exclusive distributorship agreement between a F.R. German manufacturer of rugs and a Dutch firm. The agreement referred the settlement of disputes
t o arbitration at the German-Dutch Chamber of Commerce. The Arbitration Rules
of this Chamber of Commerce provide that arbitration can take place either in the
Netherlands or in F.R. Germany. The Court held that the enforcement of the
agreement was t o be judged under the New York Convention because F.R. Germany and the Netherlands had ratified the Convention. Although the application of
the Convention must be considered justified in this case as both the nationality of
the parties was diverse and the subject matter of the agreement concerned a transaction across national borders, the reference of the Court to the fact that both
countries had ratified the Convention is unfortunate. As explained earlier, it is not a
requirement that the parties be nationals of a Contracting State, even if the State
where the enforcement is sought has used the first reservation of Article I(3).ln
The mere fact that the parties have a different nationality would have been sufficient.
It may be recalled that Section 1(2) of the Swedish implementing Law, quoted
at the beginning of 1-2.3.1. supra, provides that an arbitration agreement which
does not indicate whether the arbitration is t o take place within or outside Sweden
shall be considered as "foreign9' if both parties were resident outside Sweden. It is
submitted that this provision is too limited. It would exclude the applicability of
the Convention where one of the parties is resident in Sweden and the other is
resident outside Sweden, or where both parties are Swedish and the underlying
transaction is international.
1-2.5
Uniform Interpreta tisn (and Summary)
Failing an express definition as to which arbitration agreements can

be enforced under Article II(3) of the Convention, the following interpretation may be adopted.
If the agreement provides for arbitration in another State, the Convention is applicable to the enforcement of such agreement. If the State
169. See supra 1- 1.2.2.

170. Seesupra 1-1.2.3.1 at n. 151-152.
17 1. Landgericht of Heidelberg, October 23, 1972, affirmed by Bberlandesgericht of ICarlsruhe, March 13, 1973 (F.R. Germ. no. 9).
172. Seesupra 1-2.3.2 at n. 158-160.
71
where such agreement is invoked has used the first reservation of Article 1[(3), the agreement can be enforced under the Convention only if
the State where the arbitration is t o talte, or is talting, place is a Contracting State. In both cases neither the nationality of the parties nor
the internationality of the subject matter of the agreement is material.
This interpretation is confirmed by the courts and the implementing
Acts, exceptfor the United States, in which country the agreement between United States parties must concern an international relationship
(pp. 59-60).
If the agreement provides for arbitration in the forum's State, Article
II(3) of the Convention will be applicable (a) if at least one of the parties is a foreign national or (b) if the underlying transaction is international. The conditions (a) and (b) may, of course, also be present in
the same case. It is on this point where the U.S. Act contains more
satisfactory provisions than the Act of the United Kingdom, which only
provides for condition (a). The Swedish implementing Act must be
deemed too restrictive as it excludes the Convention's applicability to
the agreement providing for arbitration in the forum State (pp. 61-69).
If the agreement does not indicate the place of arbitration, the same
test as applied to the agreement providing for arbitration in the forum's
State may be adopted (pp. 69-90).
72
Field of Applica tio n
PART 1-3
RETROACTIVITY
After having examined which arbitral awards and arbitration agreements can be enforced under the New Yorlt Convention, the next aspect of the field of application of the Convention is the element of
time: Does the Convention apply retroactively?
The Convention does not contain a provision on this question. The
Geneva Convention of 1927 did contain such a provision in Article 6:
"The present Convention applies only to arbitral awards made after
the coming-into-force of the Protocol on Arbitration Clauses, opened at
Geneva o n September 24, 1923."
At the New Uork Conference of 1958, Yugoslavia had proposed that
it be provided that the Convention should apply only to arbitral awards
rendered after the entry into force of the C o n ~ e n t i o n This
. ~ ~ ~proposal
~ ~the other hand,
was discussed at some length at the C 0 n f e r e n ~ e . lOn
the retroactivity in respect of the enforcement of the arbitration agreem e n t was not discussed, as at that stage, the Conference had not yet
adopted Article 11.
The Turkish delegate supported the Yugoslav proposal, arguing that
awards made many years ago and not enforced for one reason or
another should be excluded from the application of the Convention; to
permit the revival of such cases might cause great trouble and expense.
The Swiss and Argentinean delegates replied that cases on which a court
had rendered a judgment could not be reopened. The French delegate
added to this reply that enforcement of an award is only necessary if a
party does not abide by it voluntarily; the Convention would therefore
apply retroactively only to those awards whose enforcement had been
prevented by bad faith of the losing party.
The Israeli and Swiss delegates9objection t o the Yugoslav proposal to
deny the Convention retroactive effect was that, while it was a recognized rule that conventions and laws should not be made retroactive,
this rule should not apply to purely procedural instruments; this was
the case for the Convention whose primary purpose was t o facilitate the
recognition and enforcement of foreign arbitral awards. The Bulgarian,
Turltish and Belgian delegates, however, stated that the Convention was
not purely procedural, but also concerned questions of substance.

174. UN DOC E/CONF.26/SR.21a
73
The result of the vote on the Yugsolav proposal was 17 in favour and
111 against, with 10 abstentions. It was therefore not adopted, having
failed to obtain the required two-thirds majorityeU5
The commentators on the Convention generally interpret these
discussions and the voting behaviour of the delegates as indicating an intent of the drafters of the Convention to give it retroactive applicati011.l~~In view of the large number of abstaining votes, one may, however, doubt whether this intent is sufficiently clear. Moreover, the vote
concerned only arbitral awards; the provisions concerning the arbitration agreement had not yet been included.
1-3.2
Implementing Acts
Express provisions on the retroactive effect of the Convention are

contained in only some of the implementing Acts. The Act implementing the Convention in India declares that the Act applies to awards
Similarly, the
"made on or after the 1l t h day of October 196099.177
Act implementing the Convention in Botswana provides that it applies
to awards made after the coming into force of the A c t . I 7 V h e same
provision denying retroactive effect can also be found in the Act implementing the Convention in Ghana. 17'
On the other hand, the Act implementing the Convention in Australia declares that the Convention does have retroactive effect. Section 14
of this Act reads: "The application of this Act extends to agreements
and awards made before the date fixed under subsection 2(2), including
agreements and awards made before the day referred to in subsection
2( 11.99
It should be noted that, unlike the Acts of India, Botswana and
Ghana, the Australian Act also mentions the arbitration agreement.
As far as it could be researched, no other implementing Act contains
an express provision on the retroactive effect of the Convention.
175. Id.
176. E.g., P. Sanders, "Commentary", in Yearbook I (1976) p. 207 at p. 210; G. Gaja "Introduction", in New Yorlc Convention (Dobbs Ferry 1978-1980) I.A. at p. 5-6; G. Recchia, "An
Italian Approach to International Conventions on Arbitration", in Commercial ArbitrationEssays in Memoriam Eugenio Minoli (Turin 1974) p. 393 at p. 405; Th. Bertheau, Das New
Yorker Abkomrnen vom 10. Juni 1958 iiber die Anerkennung und Vollstreckung ausllindischer
Schiedsspriiche (Winterthur 1965) p. 107.
177. Foreign Awards (Recognition and Enforcement) Act. 1961, Act No. 45 of 1961
(November 30, 1961), Sect. 2.
178. Recognition and Enforcement of Foreign Arbitral Awards Act 1971, Act No. 49 of
1971 (December 22, 1971), Sect. 3(1).
179. Arbitration Act 1961, Act No. 38 of 1961 (March 16, 1961), Sect. 36(1).
74
1-3.3
Judicial Interprehtions
No uniformity exists amongst the courts either as to whether the

Convention has retroactive effect. Furthermore, when they do consider
it retroactive, they differ in regard to the moment on which the retroactivity should be taken into account. This complicated situation can
be best considered schematically :
As far as the arbitration is concerned, when the enforcement of the
arbitration agreement or the arbitral award is sought two and three
moments, respectively, can be distinguished:
( I ) Malring of the arbitral award (not applicable to the enforcement
of the arbitration agreement);
(2) Conclusion of the arbitration agreement;
(3) Commencement of the proceedings for the enforcement of the
agreement or award.
For the Convention three moments can also be distinguished:
(a) The date of the coming into force of the Convention (i.e., June '7,
1959);
(b) The date on which the Convention entered into force in the State
where the enforcement of the arbitration agreement or award is sought
(according to Art. XII(2) this date is the ninetieth day after deposit by
such State of its instrument of ratification or accession);
(c) In addition t o (b), the date on which the Convention entered into
force in the foreign State where the arbitration is taking place or where
the award is made. This may be relevant if the State where the enforcement is sought has used the first reservation of Article I(3).I8O
Considering the permutations of these time factors, there are at least
six possible moments for which the retroactive effect of the Convention
may be determined in the case of the enforcement of the arbitration
agreement: (2)&(a), (2)&(b), (2)&(c), (3)&(a), (3)&(b) and (3)&(c).
For the enforcement of the arbitral award there are at least nine possible moments: (l)&(a), (l)&(b), (l)&(c), (2)&(a), (2)&(b), (2)&(c),
(3)&(a), (3)&(b) and (3)&(c). Thus, the first three permutations
(( l )&(a), ( I )&(b) and ( l)&(c)) concern only the enforcement of the
arbitral award; the remaining six concern both the enforcement of the
arbitration agreement and the arbitral award,
Although this is woefully complicated, and would be unnecessary if
one simple rule were adopted - i.e., the Convention is retroactively
applicable in all cases - we need to examine each of the permutations
separately, as in respect of most of them the courts have implicitly or
expressly either rejected or accepted them.
180. See supra I- 1.1 ("Universality and First Reservation").
Ad (d)&(a): Award m d entry into force of Convention on June 7, 1959
The Convention was applied by the Dutch Supreme Court in its first decision in
respect of the Yugoslavia v. SEEE award which had been made on July 2, 1956 thus well before the coming into force of the Convention on June 7, 1959 - without any discussions on this point.181 No other court has been confronted with an
award antedating the coming into force of the Convention and it is highly unlikely
, that it will occur as the Convention is almost twenty-five years old.
Ad 41)k(b): Award and egtry into force of Convention in forum State
The Courts are divided on the question whether an award made before the entry
into force of the Convention in the country where the enforcement is sought falls
under the Convention. The U.S. Court of Appeals for the Second Circuit affirmed
that the Convention did apply.182 The contrary conclusion was reached by the
Court of Appeal of the Canton Geneva 183 and by the High Court of ~ h a n a . 'As
~~
noted before, the implementing Acts of Ghana, India and Botswana deny retroactive application of the Convention to awards rendered before the commencement
of the ~ c t s . ' ~ '
Ad (%)&(c): Award m d entry into force of Convention in foreign State concerned
If a court cleches to apply the Convention to awards made before entry into force
of the Convention in its country (see (l)&(b)), it may, in addition, decline to apply
the Convention if the State in which the award was made was not a Contracting
State at the time of the making of the award, in view of the first reservation of
Article I(3).
The Court of Appeal of Basle presumably relied on this possibility as a criterion
for the applicability of the Convention.186 The case concerned two Dutch awards
made in 1969 and 1970. The Court of Appeal referred expressly to the date of
entry into force of the Convention in both Switzerland (August 30, l 965) and the
Netherlands (July 23, 1964). The Court added that "the present awards are without
m y doubt rendered after the coming into force of the Convention [in both countries]", a d concluded that the Convention was applicable. A contrario it could be
argued that the Court would not have applied the Convention if the Netherlands
had not ratified the Convention at the time of the rendition of the awards.
The opposite view was expressed by the Court of Appeal of Hamburg concernin
an award made in the United Kingdom before its adherence to the Convention. 18f
The Court of Appeal expressly rejected the relevance of this date arguing that
the Convention applies retroactively as it has a procedural character.
Ad (%)&(a): Ageememt and entry into force of Convention on June 7, 1959

There is no court decision reported in which the conclusion of the arbitration agreement before the corning into force of the Convention has been mentioned in
181. Hoge Raad, October 26, 1973 (Neth. no. 2B). The same was done by the Court of
Appeal in this case, Hof of The Hague, September 8, 1972 (Neth. no. 2A).
182. U.S. Court of Appeals (2nd Cir.), May 29, 1975, Copal Co. Ltd. v. Fotochrome Inc.
(U.S. no. 3).
183. Cour de Justice of the Canton Geneva, May 12, 1967, Commoditex .A. v. Alexandria
Commercial Co. (Switz. no. 2).
184. High Court of Ghana, September 29, 1965, Strojexport v. Edward Nasser and Co.
Motors Ltd. (Ghana no. 1).
185. See Supra n. 177-179.
186. Obergericht of Basle, June 3, 1971 (Switz. no. 5).
187. Oberlandesgericht of Hamburg, July 27, 1978 (F.R. Germ. no. 18).
respect of the enforcement of the arbitration agreement.
The ~ ~ l l ~ l u s of
i o the
n arbitration agreement before the coming into force of the
Convention on June 7, 1959, in an action for the enforcement of the arbitral award
was talten into account by the Dutch Supreme Court in the already cited SEEE V.
Yugoslavia-case. The contract containing the arbitral clause was concluded
in 1932. The dispute between the parties resulted in an award made in the Cxnton
Vaud on July 2, 1956. In its first decision in the enforcement proceedings in the
Netherlands, the Dutch Supreme Court was of the opinion that on the basis of the
Convention, the parties can agree to an "a-national" arbitral award.lB8In its second
decision the Supreme Court decided that the award in question could not be considered as such an "a-national" award because at the time of conclusion of the arbitration agreement, the pmties could not have envisaged this faculty, the Convention
not being in existence at that time.lB9 This decision may be interpreted as meaning
that the Dutch Supreme Court regards the faculty to "de-nationalize" the arbitration, which it supposes to exist under the Convention, as a provision which, unlike
the Convention's other provisions, cannot have retroactive effect.
Ad (Z2)&(b): Agreement and entry into force of Convention in fomm State
The Italian Supreme Court has repeatedly held in actions concerning the enforcement of the arbitration agreement that the Convention also applies to the enforcement of arbitration agreements concluded before the Convention entered into force
in
As far as the enforcement of the arbitral award is concerned, the Italian Supreme
Court- has also held that the Convention is to be applied irrespective of the date
when the arbitration agreement was concluded, considering that the provisions of
the Convention are principally of a procedural nature.lg'
Ad (2)&(c): lageemeant and entry into force of the Convention in foreign State concerned
There is no court decision reported in which the conclusion of the mbitratioli agreement before the entry into force of the Convention in the State in which the ubltration is to take place, or is taking place, has been mentioned in respect of the enforcement of the arbitration agreement.
The criterion that the arbitration agreement was concluded before the Convention entered into force in the State where the award was made, was considered by
the Court of Appeal of Hamburg.lg2 The case concerned a contract containing an
arbitral clause which was concluded between a U.S. and German paf-ty before the
accession of the United States to the Convention. This was sufficient reason for the
Court of Appeal to deny the application of the Convention, notwithstanding the
fact that the award was made in New York after the date of accession by the
United States to the Convention. However, the same Court of Appeal has apgarently reversed its position in a subsequent decision, referred to above under permuta-
188. Hoge Raad, October 26, 1973, SEEE v. Yugoslavia (Neth. no. 2B). See for the question of "a-national" award and the SEEE v. Yugoslavia case supra 1-1.6.4.
189. Hoge Raad, November 7, 1975 (Neth. no. 2D).
190. Corte di Cassazione (Sez. Un.), January 25, 1977, no. 361 Total V. Achillo Lauro
(Italy no. 26); Corte di Cassazione (Sez. Un.), May 12, 1977, no. 3989, Scherk Enterprises
A.G. V. SociGti: des Grandes Marques (Italy no. 28).
191. Corte di Cassazione (Sez. Un.), December 13, 1971, no. 3620, Miserocchi v. Paolo
Agnesi (Italy no. 5), reversing Tribunale of Ravenna, April 15, 1970 (Italy no. 3).
192. Oberlandesgericht of Hamburg, April 3, 1975 (F.R. Germ. no. 11).
tion (l)&(c), in which it held that the Convention applies retroactively on the
ground that it has a procedural character.lg3
Ad (3)&(a): Enforcement proceedings and entry into force of Convention June 7 ,
1959
The situation where the enforcement proceedings on the arbitration agreement or
award were started before the coming into force of the Convention on June 7,
1959, has not come up in practice.
Ad (3)&(b): Enforcement proceedings and entry into force of Convention in forum
State
,
1
'
I
'
/
I
1
I
The initiation of enforcement proceedings in respect of an arbitral award before the

Convention had entered into force in the State in which the enforcement was
sought, was in 1969 a ground for refusal to apply the Convention for the Italian
Supreme ~ o u r t . 'The
~ Court argued that Article 11 of the Convention, because of
its contents, is a rule of substantive law rather than a rule of procedure. In subsequent decisions, the Italian Supreme Court abandoned this view and held that the
Convention has essentially a procedural nature.'''
It was, therefore, no surprise
that in 1975 it held the Convention applicable to enforcement proceedings in
respect of an arbitration agreement which had started already in 1967.'% This was
reaffirmed in a decision made in 1976 in regard t o an enforcement action on an
arbitration agreement which had been started in 1965.1g7
A rather narrow application of the retroactivity issue in respect of the enforcement of the arbitration agreement was given by the High Court of Kerala in India,
whose law implementing the Convention, as noted above, already denies retroactive
effect t o awards made before its coming into force on October 11, 1960.''~ In
1971 the Indian Supreme Court had interpreted the expression "submission" in
Section 3 of the 1961 Act implementing the Convention in India as meaning an
actual submission or completed reference to arbitration, and not a mere agreement
to refer or an arbitral clause.'99 An amendment by the Indian Parliament, which
came into force on November 26, 1973, amended the Supreme Court's restrictive
interpretation.200 In the case before the High Court of Kerala, the action for enforcement of the arbitration agreement was initiated in 1969. In 1977 the High
Court decided that the amended Section 3 applies only to suits that are commenced
after the coming into force of the new Section, and, accordingly, refused t o enforce
the arbitration agreement. The Court reasoned that the "new provision can be
193. Oberlandesgericht of Hamburg, July 27, 1978 (F.R. Germ. no. 18), see supra at n. 187.
194. Corte di Cassazione, April 30, 1969, no. 1403, Officine Fratelli Musso v. Societi
Sevplant (Italy no. 1). The Convention entered into force in Italy on April 29, 1969. The action in question was initiated on April 27, 1962.
195. See especially, Corte di Cassazione (Sez. Un.), December 13, 1971, no. 3620, Miserocchi V. Paolo Agnesi (Italy no. 5), see supra at n. 191.
196. Corte di Cassazione (Sez. Un.), April 8, 1975, no. 1269, Agenzia Marittima Constantino Tomasos Ltd. v. Sorveglianza S.I.P.A. (Italy no. 13).
197. Corte di Cassazione (Sez. Un.), November 8, 1976, no. 4082, Societi Brisighello v.
Casa Spedizione Internazionale Zoni & Festari (Italy no. 24). This case and the ones mentioned
in supra 11. 194 and 196 are a saddening demonstration how court actions in respect of international commercial arbitration can be dragged out in Italy.
199. Supreme Court of India, January 1971, V/O Tractoroexport v. Tarapore & Co. (India
no. 1). See for this question, infra 111-4.3.2 ("Submission to Arbitration").
200. Act No. 57 of 1973.
applied only prospectively since it deals not merely with matters that are procedural in nature, but also with substantive and vested rights,,.201
Ad (3)&(c): Enforcement proceedings and entry into force of Conve~~tiom
in foreign Slate concerned
There is no court decision reported in which the enforcement proceedings conceming the arbitration agreemetzt were initiated before the Convention had entered into
force in the State in which the arbitraton is to take place, or is taking place.
The situation where an enforcement action concerning an award was initiated
before the Convention had entered into force in the State in which the award was
made came up before the Supreme Court of Austria, which country has used the
first reservation of Article 1(3).~'~
The award had been made in the Netherlands
and the Austrian lower court had erroneously held that the Netherlands had at that
time not yet ratified the Convention. The Supreme Court decided that the Convention was applicable, as at the time of the request for enforcement the Netherlands
were already a Party to the Convention, This decision means in the first place that
if at the time of commencement of the enforcement proceedings in Austria the
Convention has not entered into force in the country where the award was made,
the Convention is not applicable. As the Austrian Supreme Court relied on the date
of the commencement of the enforcement proceedings, the decision may also
mean that the country of rendition need not yet have been a Party t o the Convention on the date when the award was made (cf., (l)&(c) above).
1-3.4
Retroactive AgpEcability in All Cases
The various permutations in which the courts have considered the

retroactive effect of the Convention and have reached widely differing
results, are dazzling. It is submitted that all these complicated permutations are unnecessary as one simple rule can be laid down: the Convention applies retroactively in all cases.
It is a well-established principle that international conventions do not
have retroactive effect on the contractual relations of the parties, "unless a different intention appears from the treaty or is otherwise establ i ~ h e d " . ~ OAt
~ the beginning of this Part it was already observed that
the preparatory worlts of the New York Convention do not do much to
clarify the absence of an express provision on the retroactive effect of
the Convention. However, another provision of the Convention - i.e.,
Article VII(2) - can be considered as "a different intention".
201. High Court of ICerala, January 3 1, 1977, Food Corporation of India v. Mardestine Compania Naviera (India no. 3).
203. See Art. 28 of the Vienna Convention on the Law of Treaties of May 23, 1969, Tractatenblad 1972 no. 5 1 , entered into force on January 27, 1980, which reads under the heading
"Non-retroactivity of Treaties":
"Unless a different intention appears from the treaty or is otherwise established, its provisions d o not bind a party in relation to any act or fact which took place or any situation
which ceased to exist before the date of entry into force of the treaty with respect to that
party."
79
Before commencing a textual interpretation, it may be wortliwhile

considering first whether the Convention contains substantive, as
opposed to procedural, provisions. As has been observed by various
delegates at the New York Conference of 1958, the purpose of the Convention is to facilitate the procedure for recognition and enforcement
of agreements and awards. The procedural character of the Convention
is the main argument used by the courts who favour r e t r ~ a c t i v i t y . ~ ' ~
However, it is argued that certain provisions, especially those concerning the arbitration agreement, are of a substantive nature and consequently the Convention is not retroactively applicable in this re~ p e c t . ~It' ~is submitted that this view gives too much credit to the
nature of the provisions concerning the arbitration agreement, If an
arbitration agreement does not meet the written form requirement of
Article II of the Convention, it does not mean that for this reason the
agreement is invalid; it only means that no enforcement under the
Convention is possible. Enforcement by virtue of Article VII(1) may
still be possible under other multilateral or bilateral treaties or the
domestic law on enforcement of foreign arbitration agreements and
awards.206 The Convention merely provides for enforcement if its
requirements are fulfilled. To this extent all provisions of the Convention can be considered as procedural.
Apart from these arguments based on the character of the provisions
of the Convention, the Convention itself also contains an indication
that it applies retroactively. Article VII(2) declares that the Geneva Protocol of 1923 and the Geneva Convention of 192'7 shall cease to have
effect between Contracting States on their becoming bound by the
Convention. If the Convention were not retroactively applicable in
countries which had adhered to the Geneva Treaties, a gap would exist
in respect of arbitration agreements and awards made before these
States became bound by the New York Convention. This category of
agreements and awards would then fall neither under the New York
Convention nor under the Geneva Treaties.207
It is obvious that this result was never the intent of the drafters
of the Convention. Although the intent of the drafters of the Convention was not entirely clear when they voted on an express provision in
respect of the retroactive applicability, Article VII(2) can be considered
204. See, e.g., Oberlandesgeiicht of Hamburg, July 27, 1978 (F.R. Germ. no. 18); Corte di
Cassazione (Sez. Un.), December 13, 1971, no. 3620, Miserocchi v. Paolo Agnesi (Italy no. 5);
Corte di Cassazione (Sez. Un.), January 25, 1977, no. 361, Total v. Achille Lauro (Italy no.
26).
205. P. Schlosser, Das Recht der irlternatiorzalen privaten Schiedsgerichfsbarlceit (Tiibingen
1975) no. 107.
206. See infra 1-4.
207. See also G. Gaja, "Introduction", in New York Convention (Dobbs Ferry 1978) I.A.I.
80
as a sufficient indication for an acceptance of the retroactive effect."$

The question remains which is the relevant date for the retroactive
effect. If it is accepted that the Convention applies retroactively, it i
difficult to understand why, for instance, the Convention. would app4:
to an award made before the entry into force of the Convention in thc
. country where enforcement is sought, but not to an award made beforc
the coming into force of the Convention on June 7, 1959.209Uniform
ity would be better served if one clear rule were relied upon: thc
Convention applies t o the enforcement of an award whenever tht
agreement or award has been made. The corollary applies to the en
forcementof the arbitration agreement.
1-3.5
Although the Convention does not contain a provision regarding it

retroactive effect, the Convention can be deemed to apply retroactivek
in all cases in which the enforcement of the arbitration agreement o
arbitral award is sought under the Convention, whenever the agreemen
or award has been made (pp. 72-80).
208. In comparison, the European Court of Justice, Judgment of November 13,1979, in t h ~

case 25/79, European Court Reports [I9791 p. 3423, Sanicentral G.m.b.H. v. Ren6 Colin, helc
that a forum selection agreement concluded before the entry into force of the European Con
vention on Jurisdiction and Enforcement of Civil and Commercial Judgments, signed at Brussels
September 27, 1968, falls also under this Convention. See for this Convention, infra 11-2.t
("Is a Revision of Article II(2) Needed?") at n. 11.306-310.
209. The date on which the Convention entered into force in the country where the award
is made may, however, be relevant if the country where the enforcement is sought has used the
first reservation of Art. I(3). In view of the procedural character of the Convention, the relevanl
date must be presumed to be the date on which the enforcement proceedings are initiated, and
not the date on which the award is made. See text at supra n. 202.
PART 1-4
1-4.1
81
DOMESmC LAW ON ENFORCEMENT AND OTHER

TREATIES %lIV THE FIELD OF A-ITRATION
(ART.
Introduction
In the preceding Parts I- l - 1-3 we have examined both which and

when arbitration agreements and arbitral awards fall under the New
York Convention. Such an agreement or award may, however, also
come within the purview of the domestic law concerning the recognition and enforcement of foreign arbitration agreements and awards.
The same may happen with bilateral or other multilateral treaties in the
field of arbitration. This situation of concurrent applicability poses the
question of the relationship between the New York Convention, on the
one hand, and domestic law and other treaties, on the other. On this
question the New York Convention provides the following in Article
VII :
"(I 1) The provisions of the present Convention shall not affect the
vafidity 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
192'7 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Conent ti on.^^
The first paragraph of this Article contains two provisions. One provision provides the freedom of a party to base his request for enforcement of an arbitral award on the domestic law concerning enforcement
of foreign arbitral awards or other treaties, instead of the New York
Convention. This provision may be called the more-favourable-rightprovision (hereinafter abbreviated as "mfr-provision"). The other provision is that the New York Convention does not affect the validity of
other treaties in the field of arbitration. This provision may be called
the compatibility-provision.
The relationship between the New York Convention and the
domestic law concerning the enforcement of foreign arbitral awards is
affected only by the mfr-provision. The domestic law is in a significant
number of countries more cumbersome for the enforcement of foreign
awards than the New York Convention, and probably for this reason
has not led to many court decisions. This relationship will be dealt with
in 1-43 below.
82
The question of the relationship between the New Yorl: Convention

and otlier treaties seems to be more complicated. In the first place,
whereas according to its text the compatibility-provision concerns
, the applicability of the later treaties is not
earlier treaties only
excluded because the mfr-provision refers to treaties in general. Consequently, both the compatibility-provision and the mfr-provision play a
role for the question of the relationship between the New York Convention and other treaties. In the second place, the relationship between the New York Convention and the other treaties obviously
cannot be determined by the New York Convention alone; here we
have also to 1001~at both the general rules of conflict of treaties and
what the other treaties provide in this respect. Although the relationship with other treaties may seem to be a complicated one, it has not
led to major problems in practice as will be seen when this relationship
is examined in 1-4.4.
The exception to the compatibility- and mfr-provision of the first
paragraph of Article V11 is stated in the second paragraph according to
which the Geneva Protocol of 1923 and the Geneva Convention of
1927 shall cease to have effect between the States that become Party to
the New York Convention. As all States which had adhered to the
Geneva Treaties have not yet become a Party t o the New York Convention - although their number decreases constantly - the provision of
Article VJI(2) has caused some problems which will be dealt with in
1-4.5.
The mfr-provision is concerned with the relationship with domestic
law and other treaties; the compatibility-provision is concerned only
with otlier treaties. As the mfr-provision concerns both relationships,
the general aspects of this provision will be examined first in I-4-.2,
before considering both relationships in particular.
The mfr-provision is a consequence of the Convention's purpose to

facilitate the enforcement of foreign arbitral awards. It embodies the
principle that if the Convention's conditions are not met, the award can
still be enforced on another basis. The Court of Appeal of Cologne expressed this as follows: ""The rationale of this provision is t o avoid
depriving a party who seeks recognition of an award of more favourable
possibilities under the national law of the State where enforcement is
210. See text infra at n. 232-233.
83
sought.
The Court could have added "or under the treaties to
which the State where enforcement is sought has adhered". Leaving
aside this omission, the Court clearly indicated the rationale of the
mfr-provision in Article VII( 1).
The mfr-provision's underlying idea is to make possible the enforcement of foreign awards in the greatest number of cases possible.
Favourable to enforcement as that may be, it does not enhance the
establishment of a uniform legal regime governing international commercial arbitration. Exclusive applicability of the Convention to the enforcement of foreign awards would increase the degree of certainty as
to which awards are enforceable and which are not. As it now stands,
those awards which do not comply with the Convention have an
uncertain status. The exclusive applicability of the Convention could
have put a greater pressure on practice to conform to the Convention's
conditions.
The mfr-provision may also lead t o unexpected situations for a party
against whom enforcement is sought. An example, which will be elaborated hereafter, may be found in the F.R. German domestic law concerning the enforcement of foreign awards. Unlike Article V(l)(a) of
the New York Convention, under the German domestic law, the invalidity of the arbitration agreement is not a ground for refusal of enforcement if that ground could have been asserted in an action for setting
aside in the country where the award was made. 1f a defendant, faced
with a foreign award based on an arbitration agreement which is invalid
according to the law of the country where the award was made, does
not initiate an action for setting aside the award in the country of rendition because he expects to have the possibility to invoke the invalidity of the agreement pursuant t o Article V( l)(a) of the New York Convention in F.R. Germany, he may be caught by surprise if the plaintiff
does not rely on the New York Convention, but rather, by virtue of the
mfr-provision, on German domestic law. At that time the time limit for
setting aside the award in the country of rendition may well have
expired. Losing parties, residing or having assets in countries like F.R.
Germany, should, therefore, be warned of this possibility offered to the
winning party by Article VII(1) of the Convention.
The few court decisions in which the mfr-provision has been applied
will be dealt with in the following two Sections (1-4.3 and 1-4.4). The
reason for the infrequent application may be that the parties are not
aware of the possibilities offered by the mfr-provision which appears in
the text of the Convention after its "heart9'. A more likely reason may
be, however, that the Convention itself is more favourable for enforcement than many of the other bases.
992"
21 1. Oberlandesgericht of Cologne, June 10, 1976 (F.R. Germ. no. 14).
84
These few cases must be distinguished from the cases in which the enforcement of
the award is based on a bilateral treaty or domestic law on enforcement without
m y mention of the Convention, aid in pasticular. its Article VII(I), although the
award would have come within the Convention's scope. This applies especially to
France where, in general, vely few courts have dealt with the Convention. It is said
that the reason bekind this practice is that French lawyers and judges are unfamiliar with the New York
In my opinion, it would be 1e.gally more correct to refer in these cases to Article VII(1) of the Convention in order to make
clear its relationship with the other bases.
The rare application of the mfs-provision maltes it difficult to state

the judicial interpretations of this provision. Anticipating possible
diverging interpretations, three points may be mentioned.
1-4.2.2
Who may invoke?
According to the text of Article V%I(l),"any interested party" may

rely on the mfr-provision. This expression may suggest that both the
party seeking enforcement and the party against whom enforcement is
sought are meant by it. Such interpretation would be reinforced by the
fact that in other provisions of the Convention a distinction is made between "the party applying for recognition and enforcement" (Art.
IV(1)) and "the party against whom [the award] is invoked" (Art.
V(
Despite the seemingly broad meaning of the expression "any interested party", it cannotmean anything else than the party seelting enforcement. An award may be enforceable under the New York Convention, but not under domestic law, for example, because the latter requires a specific approval in writing for the arbitral clause.213 If the party against whom the enforcement is sought would be permitted t o
invoke the domestic law, the enforcement could not be granted,
although the award would be enforceable under the New York Convention. This result would be wholly inconsistent with the pro-enforcement bias of the Convention and the aim of the mfr-provision itself
which is to provide for enforcement in the greatest number of cases
possible.
Also the text of Article VII(1) appears to be against the reliance, by
the party against whom the enforcement is sought, on domestic law or
212. See P. Sanders, "Consolidated Commentary Vols. 141 and IV", in Yearbook Vol. BV
(1979) p. 231. An example in which, in my opinion, the Convention could have been applied
is Cour de Cassation (1st Civil Chamber), March 18, 1980, Compagnie d'armement maritime v.
Compagnie tunisienne de navigation, published in Revue d e l'arbitrage (1980) p. 496, with
comment by Mezger at p. 500, concerning the request for enforcement of an award made in
London. This case was decided on the basis of French domestic case law concerning the enforcement of foreign arbitral awards.
213. Such a requirement is, for example, to be found in Arts. 1341 and 1342 of the Italian
Civil Code, see infra II- 2.4.3.2.
85
other treaties. Article VII(1) speaks, in fact, of two different rights. The
first is the right a party may have to avail himself of an arbitral award.
The second is the right to rely on another enforcement basis, thus the
mfr-provision. Article VII(1) grants the right to rely on another enforcement basis (i.e., the second right) only to the party who can avail
himself ,of a right of the arbitral award (i.e., the first right). Since, in
principle, only the party seeking enforcement can be considered to have
a right under the award, e.g., that he be paid damages, and the other
party only an obligation, the right to rely on another enforcement
basis, of Particle VII(l), must logically be deemed to be limited only to
the party seeking enforcement.
The interpretation that "any interested party9' means only the party
seeking enforcement, is apparently also understood in this sense in practice. In no case has a party against whom the enforcement was sought
used Article VII(1) to argue that domestic law or another treaty would
govern the enforcement instead of the New York Convention. It may
be added that the above quoted sentence of the Court of Appeal of
Cologne is one of the sparse decisions in which the mfr-provision is expressly linked with the party seeking enforcement."14 The authors who
have considered the expression "any interested party" adhere to the
same interpretation."'
From the foregoing it follows that if a party seeking enforcement
chooses t o rely on another enforcement basis, for instance, because the
arbitral clause in question does not comply with the written form as required by Article II(2) of the New Yorlc Convention, the other party
must acquiesce in this choice. He cannot argue that the enforcement
should be refused by virtue of the New Yorlc Convention because the
Convention is "more favourable" to him. In 1-4.2.1 it was seen that
this may lead to unexpected situations for that party.
11-4.2.3
No combincktion Convention with other possible bases
If a party seeking enforcement choses to rely on the domestic law

concerning enforcement of foreign awards or on another treaty by virtue of the mfr-provision of Article VII(1) of the New York Convention,
he must rely on that other basis in toto, to the exclusion of the New
~ ~may
~
not, for instance, rely on domestic law
York C ~ n v e n t i o n .He
214. Oberlandesgericht of Cologne, June 10, 1976 (F.R. Germ. no. 14); see supra at n. 21 1.
The Bundesgerichtshof, February 12, 1976 (F.R. Germ. no. 12), also observed that "According
to the more-favourable-right-provision of Art. VII of the New York Convention the party
seeking enforcement has the liberty to base his request for enforcement on domestic law". (emphasis added)
215. P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen
1975) no. 123; P. Sanders, "Commentary", in Yearboolc Vol. I1 (1977) p. 254 at p. 263.
216. This question must be distinguished from the question whether a court may rely on
----ax-
86
for the formal validity of the arbitration agreement, excluding thereby

Article II(2) of the Convention, but for the other aspects of the enforcement still rely on the remaining provisions of the Convention.
Such a combination would contradict the interdependence of the
Convention's provisions which must be deemed to constitute a whole.
The same principle of interdependence naturally also goes for the
domestic law concerning the enforcement of foreign arbitral awards and
the other treaties. The view that a combination of the Convention's
provisions with the provisions of another enforcement basis is not
allowed, was explicitly affirmed by the already mentioned Court of
Appeal of Cologne.217 Two treaties may, however, be combined where
the treaties so imply. This is true of the European Convention of 1944
which complements the New York Convention in certain cases.218
1-4.2.4
Mfr-provision and the arbitratbve agreement
The mfr-provision of Article VII(1) mentions expressly only the enforcement of an arbitral award. It does not mention the enforcement of
an arbitration agreement, which possibility is provided in Article II(3)
of the C o n ~ e n t i o n The
.~~~
mfr-provision may, however, also be important in this case. Although an arbitration agreement may fall under the
New York Convention, it may happen that the form of the agreement is
not in accordance with the written form as required by Article II(2), and
hence the agreement may not be enforceable under the Convention.
Under domestic law or another treaty, the agreement in question could
still be enforceable. If the mfr-provision could not be applied in this
case, the faculty to rely on another basis for enforcement would seem
to be excluded.
The omission of an express mention of the arbitration agreement in
Article VII(1) must be deemed unintentional as the provisions concerning the agreement were inserted in the Convention at a very late stage
of the New York Conference of 1958. Rather, the text of the Convention hints that an extensive interpretation is required. As noted before,
the general rule is the application of compatibility- and mfr-provision of
the first paragraph of Article VII. As far as the enforcement of the arbitral award is concerned, the abrogation of the Geneva Convention for
the Execution of Foreign Arbitral Awards of 1927 in the second paragraph of Article VII can be considered as an express exception to the
general rule. However, the abrogation of the Geneva Protocol on Arbiits own initiative on a more favourable basis for the enforcement. It is generally accepted that a
court has such freedom. See Schlosser, supra n. 215, no. 128.
217. Oberlandesgericht of Cologne, June 10, 1976 (F.R. Germ. no. 14), See supra at n. 211.
218. See infra 1-4.4.2.
219. See generally infra 11-1 ("Referred by Court t o Arbitration").
84
tration Clauses of 1923, also stated in the second paragraph, may be

considered as an exception as well. The reason for this is that the New
York Convention is conceived as a replacement of both the Geneva Protocol and the Geneva Convention. This is clearly indicated by the fact
that both Geneva Treaties are abrogated in the same provision, which
provision, moreover, is placed directly after the general rule that the
New York Convention does not affect other treaties. Because the matters covered by the Geneva Protocol can be deemed to fall under the
exception, they can be deemed to be included in the general rule. In
other words, the exception clarifies the scope of the general rule. One
of the matters regulated by the Geneva Protocol is the refeaal by the
court to arbitration in its Article 4, which provision is similar t o Article
II(3) of the New York C~nvention.~"This would lead to the conclusion that the general rule of having the freedom to rely on another basis
for the enforcement includes the enforcement of the arbitration agreement.
In addition, it should be observed that it would seem contrary to the
pro-enforcement bias of the Convention that the mfr-provision, which
aims at making enforcement of awards possible in the greatest number
of cases possible, would not apply also to the enforcement of the arbitration agreement. If it were otherwise, a curious situation could arise:
if an arbitration agreement does not conform to the formal requirements of Article II(2), referral to arbitration would have to be rejected,
whilst an award based on the same agreement could be enforced on
another basis by virtue of the mfr-provision. This dichotomy obviously
cannot have been the intention of the drafters of the New York ConventioneZ1
The question of the applicability of the mfr-provision to the referral
t o arbitration has been mentioned only in anticipation of future cases.
In practice, the above question has not yet come up, although it is
not unlikely that it will, considering the rather stringent form for the
arbitration agreement as required by Article II(2) of the Convention.
For simplicity's sake the question will, in general, not be included in
the following Sections, although the observations made therein will
220. Art. 4 of the Geneva Protocol of 1923 provides:

"The tribunals of the Contracting Parties, on being seized of a dispute regarding a contract
made between persons to whom Article 1 applies and including an arbitration agreement
whether referring to present or future differences which is valid in virtue of the said Article
and capable of being carried into effect, shall refer the parties on the application of either
of them to the decision of the arbitrators.
Such reference shall not prejudice the competence of the judicial tribunals, in case the
agreement or the arbitration cannot proceed or becomes inoperative."
221. Accord, H.-V. von Hiilsen, Die Gultigkeit von internationalen Schiedsvereinbarungen
(Berlin 1973) p. 53 n. 8; P. Sanders, "Consolidated Commentary Vols. V and VI", in Yearbook
VI (1981) p. 202 at p. 217.
88
apply mutatis mutandis. It should be added that few bilateral and

multilateral treaties contain a provision similar to Article II(3) of the
C o n ~ e n t i o n .Consequently,
~~~
what remains as an alternative basis for a
request for referral to arbitration is generally domestic law.
1-4.3
Relationship Between Convention and Domestic Law on

Enforcement of Foreign Awards
A consequence of the mfr-provision is that the New York Convention does not supersede the domestic law on the enforcement of foreign
awards of the country where the enforcement is sought. A F.R. German
Court of Appeal was of a different opinion regarding an arbitral award
made in Romania, as it held that the New York Convention had superseded Section 1044 of the German Code of Civil Procedure which is the
German domestic law on the enforcement of foreign awards. The German Federal Supreme Court corrected this view by holding that the
New York Convention does not supersede Section 1044 of the German
Code of Civil Procedure as, pursuant to Article VII(1) of the Convention, a party is free t o base his request for enforcement on the domestic
law of the country where the enforcement is
The domestic law on the enforcement of foreign awards has been
relied upon for the enforcement of an award in connection with the
New York Convention only in very few reported cases so fare2" This is
not surprising since, as observed, in many countries the domestic law on
the enforcement of foreign arbitral awards is more cumbersome than
the New York Convention.
F.R. Germany is one of the few countries where in certain cases the
domestic law may be more favourable to the enforcement of foreign
awards. For example, under German law the invalidity of the arbitration agreement is not, unlike Article V(l)(a) of the Convention, a
ground for refusal of enforcement of a foreign award if the invalidity
could have been asserted in an action for setting aside in the country
where the award was made.225
222. See for bilateral treaties, infra 1-4.4.4.

223. Bundesgerichtshof, February 12, 1976 (F.R. Germ. no. 12).
224. E.g., Oberlandesgerichts of Diisseldorf, November 8, 1971 (F.R. Germ. no. 8): the
Court held that the New York Convention could not be applied to the enforcement of the arbitral award as the sales confirmation containing the arbitral clause had not been returned, which
in insufficient for Art. 11(2) (see infra 11-2.4.2), but granted the enforcement on the basis of
German domestic law concerning the enforcement of foreign arbitral awards. The Court did,
however, not mention Art. VII(1) expressly.
225. See especially E. Mezger, "Die Anerkennung jugoslawischer und anderer osteuropaisscher Schiedsspriiche in der Bundesrepublik", 15 Neue Juristische Wochenschrift (1962)
p. 278 at p. 282.
The following case decided by the German Supreme Court is worth mentioning as
an example of its application outside the New York onv vent ion.^^
The case concerned the request for enforcement of an award made in Yugoslavia
which State was then, and is at the time of this writing still, not a Party to the New
York Convention. As F.R. Germany has used the first reservation of Article I(3)
according to which it will only apply the Convention t o the enforcement of awards
made in other Contracting States, the Convention could not be applied.
The German respondent had objected to the request for enforcement of the
award that the arbitration agreement contained in a broker's note was invalid as it
was not in writing. The Supreme Court rejected this objection. According to Section 1044(2) of the German Code of Civil Procedure a foreign award will be enforced in Germany unless it has not become legally binding ( r e c h t s u n w i r k s a m )
under the applicable arbitration law (i.e., Yugoslav law). Pursuant to Yugoslav arbitration law, a party has 30 days after the making of the award to apply to the court
for setting aside on the ground of invalidity of the arbitration agreement. As the
German respondent had not made such an application, the award had become binding under Yugoslav law, and there was no longer a possibility t o assert the invalidity
before the German courts.
If Yugoslavia were a Party t o the New York Convention, the same would
probably have happened. If the arbitral clause in question did not meet the written
form as required by Article II(2) of the New York Convention, the Yugoslav claimant could, by virtue of Article VII(l), have relied on the German domestic law for
enforcement of foreign arbitral awards. The decision of the Supreme Court would
then have been the same.
The enforcement of foreign awards under domestic law is, in principle, not limited to actions based on specific statutory provisions. A
possible action outside the statutory provisions may be the actio ex
contractu. Under this action the award is considered as a contract
between the parties. A variant of this action is to base it on the obligation assumed under the arbitration agreement to carry out the arbitral
The actio ex contractu is more complicated than the enforcement of foreign awards under the New York Convention and most of
the domestic laws as it involves the bringing of an ordinary contract
claim with all possible defences thereto. It is a last remedy which may
be useful in cases where the other actions
It may be added that where a court of the country in which the
award is made has confirmed or declared enforceable (leave for enforcement, exequatur and the like) the award, it may be enforced in another
country as a foreign country judgment. This possibility will be considered in connection with the question whether in such a case the award
226. Bundesgerichtsho f, January 3, 197 1, Die deutsche Rechtsprechung auf dem Gebiete
des internationalen Privatrecht (197 1) no. 158.
227. The possibility of the actio ex contractu was denied by the Corte di Appello of Bari,
May 30, 1973, Casulli v. Tradax England Ltd. (Italy no. 8).
228. In the Common Law countries the action is called an action on the award, see my
article, "Etude comparative du droit de l'arbitrage commercial dans les pays de Common Law",
19 Rassegna dell'Arbitrato (1979) p. 1 1 at p. 58.
90
can still be enforced as an award under the New York Convention or

must be deemed to be absorbed by the judgment (i.e., the question of
merger). 229
1-4.4
Relationship Between Convention and Bilateral and Multilateral Treaties
1-4.4.1
I@general
If an award falls under the definition of the field of application of

the New York Convention and bilateral and multilateral treaties, the
question of the relationship between both instruments is to be determined by three sets of provisions: (1) the provisions of the New York
Convention, (2) the rules of conflict of treaties, and (3) the provisions
of the other treaty in question. The provisions of the other treaties will
be examined subsequently; first some observations will be made in
respect of the New York Convention and the rules of conflict of
treaties.
The New York Convention is quite liberal concerning its relationship
with other treaties. The compatibility-provision of Article VII(1) lays
down as a general rule that the 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.
The mfr-provision adds to this that a party may base his request for enforcement of the award on the treaties in force in the country where
the enforcement is sought.
As regards conflict of treaties, the two traditional main principles are
lex posterior derogat priori and lex specialis derogat generali. More recently, doctrine and case law have developed a third principle: la r2gle
d 'efficacite' maximale. This principle of maximum efficacy, replacing
where appropriate the two traditional ones, stands for the proposition
that the treaty will be applied which upholds validity in a given case.230
It would be beyond the scope of the present study to go into the question whether judges have not always done so implicitly. It may suffice
to say that the fact that the principle is now being formulated openly
has conferred upon it an "official" recognition, and makes it more
workable in practice.
In the case of arbitration, the principle of maximum efficacy means
that if an award is unenforceable under one treaty which could be applied, but enforceable under another which could also be applied, the
229. See inpa 111-4.5.2.3 ("Merger of Award into Judgment").
230. See generally F. Majoros, Les Conventions internationales en rnatibre Qe droit privt
(Paris 1976).
other treaty will be applicable, irrespective of whether it is an earlier
or later treaty, and irrespective of whether it is more general or specific.
The compatibility- and mfr-provision can be considered as a reflection of the principle of maximum efficacy. The principle can therefore
be said to be implied in the New York Convention itself. Moreover, the
main purpose of the Convention t o facilitate enforcement can equally
be held in accordance with this principle.
On the other hand, the Vienna Convention on the Law of Treaties of
May 23, 1969, seems not to offer decisive solutions for the relationship
between the New York Convention and other treaties.
The Vienna Convention 231 itself does not say anything on the principle of maximum efficacy, probably because the express formulation of this principle is quite
recent. Some traditional principles concerning conflict of treaties, insofar as relevant for the present question, can be found in Article 30, entitled "Application of
Succesive Treaties Relating to the Same Subject Matter". Worth mentioning is paragraph 2 of the Article 30 which reads:
"When a treaty specifies that it is subject to, or that it is not to be considered as
incompatible with, an earlier or later treaty, the provisions of that other treaty
shall prevail." (emphasis added)
An isolated reading of the compatibility-provision contahed in Article VII(2) of the
New York Convention may suggest that it triggers the application of Article 30(2).
As regards treaties concluded prior to the coming into force of the New York
Convention - i.e., on June 7, 1959 - Article 30(2) of the Vienna Convention
would imply that they prevail over the New York Convention. The question
whether this is the case for earlier multilateral treaties has little practical significance because the only important multilateral treaties concluded prior to the
coming into force of the Convention were the Geneva Protocol of 1923 and the
Geneva Convention of 1927, which are, however, abrogated by Article VII(2). For
some earlier bilateral treaties, Article 30(2) of the Vienna Convention could create
a problem.
As regards treaties concluded subsequent to the coming into force of the
Convention, Article 30(2) of the Vienna Convention would also imply that they
prevail over the New York Convention. It should, however, be pointed out that it is
not altogether clear whether the compatibility-provision contained in Article VII(1)
of the New York Convention also envisages treaties concluded later. The English
text merely states "entered into". The French and Spanish texts, which are equally
authentic by virtue of Article XVI of the Convention, are also vague, reading "conc1usY7
and 6'concertados" respectively. The Russian text, which is also authentic, appears, however, to read "have concluded".232 The German text, which is not
authentic, supports this as it states "geschlossen h a b e r ~ " .It~ would
~ ~ therefore seem
that the text of the Convention itself already excludes the applicability of Article
30(2) of the Vienna Convention to the relationship between the Convention and
later treaties.
231. Tractatenblad 1972 no. 5 1. See supra Introduction at n. 8.

232. Art. 33 of the Vienna Convention of 1969 concerning the "Interpretation of treaties
authenticated in two or more languages" would support the view that there should be read
"have entered into", as para 4, of this Article provides that in case of a difference of meaning in
the authentic texts "the meaning which best reconciles the texts ... &all be adopted".
92
It is submitted, however, that Article 30(2) of the Vienna Convention does not
apply to the compatibility-provision of the New York Convention. The compatibility-provision should not be read in isolation, but rather in conjunction with the
mfr-provision and the purpose of the New York Convention. The mfr-provision
allows a party to base his request for enforcement on other treaties without further
limitation. The Convention's purpose, as expressed by the mfr-provision, is to pro.vide for enforcement in the greatest number of cases possible, whether it be on the
basis of its own provisions or on some other basis. The compatibility-provision of
the New York Convention viewed in this light, therefore, does not qualify as an ordinary compatibility-provision to which Article 30(2) of the Vienna Convention applies. The true meaning of the compatibility-provision of the New York Convention
is probably only that the Contracting States wish to express that by a d h e h g to the
New York Convention they do not intend to infringe upon their obligations under
public international law in regard of other treaties adhered to by them in the field
of bitr ration.^^
Having made some observations on the conflict of treaties provisions

in the New York Convention and the relevant principles of conflict of
treaties, other treaties will now be considered. The European Convention of 196 1 will be covered first, it being the only multilateral arbitration convention that has been applied in connection with the New
York Convention (1-4.4.2.). The relationship with some other multilateral treaties will then be covered briefly (I-4.4.3), and thirdly, the
relationship with bilateral treaties will be examined (1-4.4.4). And finally, some attention will be given t o the Geneva ]Protocol of 1923 and
the Geneva Convention of 1927 because, although they have been
abrogated by Article VII(2) between the Contracting States, they still
appear to be troublesome for some courts (1-4.5).
1-4.4.2
European Convention of 1961
The object of the European Convention, concluded under the auspices of the United Nations Economic Commission for Europe, is, according to its Preamble, to promote "the development of European
trade by, as far as possible, removing certain difficulties that may impede the organization and operation of international commercial arbitration in relations between physical or legal persons of different European countries9'. Although the text of the Convention avoids using the
233. It should be noted that Art. X(7) of the European Convention of 1961, which provision is similar to the compatibility-provision of Art. VII(1) of the New York Convention, also
uses "entered into", but that here the authentic French text uses "conclus ou h conclure". The
French text appears to reflect the intent of the drafters of the European Convention, and the
rather inaccurate wording "entered into" of the English text of Art. X(7) of the European Convention should be interpreted accordingly. See P. Pointet, "The Geneva Convention on International Commercial Arbitration", in P. Sanders ed., International Commercial Arbitration Vol.
I11 (The Hague 1965) p. 263 at p. 295.
234. See P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) no. 97.
term Eastern and Western European countries, its main purpose is arbitration in East-West trade."'
It is curious t o note, however, that the Convention's main purpose
has not obtained the desired results in practice as the Convention has
virtually never been applied in East-West relations. This failure is not
strange in the light of the complexity of the Convention's provisions,.
especially those concerning the constitution and functioning of the arbitral tribunal (Art. IV of the Convention).
Although the main purpose of the Convention is arbitration in EastWest relations, the Convention does not exclude its application t o arbitration between parties of different Contracting States belonging t o the
same block. As far as arbitration in inter-Eastern European relations is
concerned, the European Convention is, however, no longer applicable
because of Article VI(1) of the Moscow Convention of 19'7"2.236What
remains is arbitration in inter-West ern European relations.23 It is in
this category where the European Convention has been applied, be it
rarely.
The European Convention applies, according t o Article I(1):
"(a) to arbitration agreements concluded for the purpose of settling disputes
arising from international trade between physical or ,legal persons having, when
concluding the agreement, their habitual residence or their seat in different Contracting States;
(b) to arbitral procedures and awards based on agreements referred to in paragraph l(a) above."
Compared with the definition of the field of application as given in

Article I of the New York Convention, which applies to the enforcement of arbitral awards made in another (Contracting) State, two
differences may be mentioned. The first difference is that the European
Convention applies t o arbitration in international trade. Although the
limitation t o international cases cannot be found in the New York Con235. The European Convention has been adhered to by: Austria, Belgium, Bulgaria, Byelorussian S.S.R., Cuba, Czechoslovakia, Denmark, France, German D.R., F.R. Germany, Hungary,
Italy, Poland, Romania, Spain, Ukrainian S.S.R., U.S.S. R., Upper Volta and Yugoslavia. Except
for Upper Volta and Yugoslavia, all States are also Party to the New York Convention. See
generally, P. Pointet, supra n. 233. See also P. Benjamin, "The European Convention on International Commercial Arbitration", British Yearboolc of International Law (1961) p. 478.
236. See infra I-4.4.3b.
237. However, Art. IV is no longer applicable in inter-Western European arbitration because
the Western European countries which have signed the European Convention of 1961 have
concluded an Agreement Relating to the Application of the European Convention on International Commercial Arbitration, done at Paris, December 17, 1962, 523 UnitedNations Treaty
Series 94 (1965). This Agreement provides that the European Convention's provisions regarding
the constitution and functioning of the arbitral tribunal (i.e., Art. N(2)-(7)) of the Convention
do not apply; if any difficulties may arise therefrom, these difficulties have to be submitted to
the competent court. At present the foHowing States have adhered to the Agreemellt: Austria,
Belgium, Denmark, France, F.R. Germany, Italy and Spain.
94
vention 2 3 8 , in practice it does not make so much difference because

none of the cases reported under the New Uork Convention concerned
domestic arbitration.
The second difference is that the European Convention requires that
the parties to the arbitration agreement come from different Contracting States. The reason behind this requirement is the object of the
European Convention, i.e., arbitration in East-West trade. This requirement, which is also to be found in the Geneva Treaties of 1923 and
1927, is not contained in the New Uork C o n v e n t i ~ n . " ~
At this juncture it should be noted that some courts have erred by referring t o the
European Convention in cases where one of the parties came from a country which
had not adhered to that Convention. According to Article I(l)(a) the Convention
applies only to parties having "their habitual place of residence or their seat in different Contracting States" (emphasis added). ' Thus, contrary t o what the Court of
Appeal of Florence implied, the Convention does not apply in Italy to an award
made in London between an Italian and Panamanian party as Panama has not adhered t o the European on vent ion.^' Furthermore, unlike the opinion of the
Italian Supreme Court, the Convention does not apply in Italy to an award made in
London between two ~ t a l i a n s . ~ ~ '
These two differences show that, as far as the arbitration agreement

and the arbitral award are concerned, the field of application of the
New York Convention is broader than the European Convention. On
the other hand, the European Convention contains provisions for stages
of the arbitration to which the New York Convention does not apply,
such as the organization and functioning of the arbitral tribunal. In this
respect the coverage of the European Convention is broader than the
New York Convention.
The European Convention can be deemed to complement the New
York Convention in those cases where the arbitration agreement or
award falls under the definition of the field of application of both Conventions. The relationship between both Conventions in the case of
concurrent applicability is, however, conceived by certain courts and
authors in terms of conflicts of treaties. It is submitted that this is not
the nature of the relationship. An indication of the complementary
nature of the European Convention can be found already in its Pre238. See supra 1-1.3 ("No Internationality Required").
239. See supra 1-1.2 ("Party's Nationality Excluded").
240. Corte di Appello of Florence, October 22, 1976, Tradax v. Carapelli (Italy no. 18). On
the other hand, the Corte di Appello of Venice, May 21, 1976, Pando v. Filmo (Italy no. 16)
held rightly the European Convention not to be applicable in precisely the same situation. For
the same reason the European Convention was held not to be applicable by the Oberlandesgericht of Diisseldorf, November 8, 1971 (F.R. Germ. no. 8) to an award made between a
Dutch and a F.R. German party because the Netherlands have not adhered to this Convention.
.
May 18, 1978, no. 2392, Atlas v. Concordia (Italy no.
241. Corte di ~assazione( ~ e z Un.),
35).
95
amble which refers, in so many words, t o the New York Convention.

A complementary provision can be found in Article I(2)(a) which
contains a definition of the arbitration agreement in writing which is
similar t o Article II(2) of the New York Convention 242 ; it adds, however, that the written form is also met if, in relations between States
whose laws do not require that an arbitration agreement be made in
writing, the agreement is concluded in the form authorized by these
laws.
Furthermore, Article VI of the European Convention can be considered as an elaboration of Article II(3) of the New York Convention
concerning the action for the enforcement of the arbitration agreement
by a court. It contains provisions concerning the estoppel for raising the
defence of the existence of an arbitration agreement, the conflict rules
for determining the validity of the arbitration agreement, the stay of
the court's nuling on the arbitrator's jurisdiction until the award is
made, and the compatibility of interim measures with arbitration. The
action for enforcement of the arbitration agreement itself (i.e., referral
to arbitration) is not provided for in the European Convention; this
matter was not included precisely because it was already regulated by
Article II(3) of the New Uork Convention.
,-The complementary nature of the European Convention also becomes apparent from the absence of provisions governing the enforcement of the award. For this matter one has to refer back to the New
Uork Convention (Arts. %%I-VI).Consequently, a party seeking enforcement of an award falling under both the New York and European
Convention, has to submit the documents required by Article IV of the
New York Convention. The party against whom the enforcement is
sought may invoke the grounds for refusal of enforcement listed in
Article V of the New York Convention.
The European Convention also contains a limitation on the right t o
invoke a ground for refusal listed in Article V of the New Uork Convention. It concerns the ground for refusal that the award has been set
aside in the country where it was made, as provided in Article V(l)(e)
of the New Uork Convention. Under the New York Convention the
grounds on which the award has been set aside in the country of origin
can be any ground set out in the arbitration law of that country. The
European Convention has limited these grounds. According t o Article
IX(2), "in relations between Contracting States that are also Parties to
the New Uork Convention9', the enforcement may be refused in case
the award has been set aside in the country where the award was made
242. The definition of the arbitration agreement in writing as given in Art. 1(2) (a) of the
European Convention includes, unlike Art. II(2) of the New York Convention, also an exchange
by telexes. According to the prevailing interpretation of Art. II(2) of the New York Convention, the exchange of telexes is, however, considered to be included in this definition as well
(see infra 11- 2.4.1 ("Exchange of Telexes").
96
Field of A pplica fion
only if the award has been set aside on one of the grounds listed in
Article IX(1) under
These grounds are substantially similar to
the grounds mentioned in Article V( 1) under a-d of the New York Convention. One of the reasons for this limitation was to exclude the
setting aside in the country of origin for reasons of public policy of that
country. It should be emphasized that this is only a limitation of the
second part of ground e of Article V ( l ) of the New York Convention;
the other grounds for refusal may still be involced by the party against
whom the enforcement is
Thus the limitation imposed by
Article IX(2) of the European Convention, in particular, clearly indicates that the European Convention is conceived t o apply in addition to
the New York Convention.
As far as the enforcement of the agreement and award are concerned,
the European Convention cannot function without the New York Convention as the former is built upon the latter in these cases.245If in the
case of enforcement of an agreement or award under the New York
Convention the agreement or award also falls under the European Convention, the question is whether, in addition, the European Convention
must be applied. It is submitted that this is indeed so, as the European
Convention does not contain any indication that it should not be applied in this case. The question is, however, rather theoretical as a party seeking enforcement will as a rule benefit from the complementary
provisions of the European Convention.
The complementary nature of the European Convention in regard to
the New York Convention implies also that what was observed in
1-4.2.3 supra - that the New York Convention cannot be combined
with other possible bases - does not apply to the relationship between
243. Art. IX(1) mentions "the setting aside in a Contracting State ..." The limitation of Art.
IX seems therefore not to be applicable if the award has been set aside in a State which is not
Party to the European Convention.
244. It was therefore not correct to refer to Art. V(l) (b) of the New Yorlc Convention and
Art. IX(1) (b) of the European Convention for the question whether enforcement of a Danish
award should be refused because a party had not been able to present his case as the Oberlandesgericht of Cologne, June 10,1976 (F.R. Germ. no. 14) did. Art. IX(1) (b) of the European
Convention could only have been referred to if the award had been set aside on this ground in
Denmark, which had not happened in this case. Cf. supra 1-1.4.2.
245. It should be emphasized that in actions falling outside the applicability of the New
York Convention, the European Convention can still be applicable. For example, if the setting
aside of an award made in Hamburg between a German and an Italian party is sought in F.R.
Germany, the New York Convention is not applicable. Cf. 1-1.4.2. However, in such a case the
European Convention may still be applicable, for instance, for determining the formal validity
of the arbitration agreement pursuant to Art. 1(2) (a) as this case comes within the purview of
the definition of the field of application of the European Convention. See for this case Oberlandesgericht of Hamburg, September 22, 1978 (F.R. Germ. 20).
It may be added that where a country has adhered to the European Convention but not to
the New Yorlc Convention, which is currently the case for Yugoslavia, the enforcement of the
arbitration agreement or the arbitral award can evidently not be sought under the New York
Convention, nor under the European Convention which does not provide for either action.
97
the New York and European Convention. Both Conventions are simultaneously applicable.
The question of the relationship between the New York Convention
and the European Convention is examined here in some detail because,
as mentioned earlier, some courts and authors have difficulties in appreciating i t . Two cases decided by the German Federal Supreme Court
provide examples.
The first case concerned the request for the enforcement of an award made in
~ u s t r i a Austria
. ~ ~ ~ and F.R. Germany have ratified both the New York Convention
and the European Convention. An Austrian firm had sold wool fibre to a G e m a n
enterprise on the basis of a sales confirmation which was not returned by the latter.
When a dispute arose between the parties, the Austrian seller initiated arbitration at
the Vienna Commodity Exchange in accordance with the arbitral clause contained
in the sales confirmation, and obtained an arbitral award in his favour. In the enforcement procedure before the German courts, the German buyer objected that
the arbitration agreement was not in writing. The German Supreme Court upheld,
however, the validity of the arbitration agreement under Article 1[(2)(a) of the
European Convention. Under German law the arbitration agreement need not be in
writing if it is concluded between merchants of full status (Vollkaufleute) and
concerns a commercial transaction. The Supreme Court found that a similar rule
exists under Austrian law. The reason for which the Supreme Court held the
European Convention applicable was stated in an incidental observation: ". . . [the
Convention] prevails as being of a younger date over . . . the New York Convention".
The German Supreme Court resorted apparently t o the principle of conflict of
treaties of lex posterior. The use of this principle misconceives the relationship between both Conventions. As explained above, the enforcement of an award cannot
be sought under the European Convention alone as this Convention complements
the New York Convention in this case, The New York Convention remained therefore applicable. The question was rather whether the complementary provisions of
the European Convention were also applicable. Since the award made between an
Austrian and F.R. German party fell under the European Convention the Convention was indeed applicable in addition to the New York
onv vent ion.^^'
246. Bundesgerichtshof, May 25, 1970 (F.R. Germ. no. 7).

247. The "conflict approach" with regard to the relationship between the New York and the
European Convention can also be found amongst certain authors. Majoros, supra n. 230, at
pp. 315-319, maintains that although the German Supreme Court used the principle of lex
posterior in this case, the primary preoccupation of the Court was to uphold the validity of the
arbitration agreement; the Court would therefore have used implicitly the principle of maximum efficacy for solving the presumed conflict between both Conventions. The principle of
maximum efficacy deserves undoubted1;y its recognition; it goes, however, too far to imply
this principle in cases where no conflict exists. Mezger approves in 5 0 Revue critique de droit
international privd (1971) p. 37 at p. 52, the German Supreme Court's opinion as follows:
"The addition [in Art. 1(2) (a) of the European Convention] was also meant to facilitate,
and even above all, the recognition of awards within the framework of the New York Convention. The Supreme Court held therefore rightly that the Convention of 1961 prevails
over the Convention of 1958 in this case."
The first sentence is beyond doubt true. One wonders, however, how the award could be enforced if the European Convention were applicable instead of the New York Convention as the
second sentence suggests.
In a later decision the German Supreme Court still had difficulties in determining the relationship between the New York Convention and Europem. Convention.%' The case was already mentioned in 1-4.3 in connection with the question
whether the New York Convention superseded German domestic law concerning
enforcement of foreign asbitral awards. The Court held that by virtue of the mfrprovision of Article V11(1) of the New York Convention this was not the case. The
Court dealt with the European Convention as follows: .
"The European Convention on International Commercial Arbitration of April
21, 1961, which has entered into force in both States [i.e., F.R. Gemany and
Romania] . . . does not contain a more-favourable-right-provision. However, it
does not affect the validity of other bilateral and multilateral conventions which includes the more-favourable-right-provision of the New York Convention."
By referring to the compatibility-provision contained in Article X(7) of the European Convention according t o which the Convention's provision "shall not affect
the validity of multilateral or bilateral agreements concerning arbitration entered
into by Contracting States9', the Supreme Court dealt again with the relationship
between both Conventions in terms of conflict of treaties. If the Court had adopted the view that the European Convention is merely applicable in addition t o the
New York Convention, there would not have been a difficulty in holding the New
York Convention applicable.
The Court of Appeal of Florence was more accurate in considering the relationship between the New York and European
A Panamanian party
sought enforcement of an award made in London against an Italian party. The
lawyer for the Italian respondent objected to the enforcement that the New York
Convention was not applicable because this Convention had been superseded by the
European Convention, which Convention could in turn not be applied because
Panama had not adhered to this Convention. The Court of Appeal rejected this objection; it correctly declared that the European Convention and the New York Convention are integrally related. In this connection the Court referred t o the lirnitation of the grounds of setting aside in the country of origin as regulated in Article
IX of the European onv vent ion.^^^
1-4.4.3
Other multilateml conventions
(a) Washington Convention of 196.5

The Convention on the Settlement of Investment Disputes Between
States and Nationals of Other States, concluded at Washington, March
18, 1965 251 , provides for a self-sufficient system of truly international
arbitration in the field of investment disputes. Arbitration under the
Washington Convention is administered by the International Centre for
248. Bundesgerichtshof, February 12, 1976 (F.R. Germ. no. 12). Cf. supra at n. 233.
249. Corte di Appello of Florence, October 22, 1976, Tradax v. Carapelli (Italy no. 18).
250. Although the observation of the Court is as such correct, the Court should also have
said that the European Convention was not applicable since Panama is not Party to this Convention, see supra at n. 240.
251. 575 United Nations Treaty Series 160 (1960). The Convention is ratified by 78 States
so far, ICSIDI31Rev. 37 (October 20, 1980). See generally A. Broches, "The Convention on the
Settlement of Investment Disputes Between States and Nationals of Other States", Recueil des
Cours, 1972-Vol. 11, p. 337.
'
99
Settlement of Investment Disputes (ICSID) in Washington, solely on

the basis of the provisions of the Convention and the Rules and Regulations issued thereunder. According to Article 25(1), arbitration will be
governed by the Convention if there is a legal dispute arising directly
out of an investment between a Contracting State and a national of
another Contracting State which the parties to the dispute have consented in writing to submit to ICSID. By virtue of Article 53 the award
shall be binding on the parties and shall not be subject to any appeal or
any other remedy except those provided for in the C ~ n v e n t i o n . ~ ' ~
Article 54(l) further provides that each Contracting State shall recognize an award rendered pursuant t o the Convention as binding and
enforce the pecuniary obligations imposed by that award within its
territories as if it were a final judgment of a court in that State.
In view of these provisions it is evident that the scheme of the Washington Convention is entirely different from the New York Convention. The main difference is that under the Washington Convention the
arbitration is solely governed by the Convention, with the exclusion of
any national arbitration law, whereas under the New York Convention
the arbitration is governed by a national arbitration law. 253
Although the New York Convention does not exclude from its field
of application an arbitration agreement or award between a State and a
foreign national relating to an investment dispute, it must be assumed
that the Washington Convention applies once the parties have fulfilled
its jurisdictional requirements, including the consent in writing to submit to ICSID.254 Consequently, no conflict exists in practice between
both Conventions. Even assuming that the New York Convention were
concurrently applicable, no sensible claimant would rely on the New
York Convention, since an award rendered pursuant to the Washington
Convention is enforceable within the Contracting States without the
possibility of resisting enforcement by asserting any ground for refusal.
From the technical legal point of view, the Washington Convention can
be considered as falling under both traditional principles of conflict of
treaties, i.e., lex specialis and lex posterior. But if enforcement of an
award would not be possible for one reason or the other under the
Washington Convention, the New York Convention may still be applied
by virtue of the principle of maximum efficacy.
It is t o be noted that an arbitration agreement referring to, or an award made
under, the '6Additional Facility" of ICSID does fall under the New York Conven-
252. These remedies are: interpretation (Art. 50); revision (Art. 51); and annulment by
appeal arbitrators (Art. 52).
253. See supra I- 1.6.2 ("Does the 'A-national Award' Fall under the Convention?").
254. See also infra 111-4.1.2 ("State or Public Body as Party to the Arbitration Agreement").
tion. The "Additional Facility" was set up in 1978 in order to provide the administration of arbitration under the auspices of ICSID for cases which fall outside the
scope of the Washington Convention ratione personae or ratione materiae. The
"Additional Facility" can be used only if the underlying transaction has features
which distinguish it from an ordinay commercial transaction; the submission t o the
"Additional Facility9' is not possible unless the Secretary-General of ICSID has
given his approval. It is further to be noted that Articles 20-21 of the Additional
Facility Arbitration Rules require that the arbitration be held, and the award be
rendered, in a New Yorlc Convention country. The purpose of this provision is "to
assure the widest possible international recognition and enforcement of
(b) Moscow Convention of 1992

The Convention on the Settlement by Arbitration of Civil Law Disputes Resulting from Economic, Scientific and Technical Co-operation,
signed at Moscow, May 26, 1972, provides that commercial disputes between economic organizations of different countries member to the
Council for Mutual Economic Assistance (CMEA) shall compulsorily be
settled by arbitration.2s6 The dispute must result from, or arise in connection with, a contract, which contract must have been concluded
within the framework of economic and scientific-technological co-operation between countries Party to the Moscow Convention (which are
all CMEA countries). The arbitration is to take place at the Arbitration
Courts attached to the Chambers of Commerce of the member countries, the jurisdiction of which is carefully partitioned by the Convention. The courts of the member countries must recognize ex officio the
jurisdiction of the Arbitration Courts in those cases falling under the
Convention. The arbitration takes place in accordance with the Uniform Rules of Procedure.257The arbitral award must be enforced in the
same way as final decisions made by State courts of the country of
enforcement. The grounds for refusal of enforcement are similar t o
those enumerated in Article V( 1) of the New York Convention.
The relationship with other bilateral and multilateral treaties is dealt
with in Article VI of the Moscow Convention. The relevant provision
for the relationship with the New York Convention is the first paragraph of this Article reading: "The provisions of previously concluded
bilateral and multilateral agreements of countries Parties to the Conven255. A. Broches, "The 'Additional Facility' of the International Centre for Settlement of
Investment Disputes", in Yearbook Vol. IV (1979) p. 373 at p. 379.
256. An unofficial English and French translation of the Moscow Convention is reproduced
in Associazione Italiana per I'Arbitrato ed., Multilateral Conventions and other Instrunzents on
Arbitration (Rome 1974) p. 190.
257. The Uniform Rules of Procedure, issued in 1974, are reproduced in Yearbook Vol.
I (1976) p. 147. It should be noted that the jurisdiction of the Arbitration Courts is not limited
to inter-CMEA arbitration. Disputes between parties from CMEA and non-CMEA countries and
even between parties from non-CMEA countries alone can be submitted to these Arbitration
Courts on the basis of an appropriate arbitration agreement. In the latter case the Moscow Convention is not applicable.
Field o f Applica f i o n
101
tion shall not be applied -to the cases treated .by t l ~ i sConven-tion. . , "
This provision must be understood in the sense that arbitration between
eco~iornicorganizations of the CMEA countries to which.the Moscow
Convention applies is no longer governed by the New York Convention.
The provision can be regarded as an express confirmation of the principle of Zex posterior which does not leave room for the application of
the principle of maximum ,efficacy.
I t should be emphasized that the MOSCOW
Convention does not apply
when one or both parties do not come from a CMEA country. In this
case the New Uor9<;Conventi~nremains applicable provided that the
agreement or award comes within its purview.
'
Panam Convention of 1 47.5 256

The Inter-American C~nventio~fi
on International Commercial Arbitration, concluded in Panama, January 30, f 975 "', is modelled after
(6)
' .
-the New York Convention, although not entirely. The Latin American
countries, few of which have adhered t o the New York Convention 260,
deemed it appropriate to make their own arbitration Convention.declaring that they do not "trust" world organizations, that they speali
Iberian languages, andl that they have a 66"poprietyinterest" in the Organization of American Sta.'ee~.~~'
The Panama Convention has hitherto
been ratified by Chile, Costa Rica, Ell Salvador, Honduras, Mexico,
258. The relationship between the New York Convention and the following Latin American
Conventions is not examined as they contain incidental provisions on arbitration only:
- Treaty concerning the Union of south American States in respect of Procedural Law, signed
at Montevideo, January 11, 1889, Organization of American States, Treaty Series no. 9, adhered t o by Argentina, Bolivia, Colombia, Paraguay, Peru .and Uruguay; Arts. 5-7 concern the
enforcement of arbitral awards;
- Bustamante Code (Convention on Private International Law), signed at Havana, February
20, 1928, 86 League of Nations Treaty Series 246 (1929), adhered to by Bolivia, Brazil, Chile,
Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras,
Nicaragua, Panama, Peru and Venezuela; Arts. 210-211 and 423-433 concern the enforcement
of arbitral awards;
- Treaty on International Procedural Law, signed at Montevideo, March 19; 1940, Organiiation of American States, Treaty Series no. 9, adhered to by Argentina, Paraguay and Uruguay;
259. The text of the Panama Co~lventionis reproduced in Yearbook Vol. 44% (1978) p. 15,
and in 14 International Legal Materials (1975) p. 336. The Convention entered into force on
June 16, 1976. The Convention is signed by 1 3 countries: Brazil, Chile, Colombia, Costa Rica,
Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, United States, Uruguay and
Venezuela. See for the legislative history, Organizacibn de 10s Estados Americanos, Actas y
Documentos d e la Conferencia Especializada Interamericana sobre Derecho International Privado (CIDIP), OEAISer.IClXXI.1 (Washington 1975), Vol. 1: pp. 215-224 and p. 246 (CIDJP/64),
pp. 293-300 (C1DIP/57), pp. 343-344 (CIDIP/25), and pp. 371-372; Vol. 41: pp. 177-178
(C1DIP/51 Corr. I), pp. 194207 (CIDIPl60 Corr. I), pp. 209-232 (CI[DIP/61 Corr. I), pp.
275-278, and p. 288. See for the Panama Convention also my article, "L'arbitrage commercial
en l'Arn6rique latineW,.Revuede Zbrbityage (1979) p. 923 at p. 138 and p. 191.
260. These States are: Chile, Colombia, Cuba, Ecuador, Mexico, Trinidad and Tobago.
261. J. Lliteras, "The Panama Convention Strengthens Arbitration in the Americas", in
Inter-American Arbitration, Inter-American Commercial Arbitration Comm?ssion (1975 2nd
quarter) p. 1 at p. 2.
,
102
Panama, Paraguay and Uruguay. Of these States, Chile and Mexico are
also Party to the New York Convention. Spain and the United States,
which have both adhered to the New York Convention, are in the
process of ratifying the Panama Convention. A judicial application of
this Convention has not been reported so far.
The Panama Convention fails to give a definition of its field of application. As regards the enforcement of arbitral awards, it may be inferred from Article 5, which is almost identical to Article V of the New
York Convention, that the Convention applies to awards made in another State. The word "Inter-American" in the title suggests that the
foreign State where the award is made must be a Contracting State.
Taking again into account the title of the Convention, the award must
presumably also relate to an international transaction. Whether it is a
condition for the field of application that the parties be subject to the
jurisdiction of (different?) Contracting States is unclear, but in view of
the traditional Latin American tendency to protect national interests
and to require reciprocity, it may be safe to assume that this condition
is implied.
The Convention would therefore seem to have importance only for
arbitration within the Latin American region. Parties coming from nonContracting Stat es probably cannot benefit from the Convention. It is
to be regretted that the Latin American countries did not join the
worldwide community of 56 States which has adhered at the time of
this writing to the New York Convention,
This is the more regrettable since the Panama Convention shows a certain number
of lacunae and obscurities in comparison with the New York Convention. The
Panama Convention fails to provide, inter alia, for the action for the enforcement
of the arbitration agreement (cf., Art. II(3) of the New York Convention), the procedure for enforcement (cf., Art. I11 of the New York Convention), the conditions
to be fulfilled by the party seeking enforcement (cf., Art. IV of the New York Convention; see, however, the Montevideo Convention of 1979 hereafter) and, as already mentioned, a definition of its field of application. Moreover, it is unclear
whether in the case of an arbitral clause referring future disputes to arbitration the
parties are still obliged to conclude a submission agreement once the dispute has
arisen, which requirement is imposed by the majority of Latin American arbitration
The relationship between the Panama and New York Convention

scarcely need be examined as it will be in a very 'few cases only that an
arbitration agreement or award will fall under both Conventions at the
262. This requirement is derived from former French arbitration law according to which
the arbitral clause was merely an agreement t o agree (pacturn de contrahendo). See for the
question whether the Panama Convention would require to conclude a submission agreement
in the case of an arbitral clause, my article, supra n. 259, at p. 138. The requirement must be
deemed to have been superseded by the New York Convention, see infra 11-1.2.2.
103
same time. At present this may occur in arbitration between Chilean

and Mexican parties as Chile and Mexico are the only countries which
have adhered to both Conventions. This situation may change when the
United States decides to adhere to the Panama Convention because
trade relations between the United States and the Latin American
States are fairly extensive.
As the Panama Convention is largely modelled after the New York
Convention, it would not be necessary either to determine which Convention is applicable in the case of concurrent applicability. Article 3 of
the Panama Convention, however, provides that: ""Ithe absence of an
express agreement between the parties, the arbitration shall be coni ducted in accordance with the rules of procedure of the Inter-American
; Commercial Arbitration C o m m i ~ s i o n . "This
~ ~ ~ type of provision is not
found in the New York Convention. The latter Convention refers in
Article V(l)(d) for the composition of the arbitral tribunal and the
1 arbitral procedure t o the agreement of the parties, and in the absence of
such agreement to the arbitration law of the country where the arbitration took place."4 In view of the specificity of Article 3 of the Panama
Convention, it must be presumed that this provision prevails in the case
of concurrent applicability with the New York Convention.
I
Curiously enough, the ground for refusal of enforcement of the award in the
Panama Convention corresponding t o Article V( l)(d) of the New York Convention
is almost the same as in the latter Convention. Article 5(l)(d) of the Panama Convention namely provides that enforcement may be refused if the respondent proves
that: "the constitution of the arbitral tribunal or the arbitration procedure has not
been carried out in accordance with the terms of the agreement signed by the parties or, in the absence of such agreement, that the constitution of the arbitral tribunal or the arbitration procedure has not been carried out in accordance with the
law o f the State where the arbitration took place" (emphasis added). The underscored part must be considered as being out of tune with Article 3 of the Panama
Convention. There it should read, in my opinion, "in accordance with the rules of
procedure of the Inter-American Commercial Arbitration Commission".
In the other cases of concurrent applicability, the relationship between the Panama and New York Convention could, at best, be that the
New York Convention ap.plies in those cases where the Panama Convention fails to provide appropriate provisions. In such a case the New
York Convention applies to the exclusion of the Panama Convention, as
the Panama Convention is not conceived as a complement to the New
York Convention and no combination of different bases for enforcement is possible.265 The application of the New York Convention in
263. The IACAC Arbitration Rules were changed in 1978 to the effect that they are virtually identical with the UNCITRAL Arbitration Rules. The IACAC Arbitration Rules are reproduced in Yearboolc Vol. 111 (1978) p. 23 1.
264. See for Art. V(l) (d), i n f i ~111-4.4.
265. See supra 1-4.2.3.
104
this case could be warranted by application of the principle of maximum efficacy. It is, however, to be feared that the courts in the Latin
American States are not prepared to give way for the application of this
principle, and prefer to consider the Panama Convention as a lex
posterior. This would lead to the application of domestic law in all
those cases where the Panama Convention is silent. In this connection it
should be observed that the Panama Convention contains neither a
compatibility-provision nor a mfr-provision. An intermediate solution
could be to interpret the Panama Convention on the basis of the New
York Convention for those cases where the Panama Convention is silent
or unclear on the grounds that the Panama Convention is modelled
after the New York Convention.
- -
.-.
In an unpublished draft (September 1980) of the implementing legislation of the

Panama Convention in the United States - to be lcnown as Chapter 3 of the U.S.
Arbitration Act - it is proposed to solve the above-mentioned problems as follows:
"Section 304. Awards falling under the Inter-American Convention.
Recognition and enforcement of foreign arbitral decisions or awards under this
chapter shall apply only to those decisions or awards made in the territory of another Contracting State.
Section 305. Relationship between the Inter-American Convention and the Convention on the Recognition and Enforcement o f Foreign Arbitral Awards o f
June 10,1958.
When the requirements for application of both the Inter-American Convention
and the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards of June 10, 1958, are met, determination as to which Convention applies shall, unless otherwise expressly agreed, be made as follows:
(1) If a majority of the parties to the arbitration agreement are citizens of a
State or States that have ratified or acceded to the Inter-American Convention
and are Member States of the Organization of American States, the Inter-American Convention shall apply.
(2) In all other cases the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards of June 10, 1958 shall apply."
As far as the omission in the Panama Convention relating to the conditions to be fulfilled by the party seeking enforcement is concerned,
this omission may in the future be filled by the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral
Awards, signed at Montevideo, May 8, 1979, which Convention has not
yet entered into force.266
Article l(2) of this Convention provides that "The rules of this Convention shall apply to arbitral awards in all matters not covered by the Inter-American Convention
on International Commercial Arbitration, signed in Panama on January 30, 1975."
The main provisions of the Montevideo Convention are Articles 2 and 3. Article 2
266. The Montevideo Convention is reproduced in 1 8 International Legal Materials (1979)

p. 1224.
105
sets fodh the conditions under which judgments and arbitral awards have extraterritorial validity. According to Article 3, the party seeking enforcement must supply,
h t e r &a, the following documents:
(a) a certified copy of the award;
(b) a certified copy of the document proving that the defendant has been summoned in due legal form substantially equivalent to that accepted by the law of the
State where the award is to talke effect, and that the parties have had an opportunity to present their case; and
(c) a certfied copy of the document stating that the award is final or has the
force of res judicata.
Compared with the conditions required by Article IV of the New York Convention
according to which the party seeking enforcement has to supply only the original of
the arbitration agreement and the arbitral award or certified or authenticated copies
thereof, the above conditions required by the Montevideo Convention would
appear to be significantly more demanding. It should, however, be obsemed that
conditions (b) and (c) of Article 3 of the Montevideo Convention, which are to be
proven by the party seeking enforcement, are to a certain extent similar to the
grounds for refusal of enforcement mentioned in Article 5(l)(b) and (e) of the
Panama Convention, which are to be proven by the party against whom the
enforcement is sought. This raises the question whether conditions (b) and (c) must
be considered as "matters not covered" by the Panama Convention, within the
meaning of Article l(2) of the Montevideo Convention.
1-4.4.4
Bilateral teaties
It rarely occurs that bilateral treaties concern solely the recognition

and enforcement of arbitral awards. Provisions relating to these matters
are as a rule included in bilateral treaties concerning the recognition and
enforcement of judgments. It is equally rare that a bilateral treaty contains provisions on the enforcement of the arbitration agreement and
the organization of the arbitral p r o c e d ~ r e . ~ ~ '
The bilateral treaties containing provisions on the recognition and enforcement of arbitral awards almost all date from before the entry into
force of the New York Convention in the respective countries. Their
number varies from country to country. To cite a few examples, F.R.
Germany, the United States (Treaties of Friendship, Commerce and Navigation - TFCN) and the U.S.S.R. have concluded quite a number of
bilateral treaties including provisions on arbitral awards. In contrast,
countries like Australia, India, Israel, South Africa and the United Kingdom have not concluded any bilateral treaty at all on this subject
matter.268
267. One of the few examples of a bilateral treaty containing rules governing the arbitral
procedure is the Convention between Sweden and the U.S.S.R. concerning the Exchange of
Goods and Payments (Arts. 14-15) and Protocol of September 7, 1940, published in Agreements between Sweden and other Countries (Stockholm 1946) nos. 22-23. See also the Treaty
of Commerce and Navigation between Denmark and the U.S.S.R. (Arts. 14-15) and Protocol
of August 17, 1946, 8 UnitedNations Treaty Series 201 (no. 124).
268. See for a list of bilateral treaties entered into by the European countries until 1957,
the United Nations publication, Table of Bilateral Conventions Relating to the Enforcement of
Although the provisions in the bilateral treaties differ in that some
are very elaborate whilst others are rather summary, certain common
features may be mentioned in comparison with the New York Convention. It should be emphasized, however, that the bilateral treaties are
examined in their generality only, and that a certain feature may be different for a specific treaty. It therefore is recommended to consult the
bilateral treaty for each case.
Concerning the scope of the bilateral treaties, almost all require that
the award be rendered in the other Contracting State. This is the same
under the New York Convention in those cases where a State has used
the first reservation of Article I(3). The bilateral treaties are, however,
divided on a second condition that the parties be subject to the jurisdiction of either Contracting State. As examined in I- 1.2 supra, this condition was not inserted in the New York Convention. Some bilateral
treaties provide in express terms for this condition.269 Others declare to
the contrary that the nationality of the parties is not a condition for
the applicability of the treaty; according to these treaties, like the New
York Convention, it is sufficient that the award be rendered in the
other Contracting State.270 Others are silent as t o the condition of the
nationality of the parties, and it is not always certain whether the condition is implied or not."I A third condition for the field of application of certain bilateral treaties is that some limit the applicability to
commercial matters.272 This limitation is also contained in the New
York Convention as a possible reservation provided by the second
sentence of. Article I(3).273
Arbitral Awards and the Organization of Comnzercial Arbitration Procedure (Geneva August
1957) designated only by sales number 1957. II.E/Mim. 18. The bilateral treaties concluded by
F.R. Germany are extensively dealt with by I<.-H. Schwab, Schiedsgerichtsbarkeit, 3d ed.
(Munich 1979) p. 433; the relationship between the bilateral treaties and the New York Convention is examined by the author at p. 332. See for the TFCN's concluded by the United States
with a considerable number of other countries, M. Domke. The Law and Practice of Commercial Arbitration (Mundelein 1968-1979) Sect. 44.03. See for the other countries the National
Reports under Chap. VII in Vols. I-VI of the Yearbooks.
269. E.g., the TFCN's supra n. 268; Convention between France and Italy regarding the
Enforcement of Judgments in Civil and Commercial Matters of June 3, 1930, 153 League of
Nations Treaty Series 135 (no. 3513), Art. 8; Treaty between Austria and the U.S.S.R. of
Commerce and Navigation of October 17, 1955, Vneschniaja Torgovlia [Foreign Trade]
(Moscow) 1955 p. 14 (no. 12), Art. 11.
270. E.g., Convention between Austria and Switzerland regarding the Recognition and Enforcement of Judicial Decisions of March 15, 1927, 87 League o f Nations Treaty Series 351
(no. 1981), Art. 10 jo 1 ; Convention between Czechoslovakia and Spain regarding the Recognition and Enforcement of Judicial Decisions of November 26, 1927, 121 League of Nations
Treaty Series 3 11 (no. 27 93), Art. 8 jo 2.
271. E.g., Treaty between Spain and Switzerland on the Reciprocal Enforcement of Judgments or Decisions in Civil and Commercial Matters of November 19, 1896, 1 2 Recueil systdmatique des Lois et Ordonnances (Bern) p. 335.
272. E.g., Treaty of Commerce between Switzerland and the U.S.S.R. of March 17, 1948,
Recueil offciel des Lois et Ordonnances (Bern) 1948 p. 869, Art. 11.
273. See supra I- 1.8 ("Second Reservation ('Commercial Reservation')").
'
1
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107
Regarding the conditions for recognition and enforcement of the

award, some bilateral treaties refer to the Geneva Convention of 1927
or t o the conventions which are in force, or which will enter into force,
in both States.274
Most bilateral treaties provide, however, for conditions themselves.
They are, generally speaking, the following:
(i) the arbitrator must have had jurisdiction in the case;
(ii) the parties must have been duly summoned;
(iii) the parties must have been able t o present their case;
(iv) the award must have acquired the force of res judicata and be
enforceable in the country where it has been made;
(v) the award may not be contrary to the rules of public policy of
the country where the enforcement is sought.
Compared with the grounds for refusal of enforcement as enumerated in Article V of the New York Convention, the above grounds
would appear to be less comprehensive. Thus, the invalidity of the arbitration agreement, the irregularity of the arbitral procedure, and the
setting aside of the award in the country of origin are generally not
mentioned in the bilateral treaties (cf., Art. V(l)(a), (d), and (e) of the
New York Convention). However, the courts, as a rule, infer these
grounds from the grounds expressly mentioned in the bilateral
treaty."'
274. Reference to the Geneva Convention of 1927, with the specification that the restriction in Art. 1(1) of the Geneva Convention (see infra n. 303) shall not apply in the relations between the two Contracting States, can, for example, be found in: Convention between F.R.
Germany and Italy concerning the Recognition and Enforcement of Judicial Decisions of March
9, 1936, Reichsgesetzblatt 1937 I1 145, Bundesgesetzblatt 1952 11 986, Art. 8; Convention
between F.R. Germany and Switzerland concerning the Recognition and Execution of Judicial
Decisions and Arbitral Awards of November 2, 1929, 109 League of Nations Treaty Series 273
(no. 2544), Art. 9; Convention between Sweden and Switzerland regarding the Recognition and
Enforcement of Judicial Decisions and Arbitral Awards of January 15, 1936, 169 League o f
Nations Treaty Series 347 (no. 2923), Art. 13; Convention between Italy and the Netherlands
concerning the Recognition and Enforcement of Judicial Decisions in Civil and Commercial
Matters of April 17, 1959, Tractatenblad (Netherlands) 1959, 137, Art. 7. References to the
Geneva Convention of 1927 without the above specification, can be found in the TFCN between the Netherlands and the United States of March 27, 1956, Tractatenblad 1956,40, Art.
V(2) (b) (2) (Geneva Convention applicable as regards enforcement in the Netherlands only,
see infra at n. 308-310). See for the relationship between this category of bilateral treaties and
Art. VII(2) of the New York Convention, infra 1-4.5.
An example of a bilateral treaty which refers for the conditions of the recognition and enforcement to the conventions "entered or to be entered into force" in both Contracting States
is the Convention between F.R. Germany and the Netherlands concerning the Mutual Recognition and Enforcement of Judicial Decisions and other Enforceable Documents in Civil and
Commercial Matters of August 30, 1962, Tractatenblad 1963, 50, Art. 17.
275. An example is the case decided by the German Federal Supreme Court. discussed infia
at n. 283: although the BelgianGennan Treaty, infra n. 278, provides that a violation of the
rules of public policy is the only ground for refusal of enforcement, the Court examined in
depth the validity of the arbihation agreement in this case. This examination might have been
passed by if the claimant had relied on the German domestic law regarding the enforcement of
foreign arbitral awards (see supra at n. 225-226).
108
The bilateral treaties may be more favourable than the New York
Convention as far as the formal validity of the arbitration agreement is
concerned. This matter has t o be judged under the applicable law in the
case s f bilateral treaties, whereas in the case of the New York Convention it has to be determined under the uniform rule of Article II(2 j.
Thus, a bilateral treaty will be more favourable if an arbitration agreement does not meet the written form as required by Article II(2j of the
Convention, but complies with requirements of the law applicable
under the bilateral treaty.
On the other hand, the New York Convention may be regarded as
niore favourable than many of the bilateral treaties in respect of condition (iv). They frequently require that the award be "enforceable" in
the country where it has been made. It usually implies that a leave for
enforcement (exequatur or the like) has to be obtained in the country
where the award has been rendered.276 This amounts to the system of
so-called "double-exequatus" since a leave for enforcement has also t o
be obtained in the country where the enforcement is sought. As noted
at various places, this sytem of "double-exequatur9' has been abrogated
under the New York Convention, which requires by Article V(l)(e)
that the award only be "binding" on the parties.277
It should be noted, however, that some bilateral treaties provide that
once the leave for enforcement has been obtained in the country of
origin, the enforcement can be refused in the other Contracting State
only on the ground that the award violates the public policy of that
country.278 If the party seelting enforcement has obtained the leave for
enforcement in the country of origin, such a bilateral treaty is more favourable than the New York Convention as the latter Convention
allows the pasty against whom the enforcement is sought to assert the
grounds for refusal listed in Article V. Reference will be made below
to a case decided by the German Federal Supreme Court in which a
bilateral treaty of this kind was applied.279
276. The word "enforceable" can be interpreted as "inchoate for enforcement", without
the necessity of a leave for enforcement of the court in the country of origin. However, where
the enforceability of an award in the country of origin is to be proven by the party seeking enforcement, the most likely proof is the leave for enforcement issued in that country. Some
courts already interpret the word "enforceable" as requiring a leave for enforcement from the
country of origin. Such a restrictive interpretation was made, for instance, by the Dutch Supreme Court in respect of the word "enforceable" in the TFCN between the Netherlands and
the United States of 1956, supra n. 274, Hoge Raad, April 18, 1969, Nagtegaal N.V. v. Weinstein International Corp., Nederlandse Jurisprudentie. 1969 no. 350. criticized bv P. Sanders in
Weekblad voor Privaatrecht, Notariaat en Regispatie no. 5162 (1972) p. 94 at p. 95. See for
this case also infia n. 308-3 10.
277. See generally, infia 111-4.5.2 ("Award not 'binding' ").
278. E.g., Treaty between Belgium and F.R. Germany concerning the Reciprocal Recognition and Enforcement of Judicial Decisions, Arbitral Awards and Official Documents in Civil
and Commercial Matters of June 30, 1958, Bundesgesetzblatt 1959 I1 766, Art. 13(1).
279. See infra at n. 283-286.
109
The bilateral treaties are divided on the question whether the party
seeking enforcement must prove tlze conditions for enforcement. A
limited number of treaties provide that the court before which the enforcement is souglit must verify on its own initiative whether the award
fulfills the conditions for enfor~emeiit."~The majority is silent on this
question. In the absence of provisions on this point, it is .likely that the
party seeking enforcement must supply proof of the fulfilment of the
conditions. If this is the case, these treaties are less favourable than the
New York Convention. Pursuant t o Article IV of the Convention, the
party seeking enforcement has only to submit the original of the arbitration agreement and the arbitral award or certified or authenticated
copies thereof; the party against whom the enforcement is sought has
to prove the grounds for refusal listed in Article V(1), whereas the
court may refuse on its own initiative enforcement for reasons of public
policy pursuant t o Article V(2).
The foregoing observations demonstrate that the bilateral treaties are
sometimes less and sometimes more favourable than the New York
Convention for the enforcement of the arbitral award. This depends on
the bilateral treaty in question and the circumstances surrounding the
award. It is therefore important to determine whether the Convention
0.r a bilateral treaty is to be applied in those cases where the award
comes within the scope of both.
As the bilateral treaties containing provisions on the recognition and
enforcement of arbitral awards almost all date from before the entry
into force of the New York Convention in the respective countries, the
question of the relationship between the New York Convention and the
bilateral treaties is mainly confined to this category of bilateral treaties.
The use of the traditional principle of conflict of treaties of lex
posterior for determining the relationship bet ween the earlier treaties
and the New York Convention would lead to the applicability of the
Convention. This would, however, not preclude the application of the
earlier bilateral treaty since the mfr-provision of Article VII(1) allows a
party to base his request for enforcement on another treaty. Moreover,
the compatibility-provision contained in the same Article VII(1) leaves
earlier treaties untouched and could even lead to a prevalence of the
earlier treaty over the C ~ n v e n t i o n .Where
~ ~ ~ the earlier bilateral treaty
280. E.g., Conve~ltionbetween Czechoslovakia and Switzerland concerning the Recognition
and Enforcement of Judicial Decisions of December 21, 1926, 1 2 Recueil sysrkmatique des
Lois et Ordonnances (Bern) p. 348, Art. 1 ; Convention between Belgium and the Netherlands
concerning Territorial Jurisdiction, Bankruptcy and the Authority and Execution of Judgments,
Arbitral Awards and Notarial Acts of March 28, 1925, 93 League o f Nations Treaty Series 4.31
(no. 2131), Art. 15 jo 11; Convention between Austria and Switzerland, supra 11. 270, Art. 1;
Convention between Czechoslovakia and Spain, supra 11. 270, Art. 2.
281. See for the compatibility-provision and Art. 30(2) of Vienna Convention in the Law of
the Treaties of 1969, supra at n. 231-234.
contains a compatibility-provision, as some do 2" , the compatibilityprovision in the earlier bilateral treaty and tlae New York Convention
would neutralize each other, which would again lead, according to tlie
principle of lex posterior, to the applicability of the New York Convention. Here again, liowever, the application of the earlier treaty is not
precluded by virtue of the mfr-provision of Article VII(1) of the New
York Convention. It is submitted that this going back and forward
between the Convention and the treaty can be avoided if the principle
of maximum efficacy is resorted to. This principle could also override
the use of the other traditional conflict of treaties principle of lex
specialis.
Although the relatioilship between the New York Convention and
earlier bilateral treaties would not seem to create major difficulties,
some courts are not unequivocal in respect of this matter.
An example is the German Federal Supreme Court in a case concellling the request
for enforcement of an award made in ~ e l g i u m . " ~The award in question had been
declared enforceable by the President of the Court of First Instance in Brussels. The
Supreme Court first examined the bilateral Treaty between Belgium and F.R.
Germany of 1958." Pursuant to Ai-ticle 13(1) of this Treaty, an arbitral award
which is declared enforceable in either State must be enforced in the other State
unless, it violates the public policy of that State. The Court then turned to the New
York Convention which came into force between both States on November 16,
,thus subsequent to the bilateral Treaty. The Court observed:
1975
"The Court need not to go into the relationship between the [New York Convention] and the Belgian-German Treaty, as the latter is more favourable in
respect of the enforcement in those cases, where, as in the present case, the
award has already been declared enforceable in Belgium. In those cases, Article
VII(1) of the New York Convention . . permits a party . . . to use the more favourable regulation of the bilateral Treaty."
Although the Supreme Court stated that it needed not go into the relationship
between the New York Convention and the bilateral Treaty, it can be argued that it
did implictly do so as it examined and applied the later New York Convention, i.e.,
Article VIC(1), in order to arrive at the application of the Belgim-German bilateral
Treaty.
The reason for which the Supreme Court probably refrained from dealing expressly with the relationship between the New York Convention and the BelgianGerman bilateral Treaty is that the latter contains in Article 16 a compatibilityprovision which says that it shall not affect treaties which are in force, or which will
be in force, between both States. For this reason the Belgian-German Treaty is considered subsidiarily applicable to the other conventions .286 As pointed out above,
'"
282. E.g., the Italy-Netherlands Treaty of 1959, supra n. 274, Art. 12.
283. Bundesgerichtshof, March 9, 1978 (F.R. Germ. no. 17).
284. See Supra n. 278.
285. This is the date on which the New York Convention entered into force in Belgium
(ratification: August 18, 1975). F.R. Germany ratified the New York Convention on June 30,
1961.
286. R. Geimer and R. Schiitze, Internationale Urteilsanerkennung Vol. I1 (Munich 1971)
y. 323.
however, such a compatibility-provision in a bilateral treaty is immaterial for the
New York Convention as t h e compatibility-provision of the latter neutralizes the
compatibility-provision of the former and the mfr-provision of the latter permits to
apply the bilateral treaty.
The Belgian Supreme Court was also equivocal on the relationship between an
earlier bilateral treaty and the New York on vent ion.^^ The case involved an
award rendered in Zurich in a dispute between a Belgian distributor and a German
car manufacturer and decided in favour of the latter. The issue to be decided by the
Supreme Court was the question whether the unila.teral termination of a concession
for an exclusive distributorshi of an indefinite time is capable of settlement by arbitration under Belgian law.2' Before the Supreme Court, the German manufacturer had invoked the bilateral Treaty between Belgium and Switzerland of
1959 289 by virtue of the mfr-provision of Article VII(1) of the New York Convention. He had argued that, unlike the Article V(2)(a) of the New York Convention,
the Belgian-Swiss Treaty did not contain the condition for recognition that the
award concern a subject matter capable of settlement by arbitration and that, therefore, recognition could not be refused on this s o u n d . The Supreme Court rejected
this argument as follows:
"Considering that the recognition of foreign arbitral awards by the Belgian judiciary is, in principle, subject to the condition that under Belgian law the dispute
can be settled by arbitration and can therefore be withdrawn from the jurisdiction of the courts;
i s s of 1959 . . . does not derogate from
"Considering that the ~ e l ~ i a n - ~ wTreaty
t f i rule which is applicable even if it is not expressly formulated by international conventions ;
Considering that this rule is confirmed by the New York Convention of 1958
. . . which provides in Article V(2)(a) that the recognition and enforcement of an
arbitral award may be refused if the competent authority in the country where
the recognition and enforcement is sought finds that the subject matter of the
difference is not capable of settlement by arbitration under the law of that
country ;
Considering that this Convention has been ratified by Switzerland;
Considering that this assertion has therefore no legal basis."
The Supreme Court first interpreted the Belgian-Swiss Treaty as including the
condition of arbitrabjlity of the subject matter of the award, which is not surprising
as the ground for refusal of violation of the public policy - which ground is expressly included in the Belgian-Swiss Treaty - is generally considered to comprise
the issue of arbitrability as well. Article V(2)(a) is therefore considered as superfluous in view of Article V(2)(b). However, the Court then turned to the New York
Convention in order to show that this ground is expressly provided under that Convention. The penultimate observation that the New York Convention has been ratified by Switzerland seems to indicate that the Court deemed either both the Convention m d the Treaty applicable, or the New York Convention alone applicable.
The first possibility must be deemed incorrect as the New York Convention cannot
. ~ ~ second
be combined with a bilaterd treaty or other multilateral c o n ~ e n t i o n The
287. Cour de Cassation (1st Chamber), June 28, 1979, Audi-NSU Auto Union A.G. v. S.A.
Adelin Petit & Cie (Belgium no. 2).
288. See for this question, infra 111-5.2 ("Non-arbitrable Subject Matter (Arts. V(2) (a) and
II(1))").
289. Treaty between Belgium and Switzerland on the Recognition and Enforcement of
Judgments and Arbitral Awards of April 29, 1959, Moniteur Belge of September 11, 1962.
290. See supra 1-4.2.3.
'
112
possibility leaves the question unanswered why the Court deemed it necessary to
imply the condition of sbitrabjlity in the Belgian-Swiss Treaty and did not state
that this Treaty was not applicable.
That the relationship between the New York Convention and bilateral treaties
does not receive the due attention of the courts can dso be seen from the Court of
First Instance of Munich which observed in respect of the request for enforcement
of an award made in the Netherlands that "In the absence of bilateral treaties the
present enforcement procedure is governed by the New York Convention. . .9: .291
This incidental observation might suggest that if a bilateral treaty were applicable
the Court would apply that treaty, but this construction is obviously by no means
cei-tain. It may be observed that in referring to the bilateral treaties, the Court
could have pointed to a bilateral treaty which does exist between F.R. Germany
and the
This Treaty refers for the conditions of recognition and enforcement arbitrd awards to the conventions which are in force, or which will be in
force, between both States, which Treaty would have led to the application of the
New York Convention.
Finally, mention may be made of a United States Court of Appeals concerning
an award made in Japan between a Japanese and a United States party.293 The
Court considered the applicability of the TFCN with Japan of 1953 which provides
in Article IV(2) that awards, which are find and enforceable under the laws of the
place where rendered, shall be declared enforceable by the courts of either State,
except where found to be contrary to public policy. The Court reached the conclusion that where both States Party
"to a bilateral Treaty, Japan and the United States, later become signatories to a
multinational Convention covering the same subject matter, the Convention is
intended to control . . . despite the saving clause preserving the validity of bilateral agreements between Contracting States" [i.e., Art. VII(1)l.
In this connection the Court made a rather vague reference to the principle of lex
posterior:
"The adhesion of additional signatories does not affect the circumstance that
each signatory, bound by bilateral agreement, is modifying its earlier engagement
vis4-vis the other, but only to the extent necessary."
It made also an indirect reference to the principle of lex specialis:
"[I]nasmuch as both agreements further the same purpose, the one tending to
further that purpose most forcefully, the Convention, should be given effect."
The Court, however, omitted to mention the mfr-provision of Article VII(1) of the
Convention. Relying on this provision, the Court should, in my opinion, have come
to another conclusion, i.e., that either the Convention or the TFCN could have
been applied, depending on which would have led to the granting of enforcement of
the award.
The foregoing cases are a few examples of the apparently difficult

question for the courts of the relationship between the New York Convention and the bilateral treaties.294No court has dealt with later bilat-
291. Landgericht of Munich, June 20, 1978 (F.R. Germ. no. 19).
(U.S. no. 3) n. 4.
294. See also Oberlandesgericht of Hamburg, April 3, 1975 (F.R. Germ. no. 11): applicac
113
era1 treaties, which is not surprising since, as noted before, they are almost non-existent.
'
:
/
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I
For the rare case that the relationship between the New York Convention and a
later bilateral treaty need to be determined, the principle of lex posterior would
foreclose the applicatio~zof tlie New York Convention unless the bilateral treaty
contains a compatibility-provision. In the case where the later bilateral treaty is less
favourable than the New York Convention, this would be detrimental to the party
seeking enforcement. The solution may be in this case also to resort to the principle
of maxinlum efficacy.
1-4.5
Geneva Protocol of 1923 and Geneva Convention of 1927

(Art. WI(2))
The original purpose of establishing the New York Convention was

to revise the Geneva Convention on the Execution of Foreign Arbitral
Awards of 1927 as this Convention was too cumbersome for the party
seeking enforcement and did not work satisfactorily in practice.29s As
the New York Convention was conceived as a replacement of the
Geneva Convention, and to avoid any doubt as to whether this Convention could remain in force, it was decided at the New York Conference
of 1958 t o provide expressly that the Geneva Convention ceased t o
have effect between the States which became Party to the new Convention. At one of the last meetings of the New York Conference, the provisions relating to the validity of the arbitration agreement and the enforcement of the arbitration agreement were added to the new Convention (i.e., the present Art. 11). These matters being covered by the
Geneva Protocol on Arbitration Clauses of 1923, this Protocol was included in the new provision which abrogated the Geneva Convention of
1927.296
The final text of the provision abrogating the Geneva Protocol and
Convention between the States Party to the New York Convention became the following :
'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
tion of the TFCN between F.R. Germany and the United States because the United States had
ratified the New York Convention only after the parties had concluded the contract (cf. supra
I
at n. 192); U.S. District Court, E.D. Michigan S.D., August 9, 1976, Audi-NSU Auto Union
I
A.G. V. Overseas Motors Inc. (U.S. no. 11): Court held without merit the argument of respondent that the claimant was required to exhaust its remedies under the TFCN between F.R.
, Germany and the United States.
295. See Introduction nos. 8-9.
'
296. UN DOC EICONF.26ISR.24.
effect between Contracting States on their becoming bound and to the extent
that they become bound, by this Convention."
Originally, it was the intention to insert this provision at the end of

the text of the Convention. However, at the instigation of the Polish
delegate, it was added in the form of a second paragraph to the
sions of Article VII(l), the compatibility- and mfr-provision, in order to
make clear that the abrogation is to be considered as an exception to
these provisions.297 It means that the rule is, as examined in the foregoing Sections, that the other treaties (as well as domestic law) concerning the enforcement of foreign arbitration agreements and arbitral
awards are not superseded by the New York Convention, whereas the
exception to this rule is constituted by the Geneva Protocol and Convention.
Several courts have affirmed Article VII(2) of the New York Convention that the Geneva Treaties have ceased to have effect between the
States which have become Party to the New York C o n v e n t i ~ n . ~ ~ ~
Nevertheless this provision has provoked certain questions before the
courts which will be examined below. Because the questions before the
courts have come up only in connection with the enforcement of the
award, the examination will be limited to this type of action. However,
the observations apply equally to the enforcement of the arbitration
agreement (Geneva Protocol, Art. 4, and New York Convention, Art.
II(3)).
The replacement of the Geneva Treaties by the New York Convention between the Contracting States is complete in the sense that the
Geneva Treaties become extinct. It means that the Geneva Treaties do
not "revive" if the New York Convention cannot be applied because
one of its conditions has not been met. An example of the situation
under which enforcement would have been granted under the Geneva
Treaties but not under the New York Convention is the form of the arbitration agreement. The New York Convention contains in Article
II(2) a uniform rule for the written form of the arbitration agreement.
The Geneva Treaties do not contain such a uniform rule but leave this
matter to the applicable national law. Where an arbitration agreement
does not comply with Article II(2) of the New York Convention, the
Convention cannot be applied. The form of the agreement may be valid
under domestic law, but'in such a case one cannot fall back on the
Geneva Treaties.299 The text of Article VII(2) is quite clear on this

298. E.g., Landgericht of Bremen, December 16, 1965 (F.R. Germ. no. 2); Corte di Cassazione (Sez. Un.), May 25, 1976, no. 1877, Begro B.V. v. Voccia (Italy no. 37); Court d'appel of
LiBge, May 12, 1977, Audi-NSU Auto Union A.G. v. S.A. Adelin Petit & Cie (Belgium no. 1).
299. In such a case a party seeking enforcement can, of course, still rely on another basis,
Field of Applicatiou.
115
1 point as it states "shall cease to have effect . . . on their becoming

bound." It may be added that the New York Conference expressly
/I voted
down a Swiss proposal to the effect that the Geneva Treaties

could be relied upon insofar as they contained more liberal condijtion~.~~~
A possible revival of the Geneva Treaties cannot be based either on
I the last part of Article VII(2) reading "to the extent that they become
j bound." This expression was added with a view to the territorial appliI
cability of the New York Convention as the United Kingdom delegate
had pointed out that some Contracting States would not becometd
I bound by the Convention in respect of all their territories as regulated
in Article X of the Convention (the so-called ""colonial
This
( was rightly recalled by the Court of Appeal of Diisseldorf when it ruled
I that the Geneva Treaties do not revive if an arbitral clause does not
I comply with Article II(2) of the New Y ork C o n ~ e n t i o n . ~ ~ ~
The scope of the New York Convention is broader than that of the
I Geneva Treaties. The Geneva Convention of 1927 requires that the
award be made in the territory of a Contracting State between parties
which are subject to the jurisdiction of different Contracting
I
The
"nationality requirement" has intentionally not been provided in
I
/ the New York Convention, which only requires that the award be made
I in the territory of another State, and, if the first reservation of Article
I(3) is used, that the award be made in the territory of another Con; tracting State. Thus, where an award is made in London between a
Panamanian and an Italian party, the Geneva Convention of 1927 could
not be applied to the enforcement in Italy although both the United KingI dom and Italy have adhered to the Geneva Treaties, Panama not being
1 a Party. However, as both States have adhered to the New York ConI
1
1
'
for example, domestic law on enforcement of foreign awards, by virtue of the mfr-provision of
Art. VII(1).
300. UN DOC El2822 p. 9; E/CONF.26/SR.18.
I
301. UN DOC EICONF.261SR.24.
302. Oberlandesgericht of Diisseldorf, November 8, 1971 (F.R. Germ. no. 8).
1
303. The Geneva Protocol of 1923 applies to "an arbitration agreement ... between parties
1
subject respectively to the jurisdiction of different Contracting States ... whether or not the
arbitration is to take place in a country to whose jurisdiction none of the parties is subject."
(Art. I(1)). The Geneva Convention of 1927 applies to "an arbitral award made in pursuance of
an agreement covered by the [Geneva Protocol of 19231 ... provided that the said award has
, been made in a territory of one of the High Contracting Parties ... and between persons who are
subject to the jurisdiction of one of the High Contracting States." (Art. l(1)). The Geneva
Convention can be ratified only by States who have ratified the Geneva Protocol of 1923 (Art.
7(2)). A combined reading of the definitions of the fields of application given in the Geneva
Protocol and the Geneva Convention has as result that the Geneva Convention applies only to
arbitral awards made in a Contracting State and between persons subject to the jurisdiction of
different Contracting States. See for the differences between the Geneva Protocol and the
Geneva Convention in respect of the field of application, H.-W. Greminger, Die Genfer A bkommen von 1923 und 1927 uber die internationale private Schiedsgerichtsbarkeit (Winterthur
1957) p. 50.
'
116
vention, the Geneva Treaties are no longer applicable between them.

The difference is that the enforcement of an award between the above
parties can be judged under the New York Convention, as it does not
provide for a "nationality
Similarly, an award made in
F.R. Germany between two Italian parties could not have fallen under
the Geneva Convention.of 1927 in Italy as the parties were subject to
the jurisdiction of the same Contracting State; in contrast, the New
York Convention is now applicable to the enforcement of the same
award. 305
Because of these differences between the Geneva Treaties and the
New York Convention in defining their fields of application, Article
VII(2) may give rise to at least two problems with regard t o the enforcement in a New York Convention country of an award made in a
country which has adhered to the Geneva Treaties but not to the New
York Convention. These countries are at the time of this writing: Ireland, Luxembourg, Mauritius Island, New Zealand, Portugal and Yugoslavia.
The first problem concerns the requirement of the Geneva Treaties
that the parties be subject t o the jurisdiction of different Contracting
States in the case where the award is made in a country which is a Party
to the Geneva Treaties only.
,
I
I
'
1
1
i1
I
If an award is made in a State which has adhered to the Geneva Treaties only, between parties which are subject to the jurisdiction of States which have adhered to
both the Geneva Treaties and the New York Convention, the enforcement of such
award in one of the latter States may pose the problem whether the Geneva Convention can still be applied. For example, if in F.R. Germany enforcement is sought
of an award made in Yugoslavia between a F.R. German and a Romanian party, the
New York Convention cannot be applied because F.R. Germany has used the first
resewation of Article I(3) according to which it shall apply the New York Convention to awards made in other Contracting States only. However, it can be argued
that the Geneva Convention of 1927 also cannot be applied because by virtue of
Article VII(2) the Geneva Treaties have ceased to have effect between F.R. Germany and Romania. This was the opinion of an Austrian Court of peal.^^ The
Court of First Instance of Hamburg came to an opposite conclusion and applied the
Geneva Convention of 1927 in this case.307 It is submitted that the Hamburg Court
304.. Tribunale of Naples, June 30, 1976, Grancebaco v, Italgrani (Italy no. 22).
305. Corte di Appello of Milan, December 13, 1974, S.a.S. C.I.P.R.A. di Schmutz & Co. v.
Pezzota Camillo (Italy no. 12).
306. The decision of the Court of Appeal is dealt with in Oberster Gerichtshof, November
17, 1965 (Austria no. 1). The award in this case was made in the Netherlands between an
Austrian and a F.R. German party. The Court of Appeal had erroneously assumed that the
Netherlands had only adhered to the Geneva Treaties and not to the New York Convention.
The Austrian Supreme Court corrected this mistake and applied accordingly the New York
Convention, without, however, discussing the question whether the Geneva Convention would
have been applicable in this case if the Netherlands had not adhered to the New York Convention.
307. Landgericht of Hamburg, April 24, 1979 (F.R. Germ. no. 21). The award in this case
114
represents the better view. Article VII(2) has been inserted in the Convention in
order to make clear that the Convention replaces the Geneva Treaties. It must
therefore be deemed to apply only to those cases where the New York Convention
and the Geneva Treaties could have been concurrently applicable. Moreover, the
expression "between Contracting States" as used in Article VII(2) refers to States
which have adhered both the New York Convention and the Geneva Treaties, The
Geneva Treaties may, however, as in the present case, involve a tripartite State
relationship. If in such a case one of the States has adhered to the Geneva Treaties
only, the expression "between Contracting States" must be deemed not to be
fulfilled.
An award made in a State which has adhered t o the Geneva Treaties only may pose a second problem for the enforcement in a State
which has adhered to both the Geneva Treaties and the New York Convention in the cases where the State in which the enforcement is sought
has not used the first reservation of Article I(3) of the Convention.
If the latter State, as in the first problem, has used the first reservation of Article
1(3), the Geneva Convention will be applicable. However, if that State has not used
' the first resewation, it will apply the New York Convention to awards made in any
other State. The question then arises whether in this case the enforcement of an
I award made in a State which had adhered to the Geneva Treaties only, is governed
by the Geneva Convention of 1927 or the New York Convention. For example, an
award is made in Yugoslavia between an Italian and a Yugoslav party, and such
award is sought to be enforced in Italy. Italy has adhered to both the Geneva
Treaties and the New York Convention, and has not used the first reservation of
Article I(3). Must the Italian court apply the Geneva Convention or the New York
Convention? It is submitted that in this case an option exists to base the enforce, ment on either Convention. The compatibility-and mfr-provision of Article VII(1)
/ lay down as general rule that the New York Convention does not constitute a lex
; posterior. The exception to this general rule is Article VII(2) which affirms that
I between Contracting States the New York Convention does constitute a lex posterI ior vis-&-vis the Geneva Treaties. A contrario the Geneva Treaties p r e v d over the
New York Convention where the exception is not fulfilled, thus where one of the
States involved has adhered to the Geneva Treaties only. However, the Geneva
Convention contains in Article 5 a mfr-provision which is almost identical to the
mfr-provision contained in Article VTI(1) of the New York Convention. This would
permit to base the enforcement on the New York Convention.
Although this problem has not yet arisen in practice, it may come up as companies especially in Yugoslavia, and to a lesser extent in Ireland, conclude more and
) more contracts providing for arbitration within their own count~y.
1.
'
A combination of the first and the second problem may also occur: enforcement of an award made in a State which has adhered to the Geneva Treaties only
between parties subject to the jurisdiction of States which have adhered to both the
was made in Belgium between a Dutch and a F.R. German party. The Court did not apply the
New York Convention because it assumed that Belgium had only adhered to the Geneva Treaties and not to the New York Convention. The Court's assumptiol~was, however, erroneous:
Belgium ratified the New York Convention on August 18, 1975 (entry into force: November
16, 1975) and was therefore already a Party to the Convention both at the time the award was
made (i.e., June 21, 1978) and at the time the Court rendered its decision.
Geneva Treaties and the New York Convention, is sought in a State which has also
adhered to both the Geneva Treaties m d the New York Convention but which
State has not used the first reselvation of Article 1(3) (for example, enforcement in
Italy of an award made in Yugoslavia between an Italian and a Romanian party).
This combined problem is t o be solved along the same lines as the second problem.
As noted before, some bilateral treaties refer for the enforcement of

the award to the Geneva C o n ~ e n t i o n . ~ ~both
V f States concerned have
subsequently adhered to the New York Convention, the Geneva Convention can no longer be applied.
On the one hand, Article VII(2) provides that between Contracting States the
Geneva Treaties cease to have effect. On the other hand, Article VII(1) allows t o
rely on bilateral treaties, including those which refer t o the Geneva Convention.
The latter argument was used by the President of the Court of First Instance of The
Hague for holding the enforcement of an award made in the United States t o be
governed by the Geneva Convention, although the Netherlands and the United
The Treaty of FriendStates had already adhered t o the New York
ship, Commerce and Navigation (TFCN) between the Netherlands and the United
States of 1956 refers for the enforcement in the Netherlands t o the Geneva Convent i ~ n . ~ "As the petitioner had not provided a Dutch translation of the arbitral
award, which the President deemed t o be compulsorily prescribed by Article IV(2)
of the New York Convention, the President assumed that the petitioner had used
the mfr-provision of Article VII(1) and relied on the Dutch-American TFCN,
respectively the Geneva onv vent ion,^^^ The President did not mention Article
VII(2) of the New York Convention. Nevertheless this provision must be deemed
t o apply also to an "'indirect" reference to the Geneva Convention because the very
purpose of Article VII(2) is t o replace the Geneva Treaties. I t may be added that
the Dutch-American TFCN was concluded in 1956, thus well before the conclusion
of the New York Convention. If the TFCN had been concluded subsequent t o the
New York Convention, it had certainly provided that the enforcement was t o be
governed by the New York Convention. It may therefore be presumed that those
bilateral treaties which refer to the Geneva Convention become obsolete in those
cases where the States concerned have become Party t o the New York Convention.
I-4,6
Unif orm Interpretation (and Summary)
Article VII(1) permits to rely on another basis for the enforcement

of the arbitral award. The domestic law on the enforcement of foreign
309. President of the Rechtbank of The Hague, June 23, 1972, Weinstein International
Corp. v. Nagtegaal N.V. (Neth. no. 5). This decision was the second round of the enforcement proceedings in the Netherlands. See for the first round in which the enforcement was
refused because Weinstein had not obtained a leave for enforcement in the United States,
supra n. 276.
310. The United States has not adhered to the Geneva Treaties. For the enforcement in the
United States the TFCN refers to the manner of enforcement of awards rendered in other
States of the United States.
311. See for this, in my opinion, also .erroneous view of the President, infka 111-2.3 ("Trans-
l 19
arbitral awards of the court where the enforcement is sought can be

,taken as basis by virtue of the more-favourable-right (mfr)-provision,
whilst the other multilateral and bilateral treaties can be taken as basis
by virtue of both the mfr- and compatibility-provision of Article VII(l)
(pp. 81-84).
'
The party who may rely on the other basis for enforcement, indicated by Article VII(1) as "any interested party9?,is only the party who
I seeks enforcement (pp. 84-85).
A combination of the provisions of the Convention with provisions
!of another basis for enforcement is not possible. An exception is the
European Convention of 196 1 (see below) (pp. 85-86).
I
Although Article VII(1) does not mention the arbitration agreement,
1
the mfr-provision must be deemed t o apply to the enforcement of the
agreement as well (pp. 86-88).
The Convention does not supersede the domestic law on the enforcem e n t of foreign arbitration agreements and arbitral awards in the sense
that it is allowed t o rely thereon in actions outside the Convention (pp.
88-90).
The relationship between the Convention and other multilateral and
bilateral treaties can be determined in the most appropriate manner by
using the principle of conflict of treaties of maximum efficacy according t o which principle that treaty or convention is applicable which upholds validity in a given case. This principle is confirmed by the compatibility- and mfr-provision of the New York Convention (pp. 90-92).
The relationship with the European Convention of l 96 1 is such that
as far as enforcement of the arbitration agreement and the arbitral
award is concerned, the European Convention cannot function without the New York Convention. In case of concurrent applicability, the
European Convention is t o be applied in addition to the New York
Convention (pp. 92-98).
As far as the other multilateral treaties are concerned, the principle
of maximum efficacy may be applied in relation to the Panama Convention of 1975 (although this Convention is not entirely clear), and, if
there is need for it, in relation to the Washington Convention of 1965.
On the other hand, the New York Convention is not applicable in those
cases where the Moscow Convention of 1972 is applicable (pp. 98-105).
As far as bilateral treaties are concerned, almost all of them were
concluded prior t o the coming into force of the New York Convention
in the States concerned. Here also, the principle of maximum efficacy is
the most appropriate rule to determine the relationship with the New
York Convention (pp. 105-1 13).
lation (Art. llV(2))") at n. 111. 74.
120
The Geneva Protocol of 1923 and Convention of 192'7, which cease

to have effect between the Contracting States pursuant t o Article
VII(2), continue to be applicable in the following exceptional cases.
They continue to be applicable in a State which has adhered to both
the Geneva Treaties and the New York Convention, including the first
reservation of Article I(3), if the enforcement of an award is sought
which has been made in a State which has adhered t o the Geneva
Treaties only, provided that the parties are subject t o the jurisdiction of
both States. If in this case the State where the enforcement is sought
has not used the first reservation of Article I(3), there is an option to
rely either on the Geneva Treaties or on the New York Convention. On
the other hand, reference in a bilateral treaty t o the Geneva Convention
becomes obsolete in those cases where the States concerned have
become Party to the New York Convention (pp. 1.13-1 18).
Chapter II
Enforcement of the Arbitration Agreement
This Chapter concerns the first of the two actions of the New York
Convention, which is the enforcement of Che arbitration agreement pursuant to Article II(3).l The second action, the enforcement of the
arbitral award, will be dealt with in Chapter 111.
The Chapter is divided into two Parts. The first Part is concerned
with the conditions for the enforcement of the arbitration agreement in
general. It does not include an examination of the question which arbitration agreements fall under Article II(3) as this question regarding the
scope of the Convention was already examined in Part 2 of Chapter I.
The second Part of this Chapter deals with the written form of the
arbitration agreement as required by Article II(2) of the Convention.
The reason that a separate Part is devoted to this question is that no
other provision of the Convention has provoked so many decisions as
Article II(2).
It should be pointed out that the written form requirement of
Article II(2) does not only apply in the action for the enforcement of
the agreement, but also in that of the arbitral award (Arts. IV(l)(b) and
V(l)(a)).2 It is merely for reasons of internal division in this study that
this question is examined in the context of the enforcement of the
agreement.
1. It may be recalled that the Convention does not use the term "enforcement" with regard
to the arbitration agreement, but speaks in a more general way about "recognition" (Art.
II(1)). In order t o identify the referral by the court to arbitration pursuant to Art. II(3),
the more specific term "enforcement" is used in the text, in a manner which corresponds to the
term "enforcement" in connection with the arbitral award.
2. See for this question, infra 111-4.1.3.3 ("Applicability of Article 11").
122
Enforcement Agreement
PART 11-1 E F E R M L BY COURT TO ARBITRATION

(ART. %$(I)and (3))
11-l,l
Introduction
11-1.1.1
C~nvention'sprovisionsrelating to refirral
In order to fully appreciate the conditions for the referral by a court

to arbitration, it may be useful to quote the relevant provisions of the
Convention, beginning with Article 11:
" l oEach Contracting Party 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 contractural or not,
concerning a subject matter capable of settlement by arbitration.
2. The term 'agreement in writing9shall 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 am action in a
matter in respect of which the parties have made an ageement within
the meaning of this article, shall, at the request of one of the parties,
refer the parties to arbitration, unless i t finds that the said agreement is
null and void, inoperative or incapable of being performed."
Article V(l )(a) may also be quoted. According t o this provision, enforcement of an arbitral award may be refused if the party against
whom the enforcement is sought proves that:
""The parties to the agreement referred to in Article I1 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".
As will be subsequently explained, this provision can be deemed to be
incorporated in the provisions for the enforcement of the arbitration
agreement as set out in Article II.3
On the basis of the above quoted provisions of the Convention, the
enforcement by a court of an arbitration agreement will be considered
in this Part in three Sections: the first Section, headed "Referral to Arbitration in General", deals with the meaning and effect of the expression "refer the parties t o arbitration" as well as the procedural aspects
of the referral by the court to arbitration (11-1.2). The second Section,
3. See infra 11-1.1.3 ("Determination of Law Applicable t o Arbitration Agreement").
123
headed "Arbitration Agreement and Referral to Arbitration", is concerned with the conditions with which the arbitration agreement must
comply in order to be enforceable under Article II(3) of the Convention (11- 1.3). The third and last Section, headed "Multi-Party Disputes
and Referral to Arbitration", deals with the problems connected with
the situation where there are more than two parties, one of whom is
not bound by the same arbitration agreement or no arbitration agreement at all, and the disputes involve identical or related claims. A separate Section is devoted to this topic as this type of situation occurs
more and more frequently.
Before turning to these three topics, two preliminary observations
should be made with regard to the relationship between the Convention's provisions and municipal law and the determination of the law
applicable to the arbitration agreement.
11- 1. I .2
ConvePation's provisibns and municipal law
For the enforcement of the arbitration agreement, the Convention

contains internationally uniform provisions, but it also leaves a number
of matters to be determined under some municipal law.
The uniform provisions supersede the relevant provisions of municipal law. They include the Convention's provisions relating to the written form of the arbitration agreement, the mandatory nature of the referral by the court t o arbitration, the defined legal relationship whether
contractual or not, and the grounds for refusal of enforcement that the
agreement is null and void, inoperative or incapable of being performed.
In this connection it should already be mentioned that, although the Convention's
provision that the agreement not be null and void etc. is a ground for refusal of enforcement of the arbitration agreement which supersedes any other ground under
municipal law, the question when an agreement is to be considered null and void
etc. may again depend on some municipal law because the Convention does not give
much guidance as to what should be understood by these words.
It may also be mentioned that Section 7 ( 2 ) of the implementing Australian Act
1974 can be considered as not conforming to the uniform character of Article II(3)
of the Convention as it provides that ". . . the court shall, by order, upon such
conditions (if any) as it thinks fit, stay the proceedings . . .". (emphasis added)
The municipal law may be the law of the forum (inter alia, for the
question of arbitrability and the procedural questions not regulated by
the Convention), the law applicable to the arbitration agreement (inter
alia, for determining its validity to the extent that it is not superseded
by the Convention), or the law applicable to the parties (for determining the capacity to go to arbitration).
There may be questions which at the stage of enforcement of the
arbitration agreement may have to be determined under the law governing the arbitral procedure, either under this law alone or cumulatively
124.
Enforcemen t Agreemen l.
with the law applicable to the arbitration agreement. These questions

are, inter alia, the question whether the arbitration agreement has ceased
to have effect due t o the expiry of a time limit for arbitrating, the
death of an arbitrator, the refusal of a third party designated in the arbitration agreement to appoint an arbitrator, etc.
This problem is rather academic and has not come up before the
courts so far. It forms part of the more general question whether the
arbitration agreement, the arbitral procedure, and the arbitral award
could be governed by different laws. Although this is, in theory, possible under the New York Convention, in practice it appears that one and
the same law applies.
As far as the law governing the arbitral award is concerned, this law is the law of the
country in which, or under the law of which, the award is to be, or was, made (Art.
V(l)(e)). Since the phrase "under the law of which" is concerned with the theoretical possibility that the parties have agreed on a law applicable to the award which
is different from the law of the place of rendition (see I- 1.5 supra), in practice the
award is governed by the law of the place where it is made.
As far as the law governing arbitral procedure is concerned, this law is the law of
the place of arbitration, subject to a specific regulation to be observed in the enforcement proceedings under the New York Convention (Art. V(l)(d), see hereafter).
As it virtually never occurs that in the award a place of rendition is indicated
which is different from the place of arbitration, the law governing the arbitral
procedure and the law governing the arbitral award are in almost all cases the same
law.
As far as the arbitration agreement is concerned, according to the conflict rules
of Article V(l)(a) - which are to be deemed applicable at the stage of the enforcement of the arbitration agreement as well, see 11- 1.1.3 hereafter - the parties may
subject the agreement to the law of their choice, and, failing such choice, the arbitration agreement will be governed by the law of the country where the award is
made. Since the choice of the law governing the arbitration agreement must be express 4, and such express choice is almost never made by the parties, the law
governing the arbitration agreement is in practice almost always the same law as the
law governing the arbitral procedure.
As the law governing the arbitral procedure is also the same law as the law
governing the arbitral award, the result is that in practice one and the same law applies to all three stages of the arbitration, viz., the arbitration agreement, the
arbitral procedure and the arbitral award. Thus the problem whether at the stage of
the enforcement of the arbitration agreement certain questions may (also) have to
be determined under the law governing the arbitral procedure, is theoretically interesting, but has little relevance in practice. In view of the congruence of the applicable laws in practice, the reference made in the following t o the law applicable to
the arbitration agreement is made on the understanding that this is the same law as
the law governing the arbitral procedure and the arbitral award.
4. See infra 111-4.1.3.5(a) ("Determination of the Law Applicable to the Arbitration Agreement - Law to Which the Parties Have Subjected the Agreement").
125
Another theoretical question, which has not come up before the

courts either, is whether the provisions of Article V(l)(d) apply by
analogy at the stage of the enforcement of the arbitration agreement.
Article V(l)(d) provides that the enforcement of an award may be refused if the
composition of the arbitral tribunal 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. Article V(l)(d) contains a specific regulation in that only in the absence of an agreement of the pai-ties
on the composition of the arbitral tribunal and the arbitral procedure these matters
are to be judged under the law of the countiy where the arbitration took place.
This may give rise to the question whether matters contained in the arbitration
agreement relating to the composition of the arbitral tribunal (e.g., the number of
arbitrators) and the arbitral procedure are not to be judged under the applicable law
at the stage of the enforcement of the arbitration agreement. It is submitted that
the provisions of Article V(l)(d) cannot be applied by analogy at the stage of
enforcement of the arbitration agreement. The reason for this is that the specific
regulation of Article V(l)(d) has merely the effect of reducing the control &er the
foreign award by the court before which its enforcement is sought.5
It should finally be observed that the role played by the law applicable to the arbitration agreement as described above when the enforcement of the arbitration
agreement is sought, can be more extensive than when the enforcement of the arbit,rd award is sought. At the stage of the enforcement of the award few matters
remain to be determined under the law governing the arbitration agreement.6 At
both stages, however, the most important role is played by the uniform rule of Article II(2) regarding the formal validity of the arbitration agreement.
This Chapter will not be concerned with the content of the municipal law when it is deemed to be applicable. It would by far exceed the
scope of this study to make a comparative survey of the multiplicity of
municipal laws for each question. Rather, the main object of this study
being the unification of judicial interpretations of the Convention's
provisions, it will aim to identify which matters are governed by the
internationally uniform provisions of the Convention and which
matters are governed by municipal law. By drawing the line between
which matters are governed by the Convention's provisions and which
are governed by municipal law, it will be attempted to bring as many
matters as possible under the Convention's provisions. The desirability
of reducing the role of municipal law was aptly stated by the District
Court of New York, in referring to the United States Supreme Court :
5. See for Art. V(l) (d), infra 111-4.4.

6. Comp. infra 111-4.1.3.4 ("Matters Left to the Law Applicable t o Arbitration Agreement").
7. U.S. District Court of New York, S.D., December 2, 1977, Ferrara S.p.A. v. United Grain
Growers Ltd. (U.S. no. 20), see infra 11-2.4.3.3 ("Incorporation b y Reference"). The Court
quoted from the U.S. Supreme Court, June 17, 1974, Fritz Scherk v. Alberto Culver Co. (U.S.
n o . 4 ) a t p. 520-521 n. 15.
126
"[Tlhe Supreme Court has noted that 'the delegates t o the Convention voiced
frequent concern that courts of signatory countries in which an agseement to
arbitrate is sought to be enforced should not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability or
in a manner that would diminish the mutually binding nature of the agreements'.
This concern would seem to be equally compelling whether the 'parochial view'
is that of the forum or of another State with an alleged interest in the controversy."
11- 1.1.3 Determination of the law applicable to the arbitration agreement

Although the role of the law of the forum is not insignificant, the
municipal law which plays the most important role for the enforcement
of the arbitration agreement under the Convention is the law applicable
to the arbitration agreement if a matter cannot be brought under the
Convention's uniform provisions. In the context of this Part of the
study it raises the question of how the law applicable to the arbitration
agreement should be determined at the stage of enforcement of the arbitration agreement.
Article V(l)(a) of the Convention provides that the law applicable t o
the arbitration agreement is "the law to which the parties have subjected it or, failing any indication thereon, . . . the law of the country
where the award was made". This can be deemed to constitute uniform
rules of conflict of laws which prevail over any other conflict rules, in
particular those of the forum, for determining the law applicable to the
arbitration agreement .*
The uniform conflict rules for determining the law applicable to the
arbitration agreement are mentioned in the Convention only in connection with the enforcement of the arbitral award. The question is
whether the same uniform conflict rules are to be applied in connection
with the enforcement of the arbitration agreement. A systematic interpretation of the Convention, in principle, permits the application by
analogy of the conflict rules of Article V(l)(a) t o the enforcement of
the agreement. It would appear inconsistent at the time of the enforcement of the award to apply the Convention's uniform conflict rules and
at the time of the enforcement of the agreement to apply possibly different conflict rules of the forum. It could lead t o the undesirable situation of the same arbitration agreement being held. t o be governed by
two different laws: one law determined according to the conflict rules
of the forum at the time of the enforcement of the agreement, and the
other determined according to Article V(l)(a) at the time of enforce-
8. See H.-V. von Hiilsen, Die Gultiglceit von internationalen Schiedsvereinbancngen (Berlin
1973) p. 99.
127
ment of the award. The silence of the Convention on this point in connection with the enforcement of the agreement is not to be interpreted
a contrario, as it is due to the last minute insertion of the provisions relating to the arbitration agreement in the Convention, which, as previously noted, has entailed several omissions. Rather, the convention's
provisions must be interpreted on the basis of an integral interrelation
between them. As ~ r t i c l eV(l)(a) incorporates Article II - ". . . the
agreement referred to in Article II . . ." - Article I1 can be deemed to
incorporate Article V(l)(a).
As the uniform conflict rules of the Article V(l)(a) have been drafted for the enforcement of the award, the analogy is not c ~ m p l e t e No
.~
difficulty will arise with the first and primary conflict rule of Article
V(l)(a) that the agreement be governed by the law chosen by the parties, although such choice will rarely happen in practice. The subsidiarily applicable conflict rule that, failing a designation by the parties of
the law applicable to the arbitration agreement, the agreement is governed by the law of the country where the award was made, can be
interpreted for the enforcement of the agreement by reading it as the
law of the country where the award will be made. No application by
analogy, however, is possible if the parties have not designated the law
applicable to the arbitration agreement or the place where the arbitration is to be held is not known. Only here do the uniform conflict rules
of Article V(l)(a) fall short. The solution would then appear to be the
application of the conflict law of the forum.
The above interpretation concerning the applicability of the conflict rules of Article V(l)(a) at the stage of the enforcement of the arbitration agreement is conf'irmed by the Court of First Instance of ~eide1berg.l'
The question before the Court
was whether an arbitration agreement providing for appeal on the merits to a court
was valid." This question was judged by the Court under the law applicable to the
arbitration agreement and Article II(3) of the Convention. As regards the applicable
law, the Court determined that law with express reference to Article V(l)(a) of the
Convention, and held that according to this provision the parties have the freedom
to designate the law applicable to the arbitration agreement and, failing any indication thereon, the law of the country in which the award will be made (ergehen soll)
is to be applied. In the case before the Court, the parties had not made a choice of
law. Nor could the place where the award was to be made be determined, as the Arbitration Rules of the German-Dutch Chamber of Commerce, to which the parties
had referred in the arbitration agreement, provide that arbitration can be initiated
either in F.R. Germany or the Netherlands, in which cases German or Dutch arbi-
9. See for a discussion of the conflict rules of Art. V(l) (a), which at the stage of enforcement of the award play a less significant role, infra 111-4.1.3.5 ("Determination of the Law Applicable to the Arbitration Agreement").
10. Landgericht of Heidelberg, October 23, 1972, affiimed by the Oberlandesgericht of
Karlsruhe, March 13, 1973 (F.R. Germ. no. 9).
11. See infra 11-1.3.4.2 ("Null and Void").
!
128
tration law respectively would be applicable. Faced with this situation, the Court
determined the validity under both German and Dutch law.
In this connection the Austrian Supreme Court may also be quoted as it held
also that the conflict rules of Article V( l)(a) apply by analogy l2 :
"The Court of Appeal has rightly inferred from Article V(l)(a) of the New York
Convention that, except for the parties3 capacity to conclude the arbitration
agreement, its validity or invalidity must, failing an agreement of the parties to
the contrary, be judged under the law of the country in which the award will be
made (zu fci'llen i s t ) . . ."
The interpretation that the conflict rules of Article V(l)(a) apply by analogy in an
action for the enforcement of the arbitration agreement is also followed by the
majority of authors.13
Finally we may mention the European Convention of 1961 l4 which provides in
Article VI(2), first part, for a similar solution:
"In taking a decision concerning the existence or the validity of an arbitration
agreement, courts of Contracting States shall examine the validity of such agreement with reference to the capacity of the parties, under the law applicable to
them, and with reference to other questions
(a) under the law to which the parties have subjected their arbitration agreement;
(b) failing any indication thereon, under the law of the country in which the
award is to be made;
(c) failing any indication as to the law to which the parties have subjected the
agreement, and where at the time when the question is raised in court the country in which the award is to be made cannot be determined, under the competent law by virtue of the rules of conflict of the court seized of the dispute."
It must be said, however, that the above interpretation by analogy is not shared by
the courts in the United States. For various types of questions on the enforceability of the arbitration agreement under the Convention, they hold that the law of
the forum governs.15
11-1.2
Referral to Arbitration in General
11- 1.2.1 Meamimg and effect of "refer the parties to arbitration"

When seized of an action in a matter in respect of which the parties
have agreed to arbitrate, a court shall, according to the wording of Article II(3), "refer the parties to arbitration" if one of the parties requests
13. von Hiilsen, supra n. 8, p. 100; K.-H. Schwab, Schiedsgerichtsbarlceit, 3d ed. (Munich
1979) p. 3 37 ; J. Gentinetta, Die Lex Fori internationaler Handelsschiedsgerichte (Bern 1973)
p. 297 and authors cited; J. McMahon, "Implementation of the United Nations Convention on
Foreign Arbitral Awards in the United States", 2 Journal ofMaritime Law & Commerce (1971)
p. 735 at p. 757.
14. See supra 1-4.4.2.
15. E.g., U.S. Court of Appeals (3d Cir.), July 17, 1978, Becker Autoradio U.S.A. Inc. v.
Becker Autoradiowerk G.m.b.H. (U.S. no. 26): question whether claim comes within the scope
of arbitration agreement, see infra n. 91; U.S. District Court of Pennsylvania, W.D., October
19, 1976, Fuller Company v. Compagnie Des Bauxites de Guinee (U.S. no. 13): question
whether settlement was reached between parties, see infra n. 113; U.S. District Court of New
York, S.D., December 2, 1977, Ferrara S.p.A. v. United Grain Growers Ltd. (U.S. no. 20):
1
I
129
so. The expression "refer the parties to arbitration" already figured in

Article 4(1) df the Geneva Protocol of 1923. Its use was continued in
the New Uork Convention without any discussion. This is regrettable as
a discussion might have led to a clearer wording. Whatever may be, the
meaning of the expression in its technical procedural sense must be
deemed to be the court directive staying the court proceedings ,on
the merits. The effect of the expression is a partial incompetence of
the court vis-6-vis arbitration.
(a) Meaning: stay o f court proceedings o n the merits

From the textual viewpoint the expression "refer the parties to arbitration" could have two technical procedural meanings:
( 1) the court directive staying the court proceedings; and
(2) the court directive imposing arbitrat ion.
The first meaning is to be inferred from the link which Article II(3)
makes between the expression "refer the parties to arbitration" and the
situation that the court is seized of an action in respect of which it is
agreed to arbitrate. If the court refers the parties to arbitration in these
circumstances, it implies automatically that the court proceedings are
stayed.
Despite the semantic appearances of the word "refer9', the expression
is not to be taken as having the second meaning of the court directive
obliging t o arbitrate. Such a court directive is unknown in the majority of countries. Moreover, this directive would not make sense. It is up
to the parties, or at least one of them, whether arbitration will effe;
tively take place or proceed. The directive would only make sense if,
without the directive, arbitration could .not take place or proceed. This
could be imagined in the case where, in spite of a valid arbitration
agreement, the defendant is unwilling to participate in the arbitration.
However, like most arbitration laws, the New York Convention does
not imply the necessity of a court directive to go to arbitration if a party refuses to participate. It is generally accepted that an award can be
made in the absence of an unwilling party without a court directive,
provided that that party has been duly notified of the initiation of the
arbitration. l 6
The above interpretation that the expression has only the first meaning is confirmed by the implementing Acts of India and the United
Kingdom. In these Acts the expression "refer the parties to arbitration"
is not reproduced, but is rephrased in its technical procedural sense as
"to stay the court proceedings9'.17
deliial to apply Arts. 1341 and 1342 of the Italian Civil Code, see infra 11-2.4.3.3. The attitude
of the English courts is not entirely clear, see infra n. 90.
16. See infra 111-4.2.3 (b) ("Unable t o Present His Case").
17. India: Foreign Awards (Recognition and Enforcement) Act 1961, Sect. 3; United
130
Some confusion may arise from the United States implementing Act
(i.e., Chapter 2 of the United States Arbitration Act). Whilst this Act
must be deemed to imply the court directive staying the court proceedings l a , it provides in Section 206, captioned "'Order to Compel Arbitration":
"A court having jurisdiction under this Chapter may direct that arbitration be
held in accordance with the agreement at any place therein provided for, whether that place is within or without the United States . . . ."
However, the thrust of Section 206 is not the compulsion to arbitrate but rather the possibility for a United States court to direct that
arbitration can be held in another country. Under Chapter 1 of the
United States Arbitration Act - i.e., domestic arbitration law for federal cases - a court does not have such power.19 As the Convention implies that the enforcement of an arbitration agreement providing for
arbitration abroad will fall under it 2 0 , it was deemed desirable to make
this clear in the implementing Act. In this connection Mr. Gerald Aksen
observes:
"The power to order arbitration in a foreign country is certainly unique, because
it goes beyond existing American law and is not requited by the terms of the
Convention. Article II(3) of the Convention states that the court of a country
that is a Party to the Treaty should 'refer the parties to arbitration'. This could
have been technically satisfied by staying litigation brought in violation of the
arbitration agreement. By providing for enforcement abroad, Congress has clear-
Kingdom: Arbitration Act 1975, Sect. 1 (1). It may be added that the only implementing Act
in which the expression "refer the parties to arbitration" could be found is the Australian Arbitration (Foreign Awards and Agreements) Act 1974. Sect. 7(2) of this Act reads: "the court
shall ... stay the proceedings ... and refer the parties to arbitration ...".
18. Chapter 1 of the United States Arbitration Act - i.e., the domestic law for arbitration
on the federal level - provides in Sect. 3 for the power of the federal courts t o stay a court action commenced in violation of an arbitration agreement. Sect. 3 reads:
"If any suit or proceeding be brought in any of the courts of the United States upon any
issue referable to arbitration under an agreement in writing for such arbitration, the court
in which such suit is pending, upon being satisfied that the issue involved in such suit or
proceeding is referable to arbitration under such an agreement, shall upon application of
one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default
in proceeding with such arbitration."
On the basis of Sect. 208 of Chapter 2 of the United States Arbitration Act - i.e., the implementing legislation of the Convention in the United States - which Section provides that
Chapter 1 applies to actions and proceedings brought under Chapter 2 so long as they are not in
conflict with Chapter 2, it is generally accepted that Sect. 3 of Chapter 1 applies also to Chapter 2. See G. Aksen, "Application of the New York Convention by United States Courts", in
Yearbook Vol. IV (1979) p. 341 at p. 348.
19. See D. Swisher, "Comment. International Commercial Arbitration under the United
Nations Convention and the Amended Federal Arbitration Statute", 47 Washington Law
Review (1972) p. 441 at p. 471.
20. See supra 1-2.2 ("Agreement Providing for Arbitration in Another State").
Enforcenzent Agreement
131
ly indicated the extent to which the united States Government recognizes the
propi-iety of international arbitration as a method of resolving foreign trade contro~ersies."~~
(b) Effect: partial incompetence o f the court

The legal effect of the expression "refer the parties. to arbitration" is
that a court becomes incompetent to try the merits of the dispute when
the arbitration agreement is i n ~ o l t e d . ~However,
'
the court is not rendered completely incompetent; it may retain competence for matters
related to the arbitration. The competence of the court may be continued, for instance, where the arbitration is to talte, or is taking, place
within its district: the court may be called upon to appoint or replace
arbitrators if the parties have not made arrangements in ,this respect in
their agreement, to administer evidence beyond the powers of the arbitrator, to decide on the setting aside of the award, etc. The competence
of the court may'also continue for the ordering of provisional remedies,
especially attachment for securing the sum or goods in dispute, irrespective of whether the arbitration is to take, or is taking, place within its
own district or in a foreign country. Article H(3) can therefore be said
t o have the effect of a partial incompetence of the court.23
An absolute incompetence of the court cannot be inferred from the
fact that Article %%(3)
does not mention expressly the stay of court proceedings, but uses the expression "refer the parties t o arbitration". A
United States Court of Appeals had so argued and accordingly held that
a pre-award attachment was incompatible with the Convention. The arguments why this opinion is to be rejected will be made in 11- 1.2.5 below in the consideration of the entire problem of pre-award attachment.
The effect being limited to an incompetence of the court to try the
merits of the case, it may be observed that the Convention does not regulate the concurrence of the arbitrator's view on his competence to
decide on the merits of the dispute with that of the court. Under almost all laws the court has the last word on the question whether the
arbitrator has competence as arbitration excludes the competence of
the courts. Most laws also allow the arbitrator to rule provisionally on
the plea-that he lacks competence and to proceed with the arbitration if
he finds that he does have competence. However, the laws differ
21. Aksen, supra n. 18, at p. 350. This is also the opinion of J. McMahon, "Implementation
of the United Nations Convention on Foreign Arbitral Awards in the United States", 2 Journal
ofMantime Law h Commerce (1971) p. 735 at p. 753 n. 83.
22. The question whether the referral to arbitration affects the competence or jurisdiction
of the court depends on the law of the forum, but has no consequences in practice. See 6. Gaja,
"Introduction", inNew York Convention (Dobbs Ferry 1978-1980) I.B.1.
23. See Ph. Fouchard, L 'arbitrage commercial international (Paris 1965) no. 226 (in French:
incompe'tence relative).
132
E7zforcement Agreement
whether the court can be requested by a party to scrutinize the arbitrator's view on his compe-tenceduring the arbitration - which may cause
delay in the arbitration - or only after the award is
It is said that the absence of a provision in the Convention concerning the concurrence of the arbitrator's view on his competence with a
questioning of this view in court,during the arbitration, is not to be felt
as an omission because this can be left to "the prudence of the
c o ~ r t s ' ' . An
~ ~ internationally uniform provision to this effect, however,
could have erased the differences in the national laws on this point.26
11- 1.2.2 Actual szlbmission to arbitration not required
The Indian implementing Act of 196 1 originally read in Section 3:
". . . if any party to a submission made in pursuance of an agreement to

which the Convention applies . . .". This phraseology was taken over
literally from the Indian Act of 1937 implementing the Geneva

Protocol of 1923 and the Geneva Convention of 1927, which was, in
turn, based on the Act of 1934 implementing the Geneva Treaties in
the United ICingdom as later incorporated in Section 4(2) of the English Arbitration Act of 1950. This text is acltnowledged to by a mistranslation of the French text of the Geneva Protocol of 1923; the English courts have easily straightened out the l a p ~ u s .The
~ ~ Indian
Supreme Court went the other way and the Indian Parlament was needed to rectify the Supreme Court's literal interpretation.
The Indian Supreme Court gave a literal interpretation of the words used in Section 3 of the 1961 Act as requiring an actual submission to arbitration, although
the Court observed that "It is true that by taking the above view the purpose object
AS the Russian defenbehind . . . the Convention may not be fully carried
24. During and after the arbitration: e.g., Sweden (see U. Holmback and N. Mangird,
"National Report Sweden", in Yearbook Vol. 111 (1978) p. 161 at p. 172); United Kingdom
(see W. Gill, "National Report United Kingdom", in Yearboolc Vol. I1 (1977) p. 90 at p. 107).
Only after the arbitration: e.g., Austria (see W. Melis, "National Report Austria", in Yearbook
Vol. IV (1979) p. 21 at p. 35); Belgium (see L. Matray, "National Report Belgium", in Yearbook Vol. V (1980) p. 1 at p. 17).
25. P. Sanders, "The New York Convention", in International Commercial Arbitration Vol.
I1 (The Hague 1960) p. 293 at p. 307.
26. See, for example, European Convention Providing a Uniform Law on Arbitration, Strasbourg, January 20, 1966, European Treaty Series no. 56, which provides in Art. 18(3) :
"The arbitral tribunal's ruling that it has jurisdiction may not be contested before the judicial authority except at the same time as the award on the main issue and by the same
procedure. The judicial authority may at the request of one of the parties decide whether a
ruling that the arbitral tribunal has no jurisdiction is well founded."
27. The Merak, 2 Weelcly Law Reports [I9651 250, in which the word "submission" was
construed as "arbitration agreement", and the word "agreement" was construed as the contract
to which the arbitration agreement relates.
28. Supreme Court of India, January 1971, V/O Tractoroexport v. Tarapore and Co. (India
no. 1). This decision of India's highest court has been heavily criticized by U. Baxi, "Goodbye
Enforcenzent Agreement
133
dant, sued before the Indian courts by the Indian plaintiff in this case, had initiated
asbitration in Moscow only after the commencement of the court proceedings, the
Indian Supreme Court refused a stay.
The Supreme Court had also observed in its judgment that "It would hardly be
conducive to international commercial arbitration not to have legislation giving full
and complete effect to what is provided by . . . the Covention". This hint was rapidly taken up by the Indian Parliament which enacted in 1973 an amendment to Section 3 of the 1961 Act to the effect that it now reads: " . . . if any pasty t o an
agreement to which Article I1 of the Convention . . . applies . . . .29 It is disappointing to see that four years after this amendment an Indian High Court still applied
the old text of Section 3 of the 1961 Act in refusing a request for a stay of the
court proceedings for the sole reason that the court proceedings were started in
1969 and no retroactive effect could be given t o the amendment.30
7,
As rightly assumed by the Indian Supreme Court, the Convention

itself does not limit the referral to arbitration to only those cases where
arbitration has already been initiated. This cannot be read in the Convention's provisions, nor can it be inferred from the system of the Convention. The mere existence of a valid arbitration agreement, whether
made in respect of existing disputes (the submission agreement) or in
respect of future disputes (the arbitral clause), is sufficient.
It may be appropriate here t o add that the Convention does not distinguish between the submission agreement and the arbitral clause but
treats both types of arbitration agreements alike. Formerly, such a distinction was necessary because the arbitral clause was invalid in several
countries due to a hostility towards a r b i t r a t i ~ n .It~ ~was for this very
to Unification? The Indian Supreme Court and the United Nations Arbitration Convention",
15 Journal of the Indian Law Institute (1973) p. 353, who observed at p. 354:
"The decision ... illustrates how an unconscious parochial concern for the value of national
sovereignty can periclitate the modest progress sought to be made in the miniscule, but still
important, area of conflictual unification of laws relating to international arbitral process. "
29. The Foreign Awards (Recognition and Enforcement) Amendment Act 1973 (Act. no. 57
of 1973).
30. High Court of Kerala, January 3 1, 1977, Food Corporation of India v. Mardestine Compania Naviera (India no. 3).
31. In France, for example, the arbitral clause was without effect until 1925 (see for the
leading case, Cour de Cassation (Civil Chamber), July 10, 1843, Recueil Sirey 1843.1.561).
Under the influence of the Geneva Protocol of 1923, the French legislature provided for the
validity of arbitral clauses in commercial matters by the Law of December 3 1, 1925, amending
Art. 63 1 of the Commercial Code. However, the ineffectiveness of the arbitral clause in matters
not governed by the Law of 1925 has been reinforced by the French legislature in 1972 by
providing in Art. 2061 of the Civil Code that the arbitral clause is void unless otherwise provided
by the law (Law no. 72-626 of July 5, 1972, Journal Officiel de la Rbublique Fran~aiseof
July 9, 1972, p. 7182). Unlike the old French arbitration law (Arts. 1005-1028 of the Code of
Civil Procedure), which did not mention the arbitral clause at all, the new French arbitration
law (Decree no. 80-354 of May 14, 1980, Journal Officiel de la Rc?publique Francaise of May
1.8, 1980, p. 1230, in force as of October 1, 1980) gives a definition of the clause (Art. 2),
prescribes that it be in writing (Art. 3), and lays down some rules about its nullity (Arts. 4(3)
and 6). It must be emphasized that these provisions apply only to those cases in which the
arbitral clause is permitted, i.e., commercial matters. See E. Mezger, "ICernpunkte der franzod
134
reason that the Geneva Protocol on Arbitration Clauses of 1923, which

declared the arbitral clause to be valid, was established.
When the New York Convention was drafted, the hostility towards
the arbitral clause had disappeared in most c o ~ n t r i e s There
. ~ ~ no longer
being any need to distinguish, the Convention treats both types of
agreements alike as can be seen from the first paragraph of Article II:
". . . to submit to arbitration all or any differences which have arisen
or which may arise . . ." (emphasis added)
This can be considered a provision of uniform law which supersedes
municipal law for those agreements falling under the C0nventior-1.~~
The equal treatment of the arbitral clause and the submission agreement by the Convention also has as a consequence that the arbitral
clause does not necessitate the conclusion of a submission agreement
once the dispute has arisen. Some countries adhere t o the antiquated
view originating from the aforementioned hostility towards arbitration,
that the arbitral clause merely constitutes an agreement to agree
t o resort to arbitration (pactum de contrahendo). Thus, once the dispute has arisen, the parties are still obliged to conclude a submission
agreement before the arbitration can commence. This is, for instance,
the case in many Latin American countries, although in the majority of
them the failure of the parties to conclude a submission agreement which is likely to happen - is not fatal for the setting into motion of
~ ~ time-consuming requirement is not needed if the
the a r b i t r a t i ~ n .This
arbitration agreement falls under the Convention. According to the
above uniform law provision, the parties can start the arbitration directly once the dispute occurs when there is an arbitral clause. It should be
noted, however, that various laws provide for a different treatment of
the arbitral clause in some specific cases.
For example, Section 91(1) of the German Law on Restrictive Trade Practices of
1974 (Gesetz gegen Wettbewerbsbeschranlcungen) declares null and void an agreement to arbitrate disputes which may arise in the future in connection with restrictive trade practices, unless such an arbitral clause allows the parties to choose between arbitration and court litigation at the time the dispute has acutally arisen. An
already existing dispute in this field may be referred to arbitration by means of a
submission agreement.35 Another example is the English Arbitration Act of 1979.
sischen Reform des Schiedsgerichtswesens", 26 Recht der internationalen Wirtschaft (1980)
p. 677. See also Y. Derains, " ~ a t i o n a lReport France", in Yearbook Vol. VI (1981) p. 1 at p. 4.
32. At present the arbitral clause is invalid in very few countries. They include Brazil (affirmed by the Supremo Tribunal Federal, June 2, 1967, Biiromaschinen-Export G.m.b.H.,
Berlin v. Insubra S.A. Intercomercial Suco Brasileira, 42 Rivista Trimestrial de Jurisprudencia
(1967) p. 212), and Venezuela (Art. 504(1) of the Code of Civil Procedure).
33. See Th. Bertheau, Das New Yorker Abkommen vom 10 Juni 1958 uber die Anerlcennung zind Vollstreclcungauslandischer Schiedsspni'che (Winterthur 1965) p. 36.
34. See for the Latin American countries, my article "L'arbitrage commercial en Ame'rique
latine", Revue de l'arbitrage p. 123 at p. 135.
35. See R. Altenmuller, Die schiedsrichterliche Entscheidung Kartellrechterlicher Streitig-
,
,
'
135
According to Section 1 jo 3 of this Act, an agreement excluding appeal to the High

Court may always be concluded after the dispute has arisen, but before, thus in the
case of an arbitral clause, only if the agreement is non-domestic.36 It is arguable
that these provisions pertain to public policy and hence are n o t superseded by the
unifoim law provision of the Convention not to distinguish between both types of
arbitration agreements.37
11- 1.2.3 R e r a l is mandatory

Article II(3) says that "the court . . ., shall, at the request of one of
the parties, refer the parties t o a r b i t r a t i ~ n " . There
~ ~ is a general agreement amongst the courts that this language does not leave any discretion to a court for referring to arbitration once the conditions for referral are fulfilled.39 Thus, a United States Court of Appeals, reversing
a denial by a District Court for a motion to stay court proceedings on
discretionary grounds, observed : "There is nothing discretionary about
Article II(3) of the Convention. It states that . . .courts shall at the
request of a party to an arbitration agreement refer the parties to
arbitration". (emphasis added by the Court) 40
The mandatory character of the referral by a court to arbitration
pursuant to Article II(3) is an internationally uniform rule. It supersedes domestic law which may provide that the court has a discretionary power whether or not to stay a court action brought in violation of
an arbitration agreement. A good example of this is the difference between the English Arbitration Act of 1950 and the Act of 1975 implementing the Convention in the United Kingdom.
Section 4(1) of the 1950 Act, which is the English arbitration law for domestic
cases, provides that a court "may make an order staying the proceedings". Under
t h i s Section the English courts have claimed wide discretionary powers whether or
keiten (Tiibingen 1973).

36. See C. Schmitthoff, "The United Kingdom Arbitration Act 1979", in Yearbook Vol.
V (1980) p. 231 at p. 233.
37. See K.-H. Schwab, Schiedsgeiichtbarkeit, 3d ed. (Munich 1979) p. 344; E. Mezger, "Das
Europaische Ubereinkommen iiber die Handelsschiedsgerichtsbarkeit", 29 Rabels Zeitschrift
fur auslandisches und internatiomles Privatrecht (1965) p. 231 at p. 246.
38. It may be noted that the word "shall" has been left out in the text of Article II(3) of
the Convention as published in 330 United Nations Treaty Series (1959) p. 38 at p. 39. This
text is relied upon in many publications. The omission must be considered as a printing error as
the Final Act of the New York Conference of 1958 includes the word "shall" (UN DOC E/CONF.
26/8/Rev. 1 and E/CONF. 26/9/Rev. 1 , p. 9).
39. One Indian High Court can be considered as having used a discretionary power as to
whether t o grant a stay of court proceedings in a case involving three related arbitration agreements providing for different places of arbitration; see infra at n. 135.
U.S. Court of Appeals (3d Cir.), July 8, 1974, CEAT S.p.A. v. McCreary Tire & Rubber
Co. (U.S. no. 5) at p. 1032, quoted approvingly by United States District Court of New York,
S.D., April 25, 1978, Siderius Inc. v. Compania de Acero del Pacifico S.A. (U.S. no. 25). See
also, Corte di Cassazione (Sez. Un.), February 27, 1970, no. 470, Louis Dreyfus Corporation of
New York v. Oriana Societi di Navigazione S.p.A. (Italy no. 2); Supreme Court of New South
136
not to grant a stay. Grounds on which a stay may be refused comprise, inter alia,
that the arbitration entails considerable expense, the charges of a personal character and delay.41 These discretionary powers of the English courts are a specific feature of English arbitration law under which arbitration can be said to form part of
the judicial process.42
In contrast, Section l(1) of the Arbitration Act of 1995, which is the implementing legislation of the Convention in the United Kingdom, provides in pursuance of Article II(3) of the Convention that a court "shall make an order staying
the proceedings". Concerning the effect of Section 11(1), Mr. Justice Brightman observed:
"The effect of Section 1 is to deprive the court of any discretion whether a
claim within a non-domestic arbitration agreement should be arbitrated or litigated. Unless I am satisfied either that the arbitration agreement is null and
void, or that it is inoperative, or that it is incapable of being performed, or that
there is in fact no dispute between the parties, I am compelled to order a stay.
The Section is mandatory . . .9 3 4 3
The mandatory character of Section l ( l ) has been almost unanimously affirmed by
the other English judges who have dealt with an application for a stay of court proceedings under the Arbitration Act of 1 9 7 5 . ~It~should be said that they accept
this curtailment of their powers with reluctance. To quote Nigh Court Judge Mr.
Justice Kerr:
<'The shipowners have all the merits, and I suspect that the defendants have no
merits whatsoever and are still trying to stave off the day of reckoning. I have to
decide whether they have the law on their side. With reluctance, I have come to
the conclusion that they have. I must therefore grant the charterers the stay
which they ask." 45
In this case the defendant charterers had admitted before the Judge that they owed
the shipowners damages for wrongful repudiation of a charter party. The dispute
concerned only the quantum of damages, and it was obvious that the charterers applied for the stay of proceedings for summary judgment with the purpose of
putting off the day of payment. Under the Arbitration Act of 1950 this would
probably have been a ground for a refusal of the stay on the basis of the discretionary powers of the courts. Under the Arbitration Act of 1975, the Judge, having no
such powers, saw himself obliged to grant a stay.
The majority of the Court of Appeal affirmed the decision of the High Court
Judge in this case. They reasoned that the shipowners were in fact asking for an in-
Wales (Equity Division), September 5, 1979, Flakt Australia Ltd. v. Wilkins & Davis Construction Co. Ltd. (Australia no. 1).
41. See for a List of grounds for a refusal to stay on the basis of the discretionary power
under English arbitration law for domestic cases, A. Walton, Russell o n the Law ofArbitration,
19th ed. (London 1979) p. 191 et. seq.
42. See for the difference in concept of arbitration between England and its companion
Common Law countries on the one hand and the majority of other countries on the other, my
article, "Etude comparative du droit de l'arbitrage commercial dans les pays des Common
Law", 19 Rassegna dell'Arbitrato (1979) p. 1 1passim.
43. High Court of Justice (Chancery Division), January 31, 1978, Lonrho Ltd, v. Shell et al.
(U.K. no. 5). See for non-domestic arbitration agreement under the Arbitration Act of 1975,
supra 1-2.3.2.
44. E.g., Court of Appeal, April 2-8, 1976, Kammgarn Spinnerei G.m.b.H. v. Nova (Jersey)
Knit Ltd. (U.IC. no. 1); House of Lords, February 16, 1977, Nova (Jersey) Knit Ltd. v. ICammgarn Spinnerei G.m.b.H. (U.K. no. 2); High Court of Justice (Chancery Division), October 4-6,
1977, Roussel-Uclaf v. G.D. Searle & Co. et al. (U.K. no. 4).
45. As quoted by the Court of Appeal, July 20-21, 1977, The Fuohsan Maru (U.K. no. 3).
I
I
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13'7
terim payment on account of their claim so that they should not be prevented from
receiving their money by a delay caused by the charterers. The Court held that it
could not legitimately confer this power on itself. Under Section l(1) of the 1975
Act, the Court had no choice but to grant the stay.
Lord Denning of the Court of Appeal dissented. To him it seemed that US
$ 1,000,000 was "indisputably due" by way of damages. As far as the Arbitration
Act. of 1975 was concerned, he would only stay the action in respect of the balance.
The decision of the High Court Judge and the majority of the Judges of the
Court of Appeal is to be approved. The case did not concern an arbitration agreement which was "null and void, inoperative, or incapable of being performed9', and
involved a dispute, albeit only as regards the quantum of damages, If the approach
suggested by Lord Denning in his dissenting opinion were followed, it would
amount to an examination by the court of the merits of the case. If the court had
assessed in advance the amount of damages which it considered "indisputably due",
the arbitrator would have faced a fait accompli. It is a fundamental principle of arbitration, and especially international commercial arbitration, that an arbitrator adjudicates the entire case and that a national court does not interfere with his decision-making powers. This is one of the main reasons why Article II(3) provides that
the referral by a court to arbitration is mandatory.
This principle ought not to be tempered because there is a dispute only as to the
quantum of damages or because the defendant is trying "to stave off the day of
reckoning9'. The balance between an obstructive defendant and the exclusive
power of an international arbitrator to decide a case must tip h favour of the latter.
This does not, however, preclude that a plaintiff may request a court to order the
defendant to give security in order to guarantee that he will pay the award in the
event that he loses the case. The ordering of such interim measures is not precluded
by the Convention as we will see in Sub-section 11-1.2.5.
I
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II- 1.2.4 A t the request of one o f the parties only

The rule that a court can refer the parties to arbitration at the request of only one of them resulted in curious voting behaviour of the
delegates at the New York Conference of 1958. The original proposal
for what has become Article II(3) merely mentioned "at the request of
one of the parties"." For some unclear reason, the delegate from the
United Kingdom proposed t o put the words "of their own motion or"
before the words "at the request of one of the parties", and this proposal was adopted by the Conference." At the following meeting the
Turkish delegate urged that the words "of their own motion" be deleted,
arguing that a court should not have the power to impose arbitration
when the parties to the arbitration agreement both wished t o have the
dispute adjudicated by the ordinary court. However, the Turltish proposal was rejected.48 At the subsequent meeting the Israeli delegate again
46. UN DOC E/CONF.26/L.52 and 54. The Working Party No. 2 which prepared the text
was composed of delegates from Belgium, F.R. Germany, Poland, Sweden, Turkey, United
Kingdom and U.S.S.R.
47. UN DOC E/CONF.26/SR.22 and L.59.
48. UN DOC E/CONF.26/SR.23,
138
proposed to delete the words from Article II(3), advancing reasons

similar to those o l the Turkish delegate. A surprising about-face occurred on the part of the delegates, and the Israeli proposal to delete the
words "of its own motion or" was adopted u ~ i a n i m o u s l y . ~ ~
This brief historical account of the words "at the request of one of
the parties" in Article II(3) shows .the final prevailing view of the
drafters of the Convention that a court can refer to arbitration only if
one of the parties so requests. If a court is faced with a contract containing an arbitral clause falling under the New York Convention, but
none of the parties objects to the competence of the court on the basis
of that clause, the court may not refer the parties to arbitfation on its
own motion. Here again, we encounter an internationally uniform rule
which supersedes domestic law (i.e., the law of the forum). Consequently, the rule to be found in some laws that a court may refer the parties
to arbitration on its own motion is inapplicable where the arbitration
agreement falls under the New York Conventionmso
Furthermore, the history makes it clear that if a party does not invoke the arbitration agreement, the court will retain competence to
hear the case. It also implies that the non-invocation by a party of the
arbitration agreement must be considered as a waiver of the right to go
to arbitration. This is the other side of the coin; having the freedom to
agree to arbitration, the parties must also have the freedom to renounce, explicitly or tacitly, the agreement t o arbitrate.
The original proposal for what has become Article II(3) provided that ""Sch action
shall not prejudice the competence of the courts if, for any reason, the arbitration
agreement, arbitral clause or arbitration has become null and void or inoperative."" A similar provision could be found in Article 4(2) of the Geneva Protocol
on Arbitration Clauses of 1923. The provision was adopted by the Conference 52
but was deleted by the Drafting Commitee, presumably because it was deemed red ~ n d a n t . ' The
~
deletion was ?ot discussed at the Conference meetings at which the
text of the Convention as prcvisionally approved by the Drafting Committee was
adopted.*
These aspects of Article II(3) have not caused any difficulties in practice. What is, however, particularly worrying from the point of view of
uniformity is that the Convention does not state what is the latest
moment at which a party may invoke the arbitration agreement. This is
all the more regrettable since it would not have been difficult to pro49. UN DOC E/CONF.26/SR.24.
50. This seems to apply especially to certain Socialist countries, see P. Schlosser, Das Recht
der internationalen privaten Schiedsgerichtsbar/ceit (Tiibingen 1975) no. 387.
5 1. UN DOC E/CONF.26/L.52.
54. UN DOC E/CONF.26/SR.23 and 24.
139
vide an internationally uniform rule also for this question. Failing a provision in the Convention, the question what is the latest moment at
which a party may invoke the agreement is to be determined by the law
of the forum. It would carry too far to make a comparative examination of the laws of the Contracting States regarding this question. It
suffices to mention that the laws differ in this respect, and that for each
case it is recommended t o consult the law of the forum. It may be
added that Ghana, India and the United Kingdom are, as far as it could
be ascertained, the only Contracting States which have provided for an
express provision on this question in the implementing
In this connection Article VI(1) of the European Convention of 1961
may be
quoted:
"A plea as to the jurisdiction of the court made before the court seized by either
party to the arbitration agreement, on the basis of the fact that an arbitration
agreement exists shall, under penalty of estoppel, be presented by the respondent before or at the same time as the presentation of his substantial defence,
depending upon whether the law of the court seized regards this plea as one of
procedure or of substance."
This provision does, however, not provide for a satisfactory degree of uniformity as
it refers the qualification of the plea of incompetence to the law of thr: forum. It
has therefore been rightly criticized,57
%I-1.2.5 Pre-award attachment not precluded

The Convention contains no provision on the matter of attachment;
thus the availability and procedure depend on the law of the court
before which the attachment is sought.
No court has doubted that an attachment in connection with the enforcement of an arbitral award in order to secure payment under the
award, is compatible with the New York Convention.
There also seems to be no doubt as to the possibility of a pre-award
attachment, that is to say an attachment before or during the arbitration, in order t o secure the subject matter in dispute or the payment
under the award if rendered in favour of the party who has applied for
55. Ghana: Arbitration Act 1961, Sect. 40: "... at any time after service of the writ of summons and before the date fixed for the hearing ..."; India: Foreign Awards (Recognition and
Enforcement) Act 1961, Sect. 3: "... at any time after appearance and before filling a written
statement or taking any other step in the proceedings ..."; United Kingdom: Arbitration Act
1975, Sect. l(1): "... at any time after appearance, and before delivering any pleadings or
taking any other steps in the proceedings ..."; see for the meaning of "step in the proceedings",
High Court of Justice (Chancery Division), October 4-6, 1977, Roussel-Uclaf v. G.D. Searle 8r.
Co. et al. (U.K. no. 4). The Supreme Court of New South Wales (Equity Division), September
5, 1979, Flakt Australia Ltd. v. Willtins & Davies Construction Co. Ltd. (Australia no. 1) held
that the application for a stay of court proceedings can be made "before the pleadings are
closed".
56. See supm 1-4.4.2.
57. Ph. Fouchard, L 'arbitragecommercial international (Paris 1965) no. 227.
140
the attachment. In virtually all countries, attachment, like other provisional remedies involving coercion, cannot be ordered by the arbitrator,
but has to be applied for at the court. The availability and procedure
here also depend on the law of the court before which the attachment
is requested, the Convention being silent on the matter of attachment,
Accordingly, the Italian Supreme Court has not hesitated to validate
a pre-award attachment pursuant t o Italian law in a case in which the
arbitration agreement fell under the New York ConventioneS8
The English Admiralty Court had no difficulty, either, in upholding
the arrest of a vessel in connection with an action in rem when it stayed
' the court proceedings on the merits in virtue of Section l(1) of the Aubitration Act of 1975 (i.e., the implementing legislation of the Conven. ~ ~ Judge said:
tion in the United I C i n g d ~ m ) The
"There is nothing in Section l(1) of the 1975 Act which obliges the Court,
whenever it grants a stay of action in rem in which security has been obtained,
t o make an order for the unconditional release of such security."
Doubts have arisen, however, in the United States in a fairly large

number of cases on the compatibility of pre-award attachment with the
Convention. As the question has frequently come up in connection
with the referral t o arbitration, and the main argument for which the
Convention would preclude pre-award attachment is drawn from Article II(3), the question may be considered here at the end of this Section
concerning the referral to arbitration under Article II(3) in general.
For what reasons may it be considered that the Convention precludes
pre-award attachment? The court decision which is frequently referred
to in this regard in United States case law is the decision of the Court of
Appeals for the Third circuit in the case of McCreary Tire B Rubber
Company v. GlEA T S.p.A. 6 0
The Court opined :
"[Rlesort to a Praecipe and Complaint in Foreign Attachment in the Court of
Common Pleas of Pennsylvania is a violation of McCreary's agreement to submit
the underlying disputes to arbitration . . . [Tlhe Convention obliges the District
Court to recognize and enforce the agreement to arbitrate. Quite possibly foreign attachment may be available for the enforcement of an arbitration award.61
This complaint does not seek to enforce an arbitration award by foreign attachment. It seeks to bypass the agreed upon method of settling disputes. Such a
bypass is prohibited by the Convention if one party to the agreement objects.
58. Corte di Cassazione (Sez. Un.) May 12, 1977, no. 3989, Scherk Enterprises A.G. v. SociCt6 des Grandes Marques (Italy no. 28), validating attachment pending arbitration in Zurich.
59. Admiralty Court (Queen's Bench Division), January 13, 1978, The Rena K (U.I<. no. 6).
60. July 8, 1974 (U.S. no. 5).
61. The Court cited Art. 111 of the New York Convention.
141
Unlike Section 3 of the Federal Act ", Article II(3) of the Convention provides
that the court of a Colltracting State shall 'refer the pasties to arbitration' rather
than 'stay the t ~ i dof action'. The Convention forbids the courts of a Contracting State from entertaining a suit which violates an agreement to asbitrate. Thus
the contention that asbitration is merely another method of trial, to which state
provisional remedies should equally apply, is unavailable . . . The obvious purpose of the enactment of Pub. L. 91-368 [i.e., the law implementing the Convention in the United States], permitting removal of all cases falling within the
terms of the Treaty, was t o prevent the vagaries of state law from impeding its
full implementation.63 Permitting a continued resort to foreign attachment in
breach of the agreement is inconsistent with that purpose."
The McCreary case involved state law attachment. In two subsequent

cases also involving state law attachment, the District Courts followed
the McCreary doctrine.64 However, McCreary has been distinguished in
three other cases." The reasoning was that state law attachment is,
indeed, not available in relation to arbitration agreements falling
under the Convention, but that maritime attachment under federal law
pursuant to Section 8 of Chapter 4 of the United States Arbitration Act
(i.e., domestic arbitration law for federal cases) 66 is not in conflict
62. See for text of Sect. 3 of the United States ~ r b i t r a t i o nAct, supra n. 18. It may be noted
that Sect. 4 of the Act, not mentioned by the Court, does contemplate the order to compel
arbitration.
63. The removal of cases falling under the Convention from State courts to federal courts is
provided in Sect. 205 of the implementing Act, which reads:
"Where the subject matter of an action or proceeding pending in a State court relates to an
arbitration agreement or award falling under the Convention, the defendant or defendants
may, at any time before trial thereof, remove such action or proceeding to the district court
of the United States for the district and division embracing the place where the action or
proceeding is pending. The procedure for removal of causes otherwise provided by law shall
apply, except that the ground for removal provided in this section need not appear on the
face of the complaint but may be shown in the petition for removal. For the purposes of
Chapter 1 of this title any action or proceeding removed under this section shall be deemed
to have been brought in the district court to which it is removed."
See for the removal under Sect. 205, G. Aksen, "American Arbitration Accession Arrives in the
Age of Aquarius: United States Implements United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards", 3 Southwestern University Law Review (1971) p. 1
at p. 20.
64. U.S. District Court of New York, S.D., December 22, 1975, Metropolitan World Tanker
Corp. v. P.N. Pertainbangan Minjakdangas B u ~ n iNasional (U.S. no. 12); August 18, 1977,
Coastal States Trading Inc. v. Zenith Navigation S.A. et a1 (U.S. no. 19).
65. U.S. District Court of New York, S.D., March 21, 1977, Andros Compania Maritima
S.A. V . Andr6 & Cie S.A. (U.S. no. 17); July 19, 1978, Atlas Chartering Services Inc. v. World
Trade Group Inc. (U.S. no. 27);February 14,1979, Paramount Carriers Corp. v. Cook Industries
Inc. (U.S. no. 28).
66. Sect. 8, captioned ('Proceedings Begun by Libel in Admiralty and Seizure of Vessel or
Property", reads:
"If the basis of jurisdiction be a cause of action otherwise justiciable in admiralty, then, notwithstanding anything herein to the contrary the party claiming to be aggrieved may begin
his proceeding hereunder by libel and seizure of the vessel or other property of the other
party according to the usual course of admiralty proceedings, and the court shall then have
--+a-
I42
E nforcemen t Agreement
with the C o n v e n t i o ~ i . ~ ~
However, even for state law attachment, the McCreary doctrine
should be rejected as the Convention must be held, in general, not t o
preclude provisional remedies. The arguineiits of the Court of Appeals
in the McCreary case against the availability of attachment under the
Convention were soundly refuted by the District Court of California,
the only court in the United states which has so far upheld the availability of attachment under the Convention without any restrictions 6 8 :
''This court, however, does not find the reasoning of McCreary Aonvincing. As
mentioned above, nothing in the text of the Convention itself suggests that it
precludes prejudgment attachment. [Chapter 1 of the ] United States Arbitration
Act . . ., which operates much like the Convention for domestic agreements involving maritime or interstate commerce, does not prohibit maintenance of a
prejudgmenl attachment during a stay pending arbitrati~n.~'The McCreary
court makes two rather elliptical comments to distinguish [Chapter 1 of the]
United States Arbitration Act from the Convention. First, the court notes that
the Arbitration Act only directs courts to 'stay the trial of the action', while the
Convention requires a court to 'refer the parties to arbitration9. . . . From this
difference the McCreary court apparently concludes that while the Arbitration
Act might permit continued jurisdiction and even maintenance of a prejudgment
attachment pending arbitration, application of the Convention completely ousts
the court of jurisdiction. The use of the general term 'refer', however, might reflect little more than the fact that the Convention must be applied in many very
different legal systems . . . . Furthermore, Section 4 of the United States Arbitration Act grants District Courts the power to actually order the parties to arbitration, but this provision has not been interpreted to deprive the courts of continuing jurisdiction over the action.
Second, the McCreary court found support for its position in the fact that the
implementing statutes of the Convention provide for removal jurisdiction in the
federal
The Third Circuit concluded that: '(t)he obvious purpose (of
providing for removal jurisdiction) . . . was to prevent the vagaries of state law
from impeding its (the Convention's) full implementation. Permitting a continued resort to foreign attachment . . is inconsistent with that purpose'. It
must be noted, however, that any case falling within Section 4 of the United
States Arbitration Act also would be subject to removal.pursuant to 28 U.S.C.
Section 1441. Furthermore, removal to federal court could have little impact on
the 'vagaries' of state provisional remedies, for pursuant to Rule 64 of the Federal Rules of Civil Procedure the District Courts employ the procedures and
remedies of the states where they sit. Finally, it should be noted that in other
jurisdiction to direct the parties to proceed with the arbitration and shall retain jurisdiction
to enter its decree upon the award."
67. See for another case in which a maritime attachment under federal law was upheld under
the Convention, but in which state law was not discussed, U.S. Court of Appeals (2nd Cir.),
June 20, 1977, Drys Shipping Corp. v. Freights etc. of the M.S. Drys et al. (U.S. no. 18).
68. U.S. District Court of California, N.D., September 26, 1977, Carolina Power & Light
Company v. G.I.E. URANEX (U.S. no. 23).
69. The Court cited from the U.S. Supreme Court decision in Barge "Anaconda" v. American Sugar Refining Co., 322 United States Supreme Court Reports (1944) p. 42.
70. Sect. 205 of the implementing Act, quoted supra n. 6 3 .
143
contexts the Supreme Court has concluded that the availability of provisional
remedies encourages rather than obst~uctsthe use of agreements to arbitrate."
There is little to add to this clear opinion in respect of both the Convention and the particularities of the federal legal system of the United
States, It may be recalled that tlze incompetence of the court as a consequence of a stay of court proceedings pursuant to Article II(3) is not
complete.72 The court has a continuing competence in matters related
t o arbitration including provisional remedies such as attachment.
Furthermore, the Convention does not provide for a mechanism for
settling disputes which is entirely different from arbitration under
domestic law. In fact, an agreement and award falling under the Convention always relate to an arbitration governed by a national arbitration law.73 The Convention has only the limited purpose of facilitating
on an international level the enforcement of the agreement and award.
Consequently, whether pre-award attachnient is possible does not
depend on, nor is it precluded by, the Convention, but is t o be determined by the law of the forum. As the National Reports on the laws of
arbitration in the Yearbook Commercial Arbitration demonstrate, there
is almost no law which does not permit that a court be requested to
order attachment as a provisional remedy in aid of a r b i t r a t i ~ n .It~ may
~
be added that the reference to Article 111 of the Convention by the
McCreary court in arguing that "quite possibly" post-award attachment
is available for enforcement of the award under the Convention, would
apply with equal force to the enforcement of the agreement. Article 111
provides that the procedure for the enforcement of the award is govverned by the law of the court before which the enforcement is sought.
Although the Convention does not state so expressly, the same must be
deemed to apply to the enforcement of the agreement.
The question of the compatibility of pre-award attachment with the
Convention has been dealt with at some length as attachment is a very
important provisional remedy in arbitration. If pre-award attachment
were not available, a winning party might obtain only a Pyrrhic victory,
as the assets for satisfying the award could have disappeared in the
interval. The question is limited t o the United States, but there it has
led t o no less than eight diverging court decisions so far. It is to be
hoped that in future court decisions, the United States courts will
follow the above-cited California District Court's opinion.
71. The Court referred to the U.S. Supreme Court decision in Boys Market Inc. v. Retail
Clerks Union, 398 United States Supreme Court Reports (1970) p. 235.
72. Seesupra 11-1.2.1 ("Meaning and Effect of 'Refer the Parties to Arbitration' ").
73. See Supra 1-1.6.2 ("Does the A-national Award Fall under the Convention?").
74. Chap. IV.5 of each National Report.
144
Enforcement Agreemen 1'
Conversely, the Convention does not imply that a request for provisional remedies by a party would yield a renunciation of the agreement
t o arbitrate. Under some municipal laws this question is not quite
clear. In order to avoid any uncertainty, several Arbitration Rules therefore provide expressly that a request for interim measures to a court
shall not be deemed incompatible with the agreement to arbitrate or as
a waiver of that agreement.75 Although the Convention does not contain an express provision on this point, it can be argued that it is
implied as under Article II(3) a court has competence to try the merits
only if a party pleads as to the substance before the couri without
invoking the arbitration agreement and without objection of the other
party.
In this connection Article VI(4) of the European Convention of 196 4. 76 may be
quoted:
"A request for interim measures or measures of conservation addressed to a judicial authority shall not be deemed incompatible with the arbitration agreement,
or regarded as a submission of the substance of the case to the court."
1%-1.3
Arbitration Ageemen t and Referral to Arbitration
11- 1.3.1 Introduction

11- 1.3.1.1 Conditions for referral relating to arbitration agreement
In the preceding Section the meaning and effect as well as the procedural aspects of the expression "refer the parties to arbitration" of Article II(3) of the Convention have been dealt with. Obviously, no arbitration is possible without its very basis, the arbitration agreement. The
subject of this Section is the conditions imposed by the Convention
on the arbitration agreement itself for its enforceability.
The most obvious conditions with which the arbitration agreement
must comply are those stated at the end of Article II(3): a court must
refer the parties to arbitration unless the arbitration agreement is "null
and void, inoperative or incapable of being performed". But the conditions relating to the arbitration agreement for its enforceability are not
limited to this phrase. Article II(3) also states, "an agreement within
the meaning of this Article9'. This phrase incorporates as conditions for
referral three other conditions relating to the arbitration agreement
mentioned in the preceding two paragraphs of Article 11:
75. E.g., UNCITRAL Arbitration Rules, Art. 26(3); ICC Arbitration Rules, Art. 8(5); AAA
Commercial Arbitration Rules, Sect. 46(a).
76. See supra 1-4.4.2.
145
- the difference must arise in respect of a defined legal relationship

(Art. II(1));
- the subject matter of the arbitration agreement must be capable of
settlement by arbitration (Art. II(1)); and
- the arbitration agreement must be in writing (Art. II(1)-(2)).
Of course, these three conditions could be interpreted without much
difficulty as being covered by the words "null and void9' etc. However,
since the Convention lists them separately and includes them as conditions for referral to arbitration in Article II(3) by the words "an agreement within the meaning of this article9?,they are to be examined
separately.
The first two of the conditions set forth in paragraphs 1 and 2 of Article I1 will be considered in 11-1.3.2 and 11-1.3.3. The third condition, that the arbitration agreement be in writing, will be examined separately in Part 2 of this Chapter in view of the multitude of judicial interpretations given in respect of Article II(2). What should be understood by the words "null and void, inoperative or incapable of being
performed" will be considered in 11- 1.3.4.
11- 1.3.1.2 Separability of the arbitral clause

Before examining the conditions relating to the arbitration agreement for its enforceability under the Convention, one preliminary observation should be made regarding the autonomous status of the arbitral clause vis-8-vis the contract in which the clause is included. In an
increasing number of countries the arbitral clause is considered as an
agreement independent from the main contract. This doctrine of the
separability of the arbitral clause - also called the severability (United
States) or autonomy (France and F.R. Germany) of the arbitral clause
- has as its main effect that the invalidity of the main contract does,
in principle, not entail the invalidity of the arbitral clause.77 Thus, if a
party contends that the arbitral clause is invalid because the main contract is invalid, and, hence, that no arbitration can take place, this contention does not hold water under those laws that accept the separability of the arbitral clause. An exception is the contention that the contract has never existed; such a contention must be deemed to apply
equally to the arbitral clause.
The doctrine of separability may be mentioned here as a preliminary
point with regard to the arbitration agreement and the referral t o arbitration in order to make clear that the invalidity of the main contract is
not a ground for refusal of referral to arbitration where the doctrine obtains.
. 77. See generally, P. Sanders, "L'autonomie de la clause compromissoire", in International
Chamber of Commerce, ed.,Hommage d Frkdkric Eisemann ( P s i s 1979) p. 31.
14.6
The New York Convention does not contain express provisions concerning the separability of the arbitral clause.7DIt is suggested that the
Convention would imply the separability of the arbitral clause because
Article V(l)(a) provides for conflict rules for determining the law applicable to the arbitration agreement. As this may have the effect that the
arbitration agreement is governed by a law which is different from the
law governing the main contract, the Convention would implicitly
favour the autonomous status of the arbitral clause.79 $his argument
does not sound convincing as it is not unusual, though not to be encouraged either, that one and the same contract is governed by several
laws, for instance, one law governing the formation and another the
performance of the contract.80 The courts have not yet had an occasion
to express an opinion on the separability in cases arising under the Convention.
As it must be presumed that the Convention is indifferent as to the
separability of the arbitral clause, it reverts to municipal law whether
the clause is to be treated independently. It would cany too far to go
into the question of which municipal law would be controlling for
determining whether the arbitral clause is to be considered as independent from the main contract. This question is, moreover, becoming less
significant as more and more countries adhere to the separability doctrine.81 Three laws could present themselves as possible candidates: the
law applicable t o the main contract, the law applicable to the arbitration agreement, or the law of the court before which the question is
raised. Some of these laws may also be cumulatively applicable for
determining the question. The selection of each law has its pros and
cons, but the safest and most practical solution would, in my opinion,
be the law of the forum.
II - 1.3.2 Biffeerence in respect of a demed legal relationship

11-1.3.2.1
There must be a dispute
It is obvious that arbitration can take place only if there is a dispute

between the parties. The Convention underscores this by providing in
78. Compare, for example, with Art. 18(2) of the European Uniform Law of 1966, supra n.
26, reading:
"A ruling that the contract is invalid shall not entail ipso jure the nullity of the arbitration
agreement contained in it."
79. P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarlceit (Tiibingen
1975) no. 316.
80. See G. Delaume, Transnational Contracts. Applicable Law and Settlement of Disputes
(Dobbs Ferry 1978-1980) Sect. 1.03.
81. See IF.-E. IClein, "Du caracthre autonome de la clause compromissoire, notamment en
matihre d'arbitrage international", Revue de l'arbitrage (1961) p. 48.
14.7
Article II(1) "to submit to arbitration all or any differences" (which

may semantically be considered the same as disputes). Also, paragraphs
1 and 3 of Article I. mention awards arising out of "differences". Accordingly, a court is not obliged to refer the parties to arbitration if
there is not a dispute between them. As explained before, this condition of Article II(l),. like the other conditions mentioned in paragraphs
1 and 2 of Article II, are incorporated in paragraph 3 of Article 11
through the words "an agreement within the meaning of this article" in
the latter paragraph.
Some implementing Acts, liowever, explicitly list the condition that
there be a dispute. Thus, the English Arbitration Act of 1975 provides
in Section l(1): ". . . unless satisfied that the arbitration agreement is
null and void, inoperative or incapable of being performed or that there
is not in fact any dispute between the parties with regard to the matter
agreed to be referred . . .". (emphasis added) The same wording can be
,
found in Section 3 of the India implementing Act of 196 1.
This explicit wording has some advantages in that it sets more clearly
the conditions that there be a dispute, although its ommission would
not have been fatal as the condition is self-evident. It should, however,
not be readily assumed that a dispute does not exist.
This is illustrated by the already discussed decision of the English Court of Appeal." In that case the plaintiffs had applied for a summary judgment, whilst the
defendants, who had applied for a stay of the court proceedings in favour of arbitration, had admitted that they owed the plaintiffs damages for wrongful repudiation of the charter party; the only matter to be determined was the quantum of
damages. Both the Judge of the High Court and the majority of the Judges of the
Court of Appeal granted the application for a stay of the entire court proceedings
as, despite the admission of liability, there was still a dispute as to the quantum of
damages. As observed in 11-1.2.3 supra, the majority of the Judges of the Court of
Appeal rejected, rightly, the dissenting opinion of Lord Denning that the stay
should be granted only in respect of the balance of the m o u n t which, according to
his own assessment, was "undisputably due".
A troublesome matter is a bill of exchange forming payment under a contract of sale which is the subject matter of arbitration. If a bill of exchange is not
honoured, may a party claim the money due under the bill of exchange before the
court in disregard of arbitration? The question depends, in the first place, on the
question whether the arbitral clause in the contract extends to the bill of exchange,
which question is t o be considered in the following Paragraph (11-1.3.2.2). But it
may also depend on the question whether there can be said to be a dispute on the
bill of exchange. The English Court of Appeal and the House of Lords have differed
on the latter question.83 The Court of Appeal argued that there was a dispute as to
the liability on the bills of exchange, the dispute being whether or not the bills
82. Court of Appeal, July 20-21, 1977, The Fuohsan Maru (U.K. no. 3), discussed supra
11-1.2.3 at n. 45.
83. Court of Appeal, April 2-8, 1976, Kammgarn Spinnerei G.m.b.H. v. Nova (Jersey) Knit
Ltd. (U.K. no. I), House of Lords, February 16, 1977 (U.K. no. 2).
148
should be paid having regard to the cross-claim to be decided in arbitration. The

House of Lords reversed the Coui-t of Appeal: English law "clearly" does not allow
reliance on unliquidated cross-claims to set-off a claim on a bill of exchange; in the
case at the bar the amount cross-claimed by the defendants was not liquidated, but
had still to be decided upon in arbitration.
The House of Lords therefore held that there was not a dispute as to the bills of
exchange, which are to be "taken as equivalent to deferred instalments of cash".
The commercial principle on which this decision was rested was that a bill of exchange is to be treated as an unconditionally payable instrument.
It may be added that the House of Lords held English law applicable to "all
questions as to the effect or discharge of the bill of exch-ange" because in this case,
the place of acceptance of the bills was London. As will be seen in the following
Paragraph, the House of Lords applied German law to the question whether the
arbitral clause in question extended to the bill of exchange.
11- 1.3.2.2 Dispute must arise out of a defined legal relationship,

whether contractual or not
Lilte Article 1 of the Geneva Protocol of 1923, the original text of
Article 11(1) provided "all or any differences . . . in respect of such contract" (emphasis added)." At the 1958 Conference the Italian delegate
pointed out that arbitration is not limited to contractual relationships;
there are also non-contractual matters which might be covered by an
arbitration agreement: the question of damages resulting from a collision at sea, for example. He therefore proposed t o replace the words
"in respect of such contract" by "in respect of a determined legal relationship, o r contract", whicli proposal was adopted by the Conference." The Drafting Committee amended this text by providing "in
respect of a defined legal relationship, whether contractual or not9'.
Similar wording was inserted in the commercial reservation of Article I(3) reading
"differences arising out of legal relationships, whether contractual or not9'.
The final text has as main consequence that also actions framed in
tort can be submitted to arbitration. This proviso supersedes a municipal law which regards arbitration possible only in respect of contractual
claims. Of course, the claims framed in tort must come within the purview of the arbitration agreement.
One of the few cases reported under the Convention so far in which
the issue of tort and arbitration has come up, is the dispute between
Lonrho on the one hand and Shell and BP on the other concerning the
construction and operation of a pipeline in Zimbabwe (formerly Rhod e ~ i a ) . The
~ ~ agreement between the parties contained an arbitral
86. High Court of Justice (Chancery Division), January 31, 1978, Lonrho Ltd. v. Shell et al.
Erzforcenzent Agreement
149
clause which read in part: ""All claims or questions arising out of or in

connection with this Agreement shall . . . be referred to arbitration in
London . . .". Alleging both breach of contract and conspiracy, Loiirho
sued Shell and BP as well as 27 other oil companies before the High
Court in London. Shell and BP moved for a stay of the court proceedings against them on the ground that the claims ought to be decided by
arbitration and not litigation. The reasoning of the High Court is
worthy of being quoted:
"'So far as the Plaintiffs' claims against Shell and BP are based on allegations that
they have acted in breach of the express or implied terns of the . . . Agreement
it is beyond argument that such claims arise 'out of9the . . . Agreement and are,
therefore, within the arbitration clause. A question can only arise in relation to
the claims against Shell and BP in tort. An arbitration clause is no doubt designed primarily to cover claims for breach of contract. Whether it covers claims in
tort must depend on the wording of the clause. There are not many cases where
the point has been argued."
The Judge considered the few cases in point. He adopted the test formulated in The Damianos a y : "If the claim or the issue has a sufficiently close connection with the claim under the contract, then it comes
within the arbitration clause." The Judge held that such a sufficient
close connection existed in the case at hand, the claim in contract as
well as in tort against Shell and BP being claims "arising out of or in
connection with the agreement.
The test used by the Judge as derived from English case law is certainly helpful for determining whether a claim in tort falls under the arbitration agreement. It is, however, regrettable that the Judge did not
refer to the expression in Article II(1) of the Convention S'defined legal
relationship, whether contractual or not ': This is probably due to the
fact that these words have not been reproduced in the Arbitration Acf
of 1945.
The word "defined" in the phrase of Article ZI(1) under consideration denotes that an agreement providing for arbitration of all disputes
relating t o whatever matter which may arise between the parties in the
future is invalid. The agreement must relate to a specific legal relationship which is usually a contract between the parties. There is practically
no arbitration law with a different requirement,"
The dispute must also "arise in respect o f 9 a defined legal relationship. In other words, the wording of the arbitration agreement must be
sufficiently broad to cover the dispute. Whether a dispute falls under
99
(U.K. no. 5).

87. [I9711 2 Queen's Bench Division 588.
88. In English arbitration law it seems that parties may refer to the arbitrator's decision "all
matters in difference between the parties", which means that the arbitrator may consider all
150
the agreement would appear to be essentially a matter of construction.

Ilowever, some courts have also resorted to municipal law for resolving
the question whether a certain claim comes~withinthe purview of an
arbitration agreement. The following English and United States cases
may be cited as examples. These examples show the difference as to
whether the law applicable to the arbitration agreement or the law of
the forum is to be applied for deciding on this question. It is submitted
that it should not be readily assumed that a dispute does not fall under
the arbitration agreement, having regard t o the "pro-enforcement bias"
of the Convention. However, in those cases where the pro-enforcement
interpretation cannot help to solve the question, the question may be
considered under the law applicable t o the arbitration agreement.
The solution of determining the question under the law applicable to the arbitration agreement has been adopted by the English courts.89 The case, already mentioned in 11-1 3.2.1 supra, involved a partnership agreement between a German
firm and an English company under which, inter alia, the German firm had bought
textile machines from the English company. In part payment of the purchase price,
the English company received 24 bills of exchange from the German firm. Alleging
poor quality of the machines and mismanagement of the partnership on the part,of
the English company, the German firm did not meet a certain number of bills of exchange, and, on the basis of an arbitration agreement connected with the partnership agreement, started arbitration in Hamburg. The English company, in turn, sued
the German firm before the English courts, claiming the money due on the bills. In
the latter proceedings the German firm argued that the dispute with the English
company ought to be dealt with in its entirety in the arbitration in F.R. Germany,
and that it ought not to be ordered by the English courts to pay the money due on
the bills of exchange ~ ~ n tits
i lcross-claims had been dealt with by the arbitrators.
For resolving the question whether the arbitration agreement, which read in its
pertinent part "all disputes arising out of", extended to the claim of the English
company on the bills of exchange, both the Court of Appeal and the House of
Lords relied on German law, as neither the English company nor the German firm
had disputed that the arbitration agreement was governed by this law and both had
adduced evidence under this law.m The two Courts, however, reached different
conclusions under German law. The Court of Appeal followed the opiAion of the
German expert brought in by the German firm that German law gives a bU of exchange priority in ordinary cases by not allowing cross-claims to be made to avoid
or delay payment of the bill of exchange, but that in the case of a partnership
greater importmce is attached to arbitration because partners freely choose arbitra-
questions affecting the parties' civil rights. See A. Walton, Russell on the Law of Arbitration,
19th ed. (London 1979) p. 91.
89. Court of Appeal, April 8, 1976, ICammgarn Spinnerei G.m.b.H. v. Nova (Jersey) Knit
Ltd. (U.IC. no. I ) , House of Lords, February 16,1977 (U.K. no. 2). The same opinion is adhered
to by Schlosser, supra n. 79, no. 250.
90. he case does not reveal whether the parties had already agreed in the arbitration agreement that the latter agreement was to be governed by German law - which choice of law is unlikely to have been made - or agreed during the court proceedings on German law as governing
the arbitration agreement. It may be noted the application of the conflict rules contained in
Art. V(l) (a) of the Convention would have led to the same result, see supra 11-1.1.3. That Article was, however, not mentioned by the Courts in this case.
151
tion in order to do better justice to their corporate relations. The House of Lords,
on the other hand, followed the German expert brought in by the English company
who was of the opinion that in no case does an arbitral clause extend to cover
claims on bills of exchange.
The House of Lords considered this in itself sufficient to refuse a stay of the
court proceedings on the bills of exchange, but also examined a second question
whether there was a dispute as to the claim on the bills of exchange, presumably because it wished to correct the Court of Appeal also on this point. As mentioned in
11-1.3.2.1 supra, the House of Lords held there was not a dispute as to the claim
on the bills because English law, which was held to be applicable to this question,
does not allow reliance on unliquidated cross-claims to set-off a claim on a bill of
exchange. It may be questioned whether such a splitting up of questions under different laws is desirable, but the peculiarity of the bill of exchange might so require.
The question whether a claim comes within the scope of an arbitration agreement was decided on the basis of the law of the forum by a United States Court of
~ ~ ~ e a l As .German
~ '
manufacturer of car radios had granted to a W t e d States
corporation the exclusive right to sell the radios in the United States. The exclusive
distributorship agreement contained an arbitral clause providing for arbitration of
disputes "arising out of and about" the agreement in Karslruhe, F.R. Germany,
under the Arbitration Rules of the International Chamber of Commerce. The agreement also provided that it was governed by German law. After the expiration of the
agreement, the United States distributor sued the German manufacturer before the
District Court of Pennsylvania, Eastern District, alleging that the German manufacturer had orally promised to renew the agreement. The District Court denied the
motion of the German manufacturer for a stay of the court proceedings, reasoning
that the alleged obligation of the German manufacturer t o renew the agreement did
not arise from the agreement, but rather from a separate and distinct oral agreement which was'not subject to the arbitral clause in the original agreement.
On appeal, the Court of Appeals reversed the denial of the motion to stay. At
the outset the Court of Appeals held that questions of interpretation and construction of arbitration agreements falling under the New York Convention are to be
determined by reference to United States federal law. The Court further noted that
there is a strong policy in the federal courts of the United States favouring arbitration, especially in the context of international contracts.92 Moreover, any doubts as
to whether a dispute falls under an arbitration agreement should be resolved in favour of arbitration unless it can be said with "positive assurances" that the dispute
is not meant to be arbitrated. As it could not be said with positive assurances that
the controversy between the German manufacturer and the United States distributor did not arise out of the original agreement, the Court held that this matter was
to be decided by the arbitrator in F.R. Germany.
Although the Court of Appeals determined the question of the scope of the arbitration agreement under the law of the forum, the federal policy favouring arbitration as expressed by the Court coincides with the "'proenforcement bias" of the
Convention. This should be the guiding principle for resolving the question, and it
should not be readily assumed that a dispute does not fall under an arbitration
agreement. To this extent, the Convention prevails over municipal law if that law
lays down stricter requirements. It is true, however, that there are particular cases
which cannot be resolved by a proenforcement interpretation alone, but which
91. U.S. Court of Appeals (3d Cir.), July 17, 1978, Becker Autoradio U.S.A. Inc. v. Becker
Autoradiowerk G.rn.b.H. (U.S. no. 26).
92. The Court referred to the U.S. Supreme Court, June 17, 1974, Fritz Scherk v. AlbertoCulver Co. (U.S. no. 4).
152
may need the help of some municipal law. The problem of a bill of exchange can
be deemed such a pasticular case. For solving this problem, it seems that the law
applicable to the arbitration agreement is the most appropriate law, which solution
was adopted by the House of Lords.
The reason why the law applicable to the arbitration agreement should be
applied is that this law will almost always also be the law applicable to the arbitral
procedure and arbitral award.93 As it is this law under which the question of the
scope of the agreement may come up again'in an action for the setting aside of the
award in the count~ywhere the arbitration has taken place, uniformity would
require the application of the law applicable to the arbitration agreement.
11- 1.3.3 Sabjeet matter not capable of setdement by arbilmtisn

Article II(1) requires in its final part that the arbitration agreement
concern a subject matter which is capable of settlement by arbitration,
which is the question of arbitrability. The same condition is stated as a
ground for refusal of enforcement of the arbitral award in Article
V(2)(a) which provides that the court may refuse enforcement on its
own motion if it finds that "the subject matter of the difference is not
capable of settlement by arbitration under the law of that country9'. ]In
order to avoid unnecessary repetition, the question which matters are
arbitrable is not included in this Chapter but is deferred to 111-5.2
where it is examined in the context of the enforcement of the award.
A brief observation, however, may be made concerning the question
under which law the arbitrability of the subject matter of the arbitration agreement is to be determined. For the enforcement of the arbitral
award, the Convention refers in Article V(2)(a) t o the law of the country where the enforcement is sought, i.e., the lex fori. For the enforcement of the arbitration agreement the Convention is silent on this
point; Article II(1) merely states that the agreement must concern a
"subject matter capable of settlement by arbitration9'. Notwithstanding
this silence, it must be presumed that for the enforcement of the arbitration agreement also the lex fori governs the question of arbitrability.g4 Internal consistency of the Convention requires such an analogous interpretation. Also, the main effect of an arbitration agreement is
the exclusion of the competence of the courts in favour of arbitration.
As a court derives its competence as a rule from its own law, it should
inquire under its own law whether the competence has lawfully been
excluded in favour of arbitration. In this connection, it should be noted
that the courts in several countries distinguish domestic from international cases for determining the question whether a dispute is arbi93. See supra 11-1 .I .2 ("Convention's Provisions and Municipal Law").
94. It may be noted that this is expressly provided by the European Convention of 1961,
supra 1-4.4.2, which provides in Art. VI(2), second part: "The courts may also refuse recognition of the arbitration agreement if under the law of their country the dispute is not capable of
settlement by arbitration". (emphasis added)
153
trable. The field of non-arbitrable matters in international cases may

then be smaller than that in domestic ones.g5
If the arbitration is to take place, or is taking place, in a country other
than the country where the enforcement of the arbitration agreement
is sought, it may be asked whether the court before which the referral
to arbitration is requested, should, in addition to its own law, also judge
the arbitrability under the law of the other country. Those court decisions reported so far in which the issue of arbitrability came up in connection with the referral to arbitration involved this situation of arbitration abroad. It is significant to note that all courts decided the question
of arbitrability exclusively under their own law and did not take account of the law of the country where the arbitration was to take place
or was taking place.96
This attitude of the courts must be deemed fortunate. A court is less
suited Cforurn non conveniens) for deciding on the arbitrability under
the law of another country. Arbitrability under a foreign law is difficult
to ascertain as it is generally not laid down in statutes, but develop,ed
by case law with all kinds of subtle distinctions. The courts of the country where the arbitration is to take, or is taking, place is the more convenient forum for the question of arbitrability. The division between
the court referring to arbitration and the court of the place of arbitration enhances the international distribution of judicial control over the
regularity of arbitration. It should be avoided that courts of two different countries judge on the same issue under the same law as this may
create the possibility of unnecessary conflicting decisions. Thus, if a
party wishes to challenge an arbitration agreement because it would relate to non-arbitrable matters under the law of the place of arbitration,
he should do so in the country where the arbitration is to take, or is
taking, place.
Similar considerations lead to the conclusion that neither the court before which
the enforcement of the agreement nor that before which the enforcement of the
95. See infra 111-5.1 ("Public Policy in General").

96. U.S. Supreme Court, June 17, 1974, Fritz Scherk v. Alberto Culver Co. (U.S. no. 4):
question whether agreement providing for arbitration in Paris was arbitrable as it involved a sale
of securities, was decided under United States law; U.S. District Court of -New York, S.D.,
December 21, 1976, B.V. Bureau Wijsmuller v. United States of America ( U S . no. 15): question whether agreement providing for arbitration in London was arbitrable as it involved a
United States warship, was decided under United States law; Corte di Cassazione (Sez. Un.),
May 12, 1977 no. 3989, Scherk Enterprises A.G. v. Soci6tC des Grandes Marques (Italy no. 28):
question whether agreement providing for arbitration in Zurich was arbitrable as it involved
trademarks, was decided under Italian law; Corte di Cassazione (Sez. Un.), April 27, 1979, no.
2429, COGECO V . Piersanti (Italy no. 37): agreement providing for arbitration in Saudi Arabia
in respect of an employment contract was held not to be arbitrable as under Italian law labour
disputes cannot be submitted to arbitration (the contract was subjected to Saudi Arabian law
under which, as the Supreme Court found, labour disputes can be submitted to arbitration).
154
award is sought has to take account of the arbitrability under the law applicable to
the arbitration agreement in case that law is different from the law of the forum.97
I-t should be noted that the authors disagree on the question under which law the
arbitrability is t o be determined. The view expressed above that the law of the
forum is controlling is adhered to by a number of authors.98 Other authors refer
the question to a cumulative application of the law of the forum and the law governing the arbitration agreement.99 There are also certain authors who are of the
opinion that the uestion is to be decided under the law governing the arbitration
agreement alone. 1%
11- 1.3.4. Null and void, inoperative or incapable of being performed

11- 1.3.4.1 Introduction
The last part of Article hI(3) provides that a court must refer the parties to arbitration unless the arbitration agreement is ""null and void, inoperative or incapable of being performed". The Summary Records of
the New York Conference of 11958 do not reveal any discussion regarding these words, nor have many courts interpreted them. Most judicial
interpretations have been given in the context of multi-party disputes,
the subject of the next Section (11-1.4). The authors, too, have rarely
expressed an opinion as to theah. precise legal meaning. The following,
97. See infra 111-4.1.3.4 ("Matters Left to the Law Applicable to the Arbitration Agreement") at n. 111.166.
98. E.g., E. Minoli, "L'entrata en vigore della Convenzione di New York sul riconoscirnento
e l'esecuzione delle sentenze arbitrali straniere", 24 Rivista di Diritto Processuale (1969) p. 539
at p. 542 n. 3; 5. Robert, "La Convention de New York du 10 juin 1958 pour la reconnaissance
et I'exBcution des sentences arbitrales BtrangGres", Revue de l'arbitrage (1958) p. 70 at p. 76;
F.-E. Klein, "La Convention de New York pour la reconnaissance et l'ex6cution des sentences
arbitrales BtrangBres", 57 Revue Suisse de Jurisprudence (196 1 ) p. 229 at p. 235.
99. E.g., Th. Bertheau, Das New Yorker Ablcommen vom 10. Juni 1958 iiber die Anerkennung und Vollstreckung auslandischer Schiedsspriiche (Winterthur 1965) pp. 38-39; I<.-H.
Schwab, Schiedsgerichtsbarkeit, 3d ed. (Munich 1979) p. 342; P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarlceit (Tubingen 1975) no. 3 12.
100. E.g., Ph. Fouchard, L'arbitrage commercial international (Paris 1965) no. 186. 6.
Aksen, "American Arbitration Accession Arrives in the Age of Aquarius: United States Implements United Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards", 3 Southwestern University Law Review (1971) p. 1 at p. 8, observes 'The question
will somehow be decided by the law of the country where the agreement was signed, where the
dispute arose, or the forum country". Perhaps abundantly, it should be made clear that the
European Communities Convention on the Law Applicable to Contractual Obligations, dope at
Rome on June 19, 1980 (Official Journal o f the European Communities, No. L 26611, of
October 9, 1980) does not apply to arbitration as is expressly provided in its Art. l(2) (d). Thus
the provision concerning mandatory rules of the law of another country as contained in Article
7(1) is not t o be applied to arbitration and hence not to the question of arbitrability. Article
7(1) provides:
"When applying under this Convention the law of a country, effect may be given to the
fnandatory rules of the law of another country with which the situation has a close connection, if and in so far as, under the law of the latter country, those rules must be applied
whatever the law applicable to the contract. In considering whether to give effect to these
mandatory rules, regard shall be had to their nature and purpose and t o the consequences of
their application or non-application."
\
Enforcement Agreemen f
155
therefore, mainly concerns interpretations which anticipate possible

future court decisions. The interpretations are based on the purpose
and system of the Convention, as well as what would seem to be the
most likely coverage of the words.
Textually, the words "null and void, inoperative or incapable of
being performed" would appear t o encompass a broad range of reasons
for which an arbitration agreement can be invalid. The broad language,
however, seems to have been provided upon the consideration that the
Convention is t o be applied in many different legal systems. Having
regard t o the 66pro-enforcementbias" of the Convention, the words
should be construed narrowly, and the invalidity of the arbitration
agreement should be accepted in manifest cases only. To quote again
from the District Court of New York: "[Tlhe drafters intended to impose on the ratifying States a 'broad undertalting9 to give effect to
agreements [falling under the Convention]."
The broad wording has as consequence that certain reasons for invalidity of the arbitration agreement may fall under more than one
word. In addition, those courts which have applied the words "null and
void" etc., do not always rely on one word, but, rather, refer to the
entire final part of Article II(3) in a given case. Nevertheless, in order to
make a clearer distinction between the various reasons for the invalidity
of the arbitration agreement, the following is divided into three parts
according to the wording of Article II(3).
It may be recalled that Article II(3) makes a distinction between "an
agreement within the meaning of this Article" and "null and void"
etc.lo2 This distinction has as consequence that the conditions mentioned in paragraphs 1 and 2 of Article I1 are conditions for referral
which belong to "an agreement within the meaning of this Article".
These conditions are: dispute must arise in respect of a defined legal relationship (Art. II(1)), subject matter must be capable of settlement by
arbitration (Art II(l)), and arbitration agreement must be in writing
(Art. II(1) and (2)). The words "null and void" therefore do not apply
t o these conditions. This is, however, merely a question of system and
has no legal consequences.
I- 3.42
"Null and void"
The words "null" and "void" are usually coupled together in statutes
and international conventions, although both words have the same
meaning and can therefore be considered as a tautology. In the French
1 0 1 . U.S. District Court of New York, S.D., December 2, 1977, Ferrara S.p.A. V. United
Grain Growers Ltd. (U.S. no. 20). See also quotation from this court decision, supra at n. 7.
102. See supra 11-1.3.1.1 ("Conditions for Referral Relating t o Arbitration Agreement").
156
E7zforcement Agreement
and Spanish text of Article II(3) one word is used for these words
("caduque9 and "nulo", respectively).
The words may be interpreted as referring to those cases where the
arbitration agreement is affected by some invalidity right from the beginning. It would then cover matters such as the lack of consent due to
misrepresentation, duress, fraud or undue influence. TI'owever, there are
two reasons for which these matters will rarely occur in practice, and
have, indeed, not yet come up before the courts in relation to an action
for the enforcement of an arbitration agreement under Article II(3).
The first reason is that the lack of consent must concern the arbitral
clause specifically, in those countries where the separability doctrine is
applied. Under this doctrine, accepted in many countries, the lack of
consent for the main contract does not necessarily constitute lack of
consent for the arbitral clause contained in it.lo3 It must therefore be
proven that the arbitral clause itself is tainted by misrepresentation,
duress, fraud or undue influence. The second reason is that although
the written form of the arbitration agreement as required by Article
II(2) does not concern questions regarding its formation, if this provision is met, a strong presumption exists that there is a "meeting of the
minds" since the requirements of Article II(2) are fairly strict.lo4 It
may be added that the words "null and void9' etc. would also apply t o
the question of capacity of a party t o agree to arbitration, which
question is to be decided under his personal law or another law which a
court may hold applicable to this issue according to its conflict rules.
A case concerning an arbitration agreement which provided for
appeal on the merits from the arbitral decision to the court has been
considered in connection with the words "null and void". The case decided by the Court of First Instance of Heidelberg
concerned a contract between a German manufacturer of rugs and a Dutch exclusive
distributor which contract contained the following arbitral clause:
"All disputes arising out of this contract shall, if no friendly settlement can be
reached between [the parties], be submitted in first instance to an arbitral tribunal of the German-Dutch Chamber of Commerce. If the decision is not acceptable to either party, an ordinary court of law, to be designated by the claimant,
will be competent." '06
103. See supra 11-1.3.1.2 ("Separability of the Arbitral Clause").

104. See infra 11-2.2.2 in fine ("Uniform Rule").
105. Landgericht of Heidelberg, October 23, 1972, affirmed, without further discussion of
the question under consideration by Oberlandesgericht of Karlsruhe, March 13, 1973 (F.R.
Germ. no. 9).
106. The arbitral clause was noticeably different from the one recommended by the GermanDutch Chamber of Commerce which reads:
"All disputes arising out of this contract or in respect of its validity shall be finally decided
in accordance with the Arbitration Rules of the German-Dutch Chamber of Commerce with
157
Upon a dispute between the parties, the German manufacturer sued

the Dutch distributor before the Court of First Instance of Heidelberg.
The Dutch distributor objected to the competence of the Court,
arguing that by virtue of the above-quoted clause the dispute should
first be decided by arbitration.
At the outset the Court determined the law by which the validity of
the arbitral clause was to be judged. The Court reached the conclusion
that both German and Dutch law were applicable.lo7
The Court found that under both German and Dutch law an arbitration agreement is valid only if it is in accordance with the will of the
parties that arbitrators decide instead of a court, in the sense that if the
parties agreed to arbitration, the court cannot function as second instance (no Instanzenzug). The Court continued: "The New Uork
Convention is also based on the principle that arbitration agreements
within the meaning of the Convention are only those which exclude
ordinary court proceedings (Art. II(3))."
The Court concluded that the "arbitration9' as provided by the parties was, rather, an agreement for conciliation (Siihneinstanz, Giitevertrag), which cannot be invoked as barring the competence of a German
An autonomous interpretation of Article II(3) as excluding appeal on
the merits to a court, as the German Court incidentally did, would jeopardize a number of arbitration agreements.log It is true that the parties,
rarely agree on appeal to the court on the merits; this faculty is, moreover, not recommended. However, there are countries where appeal to
the court on the merits of an arbitral decision cannot be excluded, such
as Colombia, which has recently adhered t o the C ~ n v e n t i o n . ' ' ~More
important as far as the number of arbitration agreements is concerned,
is England where the Arbitration Act of 1979 has introduced a kind of
appeal on the merits to the High Court which cannot be excluded by
agreement of the parties in a large number of cases.111 An autonomous
interpretation of Article II(3) on this point would create unnecessary
the exclusion of the ordinary courts (unter Ausschluss des ordentlichen Rechtsweges endgiiltig entschieden)."
108. The Court referred to Stein-Jonas, Kommentar zur Zivilprozessordnung (Tiibingen)
Sect. 1044, A 111 comment IV.
109. The Court erroneously supposed that no appeal on the merits to a court is possible in
the Netherlands. Art. 646(1) of the Dutch Code of Civil Procedure provides that "No appeal
from an arbitral award t o the court shall be allowed, unless such possibility has been reserved
in the arbitration agreement." This possibility, however, is virtually never used in practice.
110. Art. 2022 jo. 379-385 of the Colombian Commercial Code of 1938 as amended in
1971. See my article, "L'arbitrage commercial en Amkrique latine", Revue de l'arbitrage (1979)
p. 123 at p. 187.
111. See generally, C. Schmitthoff, "The United Kingdom Arbitration Act 1979", in Yearbook Vol. V (1980) p. 231 at p. 233.
158
uncertainty. It is therefore preferable to leave this matter to the law applicable to the arbitration agreement, and, if that law is different
(which is almost never the case), to the law governing the arbitral procedure.
11-1 -3.4.3 "lnopemtive"
The word "inoperativem can be deemed to cover those cases where
the arbitration agreement has ceased to have effect. The ceasing of
effect of the arbitration agreement may occur for a variety of reasons.
One reason may be that the parties have implicitly or explicitly revoked
the agreement to arbitrate. Another may be that the same dispute between the same parties has already been decided in arbitration or court
proceedings (principles of res judicata and ne bis in idem).
An arbitration agreement may further be inoperative where the arbitration has shipwrecked for some reason, and for this reason, under the
applicable law, the agreement ceases to have effect. Examples are the
setting aside of the award, the stalemate of the votes of the arbitrators
or the failure to render an award within the time limit for arbitration.l12
Here again, the reasons are mere assumptions based on what would
seem t o be likely to correspond with the word "inoperative", They
have not been considered by the courts in those cases reported under
the Convention so far.
A settlement reached between the parties before arbitration has
started may have the effect of rendering the arbitration agreement inoperative. This question did arise before a court in connection with a
request for referral to arbitration in virtue of Article I1(3).ll3 A dispute
arose between two United States corporations as to the construction of
a drying and calcining plant in the Republic of Guinea. The parties-held
a meeting about which they subsequently disagreed as to whether it had
amounted to a settlement. The District Court in Pennsylvania, confronted with the alleged settlement, referred this question to the arbitrator. It reasoned that under Pennsylvania law there is a favourable
policy towards arbitration, but added that a strong preference for arbitration is also reflected in the legislative history of the Convention.
The view of the District Court is to be approved. It should not be assumed too soon that an arbitration agreement has lost itsforce because
of a settlement; in case of doubt, it is in conformity with the purpose
112. See for noticeable differences in this respect between French, German, English and
United States law, P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit
(Tubingen 1975) no. 411.
113. U.S. District Court of Pennsylvania, W.D., October 19, 1976, Fuller Company v. Compagnie des Bauxites de Guinee (U.S. no. 13); cf. supra at n. 15.
Enforcement Agreement.
159
of the Convention to leave this question to be determined by the arbitrator.

Another reason, not considered by the courts in relation to the request for referral to arbitration, for the ceasing of effect of the arbitration agreement may be the expiry of the time limit for demanding
arbitration. Such time limits are quite usual in commodity arbitrations.
Here, also, it would seem to be preferable. to leave it, at least provisionally, to the arbitrator to decide whether the time limit has expired
or not.
In a case concerning the request for enforcement of an award made in Romania, the
German Supreme Court considered that the addition to the arbitral clause "Any
claim for arbitration formulated after 6 months from the date of arrival of the
goods at the final station or port of destination is null" did not expressis verbis
exclude the competence of the arbitral tribunal after this period."4
The possibility of conflicting court decisions or arbitral awards in

connected cases is, in principle, not a reason t o hold the arbitration
~ ~ "incapable of being performed9'.'I5 This
agreement " i n ~ p e r a t i v e or
question will be examined in more detail in the following Section
regarding multi-party disputes and referral t o arbitration.
11- 1.3.4.4
'flncapable o f being performed"
The words "incapable of being performed" would seem to apply to

those cases where the arbitration cannot be effectively set into motion.
This may happen where the arbitral clause is too vaguely worded, or
other t e r n s of the contract contradict the parties9 intention t o arbitrate. It would also apply t o cases where the arbitrator named in the
agreement refuses to accept his nomination, or the appointing authority designated in the agreement refuses to make the appointment of the
arbitrator. Under the law applicable to the arbitration agreement, these
cases may cause the termination of the arbitration agreement; and, to
this extent, there is not much difference between the words "incapable
of being performed" and the word "inoperative".
Here again, the above cases have not arisen before the courts in an
action for the enforcement of the agreement under Article II(3) of the
Convention. But should such cases arise, doubts should also be resolved
in favour of arbitration. It may be added that the above cases may be
avoided by a caseful drafting of the arbitration agreement.
The possibility of a lack of financial resources to satisfy an award
must be deemed not to render an arbitration agreement incapable of
being perfoamed within the meaning of Article II(3).
114. Bundesgerichtshof, February 12, 1976 (F.K. Germ. no. 12). See infra at n. 111.237.
115. See infra at n. 125 and 136.
160
A plaintiff had argued before the English Admiralty Court that the request of the
defendant for a stay of the court proceedings should be refused because the defendant did not have the financial resources to satisfy an award which might be
made against him, the arbitration agreement being for this reason "incapable of
The Judge rejected this argument as follows:
being
"It is an essential preliminary to the recognition and enforcement of arbitral
awards that the arbitration agreements capable of resulting in such awards being
made should themselves first be recognized and enforced . . . It follows from
what is said above that the context in which the words 'incapable of being performed' are used is the context of the recognition and enforcement of arbitration agreements which, if valid and effective, will result in awards being made;
and not the context of the recognition and enforcement of such awards themselves after they have been made. Having regard to that context it appears to me
that the words 'incapable of being performed9 should be construed as referring
only to the question whether an arbitration agreement is capable of being performed up to the stage when it results in an award; and should not be construed
as extending to the question whether, once an award has been made, the party
against whom it is made will be capable of satisfying it."
A second case where an arbitration agreement must not be deemed

incapable of being performed concerns the availability of foreign exchange. It may happen, especially in developing countries, that no foreign exchange is granted for arbitrating in another country, thus for the
payment of the travel expenses of witnesses abroad, the fee of the arbitrator etc. This was an additional reason for which the Indian Supreme
Court refused a stay of court proceedings in favour of arbitration in
Moscow.l17 The same consideration was repeated by the High Court of
Bombay in respect of arbitration in London.ll8
It is no secret that in the short run international commercial arbitration may be expensive, at least more expensive than litigation as, unlike
a judge, an arbitrator is to be remunerated by the parties. The costs of
international arbitration may indeed pose a serious problem for
developing countries. It is equally true that most international commercial arbitrations still take place in the developed countries. These facts
may encourage the developing countries to adopt more adequate arbitration laws and to create more appropriate arbitration facilities in their
countries."'" However, by adhering to the New York Convention, a
116. Admiralty Court (Queen'sBench Division), January 13, 1978, The Rena K (U.K. no. 6).
117. Supreme Court of India, January 1971, V/O Tractoroexport v. Tarapore and Co.
(India no. 1). Cf. supra at n. 28.
118. High Court of Bombay, April 4, 1977, Indian Organic Chemicals Ltd. v. Chemtex
Fibres Inc. et al. (India no. 4); see also in,fra at n. 135-138.
119. To this end UNCITRAL is envisaging the possibility of preparing a model uniform arbitration law (UN DOC A134117 para. 81). In setting up arbitration facilities, the developing
countries may follow the examples of the Inter-American Commercial Arbitration Association
(IACAC) and the Asian-African Legal Consultative Committee (AALCC) which adopted the
UNCITRAL Arbitration Rules of 1976. In F.R. Germany it is argued that, if a party has no
financial resources to pay the costs of arbitration (deposits in advance), the arbitration agreement may cease to have effect. See for this question under German law, W. Habscheid, "Die
16 1
country, whether developed or developing, must be deemed to have

assumed the obligation to promote the settlement of international trade
disputes by arbitration and not to frustrate its effectiveness by imposing physical or other restraints of whatever nature.
11- 1.4
Multi-party Disputes and Referral to Arbitration
Multi-party disputes and arbitration is a highly complex problem.

This is mainly due to the fact it may come up in so many different settings. The problem essentially arises where there are more than two parties, one of whom is not bound by the same arbitration agreement or
no arbitration agreement at all, and the disputes to be referred to, or
pending before, two different arbitrations, or an arbitration and a
court, concern the same or similar subject matter, common quesiions of fact and law, and substantially similar issues and defences. The
problem involves, from the legal point of view, procedural questions
such as the consolidation of arbitrations into one arbitration; the joinder of a third party (the attempt of one or more of the parties to an arbitration to join a third party who is involved in the underlying dispute); and the intervention of a third party (the attempt of a third party involved in the underlying dispute to become a party to an arbitration .between other parties).120 The problem was subject to extensive
debates at the Interim Meeting of the International Council for Commercial Arbitration (ICCA), held at Warsaw, June 30 - July 2, 1980.
This Section is concerned with a review of those cases decided under
the Convention where the problem of multi-party disputes and the referral to arbitration pursuant to Article II(3) has been coped with. The
review will be topical as the scope and limited space of this study do
not permit a systematic and exhaustive treatment of the problem of
multi-party disputes.121 The object is solely t o demonstrate that,
although the Convention does not contain provisions regarding multiparty disputes, it does not pose obstacles for dealing with the problem
either.
Most of the relevant cases decided under the Convention involve exclusive distributorship agreements. The classic scenario is that a manufacturer of a certain product grants a foreign distributor the exclusive
right to sell the product within a defined territory - usually the latter's
Kiindigung des Schiedsvertrages aus wichtigem Grund", 41 Konkurs-, Treuhand- und Schiedsgericlztswesen (1980) p. 285.
120. See G. Aksen, Multi-Party Arbitrations in the United States, paper submitted to the
Interim Meeting of the International Council for Commercial Arbitration, Warsaw, June 30 July 2, 1980.
121. See the General Report of Prof. G. Bernini for the ICCA Interim Meeting in Yearbook
Vol. V (1980) p. 291.
162
country - and during the term of the agreement the manufacturer markets the same product through another firm in that territory. The aggrieved exclusive distributor then sues before the courts in his country
both the third firm and the manufacturer. The distributorship agreement contains an arbitral clause, but the distributor has no contractual
relation with the third firm. The manufacturer then requests a stay of
the court proceedings against him in favour of arbitration.
In this case of exclusive distributorship agreements, the first question
is whether the arbitration between the manufacturer and the distributor
can still take place. In two cases, the Court of First Instance of Milan
held that this was not possible, and that the Court had become competent to deal with the claims against both the manufacturer and the third
party.
In the first case the aggrieved distributor had claimed a 10 per cent commission on
the parallel imports through the third firm.'22 The Court reasoned that the claim
was not one arising out of the distributorship agreement, notwithstanding the fact
that the arbitral clause in question was broadly worded ("Any controversy which
may arise out of this contract . . .").
In the second case the distributor alleged that the manufacturer had established
an Italian firm through which he marketed the product to which the distributor had
acquired the exclusive rights to the Italian market.'" Hence, the distributor sued
the manufacturer for breach of contract and the Italian firm for unfair competition.
The Court refused to refer the dispute between the distributor and the manufacturer to arbitration in Zurich as provided in the distributorship agreement. The
Court reasoned, this time, that according to the Italian Supreme Court an arbitration agreement ceases to have effect when two connected (conesse) claims, one of
which pertains to the competence of the arbitrators and the other to that of the
Italian courts, are brought before the court. In such a case the competence of the
court absorbs the competence of the arbitrator as it is inadmissible for two decisions regarding the same matter to coexist.'* The Court observed that it is true
that pursuant to Article II(3) of the New York Convention the court must refer the
parties to arbitration at the request of one of them, but that is equally true that a
court may refuse to refer if the agreement is "null and void, inoperative or incapable of being performed". The Court held the latter to be present because of the
force of attraction (vis attractiva) exerted by the competence of the court to decide
on the claim against the Italian firm over the claim against the manufacturer which
would otherwise have been within the competence of the arbitrator.
On the other hand, the English High Court did not give such a
narrow interpretation of the final part of the Article II(3) of the Convention.
122. Tribunale of Milan, November 11, 1976, S.p.A. SIAGA V.Solna Offset A.G. Printing
Equipment et al. (Italy no. 19).
123. Tribunale of Milan, March 22, 1976, Sopac Italiana S.p.A. v. Bukama G.m.b.H. and
FIMM (Italy no. 14).
124. Corte di Cassazione, August 4, 1969, no. 2949; February 11, 1969, no. 457. A similar
rule probably also exists in France: Art. 333 Code of Civil Procedure - Cf. Art. 6(2) of the
European Communities Judgments Convention of 1968, infra n. 306.
163
The case did not involve an exclusive distributorship agreement, but the reasoning
can be considered to have equal force for the interpretation of Article II(3) on this
point.125 The Judge observed:
"'I am not satisfied that it can truly be said that the arbitration agreement is, in
these circumstances, inoperative. No procedural difficulty would arise if, for
example, the claims in contract . . . were first decided in arbitration proceedings
between the Plaintiffs and the [Defendants bound by the arbitration agreement],
followed, if necessary, by court proceedings to establish liability, if any, in tort
of those who are not parties to the . . . Agreement. I agree that there is a theoretical possibility that different conclusions on the same matters of fact and law
might be reached in the two sets of proceedirags. Although this would be an
extremely unfortunate result, in my opinion such a duplication of proceedings
and consequent sisk of inconsistent findings are not factors which can be said to
render the arbitration proceedings sterile or of no practical operation, or as
serving no useful purpose."
In another case, again involving an exclusive distrbutorship situation,

the English High Court apparently considered it self-evident that the
arbitration would proceed between the manufacturer and the distributor as it did not even question it.126 It is submitted that these decisions
are correct. The mandatory nature of the referral to arbitration under
Article II(3) would oppose holding an arbitration agreement ""ioperative" or "incapable of being performed" on the ground that a
related claim is to be decided in court proceedings.
A second question is whether the party who is not bound by the
arbitration agreement can be joined, or can intervene, as party to the arbitration. The essence of arbitration being its voluntary nature, the
joinder or intervention of a third party can, in principle, take place only
if both the third party and the parties who are bound t o the arbitration
agreement consent to the joinder or intervention. Nevertheless, a court
may still have some latitude for manoeuvring. A sensible approach
towards the problem of joinder was adopted by the District Court in
' ~ ~Court granted the motion to stay the court proceedNew Y ~ r k . The
ings on the conditions that :
t6[the third parties] all agree in writing within thirty days to submit to the pending arbitration proceedings and to be bound by any award granted by the arbitrators . . . . In the event [the third parties] do not accept the conditions stated,
the motion to stay will be denied upon further application."
125. High Court of Justice (Chancery Division), January 31, 1978, Lonrho Ltd. v. Shell et
al. (U.K. no. 5), discussed supra at n. 115.
126. High Court of Justice (Chancery Division), October 4-6, 1977, Roussel-Uclaf V . G.D.
Searle & Co. Ltd. and G.D. Searle & Co. (U.K. no. 4). The same attitude can also be found in
the U.S. District Court of New York, infra n. 127.
127. U.S. District Court of New York, S.D., December 27, 1977, Dale Metals Corp. and
Overseas Development Corp. v. KIWA Chemical Industry Co. Ltd. et al. (U.S. no. 21).
164
The joinder or intel-ventioli of a third party may be less troublesome

if that party is a subsidiary of one of the parties to the arbitration
agreement. An English case may illustrate this.12'
A United States parent corporation disagreed with a distributor as to whether a certain pharmaceutical product fell under the distributorship agreement in the territory of the United Kingdom. The distributor sued both the parent corporation ancl
its English subsidiary before the High Court in London. Both the parent and the
subsidiary requested a stay of the court proceedings on the basis of the arbitral
clause included in the distributorship agreement to which agreement the subsidiay
was not a party. The English Arbitration Act of 1975, which implements the New
York Convention in the United Kingdom, provides that the person asking for a stay
must be pasty to the arbitration agreement or must claim "through or under9' such
a party. The question was whether the subsidiary, although being a separate legal
entity and not a party to the arbitration agreement, could claim "through or
under9' the parent corporation. The Judge held that this v7aspossible:
". . . I see no reason why these words in the Act should be construed so narrowly as to exclude a wholly-owned subsidiary company claiming, as here, a light to
sell patented articles which it has obtained from and been ordered to sell by its
parent. Of course, if the arbitration proceedings so decide, it may eventually
turn out that the parent company is at fault and not entitled to sell the articles
in question at all; and, if so, the subsidiary will be equally at fault, But, if the
parent is blameless, it seems only common sense that the subsidiary should be
equally blameless. The two parties and their actions are, in my judgment, so
closely related on the facts in this case that it would be right to hold that the
subsidiary can establish that it is within the purview of the arbitration clause, on
the basis that it is 'claiming through or under9the parent, to do what it is in fact
doing whether ultimately held to be wrongful or not."
The problem of multi-party disputes and referral to arbitration has

also arisen in cases decided under the Convention outside the situation
of exclusive distributorship agreements. One instance was whether an
action brought in court against a guarantor of a charterer could be
consolidated in the arbitration between the charterer and the shipowner. The District Court in New York granted a request to this effect
made by the shipowner.129 The Court considered that the arbitral
clause in the charter party covering "any and all difference and disputes
of whatsoever nature arising out of this charter9' did not exclude
arbitration against the guarantor and that the guarantor by declaring
"hereby guarantees to fulfil and perform any and all legal obligations
that Antco may be liable for as Charterers9' undertook broad obligations which included arbitration. In so deciding, the District Court
followed an earlier decision of the Court of Appeals for the Third
128. High Court of Justice (Chancery Division), October 4-6, 1977, Roussel-Uclaf v. G.D.
Searle & Co. Ltd. and G.D. Searle & Co. (U.IC. no. 4).
129. U.S. District Court of New York, S.D., June 28, 1976, Sidermar S.p.A. v. Antco
Shipping Co. Ltd. and New England Petroleum Corp. (U.S. no. 9).
Enforcement .Aqeemerzt
165
Circuit in a case involving almost identical facts.130As observed by the

District Court, the request for consolidation would not have been
granted if the arbitral clause in the charter party would have been
limited to ""disputes between the Owner and Charterers9' and the
guarantee would have been confined to performance 0 n 1 y ~ l ~ ~
The above case can also be regarded as pertaining to the problem of
incorporation by reference.132 It involves a consolidation of cases concerning identical claims which, if no consolidation had been ordered,
might have led to two different proceedings: the arbitration between
.the shipowners and the charterers, and a court action between the shipowner and the guarantor. It is evident that the concentration of the
identical claims in one set of proceedings (i.e., arbitration) is to be prefen-red. In deciding on the question of consolidation the Court relied entirely on United States law and did not mention the Convention. This is
correct as the Convention neither contains a provision on consolidation
nor prevents it being ordered under the law of the forum if arbitration
is t o take place there (i.e., New Y ~ r k ) . lIn~ ~the United States the
general rule is that a court may order consolidation in arbitration proceedings where the parties are not the same if the issues are substantially the same and if no substantial right is prejudiced.134
Another case decided under the Convention involving a multi-party dispute which is
worthy of being mentioned is the decision of the High Court of ~ o m b a ~ . 'The
~'
United States group Chemtex agreed with Indian Chemicals to erect a polyester
staple fibre plant in India. Three agreements were involved. The first agreement was
concluded between Indian Chemicals and subsidiary 1 of the Chemtex, under which
agreement subsidiary 1 was to supply machinery, equipment, drawings etc. as well
as technical information. The agreement provided for arbitration in London under
the Arbitration Rules of the International Chamber of Commerce. The second
agreement was conclucled between Indian Chemicals and subsidiary 2 of the
Chemtex, under which agreement subsidiary 2 was to supply certain machinery,
equipment, technical designs etc., and technical information required for the
implementation of the project, as well as training facilities to the engineers designated by Indian Chemicals. The second agreement contained the same arbitral clause
as the first agreement, except that this time it provided for arbitration in India. The
third agreement - headed "Four Party Agreement" - was concluded between
130. Compania Espanola de Petroleos S.A. v. Nereus Shipping S.A., 527 Federal Reporter
Second Series 966 (2nd Cir. 1975).
131. For these reasons the District Court of New York, S.D., had held that guarantor was
not obliged to arbitrate, Taiwan Navigation Co. v. Seven Seas Merchants Corp., 172 Federal
Supplement 721 (1959).
132. See infra 11-2.4.3.3 ("Incorporation by Reference").
133. The problem may be more complicated if arbitration is to take place in another country. This problem will not be dealt with as it is rather beyond the scope of this study.
134. See M. Domke, 7%eLawandPracticeofCommerciaZArbitration (Mundelein 1968-1979)
Sect. 27.02. See also Aksen, supra n. 120.
135. High Court of Bombay, April 4, 1977, Indian Organic Chemicals Etcl. v. Chemtex
Fibres Inc. et al. (India no. 4.).
166
Indian Chemicals on the one hand and the Chemtex parent and subsidiary 1 and 2
on the other. Under this agreement the parent guaranteed the proper performance
of its two subsidiaries. This agreement contained the same arbitral clause as the first
agreement, thus arbitration in London.
When a dispute arose, Indian Chemicals sued the parent and its two subsidiaries
before the High Court in Bombay. The parent and the two subsidiaries applied for a
stay of the court proceedings under the Indian Act of 196 1, which implements the
Convention in India. The High Court Judge rejected the application and held that
he had competence to hear the entire dispute.
Two points of the reasoning of the Judge have already been discussed.136 Three
other points considered by the Judge in refusing the stay are of interest here.
The first concerned the contention of Indian Chemicals that the arbitration
agreements were "incapable of being performed" within the meaning of Section 3
of the 1961 Act, which Section implements Article II(3) of the Convention,
because the agreements could lead to conflicting awards. The Judge rejected this
contention:
"May be that having regard to the three different arbitrations contemplated by
the said clauses or the different principles of law governing the said arbitrations,
there might be a possibility of conflicting awards. The conflicting awards, however, would not render the arbitration agreements incapable of performance. The
possibility of conflicting awards merely makes invocation of the arbitral provisions undesirable or improper or inexpedient. But that would not be the same
thing as 'incapable of being performed9 within the meaning of the said expression occurring in Section 3 of the 196 1 Act."
The rejection of this contention by the Judge is to be approved. As it was held by
the Judge of the English High Court quoted above 137, the possibility of a conflicting court decision in a related case is not a ground for holding the arbitration agreement "inoperative", or "incapable of being performed". The same must be deemed
to apply to the possibility of conflicting awards in related cases as might occur in
the Indian case under discussion.
The second point concerned the language of Section 3 of the 1961 Act. The
Judge saw an obstacle to granting the stay of court proceedings because that Section reads "an agreement". The Judge said:
"The use of the word 'an9 indicates the intendment of the Section. The Section
has no application to a situation where plurality of agreements converge on disputes and differences which arise out of a single transaction or a series of transactions which are inextricably linked with each other. . . . Section 3 of the 1961
Act has application only to such a case, where there exists one agreement which
provides for a particular arbitral forum and a suit is commenced by a party to
such an agreement or by a person claiming through him in respect of a matter
which is covered by such an agreement."
The singular "an agreement" is also used in Article II(3) of the Convention. However, the use of the singular is purely for semantic reasons. If the reasoning of the
Indian High Court were adopted throughout, it would lead to the absurd conclusion that the Convention applies only where the enforcement of more than one
award is sought because Article I uses the plural "arbitral awards". Such an overly
literal interpretaiton of the text of the Convention is obviously not a sound argu-
136. The two other points are: the agreement for the construction of a turn-key factory is
not commercial under Sect. 3 of 1961 Act, see supra at n. 1.125; the non-availability of foreign
exchange for arbitrating abroad may render the arbitration agreement incapable of being performed, see supra at n. 117-118.
167
ment for refusing a stay of court proceedings where several arbitration agreements
which are related to each other are involved.
The third point concerned the question whether the "Four Party Agreement"
could govern the disputes arising out of the two other agreements between the subsidiaries and Indian Chemicals. The Judge declined to accept this proposition. He
reasoned that the cause of action against the defendants arose under three agreements. The claims against subsidiary 1 and 2 were wholly outside the purview of
the arbitral clause contained in the "Four Party Agreement".
The reasoning could, however, also have been the other way round. The Four
Party Agreement was a guarantee agreement in respect of the agreement with subsidiary l and 2. Thus, if under the latter agreements the subsidiaries would have been
foulad at fault in the arbitrations, the parent could also be held to be at fault. In
addition, there was a parent-subsidiary relationship involved. It may also be significant that the agreement was headed "Four Party Agreement", which subsidiay 1
and 2 had also effectively signed. All these elements would have been sufficient to
hold the Four Party Agreement as governing the disputes arising out of the two
other agreements. In this connection it may be recalled that the District Court in
New York granted the request for a consolidation of a court action against a guarantor in arbitration, and the English High Court did the same with respect to a subsidiary. Although these two cases involved situations distinct from that before the
Indian High Court as the latter involved related arbitration agreements, the arguments used would have equal force for staying the court proceedings with regard to
all parties.
The Indian Judge concluded that all this could better be deaIt with in the lawsuit
which "has been properly framed, having regard to the terms and conditions of the
said three agreements and the facts of the case". The Judge observed also:
"The balance of convenience also requires that this Court should decline stay of
the proceedings in the suit. The arbitrations under plaintiffs' agreements with
the defendants 1 and the defendants 3 are to be held in London. The arbitration
under the agreement with the defendants 2 has its venue some place in India.
The entire evidence will be in India inasmuch as the plaintiffs9 claim that the
defendants 1 and 2 committed breaches of the obligations which had to be performed in India. The reports in regard to the test runs and other vital issues on
the matter would be in India."
This observation of the Judge reveals that he is in fact using a discretionary power
in deciding whether or not to grant a stay. However, the referral to arbitration
under Article II(3) of the Convention is mandatory as explained in 11-1 2 . 3 supra.
It is true that the lawyers who prepared the agreements did a bad job: the arbitral
clauses were not attuned to each other, and no possibility of consolidation of the
arbitrations was provided for.13* But if the parties have agreed on three different
sets of arbitration proceedings in two different countries, notwithstanding the fact
that the arbitrations are closely related to each other, such agreement should be
honoured.
As it was said at the beginning of this Section, the scope of this study
does not allow to treat the problem of multi-party disputes and arbitration in a systematic and exhaustive manner. It has merely been a review
of the cases decided under the Convention in which the problem of
138. The Arbitration Rules of the International Chamber of Commerce, to which the arbitral
clauses in question referred, d o not provide for the possibility of consolidation with a related
arbitration.
168
multi-party disputes and referral to arbitration pursuant to Article II(3)

has occurred.
The review of cases shows that the Convention, making no provisions
for multi-party disputes, does not obstruct the solutions for coping
with the problem. Two aspects of the Convention are, however, relevant for resolving the problem of multi-party disputes and referral to
arbitration. Firstly, the possibility of conflicting awards or court decisions in related cases must be deemed not to render the arbitration
agreement "inoperative9' or "incapable of being performed". Secondly,
the mandatory character of the referral t o arbitration under Article
II(3) supersedes the rule which may exist under the law of the forum,
like in Italy, that if a related case is brought before the court, the latter
absorbs the competence of the arbitrator.
II- 1.5.
The order staying court proceedings is what is meant by the expression "refer the parties to arbitration" in Article II(3) of the Convention. The effect of the expression is that the court becomes partially
incompetent, that is to say, incompetent to try the merits of the case.
The court, however, retains competence for matters relating to arbitration. This applies in particular to the ordering of provisional remedies,
including pre-award attachment, under the law of the court, these
remedies not being precluded by the Convention (pp. 128-132 and
139-144).
It is not a prerequisite for the referral by the court that the arbitration has been initiated. Nor is it required in the case of an arbitral
clause that the parties must conclude a submission agreement. These
rules implied by the Convention supersede any rule of municipal law to
the contrary (pp. 132-135).
The court has no discretionary power in staying the court proceedings, but must refer the parties to arbitration. A court may, however,
not refer the parties to arbitration on its own motion, but only at the
request of one of the parties. Both rules of the Convention supersede
any rule to the contrary of the law of the forum. (pp. 135-139).
The court may refuse to refer the parties to arbitration if the conditions set out in the Convention relating to the arbitration agreement are
not complied with. As a general rule, the "pro-enforcement bias" of the
Convention mandates that non-compliance should not be readily assumed, and that cases of doubt are to be resolved by the arbitrator
rather than the court. To this extent any municipal law t o the contrary
is superseded (pp. 144-16 1 passim).
The first condition is that there be a dispute. If there is only one aspect of the case in dispute, the entire case must nevertheless be adjudi-
Enforcement Ageemen f
169
cated by the arbitrator. The dispute must be in respect of a defined

legal relationship, whether contractual or not. This includes non-contractual claims, provided that they are within the scope of the arbitration agreement. These rules too supersede the more stringent rules of
municipal law. The question whether a dispute falls under the arbitration agreement is, in the first place, to be decided on the basis of constr-uction alone; in exceptional cases the question is to be resolved
under the law applicable to the arbitration agreement (pp. 14.6-152).
The second condition is that the subject matter of the arbitration
agreement be capable of settlement by arbitration. This issue of arbitrability is to be decided under the law of the forum only. This law may
distinguish between domestic and international public policy; in the
latter case the field of non-arbitrable matters may be smaller (pp. 152154).
The third condition is that the agreement be not "null and void, inoperative or incapable of being performed". Although the content of
these words is, in principle, to be determined under the law applicable
to the arbitration agreement, they must be construed narrowly (pp.
154-155). The words "null and void" denote an arbitration agreement
which is affected by some invalidity right from the beginning (pp. 155158). The word "inoperative9' refers to an arbitration agreement which
has ceased to have effect (pp. 158-159). The words "incapable of being
performed" apply to cases where the arbitration cannot be set into motion (pp. 159-161).
The Convention does not contain provisions for multi-party disputes
and the referral to arbitration, but does not hamper the solution of this
problem either. However, an arbitration agreement does not become
"inoperative3' or "incapable of being performed9' if there is a possibility
of conflicting arbitral awards or court decisions in related cases.
Furthermore, the competence of the arbitrator is not absorbed by the
competence of the court, if a claim, related to the claim in arbitration,
is brought before the court (pp. 16 1-168).
For those cases which are to be judged under the law applicable to
the arbitration agreement, that law is to be determined by application
by analogy of the conflict rules of Article V(l)(a) (pp. 126-128).
170
PART a-2
11-2.1
WRITTEN F O W OF THE AWBITUTION

AGREEMENT (ART. II(2))
Introduction
Article II(1) requires that ""Each Contracting State shall recognize an

[arbitration] agreement in writing . . . ". The second paragraph of
Article 11 specifies what should be understood by an arbitration agreement in writing: "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." The obligation of the Contracting States to recognize such agreement plays a role
at two stages. The first stage is the enforcement of the arbitration agreement; in this regard Article II(3) refers to "an agreement within the
meaning of this article". The second stage is the enforcement of the arbitral award; both Article IV(l)(b) and Article V(l)(a) mention the
"agreement referred to in article 11". 13'
The written form of the arbitration agreement as required by Article
II(2) receives separate attention in this study because this provision
ranks first amongst the Convention's provisions dealt with by the
courts.140 Reviewing these decisions, at first impression it may seem
that most of the problems and confusion stem from the Italian courts.
This is true t o a large extent, but the courts in other countries as we&
especially F.R. Germany, the Netherlands and Switzerland, have given
differing and sometimes unclear interpretations of Article II(2). It is no
exaggeration t o state that the harmonization of interpretation of Article
II(2) should have first priority for a better functioning of the Convention.
In Section 11-2.2 we will first deal with the character of the written
form requirement of Article II(2). With the exception of many Italian
courts and certain authors, the courts have held that Article II(2) supersedes domestic law regarding the form of the arbitration agreement in
those cases where the agreement falls under the Convention. In my
opinion, Article II(2) can therefore be considered as a uniform rule.
Three possible consequences of this uniform rule character are then to
be considered separately: minimum and/or maximum requirement;
proof of existence of the arbitration agreement by other means; and
estoppel from invoking non-compliance with Article II(2). A question
t o be considered at the end of Section 11-22 is whether the uniform
139. See for the applicability of Art. II(2) at the stage of enforcement of the award, infra
111-4.1.3.3.
140. See also G. Delaume, Transnational Contracts. Applicable Law and Settlement o f
Disputes (Dobbs Ferry 1978-1980) in Sect. 13.02.
171
rule character is such that it must be observed by international arbitrators.

After having investigated the character of Article II(2), it will be
examined in Section 11-23 when its definition of an arbitration agreement in writing can be deemed to be fulfilled. Article II(2) can be
divided into two alternatives: an arbitral clause in a contract or a submission agreement, the contract or agreement being signed by the parties, and an arbitral clause in a contract or a submission agreement contained in an exchange of letters or telegrams. It is especially the second
alternative which has been subject to diverse interpretations. The
basic problem is when an exchange has talcen place, which involves
questions such as whether signatures are necessary and when is there an
acceptance.
This examination will be the basis for considering in Section 11-2.4
whether and when four specific cases, which frequently occur in practice, can be deemed to comply with Article II(2). These cases are: the
arbitration agreement concluded by exchange of telexes, the sales or
purchase confirmation containing an arbitral clause sent after the conclusion of the contract, the arbitral clause in standard conditions, and
the arbitration agreement concluded through the intermediary of an
agent.
11-22
Character of the Written Form Requirement of Article HI(%)
The majority of the national arbitration laws require that the arbitration agreement be in writing, The purpose of this is to ensure that a
party is aware that he is agreeing to arbitration.
There ape various notable exceptions. According to Article 1029 of the German
(F.R.) Code of' Civil Procedure, an arbitration agreement concluded in the framework of a comm'ercial transaction (Handelsgeschuft) between parties who are qualified as full merchants (Vollkaufleute) does not require a specific form; the agreement may be concluded o r d y or even tacitly if it is customary to resort to axbitration in the branch of trade concerned. Another exception is Butch law under
which the arbitral clause, unlike the submission agreement which must always be in
written form, may be concluded o r d y or even by mere custom.'" Furthermore,
the arbitration agreement need, in theory, not have a specific form in Denmark,
Japan and $weden."' It should also be noted that many Common Law countries
141. See P. Sanders, "National Report Netherlands", in Yearbook Vol. VI (1981) p. 60 at
p. 63.
142. See J. Tr#lle, "National Report Denmark", in Yearbook Vol. V (1980) p. 28 at p. 29;
T. Doi, "National Report Japan", in Yearbook Vol. IV (1979) p. 115 at p. 120; U. Holrnbaclc
and N. Mangird, "National Report Sweden", in Yearbook Vol. I11 (1978) p. 161 at p. 162.
17 2
Enforcemelzt Agreement-
admit the validity of ail orally concluded arbitration agreement; stlch agreement,
however, does not fall under the applicability of the Arbitration ~ c t s . ' ~ ~
The purpose generally being the same, the national laws differ as to
when the written form of the arbitration agreement is met. They range
from a tacit acceptance of a contract containing an arbitral clause to a
specific approval in writing of an arbitral clause in contract forms and
standard conditions.
Neither the Geneva Protocol of 1923 nor the Geneva Convention of
1927 required any specific form for the abitration agreement. Consequently, the question whether an arbitration agreement had t o comply
with any requirement as t o its form had to be determined under some
national law, usually the law of the place where the arbitration agreement was concluded. In view of the differences in national laws, the
formal validity of the arbitration agreement was subject t o much uncertainty under the Geneva
The ECOSOC Draft Convention of 1955 prescribed the written form
for the arbitration agreement. It provided that, in order t o obtain
enforcement of an award, the party seeking enforcement had to prove
that the parties had agreed "in writing" to settle their differences by
means of a r b i t r a t i ~ n . ' However,
~~
it failed to state what constituted an
agreement in writing, and this question would presumably have reverted
again t o municipal laws146
The latter worried the Dutch delegate, and right at the beginning of
the New ~ b r kConference he proposed to add that "Agreement in
writing shall be held to include exchange of letters or
Subsequent to the submission of this proposal, the Conference decided
t o prepare an additional Protocol concerning the validity of arbitration
The Working Party No. 2 in charge of preparing the Pro143. See for England, A. Walton, Russell on the Law ofArbitrafion, 19th ed. (London 1979)
p. 57.
144. See H.-W. Greminger, Die Genfer Ablcornmen von 1823 and 1927 iiber die intewzalionale private Schiedsgerichtsbarkeit (Winterthur 1957) pp. 26-27.
145. Art. III(a), UN DOC E12704.and Corr. 1. The same provision was contained in Art.
III(a) of the ICC Draft of 1953, UN DOC EJC.21373.
146. The Committee of ECOSOC in its Report accompanying the Draft Convention gave
the following explanation of Art. IIl(a):
"The provision that the parties must have 'agreed in writing either by a special agreernen,t or
by an arbitral clause in a contract' was intended to'cover all the possible ways in which the
parties might enter into a written agreement to arbitrate, theis differences. The Committee
was aware that in the practice of international trade an agreement to arbitrate might be
made by an exchange of letters or telegrams. So long as the agreement was genuine and had
been reduced to written form, the Committee thought it should be considered valid for the
purpose of this paragraph. Similarly, the Committee did not intend to exclude common
form submission (confrats types) and other standard forms." (para. 30 of the Report, UN
DOC El2704 and Corr. .I).
Enforcemen i- Agreement
5'
1
I
'i
'
173
tocol based i-ts draft on the Dutch proposal and elaborated i-t as the
present text of Article II(2).14' What happened thereafter has already
been mentioned: at one of the last sessions of the New York Conference it was decided to insert in the new Convention itself the provisions
which were intended for the additional Protocol.15o Such was -the
genesis of Article II(2).
The Summary Records of the New York Conference do not reveal
much discussion about what finally became Article II(2). It is interes-ting t.o note that the delegates wanted to have a definition of an arbitration agreement in writing in the Convention as seen by the rejection of
a Belgian proposal to delete Article II(2).151 Notwithstanding the
sparse discussion, two points can be deduced from the legislative
history.
The first is t h a t t h e purpose of the written form as required by Article II(2) can be assumed to be the same as it is, in general, for the national laws on arbitration. As noted above, that pu.rpose is .to ensure
that a party is aware that he is agreeing to arbitration. This purpose was
apparently so self-evident that it was not even discussed at all. The
reason for this is that the delegates were rather apprehensive about -the
second point.
The second point is that the object of defining what constitutes an
arbitration agreement in writing in the Convention was to remedy the
divergence of the national laws regarding the form of the arbitration
agreement. The fact that a definition is provided in the Convention
.makes it clear that the intention of the drafters was to replace the
differing provisions of the national Laws in this respect. In other words,
their object can be presumed to be to provide for a uniform rule for the
formal validity of the arbitration agreement.
This history of Article II(2) indicates that the definition of an arbitration agreement in writing given in that provision is conceived as a
uniform rule which prevails over any provision of municipal law regarding the form of the arbitration agreement in those cases wliere the Convention is applicable. It means that where in the enforcement action
concerning the arbitration agreement, the agreement falls under the
Convention, or in. the enforcement action concerning the arbitral
award, the award falls under the Convention, the enforcement cannot
be pursued on the basis of the Convention if the arbitration agreement
does not meet the written form as required by Article II(2). In such a
149. UN DOC E/CONF.26/E.52.
150. UN DOC E/GONF.26/SR.22.
451. I .
'
174
case, the enforcement is to be founded on another basis in virtue of

Article VII(1) of the Convention.
With the exception of the Italian courts, about which more presently, all other courts have affirmed this character of Article II(2). The
Cantonal Court of First Instance of Geneva, for example, declared
:
""Article II(2) . . . has introduced a new form which is distinct from the
written form under Swiss law." The Austrian Supreme Court was even
more specific l S 3 : "The requirement of the written form of the arbitration agreement is exclusively governed by the New York Convention."
Similarly, the German Federal Supreme Court pointed out that Article
II(2) is "directly applicable 9 7 .154
The majority of the Italian courts, and especially the Italian Supreme
Court, have denied for a long time that Article II(2) of the Convention
prevails over domestic law.lS5 In a certain number of cases falling under
the Collvention, the Italian Supreme Court, whilst quoting Article II(2),
has determined the formal validity under the law applicable according
to the conflict rules contained in Article 26 of the Italian General Provisions of Law.
That Article provides three alternative criteria for determining the law applicable to
what the Italians call an inter vivos act: (1) the law of the place where the act is
made, (2) the law which governs the substance of the act, and (3) the law of the
nationality of the disposing party, or of the contracting parties, if they have a common nationality. Although the first criterion is most frequently used, it has been
held that the most favourable of them must be applied with the purpose of upholding the validity of the act.lS6
Almost all of these Italian cases involved an arbitral clause in contract forms or
standard conditions. In respect of other questions regarding the formal validity of
the arbitration agreement the Italian Supreme Court applies Article II(2) outright,
albeit that the interpretations given are rather restrictive and largely influenced by
Italian law.lS7 As far as the arbitra'l clause in contract forms and standard condi152. Tribunal of the Canton Geneva (6th Chamber), June 8,1967, J.A. van Walsum N.V. v.
Chevalines S.A. (Switz. no. 1); cf. infra n. 212.
155. E.g., Corte di Cassazione (Sez. Un.), December 13, 1971, no. 3620, Miserocchi v. S.p.A.
Paolo Agnesi (Italy no. 5); April 8, 1975, no. 1269, Constantino Tomasos Ltd. v. Sorveglianza
S.I.P.A. (Italy no. 13); May 25, 1976, no. 1877, Begro B.V. v. Voccia (Italy no. 17); January
25, 1977, no. 361, Total v. Achillo Lauro (Italy no. 26); May 18, 1978, no. 2392, Atlas General
Timbers S.p.A. v. Agenzia Concordia Line S.p.A. (Italy no. 35). Corte di Apello of Venice, July
13, 1970, Societa GAPAG K.G. v. Veronese (Italy no. 4); Corte di Appello of Milan, May 3,
1977, Renault Jacquinet v. Sicea (Italy no. 27). See for criticism F. Berlingieri, "Note on Enforcement in Italy of Foreign Arbitration Awards", GAFTA Newsletter, December 1980, Annex I, who qualifies Art. II(2) as a "uniform provision in an international Convention".
Chemapol (Italy no. 24).
157. See, for example, the question whether signatures are required, infra 11-2.3.2. The
question of an arbitration agreement concluded through the intermediary of an agent is also
resolved by the Italian courts o n the basis of the applicable law. This does, however, not deviate
from the prevailing interpretation of Art. II(2) in respect of this question, see infra 1112.4.4.
I
I
1
I
'
'
/
1
tions is concerned, Articles 1341 and 1342 of the Italian Civil Code require that it
be specifically approved in writing. These Articles will be examined in 11-2.4.3.2
below. For the present question it may suffice to mention that the Italian Supreme
Court resorts to the conflict rules of Article 26 of the Italian General Provisions of
Law presumably because it is embarrased by the requirements of Article 1341 and
1342 which, at least for international trade, are excessive.
Formerly, the Italian Supreme Court had adhered to the view that the arbitral
clause was an act pertaining to procedure. This had as consequence that if contract
forms or standard conditions including an arbitral clause were questioned before
Italian courts, Italian law - i s . , Articles 1341 and 1342 - was always applicable by
virtue of Article 27 of the Italim General Provisions of Law which provides that
procedural acts are governed by the law of the place where the procedure is being
held. In 1960, the Italian Supreme Court changed its mind and decided that an arbitration agreement is an act of substance, and hence the law applicable to the form
thereof was to be determined under Article 26 of the Itadian General Provisions of
~aw.l'~
This constituted an achievement as it restricted the applicability of Articles 1341
and 1342 mainly to contracts concluded in Italy. It is submitted, however, that in
cases falling under the New York Convention it is not warranted even to resort to
the conflict rules of Article 26 of the Italian General Provisions of Law, nor any
other conflict rules, for determining a law governing the formal validity of the
arbitration agreement, since, as explained above, municipal law is superseded by the
uniform rule character of Article II(2) of the Convention.
In a decision of 1999, the Italian Supreme Court had to deal with an

arbitral clause in a bill of lading providing for arbitration in Marseille,
which bill of lading was issued in the same city."' The Supreme Court
first found that Article 1341 of the Italian Civil Code was not applicable because, by virtue of Article 26 of the General Provisions of Law,
the bill of lading was governed by French law. The Supreme Court
added, however, that not only does French law not contain a requirement similar to Article 13 4 1, but also "the New York Convention in its
Article I1 exclusively ,regulates the form of the arbitration agreement
without requiring what Article 134 1 prescribes."
This adddition sounds promising for the future. Nevertheless, one
wonders what the Supreme Court would have decided if it had found
that the bill of lading had been issued in Italy. This uncertainty can be
removed only if the Supreme Court relies solely on Article II(2) for the
formal validity of the arbitral clause, without reference t o the applicable law.
It must be added that certain Italian courts of appeal have for a long
time underwritten the uniform rule character of Article II(2) of the
Convention.
158. Corte di Cassazione (Sez. Un.), May 2, 1960, no. 968, Hugo Trumphy v. Salgoil, Rivista
cli DiriffoInternaziomle (1960) p. 6 86.

159. Corte di Cassazione (Sez. Un.), September 11, 1979, no. 4746, Lloyd Continental
S.p.A. Navigazione Alga (Italy no. 38).
V.
176
To quote the Court of Appeal of Turin in a case concerning the enforcement of an

arbitral award lciO:
"In order to avoid uncertainties, which would allow to circumvent the Convention, the Convention establishes the precise concept of an 'agreement in writing9,
thereby laying down a uniform rule which is valid for all Contracting States and
which prevails over and derogates from the rules of municipal law. For this
reason it is unnecessary to ascertain, as the defendant maintains, whether the
clause inserted in the contract complies with Articles 1341 and 1342 of the Civil
Code, nor is it necessary to hold, as the petitioner argues, that similar provisions
are not to be found in Austrian law [i.e., the place where the contract was concluded] because they are irrelevant in the present case."16'
Although the Italian Supreme Court now seems inclined to accept

that Article II(2) constitutes a uniform rule for the form of the arbitration agreement, it should be obsewed that in another recent decision
the Supreme Court has limited this to the enforcement stage of the
arbitration agreement under Article II(3).162 At the stage of the enforcement of the arbitral award, the Court deems Article II(2) inapplicable. This interpretation, which is, in my opinion, inconsistent with
the text, system and history of the Convention will be dealt with
later.163
An indication that Article II(2) of the Convention is intended to
supersede municipal law in those cases where the enforcement of the arbitration agreement or arbitral award falls under the Convention, can
also be found in Article I(2)(a) of the European Convention.
As obsewed before, this Convention complements the New York Convention
primarily for arbitration in East-West trade in the case of enforcement of an arbitration agreement or arbitral award coming within the purview of both Convent i o n ~ Article
. ~ ~ ~I(2)(a) of this Convention provides:
"2. For the purpose of this Convention,
(a) the term 'arbitration agreement' shall mean either an arbitral clause in a contract or an arbitration agreement, the contract or arbitration agreement being
160. Corte di Appello of Turin, March 30, 1973, Barthl Mayer O.H.G. v. Pannelli F.G.B.
(Italy no. 7). The case involved a printed contract form in which the arbitral clause providing
for arbitration at the Vienna Commodity Exchange was contained. According to Art. 1342 the
arbitral clause should have been specifically approved in writing in this case.
161. In the same sense as the Corte di Appello of Turin, Corte di Appello of Naples, December 13, 1974, Frey et al. v. F. Cuccaro e figli (Italy no. 11) in which it was held that Art. II(2)
renders it superfluous to inquire as to the validity of the arbitral clause under the lex loci.
The Corte di Appello of Naples, February 20, 1975, Carters (Merchants) Ltd. v. Francesco Ferraro (Italy no. 21) held unequivocally that Art. II(2) of the Convention supersedes the specific
approval in writing requirement of Arts. 1341 and 1342 of the Italian Civil Code in wording
parts of which being remarkably similar to those employed by the Corte di Appello of Turin;
however, somewhat further on in the opinion, the Court observed also that Arts. 1341 and
1342 were not applicable because the contract in question had been concluded in England.
162. Corte di Cassazione (Sez. I), April 15, 1980, no. 2448, Lanificio Walter Banci S.a.S.
v. Bobbie Brooks Inc. (Italy no. 40).
163. See infra 111-4.1.3.3 ("Applicability of Article 11").
164. See supra 1-4.4.2,
\
Enfovcenzen t Agreement
177
signed by the parties, or contained in an exchange of letters, telegrams, or in a

communication by teleprinter [i.e., the first part] and, in relations between
States whose laws do not require that an arbitration agreement be made in writing,
arbitration agreement' concluded in the form authorized by these laws
[i.e., the second part]."
a l e first pad. is almost identical t o Article II(2) of the New York Convention. The
second pill-I: was added with the intention t o uphold the formal validity of. the
arbitration agreement in a &eater number of cases.'" Whereas the second part
refers t o municipal law, the first part does not do so. This difference indicates the
understaradhg of the drafters of the European Convention, who were largely the
same as those who participated in the drafting of the New York Convention inasmuch as the European countries are concerned, that municipal law was not to play
a role for the first part and hence for Article II(2) of the New Yorl: Convention.
It should be emphasized that the uniform rule character of Article

II(2) concerns only the form of the arbitration agreement. It does not
concern other aspects of the validity of the arbitration agreement also called the substantial validity - which aspects have, in principle, to
be judged under the applicable law.166 Conversely the law applicable to
the arbitration agreement for determining its validity to which Article
V(l)(a) refers, does not include the questions regarding the formal
validity of the arbitration agreement.
In principle; the form of the arbitration agreementdoes not concern
questions concerning its firmation. Formation includes such questions
as the moment on which a contract can be deemed t o be concluded i,e., when there is a "meeting of the minds" in the case of contracts
concluded by correspondence - and the question of lack of consent i.e,, misrepresentation, duress, fraud, or undue influence. These questions too have to be judged under the applicable law. It may be pointed
out, however, that if an arbitration agreement conforms to the requrirernents of Article II(2), there exists a strong presumption that there is a
"meeting of the mindsyqbetween the parties since the requirements of
Article II(2) are fairly strict, It may even be argued that, as far as the
arbitration agreement is concerned, if Article II(2) of the Convention
is complied with, the parties can be deemed. to have consented to arbitration, except where lack of consent can be proven. The latter exception rarely occurs in practice, and has not come up in a single case
decided under the Convention.
1%may be observed that as to the question of the formation of contracts in general
there is a divergence of views regarding the questisn which law should be applied
165. It may be doubted whether this is true. The second part of Art. 1(2) (a) stands out
because of its vagueness as it is not clear what should be understood by "in relations between
States whose laws". See for criticism, Ph. Fouchard, L'arbitrage commercial international
(Paris 1965) no. 144 et seq.
166. See for the question of the applicable law ill particular, supm 11-1 -1.2 ("Convention's
Provisions and Municipal Law") and 11-1.1.3 ("Determination of the Applicable Law").
1'78
to this issue. The better view seems to be that the issue is to be decided under the
"putative proper law".167 The putative proper law applicable to .the formation of
arbitration agreements falling under the New Yosk Convention could then be detesmined on the basis of the conflict mles contained in Article V(l)(a).
11-2.2.3
Consequences of the uniform mle
The judicial interpretation of Article II(2) that it supersedes

municipal law regarding the form of the arbitration agreement is wellestablished, with the exception of the Italian courts. The uniform rule
character of Article II(2) may have three possible consequences, which
consequences, although closely interrelated may be distinguished. These
consequences can be phrased in the form of the following questions:
(a) Is it a maximum and minimum requirement or a maximum requirement only?
(b) May the existence of the arbitration agreement be proven by
other means?
(c) Can a party be estopped from invoking non-compliance with Article I1(2)?
~ u e s t i o n s(a) and (b) have not appeared to be troublesome for the
courts, but have been answered differently by certain commentators.
These two questions will be commented upon briefly in order to appreciate fully the character of Article II(2). In contrast, the third question
(c) has led t o diverging judicial interpretations.
(a) Maximum and minimum rule
With the exception of the majority of the Italian courts in respect of
the specific approval in writing as required byarticles 1341 and 1342 of
the Italian Civil Code, no court, nor non-Italian author, has doubted
that Article II(2) means, in the first place, that it supersedes those requirements of municipal law which are more demanding than those laid
down in that Article. Some authors have, however, argued that Article
II(2) permits, but does not oblige, a court to accept less demanding requirements, whilst the Convention remains applicable. In other words,
~ opinion is
Article II(2) would be a maximum requirement 0 n 1 y . l ~This
not tenable. Article II(2) must in principle be deemed t o be both a
167. See G. Delaume, Transnational Contracts. Applicable Law and Settlement of Disputes
(Dobbs Ferry 1978-1980) Sect. 2.02.
168. In this sense, Th. Bertheau, Das New Yorker Ablcommen vom 10. Juni 1958 uber die
Anerkennung und Vollstreckung auslandischer Schiedsspruche (Winterthur 1965) p. 30-31 and
36. E. Mezger had adhered to the same opinion in his case comment appearing in Revue critique
de droit international privd (1962) p. 129 at p. 138-141; he has retracted this opinion in his
case comment appearing in Revue critique de droit international privt (1971) p. 37 at p. 60
n. 1. The Arbitral Tribunal of the Hamburg Friendly Arbitration, award of January 15, 1976,
published in Yearbook Vol. 111 (1978) p. 212, seems also to be of the opinion that the Conven-
179
maximum and a minimum requirement: a court may not require more,

but may also not accept less than is provided by Article II(2) for the
form of the arbitration agreement.
It is true that the English text of Article II(2) may create some
confusion, It reads ""The term '[arbitration] agreement in writing9 shall
include . . .". This may give the impression that there should be read:
"includes, but is not limited to", an expression regularly found in contracts drafted in English. It could have as consequence that Article II(2)
would allow arbitration agreements concluded in a form different from
what is stipulated therein, especially those which require less, to be considered valid on the basis of some municipal law. However, "include"
should be understood as "mean". This becomes apparent from the
French and Spanish texts which are equally authentic by virtue of
Article XVI of the Convention: "On entend par 'convention 6crite3 . .
." and "La expresi6n 'acuerdo por escrito9 denotard . . .". It may be
added that the first part of Article I(2)(a) of the European Convention
of 196 1, which is similar to Article II(2) of the New York Convention,
reads in the English text "The term 'arbitration agreement9 shall mean
. . .", whereas the French text is on this point identical to the French
text of Article II(2) of the New York Convention ("On entend par
. . .q9)e
Therefore, there is no textual argument for considering Article II(2)
a maximum requirement only. To the contrary, since the text appears
t o be all-inclusive, the uniform rule character applies to its fullest extent in that it does not leave any room for the application of municipal
law. This seems also t o have been the intent of the drafters of the Convention, however sparse their discussion concerning Article II(2) may
have been. Not only did they reject a proposal to delete Article II(2) altogether, but they also rejected a proposal to add t o the definition of
the arbitration agreement in writing the non-objection to a confirmation including an arbitral ~ 1 a u s e . The
l ~ ~ latter proposal and the voting
thereon, in particular, indicates that the drafters had in mind that the
definition of the written form of the arbitration agreement in the Convention was to be all-inclusive, thus also including a minimum.
In this connection it may be recalled that the Convention contains in
Article VII(1) a more-favourable-right-provision which permits a party
seeking enforcement of an award - and by inference of an arbitration
tion would allow arbitration agreements which do not meet the written form as defined in Art.
II(2). The Tribunal observed in particular:
"In any case, the Convention does not prevent the parties from concluding an arbitration
agreement orally or in another form: insofar as the national laws do not require a specific
form for the arbitral clause even an enforcement of the arbitral award pursuant to the Convention will be possible."
169. UN DOC E/CONF.26/L.54 and SR.22, see infra at n. 217-218.
180
Enforcemen f Agree~zent
agreement - to base his request on domestic law or other treaties.170It

is the mr'r-provision of Article VIB(1) which should be used for the
situation where the arbitration agreement does not comply with Article II(2). If tlie interpretation that Article II(2) is a maximum requirement only were accepted, it would render Article VII(1) meaningless in
a number of cases. Article VII(1) of the Convention may therefore be
considered as an additional argument against this interpretation. At this
point it should also be recalled that if the mfr-provision of Article
VII(1) is resorted to, tlie Convention becomes inapplicable in loto, and
the enforcement has to be sought exclusively on the other basis.141
Thus it is not allowed t o base the request for enforcement on the New
York Convention, with the exception of the form of the arbitration
agreement which would be based on some municipal law. This too can
be considered as an argument against the interpretation that Article
II(2) would be a maximum requirement only, allowing the application
of a more favourable municipal law.
The courts have implicitly affirmed that Article II(2) also constitutes
a minimum requirement. This can be infened from the fact that in
those cases where they found that an arbitration agreement did not
comply with Article II(2) of the Convention, they generally declined t o
apply the Convention, and attempted to decide the entire enforcement
on a different basis in virtue of Article VII(l).172 This opinion prevails
also amongst the majority of the a u t l ~ o r s . ~ ~ ~
(b) Proof by other means not possible
The second question concerning Article II(2) for the form of the
arbitration agreement is whether it may be proven by other means.
Some French authors maintain the view that Article II(2) is based on
the same written form requirement as obtained under French law'.174
170. See supra 1-4.

171. See supra 1-4.2.3.
172. E.g., Oberlandesgericht of Diisseldorf, November 8, 1971 (F.R. Germ. no. 8): the
Court refused t o grant the enforcement of the award under the New York Convention as the
sales confirmation containing the arbitral clause had not been returned which is insufficient for
Art. II(2). The Court granted the enforcement on the basis of German domestic law concerning
the enforcement of foreign arbitral awards.
173. E.g., A. Biilow, "Zwischenstaatliche Fragen der Schiedsgerichtsbarlteit nach dem UNber re ink om men vom 10. Juni 1958", 83 Juristische Blatter (1961) p. 305 at p. 306; H.-V. von
Hiilsen, Die Gultigkeit von internationalen Schiedsvereinbarungen (Berlin 1973) p. 5 2; I<.-H.
Schwab, Schiedsgerichtsbarlceit,3d ed. (Munich 1979) pp. 346-347; P. Schlosser, D m Recht der
internationalen privaten Schiedsgerichtsbarkeit (Tubingen 1975) no. 339; P. Sanders, "A Twenty Years' Review of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards", 1 3 ?%eInternational Lawyer (1979) p. 269 at p. 278.
174. J. Robert, "La Convention de New York du 1 0 juin 1958 sur la reconnaissance et
l'ex6cution des sentences arbitrales 6trang$res7', Reveie de l'arbitrage (1958) p. 70 at p. 75,
quoted apparently approvingly by J.-D. Bredin, "The New York Convention of June 10th
-6-
Enfireemen l.L Agreement
,.
181
French law considered the writteiz foi-m of the arbitral clause not as an
acte solennee [solemn act] but only as a matter of e v i d e ~ ~ c = I-t
e , lmeant
~~
that the arbilral clause could be proven by other rneans,I7"
This interpretation, rejected by the majority of -the comrnentatoss of
the Convention 17', would seem to be at odds with both the text arid
the liistory of the Convention. The text of the Conventio-ii is not
lirnltgd t o the requirement that the agreementbe in writing as French
law required. It specifically sets out what should. be understood by an
agreement in writing. The specification would loose a grea.t deal of its
meaning if it could be disregarded or be considered as a "guideline"
only.
This history does not indicate that the French concept should undeslie the written form requirement of Article II(2). In fact, France barely
took past in the drafting of this provision. It originated with the Dutch
delegate 17h11d was elaborated by a Working Party in which. France
was not represented.P79
Furthermore, if the conclusion of an arbitration agreement could be
proven by other means, it would create much uncertainty as to which
proof would be allowed and which not, the question pertaining to the
law of procedure of the forum before which the agreement is invoked,
It is therefore not surprising that there is no judicial support for the
French interpretation. To the contray, as we will see, the courts stick
to the application of what is provided by the text of Article II(2) and
generally do not take into account possibilities of concluding arbitration agreements which -are beyond interpretations based on the text of
Article IH(2).
It would be tempting to infer from the interpretation that Article
II(2) does not allow to prove the existence of the arbitration agreement
by otlzer means, that the formal requirement is a requirement ad validitatem (also called ad substanCiam), i.e., that it is constitutive, as. opposed to the requBement ad probationern, i.e., that It is a matter of
evidence only. This inference has indeed been made by the majority
of the Italian courts. However, as one must be cautious in doing so in
1958 for the Recognition and Enforcement of Foreign Arbitral Awards", 87 Journal du droit
international (1960) p. 1003 at p. 1017.
175. This is different under the new French arbitration law, Decree nr. 80-354 of May 14,
1980, Journal Officiel de la Rkpublique Fran~aiseof May 18, 1980, p. 1238, in force as of October 1, 1980. Art. 3(1) of the new law provides: "The arbitral clause must, on pain of nullity,
be stipulated in writing in the, main contract or in a document to which the main contract
refers."
176. See J. Robert, Arbitrage civil et commercial (Paris 1967) no. 37 (submission agreement) and no. 140 (arbitral clause).
177. E.g., von E-Tiilsen, supra n. 173, p. 55; Schlosser, supi.a n. 173, no. 341; Ph. Fouchard,
E'arbitrage commercial interrzatioizal (Paris 1965) 120. 140.
178. See supm at n. 147.
179. The Working Party was composed of delegates from Belgium, F.R. Germany, Poland,
Sweden, Tui-key, United Kiilgdorn, and the U.S.S.R.
182
general, this legal labeling is not the prefen-ed method because it has
the danger that it precludes practical considerations as to whether the
textual interpretation of Article II(2) should be adhered to under all
circumstances. The third question of estoppel, to which we will turn
now, is an example of this.
(c) Estoppel
In respect of the two foregoing questions, it was found that Article
II(2) is a maximum and minimum requirement and that it precludes the
proof of the arbitration agreement by other means. Thus, an arbitration
agreement cannot be enforced under the Convention if it does not have
the written form as defined in Article II(2). There is, however, one case
in which this may be questioned: if a party has acted specifically in
respect of the arbitration agreement without objection, thereby implying that he considers it valid, is he then subsequently estopped from involting the lack of compliance of the agreement with the written form
as required by Article II(2)? This case may, for instance, come up
where a party has co-operated in the appointment of the arbitrator(),
has participated in the arbitration, or has invoked the arbitration agreement for objecting to the competence of a court to try the merits of
the dispute.
The question forms part of a more general question whether a party
can be estopped from invoking any of the provisions of the Convention.
The question is, however, dealt with here in the context of the character of Article II(2) because of the particularities ensuing from the uniform rule and, also, because in practice the question mainly plays a role
for this provision of the C o n v e n t i ~ n . ~ ~ ~
The courts appear to be divided on the question of estoppel and Article II(2). The Court of Appeal of Dusseldorf explicitly denied that the
lack of the written form as prescribed by Article II(2) of the Convention can be cured by appearance of a party before the arbitrator.l8l
The same opinion can also be inferred from the Italian Supreme
Court. In one case the buyer had sent an unsigned confirmation of the
transaction to the seller who signed and returned it.182 When a dispute
arose, the seller as well as the buyer appointed an arbitrator in London
in conformity with the arbitral clause in the confirmation. Thereafter,
the buyer apparently preferred another course and started an action on
the merits against the seller before the Italian courts. In support of this
180. See for the court decisions reported under the Convention on which the issue o
estoppel has come up outside Art. II(2), inpa at n. 111.88-92.
181. Oberlandesgericht of Diisseldorf, November 8, 1971 (F.R. Germ, no. 8); cf. supra n
172.
182. Corte di Cassazione (Sez. Un.), September 18, 1978, no. 4167, Butera v. Pagnal
(Italy no. 33).
Enfireemen t Agreement
'
I
183
action the buyer filed the confirmation which was signed only by the
seller. The Italian Supreme Court rejected the objection of the seller
against the competence of the Italian courts on the basis of the arbitral
clause in the confirmation. The Court argued that the confirmation
should have been signed by both parties in order to be formally valid
under Article II(2) of the Convention. The fact that the buyer had appointed his arbitrator and that he, himself, had filed the confirmat ion,
in the Court's opinion, could not cure the lack of compliance with Article I@).
This decision of the Italian Supreme Court is, t o say the least, unsatisfactory. The buyer had proposed the arbitration, which proposal
had been accepted by the seller, and had appointed his arbitrator. He
should not the, be allowed to act capriciously and subsequently start
court proceedings in the belief that this would be more advantageous to
him.
The case is also a good example of the unreasonable results to which
the labeling of the written form requirement of Article II(2) as ad validitatern, as the Italian Supreme Court did in this case, may lead. It may
be added that the qualification by the Italian Supreme Court that the
written form of the arbitration agreement of Article II(2) as a requirement a d validitatem, "coincides9' with Italian law as far as formal
arbitration (arbitrato rituale) is concerned.la3 Moreover, and that is the
bitter irony of this case, Article II(2) can be considered t o have been
complied with as an exchange of documents had taken place in which
case the signatures of the parties can be dispensed with.la4
Various courts have gone in the other direction as illustrated by the
following case decided by the Court of Appeal of Hamburg.18' In a dispute between an English seller and a German (F.R.) buyer, the former
had sued the latter before the Court of First Instance of Hamburg. The
German party succesfully invoked the incompetence of the Hamburg
Court on the basis of the clause providing for arbitration in London
contained in the sales confirmation which had been exchanged between
the parties. After the English party had prevailed in the arbitration, in
which the German party had participated, he sought enforcement of
the award in F.R, Germany. This time the German party objected t o
the request for enforcement by asserting that the English party had
failed to supply an original or copy of the arbitration agreement "referped t o in article II" as required by Article IV(l)(b) of the Convention. The Court of Appeal of Hamburg held that Article II(2) had been
met as the sales confirmation had been signed and returned.
183. See for arbitrato ritule and arbitrato irrituale under Italian law, supra 1-1.7
184. See in& at n. 216.
184
Enforcement Ageemen l
Of interest for our gues tion of estoppel and Article %1(2)is the additional observation of the Court that the invocation of the formal invalidity of the arbitration agreement by the German party was in con-tracliction with his attitude at the time he objected, on the basis of the
arbitral clause, to the competence of the Hamburg Court of First Instance. Moreover, the Court observed, the German party had stated in a
letter that the dispute should arbitrated.
The President of a Dutch Court of First Instance similarly rejected
the invocation of the formal invalidity of the arbitration agreement.la6
The Judge observed that from the minutes of the hearing before the arbitrators, at which the respondent was assisted by a lawyer, it appeared
that neither the respondent nor his lawyer had objected to the form or
contents of the arbitration agreement. The Judge held that
. . at
present [emphasis by the Judge], more than two years after the hearing . . . the respondent is estopped from his right to question the validity of the arbitration agreement . . .".
For the question of estoppel from invoking the non-compliance with
II(2), three solutions seem to be possible. The first solution is to regard
the written form as prescribed by Article II(2) as a condition for the enforcement of the agreement and award which must be complied with
under all circumstances. This solution has been adopted by the Italian
Supreme Court and the Court of Appeal of Diisseldorf. Thus, even if a
party has relied on the arbitration agreement, this cannot heal the lack
of the prescribed form of the arbitration agreement and the Convention cannot be applied to the enforcement, the remaining possibility
being to found the request for enforcement on another basis, if any, in
virtue of the mfr-provision contained in Article VII(1) of the Convention. 18'
The second solution is to regard the question of estoppel in respect
of Article I1 as not being regulated by the Convention, and, to decide
this question on the basis of municipal law. The latter law is presumably the law of the forum. Under this solution the Convention remains
applicable t o the enforcement, whilst the estoppel from invoking the
non-compliance with Article II(2) is to be decided according to municipal law. Thus, under this solution it may happen that the enforcement
can be pursued on the basis of the Convention although the written
form of Article II(2) is not met, because under the law of the forum
a party is deemed to be estopped from invoking the non-compliance, It
may be noted that the national laws are divided on the question of
"".
186. President of Rech.tbank of The Hague, April 26, 1973 (Neth. no. 3).
187. This is the opinion of E. Mezger, "'Die Anerkennung jugoslawischer und anderer ost
europaischer Schiedsspruche in der Bundesrepublik", 115 Neue Jclristische Wochenschrifi
(1962) p. 278 at p. 282 n. 30.
185
estoppel.18* The more modern arbitration statutes tend towards an acceptance of estoppel in the case of a lack of the written form of the
arbitration agreement.
E.g., the European Uniform Law of 1966, while requiring in Article 2 that the arbitration agreement be in writing, provides in Article 25(4) that the invalidity of the
arbitration' agreement shall be deemed not to constitute a ground for setting aside
an award where the party availing himself of it had knowledge of it during the arbitration proceedings and did not invoke it at the time.18'
The third solution is to regard the question of estoppel as a fundamental principle of good faith, which principle overrides the formalities
required by Article II(2). Under this solution the Convention would
also remain applicable, differing from the second solution in that it
does not depend on the diverse municipal laws. The principle of good
faith may be deemed enshrined in the Convention's provisions. The
legal basis would be that Article V(1) provides that a court may refuse
enforcement if the respondent proves one of the grounds for refusal of
enforcement listed in that Article. The permissive language can be taken
as basis for those cases where a party asserts a ground for refusal
contrany to good faith.
It is submitted that the third solution is, in principle, to be preferred.
It would, for example, exclude the unsatisfactory result of the aforementioned decision of the Italian Supreme Court. It would also correspond with the trend in the more modern arbitration laws. And, finally,
it has the advantage that the question would not depend on municipal
law as would be the case if the second solution were adopted. Although
the Court of Appeal of Hamburg and the Dutch Court of First Instance
have not expressly held so, it can be said that they implicitly favour the
third solution.
11-2.2.4
Should an international arbitrator apply Article 11(2)?
In the foregoing we have seen that in the enforcement proceedings of

the arbitration agreement and award under the Convention, a court
must observe Article II(2) alone, with the possible exception of
estoppel. It may also be questioned whether the uniform rule character
of Article II(2) should be observed by arbitrators. This question also
forms part of a more general question: the question whether arbitrators
are obliged to observe any of the relevant provisions of the Convention,
in particular the conflict rules contained in Article V(l)(a), (d) and (e).
188. See P. SchIosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) no. 330.
189. European Law Providing for a Uniform Law on Arbitration, done at Strasbourg,
January 20, 1966, European Treaty Series no,. 56.
186
Enforcemen t Agreement
It is, however, appropriate to examine this question in connection with

the uniform rule character of Article II(2) as this provision in particular
has caused problems in practice.
It should be recalled that Article 11, in general, does not have the
effect that it supersedes municipal law in all cases. As explained in 1-24
the action for the enforcement of the arbitration agreement pursuant to
Article II(3), which refers in turn to Article II(2), applies only to those
arbitration agreements which can be deemed to fall under the Convention, Article I%does not have the effect of superseding the law relating
to domestic arbitration agreements. Thus the question whether arbitrators have to observe Article II(2) is relevant only for those agreements
which fall under the Convention in case the enforcement of the agreement were sought under Article II(3).
Arbitrators have different opinions on the Convention's applicability
in this case. Before an arbitral tribunal constituted under the auspices
of the Netherlands Oils, Fats and Oilseeds Trade Association
(NOFOTA), the Tunisian respondent had asserted that the,arbitrators
lacked competence because the arbitral clause was not in' writing as
required by Article II(2) of the New York Con~ention.'~'The arbitrators, however, denied the Convention's applicability:
"The Convention invoked by the respondent deals only with the recognition and
enforcement in a Contracting State of arbitral awards made in another Contracting State. The Convention does not contain substantive provisions which are directly applicable to the determination as to the competence of arbitrators
according to the law of the country in which the arbitral award is rendered. The
arbitrators are therefore not bound by the Convention in determining their competence. The question whether in the present case there exists 'a written agreement' within the meaning of Article II(2) of the Convention therefore does not
have to be answered by the arbitrators."
It may be noted that the arbitrators overlooked the fact that the
Convention also applies to the enforcement of the arbitration agreement pursuant t o Article II(3). Whether this is material will be dealt
with presently.
In several other awards Article II(2) was applied by the arbitrators.
An arbitral tribunal constituted under the Rules of Arbitration for
Overseas Hides and/or Skins of the Netherlands Hide and Leather Exchanges Association in Rotterdam held that the arbitral clause in question was valid according to Article IIf 2) of the Convention.lgl Another
example is an arbitral tribunal of the Hamburg Friendly Arbitration
which also considered Article II(2), but which reached the - enoneous
190. Award of March 20,1977, published in Yearbook Vol. I11 (1978) p. 225 at p. 226.
191. Award of December 3, 1979, published in Tijdschrift voor Arbitrage (Neth.) (1981 no.
1) p. 13, award no. 5. Cf. infra at n. 232.
187
- conclusion that it could require less for the form of the arbitration
agreement than is prescribed by Article II(2).19"~rther, the Arbitration Court at the Bulgarian Chamber of Commerce and Industry rejected the objection of the Italian respondentbased on Articles 1341 and
1342 of the Italian Civil Code, reasoning that these provisions have
been superseded by Article II(2) of the Convention. lg3
It may also be interesting to note that an arbitral tribunal constituted
according t o the Arbitration Rules of the Netherlands Arbitration Institute (NAI) even devoted an interim award to the question whether
the arbitral clause before it had the .writtea form as required by Article
IZ(2) of the C ~ n v e n t i o n .It~ ~gave
~ the petitioner the opportunity to
prove the compliance with Article II(2). The arbitrators added:
'The undersigned are not in a position to restrict themselves to ascertain
whether an arbitration agreement within the meaning of Article %Iexists between the parties or not. Should they reach "ce conclusion that there is no such
agreement, then they will have to ascertain whether there is an agreement to arbitrate which is valid under some applicable domestic law or under some treaty
other than the New York Convention. This is confirmed by the first sub-paragraph of Article VII of that Convention."
The most comprehensive reasoning regarding the question under discussion can be found in an arbitral award rendered by another arbitral
tribunal constituted under the Rules of Arbitration for Overseas Hides
and/or Skins of the Netherlands Hide and Leather Exchanges Associa. ~ ~ ~a dispute had arisen between a Dutch seller
tion in R ~ t t e r d a r n After
and an Italian buyer about Argentinean hides, the Dutch seller had
initiated arbitration at the Association. The Italian buyer opposed the
competence of the arbitrators in Rotterdam, asserting that the arbitral
clause in the contract in question did not have the written form as
prescribed by Articles 806-808 of the Italian Code of Civil Procedure,
and wguing that Italian law was applicable because the contract would
have been concluded in Italy. The arbitrators rejected this assertion as
follows:
'"owever, the formal validity of an arbitral clause in the case as the one at hand
Fmvolvhg an Italian m d Butch party, is exclusively governed by Article 11, paragraphs 1 and 2, of the New York Convention on the Recognition md Enforcement of Foreign Arbitrd Awards of June 10, 11958, which Convention was
acceded to by Italy on January 3 1, 1969, and was ratified by the Netherlands on
192. Award of January 15, 1976, published in Yearbook Vol. IIK (1978) p. 212. Cf. supra
n. 168.
193. Award of May 12, 1971, published in Yearbook Vol. IV (1979) p. 191.
194. Interim Award of September 15, 1977, published in Yearbook Vol. VI (1981), p. 142.
The case'was settled after the issuance of this interim award.
195. Award of October 30, 1980, published in a2'jdschrift voor Arbitrage (Neth.) (1980 no.
6) p. 169, award no. 40.
188
Ap1-2 24.,1964, k t i c l e 11, paragraph 1, of this Corlvention requhes that the arb&
trztion agreement be in writing. Ai?ide 11, paragraph 2, provides that 'the term
""agreement in writing", ihall include an arbitral clause in a contract or an a b i tration agreement, signed by the pasties or contained in an exchange of letters or
telegramsOq9
According t o the prevailing interpretation by the coui-ts in the
various Contracting States, Ai-ticle 11, paragraphs 1 and 2, constitutes an internationally unifoim ~-ulefor the formal validity of an arbitration agreement, which
rule does not leave any room for the applicability of domestic law. Consequently, Articles 806-808 of the Italian Code of Civil Procedure are inapplicable in the
present case.
The arbi'cral clause in question complies with Ai"cc1e 11, paragraph 2, of the
Convention: Contract no. 546-V is signed by the claimants and is expressly refei-sed to by the defendmts by number 54.6-V in the aforementioned cable of
June 5, 1980. This constitutes an exchange in writing within -the meaning of
Ai-kicle II, paragraph 2, of the Convention.
It may be added that if the Convention were not to be applied in virtu6 of its
Ai-ticle VII, paragraph 1, the formal validity of the arbitral clause is still to be
upheld. Clause 24.1 of the International Hide 8& Skin Contract No. 1 provides
that 'for the purpose of arbitration, appeal and any other legal proceedings and
for the purpose of establishing formal and essential validity, this contract shall
be deemed to have been made in the country o f th.e place of arbitratiiin and to
be performed there so that the law of such country shall be the pro,per law of
the contract, any correspondence or reference to the offer, the acceptance, the
place of payment, the place of appeal or otherwise notwithstanding.' [emphasis
added by the arbitrators]. This clause would lead t o the applicability of Dutch
law to the contract, including the arbitral clause in question, under which law
the... -arbitral clause is valid beyond any doubt."
For solving the question whether arbitrators have to apply Article

IT(2) in those cases where the arbitration agreement can be deemed to
fall under the Convention, two lines of reasoning appear t o be possible,
both of which may lead to inapplicability of the Convention.
The first line of reasoning is that the Convention applies only to the
enforcement by a court of the arbitration agreement and award. The
Convention has specifically been drafted for the courts and does not
contain any provision, nor indication, which declares that it is to be applied by arbitrators. In addition, the arbitrators would not be obliged to
render an award which is enforceable under the Convention, the more
so since it is by no means certain that the enforcement will be governed
by the Convention (i.e., that the enforcement will be sought in another
Contracting State).'" This line of reasoning apparently underliis the
above quoted NOFOTA award.
The second line of reasoning is that since the arbitration agreement
excludes the competence of the courts, it must be valid to its fullest
extent. That is to say, if an arbitration agreement falls under the Con-
196. See for the question whether gn arbitrator has the duty to render an enforceable
award, 9. Lew, Applicable Law in International Commercial Arbitration (Dobbs Ferry 1978)
nos. 158, 271 and 410.
,
I
'
189
vention, a court will stay the court proceedings brought before it in

violation of the agreement only if the agreement is valid according to
the Convention, which validity includes the formal validity pursuant to
Article II(2). As arbitrators liave the duty to examine whether they
have been regularly vested with competence vis-bvis the courts, they
must also take into account the formal validity of the arbitration agree- .
mentunder Article II(2). However, as can be done in enforcement proceedings before the court, if the arbitrators find that the agreement
does not conform to the requirements of Article II(2), another basis
can still be relied on in virtue of the mfr-provision contained in Article
VHI(1) of the Convention.lg7 This was apparently the line of reasoning
of the arbitrators in the above mentioned NAI and Netherlands Hide
and Leather Exchanges Association cases.
The second line of reasoning is built upon the presumption that the arbitrators
must examine their competence vis-a-vis the court which would have been competent to deal with the dispute if no arbitration had been agreed to. As 56 States have
adhered t o the Convention, such a court will in most cases be located in a Contracting State.
It is difficult to say which line of reasoning can be considered the

better one. As far as it could be researched, the question has not been
raised in literature. The second line of reasoning has the advantage that
the applicability of Article II(2) would lead to a discarding of more
demanding requirements as to the form of the arbitration agreement
under the otherwise applicable law, such as Articles 806-808 and 13411342 of the Italian Civil Code. On the other hand, the fact that it is
uncertain whether the enforcement of the award will be governed by
the Convention may be an argument against the obligation of the arbitrator to apply Article II(2). If it turns out that the enforcement of the
award is limited to the country where it is made, in which case the Convention is inapplicable, it may be rather strange that the arbitrator had
t o apply rules to the formal validity of the arbitration agreement (i.e.,
Art. II(2) of the Convention) which were stricter than those of the arbitration law of the country where he was sitting. However, the same
dichotomy will also occur if the arbitration agreement is invoked before
the court of a Contracting State, in which case Article II(2) of the Convention is to be applied, and subsequently the enforcement or setting
aside of the award is sought in the same country, in which case the Convention is inapplicable.lg8 On balance, therefore, the second line of
reasoning that the arbitrator is competent to the extent that a court is
incompetent is to be preferred. It means that an international arbitrator
197. See for the question whether the mfr-provision of Art. VII(1) also applies in the action
for the enforcement of the arbitration agreement under Art. I1(3), supra 1-4.2.4.
198. See stlpm 1-1.4 ("Convention Not Applicable in Country of Origin").
190
has to apply the Convention, including Article II(2), but that the mfrprovision of Article VII(1) offers him an escape.
11-2.3
When is the Written Form Requirement of Article IIC(2)Met?
The character of Article II(2) that it is a uniform rule superseding

municipal law regarding the form of the arbitration agreement for those
agreements which fall under the New York Convention, makes it extra
important to determine when an arbitration agreement complies with
this provision.
Article II(1)-(2) requires that in any case the arbitration agreement
must be in writing; an orally concluded arbitration agreement will not
suffice. We need not dwell on this aspect which appears unequivocally
in the text of Article 11.
The question is when is an arbitration agreement sufficiently set out
in the written form. Article II(2) defines the agreement in /writing as
"an arbitral clause in a contract or an arbitration agreement, signed by
the parties or contained in an exchange of letters or telegrams." The definition raises a preliminary point of terminology for the English text of
Article II(2): the term "arbitration agreement" appears somewhat confusingly to mean 66submissionagreementy9(acte de cornpromis).
As observed before, the Convention does not distinguish between the arbitral
clause, by which future disputes are referred to arbitration, and the submission
agreement, by which an already existing dispute is referred to arbitration. Both
types of agreements are treated alike by the Convention and covered by the general
term "arbitration agreement".lg9 However, the English text of the Convention is
not quite consistent with this terminology. Article II(2) states ". . . an arbitral
clause in a contract or an arbitration agreement, signed by the parties . . ." (emphasis added). The arbitration agreement covering both the arbitral clause and the
submission agreement, it should have read ". . . an arbitral clause in a contract or a
submission agreement, signed by the parties . . ." (emphasis added). The French and
Spanish texts, which are equally authentic by virtue of Article XVI of the Convention, are clearer on this point; they read for the term arbitration agreement in Article II(2) compromis and compromiso as distinct from convention and acuerdo, respectively, when referring to the arbitration agreement in general.
This poses, however, a problem for an exceptional type of arbitration agreement.
It may happen in certain trades that the parties conclude a separate agreement by
which all disputes which may arise out of contracts which will be concluded by
them in the future in respect of a certain commodity, shall be referred to arbitration. In my opinion, this type of agreement cannot be brought under the term
"arbitration agreement" in the English text of Article II(2), because the French and
Spanish text clearly limit this term to the submission agreement. It is arguable that
199. See supra 11-1.2.2 ("Actual Submission to Arbitration Not Required").
191
by means of an extensive interpretation of the term "a~bitralclause in a contract9>

in Article %J[(2),this type of agreement for future disputes could be brought under
the latter term.
Article II(2) may be divided into two alternatives for an arbitration

agreement in writing:
first alternative: an arbitral clause in a contract or a submission
agreement, the contract or agreement being signed by the parties;
second alternative: an arbitral clause in a contract or a submission
agreement, contained in an exchange of letters or telegrams.
Whilst the first alternative has not created major problems, the
second alternative has appeared to be troublesome for the courts. The
second alternative was added in the desire to make allowances for the
cunent practices of international trade of concluding contracts by corre~pondence.~OOWhether this attempt has been successful is another
question. In any event, the purpose of the addition of the second alternative t o enlarg'e the possibilities of concluding arbitration agreements
in international trade is an important factor for interpreting Article
II(2).
The question how Article II(2) should be interpreted for determining
which cases comply with it, has been subject to diverging views. Some
courts, in particular the Italian ones, maintain that Article II(2) should
be interpreted strictly."' 0 thers, to the contrary, argue that Article
II(2) should be interpreted according to its "spirit". The latter view
was, for instance, advanced by the Court of ~ i r s Instance
t
of Rotterdam which observed 202 :
"The Court is of the opinion that the spirit of this provision is that on the basis
of written documents each party t o the contract must be given information in a
sufficient manner that the other party knows and agrees that disputes which
may arise out of the contract shall be submitted to arbitration."
In view of the purpose for which the second alternative was added,
one can agree to a large extent with the view of the Rotterdam Court.
However, the interpretation according t o the "spirit" of Article II(2)
does have its limits: an interpretation contrary to what is specifically
200. A. Biillow, "Das UN- ber re ink om men iiber die Anerkennung und Vollstreckung auslandischer Schiedsspriiche", 20 Konkurs-, 7'reuhand und Schiedsgerichtswesen (1959) p. 1 at
p. 3. See also Tribunal of the Canton Geneva (6th Chamber), June 8, 1967, J.A. van Walsum
N.V. v. Chevalines S.A. (Switz. no. 1) text quoted infra at n. 212.
201. Carte di Cassazione (Sez. Un.), December 13, 1971, no. 3620, Miserocchi v. Paolo
Agnesi (Italy no. 5); see for the relevant observation of the Court, infra at n. 282; but see also
infra at n. 204-206.
202. Rechtbank of Rotterdam, June 26, 1970, Israel Chemicals & Phosphates Ltd. v. N.V.
Algemene Oliehandel (Neth. no. 1). See also P. Sanders, "The New York Convention", in International Commercial Arbitration Vol. I1 (The Hague 1960) p. 293 at p. 309.
192
provided by the text is unacceptable. For instance, where the text requires an exchange of letters, there must have been a mutual transfer of
documents; the mere transmission of one document by a party to the
other cannot linguistically fulfil the word "exchange".
There is another reason for which Article II(2) should not be interpreted too strictly. Article II(2) contains fairly demanding requiremefits
for the form of the arbitration agreement. If these requirements were
interpreted strictly, a great number of international contracts containing an arbitral clause would fall outside Article II(2), as in current international trade practice contracts tend to be concluded in a rather informal way. The consequence would be that the enforcement of agreements and awards in these cases would have to be based, according to
Article VII(l), on municipal law or some other treaty, if any. This
would create a situation of disparity and uncertainty which the New
York Convention was intended to prevent.
The question when the written form requirement of Article II(2) can
be deemed t o be met may be considered in this Section from the angle
of three general problems: whether signatures are necessary, the exclu- .
sion of oral and tacit acceptance, and when the acceptance in writing of
a contract containing an arbitral clause can be deemed sufficient in the
case of an exchange. These general problems relate mainly to the
arbitral clause; at the end of this Section some brief observations will be
made concerning the submission agreement and Article II(2). In the following Section we will consider the question in respect of four specific
cases of arbitration agreements.
11- 2.3,2 Whether signatures are necessary
In the case of the first alternative, there is no doubt that the signatures of the parties are required because the text of Article II(2) states
so e~plicitly."~
It may be mentioned that in the case of an arbitral clause in a contract, it is not the arbitral clause which need be signed; the signatures for the contract as a whole will suffice.
The English text of Article II(2) reads ". . . an arbitral clause in a contract or an arbitration agreement, signed by the parties . . ." which may cast a doubt as to
whether the word "signed" refers to the word contract or to the arbitral clause. The
French and Spanish text, which are equally authentic by virtue of Article XVI, are
not unequivocal either: . . une clause cornpromissoire inserde dans un contrat, ou
"".
203. As far as the first alternative is concerned, German authors differ on the question
whether a stamped or a printed signature would be sufficient. It is affirmed by von Hiilsen,
supra n. 173, p. 54, but denied by Schlosser, supra n. 188, no. 343. This question has not come
up before the courts.
193
un compromis, sign6s par les parties . . .", and ". . . una cliusula compromisoria incluida en un contrato o un cornpromiso, firmados por las partes . . . ." The German
translation is clearer, but is not authentic: ". . . eine Schiedsltlausel in einem Vertrag oder eine Schiedsabrede . . ., sofern der Vertrag oder die Schiedsabrede von den
Pwteien unterzeichnet . . . ist".
In one case the Italian Supreme Court opined at the beginning of a judgment
that, grammatically the word "signed" refers to an.arbitra1 clause in a contract and
not the contract itself.20a The Court noted in this respect a difference with Article
I(2)(a) of the European Convention of 1961 which reads ". . . either an arbitral
clause in a contract or an arbitration agreement, the contract or arbitration agreement being signed by theparties . . . ." It issubmitted that the text of the European
Convention is merely the result of a more careful drafting, but that it has essentially
the same meaning as Article II(2) of the New York Convention.
The Court considered, however, its grammatical interpretation too strict, saying
that it is not in conformity with the reality of international trade for which a
separate signature for the arbitral caluse would be a too heavy burden. It concluded
that the interpretation should be more liberal in the sense that the signature for the
contract as a whole is sufficient.
This last interpretation of the Italian Supreme Court would at first sight appear
to be encouraging as on earlier occasions the Supreme Court had held that under
Article II(2) a specific approval in writing was needed for the arbitral clause, in particular, if the clause figured in a contract form or standard conditions.205 Nevertheless, the interpretation of the Court was d titre gratuit as it found that the signatures for the contract as a whole were, in fact, lacking. Moreover, at the end of the
opinion, the Court repeated that the written form required for the arbitration
agreement must be interpreted in a restricted sense. So the Court gave with one
hand and took with the other.20Q
In the case of the second alternative, there may be cases where the
signature of one of the parties, or even both, does not appear on the
documents exchanged. Especially, in the case of telegrams or telexes, it
may be questioned whether the indication of the sender can be equated
t o a signature. It may also happen that a party sends an unsigned confirmation which is accepted by the other party in writing, either by
returning a duplicate or by other means (for instance, by telex).207
204. Corte di Cassazione (Sez. Un.), May 18, 1978, no. 2392, Societi Atlas General Timbers
S.p.A. v. Agenzia Concordia Line S.p.A. (Italy no. 35). The Court relied on the Italian translation of Art. II(2) reading: "... una clausola compromissoria inserita in un contratto, o un compromesso, sottoscritti dalle parti o contenuti in uno scambio di lettere o di telegrammi."
205. It applies especially to the arbitral clause in a contract form or standard conditions, see
infra 11-2.4.3.2. Furthermore, the Supreme Court also requires the signatures of the parties in
the case of the second alternative of Art. II(2), see infra at n. 214-216.
206. The case concerned an action for damages caused to the goods during the transport, by
the holder of the bill of lading against the Italian shipping agent of the carrier. The latter objected to the jurisdiction of the Italian courts on the basis of the arbitral clause in the bill of
lading. The Court found that the signature of the Indian agent of the carrier was not sufficient
since his power of attorney was not in writing as prescribed by Art. 1392 of the Italian Civil
Code (see infra 11-2.4.4). The Court further found that the signature of the other party, the
shipper, was also lacking. The shipper had endorsed the bill of lading. In the opinion of the
Court, this is not a substitute for the signature, since the endorsement concerns only a transfer
of title, whilst the signature is necessary for the formation of the contract.
207. See for an arbitral clause in sales or purchase confirmation, infra 11-2.4.2.
194.
Enforcemen l' Agreement
The sending of an unsigned sales or purchase confirmation t o the other party with
the request to sign (!) and return it appears indeed to happen in practice: Court of
First Instance of Zweibriicken: a Dutch company sold t o a German firm a certain
quantity of hides, which sale was confinned by a sales confirmation including an
arbitral clause sent by the Dutch company t o the German firm. From the facts of
the case it appeared that only the German firm had signed the sales confirmation.
Held - arbitral clause complies with Article II(2) as the sales confirmation had been
returned t o the Dutch company.208 Court of Appeal of Basle: the duplicate of the
sales confirmation including an arbitral clause contained only the signature of the
pai-ty who had retuined it. Held - axbitral clause complies with Article I I ( ~ ) . ~ See
O~
also the decision of the Italian Supreme Court discussed in $1-2.2.3(c) above.
It has been said that, as in the case of the first alternative, the signatures of both parties are required in the case of the second alternative
An interpretation insisting that the signature requirement also
be met in the case of the second alternative is not warranted. In the
first place, the requirement of signatures of both sides is expressly provided by Article II(2) only in respect of the first alternative. In the
second place, a contract signed by both parties expresses the,mutual intentions and consent of the parties; the signatures certify their knowledge and acceptance. This is different in the case of a contract concluded by an exchange of communications in writing. By means of the exchange, the parties inform each other of their respective intentions, and
if the communications correspond, the exchange itself constitutes a
mutuality of consent. It is therefore the exchange in writing which
certifies ltnowledge and acceptance. In this context the absence of one
or both signatures does not nullify the acceptance; it merely removes
the certainty that a communication emanates from a party. The latter
can, however, be proven or assumed.
Several courts have affirmed the interpretation that in the case of the
second alternative the signatures of the parties are not requiredq211The
Court of First Instance of the Canton Geneva may be quoted as an
example 212 :
208. Landgericht of Zweibrucken, January 11, 1978 (F.R. Germ. no. 16).
209. Obergericht of Basle, June 3,1971 (Switz. no. 5).
210. Ph. Fouchard, L'arbitrage commercial international (Paris 1 9 6 3 , who states at no.
140:
"... [L] a lettre mbme du texte exige un Bcrit sign6 par les deux parties, qu'il s'agisse d'un
contrat plus large, d'un cornpromis, ou d'un &changede correspondance, quelle qu'en soit
la forme." (emphasis added)
In the same sense, E. Mezger in his case comment in Revue critique de droit international privC
(1962) p. 132 at p. 137.
21 1. E.g., Landgericht of Hamburg, December 19, 1967 (F.R. Germ. no. 4); Landgericht of
Zweibrucken, January 11, 1978 (F.R. Germ. no. 16); Rechtbank of Rotterdam, June 26,
1970, Israel Chemicals & Phosphates Ltd. v. N.V. Algemene Oliehandel (Neth. no. I), but see
infra at n. 222-224; U.S. District Court of New York, S.D., April 3, 1979, Beromun A.G. v.
Societi Industriale Agricola "Tresse" (U.S, no. 29).
212. Tribunal of the Canton Geneva (6th Chamber), June 8,1967, J.A. van Walsum N.V. v.
Chevalines S.A. (Switz. no. 1).
195
"Article II(2) . . . as the petitioner has rightly argued . . .has introduced a new
fonn which is distinct from the written form under Swiss law which requires the
signatures of the pal-ties (Art. 13 of the Code of Obligations). This innovation, as
explained by the petitioner, was necessitated by the needs of international trade
practice which uses telexes and telegrams rather than letters and contracts [embodied in a single document]."
In the same sense the Court of Appeal of Basle which observed
213
"Although' the agreement contahed only the signature of the respondent, it

cannot be said that the claimant Limited himself to an oral agreement. Rather,
the agreement was concluded by an exchange of letters in accordance with
Article II(2) . . . . In the opinion of the Court, an exchange of letters does not
only exist when letters signed by the parties can be produced, but also when a
written manifestation of both parties can be submitted. If the New Yorls Convention had requixed a signature in the case of letters, then it would have declared so expressly."
The Italian Supreme Court seems to have changed its mind on the
question whether the signatures of both parties are required in the case
of the second alternative of Article II(2). In a decision of 197 1, the
Supreme Court observed
:
""[IJt can only be infened from the last part of paragraph 2 [of Art, .I%
th.hat, ]
when the copy delivered to the other party of a telegram, which by its nature,
does not contain the personal and autographed signature (cf., Art. 2705 of the
Civil Code),' and similarly, when in the case of an agreement concluded by an exchange sf letters, both letters, or either of them, do not contain such signature,
the requirement of a written form must be considered to be met if the personal
origin of the reciprocal as well as specific declarations in writing can be ascertained in some other way."
This statement was almost literally repeated in a decision of 1976.215

However, in a decision of 1978, the formal validity of an arbitral clause
in a sales confirmation was denied because, although having been exchanged between the parties, the confirmation did not contain the
signature of one of the parties."16 From what has been argued above, it
is evident that this interpretation is too restrictive.
Agnesi (Italy no. 5).
215. Corte di Cassazione (Sez. Un.), May 25, 1976, no. 1877, Begro B.V. v. Voccia (Italy
no. 17).
.
(Italy
216. Corte di Cassazione (Sez. Un.), September 18, 1978, no. 4167, ~ u t e r a ' v Pagnan
no. 33), discussed supra at n. 182. Compare with Corte di Cassazione (Sez. Un.), November 19,
1978, no. 6017, ~etall~esellschaft
A.G. v. Motosi and I.P.I.M. (Italy no. 39), in which the
Court held that the arbitral clause in question complied with Art. IZ(3) of the Convention because the contract, prepared by Metallgesellschaft, was signed and accepted by Motosi and
returned to the German company.
196
11-2-33 Orally and tacit& accepted arbitration agreements excluded

As regards the first alternative of Article II(2), the fact that the text
of this provision explicitly requires that the contract containing an
arbitral clause or the submission agreement be signed, excludes an oral
or tacit acceptance. As no court has had any difficulty with this case,
we need not consider i t further.
In the case of the second alternative of Article II(2), an oral or tacit
acceptance is also excluded. It is essential for the exchange requirement
that both the proposal to arbitrate and the acceptance thereof are communicated between the parties. The text of Article II(2) does not leave
any doubt on this point either: an exchange of letters or telegrams cannot mean anything else than that they are forwarded and replied t o in
written form. It means that an arbitration agreement which is proposed
in writing and accepted orally or tacitly does not constitute an exchange of letters or telegrams.
The history of Article II(2) confirms that the drafters of the Convention wished t o exclude the oral or tacit acceptance of a written proposal t o arbitrate. Not without commercial sense, the Dutch delegate had
proposed to add to Article II(2): "confirmation in writing by one of
the parties [which is kept] without contestation by the other party".217
The New Yorlc Conference was, however, open to the objections of the
English and U.S.S.R. delegate to this proposal and rejected it."l" Although the Dutch proposal concerned only the case of a sales or purchase confirmation, the voting of the delegates indicates that they
deemed only the written acceptance of a proposal to arbitrate sufficient
for the written form of the arbitration agreement.
It is the question of tacit acceptance, in particular, which has come
up in practice in relation to the second alternative of Article II(2). With
the exception of a Dutch Court of First Instance, the courts have unanimously affirmed that the tacit acceptance does not meet the written
form requirement of Article II(2). Most of these cases involved a sales
or purchase confirmation which will be discussed later.2Pg
A decision of the Court of Appeal of Naples exemplifies clearly the
distinction between tacit acceptance and acceptance in writing.220Four
217. UN DOC E/CONF.26/L.54. The proposal was based on Art. 2(2) of the Convention on
Jurisdiction of the Selected Forum in the Case of International Sales of Goods, The Hague,
April 15, 1958 (not entered into force), translation in 5 American Journal of Comparative Law
p. 65 3, which reads:
"When an oral sale includes designation of the forum, such designation is valid only if it has
been expressed or confirmed by a declaration in writing by one of the parties or by a broker,
without having been contested."
21 8. UN DOC E/CONF.26/SR.22.
219. See infia 11-2.4.2.
220. Corte di Apello of Naples, December 13, 1974, Frey et al. v. Cuccaro e Figli (Italy no.
11).
197
Austrian firms had sold and delivered to an Italian firm a certain quantity of wood. All four contracts contained an arbitral clause providing
for arbitration at the Vienna Commodity Exchange. For some undisclosed reason, the Italian buyer had signed and returned only two contracts. When the Italian buyer delayed payment for the wood delivered
to him, the four Austrian sellers initiated arbitration at the Vienna
Commodity Exchange and obtained four awards in their favour. The
Court of Appeal of Naples granted enforcement of the two awards
which were based on the returned contracts, but refused to enforce the
other two which were based on the contracts which had not been
returned. The Court held that the arbitral clause in the non-returned
contracts did not meet the written form of Article II(2) as no exchange
had occurred.
This decision of the Court of Appeal of Naples also makes clear the
difference between the validity of the contract in general and the formal validity of the arbitral clause contained therein under Article II(2)
of the Convention. The arbitral tribunal in this case had held that the
two non-returned contracts had also been validly concluded as the
Italian buyer had taken delivery of the wood which amounted to tacit
acceptance. The arbitral tribunal apparently considered that this also
applied t o the arbitral clause as it was presumably of the opinion that it
was not concerned with Article II(2) of the C ~ n v e n t i o n . ~However,
~'
when it came t o enforcement abroad, the Convention became applicable, and, irrespective of the validity of the other conditions in the
contract under some domestic law, the arbitral clause was invalid as it
did not meet the requirements of Article II(2).
The sole exception to the unanimous judicial affirmation that tacit acceptance does
not comply with Article II(2) is a decision of the Court of First Instance of Rotterdam.222 By a purchase order dated August 3 1, 1969, an Israeli buyer requested a
Dutch seller to deliver a certain quantity of a chemical product. The Dutch seller
confirmed the sale by the sending of a contract which included "Special Conditions". One of the Special Conditions was a clause providing for arbitration in Rotterdam. The Israeli buyer received the contract on September 16, 1969, but did not
return the copy as was requested. Upon arrival of the goods in Haifa, the Israeli
buyer complained about the quality. Thereafter, he requested the dissolution of the
contract and damages before the Court of First Instance of Rotterdam. The Dutch
seller objected to the competence of the Court on the basis of the arbitral clause in
the contract sent by him to the Israeli buyer.
The Court accepted the objection of the Dutch seller, reasoning that there was a
consent of the parties as regards the goods, price, quality, time and manner of delivery, and payment; the silence of the Israeli buyer in respect of the arbitral clause
must be considered as a behaviour on the ground of which his acceptance of the
221. See for the question whether international arbitrators should observe Art. II(2) of the
Convention, supra 11-2.2.4.
222. Rechtbank of Rotterdam, June 26, 1970, Israel Chemical 8r Phosphates Ltd. v. N.V.
Algemene Oliehandel (Neth. no. 1).
198
arbitral clause must be deemed to exist. The Court continued by observing that the
arbitral clause was conspicuously printed, and that the Israeli buyer had only
objected to it two months after the delivery. It held that under these circumstances
the arbitral clause complied with Article II(2) of the Convention on the ground that
this provision should interpreted according to its "spirit 9,.223
Although the "spirit" of Article II(2) should indeed be taken into account in
interpreting this provision, the decision of the Rotterdam Court is not in conformity with either the text of Article II(2) or the intent of its drafters. The sales confirmation should have been accepted in writing in this case, either by returning the
copy or by some other means. The Court seems t o have been influenced by Dutch
law which indeed regards an arbitral clause valid in the above circumstances. The
decision has, therefore, been rightly
It may be questioned, however, whether the consequence of the exchange in writing requirement of Article II(2) that tacit acceptance is
excluded conforms to the current practices of international trade. One
may especially think of the situation where a contract including an
arbitral clause is kept by a party without objection and that party performs under the contract. In such a case the conduct of the party
indicates that he has accepted the contract. He can therefore be diemed
to have consented to the arbitral clause in the contract, or, at least, the
other party may be deemed t o be entitled to expect so, In these circumstances the international business community generally regards the
silent party as bound by the conditions set forth in the contract and
considers it a ''sham" when a party later objects for purely formalistic
reasons. It must, however, be observed that this is not generally accepted for a sales and purchase confirmation sent after the conclusion of
the transaction and in which conditions appear which have not bzen
mentioned previously.
Whatever the generally accepted view of the international business
community may be, Article II(2) would not allow a more liberal interpretation which would include the case of tacit acceptance. Nevertheless, this rather rigid aspect of Article II(2) may be migitated if the requirement of the written acceptance is liberally interpreted; in other
words it should be readily assumed that a written acceptance is communicated. This interpretation will be elaborated in the following Subsection.
11-2.3.4 Acceptance in writing of a contract containing an arbitral
clause in the case of an exchange.
In the foregoing we saw that an arbitral clause contained in a contract which is orally concluded, or orally or tacitly accepted, does not
meet the written form requirement of Article II(2) of the Convention.
In these cases there is neither an arbitral clause in a contract, the con223. The opinion of the Court in respect of Art. II(2) is quoted supra at n. 202.
224. P. Sanders, "Commentary", in Yearbook Vol. I (1976) p. 207 at p. 211. It may be
1
,
I
i
1
1
1
'
199
tract being signed by the parties (the first alternative) nor an arbitral
clause in a contract contained in an exchange of letters or telegrams
(the second alternative).
Leaving aside the first alternative, the second alternative of the exchange implies that there must be a written proposal to arbitrate which
proposal is accepted in writing by the other party, and that acceptance
is communicated t o the party who made the proposal to arbitrate. The
question to be considered here is when the requirement of such communication of acceptance in writing as imposed by the second alternative of Article II(2) can be deemed to be fulfilled. The question is essentially how specific the acceptance in writing should be.
The acceptance need not relate specifically to the arbitral clause in
the contract. In 11-2.3.2. supm it was explained that in the case of the
first alternative the signatures for the contract including the arbitral
clause as a whole were sufficient and that the arbitral claused need
not be signed specifically. In the case of the second alternative the
signatures are not essential, but the same principle must be deemed t o apply by analogy. The acceptance in writing by whatever means
need not be directed specifically to the arbitral clause in the contract; the acceptance of the contract as a whole fulfils the exchange
requirement of Article lII(2). If it were otherwise, it would mean that in
all cases of a contract including an arbitral clause concluded by correspondence, the arbitral clause should be specifically approved in writing. It is obvious that this was never the intent of the drafters of the
Convention who actually wished to enlarge the possibilities of agreeing
to arbitration in the international context by adding the second alternative.
Accordingly, the view of the majority of the Italian courts that an
arbitral clause in contract forms or standard conditions should be
specifically approved in writing is contrary to Article II(2). These decisions are either an application of Articles 1341 and 1342 of the Italian
Civil Code or are influenced by these Articles. They will be considered
in a separate P a r a g r a ~ h . ~ ~ '
The Court of First Instance of the Canton Geneva seems also to
be of the opinion that a specific acceptance of the arbitral clause is
needed for the fulfilment of the second alternative of Article II(2).226
added that this case is not to be viewed from the angle of estoppel (see supra 11-2.2.3(c)) on
the ground that the Israeli buyer had objected to the arbitral clause only two months after
delivery. Estoppel in the sense as used in the text assumes that the party has acted specifically
in respect of the arbitral clause as if he considered himself bound by it.
225. See infre 11-2.4.3.2 concerning Arts. 1341 and 1342 of the Italian Civil Code.
226. Tribunal of the Canton Geneva (6th Chamber), June 8,1967, J.A. van Walsum N.V. v.
Chevalines S.A. (Switz. no. I), comment by M. Schwartz, "La forme Bcrite de l'art. 11, al. 2 de
la Convention de New-York pour la reconnaissance et I'exBcution des sentences arbitrales
BtrangBres, du 10 juin 1958", 64 Revue Suisse de Jurisprudence (1968) p. 49.
200
Although the case involved a sales confirmation, which will be dealt with later 227,
it may be discussed in the context of the present question of specific acceptance
because the requirements of Article II(2) for an arbitral clause in a contract are
basically the same as for an arbitral clause in a confirmation.
A Swiss company had reached an oral agreement with a Dutch company concerning a certain quantity of Argentinean horse meat. Thereupon, on June 3, 1966,
the Dutch seller sent a sales confirmation containing an arbitral clause providing for
arbitration in Rotterdam under the Arbitration Rules of the Netherlands Oils, Fats
and Oilseeds Association (NOFOTA). The Swiss buyer did not answer the sales confirmation, but on June 15, 1966, he opened a letter of credit in favour of the Dutch
seller. When a dispute arose, the Swiss buyer refused to appear before the arbitral
tribunal, asserting that it lacked competence as he had not agreed to arbitration. In
the award the arbitral tribunal held that it did have competence on the ground that
the Swiss buyer had kept the sales confirmation without objection. It awarded in
favour of the Dutch seller.
The Court of First Instance of the Canton Geneva refused the enforcement of
the award essentially because the sales confirmation had not been accepted in
writing by the Swiss buyer, and hence no exchange in writing within the meaning of
Article II(2) had occurred. To this point the reasoning of the Geneva Court can be
considered to be in conformity with the prevailing interpretation of Article II(2).
The Court added, however, that the latest document was the letter of credit, which
document, as the Court said, "did not mention the arbitral clause or the arbitral
tribunal." This gives rise to the question what the Court would have held if the
letter of credit had referred to the sales confirmation in general. Would the Court
have considered this sufficient for compliance with Article II(2)? This would
probably not have been the case because the Court did not mention that after the
sending of the sales confirmation, an exchange of telexes had taken place between
the parties. From this exchange it appeared that the Swiss buyer considered himself
bound by the sales confirmation. The arbitral clause was, however, not specifically
mentioned in this exchange.228The omission to mention these facts has presumably
been prompted by the view that a specific acceptance of the arbitral clause is needed for the arbitral clause. As explained before, this view must be deemed inconsistent with Article II(2) for the second alternative as, it may be repeated, it is the
case for the first alternative.229
It has been advanced that the decision of the Geneva Court is an application of
the separability doctrine according to which the arbitral clause is an agreement independent from the contract in which it is contained.230 This opinion carries the
separability doctrine too far. The doctrine has been developed in order to preclude
that the invalidity of the main contract would entail the invalidity of the arbitral
clause contained therein. From the purely theoretical point of view, two agreements are indeed concluded: the main contract and the arbitral clause in that contract. But this does not require that consent be given twice. It has never been
doubted that consent for the main contract signifies at the same time consent for
the arbitral clause.
227. See infra 11-2.4.2.

228. This fact was revealed by Schwartz, supra at n. 226, p. 49 and 51.
229. In the same critical sense, P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarlceit (Tiibingen 1975) no. 347. Schwartz, supra at n. 226, p. 5 1, considered the decision "tr8s satisfaisant".
230. Schwartz, supra at n. 226, p. 51. See for the separability of the arbitral clause, supra
11-1.3.1.2.
201
The specific acceptance of the arbitral clause not being necessary,

when can the exchange then be deemed accomplished by written
acceptance? Obviously there is such acceptance if a party writes, cables
or telexes back stating explicitly that he accepts the contract or confirmation. Similarly, if a party returns a duplicate of the same, the exchange of Article II(2) can be held to be completed.
But we may go further. It frequently occurs that whilst a contract or
confirmation including an arbitral clause is not explicitly accepted in
writing as such, the other party refers to it in a subsequent letter, telegram, telex, invoice, letter of credit, etc. Such a corresponding declaration in writing may also be considered as a completion of the exchange
in writing within the meaning of Article II(2). It is on this point where
an interpretation according to the
of Article II(2) may be justified. The text of Article II(2) itself would not preclude such interpretation. It could result in the upholding of the formal validity of the arbitration agreement in a greater number of cases under the Convention,
and thus help to mitigate the rather demanding requirements of its Article II(2).
The courts have so far paid little attention to this aspect of the exchange in writing under Article II(2). One of the few cases in support of
the above interpretation is a decision of the Court of Appeal of
Florence, which, like several other Italian courts of appeal, has shown
itself to be more Convention-minded than the highest C0urt.2~' The case
involved the following facts. Bobbie Brooks from Ohio had bought
from the Italian wool factory Walter Banci a certain quantity of textiles
by three purchase orders which included a clause providing for arbitration in Ohio according to the Arbitration Rules of the American Arbitration Association. The invoices directed t o Bobbie Brooks were
made by Walter Banci and referred specifically t o the numbers of the
purchase orders.
When a dispute evolved about the quality and the quantity of the
i
wool delivered, Bobbie Brooks started arbitration, but Walter B a n ~refused t o participate. The award was made in favour of Bobbie Brooks.
Before the Court of Appeal of Florence, Walter Banci opposed the
request for enforcement, inter alia, on the ground that he had not
agreed to arbitration. The Court of Appeal held that the contrary was
true: the invoices originating from Walter Banci mentioned specifically
the numbers of the purchase orders. The Court considered that this
231. Corte di Appello of Florence, October 8, 1977, Bobbie Brooks Inc. v. Lanificio Walter
Banci S.a.S. (Italy no. 29). It should, however, be observed that, apparently for "security's
sake" but nevertheless improperly, the Court considered the formal validity of the arbitral
clause also under United States law. The Corte di Cassazione in this case (Italy no. 40) held that
Art. II(2) was inapplicable because it concerned the enforcement of an award; see infra 11-4.1.3.3.
See for another example of the pro-Convention attitude of certain Italian courts of appeal,
supra at n. 161-162.
202
1i
constituted an exchange of documents within the meaning of Article

II(2) of the Convention.
The view of the Court of Appeal of Florence reflects an interpretation which takes due account of the reality of international trade. The
Court does not require a specific acceptance of the arbitral clause. Nor
does the Court require an explicit acceptance of the document containing tlze arbitral clause - i.e., the purchase orders. It regards the indication of the numbers of the purchase orders on the invoices communicated to the other party as a sufficient written manifestation of the will
to be bound by the conditions contained in the purchase orders, including the provision for arbitration.
It may be added that some international arbitrators have interpreted Article II(2) in
the same liberal sense. An illustrative example is an award rendered under the aus. ~ ~March 8,
pices of the Netherlands Hide and Leather Exchanges ~ s s o c i a t i o n On
1979, a Dutch company had sold, through its Italian agent, 5.000 calf-skins to an
Italian company, to be delivered in March-Apd 1979. On the same day the Dutch
seller sent a sales confirmation identified by a number. The confirmation contained
the essentials of the agreement as well as the provision :for arbitration "in Rotterdam as per the terms of the [Netherlands Hide and Leather exchange^']^^ and refeued
further to the conditions of the International Hide & Skin Conxract No. 1. The
Italian buyer did not return a copy of the sales confirmation. On April 5, 1979, he
sent a telex to the agents of the Dutch seller in which he refened to the number of
the sales confirmation and asked to postpone the shipment for two months as he
had no storage available for the skins. After a further exchange of telexes, the
Italian buyer refused to take delivery and asserted that he was not bound by the
sales confirmation as he had not returned it. The arbitrators rejected this assertion.
As regards the arbitral clause in the sales confirmation, the arbitrators observed that
"the arbitral clause must be considered as being contained in an exchange of letters
or telegrams and is therefore valid according to Article II(2)".
11-2.3.5
Thesubmission agreement
The foregoing Sub-sections were concerned mainly with the formal

validity pursuant to Article II(2) of the clause in a contract to submit
future disputes to arbitration. The question when a submission agreement, by which an already existing dispute is submitted to arbitration,
complies with Article II(2) was mentioned only incidentally because almost all cases reported under the Convention concerned the arbitral
clause. Submission agreements are concluded relatively rarely in prac-
232. Award of December 3, 1979, published in Tijdschrift voor Arbitrage (Neth.) (1981 no.
1) p. 13, award no. 5. See for the question whether international arbitrators should observe Art.
II(2) of the Convention, supra 11-2.2.4. In the same sense award of October 30, 1980, published in Tijdschrift voor Arbitrage (1980 no. 6) p. 169, award no. 40, in which the arbitrators held
that Art. II(2) was complied with because the party who contested the formal validity of the
arbitral clause contained in the contract had referred to the contract number in a subsequent
cable. See text quoted supra at n. 195.
203
tice; consequently, arbitral clauses, being one of the terms of a contract, are open to more problems.
As noted before, the Convention follows the modern trend not to
distinguish between the arbitral clause and the submission agreement
and puts both types of arbitration agreement on the same footing.233
By the same reasoning, the observations made in the faregoing Subsections apply t o the submission agreement in those cases where they
are relevant for this type of arbitration agreement. It means, in essence,
that the submission agreement must either be signed by both parties, or
be concluded by an exchange of written communications. An orally
concluded submission agreement, or a written submission agreement
which is orally or tacitly accepted, does not comply with Article II(2).
One 07 the rare cases in which the conclusion of aGbmission agreement has been questioned
under the Convention concerned the second
alternative of a conclusion by an exchange of letters. The case was decided by the Court of First Instance of
A German buyer and a French seller had a dispute with respect to a transaction in
wool products. By two letters dated December 5, 1964, and Februmy 5, 1965, the
French seller mentioned "international arbitration9'. In a subsequent letter, dated
April 1, 1965, the French seller referred to "International Wool Arbitration9'. On
June 14, 1965, the German buyer wrote back: ". . . We have no other possibility
than to go to arbitration. You have already proposed this possibility in your letter
of December 5, 1964. We, from our side, are prepwed to do so."
Pursuant to Article 111 of the London International Wool Arbitration Agreement, arbitration must take place in the country of the seller, which was in this case
France. In this connection the International Wool Arbitration Agreement refers to
the "Arbitration Rules Concerning the Application of the Arbitral Procedure in
France". When the French seller initiated arbitration at the Arbitral Tribunal of the
Central Wool Committee in Paris in conformity with these Arbitration Rules, the
German buyer refused to participate, arguing that he had not agreed to this specific
type of arbitration.
He used the same argument for opposing, before the Court of First Instance of
Bremen, the enforcement of the award made in favow of the French seller. The
Court rejected the kgument of the German buyer by stating that:
"It appears unequivocally from the context that 'international arbitration'
means the International Arbitral Tribunal of the Central Wool Committee in
Paris . . . . The respondent has agreed in his letter of June 14, 1965, with the
proposal of the claimant to resort to arbitration at the Central Wool Committee.
It is tme that the respondent referred to 'an arbitration' in this letter. However,
it cannot be inferred therefrom, as the respondent maintains, that they had
merely agreed to go to some arbitral tribunal on which they still would have to
agree. The respondent has agreed by refening to the letter of December 5, 1964,
to resort to the arbitral tribunal proposed therein .".
Although one can agree with the result, the reasoning of the Bremen Court is not
..
233. See supra 11-1.2.2 ("Actual Submission to Arbitration Not Required").

234. Landgericht of Bremen, June 8, 1967 (F.R. Germ. no. 3). See for another case involving a submission agreement, Oberster Gerichtshof, November 17, 19'71 (Austria no. 2),
discussed infra at n. 237.
204.
entirely satisfying. In fact, the German buyer agreed to the proposal contained in
the letter of December 5, 1964, which, according to its wording, referred to international asbitration in general only. The German buyer did not refer expressly to
the letter of April 1, 1965, in which a specific reference was made to international
wool arbitration. Of course, the argument of the Gelman buyer was weak: both
pwties were conversant with wool trade and well knew what was meant by arbitration in their trade. The Court could have said so explicitly, instead of using
vague words like "the context". On the other hand, the Court was probably rigM in
not mentioning the non-objection to the letter of April 1, 1965, in which reference
was made to international wool arbitration. This could have been considered as to
amount to a tacit acceptance which is excluded from Article II(2) of the New York
Convention.
11-2.4
Spedfic Cases
\
11-2.4.1 Exchange of telexes

It is generally accepted that the expression in Article II(2) "contained in an exchange of letters or telegrams" should be interpreted broadly
as t o also comprise other means of communication, especially telexes."' This interpretation is justified by the already mentioned purpose
for which the second alternative was added t o Article II(2) of taking account of the current practices of concluding contracts in international
trade. It is further clarified in the first part of Article I(2)(a) of the
European Convention of 1961 which, as noted, is almost identical to
Article II(2) of the New York Convention, as it states "contained in an
exchange of letters, telegrams, or in a communication by teleprinter"
(emphasis added).236
The question whether telexes are t o be considered as included in
Article II(2) of the Convention has been dealt with by the Austrian Supreme
The case involved a submission agreement between a
Swiss and an Austrian party concluded by an exchange of telexes, providing for arbitration at the Vienna Commodity Exchange. The
Austrian party asserted that under Austrian law an exchange of telexes
is not sufficient for the written form of the arbitration agreement.238
After having determined that the arbitration agreement fell under the
Convention as it had an international character and that the form of the
arbitration agreement was exclusively governed by Article II(2), the
235. K.-H. Schwab, Schiedsgerichtsbarkeit, 3d ed. (Munich 1979) p. 345; Th. Bertheau, Das
New Yorker Abkommen vom 10. Juni 1958 iiber die Anerkennung und Vollstreckung ausllndischer Schiedsspriiche (Winterthur 1965) p. 3 1 n. 10; P. Schlosser, Das Recht der InternationaZen privaten Schiedsgerichtsbarlceit (Tiibingen 1975) no. 343, who retracted explicitly his earlier view that domestic law should determine this question (at n. 3); G. Gaja, "Introduction", in
New York Convention (Dobbs Ferry 1978-1980) I.B.3 and authors cited at n. 45.
236. See text t o supra n. 164-165.
238. This is indeed the case under Austrian law, see W. Melis, "National Report Austria", in
1
1
I
I
1
Court held that telexes were to be equated to telegrams. In this connection the Court referred to the above-mentioned Article I(2)(a) of the
European Convention of 196 1. 2 3 9
There are other means of communication, not mentioned by Article
'EI(2). which are to be considered on the same basis as telexes, by
which an exchange in writing within the meaning of Article II(2) can be
achieved. This would apply, for instance, to telecopiers and computer
networks. So far no court has dealt with these other means of communication in relation to Article II(2).
11-2.4.2
Sakes and purchase coafirmation
1
I
I
I
As we have aheady encountered the sales or purchase confinnation

at various places in this Part, we may be relatively brief in discussing
this specific case of Article II(2). Nevertheless, a separate discussion is
necessary because of the particularities of the confirmation and the important role it plays in international trade.
The use of the sales or purchase confirmation is widespread in international trade, especially the commodity branch. It is quite common
that the parties reach an oral agreement by telephone on the essentials
of the transaction, and that thereafter the seller or buyer sends a confirmation of the transaction in which the essentials are reduced to writing.
Invariably the confirmation also contains, or refers to 240, the other
conditions of sale or purchase which may include an arbitral clause.
This has given rise t o the question, dealt with in a fairly large number of
court decisions, of when the arbitral clause in the confirmation meets
Article II(2) of the Convention.
Basically, as far as the arbitral clause in the confirmation is concerned, it must comply with the formal requirements of Article II(2) just as
an arbitral clause in an ordinary contract must do. For the confirmation
it means that either
- the first alternative: the same confirmation is signed by both parties
(see 11-2.3.2 supra); or
- the second alternative: the duplicate is returned whether signed or
not (see 11-2.3.2 and 3 supra); or
- the second alternative: the confirmation is subsequently accepted by
means of another communication in writing (see 11-2.3.4 supra).
A classic scenario for the confirmation is that a duplicate is enclosed with the request to sign and return it, but that the latter is not
239. The Tribunal of the Canton Geneva (6th Chamber), June 8, 1967, J.A. van Walsum
N.V. v. Chevalines S.A. (Switz, no. 1) considered it self-evident that Art. II(2) includes an exchange of telexes as it referred to it without discussion, see text of decision quoted supra at n.
212. See also the award discussed supra at 11. 232.
240. See for the question of incorporation by reference, infra 11-2.4.3.3.
done, whilst no objection is made to the conditions in the confirmation

either."' National laws differ on the question whether this silence by
the other party in regard to the conditions can be equated to an acceptance thereof. A distinction is sometimes made between the case where
the transaction is subsequently performed and where it is not, and between the case where the parties are accustomed to contract on the
basis of the same conditions and where the transaction is an one-off
deal, but these distinctions axe not generally a c c e ~ t e d . " ~
Whatever may be the binding force of the other conditions in the
confirmation under the applicable law, the arbitral clause does not
comply in this case with the written form as required by Article II(2)
of the Convention as a tacit acceptance is not sufficient for compliance
with Article II(2). This also applies, of course, to an oral acceptance.
Similarly, if the parties agreed upon certain conditions including an
arbitral clause when concluding the transaction orally, and a party subsequently sends a confirmation containing these conditions, but the
confirmation is not accepted in writing by the other party, the arbitral
clause does not meet Article II(2).
It may be recalled that one of the few discussions at the New York
Conference concerning Article II(2) had precisely as object the confirmation. The Conference rejected the proposal to add to Article II(2)
"confirmation in writing by one of the parties [which is Itept] without
contestation by the other party"."3 It makes unequivocally clear the
intent of the drafters of the Convention to exclude from Article II(2)
the formal validity of an arbitral clause in a confirmation which is not
accepted in writing.
The rule that an arbitral clause in a confirmation in respect of which
the recipient has remained silent does not comply with Article II(2) of
the Convention is almost universally affirmed by the courts. The only
exception is the Court of First Instance of Rotterdam, which decision
has been discussed beforeeW4The courts also decided for non-compliance with Article II(2) in those cases where the party who had not
reacted to the confirmation, had performed under the agreement.
241. Another classic scenario is that each party sends his own confirmation with differing
conditions. This problem is known as the "battle of forms". As this problem has not yet come
up in relation with Art. II(2) of the Convention, it will not be discussed. It may be argued that
if the arbitral clauses in both confirmations conflict with each other, there is no acceptance in
writing for either clause, and Art. II(2) is not met in this case.
242. There exist only a few comparative studies on the problems posed by sales and purchase confirmations. They are dealt with passim in R. f Jhlessinger ed., Formation o f Contracts.
A Study of the Common Core of Legal Systems (Dobbs Ferry 1968). See also 0 . Sandrock ed.,
Handbuclz der Internutionalen Vertragsgestaltung (Heidelberg 1980) Vol. I, Part B, nos. 38-40,
83,108,119,135,144,149,152 and 161.
243. See supra n. 217-218.
244. Rechtbanlr of Rotterdam, June 26, 1970, Israel Chemicals & Phosphates Ltd. v. N.V.
Algemene Oliehandel (Neth. no. I ) , discussed supra at n. 222-224.
Enforcement Agreenzen l-
207
However, in the case where the confirmation itself, or the duplicate,

was found not to have been returned, few courts investigated whether
mention was made of the confirmation in subsequent communications in
writing emanating from the other party, such as a letter, telex, invoice,
'
in 11-2.3.4. supra, the latter can
letter of credit e t ~ . ~AS~ explained
also be deemed to complete the exchange in writing of Article II(2).
Examples of the court decisions concerning Article II(2) and the confirmation including an arbitral clause are the following.
Court of First Instance of Zweibriicken: without having signed, Dutch seller sent
sales confirmation to Gesman buyer who signed and returned it. Held - arbitral
clause in confirmation complies with Article I I ( ~ ) . ~ ~ ~
Court of Appeal of Diisseldorf: sales confirmation sent by Dutch seller was not
returned nor objected to by German buyer who toolr delivery and subsequently
complained about the inferior quality of the goods. The parties had regularly done
business on the basis of the same sales confirmation. Held - the arbitral clause in
~ same was held in
the sales confixmation does not comply with Article I I ( ~ ) . %The
an identical case by the Court of First Instance of ~ u n i c h . ~ "
Court of First Instance of Biella: sales confirmation sent by French seller was
signed and returned by Italian buyer who took partial delivery but refused the
rernaining part. Held - arbitral clause in sales confirmation complies with Article
11(2).7-~~
German Supreme Court: Schlussbrief (sales note) of the Vienna Commodity Exchange sent by Austrian seller was not returned nor objected to by German buyer
who took delivery and subsequently complained about the inferior quality of
the goods. Held - the arbitral clause in the Schlussbrief does not comply with the
first part of Article I(2)(a) of the European Convention of 196 1 (which is almost
identical to Art. II(2) of the New York convention)."'
It should be observed that the German Supreme Court considered in this case
the Schlussbrief (sales note) as synonymous with the sales confirmation which is
called in Gesman Best~tigungsschreiben.It appeas>however, that under Austrian
law a Schlussbrief is legally different from a sales confirmation in that the former
is constitutive whilst the latter is ~ o n f i r m a t i v e . ~ ~ ~
See also the Court of First Instance of Geneva which is discussed in 11-2.3.4
above.
245. In this sense, for example, the award of December 3, 1979, of the Netherlands Hides
and Skins Exchanges, discussed supra at n. 232.
246. Landgericht of Zweibriicken, January 11, 1978 (F.R. Germ. no. 16).
247. Oberlandesgericht of Diisseldorf, November 8, 1971 (F.R. Germ, no. 8).
248. Landgericht of Munich, June 20, 1978 (F.R. Germ. no. 19).
249. Tribunale of Biella, February 7, 1978, Filatura Abate Giuseppe e Figli S.a.S. V . .A.
Paul Azais et Cie (Italy
31).
250. Bundesgerichtshof, May 25, 1970 (F.R.
no. 7). See for the text of Art. I(2)(a)
of the European Convention of 196 1,supra at n. 164-165.
231. See E. Mezger in his comment-on this decision, "Du consentement en matidre 'd'electio
juris' et de clause cornpromissoire", 50 Revue critique de droit international privd (1971) p. 37
at p. 58. See also W. Melis, "National Report Austria", in Yearbook Vol. IV (1979) p. 21 at
p. 24.
em.
208
TI-2.4.3 Standard conditions

11-2.4.3.1
Autonomous interpretation of Article II(2)
Currently the great bulk of international transactions is concluded on

the basis of standard conditions. This applies especially to the international commodity trade, transport, construction, shipbuilding, and insurance. The phenomenon has led certain authors to regard standard
conditions as a major source for an emerging new lex mercatoria.252
Despite the widespread use of standard conditions in international
trade, it is surprising how little has been published regarding their legal
It contrasts sharply with the abundance of literature relating to standard conditions as used in the domestic field and which is
especially concerned with consumer protection. The absence of literature concerning the legal aspects of standard conditions in international
trade is also felt for the question of standard conditions and Article
II(2) of the Convention. Although it has been subject to a fairly large
number of court decisions in the C.ontracting States, few authors have
paid attention to the question when an arbitral clause in standard
conditions can be deemed to comply with Article II(2).254
For the purposes of this question, the appearance of standard conditions may be roughly divided into three categories:
(i) in the body of the contract;
(ii) on the back of the contract;
(iii) in a separate document.
Under the national laws these categories have two main questionable
issues. The first question, pertaining to all three categories, is that
various national laws treat standard conditions as adhesion contracts
and accordingly, subject them, or certain clauses contained in them,
such as the arbitral clause, t o specific requirements. The second question, pertaining to categories (ii) and (iii), is the incorporation by reference. Generally, a reference in the body of the contract is required;
25 2. 9. ICropholler, Internationales Einheitsrecht - Allgemeine Lehren (Tubingen 1975)
p. 119; C. Schmitthoff, "The Unification or Harmonization of Law by Means of Standard Contracts and General Conditions", 17 International and Comparative Law Quarterly (1968) p.
551. A problem is that still no uniformity of standard conditions exists in the various branches
of international trade; see for a survey of the attempts to unify standard conditions, C. Schmitthoff, The Export Trade, 7th ed. (London 1979) p. 41.
253. The authors cited in supra n. 252 deal mainly with standard conditions in international trade as a possibility for a new lex mercatoria. One of the few comparative studies regarding
standard conditions is the dissertation of E. Hondius, Standaardvoorwaarden [Standard Conditions] (Deventer 1978), with a summary in English at p. 845. See also 0. Sandrock, Handbuch
der Internationalen Vertragsgestaltung (Heidelberg 1980) Vol. I, Part B, nos. 31-179.
254. As far as it could be researched, the only author who has dealt with this problem to a
certain extent is P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit
(Tubingen 1975) no. 348. A few other authors have made some incidental observations regarding this problem; they will be mentioned where appropriate.
209
however, the national laws differ on the degree of specificity required

for the reference clause in order to incorporate effectively the standard
conditions, and especially the arbitral clause contained in them, into
the contract.
The text of Article II(2) is silent in respect of an arbitral clause in
standard conditions. Must the two aforementioned questions then be
resolved on the basis of some muncipal law, or is an at~tonomous
interpretation of Article II(2) for both questions possible? The following arguments favour such an autonomous interpretation.
At the outset it should be observed that if municipal law were to
?lay a role in resolving both questions, the unifying effect of Article
[I(%)in regard to the form of the arbitration agreement would be greatly undermined since the vast majority of international contracts is
sased on standard conditions. The interference of municipal laws would
;reate much uncertainty as they differ on the question of the treating
)f standard conditions as adhesion contracts and the degree of speci'icity required for the reference clause. This uncertainty would be
~ggravatedby the question which municipal law is to be applied for
.esolving both questions. 'It is obvious that such interference is undesir~ble.Moreover, it may be deemed unnecessary, as will be explained for
:ach question individually.
As far as the treatment of standard conditions as adhesion contracts
s concerned (i.e., the first question), for which reason several national
aws impose specific requirements for standard conditions or certain
:lauses contained therein such as the arbitral clause, Article II(2) can be
aid t o meet, t o a large extent, the concerns of the national legislators.
The specific requirements under the national laws are generally enacted
o protect the weaker party and to ensure that he has the freedom to
:onsent. Article II(2) itself poses fairly demanding requirements for the
orm of the arbitration agreement, as it requires either a contract signed
by both parties or an exchange in writing in which case the acceptance
oo must be in writing. It offers therefore, in principle, an opportunity
or a party to reject a proposed arbitral clause contained in standard
onditions. Of course, the opportunity must also really exist. Thus,
vhere the contract refers t o standard conditions including an arbitral
lause t o be found in another document, the other party must be able
o check the reference. We will subsequently refer to this aspect.
Article II(2) may therefore be interpreted autonomously as far as the
dhesion contract aspect is concerned. It means that if the otherwise
pplicable law poses a requirement which is more demanding than
article II(2) because of the adhesion contract character of the arbitral
lause in standard conditions, that requirement is superseded by Article
[(2). This applies especially to the requirement of a specific approval in
lriting of an arbitral clause in contract forms and standard conditions
s imposed by Articles I. 341 and 1342 of the Italian Civil Code. In fact,
210
Enforcement Agreemen l"
the question of Article II(2) and standard conditions including an

arbitral clause as adhesion contract has only come up before the courts
in relation with these provisions of Italian law, which will be examined
separately in the following Paragraph. The Italian courts do not adhere
t o an autonomous interpretation on this question, but resort to municipal law, On the other hand, one United States court overruled the
applicability of these provisions of Italian law. 25s Other courts have not
yet had an occasion to deal with the question of the adhesion contract
character of standard conditions including an arbitral clause in relation
to Article II(2).
The second question of the incorporation of the arbitral clause in the
standard conditions into the body of the contract may also be solved
by means of an autonomous interpretation of Article TI(%).The text of
Article II(2) of the Convention implies that a reference to the standard
conditions including an arbitral clause is required in any case. This is
made clear by the wording "an arbitral clause in a contract . . . or contained in an exchange of letters of telegrams". If there is no reference,
the arbitral clause cannot be considered to be "inp9the contract. Accordingly, some sort of a reference in the body of the contract to the
standard conditions is, in any case, necessary for compliance with
Article II(2). Thus where some municipal laws regard mere custom
sufficient for the applicability of the arbitral clause in the standard
conditions
this does not comply with the written form requirement
of Article II(2).
The question is, however, in which cases the reference can be deemed
sufficient for compliance with Article IT(2). The national laws differ in
this respect as to the degree of specificity needed for the reference
clause. They range from a general reference to a reiteration of the arbitral clause in the reference clause. The courts have been generally vague
as to whether this question is to be solved on the basis of some municipal law or an interpretation of Article II(2).
The autonomous interpretation for the second question could be
based on the purpose of the written form requirement of Article II(2).
As explained earlier, that purpose is to ensure that a party is aware that
he is agreeing to arbitration. For determining when this purpose is fulfilled in the case of a reference to standard conditions including an arbitral clause, the test could then be whether the reference can be
checked by a party exercising reasonable care.257
255. U.S. District Court for New Yorlr, S.D., December 2, 1977, Ferrara S.p.A. V. United
Grain Growers Ltd. (U.S. no. 20), discussed at infra n. 274.
256. This is for example the case under Dutch law.
257. A similar text has been adopted by the European Court of Justice in respect of the
form of the forum selection agreement as required by Art. 17(1) of the European Convention
on Jurisdiction and Enforcement of Civil and Commercial Judgments, signed at Brussels, September 27, 1968. Art. 17 requires a forum selection agreement to be concluded "in writing or
211
The second question of incorporation by reference will be examined

in more detail for the categories (ii) and (iii) of standard conditions in
11-2.4.3.3 infra. Before making this examination, we will first deal with
the famous Articles 1341 and 134-2of the Italian Civil Code, which provisions relate to both questions.
11-2.4.3.2
Articles 1341 and 1342 o f the Italian Civil Code
Article 1341 of the Italian Civil Code provides:

""1 Le condizioni generali di contratto predisposte da uno dei contraenti sono efficaci nei confronti dell'
altro, se a1 momento della conclusione
del contratto questi le ha conosciute o
avrebbe dovuto conoscerle usando l'ordinaria diligenza.
2. In ogni caso non hanno effetto,
se non sono specificarnente approvate
per iscritto, le condizioni che stabiliscono, a favore di colui che le ha predisposte, limitazioni di responsabilitl,
facolth di recedere dal contratto o di
sospel~derne19esecuzione, owero sanciscono a carico de119altro contraente
decadenze, limitazioni alla facoltd di
opporre eccezioni, restrizioni alla
Libertd contrattuale nei rapporti con
terzi, tadta groproga o z-hnovazione
del contratto, clausole cornpromissorie
o deroghe alla competenza dell'autori t l giudiziaria."
"1. The standard conditions prepared in advance by one of the parties

are effective as to the other if at the
time of the conclusion of the contract
the latter knew of them or should have
known of them by using ordincay diligence.
2. In any case conditions are ineffective unless specifically approved in
writing, which establish, in favour of
him who has prepared them in advance, Limitations on liability, the
power of withdrawing from the contract or of suspending its performance, or which stipulate to the detriment of the other party time limits,
Limitations on his power to raise defences, restrictions on his contractual
freedom in relations with thhd parties,
tacit extension or renewal of the contract, arbitral clauses or clauses by
which the competence of the judiciary
is derogated from."
"1. Nei contratti conclusi mediante

la sottosclrizione di moduli o f o m u laxi, predisposti per disciplinare in maniera uniforme determinati rapporti
contrattuali, le clausole aggiunte al
modulo o al formulario prevalgono su
quelle del modulo o del formulario
qualora simo hcompatibili con esse,
mche se queste ultime non sono state
cancellate.
"'1In those contracts concluded by

means of signing models or forms
which are prepared in advance in order
to regulate certain contractual relations in a uniform manner, the clauses
added to the model or form prevail
over those of the model or form in
case,!the latter are incompatible with
the former, even if the latter have not
been striken off.
by an oral agreement confirmed in writing". See the judgment of the Court of December 14,
1976, in the case 24/76, Colzani v. Riiwa, quoted inpa at n. 309.
212
2. Si osserva inoltre la disposizione del second0 comma del19articolo

precedente."
2. In addition, the provisions of the

second paragraph of the preceding
Article are applicable." 258
Article 134 1 regulates in the first paragraph the inore general problem of incorporation of standard conditions. In the second paragraph it
regulates the more specific problem of so-called "one-sided clauses",
one of which is the arbitral clause. It requires that the one-sided clauses
be specifically approved in writing. Article 1342 regulates in the first
paragraph that for contract forms added clauses prevail over the printed
ones. The second paragraph provides that in contract forms, too, the
one-sided clauses must be specifically approved in writing.259
According t o its text Article 1341 applies only if a party has prepared the standard conditions in advance. The Italian courts have interpreted this as referring to the situation where one of the parties uses
standard conditions for the generality of his customers. The conditions
need therefore not be prepared by himself; what is decisive is that he
uses the same standard conditions for his customers.260This is different
for Article 1342 under which it is immaterial whether the contract
form is used by a party as his standard conditions.
Important for Article II(2) of the Convention is that Articles 1341
and f 342 require that an arbitral clause in standard conditions or
in contract forms be specifically approved in writing. According to the
Italian courts this requirement implies two signatures: one for the contract as a whole and another relating specifically to the acceptance of
258. These provisions have been taken over literally in Libyan law: Arts. 150-151 of the AlQanun a1 Madani [Civil Code1 of 1953, cited by Hondius, supra n. 253, at p. 176; see also A.
Buzghaia "National Report Libya", in Yearbook Vol. IV (1979) p. 148 at p. 149. In this connection Art. 750 of the Egyptian Civil Code of 1948 may also be quoted: "The following
clauses are null and void: ... 3. The arbitral clause contained in general conditions on a printed
policy, which is not in the form of a special agreement distinct from the general conditions."
(cited by Hondius at p. 173).
259. See generally, G. Gorla, "Standard Conditions and Form Contracts in Italian Law9', 11
American Journal of Comparative Law (1962) p. 1. This is one of the sparse articles in English
language which could be found on Arts. 1341 and 1342 of the Italian Civil Code. The Italian
literature is abundant which is mainly due to (or has led to?) the flood of court decisions to
which Arts. 1341 and 1342 have given rise. A survey of the court decisions can be found in R.
Nicolb and M. Stella Richter, Rassegna di giurisprudenza sul Codice civile, Book IV, Part I1
(Arts. 1321-1410), 2nd ed. by A. de Martini and G. Ruoppolo (Milan 1971).
260. Gorla, supra n. 259 at p. 4 and 8. In this sense must be understood the observation of
the Italian Supreme Court in its decision no. 3989 of May 12, 1977, Scherk Enterprises A.G. v.
Soci6ti des Grandes Marques (Italy no. 28) that the specific written approval of an arbitral
clause is required by Art. 1341 if the arbitral clause is contained in standard conditions which
have been fixed in advance by one of the parties in order to regulate in a uniform manner an
unlimited series of contractual relationships. The same applies to Corte di Appello of Milan,
May 3, 1977, Renault Jacquinet v. Sicea (Italy no. 27) in which it was observed that the standard conditions in question (i.e., Grain Contract No. 14 of Paris) had not been determined by
one of the parties, in which case there exists an adhesion contract as envisaged by Art. 1341,
but by a third person, and hence the specific approval in writing requirement was not apglicable.
213
the arbitral clause.261 There are several exceptions to this formal

requirement.262We may mention two of them. The first exception we
have seen: the specific approval in writing requirement is not applicable
if the contract is concluded abroad.263The second exception is that 110
specific approval in writing is required if the contract results from negotiations between the parties.264
The specific approval in writing as required by Articles 1341 and
1342 of the Italian Civil Code is evidently more demanding than Article
II(2) of the Convention, which requires only a signature for the contract as a whole, or even no signature at all in the case of a contract
concluded by an exchange of letters or telegrams.265 This raises the
question whether the specific approval in writing requirement of Articles 1341 and 1342 for an arbitral clause in standard conditions and
contract forms is superseded by Article II(2) of the Convention. The
majority of the Italian courts, and especially the Italian Supreme Court,
answer the question in the negative. They consider this question from
the angle of the applicable law as determined by the conflict rules contained in Article 26 of the Italian General Provisions of Law.266 After
what has been argued in the foregoing it will be clear that, in my
opinion, the answer must be deemed t o be affirmative. In 11-2.2.2
supra it was argued that Article II(2) constitutes an internationally uniform rule for the form of the arbitration agreement. It would be superfluous t o repeat here the Italian decisions and my arguments against
them mentioned in that Sub-section. Furthermore, the underlying policy of Articles 1341 and 1342 to remedy the abuse of standard conditions and of contract forms can be deemed to be largely met by the
rather demanding requirements for the written form of the arbitration
agreement of Article II(2). That aspect has been discussed in the
preceding Paragraph. The view of the majority of the Italian courts that
261. Gorla, supra at n. 259, p. 12.
262. See for a list of these exceptions, Gorla, supra n. 259, p. 15.
263. See supra 11-2.2.2.
264. E.g., Corte di Cassazione (Sez. I), April 18, 1978, no. 1842, Eugenio Menaguale v.
Intercommerce (Italy no. 25): specific approval in writing requirement of Art. 1341 was held
not to be applicable because the contract resulted from negotiations between the parties and
both parties had cooperated in the selection of documents to be referred to. Corte di Cassazione (Sez. Un.), May 12, 1977, no. 3989, Scherk Enterprises A.G. v. SociBt6 des Grandes
Marques (Italy no. 28): specific approval in writing requirement of Art. 1341 was held not to
be applicable, inter ali9, on the ground that the license agreement in question resulted from
negotiations of the parties in view of a specific contract which could be inferred from the
nature of the agreement, the relationship between the parties and the manner in which the
negotiations took place, especially the correspondence between the parties.
265. See for the question of signatures and Art. II(2), supra 11-2.3.2.
266. See for Art. 26 of the General Provisions of Law, supra 11-2.2.2. There are, however,
some indications that the Italian Supreme Court may be prepared to accept the exclusivity of
'Art. II(2) for the formal validity of the arbitration agreement, see Corte di Cassazione (Sez.
Un.), September 11, 1979, no. 4746, Lloyd Continental v. S.p.A. Navigaziolle Alga (Italy no.
38), discussed supra at n. 159.
214
Articles 1341 and 1342 are not superseded by Article lI(2) has been
criticized by many authors and has been qualified as 66parochia199."64
It is said that the Italian Supreme Court has not ruled on the question but has limited itself to affirming that Articles 1341 and 1342 do
not apply t o contracts concluded abroad."' However, there is at least
one decision in .which the Supreme Court can be deemed to have
applied Articles 1341 and 1342; it is its decision of 1977 in the matter
of Begro v. Voccia.269
The Italian firm Voccia sued another Italian firm, Lamberti, before the Italian
courts for non-delivery of a certain quantity of potatoes. Lamberti requested in
turn the joinder of its supplier, the Dutch firm Begro. Begro objected to the competence of the Italian courts to hear the dispute on the basis of the arbitral clause contained in the printed contract form concluded between it and Lamberti. The case
was finally brought before the Supreme Court on the jurisdictional issue. The latter
Court determined first that the contract was concluded in the Netherlands, which,
in the opinion of the Court, would entail the applicability of Dutch law by virtue
of Article 26 of the General Provisions of Law. However, the Court held that it had
t o apply Italian law as no proof of Dutch law had been submitted."' This part of
the reasoning can still be understood, albeit with disapproval, as Article II(2) must
be considered as superseding municipal law for questions regarding the form of the
arbitration agreement. Thereupon the Court referred t o its leading decision of 197 1
in which it was held that a general reference t o standard conditions including an
arbitral clause is not sufficient for compliance with Article II(2), but that a specific
reference t o the arbitral clause is needed.241 The Court then made a curious saltus:
it deduced from that easlier decision that an arbitral clause contained in a printed
contract must be specifically approved. The mention of the 1971 decision is, however, erroneous as that case concemed an arbitral clause in standard conditions t o
be found elsewhere, whilst the case before the Court concemed an wbitral clause in
a contract form. Although the Court did not mention Articles 1341 and 1342 of
the Italian Civil Code expressly in this part of its reasoning, the "error" can be
267. E.g., F. Berlingieri, "Note on the Enforcement in Italy of Foreign Arbitration Awards",
GAFTA Newsletter, December 1980, Annex I no. 2; G. Gaja, "Introduction", in New York
Convention (Dobbs Ferry 1978-1980) I.B.3 and authors cited at n. 49, See also U.S. District
Court of New York, S.D., December 2, 1977, Ferrara S.p.A. v. United Grain Growers Ltd.
(U.S. no. 20) in which the applicability of Arts. 1341 and 1342 was rejected and was characterized as parochial; see infra at n. 274.
268. G. Mirabelli, "Application of the New York Convention by the Italian Courts", in
269. Corte di Cassazione (Sez. Un.), May 25, 1976, no. 1877 (Italy no. 17). See also Corte
di Cassazione (Sez. Un.), September 11, 1979, no. 4746, Lloyd Continental v. S.p.A. Navigazione Alga (Italy no. 38), discussed supra at n. 159, and the two decisions mentioned in supra
n. 264.
270. "La legge olandese ... i: ignota a questa Corte Suprema ..." concluded the Court. That
is apparently different for German law: in its decision no. 272 of January 20, 1977, S.p.A.
Nosegno e Morando v. Bohne Friedrich und Co-Import-Export (Italy no. 23) the Court observed that an Italian court may take the steps it deems appropriate t o find the contents of a
foreign law if the parties fail to provide such information, and specified that it knew ex officio
that Sect. 1027 of the German Code of Civil Procedure prescribing the written form for the arbitration agreement does not apply to commercial parties; see for this case, infra at. n. 111.154.
Agnesi (Italy no. 5). Cf. infra at n. 282.
215
explained on1.y by the fact that the Court had these provisions of Italian law in
mind.
The 1977 decision of the Italian Supreme Court in the case Begro v.
Voccia reflects the confusion which reigns in the majority of Italian
courts in respect of an arbitral clause in standard conditions and contract forms and Article II(2) of the convention. The confusion stems
partially from the fact that Article 134,l of the Italian Civil Code
regulates at the same time the questions of incorporation of standard
conditions (in para. 1) and that of the adhesion character of an arbitral
clause included in standard conditions (in para. 2). Both questions are
solved by most of the Italian courts on the basis of municipal law, with
Italian law in the forefront. Thus, even if the specific approval in writing
requirement is held not t o be applicable because the contract is concluded abroad, the question of incorporation by reference is still resolved on the basis of Italian case law as developed in domestic cases under
Article 1341(1).
This confusion is again aggravated by the use of another notion of
Italian law in respect of both questions, that of the relatio (im)perfecta,
the meaning of which is difficult t o grasp.
On the one hand, it would mean that the reference clause in the contract must be
specific enough to establish a sufficient link between the contract and an exterior
arbitral clause. The Italian Supreme Court must apparently be understood in this
sense when it considered in a decision the question of a reference in a bill of lading
l o a charter p a t y including an arbitral clause under the notion of relatio perf e ~ t a On
. ~ the
~ ~other hand, it could also mean that a contract has been concluded
between the parties on equal footing. It is in this sense that the Italian Supreme
Court must apparently be understood when. it reasoned in another decision that the
contract was concluded per relationem perfectam as both parties had co-operated in
the selection of the documents to be refened to.2n
11-2.4.3.3
The question of incorporation by reference of the arbitral clause in

standard conditions into the body of the contract may be solved by an
autonomous interpretation of Article II(2) of the Convention. For this
question two categories of standard conditions may be distinguished:
(a) the standard conditions on the back of the contract, and
(b) those contained in a sepa.rate document.
272. Corte di Cassazione (Sez. Un.), April 8, 1975, no. 1269, Constantino Tomasos Ltd. v.
Sorveglianza S.I.P.A. (Italy no. 13).
273. Corte di Cassazione (Sez. I), April 18, 1978, no. 1842, Eugenio Menaguale v. Intercommerce (Italy no. 25), see supra n. 264. In this sense apparently also, Mirabelli, suprn at n.
268, p. 366.
216
(a) Standard conditions on the back o f the contract

If the standard conditions including an arbitral clause are printed on
the reverse side of the contract and a reference clause refers to these
conditions, the test for fulfilling the purpose of Article II(2) can be
deemed to be met. There must be a reference, but the reference may be
general and need not call specifik attention to the arbitral clause. The
fact that the conditions are printed on the back of the contract offers a
sufficient opportunity for a party to check the reference and to become
aware of the arbitral clause contained therein.
There are not many decisions in which the formal validity of the
arbitral clause included in standard conditions appearing on the back of
the contract has been questioned in connection with Article II(2) of the
Convention. One of the few courts is a District Court in New Y ~ r k . " ~
The case is interesting because the Court considered in fact both questions of standard conditions. Before the Court the Italian defendant
asserted that the arbitral clause included in the standard conditions on
the back of Contract No. 5 of the North American Export Grain Association (NAEGA 5) was not binding because it was not approved
specifically in writing as required by Articles 1341 and 1342 of the
Italian Civil Code, and that he had no knowledge of the arbitral clause
as this clause was neither disclosed nor mentioned during the negotiations. The conditions were referred to on the face of the'contract by
the legends "on the conditions and rules incorporated herein9' and <'see
conditions and rules on the other side". The New York Court brushed
aside the alleged applicability of the rule of Italian law. It quoted in this
connection the Supreme Court of the United States 275 :
"[Tlhe delegates to the Convention voiced frequent concern that courts oi
signatory countries in which an agreement to arbitrate is sought to be enforced
should not be permitted to decline enforcement of such agreements on the basis
of parochial views of their desirability or in a manner that would diminish the
mutually binding nature of the agreements."
As regards the assertion of the Italian party that he had no knowledge of the arbitral clause, the Court rejected this as follows:
"There is no doubt that the quoted legends on the face of NAEGA 5 are sufficient to give notice to a reasonably prudent person of the arbitration provisions
and other things appearing on the back."
This is one of the rare decisions involving the Convention in which

the test for fulfilling the purpose of Article II(2) in the case of a refer274. U.S. District Court of New York, S.D., December 2, 1977, Ferrara S.p.A. v. United
Grain Growers Ltd. (U.S. no. 20).
275. U.S. Supreme Court, June 17, 1974, Fritz Scherk v. Alberto Culver Comp. (U.S. no. 4).
217
ence t o standard conditions is stated in so many words. It is regrettable

that the Court did not link the observation with Article II(2) expressly.
Another case which may be mentioned is the decision of the Court
of Appeal of Florence.276The case concerned purchase orders which at
the bottom of the front-page referred to the conditions on the reverse
side by the words "subject to the conditions on the reverse side"
amongst which the arbitral clause figured. The Court found that this
met the written form of the arbitration agreement as required by Article II(2) of the Convention. In this connection the Court observed that
it was in accordance with the interpretation given by the Italian
Supreme Court that the written form of Article II(2) is complied with
if, in any manner, the arbitral clause is clearly mentioned.277 This
observation gives too much credit to the Italian Supreme Court which is
much stricter in interpreting Article II(2).
From the fact that a general reference to the standard conditions on
the back of the contract can be deemed to meet Article II(2), it follows
a fortiori that Article II(2) is also fulfilled if the body of the contract
contains an arbitral clause in short form (e.g., "Arbitration: London")
which is elaborated in the standard conditions on the reverse side, or if
the reference clause calls specific attention to the arbitral clause appearing on the back of the contract.
The Court of First Instance of Zweibribcken had no difficulty with this type of sit u a t i ~ n . ~The
' ~ Court upheld the formal validity of the arbitral clause under Article
II(2) in a case which concerned a sales confirmation containing the clause "Arbitration Rotterdam" with reference to the International Contract CIF/C&F/FOB for
Hides no. 15 and an arbitral clause appearing amongst the standard conditions
printed on the reverse side of the confirmation. Similarly, the Court of Appeal of
Naples upheld the formal validity of the arbitral clause under Article II(2) in a case
concerning the contract form of the International Council of Hide and Slcin
Shippers ~ s s o c i a t i o n The
.~~~
contract form mentioned on the front page that the
place of arbitration was London whilst the conditions on the reverse side contained
an elaborate arbitral clause.
{b) Standard conditions contained in a separate document

If the contract refers to standard conditions including an arbitral
clause embodied in a separate document, a distinction should be made
Banci S.a.S. (Italy no. 29), cf. supra at n. 231. The Court held Art. 1341 inapplicable as the
contract was concluded in the United States. The Corte di Cassazione in this case (Italy no. 40)
did not deal with the question of standard conditions.
277. The Court referred to Corte di Cassazione (Sez. Un.), December 13, 1971, no. 3620
[Italy no. 5), cf. infra at n. 282, and May 25, 1976, no. 1877 (Italy no. 17), cf. supra at n. 269.
279. Corte di Appello of Naples, February 20, 1975, Carters (Merchants) Ltd. v. Francesco
Ferraro (Italy no. 21): the Court held that Arts. 1341 and 1342 of the Italian Civil Code were
----a-
218
Enforcemen t Agreement
between the case where the'reference clause calls specific attention to

the arbitral clause in the conditions and where it does not.
A reference clause which specifically mentions the arbitral clause (for
example,
. . including the arbitral clause . . .") may be called a
specific reference. When there is a specific reference, the test for fulfilling the purpose of Article II(2) in the case.of standard conditions
can be deemed to be met as the other party is notified of the existence
of the arbitral clause and may be expected to check the reference.
Moreover, this can even be considered to comply with the text of
Article II(2) itself as the clause, short as it may be, is contained "inn"
the contract.
If, on the other hand, the reference clause in the contract is expressed in general terms only - which may be called a general reference the test must be deemed not t o be met. A party is then not notified of
the existence of the clause and is generally neither able nor expected to
check the reference.
The authors who have examined the question of Article II(2) and
standard conditions including an arbitral clause do not make the
above distinction for the category of standard conditions contained in a
separate document; they merely say that a reference to standard conditions t o be found elsewhere is insufficient for compliance with Article
II(2).280 Nevertheless, the court decisions reported on the Convention
so far point towards the distinction between a specific and a general
reference. It should be noted that few courts link the question of a
reference t o standard conditions including an arbitral clause to be
found in another document with Article II(2) in express terms. Therefore there is still considerable uncertainty regarding this problem.
At the outset it should be mentioned that one French court was even
more generous by implying that a general reference to standard conditions including an arbitral clause to be found in a separate document al~'
this situation
ready met Article II(2) of the C o n ~ e n t i o n . ~Considering
"".
superseded by Art. II(2) of the Convention and were in any case inapplicable because the
contract was concluded in England, see supra n. 161.
280. P. Schlosser , Das Recht der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen
1975) no. 348; H.-V. von Hulsen, Die Giiltigkeit von internationalen Schiedsvereinbarungen
(Berlin 1973) p. 59; K.-H. Schwab, Schiedsgerichtsbarkeit, 3d ed. (Munich 1979) p. 346.
281. Tribunal de grande instance (Commercial Chamber) of Strasbourg, October 9, 1970,
Animalfeeds International Corp. v. S.A. A. Becker et Cie (France no. 2). It may be mentioned
that the new French arbitration law (Decree no. 80-354 of May 14, 1980, Journal Officiel de
la Rkpublique Francaise of May 18, 1980, p. 1238, in force as of October 1, 1980) provides in
Art. 3(1): "The arbitral clause must, on pain of nullity, be stipulated in writing in the main
contract or in a document to which the main contract refers." ["La clause compromissoire
doit, $ peine de nullit6, etre stipulBe par Bcrit dans la convention principale ou dans un document auquel celle-ci se rkf2re."] (emphasis added). As far as it is known, this is the only law
which contains an express provision relating to an arbitral clause contained in another document.
219
the Court stated briefly

. . this arbitral tribunal was competent to
9
render the awards . . . .
On the other hand, the Italian Supreme Court has explicitly held tha-t
a general refernce is insufficient for compliance with Article II(2).282
The contract in question, concerning the sale of grain, referred in a
general way to Contract No. 27 of the London Corn Trade Association
(LCTA) which provides in clause 32 for arbitration in London. It may,
however, be observed that the Court's interpretation of Article II(2) of
the Convention that a general reference to standard conditions including an arbitral clause to be found elsewhere is insufficient "coincides"
with Italian law as may be seen from the following statement of the
Court:
"".
"The entry into force of the New Yorlr Convention has not introduced any
novelty in the Italian legal system as far as the constitutive written form [of the
asbitration agreement] ban-ing Italian jurisdiction is concerned in that it has a
strict meaning and excludes a conclusion by means of a general reference."
In a subsequent decision the Italian Supreme Court>has, however,

indicated that it may be prepared to accept the distinction between
specific and general reference.283 The case involved a general reference
in an insurance policy to the Rules of an underwriters association
including an arbitral clause - which Rules can be equated to standard
conditions. The Court held again that a general reference does not meet
I%(2),However, the Court added in an obiter dictum:
""Ithe present case [ the respondent] has not consented in writing to the arbitral clause. The consent is even not expressed by means of a simple reference
to the arbitral clause which could have shown that the clause had been brought
to the atteqtion of [the respondent] and that he has consented to it."
Mention may also be made of the Court of Appeal of Milan in which it was held
sufficient that the sales confirmation referred explicitly to the arbitral clause in the
standard condition^.^^
In another Italian case the contract itself contained an arbitral clause and made
further reference to Contract No. 80 of the London Corn Trade Association which
Agnesi (Italy no. 5). Although the Court observed in this case too that the form of the arbitration agreement has to be judged under the law determined according to Art. 26 of the Italian
General Provisions of Law, it did not decide on the applicability of the specific approval in
writing requirement of Art. 1341 of the Italian Civil Code. It may be recalled that confusingly
enough the reference problem under Italian law is also based on Art. 1341 (its first paragraph
and case law decided thereunder); see supra 11-2.4.3.2.
283. Corte di Cassazione (Sez. Un.), April 22, 1976, no. 1439, Junakovic v. Seagull Shipping
Comp. (Italy no. 15). The Court did not mention Art. 1341 of the Italian Civil Code, but it
referred to its earlier decision cited supra n. 282.
284. Corte di Appello of Milan, May 3, 1977, Renault Jacquinet v. Sicea (Italy no. 27).
220
includes Arbitration Rules. The Italian Supreme Court considered that the arbitral
clause was duly in writing as it was contained in the contract itself and that the
reference had as sole object to complete the arbitral clause by a procedural regulat i ~ n , ~Tho
" reference to Arbitration Rules is a different type from the one under
discussion. The reference in an arbitral clause to Arbitration Rules is undoubtedly
sufficient to incorporate the Rules into the arbitral clause, but it has little to do
with the question of standard conditions and Article II(2).
The case of a reference in a bill of lading to the terms and conditions

of a charter party may also be considered as pertaining to the category
of standard conditions embodied in another document. It is therefore
justified to mention in the present context an English court which held
that the arbitral clause in the charter party was validly incorporated in
the bill of lading because the reference clause in the bill of lading specifically mentioned the arbitral clause.286 It should be noted, however,
that, although the case arose under the Convention, the Court did not
link the question of the arbitral clause with Article II(2) of the Convention.
As regards the question of incorporation of an arbitral clause contained in a charter
party into a bill of lading, English law seems to be somewhat more refined: the incorporation can be achieved either by express words in the bill of lading itself (e.g.,
"including the arbitral clause") or by express words in the charter party (e.g., "an
dispute arising out of this charter party or any bill of lading issued thereunder"). 28y
This is different from United States law under which a general reference in the
bill of lading to the charter party has been held sufficient provided that the arbitral
clause in the charter party is not so worded as to preclude its application to the bill
of lading dispute (e.g., that the clause applies only to disputes between owners and
charterers). For example, the District Court in New York had to consider the case
where the reference clause read "All conditions and exceptions of the charter party
being considered embodied in this bill of lading" and the arbitral clause in the charter party "Any and all differences and disputes of whatsoever nature arising out of
this charter . . .". The Court held that this effectively incorporated the arbitral
clause into the bill of lading.288
A further distinction for the case ,of a general reference may be

derived from the circumstances whether or not the standard conditions
including the arbitral clause have been communicated to the other
party. In the case of a specific reference the party proposing the inclu285. Corte di Cassazione (Sez. Un.), September 18, 1978, no. 4167, Butera v. Pagnan
(Italy no. 33): the formal validity of the arbitral clause was, however, rejected because the
signature of one of the parties under the contract was lacking, see supra at n. 182.
286. Admiralty Court (Queen's Bench Division), January 13, 1978, The Rena K (U.K. no. 6).
287. See A. Walton, Russell on the Law of Arbitration, 19th ed. (London 1979) pp. 50-52
and cases cited.
288. U.S. District Court of New York, S.D., August 18, 1977, Coastal States Trading Inc. v.
Zenith Navigation S.A. (U.S. no. 19): the New York Convention was held inapplicable in this
case, see supra at n.I.164. See for a'comparison on this question between English and United
States law, J. McMahon, "The Hague Rules and Incorporation of Charter Party Arbitration
Clauses Into Bills of Lading", 2 Journal of Maritime Law & Commerce (1970) p. 1 at p. 6 . See
Enforcenzen t Agreement
22 1
sion of the standard conditions is not obliged to send the conditions;

the other party is notified of the existence of the arbitral clause and it
is up t o him to request the standard conditions. That may be expected
from a person exercising reasonable care. In the case of a general reference such duty should not be assigned to the other party as far as the
arbitral clause is concerned, because he is not notified of the existence
of that clause. However, if in the case of a general reference the standard conditions have been communicated to the other party, this situation has much resemblance with standard conditions appearing on the
back of the contract. As seen above, in this case a general reference is
sufficient for compliance with Article II(2) of the Convention. There is
one court decision in support of this qualification to the rule that a
general reference to standard conditions contained in another document does not meet the written form requirement of Article II(2): the
German Supreme Court held that the written form of Article II(2) was
fulfilled in a case where the contract made only a general reference to
the standard conditions including an arbitral clause, but which conditions had been added to the contract as an annex.289
The foregoing observation brings us on the problem of a continuing
trading relationship. Especially in the international commodity trade
it is quite common that the same parties regularly do business with each
other on the basis of the same standard conditions including an arbitral
clause. The applicability of the standard conditions by custom only is,
of course, not sufficient for compliance with Article II(2) in respect of
the formal validity of the arbitral clause contained in the standard conditions. A reference to the conditions is required for each transaction in
any case. However, if a party already has the standard conditions in his
possession, there is no need each time to call specific attention to the
arbitral clause in the reference clause.
The question of a continuing trading relationship involving a general
reference t o standard conditions, like the other questions connected
with the continuing trading relationship and Article II(2), has not yet
been dealt with by the courts. The interpretation advanced above that a
general reference to standard conditions including an arbitral clause to
be found in a separate document which is already in the possession of
the other party would comply with Article II(2) as regards the formal
validity of the arbitral clause, would especially be appropriate for the
case of a continuing trading relationship. It could alleviate the rather
rigid formalism of a special reference in a number of cases. It would
also be in conformity with practice, as parties belonging to a certain
also P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeif (Tubingen

1975) no. 351.
222
trade are well aware that their disputes are to be solved by arbitration
as provided in the relevant standard conditions.
For the question of continuing relationship it may be worthy t o quote from a decision of the European Court of Justice, in which it was held in respect of the written
form required by Article 1'9 of the European Judgments Convention of 1968 for
the forum selection agreement that
"The fact that the purchaser does not raise any objections against a confirmation
issued unilaterally by the other party does not amount to acceptance on his
part of the clause conferring jurisdiction unless the oral agreement comes w i t h h
the framework of a continuing trading relationship between the parties which is
based on the general conditions of one of them, and those conditions contain a
clause conferring j u r i ~ d i c t i o n . " ~ ~
Another problem which has not yet come up before the courts in
cases arisen under the Convention is the reference in telexes or telegrams to standard conditions including an arbitral clause. It frequently
occurs that by an exchange of telexes, and to a lesser extent telegrams,
the parties agree on the essentials of the contract - goods, price, time
and manner of delivery and payment - and that they further agree that
the transaction is governed by certain standard conditions. A general
reference would not suffice for the formal validity of the arbitral clause
in the standard conditions under Article II(2), unless, if the interpretation advanced above is accepted, the standard conditions are in the possession of the other party. A solution may then be to make a specific
reference in the telex by mentioning specifically "including the arbitral
clause" or similar words. It is doubtful, however, whether, in the case
of a telex, merchants are prepared to do so in practice. Another solution could be to send a sales or purchase confirmation subsequently in
which the arbitral clause is contained or referred to. The confirmation
must then be accepted in writing.
11-2.4.4 Agency
Agency relationships have posed a particular question for the written
form of the arbitration agreement as required by Article II(2) of the
C o n ~ e n t i o n . ~There
~ ' is no particular question for the arbitration agreement as such - usually an arbitral clause in a contract - which is concluded through an agent between his principal and a third party. Such
290. Court of Justice of the European Communities, Judgment of December 14, 1976, in
the case 25/76, Segoura v. Bonakdarian, infra n. 310.
291. Agency in international relations is a notoriously difficult subject matter. This is mainly due to the differences in the various national legal systems in respect of both the theories on
agency and the types of agent. See generally, C. Schmitthoff, "Agency in International Law",
Recueil des Cours, 1970-Vol. I, p. 115; 0. Sandrock, Handbuck der Internationalen Vertragsgestaltung (Heidelberg 1980) Vol. I1 Part D.
223
arbitration agreement must comply with Article TI(2) exactly .as an

arbitration agreement concluded between parties without an intermediate agent. The particular question is whether the authorization granted
by the principal to the agent t o conclude the arbitration agreement on
his behalf should also be in writing.
A few laws require that the authorization take the same form as the
act for which it is intended. This is, for instance, the case for Articles
21 6 and 21 '7 of the Greek Civil Code and Article 1392 of the Italian
Civil Code.
Article 21 6 of the Creek Civil Code provides:
"The right of representation is given by the relevant contract (power of attor~pey).'~
Article 2 1'7 provides:
"The power of attorney is given by declaration to the authorized person or to
the person with whom the contract is undertaken. The declaration, if something
else is not to be deduced, is subjected to the form which is required for the contract to which the power of attorney relate^."'^
"The power of attorney has no effect if it is not made in accordance with the
form prescribed for the contract which the representative has to conclude."293
The provisions mean that if the authorization relates to the conclusion of an arbitration agreement which falls under the New York Convention, the authorization too must be in written form. Thus, because
of the law governing the form of the authorization, Article II(2) has a
"spin-off" effect on the form of the authorization.
Must the "spin-off" effectof Article II(2) on the form of the authorization also be deemed to exist irrespective of the law applicable to the
form of the authorization? This seems to be the view of the Court of
First Instance of
The facts of this case will be given later;
for the present question it may suffice to mention that in an additional
observation the Court opined that in order to safeguard the interests of
the parties, the requirement of the written form for the arbitration
agreement of Article II(2) should be extended to the authorization to
conclude an arbitration agreement on the principal's behalf as otherwise
"by means of a mere oral grant of authorization the form required by
Article II(2) of the Convention could be circumvented."
This reasoning does not sound convincing. One wonders to what
interest of the parties it may be that the written form requirement of
292. Translation kindly supplied by Me Antonias Dimolitsa, Athens.

293. Translation by the author.
294. Landgericht of Hamburg, March 16,1977 (F.R. Germ. no. 13).
224
Article II(2) of the Convention be extended to the authorization. Few

laws require that the authorization take the same form as the act for
which it is intended; most laws do not pose this requirement. For instance, in English law the authorization t o conclude an arbitration
agreement may be granted orally, but the arbitration agreement must
be in writing2" Why then should this be different if the arbitration
agreement falls under the New York Convention? As the arbitration
agreement itself must comply with Article II(2), it is difficult to conceive how its written form requirement could be "circumvented" by an
oral authorization. It would pose an additional burden for concluding
contracts in international trade in which it is quite usual to grant
authorization orally.
The view of the Hamburg Court that Article II(2) extends to the
form of the authorization is not shared by the other courts. They limit
themselves t o the inquiry whether some municipal law prescribes that
the authorization take the same form as the act for which it is intended.
Confusingly enough, the Court of First Instance of Hamburg made also
this inquiry as, before making the additional observation that Article
II(2) extends to the form of the authorization, the Court determined
whether the law governing the authorization contained a ;equired as to
its-form.
The courts, however, appear to differ on the question under which
law the form of the authorization is to be determined.296
The case before the above-mentioned Court of First Instance of Hamburg concerned
two contracts concerning canned prunes concluded through the mediation of an
Italian firm between an Italian seller and a German buyer. The contracts provided
for arbitration at the Hamburg Commodity Exchange. Only the German buyer returned the contracts to the Italian intermediary. Contrary to the Court of Appeal in
this case, the Court of First Instance considered the Italian intermediary as acting
as agent on behalf of the Italian seller.297The Court reasoned that no clear conflict
rule exists in F.R. Germany for determining the law governing the validity of an
authorization. It resorted then to the method of connecting factors and found that
295. A. Walton, Russell on the Law of Arbitration, 19th ed. (London 1979) p. 37.
296. The Hague Convention on the Law Applicable t o Agency of 1978 in Art. 2(b) excludes
from its field of application requirements as to the form. The Explanatory Report by I. Karsten
observes in this respect under para. 128:
"The exclusion of the formal requirements by article 2(b) is intended to leave the court free
to apply its own rules of private international law to questions of form. Depending on these
rules, the court may, in order to uphold the validity of the transaction, hold that the formal
requirements may be satisfied by compliance either with the law applicable under the Convention or with another law, such as the lex loci actus."
The Convention and the Explanatory Report are published in Hague Conference on Private
International Law ed., Actes et documents, Tome IV "Agency" (The Hague 1979).
297. The Oberlandesgericht of Hamburg, September 22, 1978 (F.R. Germ. no. 20) considered the Italian intermediary as a commercial broker (Handelsmakler) and qualified the
contracts in question as broker's notes (Schlussnoten), see infra at n. 304.
Enforcemen t Agreement-
225
they pointed to Italian law, mainly because the intermediary had his business establishment in Italy. Hence, Article 1392 of the Italian Civil Code was applicable.
Consequently, as Article II(2) requires that the arbitration agreement be in writing,
the authorization to conclude the arbitration agreement should also have been in
writing. The Court found that the Italian seller had not given a written authorization.
The Italian coirts are of a different opinion. They resort to the conflict rules
contained in Article 26 of the General Provisions of Law 2 9 8 , and hold that the
place where the arbitration agreement is concluded determines whether a specific
form for the authorization is needed. For example, an Italian charterer and an
Italian shipowner concluded a charter party agreement including an arbitral clause,
which agreement was concluded on behalf of the shipowner by his agent. The
Italian Supreme Court found that the charter party agreement had been concluded
in Paris and that, by virtue of Article 26 of the General Provisions of Law, French
law was applicable to the form of the authorization to conclude the arbitration
agreement. French law does not contain a provision similar to Article 1392 of the
Italian Civil Code, but allows an oral authorization which may be proven by testimony. The Court held that the oral authorization given by the shipowner to his
agent was sufficient for concluding the arbitration agreement in respect of the charter party.299
The Greek Supreme Court is less clear in respect of the present question.3a0
Sesler, the New York agent for the Greek export firm Agrimpex, had sold for the
latter t o the New York import firm Braun a quantity of raisins. Braun and
Agrimpex differed thereafter as to what should be done first: the opening of the
letter of credit' by Braun or the sending of a sample by & by Agrimpex. Braun
initiated arbitration in accordance with the arbitral clause in the contract signed by
him and Sesler. The Greek Supreme Court refused to enforce the award rendered in
New York in favour of Braun. After having referred to Article II(2) of the Convention, the Court argued that Sesler had not received a written authorization from his
principal t o conclude an arbitration agreement as is required by Articles 216 and
2 17 of the Greek Civil Code.
The decision does not reveal why the Court deemed Greek law applicable
to the form of the authorization. One would have expected that New York State
law was applicable at New York was the site of the business establishment of the
agent .301
298. See for Art. 26 of the Italian General Provision of Law, supra 11-2.2.2.
299. Corte di Cassazione (Sez. Un.), January 25, 1977, no. 361, Total v. Achillo Lauro
(Italy no. 26). See also Corte di Cassazione (Sez. Un.), February 27, 1970, no. 470, Louis
Dreyfuss Corp. v. Oriana (Italy no. 2): charter party including an arbitral clause concluded between Italian shipowner and United States charterer through the intermediary of the latter's
agent in London; held, the oral grant of authority to the charterer's agent was sufficient as
English law does not provide for a requirement similar to Art. 1392 of the Italian Civil Code.
Corte di Cassazione (Sez. Un.), April 8, 1975, no. 1269, Constatino Tomasos v. Sorveglianza
(Italy no. 13): same decision in respect of charter party including an arbitral clause concluded
in London. Corte di Cassazione (Sez. Un.), May 18, 1978, no. 2392, Atlas General Timbers
S.p.A. v. Concordia Line S.p.A. (Italy no. 35): bill of lading including an arbitral clause was
signed by the agent of the carrier; held, although the bill of lading was issued in India, no
proof of Indian law was given by the party relying thereon, and consequently Italian law is
applicable; the signature of the agent is not sufficient since his authorization was not in writing
as prescribed by Art. 1392 of the Italian Civil Code.
300. Areios Pagos, January 14, 1977, no. 8811977, Agrimpex S.A. v. J.F. Braun & Sons Inc.
(Greece no. 5).
301. The Supreme Court added that the lack of the written authorization could have been
cured if the parties had appeared before the arbitrators and participated in the proceedings
226
The New Yorlc Convention does not provide a solution for the
question under which law the form of the authorization to conclude an
arbitration agreement is to be judged. The ground for refusal mentioned
in Article V(l)(a) that "the parties to the agreement . . . were, under
the law applicable to them, under some incapacity9' does not help very
much as it leaves the determination of the law applicable to a party to
the conflict rules of the forum.302Moreover, it is doubtful whether this
provision could even be taken into consideration for the case of an
agent who is not duly authorized. Consequently, questions regarding
the authorization of an agent, including its form, have to be judged
under the applicable law determined on the basis of the conflict rules of
the forum. As seen above, these conflict rules vary from country to
country. The only conclusion which can be deduced from the Convention is that Article II(2) does not have the effect that the authorization
to conclude an arbitration agreement should always have the written
form.
The question of Article II(2) and agency has also come up in respect of the commercial broker, known in countries like F.R. Germany where he is called Handelsmakler. He is ari independent businessman who in the ordin& course of business
negotiates contracts for two parties without being entrusted by them with this duty
on a permanent basis.303 He does not conclude the transaction in his own name,
but acts as agent for both parties. After he has brought about an agreement between the parties, he sends to each party an identical broker's note (in German
Schluszschein or,Schlussnote), which usually contains an arbitral clause. It is
essential for compliance with Article II(2) that the broker's note be returned by
each party to the broker; only then is there an exchange in writing.304 It is generally not required that the broker forward the returned note to the other party;
under most laws he is authorized to receive the written declarations of the parties.305
11-2.5
The written form of the arbitration agreement as required by Article

II(2) of the Convention - i.e., being "an arbitral clause in a contract or
an arbitration agreement, signed by the parties o r contained in an
without making any reservation. It found, however, that Agrimpex had not participated in the
arbitration, but only its agent, Sesler. This poses another interesting question whether an agent
can be deemed authorized to initiate arbitration on his principal's behalf. The answer t o this
question would seem to depend on the extent of the authorization, the law governing the
authorization, and the law applicable to the arbitration.
302. See infra 111-4.1.1 ("Incapacity of a Party").
303. Schmitthoff, supra at n. 291, p. 125.
304. Oberlandesgericht of Hamburg, May 21, 1969 (F.R. Germ. no. 6); September 22, 1978
(F.R. Germ. no. 20). The latter case was the appeal decision of the decision of the Landgericht
of Hamburg discussed supra at n. 294 and 297. The decision of Court of Appeal is critized
on several grounds by E. Mezger in 25 Recht der internationlen Wirtschaft (1979) p. 486.
305. Landgericht of Hamburg, December 19,1967 (F.R. Germ. no. 4).
227
exchange of letters or telegrams" - is an internationally uniform rule

which supersedes any rule of municipal law regarding the form of the
arbitration agreement in those cases where the agreement falls under
the Convention (pp. 173-178).
The meaning of the uniform mle character of Article II(2) is that it
constitutes both a maximum and a minimum requirement, thereby
prevailing over both more and less demanding requirements of municipal law (pp. 178-180).
The uniform rule does not allow proof by other means of an arbitration agreement concluded in a form different from that envisaged by
Article II(2) (pp. 180-182).
On the other hand, it is arguable that a party can be estopped from
invoking non-compliance of an arbitration agreement with Article II(2)
in certain cases (pp. 182- 3.85).
International arbitrators are bound t o apply the Convention, including its Article II(2), but the more-favourable-right-provision of
Article VII(1) offers them the possibility t o rely on another basis
(pp. 185-190).
The t e r n ""arbitration agreement" as appearing in the English text of
Article II(2) must be deemed to mean "submission agreement9', which
is the agreement by which an already existing dispute is submitted to
arbitration (pp. 190-19 1).
Article II(2) must be interpreted liberally for the question when
an arbitration agreement satisfies its requirements. The limit of the
liberal interpretation is that it should not go beyond what can be
interpreted on the basis of the text of Article II(2) (pp. 19 1-192).
In the case of "an arbitral clause in a contract or [a submission]
agreement, signed by the parties9' - the first alternative of Article II(2)
- the signatures of the parties are indispensable. The signatures for
the contract as a whole are sufficient; they need not relate specifically
to the arbitral clause (pp. 192-193).
In the case of a contract including an arbitral clause or a submission
agreement concluded by means of an exchange of letters or telegrams the second alternative of Article II(2) - the signatures of the parties are
not required (pp. 193- 195).
The exchange of letters or telegrams implies that there must be a written proposal t o arbitrate, that the proposal is accepted in writing and
that the acceptance is communicated to the proposing party. An oral or
tacit acceptance does not satisfy the exchange. An acceptance of a contract or confirmation including an arbitral clause as a whole is sufficient; the acceptance need not relate specifically to the arbitral clause
(pp. 196-198).
It must be readily assumed that there exists an acceptance in writing:
my communication in writing issued by the other party subsequent to
the proposal to arbitrate from which it can be inferred that that party
228
considers himself bound thereby completes the exchange in writing (pp.

198-202).
As far as relevant, the above rules apply also to the submission agreement (pp. 202-204).
The conclusion of a contract including an arbitral clause or a submission agreement by means of an exchange of letters or telegrams can also
be achieved by means of an exchange of telexes (pp. 204-205).
The written form requirement of Article II(2) for an arbitral clause
in a sales or purchase confirmation is the same as for an arbitral clause
in an ordinary contract. In particular, an arbitral clause in a confirmation which is tacitly accepted does not meet Article II(2) (pp. 205207).
The two main questions for standard conditions under municipal law
may be solved by an autonomous interpretation of Article II(2) as far
as the arbitral clause contained therein is concerned. The first question
of the adhesion contract character of standard conditions may be
solved by taking into account that Article II(2) contains fairly demanding requirements for the form of the arbitral clause. The second question of incorporation by reference may be solved by relying on the
purpose of Article II(2) that a party is aware that he is agreeing t o
arbitration and the test formulated thereunder that the reference can be
checked by a party exercising reasonable care. Accordingly, a reference
to the standard conditions in the body of the contract is needed in any
case. If the standard conditions are set out on the reverse side of the
contract, a general reference will suffice. If the standard conditions are
contained in a separate document, the reference clause must draw
specific attention to the arbitral clause. However, in the latter case a
general
reference will suffice if the standard conditions have been
communicated to the other party. It is not necessary that the conditions are communicated to the other party for each transaction (pp.
208-2 1 1 and 2 15-222).
The specific approval in writing for an arbitral clause in contract
forms and standard conditions as required by Articles 134 1 and 1342
of the Italian Civil Code is superseded by Article II(2) (pp. 174-176,
199 and 21 1-215).
If an arbitration agreement is concluded through an agent on behalf
of his principal, Article II(2) does not per se have the effect that the
authorization t o conclude the arbitration agreement must be in writing.
This question depends only on the law applicable to the form of the
authorization (pp. 222-226).
11-2.6
Is a Revision of Article II(2) Needed?
On several occasions in this Part it was mentioned that Article II(2)

poses rather demanding requirements for the form of the arbitration
229
agreement. This applies especially to the exclusion of the tacit acceptance of a contract or confirmation including an arbitral clause. The
interpretation that the tacit acceptance is excluded is almost unanimously affirmed by the courts. Yet, it may be asked whether this exclusion is still compatible with the current practices of international trade.
Furthermore, there are a certain number of questions raised by Article
II(2) which have not yet been settled by a uniform judicial interpretation. These questions concern, inter alia, the estoppel, when is there acceptance in writing, and the arbitral clause in standard conditions.
Surveying the entire scene of the judicial interpretations in respect of
Article II(2), this provision appears to be the most troublesome for the
courts. Thus it is especially for Article II(2) that the question may be
asked whether it ought to be revised by an additional Protocol or the
like.
In finding the answer to this question it may be interesting to see
what has happened with Article 17 of the European Communities
Convention on Jurisdiction and the Enforcement of Civil and Commercial Judgments of September 27, 1968. 306 That Article requires a
forum selection agreement - which has much in common with an
arbitration agreement - to be concluded "in writing or by an oral
agreement confirmed in writing". Article 17 has been amended by the
Convention on the accession of Denmark, Ireland, and the United
Kingdom and Northern Ireland to the Judgments Conventions of 1968,
of October 9, 1978.307
The amended version reads, in the relevant part, as follows:
"[Aln agreement conferring jurisdiction shall be either in writing or evidenced
in writing or, in international trade or commerce, in a form which accords with
the practices in that trade or commerce of which the parties &re or ought to have
been aware."
In his explanatory report to the Convention of 1978, Prof. Schlosser

gives as the reason behind what he calls the "relaxation" of the formal
provisions for international trade in the amended version of Article 17,
that the interpretation by the Court of Justice of the European Com306. The English text of the Judgments Convention is published in the Official Journal of
the European Communities, No. L 304136, of October 30, 1978, reproduced in G. Delaume,
Transnational Contracts. Applicable Law and Settlement o f Disputes (Dob bs Ferry 1978-1980),
Appendix I , Booklet C. According to Art. l ( 4 ) the Convention does not apply to arbitration.
On June 3, 1971, the Member States of the European Community signed a Protocol Concerning the Interpretation by the Court of Justice of the Convention of 27 September 1968 on
Jurisdiction and the Enforcement of Civil and Commercial Judgments. The 1971 Protocol
empowers the Court of Justice of the European Communities to give preliminary rulings
concerning the interpretation of the Judgments Convention of 1968. The English text of the
Protocol is also reproduced in Delaume.
307. Official Journal of the European Communities, No. L 304, of October 30, 1978, reproduced in Delaume, supra n. 306. The Convention of 1978 has not yet entered into force.
230
munities of Article 17 of the Convention of 1968 "does not cater adequately for the customs and requirements of the international
trade",30"rof.
Schlosser is, in particular, opposed to the interpretation
of the Court of Justice that Article 14 of the Convention of 1968 requires that the other party to a contract with anyone employing standard conditions has to give written confirmation .before a jurisdiction
clause in those conditions can be effective.
The two most important decisions of the Court of Justice of the European Communities are cases nos. 24/76 and 25/76.
In case no. 24/16 the Court held 309 :
"Where a clause conferring jurisdiction is included among the general conditions
of sale of one of the parties, printed on the back of a contract, the requirement of a writing under the first paragraph of Article 17 of the Convention of
27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil
and Commercial Matters is fulfilled only if the contract signed by both parties
contains an express reference to those general conditions.
In the case of a contract concluded by reference to earlier offers, which were
themselves made with reference to the general conditions of one of the parties
including a clause conferring jurisdiction, the requirement of a writing under
the first paragraph of Article 17 is satisfied only if the reference is express and
can therefore be checked by a party exercising reasonable care."
In case no. 25/76 the Court held 310 :
"In the case of an orally concluded contract, the requirements of the first paragraph of Article 17 of the Convention of 27 September 1968 on Jurisdiction and
the Enforcement of Judgments in Civil and Commercial Matters as to the form
are satisfied only if the vendor's confirmation in writing accompanied by notification of the general conditions of sale has been accepted in writing by the purchaser.
The fact that the purchaser does not raise any objections against a confirmation
issued unilaterally by the other party does not amount to acceptance on his part
of the clause conferring jurisdiction unless the oral agreement comes within the
framework of a continuing trading relationship between the parties which is
based on the general conditions of one of them, and those conditions contain a
clause conferring jurisdiction."
Although it would be very interesting, it is beyond the scope of this

study t o make a detailed comparison between Article 17 of the Judgments Convention of 1968 and Article II(2) of the New York Convention of 1958 and the interpretations given in respect of both provisions.
It may suffice to note that, as it may be inferred from the interpretations given by the Court of Justice in respect of the written form of the
308. Official Journal of the European Communities, No. C 59/71, of March 5, 1979, reproduced in Delaume, supra n. 306.
309. Judgment of December 14, 1976, Colzani v. RUWA, Case No. 24/76, European Court
Reports [I9761 p. 1831.
310. Judgment of December 14, 1976, Segoura v. Bonakdarian, Case No. 25/76, European
Court Reports 119761 p. 1851.
23 1
I
I
I
I
I
I
i
I
jurisdiction clause as required by Article 17 of the Judgments Convention of 1968, the prevailing opinion on Article II(2) of the New York
Convention is also that a tacit acceptance of a contract containing an
arbitral clause is insufficient. The Court of Justice, however, makes an
exception for the continuing trading relationship, a question which is
still unsettled for Article. II(2) of the New York Convention.
The intent of the drafters of the Convention of 1978 to make allowances for the needs of international trade is naturally to be praised.
However, it may be questioned whether the amended version of Article
17 of the Judgments Convention does not throw the baby out with the
bathwater. The amended version is drafted with such loose wording that
it will require considerable interpretation to determine in which cases
jurisdiction clauses comply with it and in which cases they do not. This
is likely to create an undesirable degree of uncertainty and may lead to a
flood of court cases. In particular, it may be difficult t o prove the
(established?) practices of a certain international trade of which there
exist so many.
This brings us t o the heart of the problem; it would be extremely difficult to arrive at a satisfying revised text of Article II(2). Two courses
would appear to be open: either an attempt is made to provide for all
the different situations in which an arbitration agreement may appear,
or a new text is drafted along the same lines as the amended version of
Article 1'7 of the Judgments Convention. As it is impossible to provide
for all situations in which an arbitration agreement may appear in practice, the first course has the inherent danger that the new text will be
interpreted more restrictively for those situations not provided for. The
second course would have the disadvantage that due to the vague wording it may lead to more differing interpretations than actually exist for
the present text of Article II(2).
Even assuming that an improved text of Article II(2) could be realized, the problems caused by Article II(2) can be considered as not
being of such a magnitude as t o warrant a revision. The main problem is
the exclusion of the tacit acceptance. This aspect may, however, be
mitigated by assuming readily that an acceptance in writing exists.311
The other problems of Article II(2) concern questions which are, for
the time being, either not yet settled by judicial interpretations or are
subject to diverging judicial interpretations. Nevertheless, the judicial
experience gained during the first twenty years of the New York Convention is an invaluable asset for overcoming these problems and asriving at a uniform interpretation, It should not be forgotten that, unlike
the Judgments Convention, the uniform interpretation of which is, at
least on paper, safeguarded by the Court of Justice of the European
311. See supra 11-2.3.4 ("Acceptance in Writing of a Contract Containing an Arbitral
Clause in the Case of an Exchange").
232
Communities, such supra-national judicial authority is not available for

the New York Convention. This maltes the process of arriving at a
uniform interpretation an extra-arduous effort. A new text of Article
II(2) would mean that more than twenty years of judicial experience brought together in the cases reported in the Yearbook Commercial
Arbitration - would be practically lost and the time-consuming process
would have to start all over again. Moreover, a new Protocol may create
uncertainty in that some States will become Party to it, whilst others
may deem adherence unnecessary, as they consider the present text of
Article II(2) sufficient. It is submitted that the problems caused by
Article II(2) are not worth this price and that for this provision of the
Convention also, the efforts could be better concentrated on the
harmonization of interpretation.
Chapter III
Enforcement of the Arbitral Award

The last Chapter of this study concerning the unification of interpretation of the New York Conventioc deals with the second main action
envisaged by the Convention, the enforcement of the arbitral award,
which is regulated by Articles 111-VI.
The Chapter is divided into five Parts. The first Part is concerned with
Article I11 in relation to the procedure for the enforcement of the award
(111-1). The second Part is devoted t o Article IV which sets forth the
conditions t o be fulfilled by the party seeking enforcement of a Convention award (111-2). The general aspects of the grounds for refusal of
enforcement of the award, as laid down in Article V, are examined in
the third Part (111-3). The grounds for which enforcement may be refused if they are proven by the party against whom the enforcement is
sought, as enumerated in Article V(l), are the subject matter of the
fourth and largest Part of this Chapter (111-4). They include the question of setting aside the award in the country of origin as regulated by
Article V(1) (e) and Article VI (111-4.5 3).Finally, the last Part of this
Chapter is concerned with the grounds for which, according to Article
V(2), a court on its own motion may refuse enforcement of the award
for reasons of public policy (111-5).
2 34
Enforcemen t A ward
PART 111-1 PROCEDURE FOR ENFORCEMENT (ART. ID)

Article 111 of the Convention provides:
""Each Contracting State shall recognize arbitral awards as binding and
enforce them in accordance with the mles of procedure of the temitory
where the award is relied upon, under the conditions laid down in the
dbuowing articles. There shall not be imposed substantially wore 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."
We may be relatively brief in discussing this Article of the Convention
as it has not created major problems of interpretation for the courts.
111- 1.1
Legislative History
The history of Article I11 traces back to the Geneva Convention of

1927 which provided in Article I(1) that ". . . an arbitral award . . . shall
be recognized as binding and shall be enforced in accordance with the
rules of procedure of the territory where the award is relied upon . . . .1
A very similar provision was provided in the ECOSOC Draft Convention
of 1955 .2 In their comments on the Draft Convention some governments and non-governmental organizations expressed a desire t o supplement the provision. They wished either (a) to include in it uniform procedural rules that would be applicable t o the enforcement of foreign arbitral awards, or (b) to provide that arbitral awards to which the Convention applied should be enforced by a "summary enforcement procedure", or (c) to stipulate that arbitral awards to which the Convention
applied should be enforced by the same procedure as that which
applied to domestic arbitral awards.
In commenting on these psoposals, the Secretary-General of ECOSOC
observed that each of these proposals would give rise to difficulties3 :
(a) it could not be considered practical to attempt t o spell out the ap99
1. See H.-W. Greminger, Die Genfer Abkommen von 1923 und 1927 uber die internationale
private Schiedsgerichtsbarkeit (Winterthur 1957) p. 4 7.
2. ECOSOC Draft Convention, Art. I1 (UN DOC El2704 and Corr. 1). The same provision
was contained in the ICC Draft Convention of 1953, Art. I1 (UN DOC E/C./373/Add. 1).
3. Note by the Secretary-General on the Comments on Draft Convention on the Recognition
and Enforcement of Foreign Arbitral Awards of March 6, 1958, UN DOC ElCONF.2612 paras.
7-8.
Enfircemen t A ward
235
plicable enforcement procedures in full detail in the text of the Convention itself; (b) a reference to "summary enforcement procedures" might
not be given an identical meaning in countries with different procedural
law systems; and (c) the procedures applicable to the enforcement procedures of domestic awards might contain elements which, if applied to
foreign awards, would malte the enforcement too cumbersome or time
consuming. The Secretary-General suggested that these difficulties could
be overcome by providing that arbitral awards should be enforced in
accordance with a simplified and expeditious procedure which, in any
event, should not be more onerous than that applied to domestic awards.
During the New York Conference of 1958 the suggestion of the SecretaryGeneral of ECOSOC was taken up by the delegate of the United
Kingdom who submitted a proposal to amend the provision. His proposal
read that the rules of procedure should not be "more complicated than
those used for the enforcement of any other award . . ." and that "in no
case shall the scale of fees and charges demandable be . . . greater than
those demandable in respect of the enforcement of any other a ~ a r d . " ~
The United Kingdom delegate gave as explanation for his proposal that an
arbitral award which met the conditions of the Convention should be
enforceable without unnecessary inconvenience or excessive fees; otherwise the purpose of the Convention would be defeated.5
On the other hand, the delegate from Belgium submitted a proposal
as mentioned under (c) above: the rules of procedure for the enforcement of a Convention award should be identical to those governing the
enforcement of a domestic award.6 This proposal of "national treatment" of the award was supported, inter alia, by the delegate from the
United States.
Both proposals led t o a Babel-like confusion at the Conference, which
consumed considerable time, and served to demonstrate that there is
practically no branch of law which is so different in the various legal
systems as the law of procedure, it being mainly a product of national
history. The confusion was aggravated by an oral proposal from certain
Latin American countries to lay down different rules for the exequatur
(leave for enforcement) procedure and for the enforcement p r o c e d ~ r e . ~
This proposal was objected to by other delegates who declared that in
their countries the procedures were not distinguished or were combined
in one procedure.
What finally did become clear was that the majority of delegates did
no want national treatment for Convention awards (i.e., proposal (c)),
4. UN DOC E/CONF.26/L.l1. A similar proposal was submitted by the Israeli delegate

(E/CONF.26/L.21).
6. Id.
24 6
Enforcement Award
They argued that in their countries the rules of procedure governing the
enforcement of domestic awards were quite different from those governing the enforcement of foreign awards. In addition, in some countries
the enforcement of a domestic award did not need t o go through the
process of an approval by an official authority, whilst this was indispensable for the enforcement of a foreign award. Accordingly, the Belgian
proposal was r e j e ~ t e d .Apparently
~
weary of discussing this provision,
the delegates then decided t o relegate the drafting of an appropriate
text t o Worlting Party No. 1.
Working Party No. 1 came up with two texts, along with the acltnowledgement that it was unable t o agree on one single textagThe first text
consisted of the original version of the ECOSOC Draft Convention, and
the second one was an amended version of the proposal of the United
Kingdom delegate. The Conference adopted both texts without discussion.1
The final result was, therefore, the same as was suggested much earlier
by the Secretary-General of ECOSOC. The Conference implicitly rejected proposal (a) mentioned above as it was not discussed at the Conference. The delegates apparently considered the unification of the rules
of procedure for the enforcement of foreign arbitral awards as a too farreaching interference with the differing national laws on procedure. The
same applies t o proposal (b) above to provide for enforcement by a
6 g s ~ m m a enforcement
ry
procedure".
111- 1.2
Rules of Procedure for Enforcement of Convention Award
This history of Article 111 of the Convention shows that the rules of
procedure for the enforcement of a Convention award are left t o the
law of the country where the enforcement is sought. Generally speaking,
there are three possibilities for regulating the procedure for enforcement
of a Convention award:
( 1) specific provisions;
(2) enforcement as for a foreign award in general;
(3) enforcement as a domestic award.
Ad ( I ) Specific provisions for the procedure of enforcing an award
falling under the Convention can be found, inter alia, in Australia,
Botswana, Denmark, Ghana, India, Sweden, the United Kingdom,
and the United States." The specific provisions are contained in
the Acts implementing the New York Convention in these countries. In
8. Id. The Belgian proposal was rejected by 23 votes to 3, with 8 abstentions.
9. UN DOC E/CONF.26/L.42 and Corr. 1.
l o . UN DOC E/CONF.26/SR.16.
11. See for the references OF these implementing Acts, Annex C.
Enforceme~ztAward
237
most of these countries such an Act is required in order to incorporate a

treaty into the internal law.
Ad (2) Most countries Party to the Convention have provided that
the procedure for the enforcement of a Convention award is the same as
that for the enforcement of a foreign award in general. These countries
may be divided into two groups. The first group has specific provisions
for the enforcement of foreign awards. Examples of this group are F.R.
Germany and Greece.12 According to the second group, the procedure
for the enforcement of a foreign award is the same as for the enforcement of a foreign judgment. Examples of the second group are Italy,
Mexico and the Nether1ands.l3
Ad (3) Provisions for the enforcement of a Convention award pursuant t o the same procedure as for a domestic award are found in only
very few countries. This confirms the view of the majority of the delegates at the New York Conference of 1958 not to subsume the procedure for enforcement of Convention awards under that of domestic
awards. One of the few countries where the assimilation apparently
exists is Japan. This became clear in a decision of the Court of Appeal
of
In an enforcement procedure of an award made in London, the Japanese respondent
had argued that the enforcement could not be granted as Japanese law did not contain provisions for the enforcement of foreign awards and, therefore, it could not
be enforced "in accordance with the rules of procedure of the territory where the
award is relied upon". The Court held that this did not prevent the enforcement of
the award:
12. F.R. Germany: Sect. 1044 of the Code of Civil Procedure. Greece: Art. 903 of the Code
of Civil Procedure.
13. Italy: Art. 800 jo 796 of the Code of Civil Procedure. E. Minoli, "L'entrata in vigore
della Convenzione di New York sul riconoscimento e I'esecuzione delle sentenze arbitrale
straniere", 24 Rivista d i Diritto Processuale (1969) p. 539 at p. 555, defended the view that the
same procedure as applicable to the enforcement of domestic awards was to be used for Convention awards. This view has not been followed by the Italian courts and almost all other
Italian commentators. Minoli's view was expressly rejected by the Corte di Appello of Naples,
December 13, 1974, Frey et al, v. F. Cuccaro e Figli (Italy no. 11). See for extensive references
on this question, G. Gaja, "Introduction", in New York Convention (Dobbs Ferry 1978-1980)
I.D. 18 n. 55. See also infra n. 15. Mexico: Arts. 604-608 Code of Civil Procedure for the
Federal District (the provisions in the Codes of Civil Procedure of the 31 other Mexican Districts are similar). Netherlands: Art. 993 jo 985 Code of Civil Procedure (a foreign arbitral
award can be enforced in the Netherlands only by virtue of a treaty). In France the procedure
for the enforcement of foreign arbitral awards has been developed by caselaw. It is an highly
complicated system, if it is even possible to speak of a "system". See R. David, L'arbitrage
commercial international, Cours de droit privB compare (Paris 1968-1970) pp. 5 86-5 89. See
also Y. Derains. "National Report France", in Yearbook Vol. VI (1981) p. 1 at p. 22.
14. Court of Appeal of Tokyo (2nd Civil Section), March 14,1963, Niroshi Nishi v. Compania di Navigazione e Commercia (Japan no. 1). The enforcement was judged under the Geneva
Convention of 1927 as at the time of enforcement the United Kingdom had not yet acceded to
the New York Convention. The principle provided in Art. l(1) of the Geneva Convention is,
however, the same as that laid down in Art. 111 of the New York Convention, see supra at n. 1.
238
E7zforcemerzt A ward
"[It is] in conformity with the spirit of our law to attribute to foreign arbitral
awards, under certain conditions, the same force as domestic awards. In this spirit
this country has signed the Geneva Protocol and the Geneva Convention and
afterwards the New York Convention. [It is] the obligation of this country as a
signatory of these Conventions to give these awards the same treatment as domestic awards in so far as they comply with the conditions of the Conventions."
It is submitted that this decision of the Tokyo Court can be considered as implying a sound principle: if a country has no provisions at
all for the procedure of enforcement of a Convention award or foreign
awards in general, the same procedure as governing the enforcement of
domestic awards may be adopted, provided that this procedure does not
imply an alteration of the Convention's conditions.
The above bird's-eye view shows that the procedure for the enforcement of an award falling under the Convention differs considerably
amongst the Contracting States. A unification on this point would seem
desirable but is impracticable. Moreover, in practice, the disparity of the
laws on procedure has not produced such results that a revision of the
Convention would be needed on this point.
The only directive which Article III gives for the procedure for enforcement of a Convention award is stated in the second sentence which,
as noted, was inserted at the instigation of the ECQSQC Secretary-Genera1 and the United Kingdom delegate. As far as it could be researched,
the Contracting States have not imposed more onerous conditions or
higher fees or charges for the recognition or enforcement of Convention
awards than are imposed on the recognition or enforcement of arbitral
awards rendered under their own law. It has not led to problems for the
courts either.''
In the enforcement procedure of an award made in Switzerland before the United
States District Court in Michigan, the respondent had objected that the costs of
arbitration of SFR. 92,83 8.40 awarded by the arbitral tribunal was in contravention
of Article I11 of the Convention.16 The Court rightly rejected the defence. It pointed
out that this defence was not among the affirmative defences of Article V of the
Convention, observing that "the respondent completely misapprehends the significance of that provision". The Court held that Article I11 concerns only the costs of
the enforcement proceedings. In declaring that the enforcing court cannot impose
higher fees or more onerous conditions on the enforcement of a foreign award than
15. In Italy a bill has been submitted to the Parliament providing for a special procedure for
the enforcement of Convention awards as the enforcement through the procedure of Art. 800
of the Code of Civil Procedure (see supra n. 13) is considered to subject the parties to conditions which are in terms of fees and charges substantially more onerous than those provided
for domestic awards. See G. Bernini, "National Report Italy", in Yearbook Vol. VI (1981)
p. 24 at p. 59.
16. U.S. District Court, E.D. Michigan, S.D., March 15, 1977, Audi-NSU Auto Union A.G. v.
Overseas Motors Inc. (U.S. no. 16).
Enforcemen t A ward
239
on a domestic award, Article 111 does not by any means concern the costs of the
arbitral tribunal.
It should be emphasized that the rules of procedure of the forum for

the enforcement of a Convention award as mentioned in Article 111 are
no$ concerned with the conditions for enforcement. The rules of procedure within the meaning of Article III are confined to questions such
as the form of the request and the competent authority. The conditions
for enforcement, on the other hand, are those set out in the Convention
and are exclusively governed by the latter. This is unequivocally stated
in Article 111 in the phrase "under the conditions laid down in the following articles." It means that the procedural law governing the enforcement of Convention awards may not derogate from the principles embodied by Articles IV-VI, Thus the petitioner only needs to submit am
original or copy of the arbitration agreement and arbitral award, and,
possibly, a translation thereof (Art. IV). The enforcement may be refused only if the respondent can prove one of the grounds listed exhaustively in Article V(I) or on public policy grounds by virtue of Article V(2). This implies also that the respondent must be offered an opportunity to be heard either during the proceedings concerning the request for enforcement or in proceedings in opposition to the granting
of the leave for enforcement, as the case may be, according to the procedural law of the forum. In addition, and this may even be an innovation for certain procedural laws, the decision on the enforcement may
be adjourned if an action for setting aside the award is pending in the
country where the award was made (Art, VI),17
The Court of First Instance of Naples held correctly that no argument can be derived
from Article I11 of the Convention that Article 798 of the Italian Code of Civil
Procedure, which allows a reexamination of the merits of a foreign decision in certain cases (see i n f r ~III-3.3,2), constitutes "'rules of procedure of the territory
where the award is relied upon".1s The Court reasoned that Article 111 concerns such
things as the form of the request for enforcement, the competent judge, etc., but
not the substantive conditions of the action, which are provided by the Convention
itself.
In this connection it may be observed that the use of the wording

"shall not impose substantially more onerous conditions" in the second
sentence of Article 111 is somewhat confusing. The word "conditions"
as used in the second sentence must be deemed to relate to the conditions of the procedure, in other words, the rules of procedure. It does
not refer t o the conditions under which the enforcement of a Conven17. See for Art. VI, infra 111-4.5.3.3.
18. Tribunale of Naples, June 30, 1976, 'Societi La Naviera Grancebaco .A. v. 1talgrani
(Italy no. 22).
240
Enforcement A ward
tion award is to take place, in which sense the word is employed in the
first sentence of Article III.19
Article III can also be considered as the basis for the application of
the law of procedure of the fomm to those aspects incidental t o the enforcement which are not regulated by the Convention. Attachment in
connection with the enforcement of the award is one such example;
others are discovery of evidence, set-off of a claim against the award
which is sought t o be enforced, and bankruptcy of a party. The question
of estoppel of the right to invoke a provision of the Convention could
similarly be considered as pertaining t o the law of the forum, although
it is also arguable that this question is implicitly regulated by the Gonvention itself. Furthermore, the procedural law of the forum may impose
time limits within which the enforcement of a Convention award must
be requested.
The question of attachment and the Convention has created a problem in the United
States only at the stage when an award is not yet madee20
The request for discovery was made in an enforcement procedure before a United States Court of appeal^.^^ Months after the rendition of the award, Baruch
Foster sought disqualification of the French presiding arbitrator, Prof. Ren6 David,
alleging that he had a connection with the Ethiopian Government as he had drafted
the Ethiopian Civil Code between 1954 and 1958. Baruch Foster requested discovery,
sewing Ethiopia with a notice to produce documents from the period 1954 to 1974.
Ethiopia submitted affidavits in opposition according to which Prof. David had not
acted in any capacity for the Ethiopian Government after 1958 and attesting to his
worldwide reputation and integrity. The Court denied the request for discovery on
the grounds that Baruch Foster was estopped from contesting and had failed to
"come forward with anything tending to show that the claim was asserted in good
faith and for any reason other than delay."
The application of the law of the forum to the question of set-off has led to differing results in practice. The Court of First Instance of Hamburg had to decide on
a set-off made by the respondent on the basis of commissions for representations
made by him on behalf of the petitioner. The Arbitral Tribunal of the Romanian
Chamber of Commerce had refused to consider the set-off because it had been made
without the production of the necessary evidence and had not been presented in
the form of a counterclaim as required u-nder its Arbitration Rules. The Court held
that the "rules of procedure" mentioned in Article 111 of the Convention include
the decision concerning a set-off, and that under German law, an undisputed set-off
may be brought forward in an enforcement procedure. The Court of Appeal of Nam-
19. See A. Biilow, "Das UN- ber re ink om men iiber die Anerkennung und Vollstreckung auslandischer Schiedsspriiche", 20 Konkurs-, Treuhand- und Schiedsgerichtswesen (1959) p. 1 at
p. 8 n. 59.
20. See supra 11-1.2.5 ("Pre-award Attachment Not Precluded").
21. U.S. Court of Appeals (5th Cir.), July 19, 1976, Imperial Ethiopian Government v.
Baruch Foster Corp. (U.S. no. 10).
Enforcement Award
241
burg in this case added to the decision of the lower court that a set-off can always
be dealt with in the enforcement proceedings, whether the arbitrators had, rightly
or wrongly, not dealt with it.22 On the other hand, a United States District Court
held that "counterclaims are inappropriate in a confirmation proceeding" (the
counterclaim was based on an anti-tmst cause of action).23 However, another District Court. reached an opposite conclusion in a case which involved the request for
enforcement by the petitioner of one award and three counterclaims of the respondent based on three other awards.24 The arbitrators had rejected a counterclaim of
the respondent in the arbitration resulting in the first award without prejudice to
renew it in separate arbitral proceedings. The Court observed:
". . . Once having acquired subject matter jurisdiction of the original complaint,
the Court in its discretion could exercise under Rule 13 of the Federal Rules of
Civil Procedure, ancillary jurisdiction over the subject matter of the counterclaims . . . . The interests of justice require that the Court exercise its power over
the counterclaims, and strike a net balance, notwithstanding the fact that the
arbitral tribunal, because of its own procedures, was unable to do so. It would
be inequitable to permit this plaintiff to recover a judgment here against the defendant on the concededly valid arbitral award in its favor, and at the same time
to withhold enforcement of the three counterclaims here, requiring Samincorp
to seek their enforcement separately in a foreign tribunal or wherever Jugometal
can be found. The Convention does not prevent this Court from entertahing setoffs or counterclaims in a proper case where authorized by Rule 13 . . . ,,
The bankruptcy of a party has rarely been dealt with in enforcement proceedings of
a Convention award. In one case a United States District Court observed that neither
the Convention nor the United States implementing Act indicates what should be
done in the event of bankruptcy of one of the parties.25
The question of estoppel has been examined in the context of the question
whether a party can be estopped from invoking non-compliance with the written
form of the arbitration agreement as required by Article II(2).26 The other court
decisions in which the question of estoppel has been dealt with are considered later.27
Stipulations concerning the time limits within which the enforcement of a Convention award must be requested, are found, for example, in Section 207 of the United States Arbitration Act (i.e., the implementing legislation of the Convention in
the United States) which provides that enforcement of an arbitral award falling under the Convention must be requested within three years after the award is made.
It may be noted that for awards rendered in domestic federal cases the time limit is,
according to Section 9 of the Act, one year. Another example is the U.S.S.R. where
the time limit is three years from the moment when the award acquires legal force.28
22. Landgericht of Hamburg, March 27, 1974, affirmed by Oberlandesgericht of Hamburg,
March 27, 1975 (F.R. Germ. no. 10).
23. U.S. District Court, E.D. Michigan, S.D., March 15, 1977, Audi-NSU Auto Union A.G.
v. Overseas Motors Inc. (U.S. no. 16).
24. U.S. District Court of New York, S.D., April 21, 1978, Jugometal v . Samincorp Inc.
(U.S. no. 22).
(U.S. no. 3); see also infra at n. 34 and 111-5.1 at n. 354.
26. See supra 11-2.2.3(c).
27. See infra at n. 88-92.
28. See S. Lebedev, "National Report U.S.S.R.", in Yearbook Vol. I(1976) p. 91 at p. 103.
242
111- 1.3
Enforcement Award
Entry of Judgment Clause (United States)
A specific question in respect of the rules governing the procedure of

Convention awards has arisen in the United States for the so-called "entry of judgment clause". Pursuant t o Section 9 of Chapter 1 of the United States Arbitration Act - which is concerned with domestic arbitration in federal cases - the parties must have exprkssed in the agreement
their consent that judgment of the court shall be entered upon the
award. Thus, the arbitration agreement should provide "judgment upon
the award may be entered in any Court having jurisdiction hereof9' or
similar wording. If the entry of judgment clause is not contained in the
arbitration agreement, a federal court has no jurisdiction t o enforce an
award under Chapter 4 of the United States Arbitration Act.
Chapter 2 of the United States Arbitration Act - which is the enabling legislation for the Convention in the United States - does not
provide expressly that the entry of judgment clause is also required for
enforcement actions of awards falling under the Convention. On the
other hand, Section 208 of Chapter 2, headed "Chapter 1 - Residual
Application", provides that "Chapter 1 applies to actions and proceedings brought under this Chapter [2] to the extent that Chapter [ I ] is
not in conflict with this Chapter or the Convention as ratified by the
United States."
One District Court circumvented the question whether the entry of
judgment clause requirement of Section 9 of Chapter 1 is superseded by
the Convention by holding that the requirement can already be deemed
t o be fulfilled if consent can be implied from the wording of the contract ("award to be final") and the conduct of the parties (e.g,, by invoking federal jurisdiction in the same arbitration at an earlier occasion).
Mr. Holtzmann is of the opinion that the requirement of Section 9 is
inapplicable to enforcement actions falling under the Convention mainly
because Chapter 2 is silent on this point.30 The following observation
of Mr. Aksen may also be added31 :
29. U.S. Dis~rictCourt, E.D. Michigan, S.D., August 9, 1976, Audi NSU Auto Union A.G. v.
Overseas Mo:ors Inc. (U.S, no. 11). The Court referred to the U.S. Court of Appeals (2nd Cir.)
decision in Varley v. Tarrytown Association, 477 Federal Reporter Second Series p. 208 (1973)
in which the entry of judgment clause requirement was reaffirmed but in which it was also
suggested that something less than the wording of Sect. 9 might have sufficed. This suggestion
was elaborated in a subsequent decision in which it was held that the wording of the agreement
("award to be final") and the conduct of the parties "manifest the requisite 'consent' to entry
of judgment", U.S. Court of Appeals (2nd Cir.), May 24, 1974, National Metal Converters Inc.
v. I/S Stavborg (U.S. no. 2) (the Convention was not applied in this case because the award was
made in New York).
30. H. Holtzmann, "National Report United States", in Yearbook Vol. 11 (1977) p. 116 at
p. 120.
31. G. Altsen, "Application of the New York Convention by the United States Courts", in
Enforcement Award
243
"If this requirement was t o apply t o an international Convention arbitration, the

results would be difficult t o explain t o a foreign party. An international business
entity enters into an arbitration agreement with the confidence that the U.S. is a
member of good standing of the countries acceding to the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards. However, if the U.S.
district courts are unavailable for implementing this treaty because the contract
doesn't contain the 'magic language' specifying that 'judgment of the court shall
be entered upon the award' required by Chapter 1 of the U.S. Arbitration Act,
an anomalous and detrimental result might follow."
According to the letter of the text of Article 111, the requirement of

the entry of judgment clause would not conflict with the Convention.
It is not a "more onerous condition" than is ""imposed on the recognition and enforcement of domestic awards" as stated in Article 1x1, since
the entry of judgment clause is also required for domestic arbitrations
in federal cases. However, these are conditions which a Contracting
State may impose. If a Contracting State wishes t o give Convention
awards as favourable treatment as possible, it may do away with requirements applicable to domestic cases which are deemed too cumbersome
for enforcement it1 the international context. As the implementing
legislation exhibits a particularly favourable attitude towards the Convention, the silence of Chapter 2 may well be interpreted as the legislator's intent that the requirement of Section 9 not be applicable to
actions falling under the C ~ n v e n t i o n . ~ ~
III- 1.4
Recognition of Awards
To conclude this Part concerning Article 111, a brief observation may

be made in respect of the opening line of this Article. It reads "Each
Contracting State shall recognize arbitral awards as binding . . ." The
Convention refers t o the recognition of an arbitral award not only in
Article III, but mentions it expressly throughout the Convention (Art.
I(1) and (3), Art. IV(l), and Art. V(1) and (2)). The exception is Article
VI, according to the text of which only the decision on the enforcement
of an award can be adjourned if an application for the suspension or
setting aside of the award is pending in the country of origin. In the
other Articles recognition and enforcement of the award are treated on
the same footing. The opening line of Article 111 provides for the basic
obligation of a Contracting State as far as the recognition of the award
is concerned: it must recognize an award falling under the Convention
32. The legislative history of the implementing Act of the United States does not contain, as
far as it could be researched, an indication on the question of the applicability of the entry of
judgment clause as required by Sect. 9 (House Report No. 91-1181; Senate Report No. 91-702;
Congressional Record, Vol. 116 (1970), February 17, July 6 , and July 16).
244.
Enfircement Award
as "binding". What the word "binding" means will be examined in

detail in relation to Article V(1) (e) of the Convention in 111-45.2.
In most cases a party will request the enforcement of an award. In
fact, none of the court decisions reported under the Convention so far
involved the recognition of an award. The inclusion of recognition in
the Convention is, rather, a clause de style: it is traditional to provide
for it in international conventions relating to foreign judgments and
awards. It also figured, for example, in the Geneva Convention of 1927,
without, as far as it is known, having ever been applied in practice.
The recognition of a foreign award under the Convention may occur
in a court action between the same parties on the same subject matter as
decided In the foreign award. The defendant may, on the basis of the
award, then object to the jurisdiction of the court to entertain the action. It means that the defendant requests the recognition of the award
by involting its effect of res judicata (l'keutorite' de chose juge'e) and rely:
ing on the principle of ne bis in idem in a court action brought against
him concerning a subject matter already decided in a foreign arbitration. In such a case it is not necessary first to institute enforcement proceedings. However, the same conditions as f o r the enforcement of an
award as laid down in Articles IV-VI are applicable. The procedural aspects of the recognition, such as at which moment the award should be
invoked for recognition, are governed by the procedural law of the
forum.
The above case of a court action betweenthe same parties on the
same subject matter as decided in the award will certainly call for recognition under the Convention provided, of course, that the award comes
within the purview of the Convention. Recognition of an award under
the Convention would be less certain in the case where the award is invoked as a set-off or counterclaim. The admissibility of the request for
recognition in this case will depend on the law of the forum, which may
require, for example, that the subject matter of the award be related to
the original cause of the court action. Even more uncertain is the question whether, in a court action between the same parties on a related
subject matter, the court can be requested to recognize as binding the
facts or even the points of law as found by the arbitrator in the award.
In certain countries a court seems indeed to be bound by the findings
of the arbitrators under certain circumstances, whilst in others a court
seems not to be under such ~ b l i g a t i o n . ~ ~
It may be mentioned that a United States Court of Appeals considered that the
filing of a Japanese award by the petitioner as proof of claim in the banltmptcy
33. See P. Schlosser, Drrs Recht der internatiomlen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) no. 779.
Enforcemen t A ward
245
proceedings against the respondent was " p r e m a t ~ r e " . ~The

~ Court directed that the
petitioner had first to seek a judgment based on the award in the District Court
which gave the respondent, in turn, the right t o assert the non-enforceability of
the award on one of the grounds specified in Article V of the Convention. One may
wonder why the awasd could not be recognized under the Convention in the bankmptcy proceedings. This issue was not pressed by the petitioner. Presumably, the
Referee in Banltmptcy was not the proper authority to deal with the recognition of
a Convention award.
III- 1.5
Unifom Interpretation (and Summav)
The mles of procedure for the enforcement of an arbitral award falling

under the Convention are determined by the law of procedure of the
country where the enforcement is sought (pp. 236-239).
The rules of procedure are not concerned with the conditions of enforcement which are exclusively governed by the Convention (pp. 239240).
Article 11%can also be considered as the basis for the application of
the law of procedure of the fomm to those aspects incidental t o the enforcement which are not regulated by the Convention (e.g., attachment,
discovery of evidence, set-off, bankruptcy, time limit for request of enforcement, and, possibly, estoppel) (pp. 240-24 1).
The requirement in United States law for domestic arbitration in
federal cases of the entry of judgment clause is not applicable to cases
falling under the Convention (pp. 242-243).
34. U.S. Court of Appeals (2nd Cir.), May 29, 1975, Copal Co. Ltd. V. Fotochrome Inc.
(U.S. no. 3).
246
Enforcement Award
PART 111-2
111-2.1
CONDITIONS TO BE FULFILLED BY THE

CLAIMANT (ART. IV)
In General
Article IV of the Convention provides:
"I. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall,
at the time of the appGcation, supply:
(a) The duly authenticated original award or a duly certified copy
thereof;
(b) The original agreement referred to in article HI 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 certifiied
by an official or sworn translator or by a diplomatic or consular agent."
Article IV is set up to facilitate the request for enforcement by requiring a minimum of conditions to be fulfilled by the party seeking enforcement. In comparison with the Geneva Convention of 1927 it constitutes a great improvement. Under Article 4(1) of the Geneva Convention, the party seeking enforcement had t o supply, in addition to the
original or copy of the award:
- proof that the award had become ""final" in the country in which it
was made (which amounted in practice to the necessity of acquiring a
leave for enforcement in that country);
- 6'when necessary", proof that the award was an award falling under
the Geneva Convention, that the award had been made in pursuance of
a submission to arbitration which was valid under the law applicable
thereto, and that "the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner
agreed upon by the parties and in conformity with the law governing the
arbitration procedure."
The ECOSOC Draft Convention of 1955 Article V(1) contained requirements which were similar to those contained in Article 4(1) of the
Geneva Convention, albeit somewhat more relaxed.
A revolution in the whole set up of the Draft Convention took place
during the New York Conference of 1958 because of the proposal of
the Butch delegate to amend Articles 111-V of the Draft C~nvention.~'
One of the main objects of the Dutch proposal was to transform most
35. UN DOC E/CONF.26/L.17
Enforcement. Award
247
of the conditions to be fulfilled by the party seeking enforcement into

grounds for refusal of enforcement to be proven by the party against
whom the enforcement is sought.
The New York Conference appeared t o be apprehensive of the Dutch
proposal which was described by the Italian delegate as ""a very bold innovation". It led to a flood of further amendments and long debates at
~ ~ matter was finally referred to Working Party
the C ~ n f e r e n c e . The
No. 3 which came up with a refined version of the Dutch
The Working Party's version was adopted by the Conference with some
further amendments and was later re-numbered as the present Articles
The following Parts will go into the other asIV-VI of the C~nvention.~'
pects of the innovations caused by the Dutch proposal, including the
elimination of the requirement of the leave for enforcement from the
country of origin, the infamous Geneva Convention system of "double
exequatur".
The final result of the drafting history of Article IV is that the party
seeking enforcement of an award no longer has to prove compliance
with various conditions, but has only to supply the duly authenticated
original award or duly certified copy thereof and the original arbitration
agreement or duly certified copy thereof; if both documents are made
in a language other than that of the country where the enforcement is
sought, the party has also to submit a translation. In fulfilling these
conditions, the party seeking enforcement produces prima facie evidence
entitling him to obtain enforcement of the award.39 It is then up t o the
other party to prove that enforcement should not be granted on the
grounds enumerated exhaustively in the following Article V(1). The
transformation of most of the "positive" conditions into "negative" conditions was prompted by the desire to ease the conditions to be fulfilled
by the party seeking enforcement as much as possible. Article IV is to
be interpreted accordingly.
The above-mentioned Dutch proposal to amend Articles III-V of the ECOSOC
Draft Convention even contained an express provision on the prima facie proof,
reading:
"The party seeking recognition or enforcement of the award shall be deemed to
have proved prima facie the existence of the award and of the agreement to arbitrate on which it was based by the supply of the documents mentioned under
para. I ."
36. UN DOC E/CONF.26/SR.ll-14.

39. P. Sanders, "The New York Convention", in International Comrierclkzl Arbitration Vol.
11 (The Hague 1960) p. 293 at p. 313; Th. Bertheau, DasNew Yorker Abkommen vom 10. Juni
1958 iiber die Anerkennung und Vollstreckung auslhdischer Schiedsspriiche (Winterthur
1965) p. 102.
248
Enforcement Award
This provision of the proposal was deleted as it was considered superfluous. It is, however, helpful in interpreting Article IV.
The Australian implementing Act40 may also be mentioned in this context as it
provides in Section 9(5):
"A document produced to a court in accordance with this section is, upon mere
production, receivable by the court as prima facie evidence of the matters to
which it relates."
The conditions mentioned in Article IV are the only conditions with

which the party seeking enforcement of a Convention award has to
comply. This principle of Article IV has been affirmed by several courts?'
in addition, requires in SecIt may be noted that the Indian implementing
tion 8(l) (c) that the party seeking enforcement shall produce "such evidence as
may be necessary to prove that the award is a foreign award." This requirement,
which originates from the Geneva Convention of 1927, is not one which is listed in
Article IV of the New York Convention and must, therefore, be considered to be
contrary to it.
It also supersedes domestic law in respect of conditions t o be fulfilled by a party seeking enforcement of a foreign award. In this connection two remarkable Mexican decisions may be
In both
cases the party against whom the enforcement of the award, made in
Paris and New Yorlc respectively, was sought, had asserted that the
Mexican courts should have received the award by means of a letten
rogatory from the court in the country in which the award was made as
required by Article 302(1) of the Mexican Code of Civil Procedure for
the Federal District. Both Mexican courts held that the letters rogatory
were not required because the enforcement was governed by the New
York Convention, the conditions of Article IV having been satisfied.
Both decisions are remarkable because they counterbalance the frequently heard complaint that the Latin American world is hostile to
international commercial a r b i t r a t i ~ n . ~ ~
The question has come up whether the fulfillment by the claimant of
the conditions mentioned in Article IV is indispensable for theadrnissi40. See for references, Annex C.
41. E.g., Areios Pagos, decision no. 926 of 1973 (Greece no. 3); Corte di Appello of Rome,
September 24, 1973, Intercommerce v. Menaguale (Italy no. 9); Tribunal Superior de ust ti cia
[Court of Appeals] (5th Chamber) of Mexico, D.F., August 1, 1977, Malden Mills Inc. v. Hilaturas Lourdes .A. (Mexico no. 2).
43. Tribunal Superior de Justicia, 18th Civil Court of First Instance of Mexico, D.F., February 24, 1977, Presse Office .A. v. Centro Editorial Hoy .A. ( ~ e x i c ono. 1);Tribunal Superior
de Justicia [Court of Appeals1 (5th Chamber), supra n. 41.
44. See also Corte di Appello of Messina, May 19, 1976, Wieland M.G. v. Societi Industriale
Meridionale (Italy no. 34) in which it was held that Art. IV(2) supersedes Art. 123 of the
Italian Code of Civil Procedure according to which the translation should be made by an official
translator appointed by the judge during the judicial proceedings, see infra at n. 84.
Enforcement Award
249
bility o f the application for enforcement. The text of Article IV states

namely ". . . shall, at the time of the application, supply . . .". This
p h a s e has, however, not formed an impediment for several courts t o
allow a claimant to cure, subsequent to the application, the non-fulfillment of the conditions without dismissing the application. For instance, the Supreme Court of Austria considered, in a case where the
claimant had only submitted the authenticated original award, that the
lack of fulfillment of the condition t o submit the arbitration agreement
as prescribed by Article IV(1) (b) of the Convention did not justify a refusal of enforcement, but could be cured in the manner provided in the
'
a United States Court of
Austrian Code of Civil P r ~ c e d u r e . ~Similarly,
Appeals rejected the motion of the respondent t o dismiss the application
for enforcement on the ground that the claimant had hiled to submit
the authenticated original or certified copy of the award since the claimant had cured this failure subsequent to the motion.46 These decisions
can be deemed t o be in conformity with the purpose of Article IV t o
ease as much as possible the conditions to be fulfilled by the party seeking enforcement of the award. Accordingly, the phrase "at the time of
the application" as used in Article IV should not be interpreted too
strictly, and it should be allowed that a claimant can complete the conditions during the
One may even go further. It may be argued that under certain circumstances a court may be satisfied that the documents submitted t o it
represent true copies of the arbitration agreement and award although
they are not certified. The same could apply t o an original award which
is not authenticated. This was, for instance, the opinion of the District
~ ~ respondent in that case had objected to the
Court in M i ~ h i g a n .The
application for enforcement in that it did not comply with Article %V
of the Convention since only copies rather than the originals or certified copies of the arbitration agreement and award had been submitted
by the claimant. The Court found, however, that the purpose of Article
IV had been met by the claimant and that "the respondent may not assert such technical deficiencies t o defeat or delay confirmation of a valid
award."
For compliance with Article IV it is, of course, necessary that the
claimant supply at least the arbitration agreement and arbitral award.
45. Oberster Gerichtshof, November 17, 1965 (Austria no. I), referring to Sects. 84 and 85
of the Austrian Code of Civil Procedure and Sect. 78 of the Law 011 Execution.
Baruch Foster Corp. (U.S. no. 10) at p. 336 n. 4.
47. Accord, P. Schlosser, Das Recht der in ternationalen privaten Schiedsgerichtsbarkeit
(Tiibingen 1975) no. 806.
48. U.S. District Court, E.D. Michigan, S.D., March 15, 1977, Audi-NSU Auto Union A.G. V .
Overseas Motors Inc. (U.S. no. 16).
250
Enforcement Award
The above liberal interpretations of Article IV concern the manner in

which the conditions should be complied with, i.e., that Article %Vshould
not be applied too strictly as far as the time of submission of the documents and the authentication and certification are concerned. On the
other hand, as far as the translation of both documents as mentioned
in the second paragraph. of Article IV is concerned, it is arguable that
this requirement may be dispensed with a l t ~ g e t h e r . ~ ~
Furthermore, if a copy of the arbitration agreement or award is submitted, it must reflect the original in its entirety. Thus, if the h b i t r a tion Rules agreed to in the parties9 agreement provide that the parties
will receive only an extract of the award which is merely signed by the
President of the Arbitration Committee of the arbitral institution and
not by the arbitrators who made the award, such a copy of the award
does not comply with Article IV.50 It implies also that Article IV cannot be modified by an agreement of the parties.
An aspect of Article IV which has not been dealt with in the court decisions is the
Does this
mention in sub-paragraph (b) of the "agreement referred to in article 119'.
phrase imply that the party seeking enforcement should prove that the arbitration
agreement complies with the requirements of Article 11, and especially of the second paragraph of that Article that the agreement be in writing? The history, text,
and system of the Convention are against such interpretation. It was inserted by the
Drafting Committee of the Conference whose task was limited. t o making a linguistically proper and consistent wording of the text of the Convention; it was not discussed during the Conference itself. Furthermore, the text of Article IV states that
a claimant has to "supply" the documents in the form as mentioned in that Article;
he does not need to prove their validity under the other provisions of the Convention. It is the party against whom the enforcement is sought who has to prove that
the agreement does not comply with Article 11: Article V(1) provides that enforcement may be refused if the respondent furnishes "proor', whilst ground a for refusal of enforcement listed in that Article mentions "agreement referred to in article II".51
111-2.2
Authentication and Certification under Article IV(1)
Article IV(1) requires that the party seeking enforcement of the

award supply the ""duly authenticated" original award or a "duly certified" copy thereof as well as the original arbitration agreement or a
"duly certified" copy thereof. The requirement of authentication and
certification of the documents t o be submitted according to Article IV
raises a certain number of questions which may be largely answered by
the legislative history.
49. See infra 111-2.3.

50. Oberlandesgericht of Cologne, June 10, 1976 (F.R. Germ. no, 14).
5 1. See infra 111-4.1.3.3 ("Applicability of Article 11").
Enjbrcernen t Award
25 I
The first question is the distinction between an authenticated original

of the award, on the one hand, and a certified copy of the award and
the agreement, on the other. The authentication of a document is the
formality by which the signature thereon is attested to be genuine. The
certification of a copy is the formality by which the copy is attested to
be a true copy of the original. The authentication therefore concerns the
signature, whilst the certification concerns the document as a whole.
The Geneva Convention of 1927 required that the copy of the award
be "duly authenticated". The wording "d~uly authenticated" for the
copy of the award appeared also in the ECOSOC Draft Convention of
1955. However, Working Party No. 3 provided that the copy was to be
"duly certified". The change in the wording is indeed appropriate as it
is more usual to certify a copy for a true copy than to authenticate the
signature on a copy.
The second question is the difference in the text of Article IV according t o which the original award needs to be authenticated, whereas such
authentication is not necessary for the original arbitration agreement.
The Working Party No. 3 had proposed for what later became Article
IV: "(a) The original arbitration award or a duly certified copy thereof;
(b) The original arbitration agreement . . . or duly certified cop[y] thereof." At the New York Conference the Belgian delegate proposed to
amend the Working Party's text by inserting the wording "duly authenticated" before the original award and agreement. He pointed out that
the original documents required under sub-paragraphs (a) and (b) would
not be of much value unless the signatures were duly authenticated. The
Israeli delegate asked for a separate vote for sub-paragraphs (a) and (b).
He had no objection to the authentication of the signature of the arbitrator, but he could see no need to authenticate the signatures of the
parties on the agreement as they appeared before the court in the enforcement proceedings. To this observation the French delegate added
that the provision of the original arbitration agreement should not be
subjected to excessive requirements: in many cases arbitration was based
merely on an arbitral clause agreed to in an exchange of correspondence
between the parties. This led t o the adoption of the Belgian proposal to
amend sub-paragraph (a), but t o the rejection of the proposal to amend
sub-paragraph (b).52
It is to be mentioned that the discussion and voting on the Belgian
proposal took place during the Conference at a time when Article II(2)
concerning the written form of the arbitration agreement had not yet
been submitted to the Conference's consideration. If that had been the
case, an argument in addition to the French objection against the Belgian proposal to amend sub-paragraph (b) would have been that the au-
25 2
Enforcement Award
thentication of the original arbitration agreement would have been at

odds with Article II(2) as that Article does not require the signatures of
the parties in the case of an arbitration agreement concluded by an exchange of document^.'^
The third question is according to which law the original award should
be authenticated or the copy of the agreement and award should be certified. This law is not mentioned in Article IV, having been deliberately
omitted by the drafters of the Convention. The Geneva Convention of
192'7 required in its Article 4(l)(l) that the award be authenticated "according to the requirements of the law of the country in which it was
made." The ECOSOC Committee which prepared the Draft Convention
of 1955 left out the specification of the law applicable to the authentication. In the Report accompanying the Draft Convention it explained the
omission by stating that it was "preferable to allow a greater latitude with
regard to that question to the tribunal of the country in which the recognition or enforcement was being requested.9954The omission was
accepted by the Conference without any discussion in depthOs5
The omission is not to be interpreted in the sense that the question of
authentication and certification is now left exclusively to the law of the
country in which the enforcement of the award is sought (lex fori), as
certain authors maintain.56 This interpretation is too restrictive. Rather,
the "greater latitude9' allowed the court before which the enforcement is sought must be understood to mean that the court may apply,
instead of the law of the country in which the award is made, as was the
case under the Geneva Convention, also its own law.
Prof. Gaja shares the view of the authors referred to above that the lex fori applies
t o the authentication and certification, but specifies that under this law the authen,~~
tication of the award in the country of origin may be considered s ~ f f i c i e n t The
specification may be true for certain laws, but would still give a too limited effect
to Article IV as it does not offer a claimant the option to comply with either law in
all cases (see for the option hereafter).
The above interpretation that a court may apply either law may be
further reinforced by the purpose of Article IV to ease as much as possible the conditions to be fulfilled by the party seeking enforcement.
This would imply the rule that the court should apply that law which
upholds the validity of the authentication or certification. To infer such
a rule from Article IV of the Convention would not be anything ex-
5 3. See supra 11-2.3.2 ("Whether Signatures Are Necessary ").

54. UN DOC El2704 and Corr. 1, para. 55.
55. UN DOC ElCONF.26lSR.17. See, however, for a related discussion, infra at n. 59.
56. P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen
1975) no. 806; K.-H. Schwab,Schiedsgerichtsbarkeit, 3d ed. (Munich 1979) p. 430.
57. G. Gaja, "Introduction", in New York Convention (Dobbs Ferry 1978-1980) I.C. 1.
Enforcement Award
253
traordinary as it is in fact an application of the increasingly accepted

modem principle of conflict law, namely, the application of the law of
validation (lex v a l i d i t a t i ~ ) . ~ ~
The foregoing is also based on the consideration that the party seelcing enforcement of the award should have the option for the authentication or certification of complying either with the requirements of the
law of the country in which the award was made, or with those of the
law of the country in which the enforcement is sought. In practice, it
means, for example, that the authentication or certification can be requested either at a diplomatic or consular agent of the country in which
the award was made located in the country in which the enforcement is
sought, or at a diplomatic or consular agent of the country in which the
award is sought t o be enforced located in the country in which the award
was made, or at any other authority which may be sufficient under
either law.
An indication that a party has this option can again be found in the legislative history. After the adoption of the Belgian amendment t o sub-paragraph (a) t o insert
"duly authenticated" before the original arbitral award, the delegate of Monaco had
proposed t o add "by the consulate of the country where the award is relied upon".
This proposal was rejected by the C o n f e r e n ~ e The
. ~ ~ rejection of this proposal apparently was inspired by the desire not t o limit the possibility of authentication,
and by in~plicationthe certification, t o the authorities of one country.
However, as the interpretation that either law can be applied is not

well established, practice has shown that the safest solution is t o request the authentication or certification at the diplomatic or consular
agent of the country in which the enforcement of the award is sought
located in the country in which the award was made.
In order to avoid any confusion, it should be noted that the latter
course usually corresponds with the law of the country in which the
enforcement of the award is sought. It therefore appears that the practice has a preference for compliance with a law which is opposite to the
law that was required by the Geneva Convention (i.e., the law of the country in which the award was made). It is not so surprising as courts have
a natural tendency t o prefer the application of their own law.
Judicial support for the above interpretation concerning the question
of the law governing the authentication and certification according t o
Article IV(1) of the Convention can be found in a decision of the Austrian Supreme
The Court observed:
58.See generally, 6. Delaume, Transnational Contracts. Applicable Law and Settlement

of Disputes (Dobbs Ferry 1978-1980)Sects. 4.14 and 4.15.
60. Oberster Gerichtshof, June 11, 1969 (Austria no. 3); see also infia n. 65.
254
Enforcement Award
"Pursuant to Article IV of the New York Convention, to which Bulgaria also has
adhered, it is required for the enforcement of an award that together with the
request for enforcement the claimant supply the authenticated original arbitral
award or a copy thereof, the conformity of which with the original is duly certified, as well as the original arbitration agreement or a copy thereof, the conformity of which with the original is also duly certified. The Convention does not
make clear whether the arbitral award and the arbitration agreement must comply with the requirements for authenticity or trueness obtaining in the country
in which, or under the law of which, the arbitral award is made, or whether they
also must comply with the requirements for legalisation of foreign documents in
the country in which the award is relied upon. Consequently, according to the
Convention the claimant is not obliged to go to the foreign mission of the country in which he wishes to request the enforcement. . . . In order to avoid difficulties it is, however, recommended to have the copies certified by the foreign
mission of the country whose courts will be requested to recognize or enforce
the arbitral award . . . but this is not obligatory."
Other courts have not r e f e ~ e dt o the law governing. the authentication and certification under Article IV. However, as weshall see presently,
the courts readily accept that an authentication or certification is sufficient for the purposes of Article IV(1).
It should be added that the implementing Acts of Ghana and India
contain provisions regarding the present question which not only deviate from the above interpretation that either law may be applied, but
also in certain respects from the text of Article IV of the Convention itself.61
For sub-paragraph (a) concerning the award, both implementing Acts contain a provision similar to Article 4(1)(1) of the Geneva Convention of 1927 which requires:
"The original award or a copy thereof duly authenticated in the manner required
by the law of the country in which it was made." For sub-para. (b) concerning the
arbitration agreement, the Indian implementing Act contains a provision ("The
original agreement for arbitration or a duly certified copy thereof ") which is similar
to the wording of Article IV(1) (b) of the New York Convention, but which, in
view of what is provided for sub-paragraph (a), would mean that the certification
should take place in the manner required by the law of the country in which it was
made.
The Ghana implementing Act, oddly enough, confirms the above interpretation
of sub-paragraph (b) that both laws can be applied. The provision of the Ghana Act
reads:
"The agreement pursuant to which the award was made or a copy thereof duly
authenticated in the manner required by the law of the country in which it was
made or in such other manner as may be sufficient according to the law of Ghana."
Leaving aside that the word "authenticated" should read "certified", one wonders
why the same could not have been provided for sub-paragraph (a) in the Ghana Act.
Presumably, the difference originates from the erroneous idea that an award is a
kind of official document for which authentication would be different than for a
61. Ghana: Aibitration Act 1961, Act No. 38 of 1961, Sect. 38(1). India: Foreign Awards
(Recognition and Enforcement) Act 1961, Act No. 45 of 1961, Sect. 8(1).
Enforcement A ward
255
private document such as an arbitration agreement between the parties. This idea
is erroneous because an arbitral award made by arbitrators who are private persons
must also be considered as a private document until a leave for enforcement, attestation, confirmation, or the like has been apposed on it by a judicial authority.
Finally, we may quote Section 9(2) of the Australian implementing Act in which
an attempt is made t o "translate" the "greater latitude" as follows:
"For the purposes of sub-section ( I ) , an award shall be deemed to have been duly
authenticated, and a copy of an award or agreement shall be dee'med to have
been duly certified, if (a) it purports to have been authenticated or certified, as the case may be, by
the arbitrator or, where the arbitrator is a tribunal, by an officer of that tribunal,
and it has not been shown t o the court that it was not in fact so authenticated
or certified; or
(b) it had been otherwise authdnticated or certified to the satisfaction of the
court."
This provision of the Australian Act gives the court the power t o assess the authenticity and certification according t o what the court deems correct and therefore implements Article IV(1) in all respects.
The fiurth question is which authority is competent to authenticate

or certify. The answer to this qyestion depends in the first place on the
law applied to the authentication and certification. As observed above,
the courts have refrained from referring to a specific law in regard of
this question, with the exception of the Austrian Supreme Court. They
appear, however, to be quite liberal in accepting that an original award is
authenticated or a copy of an award or agreement is certified. This may
at least be inferred from the cases decided so far in none of which it has
been held that the authentication or certification was i n ~ u f f i c i e n t . ~ ~
For the authentication of the original award it is generally sufficient
t o have this formality accomplished by a diplomatic or consular agent
of the country in which the enforcement is sought located in the country where the award was made. For example, a Swiss court held that
Article IV(1) (a) was complied with where the original award, made .in
.~~
Rotterdam, was authenticated by the Swiss consul in R ~ t t e r d a m This
usually corresponds with the application of the law of the country in
which the enforcement of the award is sought. As explained above, the
62. An exception is Oberlandsgericht of Cologne, June 10, 1976 (F.R. Germ. no. 14), see
supra at n. 50.
63. Obergericht of Basle, June 3, 1971 (Switz. no. 5). In Tribunal de grande instance (Commercial Chamber) of Strasbourg, October 9, 1970, Animalfeeds International Corp. v. .A.
A. Becker et Cie (France no. 2) the claimant was uncertain whether one authentication would
do; he became a true autograph collector: the arbitrators' signatures on the awards, which were
made in Hamburg under the Arbitration Rules of the Association of Grain Merchants of the
Hamburg Exchange, were authenticated by the Secretary of the Association, whose signature
,was authenticated by the Chamber of Commerce of Hamburg, whose signature was authenticated by the Senate of Hamburg, whose signature was finally authenticated by the French consul in Hamburg. It is obvious that this chain of signatures was a waste of ink and time. The
claimant could have better gone directly to the French consul. Another example of such chain
can be found in Oberster Gerichtshof, June 11, 1969 (Austria no. 3), see infva n. 65.
25 6
Enforcement Award
application of the law of the country in which the award was made can
also be deemed a possibility implied in Article IV. The latter usually envisages the authentication by the competent authority of the country
in which the award was made. That authority may be a judicial officer,
a notary, etc., in that country, or a diplomatic or consular agent of that
country located in the country in which the enforcement of the award
is
The production of a certified copy of the award occurs frequently in
practice. This is not so surprising.since arbitral institutions or arbitrators
often keep the original in their files and provide the parties with a copy.
The authority competent for the certification of the copy is, in principle,
the same as the one competent for the a u t h e n t i c a t i ~ n Certain
.~~
courts
have also accepted a copy of the original award which was certified by
the Secretary of the arbitral institution under whose auspices the arbitration had taken place.66
The production of a certified copy of the original arbitration agreement occurs less frequently in practice as a party normally has the original arbitration agreement in his possession. Contrary to the original
award which needs to be authenticated, the original arbitration agreement can, pursuant to Article IV(1) (b), be produced without being
authenticated. In principle, the same authorities competent for the certification of the copy of the award can be generally deemed competent
for the certification of a copy of the arbitration agreement.
The fifth question is whether, in the case of a certified copy of the
The text of
award, the original award should also be a~thenticated.~"
64. This occurred, for example, partially in the case decided by the Tribunal de grande instance of Strasbourg, supra n. 63.
65. Tribunal Superior de Justicia, 18th Civil Court of First Instance of Mexico, D.F., February 24, 1977, Presse Office S.A. v. Centro Editorial Hoy S.A. (Mexic~no. 1): the copy of the
award, which was made in Paris, was certified by the Mexican consul in Paris. In Oberster Gerichtshof, June 11, 1969 (Austria no. 3) the copy of the award, which was made in Bulgaria,
was certified by a Bulgarian notary. The notary's signature, however, led to the following
chain: it was authenticated by an official of the Ministry of Justice of Bulgaria, whose signature
was authenticated by the Ministry of Foreign Affairs of Bulgaria, whose signature was finally
authenticated by the Austrian embassy in Bulgaria. Here again (see supra n. 63) one wonders
why the claimant has not gone directly to the Austrian embassy in Bulgaria.
66. E.g., Corte di Appello of Milan, December 13, 1974, S.a.S. C.I.P.R.A. di Schmutz &
Co. v. Pezzota Camillo (Italy no. 12): the copy of the award, which was made in Hamburg
under the Arbitration Rules of the Hamburg Commodity Association, was certified by an
official of that Association; Oberlandesgericht of Hamburg, July 27, 1978 (F.R. Germ. no. 18):
the copy of the award, which was made in London under the Arbitration Rules of the London
Metal Exchange, was certified by the Secretary of the Exchange.
67. This is the opinion of A. Bulow, "Das UN-Ubereinkommen uber die Anerkennung und
Vollstreckung auslandischer Schiedsspruche", 20 Konkurs-, Treuhand- und Schiedsgerichtswesen (1959) p. 1 who observes at p. 9: "Der Schiedsspruch kann in Urschrift oder in ordnungsmassig beglaubigter Abschrift vorgelegt werden (Art. IV Abs. 1 Buchst. a). In beide Fallen
muss jedoch die Urschrift des Schiedsspruchs legalisiert sein." (emphasis added) [The arbitral
award may be submitted in the form of an original award or in the form of a duly certified copy
(Art. IV(1) (a)). The original award must, however, be authenticated in both cases.]
Enforcement Award
25'3
Article IV(l) (a) is ambiguous on this point: in the phrase ' T h e duly
authenticated original award or a duly certified copy thereof", the word
"thereof" may refer t o the original award alone or to the original award
as authenticated. It is true that, strictly speaking, a certified copy does
not say anything about the authenticity of the signature on the original
award as it only establishes that the copy is a true copy of the original.
The requirement t o produce a copy of an authenticated original would,
however, be a rather excessive fonmalism which is contrary to the spirit
in which Article IV is drafted. Moreover, the legislative history as outlined above indicates that the wording "duly authenticated" was intended only for the case where the original is produced, especially since
that wording was a later insertion into the text. The interpretatioiz is
also belied in practice as in no case where a certified copy of the award
was produced did it appear that the original was a ~ t h e n t i c a t e d . ~ ~
A sixth question concerns the Hague Convention Abolishing the Requirement of
Legalisation for Foreign Public Documents of October 5 , 196 1.69The Convention
replaces the legalisation - which is the same as authentication - by diplomatic or
consular agents of foreign documents by a certificate called an "apostille" (there
is apparently no English equivalent for this word). The "apostille" is issued by
the competent authority of the country from which the document emanates and
is a relatively simple formality. An arbitrai award, being a private document, does
not fall under the Hague Convention which applies only to public documents. If,
however, a leave for enforcement (exequatur or the like) has been granted on the
award by the court of the country in which it is made, the original award can be
considered to have become a public document on which the "apostde9' may be
apposed. The addition of the "apostille" on such an award can be deemed t o
meet the requirement of Article IV(1) (a) of the New York C o n ~ e n t i o n . ~ ~
The declaration of enforceability of the award by the court in the country of
68. It may be noted that an authentication of the signature of the person who has certified
the copy of the award occurs in practice. An example of this practice, which would appear
redundant, is Tribunale of Naples, June 30, 1976, Societi La Naviera Grancebaco S.A. v. Italgrani (Italy no. 22): the copy of the award, which was made in London, was certified by an
English notary, whose signature was certified by the Italian consul in London. This practice
may also lead to overly formalistic chains of signatures, as witnessed by the Austrian case cited
in supra n. 65.
69. The English and French texts of this Convention are published in Hague Conference on
Private International Law ed., Recueil des Conventions 1951-1977 (The Hague 1977) p. 56.
The following States have adhered to the Convention (March 1, 1981): Austria, Bahamas, Belgium, Botswana, Cyprus, Fiji, France, F.R. Germany, Hungary, Israel, Italy, Japan, Lesotho,
Liechtenstein, Luxembourg, Malawi, Malta, Mauritius Island, Netherlands, Portugal, Seychelles,
Spain, Surinam, Swaziland, Switzerland, Tonga, United Kingdom, United States and Yugoslavia. Art. 2 of the Convention defines legalisation as "... the formality by which the diplomatic
or consular agents of the country in which the document has to be produced certify the authenticity of the signature, the capacity in which the person signing the document has acted
and, where appropriate, the identity of the seal or stamp which it bears."
70. in this sense Oberlandesgericht of Hamburg, May 21, 1969 (F.R. Germ. 6). This case was
somewhat complicated by the fact that the claimant was able to submit a grosse of the French
award only. The award was deposited with the registry of the Tribunal de grande instance of
Paris whose President had subsequently granted the leave for enforcement (ordonnance d'exequatur) on the award. The Tribunal issues then an official document, called a grosse, on which
&
258
Enforcemen t A ward
origin raises another question, viz. whether the award can still be considered as an
award for the purposes of the Convention or has become a judgment. This question
whether the award merges into the judgment on the award will be examined later.'l
111-2.3
Translation (Art. HV(2))
The second paragraph of Article IV provides that a party seeking enforcement has to produce a translation of the arbitral award and the arbitration agreement if they are not made in the official language of the
country where the award is relied upon. The translation must further be
certified as correct. by an official or sworn translator or by a diplomatic
or consular agent. This provision raises two questions. Must a translation
be produced in all cases where a foreign language is used? And, secondly,
by whom must the translation be certified as correct, and must a certification be obtained in all cases?
In regard to the first question, a difference between the Geneva Convention and the New York Convention should again be mentioned.
Whilst the Geneva Convention provides in Axticle 4(2) that a translation
"may be demanded", the New York Convention provides in Article HV(2)
that the party seeking recognition and enforcement "shall
a
translation. The permissive language of the Geneva Convention could
also be found in the ECOSOC Draft Convention of 1955 and the Dutch
proposal t o amend Articles 11%-Vof the Draft Convention (""may be required"). However, in one of the proposals t o amend the Dutch proposal, the permissive language was changed into the mandatory language of
The latter expression was taken over by Working
"shall
Party No. 3 for no specified reason and adopted by the Conference without disc~ssion."~
Perhaps the idea prompting the change t o the mandatory language
was that in practice a court would always require a translation of documents submitted to it into its own language. This idea may be considered as somewhat out of date as currently most internati~nalarbitral
awards are made in English and judges generally have a good command
of English. It would have been preferable if the permissive language of
the Geneva Convention had remained. The costs of translating documents
are substantial, especially where recent arbitral awards sometimes tend
t o be as lengthy as a doctorate thesis.
the actual enforcement can be pursued. The Oberlandesgericht held that the grosse, on which
an "apostille" was apposed in France, was sufficiently equivalent to a duly certified copy of
the award within the meaning of Art. IV(1) of the New York Convention.
71. See iizfia 111-4.5.2.3 ("Merger of Award into Judgment").
72. It was contained in a proposal of the delegate of F.R. Germany (UN DOC ElCONF.261
L.34).
Enforcemen 2' Award
1I
1/
1
I
259
It may therefore be argued that a party seeking enforcement of an

award made in a foreign language need not produce a translation when
he applies for enforcement if the court may be deemed t o know the language of the award. He may await the request of the court or the respondent for such translation. If the court deems the translation necessary or the other party, with a justified interest, so requests, the party
seeking enforcement is indeed obliged t o produce a translation.
The question of the production of a translation is comparable with
the requirement of the first paragraph of Article IV t o supply the authenticated original award or a certified copy thereof and the original
arbitration agreement or a certified copy thereof. In 111-2.2 we have
seen that the failure t o produce these documents may be cured during
the proceedings and that in ceitain cases the authentication or certification may even be dispensed with. Similarly, under the second paragraph
it must be deemed not t o be an essential condition for the request for
enforcement that a translation be produced at the time of the application, whilst the certification, about which more presently, may also be
dispensed with. The difference is that under the first paragraph the documents should ultimately be produced, whilst under the second paragraph it is arguable that the translation needs t o be produced only if it
is requested. The latter interpretation of Article IV(2) is, however,
neither supported nor denied in any of the court decisions reported so
far, except in the following Butch case.
The President of the Court of First Instance of The Hague assumed that the party
seeking enforcement of an award made in the United States did not wish to base his
request on the New York Convention since he had not supplied a Dutch translation
of the award made in English.74 Referring to the difference between the Geneva
Convention and the New York Convention, the President reasoned that "the translation is prescribed compulsorily by the New York Convention" [emphasis by the
President]. It is submitted that this opinion is too formalistic and does not give due
account to the idea of flexibility underlying Article IV.
It may be mentioned that the law implementing the New York Convention in
Denmark of 1972 provides in Section 2(2) that the enforcement authority "may
demand a certified translation of the award and the arbitration agreement" [emphasis added].75
An aspect of the second question is: the authority of which country

can be deemed competent t o certify the translation? It is t o be noted
that, as is the case for the authentication and certification in the first
74. President of Rechtbanlc of The Hague, June 23, 1972, Weinstein International Corp. v.
Nagtegaal N.V. (Neth. no. 5).
75. See for references concerning this Law, Annex C. It may be mentioned that the Court of
Appeal of Athens, decision no. 2768 of 1972 (Greece no. 2), held that Art. IV does not require
the award t o be served upon the respondent translated into his own (Greek) language, as a prerequisite for the application for enforcement.
260
Enforcement. A ward
paragraph, the drafters specifically did not mention the nationality of

the translator or diplomatic or consular agent who is to certify the
translation as correct. The Geneva Convention of 1927 required that the
translation be certified as correct by a diplomatic or consular agent of
the country to which the party who seeks t o rely upon the award belongs or by a sworn translator of the country where the award is relied
upon. The specification of the countries was omitted in the ECOSOC
Draft Convention of 1955. The Committee of ECOSOC explained the
omission by declaring that the specification in the Geneva Convention
"was too cumbersome and could give rise t o difficulties in
The final text remained as proposed by ECBSOC without having been
subject to discussion at the New Uorlc Conference.
Here again, the drafters of the Convention appear to have had the
intent to provide for the greatest possible flexi.bbility for compliance
with the positive conditions of enforcement of a Convention award. The
same principles as are applicable to the certification under the first paragraph of Article IV can therefore be deemed applicable t o the certification of the translation as correct under the second paragraph. Accordingly, the certification may take place according t o the law of the country in which the award is made or according t o the law of the country
in which the award is relied upon. Correspondingly, the party seeking enforcement has, as a rule, the option t o have the translation certified by
an official or sworn translator of the country in which the award is
made or of the country in which the enforcement is sought, or by a
diplomatic or consular agent of either country.77
If the translation is made by an official or sworn translator of either
country, the certification as correct is of course not necessary as this
would be s u p e r f l u o ~ s .Consequently,
~~
one may answer in the negative
t o the other aspect of the second question, i.e., whether the translation
76. UN DOC E/2704 and Corr. 1, para. 56.

77. In this sense Oberster Gerichtshof, June 11, 1969 (Austria no. 3). The reasoning of the
Court was the same as quoted supra at n. 60. The translation in this case was made by the
Ministry of Foreign Affairs of Bulgaria, but at the end of the opinion it appeared that an
Austrian sworn translator had certified the translation as correct. Accord, Th. Bertheau, Das
New Yorker Abkommen vom 10. Juni 1958 uber die Anerkennung und Vollstreckung auslandischer Schiedsspriiche (Winterthur 1965) p. 103; Biilow, supra n. 67, at p. 9. But see, P.
Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) no.
806, who is of the opinion that the certification of the translation as correct can be made only
by a diplomatic or consular agent of the country in which the enforcement is sought, while he
states that "The translator need not be recognized in the country in which the enforcement is
sought". P. Pointet, La Convention de New-York sur 1 'exe'cution des sentences arbitrsles
e'trangsres (Zurich 1958) writes at p. 13 that the Swiss delegation to the New York Conference
had declared that it interpreted Art. IV(2) in the sense that a translation made by a notary
ranks the same as a translation made by an official or sworn translator, which interpretation
had not been contested by the Conference.
Enforcement Award
26 1
m u s t b e certified as correct in all cases. Nevertheless, in order to avoid

difficulties it is advisable to obtain a certification.
Certain implementing Acts have attempted to fill in the omission in Article IV(2).
The Acts of Ghana and India contain again a reminiscence of the Geneva Convention as they provide that a translation "in the English language" is to be produced
which is "certified as correct by a diplomatic or consular agent of the country to
which that party belongs . . .".79This would give a too limited effect to Article IV(2)
of the New York Convention. Moreover, for the purposes of Article IV(2) it is not
the law of the country t o which the party belongs which should be taken into account; rather, it is the law of the country in which the award is made or the law of
the country in which the enforcement is to be sought. To this there may be added
that a diplomatic or consular agent of the country to which the claimant belongs
may not be the appropriate authority t o certify a translation as correct: if the original language and the translation of the award are not the language of the country
t o which the claimant belongs, it is difficult to see how a diplomatic or consular
agent of that country could certify the translation as correct. However, the Acts of
Ghana and India offer a possibility to circumvent these problems as they add: "or
certified as correct in such other manner as may be sufficient according t o the law
of [Ghana] [India]."
The Australian implementing Act provides in Section 9(4) that the translation is
t o be "certified by a diplomatic or consular agent in Australia of the country in
which the award was made or otherwise t o the satisfaction of the court." Especially
the last part of this provision can be said to give full effect t o the flexibility which
the drafters intended t o confer upon Article IV.
Except for the above-mentioned Dutch decision, the requirement of

a translation of the arbitration agreement and arbitral award as provided
by Article IV(2) has not led t o difficulties in practice. In several decisions it is merely stated that Article IV(2) has been complied with as a
translation by a sworn translator had been submitted, without indicating
the applicable law or the country t o which the translator belongs.89
In a Swiss decision it was held that Article IV(2) was met as the translation by a
translator in the Netherlands of an award made in Rotterdam was certified by the
Swiss consul in RotterdamSa1In another Swiss decision, again concerning an award
made in the Ne,therlands, Article IV(2) was also deemed t o be complied with as the
award was translated by a sworn translator in ~ w i t z e r l a n d .In~ ~a Mexican decision
79. Ghana: Arbitration Act 1961, Act No. 38 of 1961, Sect. 38(2). India: Foreign Awards
(Recognition and Enforcement) Act 1961, Act No. 45 of 1961, Sect. 8(2).
80. E.g., Oberlandesgericht of Hamburg, July 27, 1978 (F.R. Germ. no. 18); Tribunal de
grande instance (Commercial Chamber) of Strasbourg, October 9, 1970, Animalfeeds International C o p . v. .A. A. Becker et Cie (France no. 2). It is to be noted that the certification of
the translation as correct is not mentioned in either decision. This confirms the view that in the
case of a translation by an official or sworn translator, no certification as correct is needed (see
supra at n. 7 8).
82. Cour de Justice (1st Section) of the Canton Geneva, September 17,1976, LBopold Lazarus Ltd. v. Chrome Ressources .A. (Switz, no. 6).
262
Enforcement Award
it was not revealed who made the translation of an award made in France in French,
but the Court stated that the translation was certified as correct by an official translator appointed for this purpose by the
Finally, an Italian decision may be
mentioned in which it washeld that Article IV(2) supersedes Article 123 of the Italian Code of Civil Procedure according to which the translation should be made by
an official translator appointed by the judge during the judicial proceeding^.^ This
decision affirms the principle stated in 111-2.1 supra that Article IV of the Convention supersedes domestic law in respect of the conditions t o be fulfilled by the party
seeking enforcement of an award falling under the Convention.
The brief review of the court decisions in respect of Article IV(2) of

the Convention indicates that the courts generally accept that the translation is made by an official or sworn translator either of the country
in which the award was made or of the country in which the award is
relied upon, or the translation is certified as correct by an official or
sworn translator of either country. The certification of the translation
by a diplomatic or consular agent of the country in which the award is
sought to be relied upon has also been held sufficient. It has not yet occurred that a translation was certified by a diplomatic or consular agent
of the country where the award was made located in the country in
which the award is sought t o be enforced, but this will undoubtedly suffice as well.
111-2.4
The purpose of Article IV being to ease as much as possible the conditions to be fulfilled by the party seeking enforcement of an award,
this Article is to be interpreted in a liberal sense (pp. 246-247).
By complying with the conditions of Article IV to produce the authenticated original award or a certified copy thereof and the original
arbitration agreement or a certified copy thereof, as well as, if these
documents are made in a foreign language, their translation, a party
seeking enforcement of an award produces prima facie evidence entitling
him to obtain enforcement of the award (pp. 247-248).
The conditions mentioned in Article IV are the only conditions with
which the party seeking enforcement has to comply (p. 248).
Article IV supersedes domestic law in respect of conditions to be fulfilled by a party seeking enforcement of a foreign award (p. 248).
The failure to submit the documents mentioned in Article IV(1) does
83. Tribunal Superior de Justicia, 18th Civil Court of First Instance of Mexico, D.F., February 24, 1977, Presse Office S.A. v. Centro Editorial Hoy S.A. (Mexico no. 1).
84. Corte di Appello of Messina, May 19, 1976, Wieland 1C.G. v. Societi Industriale Mericlionale (Italy no. 34).
Enforcement Award
263
not cause the automatic dismissal of the request for enforcement, but
may be cured during the proceedings (pp. 248-250).
The authentication of the original award or the certification of the
copy of the award or arbitration agreement may be made in accordance
with either the law of the country in which the enforcement of the award
is sought or the law of the country in which the award is made (pp.
250-256).
In the case of the production of a certified copy of the award there is
no need to have the original authenticated (pp. 256-257).
The production of a translation as required by Article IV(2) is not
essential for the request for enforcement of the award, but may be done
later in the proceedings. It may be argued that the translation is to be
produced only if the court or the respondent so requests (pp. 258-259).
The certification of the translation as correct may take place according to the law of the country in which the award is made or according
to the law of the country in which the award is relied upon (pp. 259262).
264
Enforcement Award
PART 111-3 GROUNDS FOR REFUSAL OF ENFORCEMENT

GENEML (ART. V)
111-3.1
Main Features of the Grounds for Refusal of

Enforcement
The main features of the grounds for refusal of enforcement of an

award under the New Uork Convention may be best highlighted by listing the improvements in comparison with the Geneva Convention of
1927. Under the Geneva Convention the party seelting enforcement had
the burden of proving a considerable number of conditions. In addition,
the court before which the enforcement was sought could refuse enforcement if it was "satisfied" that one of a certain number of other
grounds impeding enforcement as mentioned in the Geneva Convention
was present. Furthermore, the party against whom the enforcement was
sought could object t o the enforcement by asserting any other cause of
invalidity of the award under the law governing the arbitration. The
Du tcli proposal to amend the ECOSOC Draft Convention of 1955, which
followed the Geneva Convention to a large extent, considerably ameliorated this cumbersome scheme.
In the foregoing Part we saw that one of the objectives of the Dutch
proposal was t o transform most of the conditions to be fulfilled by the
party seelting enforcement into grounds for refusal of enforcement.
What has remained for the party seeking enforcement is merely the production of the arbitration agreement and award, the production of which
constitutes prima facie evidence entitling him t o the enforcement of the
award (Art. IV).
As far as the grounds for refusal are concerned, the Dutch proposal
led to a clearer organization and a more precise definition. The grounds
for refusal of enforcement are concentrated in one single Article V. They
are further divided into two parts. Firstly, listed in the first paragraph of
Article V, are the grounds for refusal of enforcement which are t o be
proven by the respondent. Secondly, listed in the second paragraph of
Article V, which only concerns the violation of public policy of the law
of the forum, is the ground on which a court may refuse enforcement
on its own motion.
The main feature that the respondent has the burden of proof t o
show the existence of the grounds for refusal enumerated in Article V(1),
as noted, constitutes a considerable improvement in comparison with the
Geneva Convention. This main feature has been unanimously affirmed by
the courts. They frequently explicitly state that the respondent, having
the burden of proving the existence of one of the grounds for refusal mentioned in Article V(1), has failed to supply evidence of their existence."
d
Another improvement is that the grounds mentioned in Article V are

exhaustive. Enforcement may be refused "only if" the party against
whom the award is invoked is able to prove one of the grounds listed in
Article V(1), or if the court finds that the enforcement of the award
would violate its public policy (Art. V(2)). Thus the respondent can no
longer assert any cause for invalidity of the award under the law governing the arbitration as could happen under the Geneva Convention. This
main feature has also been unanimously affirmed by the courts.86
A further main feature of the grounds for refusal is that no review o f
the merits of the arbitral award is allowed. The feature that Article V
does not allow a review of the merits of the arbitral award has also been
affirmed by the courts. In view of several specific aspects of this feature,
it will be dealt with separately in the following Section 111-3.2. In fact,
the grounds for refusal of enforcement are restricted to causes which
may be considered as serious defects in the arbitration and award: the
invalidity of the arbitration agreement, the violation of due process, the
award extm or ultra petita, the irregularity in the composition of the
arbitral tribunal or the arbitral procedure, the non-binding force of the
award, the setting aside of the award in the country of origin, and the
violation of public policy.
It is t o be noted that the opening lines of both the fbst and the second
paragraph of Article V employ a permissive rather than mandatory language: enforcement " m y be9$refused. For the first paragraph it means
that even if a party against whom the award is involted proves the existence of one of the grounds for refusal of enforcement, the court still
has a certain discretion t o overrule the defence and t o grant the enforcement of the award. Such overruling would be appropriate, for example,
in the case where the respondent can be deemed t o be estopped from
invoking the ground for refusal. For the second paragraph it would mean
that a court can decide that, although the award would violate the domestic public policy of the court's own law, the violation is not such as
t o prevent enforcement of the award in international relations. The lat-
85. E.g., President of Tribunal de grande instance of Paris, May 15, 1970, Compagnie de
Saint-Gobain - Pont $ Mousson v. Fertilizer Corporation of India Ltd. (FCIL) (France no. 1):
respondent had failed to prove his allegation that the award had not become binding in the
country where it was made (i.e., India) (Art. V(1) (e)); the same was held by the President of
Rechtbank of Amsterdam, December 14, 1977 (Neth. no. 4) in respect of an award made in
Romania, and by the Court of Appeal of Patras, decision no. 469 of 1974 (Greece no. 4), in
respect of an award made in New York; Corte di Appello of Florence, October 8,1977, Bobbie
Broolts Inc. v. Lanificio Walter Banci S.a.S. (Italy no. 29): respondent had failed to prove his
allegation that the arbitral procedure had not been conducted in conformity with the applicable
Arbitration Rules of the American Arbitration Association (Art. V(1) (d)).
86. E.g., Areios Pagos, decision no. 926 of 1973 (Greece no. 3); U.S. District Court, E.D.
Michigan, S.D., March 15, 1977, Audi-NSU Auto Union A.G. v. Overseas Motors Inc. (U.S.
no. 16); President of Rechtbank of The Hague, April 26, 1973 (Neth. no. 3); Corte di Appello
of Naples, February 20, 1975, Carters (Merchants) Ltd. v. Francesco Ferraro (Italy no. 21).
266
Enforcement Award
ter distinction between domestic and international public policy will be

examined later.87
The question of estoppel has been dealt with in the context of the question whether
a party can be estopped from invoking non-compliance with the written form of the
. ~ addition
~
arbitration agreement as required by Article II(2) of the C o n v e n t i ~ n In
' to the court decisions concerning this question of Article II(2), discussed before,
to the court decisions in which the issue of estoppel has come up are, inter alia,
the following: Court o f Appeal o f Hamburg - defendant was held to be estopped
from invoking that the arbitration agreement was concluded under the pressure of a
dominant economic or social position of the other party (Sect. 1025(2) of the German Code of Civil Procedure, which could, according to the Court, be applied pursuant to Art. V(2) (b) of the Convention) as the defendant had participated in the
arbitration without raising any objection in this respect.89 United States Court o f
Appeals - defendant was held to be estopped from contesting the impartiality of
the presiding arbitrator (Prof. Rene David) as he brought up this ground only months
after the award had been renderedew Court of Appeal of Cologne - the Arbitration Rules of the Copenhagen Arbitration Committee for Grain and Feed Stuff
Trade provide that the parties are not informed of the names of the arbitrators; the
defendant was held not to be estopped from invoking Article V(l) (b) of the Convention on the ground that he had not requested the list of the panel of arbitrators
in order to delete the names he did not want, as he would have been unable to examine whether the names deleted by him would effectively have been excluded.gP
Greek Supreme Court - lack of power of attorney in writing to conclude arbitration agreement on the principal's behalf could have been remedied if the principal
had appeared before the arbitrators and had participated in the proceedings without
making any r e ~ e r v a t i o n . ~ ~
The exceeding by an arbitrator of his powers (Art. V(1) (c)) as well as the composition of the arbitral tribunal or the conduct of the arbitral procedure not in conformity with the agreement of the parties (Art. V(l) (d)) may also be considered as
provisions of the Convention which may involve estoppel. They have not, however,
been subject to judicial decisions in which the issue of estoppel has been raised.
Another improvement of the New York Convention's scheme for enforcement of an award is the elimination of the 'klouble exequatur".
Under the Geneva Convention the party seeking enforcement of an award
had to prove that the award had become "final" in the country in which
it was made. In practice this could be proven only by producing an exequatur (leave for enforcement or the like) issued in the country in
which the award was made. As the party had also to acquire a leave for
enforcement in the country in which he sought enforcement, this
87. See infra 111-5.1 ("Public Policy in General").

88. See supra 11-2.2.3(c).
89. Oberlandesgericht of Hamburg, October 14, 1964 (F.R. Germ. no. 5); see also infra at
n. 165.
Baruch Foster Corp. (U.S. no. 10); see also supra at n. 21.
9 1. Oberlandesgericht of Cologne, June 10,1976 (F.R. Germ. no. 14).
92. Areios Pagos, January 14, 1977, Agrimpex .A. v. J.F. Braun & Sons Inc. (Greece no. 5).
Enforcement Award
267
amounted to the system of "double exequatur". The thought prevailed

at the New York Conference that the acquisition of a leave for enforcement in the country where the award was made was an unnecessary
time-consuming hurdle, especially since no enforcement was sought in
that country. Moreover, it could lead to delaying tactics on the part of
the respondent who could forestall the award becoming final by instituting setting aside procedures in the country in which the award was
made.
The elimination of the "double exequatur" is achieved in two ways.
In the first place, the word ""final" is replaced by the word "binding"
in order t o indicate that it does not include the exequatur in the country of origin (Art. V(1) (e)). Inlthe second place, it is no longer the party
seeking enforcement of the award who has to prove that the award has
become binding in the country in which the award is made; rather, the
party against whom the enforcement is sought has to prove that the
award has not become binding. We will consider this feature of the Convention in more detail.g3
A certain number of authors also stress what they consider as another
improvement contained in Article V(1) : the contractual autonomy o f
the parties. Pursuant to Article V(1) (a) the parties have the freedom to
designate the law applicable t o the arbitration agreement. Pursuant to
k t i c l e V(l) (e) they have the same freedom for designating the law applicable t o the award. And according to Article V(1) (d) they would
even have the freedom to detach, by their agreement, the composition
of the arbitral tribunal and the arbitral procedure from any national
arbitration law. It may be doubted whether these provisions concerning
the parties9 contractual autonomy truly constitute an i m p ~ o v e m e n t . ~ ~
The overall scheme which inspired the above iniprovements is the
facilitation of the enforcement of an award. The scheme reflects a "proenforcement bias9>as certain United States courts have saidg5, or resorting t o Latin, constitutes a praesumptio juris tanturn for the enforceability of an award, as one Italian court expressed i t g 6
This is also the manner in which Articles IV-VIE have t o be interpreted. As far as the grounds for refusal of enforcement of the award as
enumerated in Article V are concerned, it means that they have to be
93. See infra 111-4.5.2 ("Award Not 'Binding' ").

94. See especially supra 1-1.6.2 ("Does the A-national Award Fall under the Convention?"),
infia 111-4.1.3 ("Law Applicable to Arbitration Agreement"), and 111-4.4.2 ("Role of the Law
of the Country Where the Arbitration Took Place According to Article V(1) (d)").
95. E.g., U.S. Court of Appeals (2nd Cir.), December 23, 1974, Parsons & Whittemore Overseas Co. Inc. v. SociBtB GBnBrale de 1'Industrie du Papier (RAKTA) (U.S. no. 7).
Ferraro (Italy no. 21).
26 8
Enforcemen t A ward
construed narrowly.97 More specifically, concerning the grounds of refusal of Article V(1) to be proven by the respondent, it means that theh
existence should be accepted in serious cases only; obstructions by respondents on trivial grounds should not be allowed. Concerning the
ground for refusal of Article V(2) t o be applied by the court on its own
motion, it means that a court should accept a public policy violation in
extreme cases only, thereby using the distinction between domestic and
international public policy. As we will see in the following two Parts,
the courts have generally interpreted Article V in this manner.
The courts have also interpreted and applied the Convention in accordance with the above listed main features regarding the grounds for
refusal of enforcement. However, from the theoretical point of view,
some courts still seem to have difficulties in applying the Convention's
principle that it supersedes domestic law concerning the enforcement o f
foreign awards.9s They first refer to a ground for refusal of enforcement
under their own law regarding the enforcement of foreign awards, and
then state that this ground is "confirmed" by a corresponding ground
listed in Article V of the New York Convention. Although the outcome
has always been the same as if these courts had not taken into account
grounds other than those listed in Article V of the Convention, this manner of applying the Convention is rather incorrect. The grounds for refusal of enforcement mentioned in Article V, or, as the case may be, in
the corresponding Article in the implementing Act, are exclusive if the
enforcement is governed by the Convention, and do not leave any room
for reference to the law of the forum on this point.
Another rather incorsect application of Article V of the Convention
is that some courts do not expressly mention on which ground of this
Article they rely, but only refer to the Convention in a general way. This
application of Article V by implication is unfortunate as it does not always give precise information as to which ground for refusal of Article V
of the Convention the court had in mind. Both the claimant and the respondent must be deemed entitled to this information.
Bearing in mind the above main features of the grounds for refusal
of enforcement of a Convention award, the following two Parts will be
devoted t o an examination of the grounds for refusal t o be proven by
the party against whom the enforcement is sought as enumerated in Arb
97. E.g., U.S. Court of Appeals (2nd Cir.), May 29, 1975, Copal Co. Ltd. v. Fotochrome Inc.
(U.S. no. 3); U.S. Court of Appeals (2nd Cir.), December 23, 1974, Parsons & Whittemore
Overseas Co. Inc. v. Soci6tB GBnBrale de llIndustrie du Papier (RAKTA) (U.S. no. 7); U.S.
District Court of New Jersey, .May 12, 1976, Biotronik Mess- und Therapiegerate G.m.b.H. &
Co. V. Medford Medical Instrument Co. (U.S. no. 8).
98. The principle that Art. V supersedes the grounds for refusal of enforcement of foreign
awards under domestic law was, for example, affirmed expressly by the Court of Appeal in the
case decided by the German Supreme Court on February 12,1976 (F.R. Germ. no. 12).
Enforcemen t Award
269
ticle V(1) (Pal? 11%-4), and the ground provided in Article V(2) for refusal of enforcement relating t o public policy which may be applied on
its own motion by the court before which the enforcement is sought
(Bart 111-5). Before turning to this examination, one important feature
of the grounds for refusal, that the enforcement court may not review
the merits of the arbitral award, is to be dealt with in more detail.
111-3.2
No Review of the Merits of the Arbiltral Award
It is a generally accepted interpretation of the Convention that the

court before which the enforcement of the foreign award is sought may
not review the merits of the award. The main reason is that the exhaustive list of grounds for refusal of enforcement enumerated in Article V
does not include a mistake in fact or law by the arbitrator. Furthermore,
under the Convention the task of the enforcement judge is a limited
one. The control exercised by him is limited to verifying whether an
objection of a respondent on the basis of the grounds for refusal of Article V(1) is justified and whether the enforcement of the award would
violate the public policy of the law of his country. This limitation must
be seen in the light of the principle of international commercial arbitration that a national court should not interfere with the substance of the
arbitration. Accordingly, it has, for example, been held that the objection that the arbitrator wrongly applied German law t o the substance of
the dispute is not a defence under the C o n ~ e n t i o n . ~ ~
Italian cour1;s have exhibited a prodlonvention attitude especially
in regard t o the Convention's principle that no review on the merits of
the arbitral award is allowed. It contrasts sharply with the parochial approach of the majority of the courts in Italy in interpreting Article II(2)
of the Convention concerning the written form of the arbitration agreement. Article 798 of the Italian Code of Civil Procedure provides that an
Italian court may review the merits of a foreign decision under certain
circumstances. This provision of Italian law enjoys great popularity
amongst the Italian parties against whom the enforcement of a foreign
award is sought as is witnessed by the considerable number of cases
reported under the New York Convention. Invariably, however, the Italian courts have turned down the request for review of the merits of the
award. The Italian lower courts have held with a remarkable unity that
Article 798 of the Italian Code of Civil Procedure is superseded by the
New York Convention which does not provide for a review of the merits
of the arbitral award. The Italian Supreme Court has limited itself t o
270
Enforcemen t A ward
holding that Article 798 does, in general, not apply to foreign arbitral
awards.loO
The request for a review of the merits of an award falling under the New York Convention has been rejected by the Italian courts, inter alia, in the following cases:
the award was made in the absence of the Italian respondent (the most frequently
invoked case) lol ; the award contains an error in facts and new evidence has been discovered after the rendition of the awardlo2; the award was obtained by fraudlo3;
the award does not clearly establish the legal succession of the claimantlW;a court
action between the same parties on the same subject matter is pending before the
Italian courtslo5; the award does not contain reasons.lM
Certain problems would seem t o exist in Romania. I t is reported that the Romanian courts wiU only enforce a foreign award "if the award is reckoned t o be
reasonable".lo7 However, it is to be noted that these reports mention only that, in
several cases, Romanian State enterprises, having lost an arbitration in London,
would refuse to honour the award, alleging that the "awards are subject t o serious
criticism" whilst they invite the foreign party "to come t o Bucharest t o settle the
claims informally". As far as it could be researched, no Romanian court has expressly
held that it could review the merits of a foreign award, neither in a case falling under the New York Convention nor in cases falling outside the Convention. It may
be added that, although parties from Socialist countries enjoy a good reputation for
honouring awards rendered against them, it is not unusual that they attempt t o use
a final award as a basis for a subsequent settlement.
The principle of the New York Convention that the court may not
review the merits of the arbitral award does not mean that it will not
look into the award when it is necessary t o ascertain whether a ground
for refusal of enforcement mentioned in Article V is present. Thus, if
the party against whom the award is invoked asserts that enforcement
100. Corte di Cassazione (Sez. I), April 18, 1978, no. 1842, Eugenio Menaguale v. Intercommerce (Italy no. 25); February 2, 1978, no. 459, Catz International N.V. v. Vaccaro S.p.A.
(Italy no. 30). In the latter case the New York Convention was not applied, although there is
no doubt that this could have been done; the outcome, however, would have been the same if
the Convention had been applied. See G. Mirabelli, 'The Application of the New York Convention by the Italian Courts", in Yearbook Vol. IV (1979) p. 362 at p. 370.
101. Corte di Appello of Naples, December 13, 1974, Frey et al. v. Cuccaro e Figli (Italy
no. 11); Corte di Appello of Venice, May 21, 1976, S.A. Pando Compania Naviera v. S.a.S.
Filmo (Italy no. 16); Corte di Appello of Naples, February 20, 1975, Carters (Merchants) Ltd.
v. Francesco Ferraro (Italy no. 21); Corte di Cassazione (Sez. I), February 2, 1978, no. 459,
supra n. 100; Corte di Appello of Messina, May 19, 1976, Wieland 1C.G. v. Societi Industriale
Meridionale (Italy no. 34).
102. Tribunale of Naples, June 30, 1976, Societi La Naviera Grancebaco S.A. v. Italgrani
(Italy no. 22).
103. Corte di Appello of Florence, October 22,1976, S.A. Tradax Export v. S.p.A. Carapelli
(Italy no. 18); Corte di Appello of Naples (Salerno Section), February 13, 1978, G.A. Pap-1C.G.
Holzgrosshandlung v. Giovanni P. Pecoraro (Italy no. 36).
104. Corte di Cassazione (Sez. I), April 18, 1978, no. 1842, Eugenio Menaguale v. Intercommerce (Italy no. 25).
105. Corte di Appello of Milan, May 3,1977, Renault Jacquinet v. Sicea (Italy no. 27).
Banci S.a.S. (Italy no. 29).
107. "Rumblings about Romania", The Economist FinancialReport of March 1, 1979, p. 1.
Enforcement- Award
2'7 1
should be refused in virtue of Article V(1) (c), because the award deals
with a difference not contemplated by the terms of the submission to
arbitration, or contains decisions on matters beyond the scope of the
submission to arbitration, the court has to investigate the award in order
t o evaluate the rightness of such an assertion.lo8 Similarly, the court may
have to go into the award in order to find out whether it violates public
policy as provided in Article V(2).lo9 In both cases, however, the court's
scrutiny of the award is strictly limited to ascertaining whether the award
contains things which may give rise to a refusal of enforcement on one
of the grounds mentioned in Article V; it does not involve an evaluation
by the court of the arbitrator's findings.
As mentioned before, the assertion that the arbitrator has misinterpreted facts or law is not a dkfence under the New York Convention.
This must be deemed not to be different if it is alleged that the arbitrator has made more serious mistakes in the reasoning of the award,
for instance, that the reasoning is in contradiction with the decision or
the reasoning is itself contradictory.
An example of the latter type of allegation is the Got-averken v.
G N M E case. In opposition t o the request for enforcement of this ICC
award before the Supreme Court of Sweden, the Libyan respondent
GNMTC had alleged that, whilstthe arbitrators had declared in the reasoned part of the award that the Libyan party was justified in refusing
t o take delivery of the vessels constructed by the other party, the Swedish shipyard Gotaverken, they had ordered GNMTC in the decisional
part of the award to take delivery of the vessels.'1 The Swedish Supreme Court declined to go into this objection on the ground that the
New York Convention does not allow a review of the merits of the
award.' l'
The Swedish Supreme Court was definitely correct hi not going into
the objection as it would have exceeded the task of the enforcement
court under the New York Convention. The only possibility for
GNMTC to contest the award was to institute setting aside proceedings
in France, the country in which the award was made. Tt has, in fact,
done so, but has been unsuccessful so far for other reasons.''"
On the other hand, the Dutch Supreme Court appasently sees public
policy as a cause leading to the refusal of enforcement if the arbitrator
has proceeded in his reasoning in a grossly negligent manner. This can
108. See inpa 111-4.3.

109. See infra 111-5.
110. Award of April 5, 1978, made in the cases nos. 2977, 2978 and 3303, published in
Yearbook Vol. VI (1981) p. 133.
1 11. Supreme Court, August 13, 1979, GNMTC v. Gotaverken (Sweden no. 1).
112. See supra 1-1.6.2 ("Does the 'A-national' A w a ~ dFall under the Convention?").
272
Enforcement Award
be inferred from an additional observation in its decision in the second

Dutch round of the SEEE v. Yugoslavia case.l13 The Court of Appeal of
The Hague had refused the enforcement in this case on public policy
grounds, reasoning tha-t the arbitrators had misconstrued a settlement
agreement of 1950 reached between France and Yugoslavia in the dis. pute.'l4 The Dutch Supreme Court first affirmed the principle of the
New York Convention under discussion by declaring that, in giving
another interpretation of the agreement than the arbitrators had done,
the Court of Appeal had exceeded its task as enforcement judge. The
Supreme Court pointed out that the enforcement judge has to accept
the facts as determined by the arbitrators; his task is limited to an investigation as to whether there exist grounds for refusal of enforcement as
provided in the New York Convention. The Supreme Court, however,
added:
"This may be different if the enforcement judge finds that, in determining the
facts on which the decision is based, the arbitrators have proceeded irm such a
negligent manner that already for this reason the enforcement of the award would
be contrary to the public policy of the country in which the enforcement of the
award is sought . . . ."
The Supreme Court found that this was not established by the Court
of Appeal, nor had it been alleged by Yugoslavia.
It is submitted that any form of examination as -to how the arbitrator
has arrived at his decision is beyond the task of a court before which the
enforcement of a Convention award is requested. The question whether
an arbitrator has proceeded in his reasoning in a grossly negligent manner
would involve a marginal control by the court over the merits of the
award. It would therefore involve an evaluation by the court of the
findings of the arbitrator. This form of control, marginal as it may be,
is not only excluded under the Convention because the Convention does
not allow a review of the merits of the award; it must also be deemed
excluded because the enforcement court is not the appropriate authority
for exercising such control. The division of judicial control over the
award as provided by the Convention is such that if a party desires to
challenge a badly reasoned award, he should go to the courts of the
country in which the award is made and, there, request the setting aside
of the award. The courts of that country are the appropriate authorities
to decide on such a challenge. If the courts in the country of origin, indeed, set aside the award because the arbitrator has proceeded in a grossly
negligent manner, then the courts of the other Contracting States may
refuse enforcement of the award by virtue of the second part of Article
113. Hoge Raad, November 7,1975 (Neth. no. 2D).

114. Hof of The Hague, October 25,1974 (Neth. no. 2C).
Enforcemen i- Award
273
V(1) (e) of the Convention. In addition, if the courts of the other Contracting States were allowed to exercise a control over the merits of the
arbitral award, it would have the undesirable effect of an invitation t o
dissatisfied respondents to attempt to re-open the debates on the merits
before the courts of wherever enforcement is requested. Consequently,
even a marginal.contro1 over the merits of the award must be deemed
t o be excluded by the Convention, and therefore can not be brought
under the public policy provision. In its additional observation, which
was also unnecessary in this case, the Dutch Supreme Court must be
deemed t o have misconceived the limitations put on the enforcement
judge under the Convention." ls
In this connection it may be mentioned that the United States Court
of Appeals for the Second Circuit doubted whether the defence that
the award is made in "manifest disregard of the law" was a defence permitted by the Convention.l16
Section 10 of Chapter 1 of the United States Arbitration Act, which applies to dom'estic arbitration in federal cases, has been held to include an implied defence t o
the enforcement where the award is in "manifest disregard of the law".117 This defence does not concern an erroneous finding of facts or misinterpretation of the
law by the arbitrator, but would be present where the arbitrators have shown t o understand and have correctly stated the law, but have proceeded t o disregard the same.
I t is also said that it presupposes something beyond or different from a mere error
in law or a failure of the arbitrator t o understand or t o apply the law. This defence
can rarely be made in practice, not only because it rarely occurs but also because
awards in the United States usually do not contain reasons.lls The Court of Appeals
in the above case held that the case did not require t o decide on the question as the
respondent was in effect asking the court "to read this defense as a license to review the record of arbitral proceedings for errors of fact or law - a role which we
emphatically decline to assume. . . ." For the reasons given above, it must be deemed
that the defence of "'manifest disregard of the law" is not one which can be made
against the enforcement of an award falling under the Convention.'lg
115. In the same critical sense, P. Sanders in his case comment in Weekblad voor Privaatrecht, Notariaat en Registratie no. 5394 (1977) p. 362 at p. 364.
116. U.S. Court of Appeals (2nd Cir.), December 23, 1974, Parsons & Whittemore Overseas
Co. Inc. v. Soci6t6 GBn6rale de lYIndustriedu Papier (RAKTA) (U.S. no. 7).
117. The U.S. Supreme Court observed in Wilko v. Swan, 346 United States Supreme Court
Reports (1953) p. 427 at p. 436: "In unrestricted submissions ... the interpretation of the law
by the arbitrators in contrast to manifest disregard [is] not subject, in the federal courts, to
judicial review for error in interpretation."
11 8. See M. Dornke, TheLawandPructice of CommerciulArbitration (Mundelein 1968-1979)
Sect. 25.05.
119. Accord, J. Junker, "The Public Policy Defense to Recognition and Enforcement of
Foreign Arbitral Awards", 7 California Western International Law Journal (1977) p. 228 at
p. 235-237.
274
111-3.3
Enforcement Award
Uniform Intevrcetation (and Su
The party against whom the enforcement of the award is sought has
the burden of proving the existence of the grounds for refusal of enforcement listed in the first paragraph of Article V. The court before which
the enforcement is sought may refuse enforcement on its own motion
for reasons of public policy as provided in the second paragraph of ATtitle V (p. 264).
The grounds for refusal listed in Article %I' are exhaustive; no other
grounds than those mentioned in that Article may be taken into account
for determining whether enforcement should be granted (p. 26 5).
In particular, they do not include a review of the merits of the arbitral award by the court before which the enforcement is sought. This
applies even if the arbitrator has manifestly erred in facts or law (p. 265
and pp. 269-273).
The grounds for refusal of enforcement listed in both paragraphs of
Article %I have t o be construed narrowly (pp. 267-268).
They supersede the grounds for refusal of domestic law regarding the
enforcement of foreign awards if the enforcement is governed by the
Convention (p. 268).
Enforcement A ward
275
PART 111-4 GROUNDS FOR REFUSAL OF ENFORCEMENT TO

BE PROVEN BY THE WSPONDENT (ART. V(%))
111-4.1
Ground a: Invalidity of the Arbitration Ageement
Article V(1) (a) of the Convention provides:

""Recognition and enforcement of the award may be refused, at the
request of the party against whom it is invoked, only if that par@ furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article I%were, under
the law app~cableto them, under some incapacity, or the said agreement is not valid under the law to which. the parties have subjected it
or, failling any indication thereon, under the law of the country where
the award was made;"
111-4.1.1 1ncapacP'I;V of a party
The cause of invalidity of the arbitration agreement that "The
parties . . . were, under the law applicable to them, under some incapacity" has a curious historical background. The Geneva Convention of
1927 did not contain this cause in so many words, but provided in
Article 2 ( l ) (b) that enforcement of an award should be refused if the
court was satisfied:
"That the party against whom it is sought to use the award was not given notice
of the arbitration proceedings in sufficient time to enable him to present his
case; or that, being under a legal incapacity, he was not properly represented;"
(emphasis added)
Thus in the Geneva Convention the incapacity of a party was expressly dealt with only in the context of an improper representation in
the arbitral proceedings. Both the ECOSOC Draft Convention of 1955
and the Dutch proposal to amend the latter contained almost identical
wording. Thereupon the Conference decided to delete the express
reference to a respondent under a legal incapacity on the grounds that
such cases would seldom arise in practice.lZ0 It therefore did not appear in the text of Articles 111-V prepared by Working Party No. 3 .
At the opening of the last session of the Conference the Dutch delegate said that he was not entirely happy with the wording of Article
120. This appears from a statement made by the Norwegian delegate made at the Conference: UN DOC E/CONF.26/SR.17.
276
Enforcement A ward
V(1) (a). He reasoned that the Geneva Convention of 1927 was concerned with the improper representation of a party in the arbitral
proceedings, which is exceptional. On the other hand, Article V(1) (a)
relates to the invalidity of the arbitration agreement, in which case an
incapacity is not so theoretical: for instance, a State or public body
may not be allowed to arbitrate, or, when concluding the agreement, a
corporation may not have been represented in an adequate manner. He
considered it useful to make this clear in Article V(1) (a), along with
the other causes of the invalidity of the agreement.
The Dutch delegate's motion to reconsider Article V(1) (a) was, however, voted down by the Conference. Nevertheless, in the last minutes
of the same session the Dutch delegate put forward a proposal for a
new text of Article V(1) (a), prepared by him in the meantime, which
included the additional wording "The parties . . . were, under the law
applicable to them, under some incapacity". Despite the protests of the
Russian delegate that the proposed text of Article V(1) (a) in fact departed from the text previously adopted t o a far greater degree than the
Dutch delegate had explained, the Conference voted in favour of it.l2'
The result is a noticeable difference between the Geneva Convention
and the New York Convention. The Geneva Convention spoke, in fact,
merely about the improper representation of a party in the arbitral
proceedings. The New York Convention speaks now about the incapacity of a party to conclude the arbitration agreement. It should be added,
however, that the New York Convention has not done away with the
case of improper representation of a party in the arbitral proceedings.
Article V(1) (b) provides as ground for refusal of enforcement that a
party "was not given proper notice of the appointment of the arbitrator
or the arbitration proceedings". It appears from the legislative history
that the word " p r ~ p e r ' was
~ included in ground b for the case of the
improper r e g r e ~ e n t a t i 0 n . l ~ ~
The drafters of the Convention left open the question how the law
applicable to a party - also referred to as the 66"prsona1law" - is to be
determined. The question must therefore be resolved by means of the
conflict of laws rules of the law of the court before which the enforcement of the arbitral award is sought. These conflict rules are different
in the various countries, ranging, in the case of a physical person, from
the law governing the nationality of a party to domicile or habitual
residence, and in the case of a legal person, from the place of incorporation to the place of business.
There are, however, States, like the United States, which do not have
121. U N DOC E/CONF.26/SR.24.

122. See infra 111-4.2.3(a) at n. 196-197.
Enforcement Award
277
a specific personal law for the capacity to conclude an agreement, but

determine this question according to the law of the place of conclusion
of the agreement or the law governing the agreement.123It is questioned whether the phrase "under the law applicable to them" would supersede these conflict rules of the latter countries and would oblige them
t o conceive a personal law for the sole purpose of Article V(1) (a) of
It is submitted that this is unnecessary. The phrase
the C0nventi0n.l~~
in Article V(1) (a) gives a half-way conflict rule since what is to be considered as the personal law is still to be determined by the conflict rules
of the forum. In view of the fact that the phrase does not give a complete conflict rule and hence does not guarantee a uniform method
for determining the applicable law, it may be deemed to be permitted,
by analogy, t o substitute for the incomplete conflict rule of Article
V(l) (a) the complete conflict rules of the forum in those countries
where the personal law rule is unknown.
It should, however, be emphasized that the specific mention of the
applicable law in respect of the incapacity of a party to conclude an
arbitration agreement underscores that the capacity of a party is not
necessarily to be determined under the same law as the law applicable
to the arbitration agreement. For the determination of the latter law,
Article V( 1) (a) contains uniform conflict rules.
Notwithstanding the concerns of the Butch delegate for which he
desired a distinct mention of the incapacity of the parties in Article
V(1) (a), this cause has not been invoked before the courts so far. In
anticipation of possible future cases, it would be tempting to go into
the various cases in which the incapacity of a party could play a role.
This would, however, carry too far in view of the limited scope of this
study. On the other hand, because of the increasing importance of
the question of the capacity of the State or a public body to conclude
an arbitration agreement, this question cannot be left aside and will be
dealt with in the following Sub-section.
111-4.1.2 State or public bod) as party to the arbitration agreement
With the advent of Socialist States and developing countries, the participation of States, State trading agencies, and other bodies of public
law (hereafter briefly referred to as State) in the international commercial life has increased tremendously. The type of contracts concluded
123. American Law Institute, Restatement of the Law Second - Conflict o f Laws 2d (St.
Paul, Minn., 1971) Sect. 198 jo Sects. 187-188.
.124. See P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) no. 355.
278
Enforcement Award
between a State and a foreign private party involve particular aspects

which have been extensively dealt with in international case law, international arbitrations and literature.12'
Where this type of contract contains an arbitral clause, which occurs
quite frequently, the first question is whether the State has the capacity
to agree to arbitration. This question depends in the first place on the
law of the State concerned. It may also depend on the law of the forum
before which the State is sued, and, as the case may be, the international conventions to which that State has adhered. An example of such
convention is the Washington Convention of 1965 on the Settlement of
Investment Disputes Between States and Nationals of Other States.126
The national laws contain different solutions for this question. When
concluding a contract with a State, a foreign private party is, in any
case, well advised to consult the laws of the State concerned.l27
The question of the capacity of a State t o agree to arbitration can be
considered to be encompassed by the broad wording of Article V(1) (a)
that "The parties . . . were, under the law applicable t o them, under
some incapacity". There is no case reported so far in which a State has
invoked the incapacity to agree to arbitration under its own law when
the enforcement of an award was sought against it. On the other hand,
it may be mentioned that in an action for the enforcement of an arbitration agreement, in which case the provisions of Article V(1) (a) must
be deemed to be applicable as
the respondent, the Tunisian
Electricity and Gas Company, had asserted that it was prohibited from
resorting t o arbitration (i.e., in Geneva under the ICC Rules) under
Tunisian law. Without express reference to Article V( 1) (a) of the Convention, the Court of First Instance of Tunis rejected this defence on
125. See for one of the most recent discussions of the subject, the awards made between
Libya and TOPCO (preliminary award: November 27, 1975; award on the merits: January 19,
1977; published in 17 International Legal Materials (1978) p. 3, and extract in Yearbook Vol.
IV (1979) p. 177), between Libya and BP (October 10, 1973; published in 53 International
Law Reports (1979) p. 297, and extract in Yearbook Vol. V (1980) p. 143), and between Libya
and LIAMCO (April 12, 1977; published in 20 International Legal Materials (1981) p. 1, and
extract in Yearbook Vol. VI (1981) p. 89). These awards contain extensive references to international case law, other international awards and literature. They exemplify that there is still
no communis opinio regarding the various aspects of contracts between States and foreign private parties and arbitration relating thereto: although the cases involved almost identical concession agreements and nationaIization measures, the arbitrators in each arbitration (Prof.
Red-Jean Dupuy, Mr. Justice Gunnar Lagergren and Mr. Sobhi Mahmassani) reached quite
opposite conclusions. See for the two former awards, my "Comparative Table TOPCO v. Libya
and BP v. Libya", in Yearbook Vol. V (1980) p. 161. See for a number of very useful surveys,
including many references, the Progress Reports prepared by Prof. M. Domke for the Committee on International Commercial Arbitration Between Government-Controlled Bodies and
Foreign-Owned Businessfirms of the International Law Association (1966 through 1975).
126. See supra I-4.4.3a.
127. See for this question the National Reports under Chap. 11.2 in the Yearbooks.
128. See supra 11-1.1.3.
Enfircement Award
279
the grounds that this prohibition does not apply in the case of intemational commercial arbitration."' The Court referred in this connection
to French case law according to which French entities of public law
may not resort to arbitration in domestic relations, but are bound by an
arbitral clause in international contracts.130 This distinction between
domestic and international cases for resolving the question of the capacity of a State to agree to arbitration is gaining more and more acceptance.
It may be added that, although the text of the New York Convention
does not contain an express provision regarding the capacity of a State
to enter into an arbitration agreement, the expression in Article 1(1)
"differences between persons, whether physical or legal" was inserted
in the Convention on the understanding that an arbitration agreement
and an arbitral award to which a State is a party are not excluded from
the ambit of the Convention.13' The expression appeared for the first
time in the ECOSOC Draft Convention, and it was explained by the
Committee of ECOSOC that:
""%he representative of Belgium had proposed that the article should expressly
provide that public enterprises and public utilities should be deemed to be legal
persons for the purposes of that article if their activities were governed by private law. The Committee was of the opinion that such a provision would be
superfluous and that a reference in the present report would suffice."132
There was no specific discussion of the question during the Conference, but several observations of the Conference delegates appear to
confirm the above statement of the Committee of ECOS0C'.133 It is
also the generally,accepted interpretation that the New York Convention applies also to arbitration agreements and arbitral awards to which
a State is a party, if it relates to a transaction concerning commercial
activities in their widest sense.134
129. Court of First Instance of Tunis, March 22, 1976, SociBtB Tunisienne d'Electricit6 et de
Gaz v. SociBtB Entrepose (Tunisia no. 1).
130. See Ph. Fouchard, L 'arbitragecommercial international (Paris 1965) nos. 161 et seq.
131. See also L. Cappelli-Perciballi, 'The Application of the New York Conventio-n to
Disputes Between States and Between State Entities and Private Individuals: The Problem of
Sovereign Immunity ", 12 The International Lawyer (1 978) p. 197.
133. See 6. Haight, Report on the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, Commission on International Commercial Arbitration of the International Chamber of Commerce, ICC Document no. 420190 of September 19, 1958, p. 3.
134. P. Sanders, "The New York Convention", in International CommercialArbitration Vol.
11 (The Hague 1960) p. 293 at p. 299; P. Contini, "International Commercial Arbitration - The
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards",
8 American Journal of Comparative Law (1959) p. 283 at p. 294; Haight, supra n. 133 at p. 4;
P. Schlosser, supra n. 124, no. 71, and Entwicklungstendenzen in Recht und Praxis der inter-
280
Enforcement Award
It may be observed that the European Convention of 1961"s provides expressly in Article II(1):
"In the cases referred to in Article I, paragraph 1, of this Convention, legal
persons considered by the law which is applicable to them as Yegal persons of
public law' have the right to conclude valid arbitration agreements."
Whereas the defence of the incapacity of a State to agree to arbitration

under its law has not been made in an enforcement procedure of an
award under the Convention, the related defence of immunity from suit
(also called immunity from jurisdiction) lzas been asserted in several
cases. In these cases the applicability of the Convention was not questioned on the ground that a State was involved as party to the agreement and award. This confirms implicitly that the Convention is t o be
considered to be applicable to this type of case as well.
The defence of immunity from suit has proven to be rather unsuccessful because of
the increasingly accepted distinction between acts performed by a State jure imperii,
and those performed jure gestionis. In the former case of acts jure imperii, the State
enjoys an absolute immunity from suit, whereas in the latter case of acts jure
gestionis, which includes the conclusion of a commercial transaction with a private
party, the State cannot claim immunity from suit. This distinction is known as the
doctrine of restricted immunity.136
An application of this doctrine can be found'in the decision of the Dutch Su. ' ~ ~Supreme Court rejected the
preme Court in the case of SEEE v. ~ u ~ o s l a v i a The
defence of Yugoslavia that the Dutch courts would have no jurisdiction over Yugoslavia because the latter, being a State, enjoyed immunity from jurisdiction, The
Court reasoned that there is an international tendency t o restrict cases in which a
State can invoke immunity in a foreign court, this tendency being influenced by the
fact that many States are entering into relations with private parties in areas govemed by private law. In these cases the private party should have the same legal protection as if it dealt with another private party. Accordingly, in such a case, a State
cannot invoke the immunity from jurisdiction.
The entering by a State into a contract including an arbitral clause with a,foreign
private party can also be considered as a waiver of immunity from jurisdiction in
nationalen privaten Schiedsgerichtsbarkeit (Karlsruhe 1976) p. 55 et seq. The interpretation

was expressly confirmed by Hof of The Hague, September 8,1972, SEEE v. Yugoslavia (Neth.
no. 2A).
135. See supra 1-4.4.2.
136. See for the question of immunity from suit in general, G. Delaume, Transnatioml
Contracts. Applicable Law and Settlement o f Disputes (Dobbs Ferry 1978-1980) Chapter XI,
dealing, inter alia, with such questions as which persons are entitled to immunity, what are to
be considered acts jure gestionis and jure imperii, when immunity can be deemed to be waived,
and procedural and jurisdictional issues.
137. Hoge Raad, October 26, 1973, SEEE v. Yugoslavia (Neth. no. 23). See for comment
on the Court's view on the question of immunity, A. Stuyt, "Misconceptions About International (Commercial) Arbitration", Netherlands Yearbook of International Law (1974) p. 35
at p. 50 et seq.
Enforcement Award
28 1
court proceedings connected with the arbitration. An example of this is a decision

of the United States District Court for the District of ~ o 1 u m b i a . l ~ ~
The Court rejected the defence of sovereign immunity made by Nigeria in the
enforcement procedure of an award rendered against it in Switzerland for breach of
a contract for the delivery of cement by a French company. The Court held that
under the United States Foreign Sovereign Immunities Act (FSIA) of 1976 the
conclusion of an agreement to arbitrate constitutes an implicit waiver of immunity.139
The FSIA was also used as a basis by the same Court for rejecting the plea of
sovereign immunity made by Libya in an enforcement action of an award rendered
against it in Switzerland for breach of oil concession agseements concluded with a
United States corporation.l* However, the Court considered the nationalization by
Libya an Act of State which was not arbitrable and refused enforcement in virtue
of Article V(2)(a) of the New York onv vent ion.'^^
It may also be mentioned here that another United States District Court refused
to enforce an arbitration agreement between a Dutch salvage company and the
United States concerning the salvage of a United States warship stranded off the
coast of the etherl lands.'^^ The Court held that by enacting the Public Vessels Act
of 1920, which gives exclusive jurisdiction to United States courts over cases involving matters concerning public vessels of the United States, the United States
Congsess did not intend to provide for a waiver of immunity which, in the case of
an arbitration agreement, would require the Government to go to arbitration in
matters covered by the Act.
It may be added that the immunity from suit or jurisdiction should be distinguished from the immunity from execution. Although the doctrine of restricted
immunity from suit is accepted by a significant number of countries, albeit with
differing modalities, a considerable number of them do not accept the application
of the doctrine of restricted immunity t o the immunity from execution, which
immunity they still hold to be absolute, primarily for reasons of avoiding delicate
political ~ i t u a t i 0 n s . lThis
~ ~ is, for example, confirmed by the Washington Conven-
138. U.S. District Court of Columbia, September 25, 1978, Ipitrade International S.A. v.
Federal Republic of Nigeria (U.S. no. 24).
139. 28 United States Code Sect. 1605(a) (1) provides that a foreign State is not immune if
it has "waived its immunity either explicitly or by implication". The legislative history indicates that the case where a foreign State has agreed to arbitration in another country constitutes
an implicit waiver. (House of Representatives Report no. 94-1487, 94th Congress, 2nd Session
18).
140. U.S. District Court for the District of Columbia, January 18, 1980, LIAMCO V . Libya
(U.S. no. 33).
J
141. See for this questionable part of the Court's opinion, infra 111-5.2 ("Non-arbitrable
Subject Matter (Arts. V(2) (a) and II(1)") at n. 380. In Switzerland, LIAMCO did not do any
better. The Swiss Supreme Court, June 19,1980, Case no. P. 627/79/ha, Libya v. LIAMCO,
published in 20 International Legal Materials (1981) p. 151, and extract in Yearboolc Vol. VI
(1981) p. 151, annulled a payment order for SFR. 135 million issued by the Zurich Debt
Enforcement Office. The Supreme Court reasoned that foreign States can be sued before
Swiss courts only if it concerns commercial activities and if these activities have a sufficient
link with Swiss territory. The fact that Libya's assets were in Switzerland was not such a sufficient link. The Swiss decision has been severely criticized in the Financial Times of November
6, 1980.
142. U.S. District Court of New York, S.D., December 21, 1976, B.V. Bureau Wijsmuller v.
United States of America (U.S. no. 15).
143. See for the question of immunity from execution in general, Delaume, supra n. 136,
Ch. XII, and 1 0 Netherlands Yearbook of International Law (1979) pp. 3-289 (Special Issue).
282
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tion of 1 9 6 5 which
~ ~ ~ provides, after Article 54 concerning the enforcement of an
award rendered under the application of the Convention, in Article 55:
"Nothing in Article 54 shall be construed as derogating from the law in force in
any Contracting State relating to immunity of that State or of any foreign State
from execution."
It is doubted whether the New York Convention would also apply to arbitral
awards rendered between States or public bodies concerning a commercial matter.
The legislative history of the Convention would seem t o contain certain indications
which would deny the Convention's applicability t o this type of awards.14'
111-4.1.3 Law cepplicable ko the arbitration agreement

111-4.1.3.1 Introduction
We now come to the provision of the Convention which has been
described by one enthusiastic French author as "la. grande conqu6te" of
the New York Convention 146, and which has been hailed by other
authors as the supremacy of the principle of party autonomy over
the territorial concept of arbitration. It concerns the Convention's
uniform conflict of laws provisions in Article V ( l ) (a) that the parties
are free to designate the law applicable t o the arbitration agreement,
and that only in the absence of such choice, the law of the country
where the award is made applies t o the arbitration agreement.
However, the great victory of the New York Convention as embodied
in the primary conflict rule of Article V(1) (a) has proven t o be only a
victory for theory. The invalidity of the arbitration agreement under
the law applicable to it pursuant t o Article V ( l ) (a) has scarcely ever
been invoked, and never successfully. Most cases in which Article V ( l ) (a)
was invoked concerned the assertion that the agreement did not comply
with the uniform rule of Article II(2) regarding the form of the arbitration agreement. Furthermore, it appears that few matters are left to be
determined under the law applicable t o the arbitration agreement.
Finally, in those few cases in which the conflict rules of Article V ( l ) (a)
have been applied, it has invariably been found that the agreement was
governed by the law of the country in which the award was made.
111-4.1.3.2
Legislative history
It had long seemed that no uniform conflict rules for determining the
law applicable to the arbitration agreement would be provided in the
144. See supra I-4.4.3a.

145. See Cappelli-Perciballi, supra n. 131, at p. 199.
146. J.-D. Bredin, "La Convention de New York du 1 0 juin 1958 pour la reconnaissance et
l'ex6cution des sentences arbitrales Btranghres", 87 Journal du Droit International (1960) p.
1003 at p. 1020.
Enforcement Award
283
Convention. The Geneva Convention of 1924 provided in Article I(2) (a)

that the arbitration agreement should be valid "under the law applicable thereto", which left the determination of the law governing the
arbitration agreement to the conflict rules of the country in which the
award was invoked. The Draft Convention of the International Chamber of Commerce of 1953 required only that the arbitration agreement
be evidenced in writing without any reference to a specific law. In the
opinion of the ICC "it would seem useless to re-open the irritating discussion on whether the arbitration agreement should be valid knder the
The ICC9s provision was taken over by
law applicable thereto' . .
the ECOSOC in its Draft Conirention of 1955 without any explanation.
The Dutch proposal to amend the ECOSOC Draft Convention provided,
however, that the parties should "have validly agreed in writing." The
word "validly" provoked much discussion amongst the Conference
delegates. One group, inspired by the ICC, which included France and
F.R. Germany, did not want' any reference t o an applicable law. On the
other side of the ledger was a group, championed by Israel, which insisted on the specification in the Convention how the law applicable t o
the arbitration agreement was to be determined. A third, middle of the
road group, including notably Sweden, would have been satisfied with
the proviso as it appeared in the Geneva Convention, "under the law
applicable
Working Party No. 3 , t o which the Draft was referred, wisely took the middle course and provided in its text that enforcement could be refused if the respondent prpved that the arbitration agreement was "not valid under the law applicable to it". That text
was initially approved by the Conference without further discussion.149
Yet, the Conference changed its mind. At the penultimate session the
U.S.S.R. delegate put forward the proposal to amend Article V ( l ) (a)
to the effect that it read that the arbitration agreement "is not valid
under the national law to which the parties have subjected their agreement or, failing any indication thereon, under the law of the country
where the award was made". The majority of the Conference delegates
now appeared to be apprehensive of a specification of the detemination of the law applicable to the arbitration agreement and adopted the
Russian proposal.150
147. International Chamber of Commerce, Enforcement of International Arbitral Awards.

Report and Preliminary Draft Convention, ICC Brochure no. 174 (Paris 1953) p. 10 (reproduced in UN DOC ElC.21373); Art. III(a) of the Draft Convention.
148. See for the discussion at the New York Conference, UN DOC E/CONF.26/SR.12-14;
see also supra 11-2.2.1.
149. UN DOC ElCONF.26lL.43 (text of Working Party No. 3) and SR.17 (adoption of text
by Conference).
J
150. UN DOC E / c o N F . & / s R . ~ ~ .
284
Enforcement Award
111-4.1.3.3 Applicability of Article 11

Despite the efforts of the Conference delegates to provide in the
Convention for liberal conflict rules for determining the law applicable
to the arbitration agreement, it appears that i t is not the law applicable
to the arbitration agreement but Article II(2) that is most frequently
invoked to oppose the request for enforcement of a Convention award
on the ground of Article V(1) (a). By far, the greatest number of cases
in which the respondent relied on Article V(4) (a) concerned, namely,
an alleged formal invalidity under Article II(2) of the Convention. This
is not so suprising since Article II(2) poses fairly demanding requirements for the form of the arbitration agreement. We need not review
the cases in which Article II(2) has been dealt with by the courts in
connection with the enforcement of an award as they have been subject
to an extensive examination in Part 11-2.
Except for the Italian Supreme Court, n o court has doubted that
Article II(2) is also applicable at the stage of the enforcement of the
arbitral award.151 The Italian Supreme Court, on the other hand, has
held that Article II(2) is applicable at the stage of the enforcement of
the arbitration agreement under Article II(3) only, but not a t the stage
of the enforcement of the arbitral award.152
The Supreme Court reasoned that Article V of the Convention "operates on a completely different level", being the enforcement of the
arbitral award. As the enforcement of the arbitral award is explicitly
regulated by Articles 111-V of the Convention, Article 11, in the opinion
of the Court, does not come into play at that stage. Hence, the validity
of the arbitration agreement, including its formal validity, is to be
judged solely on the basis of the law determined according t o the conflict rules contained in Article V(1) (a) of the Convention.
The case concerned the request for enforcement by the American corporation
Bobbie Brooks of an award made in its favour in Cleveland, Ohio, under the Arbitration Rules of the American Arbitration Association against the Italian firm Walter Banci. The arbitral clauses in question were contained in three purchase orders
signed by Bobbie Brooks and sent to the agent of Walter Banci in New York; the
invoices made out by Walter Banci referred, in turn, specifically to the purchase
orders and their numbers. The Court of Appeal of Florence upheld the formal
151. Art. II(2) was, for example, considered in an action for the enforcement of the award
by: Oberster Gerichtshof, November 17, 1971 (Austria no. 2); Landgericht of Bremen, December 16, 1965 (F.R. Germ. no. 2), June 8, 1967 (F.R. Germ. no. 3); Oberlandesgericht of Diisseldorf, November 8, 1971 (F.R. Germ. no. 8); Bundesgerichtshof, February 12, 1976 (F.R.
Germ. no. 12); Areios Pagos, January 14, 1977, Agrimpex S.A. v. J.F. Braun & Sons Inc.
(Greece no. 5).
152. Corte di Cassazipne (Sez. I), April 15, 1980, no. 2448, Lanificio Walter Banci S.a.S. V.
Bobbie Brooks Inc. (Italy no. 40).
Enforcemen t Award
285
validity of the arbitral clauses principally under Article II(2) of the Convention and,
subsidiarily - apparently for "security's sake9', but nevertheless improperly - under
United States law which it deemed applicable on the basis of the conflict rules of
Article V(1) (a), the award having been made in the United States.153 Although it
affirmed the Court of Appeal's decision, the Supreme Court corrected the former's
view by ,holding that Article II(2) is inapplicable at the stage of enforcement of the
award.
On an earlier occasion the 1talian Supreme Court seems to have implicitly
decided in the same sense as it found in that case that the arbitration agreement in
question did not need t o be in writing under German law, which law it deemed
applicable according to Article V(1) (a), the award having been made in 1F.R.
Germany.ls4 Nevertheless, the Supreme Court decision under discussion, in which
the view was expressly expounded, must be considered an about-face by the Court,
as in at least two other decisions concerning the enforcement of an award the Court
did rely on Article 1I(2).lS5
It is submitted that the view of the Italian Supreme Court that Article 11(2) is inapplicable at the stage of enforcement of the award is at
odds with both the legislative history of the Convention and its internal
consistency.
As far as the legislative history is concerned, it should be mentioned
that at the last session of the New York Conference the Dutch delegate
had said that he was not entirely happy with the text of Article V ( l ) (a).
The discomfort of the Dutch delegate did not only concern the lack of
mention of the incapacity of a party.156 He was also worried that the
text, as it stood, would not only include agreements in express terms,
but also tacit agreements. He proposed therefore to add "the agreement
referred to in Article II", which proposal was finally approved by the
Conference.lS7 It is true that the amendment is somewhat awkwardly
worded as it does not state expressly as cause for refusal of enforcement that the arbitration agreement is invalid under Article 11, but the
legislative history makes it clear that this was the intent.
In the decision under discussion, the Italian Supreme Court omitted t o mention the
expression "the agreement referred t o in Article 11" of Article V ( l ) (a). In fact the
Supreme Court "redrafted" Article V ( l ) (a) in a curious manner. The Court stated:
""[Jccording to paragraph 1 of the said Article V, the recognition and enforcement of an arbitral award may not be refused unless the party against whom the
award is invoked has proven (a) the incapacity of the parties under the law appli-
153. Corte di Apello of Florence, October 8, 1977, Bobbie Brooks Inc. v. Lanificio Walter
Banci S.a.S. (Italy no. 29), discussed supra at n. 11.231.
154. Corte di Cassazione (Sez. I), January 20, 1977, no. 272, S.p.A. Nosegno e Morando v.
Bohne Friedrich und Co-Import-Export (Italy no. 23); cf. supra n. 11.270.
Chemapol (Italy no. 24); Corte di Cassazione (Sez. I), April 18, 1978, no. 1842, Eugenio
Menaguale v. Intercommerce (Italy no. 25).
156. See supra 111-4.1.1.
286
Enforcement Award
cable to the written agreement, or the invalidity of said agreement under the law
to which the parties have subjected it or, in the absence thereof, under the law
of the place where the award was made . . .". (emphasis added)
In comparison Article V ( l ) (a) may be quoted, the part in italics pointing out the
main differences with the Italian Supreme Court's version:
"(a) The parties to the agreement referred to in article I ' 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".
As far as the internal consistency of the Convention itself is concerned, it is to be observed that the Italian Supreme Court's view may lead
t o an anomalous situation. Whilst at the stage of enforcement of the
arbitration agreement, enforcement would have to be refused because
the agreement does not satisfy the written form of Article II(2), the
same arbitration agreement could be held valid under the law applicable
to it at the stage of enforcement of the award. The Italian Supreme
Court justifies this distinction by arguing that Article V "operates on a
completely different level". However, the Convention's provisions must
be deemed to be interrelated as the underlying purpose is to attain as
much uniformity as possible in the legal regime governing international
commercial arbitration; in principle, the Convention's text must be considered to constitute a whole. It is only in the case where express provisions provide for a separation that a distinction amongst them is t o be
made. This is not the case for Article 11 and Article V. To the contrary,
as just noted, Article V(l)(a) specifically mentions Article II. This is underscored by Article IV(l)(b) according to which the party seeking enforcement of the award has to supply to the court the arbitration
"agreement referred t o in Article II9'.lS8
Although the Supreme Court only advanced the argument that Article V operates on a completely different level, the Court apparently had
in mind that at the stage of enforcement of the agreement one should
be more strict in regard to its (formal) validity than at the stage of enforcement of the award. At the stage of enforcement of the agreement,
the basic question is whether the competence of the courts is validly excluded in favour of arbitration. Once the arbitration is over, the question would be less important, and, hence, one would have to be less
strict about the validity of the agreement. At the stage of enforcement
of the award, the parties have participated in the arbitration or, in the
case of a defaulting respondent, the latter has had the opportunity to
contest the validity of the agreement before the courts; he should not
be allowed to sit back and wait until the enforcement of the award is
sought. Although this line of reasoning is understandable, it would
deal a severe blow to the Convention's system. Moreover, preference
158. In the same sense P. Sanders, "Consolidated Commentary Vols. V and VI", in Yearbook Vol. VI (1981) p. 202 at p. 211.
i
I
ii
1
iI
I
Enforcement Award
287
should be given to achieving uniformity of the legal regime governing

international arbitration .at all stages of the arbitration.
Whatever may be, the interpretation that Article II(2) applies only at
the stage of enforcement of the arbitration agreement is limited to
Italy.159 In other countries the courts consider it self-evident that Article II(2) is also applicable at the stage of enforcement of the award as
evidenced by the decisions referred to above.lbOIf at the stage of enforcement of the award, the agreement does not comply with Article
II(2), enforcement has to be sought on a different basis by virtue of the
more-favourable-right-provision of Article VII(1) of the Convention.
111-4.1.3.4 Matters left to the law applicable to the arbitration
agreemen t
We just mentioned that the uniform rule of Article II(2) preempts
the matter regarding the form of the arbitration agreement from the
matters falling under the law applicable to the arbitration agreement,
and that the question of the formal validity of the agreement under
Article II(2) plays the most important role in practice. We may now
examine the matters which could possibly be determined under the law
governing the agreement. As we shall see, few remain.lbl
One of the matters of invalidity of the arbitration agreement under
the law applicable to it could be the lack of consent (misrepresentation,
duress, fraud, or undue influence). Leaving aside the question whether
the conflict rules of Article V(l) (a) can be applied to the formation
of the arbitration agreement, it is submitted that the defence of lack of
consent for the arbitration agreement will hardly be successful if the
arbitration agreement complies with Article II(2) of the Convention.
As Article II(2) poses fairly demanding requirements for the form of
the arbitration agreement, it can be argued that in most cases its compliance absorbs the questions regarding the lack of consent. For, if the
contract including the arbitral clause is signed by both parties or is
contained in an exchange of letters or telegrams, it will not be easy to
maintain that it is concluded under misrepresentation, duress, fraud or
,159. One of the few authors who appears to be of the same opinion that Art. II(2) is inapplicable at the stage of enforcement of the award is Haight, supra n. 133, as he states at p. 17 that
"Any form of agreement, express or tacit, would appear to be sufficient" and at p. 1 8 'The
final texts of Article IV and V do not contain any express requirement that the agreement be in
writing". The author omits to mention that both Arts. IV(1) (b) and V(1) (a) state "agreement
referred to in article 11".
160. See decisions mentioned in supra n. 151.
161. A similar conclusion is reached by P. Sanders, "Consolidated Commentary Vols. 111
and IV", in Yearbook Vol. IV (1979) p. 231, who states at p. 247: "Under Art. V, the courts
are, for the validity of the arbitration agreement, referred to the applicable law. In my opinion,
few matters remain to be governed by the applicable law, since the form of the arbitration
agreement is regulated in a uniform manner by Article 11."
288
Enforcement Award
undue influence. The argument for the absorptioii of the questions

regarding the lack of consent by the compliance with Article I1(2)
applies even more strongly if the doctrine of separability is applied,
which is now the case in more and more countries.162 It is therefore not
surprising that in no case reported hitherto has the defence of lack of
. consent for the arbitration agreement been made.
A possible exception to the latter can be found in a decision of the Court of Appeal
of N a ~ 1 e s . lThe
~ ~ Italian respondent had opposed t o the request for enforcement of
the award made in Vienna that the arbitration agreement was tainted by fraud as,
when he signed the contract, the Austrian agent of the claimant had not mentioned
the arbitral clause contained in it, and the clause was drafted in German which
language he did not master. The Court of Appeal reasoned that the question was, in
virtue of Article V ( l ) (a), t o be determined under Austrian law, Austria being the
country where the award was made, The Court rejected the defence as the Italian
respondent had failed to furnish proof that under Austrian law the arbitration
agreement was tainted by fraud under these circumstances.
A question connected with the lack of consent is the invalidity of the arbitration
agreement when it is concluded under an economically or socially dominant position of a party. This cause of invalidity of the arbitration agreement is, for example,
expressly provided in Section 1025(2) of the German Code of Civil P r 0 ~ e d u r e . l ~ ~
Without such statutory provision this would also be a cause for invalidity under
most of the other laws, usually under the application of the rule of undue influence
or a similar rule. The economically or socially dominant position of a party in concluding the arbitration agreement is, however, applied by the courts in the various
countries with a differing degree of strictness. In borderline cases it may then,
indeed, be important to determine the applicable law.
Section 1025(2) of the German Code of Civil Procedure was invoked by a
German respondent in one case which involved the request for the enforcement of
an award made in Czechoslovakia. The Court of Appeal of Hamburg rejected this
defence on two grounds. In the first place, the Court argued that Czechoslovak law,
which it deemed applicable pursuant to Article V ( l ) (a) of the Convention, does
not contain a provision similar to Section 1025(2) of the German Code of Civil
Procedure. In the second place, the Court argued that Section 1025(2) could be
applied in virtue of the public policy provision contained in Article V(2) (b) of the
Convention, but that in this case the defence did not hold water as the respondent
had participated in the arbitral proceedings without raising an objection to the
alleged economically or socially dominant position of the other party in concluding
the arbitration agreement .165
The non-arbitrability of the subject matter of the agreement under

the law applicable to the agreement is not a matter of invalidity which
162. See for the separability doctrine, supra 11-1.3.1.2.

163. Corte di Appello of Naples (Salerno Section), February 13, 1978, G.A. Pap - KG
Holzgrosshandlung v. Giovanni G. Pecoraro (Italy no. 36).
164. See 0. Glossner, "National Report F.R. Germany", in Yearbook Vol. 1V (1979) p. 6 0
at p. 64.
165. Oberlandesgericht of Hamburg, October 14, 1964, affirmed by the Bundesgerichtshof,
March 6 , 1 9 6 9 (F.R. Germ. no. 5).
Enforcement Award
289
has to be taken into account when the enforcement of the award is

sought under the Convention.
According to Article V(2) (a) the court before which the enforcement of the award
is sought may refuse the enforcement if it finds that the subject matter of the difference is not capable of settlement under its own law. The express reference to the
law of the coun'try where the enforcement is sought is already a strong indication
that the law of the forum is the only controlling law for the question of arbitrability. When dealing with the enforcement of the arbitration agreement pursuant to
Article II(3) of the Convention, it has similarly been argued that the court has to
decide on the question of arbitrability under its own law only. The same considerations would apply mutatis mutandis at the stage of the enforcement of the award.166
Nevertheless, in an exceptional case, the arbitrability under the law governing
the axbitration agreement may indirectly play a role for the enforcement of the
award in a Convention country. It may have happened that in the countly of
origin, in which the Convention is not applicable, the award has been set aside because the dispute was deemed not to be arbitrable under the law governing the
arbitration agreement (which will almost always be the same law as the law of the
country of origin). In such a case the enforcement is t o be refused in another Contracting State on the basis of Article V ( l ) (e) of the Convention. This has not occurred in practice so far.
Those matters contained in the arbitration agreement which pertain

to the composition of the arbitral tribunal and the arbitml procedure
are solely to be judged unrjer the provisions of Article V(I) (d) and are,
in principle, outside the reach of Article V(1) (a).
Article Q(1) (d) provides that the enforcement of an award may be refused if the
composition of the arbitral tribunal or the arbitral procedure was not in accordance
with the agreement of the parties or, failing such agreement, not in accordance with
the law of the country where the arbitration took place.167 Article V(1) (d) contains a specific regulation in that only in the absence of an agreement of the parties
on the composition of the arbitral tribunal or the arbitral procedure are these
matters t o be judged under a domestic law, namely the law of the place of arbitration. In view of the specificity of this regulation of Article V ( l ) (d), the matters
concerning the composition of the arbitral tribunal and the arbitral procedure as
provided in the arbitration agreement cannot be judged under the more general
provision of Article Q(1) (a). If it were otherwise, an award which results from an
arbitration held in accordance with the agreement of the parties, whilst not being
capable of refusal of enforcement under Article V ( l ) (d), could still be refused enforcement "through the backdoor" of Article V(l)(a) in those cases where the
agreement is affected by an invalidity under the applicable law due to the fact that
the composition of the arbitral trjbunal or the arbitral procedure agreed to therein
cannot be validly agreed t o under that law. An example may clarify this.
Let us assume that an arbitration agreement provides for arbitration by two
arbitrators in the Netherlands and that Dutch law governs the arbitration agreement
according to the conflict rules of Article V ( l ) (a). Under Dutch law an arbitration
166. See supra 11-1.3.3 and infra 111-5.2.

,167. See infra 111-4.4.
290
Enforcement Award
agreement providing for two arbitrators is invalid as the law mandatody prescri6es
an uneven number of arbitrators. In the enforcement proceedings of the Dutch
award in another Contracting State the respondent cannot object to the enforcement on the basis of Article V ( l ) (d) as the composition of the arbitral tribunal was
in accordance with the agreement of the parties. The respondent must then be
deemed not to be entitled to bypass Article V(1) (d) by relying on Article V(1) (a)
arguing that the arbitration agreement is invalid under Dutch law.168
For the purposes of the Convention, the construction may also be conceived
such that those matters concerning the composition of the arbitral tribunal and the
arbitral procedure as provided in the arbitration agreement constitute a further
agreement subject to a different regulation of the Convention (i.e., Art. V ( l ) (d)).
These observations would seem not t o apply t o time limits for initiating arbitration. Rather, time Limits for initiating arbitration are t o be determined under the
law applicable t o the arbitration agreement as determined by the conflict rules of
Article V(1) (a) because they may concern the question whether the arbitration
agreement has ceased to have effect.169
It may be added that if the arbitration agreement dads not provide anything on
the composition of the arbitral tribunal or the arbitral procedure, Article V(1) (d)
still takes precedence over Article V ( l ) (a) in view of the former's specificity. For
this case, Article V ( l ) (d) provides that failing an agreement of the parties on the
composition of the arbitral tribunal or the arbitral procedure, their regularity has t o
be judged under the law of the country where the arbitration took place (which
must be deemed the same law as the law of the country where the award is made).170
As we shall see, in most cases it appears that the arbitration agreement is governed
by the same law of the country where the award was made, and no problem will
arise. In the theoretical case, however, that the parties have, according t o the primary conflict rule of Article V(1) (a), subjected the arbitration agreement expressly to
a law different from the law of the country where the award is made, a respondent
cannot invoke Article V ( l ) (a) alleging that a certain aspect of the composition of
the arbitral tribunal or the arbitral procedure was not valid under the law applicable
t o the arbitration agreement.
The above examination of matters which could possibly be considered as a cause for invalidity of the arbitration agreement under the law
applicable to it pursuant to Article V(1) (a) leads t o the conclusion that
there are few left. In fact, it would seem that the only matter is the lack
of consent, but even this matter is overshadowed by Article II(2) in
most cases. In addition, it may be that in exceptional cases a law govern-
1'68. The respondent can, however, request the setting aside of the award before the Dutch
courts. If the Dutch courts indeed set aside the award, enforcement in another Contracting
State may be refused on the ground mentioned in Art. V(l) (e) that the award "has been set
aside ... by a competent authority of the country in which ... that award was made." See for
the setting aside in general, in% 111-4.5.3.
169. See Bundesgerichtshof, February 12, 1976 (F.R. Germ. no. 12) which held that the
interpretation of the arbitral clause "Any claim for arbitration formulated after 6 months from
the date of arrival of the goods at the final station or port of destination is null" was to be de-'
cided on the basis of the law of Romania which was the country where the award was made in
this case. For the applicability of Romanian law the Court referred to Art. V(1) (a) as the law
chosen by the parties to govern the arbitration agreement. See infra at n. 237.
170. See infra at n. 182.
Enforcement Award
29 1
ing the arbitration agreement poses a specific requirement as to the

contents of the agreement, but this has not come up in practice. It
may be said that, in general, the invalidity of the arbitration agreement
under the applicable law as ground for refusal of the award as provided
in Article V(1) (a) has lost a great deal of its practical significance. This
can at least be inferred from the few cases in which the invalidity of the
arbitration agreement under the applicable law was invoked in virtue of
Article V ( l ) (a): it has not been used successfully so far.
111-4.1.3.5
Determination of the law applicable to the arbitration

agreement
For those few cases in which the determination of the law applicable
t o the arbitration agreement may be necessary in the context of the
grounds for refusal of enforcement of a Convention award, Article
V(1) (a) provides for two conflict rules. The first rule is the primary
rule of party autonomy according t o which the parties have the liberty
to subject the arbitration agreement to a law of their choice (see a
below). The second rule is the subsidiary rule of territoriality according
t o which the arbitration agreement is, failing a choice of law by the
parties, governed by the law of the country where the award was made
(see b below).
It has never been questioned that these conflict rules are t o be interpreted as uniform rules which supersede the relevant conflict rules of
the country in which the award is relied upon.
This is also the view of the Italian Supreme Court in the decision discussed above.171
In that case, the Supreme Court observed that, in view of Article V(1) (a), the conflict rules of Article 26 of the Italian General Provisions of Law were "irrelevant".
This aspect of the decision is certainly t o be approved. It should be noted, however,
that, confusingly enough, at the stage of enforcement of the arbitration agreement
the Italian Supreme Court does rely on Article 26 of the General Provisions of Law,
not only for determining the substantive validity of the arbitration agreement, but
also for determining its formal validity.ln
(a) Law to which the parties have subjected the arbitration agreement
It h'as not occurred that a court has found that the parties have subjected the arbitration agreement to a law which was different from the
law of the country in which the award was made within the meaning
of Article V(1) (a) of the Convention. This observation could suffice in
171. Corte di Cassazione (Sez. I), April 15, 1980, no. 2448, Lanificio Walter Banci S.a.S. v.
Bobbie Brooks Inc. (Italy no. 40). See supra at n. 152-154.
172. See suprts 11-2.2.2 ("Uniform Rule").
292
Enforcement Award
itself, but for completeness sake two questions posed by the primary
conflict rule of party autonomy of Article V(1) (a) may be considered.
Firstly, what interest may the parties have in subjecting the arbitration
agreement to a given law? And secondly, which indications are sufficientfor constituting a choice of law governing the arbitration agreement for the purposes of Article V ( l ) (a)?
As regards the first question, the observations made in the foregoing
Paragraph would lead to the conclusion that the parties have little
interest in choosing a given law to govern their arbitration agreement as
few matters are left to that law. Theoretically, a possible interest may
arise in the case the parties wish to have the arbitration governed by a
law which is different from the law of the country in which the award
is to be made. This faculty is offered by the Convention in two provisions: Article V ( l ) (e) provides as ground for refusal of enforcement
that the award has been set aside "in the country in which, or under the
law of which, that award was made". Article I(1) provides as second
criterion for the field of application that the Convention also applies to
arbitral awards not considered as domestic awards in the State where
their enforcement is sought. As explained earlier, the second criterion
of the Convention's field of application envisages those awards which
are made in the country in which their enforcement is sought, but
which are, on the basis of the agreement of the parties, subjected t o the
arbitration law of another ~ 0 u n t r y . lIf~ the
~ parties have made such an
arrangement it would seem logical also t o subject the arbitration agreement to the arbitration law t o which the arbitration is subjected. It may
be noted that the aforementioned Russian proposal to amend Article
V(1) (a) was obviously inspired by the addition of the second criterion
to the Convention's field of application. The same can be said of the
above quoted part of Article V(1) (e) which also originates from a
Russian amendment
However, as it also was explained earlier, the use of the faculty to
designate an arbitration law which is different from the law of the
country where the award is to be made is not to be recommended as it
may lead to inextricable c0mp1ications.l~~This may explain why in
practice there has been no court decision concerning a case where the
parties have, as far as it is known, subjected the arbitration agreement
expressly to a law which is different from the law of the country where
the award is to be made.
As regards the second question of which indications are sufficient for
constituting a choice of law governing the arbitration agreement for the
173. See supra 1-1.5 ("Awards Not Considered as Domestic").

175. See supra 1-1.5 ("Awards Not Considered as Domestic").
Enforcemen t A ward
293
purposes of Article V(1) (a), the authors are divided on the question
whether, besides the express choice (e.g., "this arbitration agreement is
governed by the arbitration law of country X"), the choice can also be
implied. The difference of opinion especially concerns the case where a
contract including an arbitral clause contains a choice of law clause for
the contract in general. Some authors argue that this choice of law
~ ~ are of the opinion
clause also applies to the arbitral ~ 1 a u s e . lOthers
that the choice of law clause for the contract in general is not sufficient
as choice of law for the arbitral ~ 1 a u s e . l ~ ~
The problem stems from the wording of Article V(1) (a) that the
subsidiary conflict rule applies "ailing any indication" on the law to
which the parties have subjected the arbitration agreement. It is submitted that, despite this somewhat ambiguous wording, the second
opinion represents the better view. The main contract and the arbitral
clause have different objects: the main contract concerns the relationship between the parties as to the substance; the arbitral clause is concerned with the procedure for settling disputes arising out of the main
contract. If the parties provide a general choice of law clause, they intend to give a directive t o the arbitrator as to which law he has t o apply
to the substance. The distinction between substance and procedure
would then preclude that the directive given to the arbitrator would
also be an ' Y n d i ~ a t i o nof
~ ~a choice of the law governing the arbitration.
It would therefore seem that the latter can be achieved only by a distinct express agreement.
Assuming that, in spite of the foregoing observations, the primary
conflict rule of Article V(1) (a) would allow an implied choice, the
strongest indication of such choice must be deemed t o be the provision
in the arbitration agreement where the arbitration is to take place.178
Thus if a contract contains a general choice of law clause and provides
in the arbitral clause that arbitration is to be held in a country with a
different law, the latter indication must be deemed t o prevail over the
former.
176. E.g ., H .-V. von Hiilsen, Die Gultigkeit von internationalen Schiedsverein barungen
(Berlin 1973) p. 101. Cf., Th. Bertheau, Das New Yorker Abkommen vom 10. Juni 1958 uber
die Anerkennung und Vollstreclcung auslandischer Schiedsspriiche (Winterthur 1965) p. 34,
who states that a tacit choice of law is sufficient. The latter opinion is also adhered to by F.-E.
Klein, "La Convention de New York pour la reconnaissance et I'exCcution des sentences arbitrales ktrang&res", 57 Revue Suisse de Jurisprudence (1961) p. 229 at p. 247.
177. E.g., Ph. Fouchard, L 'arbitrage commercial international (Paris 1965) no. 125; P.
Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) no.
212 and further references.
178. See Private International Law Committee, Fifth Report on the Recognition and Enforcement of Foreign Arbitral Awards, Command Report 1515 (London 1961) p. 30. Cf., the
decision of the English House of Lords in James Miller and Partners Ltd, v. Whitworth Street
Estates (Manchester) Ltd. [I9701 1 All England Reports 796 and in Compagnie d'Armement
Maritime S.A. v. Compagnie Tunisienne de Navigation .A. [I9711 3 All England Reports 71.
See also A. Walton, Russell on the Law ofArbitration, 19th ed. (London 1979) p. 63 et seq.
294
Enforcement Award
It may be reiterated, that in the few cases in which it was held that
the parties had subjected the arbitration agreement to a given law, it appeared that in all these cases this law was the law of the country in
which the award was made.179 This is the same result as would ensue
from the application of the subsidiary conflict rule of Article V(1) (a)
prescribing the law of the country in which the award was made. As a
matter of practice, the primary conflict rule of Article V(1) (a) of party
autonomy has therefore remained a theoretical nicety as far as can be
gathered from the decided cases.
(b) Law o f the country where the award was made
As noted before, in the cases in which the validity of the arbitration
agreement was judged under the applicable law pursuant to Article
V(1) (a), it has been invariably held that the law of the country where
the award was made applied to the arbitration agreement. The courts
deemed this law applicable either because they found that the parties
had subjected the agreement to this law (i.e,, the primary conflict rule,
see above), or because they found that the parties had not chosen a
given law, which leads to the application of the subsidiary conflict rule
of Article V( l)(a).180
The result is that in the enforcement proceedings of an award under
the Convention the same law can be applied to the arbitration agreement, the arbitral procedure (unless the parties have made their own
arrangement), and the arbitral award. This unity of the law governing
the arbitration makes both the practical applicability of the Convention and the legal framework governing international commercial arbitration much simpler.
Although the determination of the country where the award was
made for the purposes of the application of the subsidiary conflict rule
of Article V(1) (a) has not led to difficulties in practice, we may make
some observations in regard of this question. These observations apply
equally t o the conflict rule of Article V( 1) (e) ("the country in which
. . . that award was made") and to the field of application of the Con-
179. E.g., Bundesgerichtshof, February 12, 1976 (F.R. Germ. no. 12), supra n. 169; President of Rechtbank of The Hague, April 26, 1973 (Neth, no. 3): the arbitral clause in this case
providing for arbitration in F.R. Germany declared that the arbitrators had to apply German
procedural and substantive law.
180. Examples of the application of the subsidiary conflict rule of Art. V(l) (a) are: Oberlandesgericht of Hamburg, October 14, 1964 (F.R. Germ. no. 5), supra at n. 165; Corte di
Appello of Florence, October 8, 1977, Bobbie Broolts Inc. v. Lanificio Walter Banci S.a.S.
(Italy no. 29), and Corte di Cassazione (Sez. I), April 15, 1980, no. 2448, in this case (Italy no.
40), discussed supra at n. 152-154; Corte di Appello of Naples (Salerno Section), February 13,
1978, G.A. Pap - KG Holzgrosshandlung v. Giovanni G. Pecoraro (Italy no. 36), discussed
supra at n. 163.
Enforcemen t Award
,
295
vention as provided in Article I(1) and (3) (an arbitral award made in
the territory of another (Contracting) State).18'
The award must be deemed to be made in the country which is indicated in the award as place where the award was rendered. In practice, arbitrators will mention as place of rendition of the award the
place of arbitration as agreed t o by the parties, or, as the case may be,
as designated by the arbitral institution to which the parties have referred, or, if they have been authorized to do so, as designated by the
arbitrators themselves. It rarely occurs that a different place is mentioned in the award (e.g., the place of actual signing). If the arbitrators
would do so, difficult problems for the application of the New York
Convention might arise. It may be added, perhaps redundantly, that,
for example, an arbitrator residing in India need not travel to Stockholm, the place of arbitration, for signing the award, but can do so in
India, provided that it is indicated in the award that it is rendered in
Stockholm.
Another matter of practice which is incidental to the place of making
of the award is that it may happen that the arbitral proceedings have
effectively been held in different countries, or that they are conducted
on the basis of documents exchailged between the parties and the
arbitrators residing in different countries. These circumstances also are
immaterial for the country in which the award is made. Here again, the
only decisive element is the indication in the award of where it is rendered.
In connection with the latter observation it should be mentioned
that, despite the differences in the text between Article V(1) (d) concerning the arbitral procedure which states "the law of the country
where the arbitration took place", on the one hand, and Article V(1) (a)
and (e) concerning the arbitration agreement and the arbitral award
which refer to the law of the country where the award was made, on
the other, both phrases must be deemed to point to the same law as the
arbitration must be deemed to have taken place where the award, as
stated in it, has been made.lg2
111-4.1.4 Unifirm interpretation (and summary)
The incapacity of a party referred to in Article V(1) (a) as a cause for
which enforcement of the award may be refused concerns the incapacity of a party t o conclude an arbitration agreement. The improper representation of a party in the arbitral proceedings is a ground for refusal of enforcement which is t o be considered to be included in Article
181. See infra 111-4.5.3 and supra 1-1.1 respectively.

182. See Schlosser, supra n. 177, no. 238;von Hiilsen, supra n. 176, p. 34 n. 16.
296
Enforcement Award
V ( l ) (b). The law applicable to the question of the capacity of a party

to conclude the arbitration agreement is to be determined on the basis
of the conflict rules of the country in which the award is invoked
(pp. 275-277).
The Convention does not exclude that a State or public body be a
party to an arbitration agreement or arbitral award with a private party
relating to a transaction of private law which pertains to an act jure
gestionis (pp. 277-282).
The uniform rule of Article TI(2) regarding the form of the arbitration agreement, applies also to Article V ( l ) (a) in that the non-compliaiice with this provision may constitute a ground for refusal of enforcement of the award (pp, 284-289).
There are few matters left which can be held t o be a cause of invalidity under the law applicable to the arbitration agreement under Article
V ( l ) (a). Excluded are in particular: matters regarding the form of the
agreement, which are governed by the uniform rule of Article II(2),
being the most frequently invoked ground in practice; the non-arbitrability of the subject matter, which is by virtue of Article V(2) (a) to
be judged solely under the law of the forum; and the matters concerning the composition of the arbitral tribunal and the arbitral procedure,
which are to be judged under the provisions of Article V(1) (d). The
matters which are left for the purposes of Article V ( l ) (a) are the lack
of consent and, in exceptional cases, specific requirements of the applicable law as to the contents of the arbitration agreement (pp. 289-291).
The conflict rules for determining the law governing the arbitration
agreement as provided in Article V ( l ) (a) are uniform conflict rules
which supersede the relevant conflict rules of the forum (p. 29 1).
The primary conflict rule of the law to which the parties have subjected the arbitration agreement can be applied only if the choice of
law made by the parties is express (pp. 291-294).
The subsidiary conflict rule of the law of the country where the
award is made applies in all other cases. The country where the award
is made is the country of rendition as mentioned in the arbitral award
(pp. 294-29 5).
111-4.2
Ground 6: Violation of Due Process
Article V ( l ) (b) of the Convention provides:

"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 recognition and enforcement is sought, proof that:
(.
. . .)
( b )The party against whsm the award is invoked was not given
1
I
Enforcemen 2- A w a ~ d
297
proper notice of the appointment of the arbitrator or of the arbitration

proceedings or was otherwise unable to present his case;"
On considering this ground for which enforcement of the award may

be refused, a United States Court of Appeals said pointedly: "this provision essentially sanctions the application of the forum State's standards
~ ~ statement states concisely what Article V ( l )
of due p r o c e ~ s . " This
(b) is all about, albeit that a distinction is to be made between due
process in domestic cases and international ones. It concerns the
fundamental principle of procedure, that of fair hearing and adversary
proceedings, also referred to as audi e t alteram partem.
The wording of Article V(1) (b) encompasses more than the corresponding provision in the Geneva Convention of 1927 which read in
Article 3 1 ) (b): ""That the party against whom is sought to use the
award was not given notice of the arbitration proceedings in sufficient
time t o enable him to present his case . . .". However, although the
Geneva Convention's provision related textually to the proper notice
aspect, it was generally interpreted as covering all cases involving a
~ ~ text of the New York Convenserious violation of due p r 0 ~ e s s . lThe
tion has the advantage of making this unequivocally clear.
Reviewing the court decisions on the New York Convention, the
defence of a violation of due process enjoys a high popularity rating
amongst the defences allowed by the Convention. Nevertheless, the
defence has rarely been successful. Despite the broad wording of Article V ( l ) (b), the courts appear to accept a violation of due process in
very serious cases only, thereby applying the general rule of interpretation of Article V that the grounds for refusal of enforcement are to be
construed narrowly. The narrow interpretation of Article V(1) (b) becomes particularly evident where the courts hold that a violation of
domestic notions of due process does not necessarily constitute a violation of due process in a case where the award is foreign. We will see
various examples of this below.
Although the judicial interpretations and applications of the due
process requirement under the Convention have been largely satisfactory and have not led to noteworthy difficulties, Article V(1) (b) has
posed a number of questions which may be examined briefly in 111-4.2.2.
The cases in which the due process requirement has been applied will be
reviewed in 111-4.2.3.
183. U.S. Court o f Appeals (2nd Cir.), December 23, 1974, Parsons & Whitternore Overseas
Co. Inc. v. Soci6t6 GBn6rale de 1'Industrie du Papier (RAKTA) (U.S. no. 7).
184. See H.-W. Greminger, Die Genfer Ablcommen von 1923 und 1927 iiber die internationale private Schiedsgerichtsbarkeit (Winterthur 1957) p. 69.
298
Enforcement Award
111-4.2.2 Questions regarding Article C/(l)(&)

The first question is under which law the standards of due process
are to be judged. It has been argued that Article V(1) (b) constitutes a
truly international rule, not linked t o any national law.'" This opinion
is based on a relationship between Article V(1) (b) and Article V(1) (d).
Article V(1) (d) provides that if the parties have agreed on the composition of the arbitral tribunal and the arbitral procedure, the law governing
these matters is not to be taken into account. As Article V(1) (b) can
be considered as a corrective on such arrangement of the parties (see
the third question hereafter), the latter provision is also regarded as a
rule which would be outside the reach of domestic law. This opinion is
prompted by the desire t o discard the law of the forum which may
contain parochial requirements for an orderly procedure. However, the
authors who adhere to this opinion add that the judge before whom the
enforcement of the award is sought will "find his inspiration" in the
notions of due process under his own law.
The courts proceed the other way around: whilst no court has held
that Article V ( l ) (b) constitutes an international rule, many have affirmed that the standards of due process are basically t o be judged under their own law.lg6 However, as noted, they hold either expressly or
implicitly that what may be a violation of due process under their own
law is not necessarily a violation of due process under the Convention.
This judicial attitude belies the fears of parochialism of the authors.
The authors take as point of departure the internationality, the
courts start from domestic law, but both arrive at the same result. The
question is therefore rather academic and may be regarded as a matter
of taste. In addition, the question whether a violation of due process is
present is, in most cases, largely a question of fact.
185. Ph. Fouchard, L 'arbitrage commercial international (Paris 1965) no. 526; G. Gaja,
"Introduction", in New Yorlc Convention (Dobbs Ferry 1978-1980) I.C. 4.
186. E.g., Oberlandesgericht of Hamburg, April 3, 1975 (F.R. Germ. no. l l ) , see infra at
11. 195 and 215; July 27, 1978 (F.R. Germ. no. I%),see infra a t n. 213 and 221; Corte di Appello of Naples, February 20, 1975, Carters (Merchants) Ltd. v. Francesco Ferraro (Italy no. 21),
see infra at n. 204 and 218; Corte di Appello of Milan, May 3, 1977, Renault Jacquinet v. Sicea
(Italy no. 27), see infra at n. 205 and 214; U.S. Court of Appeals (2nd Cir.), December 23,
1974, Parsons & Whitternore Overseas Co. Inc. v. SociBtB GBnBrale de 1'Industrie du Papier
(RAKTA) (U.S. no. 7), see infra at n. 220; U.S. District Court of New Jersey, May 12, 1976,
Biotronik Mess- und Therapiegerate G.m.b.H. & Co. v. Medford Medical Instrument Company
(U.S. no. 8), see infra at n. 211; Obergericht of Basle, June 3, 1971 (Switz. no. 5), see infra
at n. 203 and 219. The opinion that the question of due process is to be determined under the
law of the forum is also shared by a certain number of authors, e.g., K.-H. Schwab, Sckiedsgericktsbarkeit, 3d ed. (Munich 1979) p. 419; L. Quigley, "Convention on Foreign Arbitral
Awards", 5SAmerican Bar Association Journal (1972) p. 821 at p. 825.
Enforcement Award
299
The second question is the relationship between Article V(l) (b) and
Article V(2) (b). According to Article V(2) (b) a court may refuse enforcement on its own motion if ""The recognition or enforcement of the
award would be contrary to the public policy of that country." As due
process is generally conceived as pertaining to public policy, the question is raised whether the specific provision of Article V(l) (b) concerning due process would have the effect of excluding due process from
Article V(2) (b), which concerns public policy in general.ls7 This question is important because if due process were only covered by Article
V(1) (b), a court would not be allowed to refuse enforcement of the
award on its own motion if it finds that an award is tainted by a serious
violation of due process; it could refuse enforcement only if the respondent asserts it, In practice it will make little difference as a respondent
will be eager to point out that a violation of due process has occurred;
in none of the reported cases has a court refused enforcement on its
own motion on account of a violation of due process. It may make a
difference in the case where the respondent declines to appear before
the court in the enforcement proceedings, but that happens rarely at
this stage.
There is only one court which has addressed the question. The Court
of Appeal of Basle had to consider whether a refusal of an extension of
time to a respondent to appoint his arbitrator violated Swiss public
policy as was alleged by the respondent.ls8 The Court referred first to
Article V(2) (b) and observed that under Swiss law, public policy concerns not only defects in respect of the substance of the award but also
irregularities in the procedure .Is9 The Court referred then to Article
V(1) (b), but observed that it did not need to answer the question
"whether this provision covers the Swiss public order in respect of the
extent of the protection for due process, because, in the opinion of the
Court, the refusal to grant an extension of time violates neither this
provision nor the Swiss public order9'. The question raised by the Court
is understandable as the Court seemed to have wondered whether the
Convention would have been different from the view prevailing in
187. This is, inter alia, the opinion of Fouchard, supra n. 185, no. 528; B. Oppetit in his
comment on the decision of the President of the Tribunal de grande instance of Paris of May
15, 1970, and the Cour d'appel of Paris of May 10,1971, Compagnie de SaintGobain - Pont I?
Mousson v. The Fertilizer Corporation of India (FCIL) (France no. l), see infra at n. 192 and
217, in Revue de l'arbitrage (1971) p. 97 at p. 105; Private International Law Committee,
Fifth Report on the Recognition and Enforcement o f Foreign Arbitral Awards, Command
Report 1515 (London 1961) which states at p. 30 that "It is now made clear that this objection
must be raised by tlrie opponent."; J . Junker, "The Public Policy Defense to Recognition and
Enforcement of Foreign Arbitral Awards", 7 California Western International Law Journal
(1977) p. 288 at p. 231. Gaja, supra n. 185, is not entirely clear on this question at I.C. 5.
188. Obergericht of Basle, June 3, 1971 (Switz. no. 5), see infra at n. 203 and 219.
189. The Court referred to a decision of the Swiss Federal Supreme Court, published in
Entscheidungen des schweizerischen Bundesgerich ts 9 3 I 5 7.
Switzerland and in most other countries that due process foslns part of
public policy.
It is submitted that the Convention is not different from this generally accepted view.lgOArticle V(1) (b) has been inserted in the Convention because of the specific importance attached to the fundamental
requirement of a fair hearing. It is also a traditional requirement t o be
found in many treaties concerning the recognition and enforcement of
foreign judgments. The same view also prevailed under the Geneva Convention of 1927.19' The fact that the requirement of due process is
listed amongst the grounds for refusal in the first paragraph of Article
V which are to be proven by the respondent, does not alter this. It
merely signifies that if he alleges a violation of due process, it is he, and
not the claimant, who should establish the violation by furnishing
proof. It does not exclude that if a court finds a violation of due process
which is not invoked by a respondent, it may refuse enforcement on
its own motion in virtue of Article V(2) (b).
Accordingly, Article V(1) (b) cannot be considered as having the
effect that a violation of due process would not also fall under the public policy provision of Article V(2) (b); violation of due process may
fall thus either under Article V(1) (b) or Article V(2) (b). Article V(2)
(b) is therefore not limited to questions regarding the substance of the
award involving public policy aspects, but also covers procedural irregularities.
The interpretation that a violation of due process also falls under
Article V(2) (b) is implicitly confirmed by several courts. In deciding
whether an award was affected by certain procedural irregularities, they
relied on Article V(2) (b) rather than Article V(l) (6). In doing so they
followed the invocation of Article V(2) (b) by the respondent. A respondent is, of course, not precluded from invoking the public policy
provisions of the second paragraph of Article V as well, although for
the violation of due process ground b of the first paragraph would be
more likely. Apparently, respondents think - erroneously - that the
invocation of public policy of the forum is more impressive. An example
of such a court decision is the Court of Appeal of Paris which decided
on the refusal of the arbitrator to allow the cross-examination of a witness under Article V(2) (b) as invoked by the French respondent.lg2
Another example is a United States District Court which decided on
190. Accord, P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit

(Tiibingen 1975) no. 736; Th. Bertheau, Das New Yorker Abkommen vom 10. Juni 1958 uber
die Anerkennung und Vollstreckung ausl2ndischer Schiedsspriiche (Winterthur 1965) p. 75.
191. See Greminger, supra n. 184, p. 69.
192. Cour d'appel of Paris (1st Chamber), May 10, 19'71, Compagnie de Saint-Gobain Pont Mousson V. The Fertilizer Corporation of India Ltd. (FCIL) (France no. I), see infi'cr at
n. 222.
Enforcement Award
301
the non-disclosure by the claimant before the arbitrators of one of the

agreements involved in this case on the basis of Article V(2) (b) which
was relied upon by the American respondent.lg3
The third question is the relationship between Article V(1) (b) and
Article V(1) (d). As mentioned under the first question, Article V ( l ) (d)
provides that if the parties have made an agreement on the composition
of the arbitral tribunal and the arbitral procedure, the law governing
these matters is not to be taken into account. This provision must, however, be deemed to be limited by the fundamental requirements of due
process. Thus, where the Arbitration Rules referred to in the agreement
of the parties provide that the names of the arbitrators are not made
known to the parties, such an arrangement is undoubtedly against the
fundamental requirements of due process, and enforcement of an award
resulting from such a case may be refused under Article V(1) (b) (or
Art. V(2) (b), see the preceding q ~ e s t i o n ) . 'Thus,
~ ~ although the argument has not been advanced, in anticipation of possible future cases, it
does not hold water to refer in this case to the freedom granted by
Article V(1) (d) as Article V ( l ) (d) must be deemed to be subject to the
due process provision of Article V(1) (b). For the same reason, the
claimant cannot respond with the objection that under Article V ( l ) (b)
he also was affected by the same contractual provision involving a violation of due process as this does not negate the fact that the violation of
due process was present. Moreover, according to Article V(1) (b) it is
only the respondent who is permitted to invoke the violation of due
process.
The fourth and last question is whether a serious violation of due
process may lead t o a refusal of enforcement of the award if the arbitral
decision would not have been different in case the irregularity in the
procedure had not occurred. This question was considered by a Court
of Appeal in a case in which the arbitrator had not forwarded a letter,
submitted to him by the claimant, to the respondent, who was, consequently, unable to express his views on this letter.19' The Court of Appeal considered that a violation of due process cannot be cured as soon
as it cannot be excluded that the arbitral decision would have led t o a
more favourable decision for the respondent, which the Court found to
be the case. This would mean that if it were beyond doubt that the
193. U.S. District Court of New Jersey, May 12, 1976, Biotronik Mess- undTherapiegerate
G.rn.b.H. & Co. v. Medford Medical Instrument Company (U.S. no. 8), see infi'cl at p. 211.
194. See Oberlandesgericht of Cologne, June 10, 1976 (F.R. Germ. no. 14), see inpa at n.
207.
195. Oberlandesgericht of Hamburg, April 3 , 1.975 (F.R. Germ. no. 1l ) , see infra at n. 215.
3 02
Enforcemen t Award
arbitral decision would have been the same, a serious violation might
not lead to a refusal of enforcement of the award.
The point of view of the Court of Appeal of Hamburg is a pragmatic
one. If it is clear that the arbitral decision could not have been different,
had the irregularity in the procedure not occurred, it would seem to
make no sense to refuse enforcement. A legal justification for this
point of view can be found in the opening line of paragraph 1 of Article
V: "Recognition and enforcement of the award may be refused . . .". It
is to be approved that the Court of Appeal was very cautious to this
effect by exercising a marginally negative control. It considered that a
serious violation of due process could have led to a different arbitral
decision as soon as this could not be excluded. Thus only if it is beyond
any doubt that the decision could have been the same, would a court
be allowed to override the serious violation. A court before which
enforcement of a Convention award is sought may, in my opinion, not
go further as this would amount to an extensive examination as t o how
an arbitrator would have decided if the violation had not occurred. The
latter would yield to a review of the merits of the arbitral award which
is excluded under the Convention.
I11-4.2.3 Court decisions concerning due process
The violation of the standards of due process may concern the improper notice of the proceedings and the denial of an opportunity to be
heard as well as other irregularities in the arbitral procedure. All these
questions concerning due process can be deemed to be covered by the
wording of Article V(1) (b) that enforcement may be refused if the respondent was not given proper notice of the appointment of the
arbitrator or the arbitral proceedings or was otherwise unable to present
his case.
The review of court decisions below will follow the order of the
wording of Article V(1) (b) concerning proper notice and the ability
to present the case. It may be recalled that questions regarding due
process can equally be based on the public policy provision of Article
V(2) (b) (see the second question mentioned in the foregoing Subsection). The decisions relating to due process in which that provision
of the Convention is relied upon will therefore be discussed as well.
The question of impartiality of the arbitrator may also be regarded as
forming part of due process. Thus an arbitrator who is not impartial
may prevent a party from presenting his case within the meaning of Article V(l)(b). However, as in practice the question of impartiality of the
arbitrator is usually based on the public policy of Article V(2) (b), the
court decisions relating t o this question are dealt with in Sub-section
111-5.3.2.
Enforcenzent Award
303
(a) N o proper notice

The word "proper" was inserted in the text of Article V(1) (b) upon
a proposal of the Norwegian delegate. He had made the proposal because the Conference had decided t o delete from this provision the
proviso contained in the Geneva Convention of 1927 that the respondent, being under a legal incapacity, was not properly represented, on
the grounds that such cases seldom arose in practice.lg6 The insertion
of the word 66proper"is therefore intended for the contingency of an
improper representation in the arbitral proceedings, which contingency
has, however, not occurred in any of the reported court decisions.lg7
Apart from this interpretation based on the legislative history of
Article V ( l ) (b), the word 66proper"can also be interpreted in the sense
that the notice of the appointment of the arbitrator and the arbitral
proceedings must be adequate. The question when a notice can be considered as adequate is largely a question of fact. In any case, arbitration
being a private manner of settlement of disputes, the notice need not be
in a specific (official) form.
In this connection two Mexican decisions may be recalled in which the Mexican respondents had asserted that the service by mail, pursuant to the Arbitration Rules
of the International Chamber of Commerce and the American Arbitration Association, respectively, violated Mexican law under which it is a rule of public policy
that first notice of summons should be served personally upon a respondent.lg8
With express reference to Article V ( l ) (b) of the Convention both courts rejected
the objection in both cases on the ground of the same reasoning. They reasoned
that by inserting the arbitral clause in the contract, the parties tacitly waived the
formalities established by Mexican procedural legislation, especially those required
by Article 605 No. IV of the Code of Civil Procedure in respect of summons in
personam .Ig9
Three aspects of these Mexican decisions are interesting. The first aspect is that
the Courts have held that the notice is not subject to a specific official form but
that compliance with the method of notifying as agreed t o by the parties suffices
under the Convention. The second aspect is that the Courts regard the question of
due process as provided by Article V(1) (b) as belonging t o public policy (see the
foregoing Sub-section under the second question). And the third aspect, which has

197. It may be recalled that under the New York Convention questions regarding' the
capacity to conclude an arbitration agreement are covered by Art. V(1) (a), see supm 111-4.1.1.
198. Tribunal Superior de Justicia, 18th Civil Court of First Instance of Mexico, D.F.,
February 24, 1977, Presse Office .A. v. Centro Editorial Hoy .A. (Mexico no. 1); Tribunal
Superior de Justicia [Court of Appeals] (5th Chamber) of Mexico, D.F., August 1,1977, Malden
Mills Inc. v. Hilaturas Lourdes .A. (Mexico no. 2).
199. Art. 605 No. IV of the Code of Civil Procedure for the Federal District provides:
"Foreign judgments can be recognized in the Mexican Republic only if the following conditions are fulfilled:
....
IV. The defendant must have been personally summoned to appear before the court."
3 04
Enforcement Award
already been discussed in another context200,is that the decisions imply the application of the distinction be tween domestic and international public policy, which
is remarkable for courts in Latin America.
Another case in which the impropriety of the notice of the arbitration proceedings was questioned was decided by the Court of First Instance of Z w e i b l i i ~ l t e n . ~ ~ ~
The German respondent had asserted that the letter of the claimant to the Secreta;.y of the arbitration association concerned, in which the claimant had requested
arbitration and which had been forwarded t o the respondent, was not a sufficient
notice. The objection appeared to be frivolous as the Court found that the letter
contained a sufficient description of the matter in dispute and the relief sought so
that with this letter the respondent could have known that arbitration would be
initiated. Moreover, the respondent had been requested three times by the Secretary to appoint his arbitrator which he had omitted t o do.
Similarly, the Court of Appeal of Florence rejected the assertion of the Italian
respondent that he had not been infoimed in conformity with Section 39 of the
Arbitration Rules of the American Arbitration Association because from the facts
of the case it appeared that the respondent had refused explicitly to participate in
the arbitration and, moreover, the AAA had continued to keep him informed of
the progress of the arbitration.202
The shortness of Lime limits within which a respondent has to appoint his arbitrator as provided by the Arbitration Rules referred to in
the agreement of the parties has been attacked several times without
success.
Rather short time limits are provided, in particular, by Arbitration Rules of commodity associations in order to speed up the arbitration and to have the goods in
question available as evidence.
The Court of Appeal of Basle, considering that commodity arbitration requkes
quick decisions, held that the time limit of seven days for the appointment of the
arbitrator and the seven days extension of time by the Secretary of the association
concerned, was not a ground for refusal of enforcement under Article V(1) (b) of
the C o n ~ e n t i o n . ~ ~ ~
This Swiss case is also interesting because the Arbitration Rules of the association in question provide that if the respondent has not appointed his arbitrator
within the period of time, the claimant may request the Secretary t o appoint the
second and third arbitrator. The Secretary had, however, appointed the second and
third arbitrator without a formal request by,the claimant t o this effect. The Court
of Appeal held that this could not be considered as such a serious procedural irregulaiity that there existed a violation of due process.
Several Italian courts have also decided on time limits. The Court of Appeal of
Naples held that the request to appoint an arbitrator within seven days is not a
violation of due proces~.~"The same was held by the Italian Supreme Court in
200. See supra at n. 43 concerning the question of letters rogatory.

Banci S.a.S. (Italy no. 29). In the same sense: U.S. District Court, E.D. of Michigan, S.D.,
March 15, 1977, Audi-NSU Auto Union A.G. v. Overseas Motors Inc. (U.S. no. 16).
203. Obergericht of Basle, June 3, 1971 (Switz. no. 5), see also inpa at n. 219.
204. Corte di Appello of Naples, February 20, 1975, Carters (Merchants) Ltd, v. Francesco
Enforcemen t A ward
305
respect of an appointment to be made within 12 days, and by the Court of Appeal

of Milan in respect of an appohtment t o be made within 15 days.205
The Court of First Instance of Munich held that the failure of the arbitrators t o
make the preliminary inquiry as to their competence in regard t o whether the time
limits for initiating arbitration as provided in the Arbitration Rules in question had
been met constituted a "serious procedural violation" ,for which enforcement was
to be refused on the basis of the public policy provision of Article V(2) (b).206 In
my opinion, this question should not have been dealt with under the public policy
provision of Article V(2) (b), but rather under Article V(l) (a) - i.e .,invalidity of
the arbitration agreement.
The requirement of the proper notice of the appointment of the arbitrator implies that the parties are informed of the name of the arbitrator. The non-disclosure of the names of the arbitrators has led to one of
the exceptional cases in which enforcement of an award was refused on
the basis of Article V(1) (b).
The case, decided by the Court of Appeal of Cologne207,involved an arbitration according to the Arbitration Rules of the Copenhagen Arbitration Committee for
Grain and Feed Stuff Trade. The Arbitration Rules provide that, with the exception
of the President of the arbitral tribunal, the names of the arbitrators are not made
known to the parties. The parties receive a copy of the award which is signed by the
President only. The reason underlying this provision is that the persons on the list
of arbitrators of the Copenhagen Committee all come from a small circle of grain
merchants who regularly do business with each other. If the name of the arbitrator
is known t o a party also coming from the grain trade, that party may be tempted t o
influence him. The Rules provide that the parties have the right to request the list
of arbitrators and to delete the names of the persons whom they do not wish to
have as arbitrator. In the case at hand, the German respondent had not made such
request. This failure of the respondent could not cure the irregularity as was observed by the Court of Appeal:
"The parties have not disputed the fact that - with the exception of the President of the arbitral tribunal - the respondent never had knowledge of the
names of the persons who have decided the arbitration between the parties. The
respondent is not estopped from invoking Article V(1) (b) of the New York
Convention . . . because he could have requested by virtue of Rule 4(6) of the
Arbitration Rules the list of all arbitrators from amongst whom the arbitrators
for the arbitration in question were chosen: Apart from the fact that Article
V(1) (b) implies that the affected party is informed of the appobtment of the
arbitrator, failing a disclosure of the arbitrators who conducted the arbitral
procedure, the respondent is unable t o examine whether the members of the
Committee challenged by him were effectively excluded from the arbitration or
whether prejudiced arbitrators participated who were not mentioned on the list
transmitted t o him."
205. Corte di Cassazione (Sez. I), January 20, 1977, no. 272, S.p.A. Nosegno e Morando V .
Bohne Friedrich und Co-Import-Export (Italy no. 23); Corte di Appello of Milan, May 3, 1977,
Renault Jacquinet v. Sicea (Italy no. 27). In the latter case the time limit of 48 hours to invoke
the inferior quality of the corn was also held not to be in violation of Italian public policy.
206. Landgericht of Munich, June 20, 1978 (F.R. Germ. no. 19); cf. infro at n. 237.
207. Oberlandesgericht of Cologne, June 10, 1976 (F.R. Germ. no. 14).
3 06
Enforcement Award
The refusal to enforce the award in this case was, in my opinion, justified. Despite
the understandable concern of the Copenhagen Arbitration Committee t o avoid the
influence by a party of an arbitrator, the right to challenge an arbitrator is such a
fundamental right of fair trial that it should not be allowed to contract it
(b)
"Unable to present his case"
Originally, the text of Article V(1) (b) read "The party against whom
the award is invoked was not given proper notice of the appointment of
the arbitrator or of the arbitration proceedings in sufficient time to
enable him to present his case . . .". At the penultimate session of the
New York Conference the underscored wording was amended at the
instigation of the Dutch delegate to read ". . . or was unable to present
his case99.209
This broader wording was proposed by him in view of the
possibility that, although notice had been given in sufficient time, the
respondent might, for example, have been unable to appear before the
arbitrator because a visa had been refused or for other causes of force
majeure, or, when appearing before the arbitrator, he might not have
had a sufficient opportunity to defend his case.210 The broadening of
the wording has as consequence that the present text covers any serious
irregularity in the arbitral proceedings. It also lays down the principle
of equal opportunity to be heard.
The equal opportunity to be heard means that a party must have
been effectively offered the opportunity t o be heard. But if, after
having been duly notified, a respondent refuses to participate or remains inactive in the arbitration, he must be deemed to have deliberately forfeited the opportunity. Default in arbitration after having
been duly notified has invariably been held not t o bar enforcement of a
Convention award. The counterpart of due process is an active participation in the arbitration.
This is well illustrated by a case decided by the United States District Court in New
Jersey.211 The American respondent, who, although having been invited to the arbitration under the Arbitration Rules of the International Chamber of Commerce in
Switzerland, did not take part in the arbitration, asserted that he was "unable t o
present his case" as under one of the agreements involved in the dispute his rights
and Liabilities (i.e., commissions for sales of pacemakers) had not matured and
208. This is also the opinion of U. IComblum in his comment on this case in 91 Zeitschrift
fur Zivilprozess (1978) p. 323; P. Sanders, "Consolidated Commentary Vols. 111 and IV", in
210. P. Sanders, "The New Yorlc Convention", in International Commercial Arbitration Vol.
I1 (The Hague 1960) p. 293 at p. 315.
211. U.S. District Court of New Jersey, May 12, 1976, Biotronilc Mess- und Therapiegerate
G.m.b.H. & Co. v. Medford Medical Instrument Company (U.S. no. 8).
could not be calculated until that agreement had expised. He also alleged fraud in
obtaining the award as the agreement had not been disclosed by the claimant to the
arbitrators. The Court rejected both allegations. The Court reasoned that the respondent misconceived the thrust of Article V ( l ) (b) which is that "The primary
elements of due process are notice of the proceedings and the opportunity to be
heard." As he had received notice of the arbitral proceedings, he should and he
could have made the allegation before the arbitral tribunal. As regards the allegation
of fraud, the Court held that as the respondent was unable to establish this under
Section 10(a) of the United States Arbitration Act, the public policy defence of
Article V(2) (b) was a fortiori inapplicable.212
Another case in which it was held that an active participation of the respondent
The German responis required is a decision of the Court of Appeal of
dent had asserted that he had not Gad an opportunity t o present his case as certain
documents of the English claimant had been transmitted t o him by mail the evening
before the oral hearing in London, for which reason he had not unpaclced the documents. The Court rejected the assertion arguing that the fact that the documents
had reached him only the evening before the hearing does not violate the requirements of due process as the counterpart of due process is an active participation in
the arbitral proceedings; by not unpacking the documents, the respondent had willfully not taken notice of them.
A further example is a decision of the Court of Appeal of Milan which considered that the refusal of the arbitrator to examine the quality of the corn in question
was justified, and did not constitute a violation of public policy as provided by
Article V(2) (b), as the respondent had not allowed the taking of samples in a
procedure with a contra-expertiseS2l4
The equal opportunity to be heard does not mean that in each and
every case an oral hearing must take place. The question whether an
oral hearing is to take place or whether the proceedings can be conducted on the basis of documents only depends on the arbitration
agreement of the parties and, as the case may be, the Arbitration Rules
referred to, as well as, if t o be observed in the enforcement procedure
(see Art. V(1) (d)), the law governing the arbitration. The question of
an oral hearing has not led to a court decision under the Convention.
The principle of due process implies that the arbitrator must infirm
a party o f the arguments and evidence of the other party and allow the
former to express an opinion thereon. The non-observance of this
principle has actually resulted in another exceptional case in which enforcement of an award was refused for a violation of due process.
212. See for examples of other cases in which the default of a party after due notice was
held not to be a bar to enforcement of a Convention award, Landgericht of Zweibriicken,
January 11, 1978 (F.R. Germ. no. 16), see mpru at n. 201; Corte di Appello of Florence,
October 8, 1977, Bobbie Brooks Inc. v. Lanificio Walter Banci S.a.S. (Italy no. 29), see supra
at n. 202.
214. Corte di Appello of Milan, May 3, 1977, Renault Jacquinet v. Sicea (Italy no. 27).
308
Enforcement Award
The case involving an award made under the Arbitration Rules of the American
Arbitration Association in New Yorlc was decided by the Court of Appeal of
Hamburg.215 The New York Convention was held not to be applicable in this case
on the account of non-retroactive applicability, but the decision would undoubtedly have been the same if the Convention had been applied.216 The arbitrator, who
conducted the arbitration on the basis of documents only, had not forwarded to
the German respondent a letter submitted by the American claimant; the Gelman
respondent had therefore no opportunity to obtain knowledge of this letter and to
express an opinion thereon. After having observed that in the case of a foreign
award not every infringement of mandatory provisions of German law constitutes a
violation of public policy, but that a violation is to be accepted in extreme cases
only, the Court held that the above facts amounted to such an extreme case. In this
connection the Court referred to Section 3 l(2) of the AAA Arbitration Rules according to which all parties shall be afforded opportunity to examine documents.
On the other hand, the President of the Court of First Instance of Paris rejected
the objection of the French respondent that he had been unable to present his case
because, after having rejected the basis of the claim as relied upon by the claimant,
the arbitrator had substituted on his own initiative another basis for awarding the
claim without having heard the respondent thereon. The President reasoned that,
although he had rejected the claimant's argumentation, the arbitrator "did not
change the legal context of the parties' debate." This view was affirmed by the
Court of Appeal of Paris in this case.217 The President and Court of Appeal were,
in my opinion, right in so deciding, because what the respondent was attempting to
do, in fact, was to introduce a review of the mei-its through the due process provision of Article V(1) (b).
As it is the case for the appointment of an arbitrator, it has been held

that short time limits for the preparation of defence are generally not a
violation of due process.
An example is the Court of Appeal of Naples which held that a time limit of 14
days to present evidence in support of the defence is sufficient time for the preparation of the defence.218
A related example is the already-mentioned decision of the Court of Appeal of
B a ~ l e . ~The
l ~ responding Swiss company had asserted that it was unable to prepare
its defence as its director had to go into obligatory Swiss military service, which
objection, made for the purposes of a postponement of the arbitral proceedings,
was rejected by the Secretary of the association concerned. The Court of Appeal
rejected the assertion as the notice of the arbitration and the setting of time limits
by the Secretary had occurred before the entry into military service; the director
had, therefore, the possibility to prepare the defence, and, in particular, to the
215. Oberlandesgericht of Hamburg, April 3, 1975 (F.R. Germ. no. 1I), see also supra a t
n. 195.
216. See supra 1-3 ("Retroactivity") at n. 192.
217. President of the Tribunal de grande instance of Paris, May 15, 1970; Cour d'appel of
Paris, May 10, 1971, Compagnie de Saint-Gobain - Pont i Mousson v. The Fertilizer Corporation of India Ltd. (FCIL) (France no. l ) .
219. Obergericht of Basle, June 3, 1971 (Switz. no. 5), see supra at n. 203.
Enforcement Award
309
extent that he could no longer act himself, to take appropriate measures, Moreover, the Court argued, a legal person can be expected to provide that during the
absence of one of its directors it remains capable of acting.
Finally, the courts are generally averse to the allegation that the arbitrator has refused to postpone the arbitration hearing because a witness
of the respondent was unable to appear at a given time or has refused to
hear a witness, considering the hearing unnecessary.
An example is a case decided by a United States Court of Appeals.220The American respondent contended a violation of due process on the ground that the arbitrators had refused to delay the arbitralproceedings in order to accommodate the speaking schedule of one of his witnesses, the United States chug6 d'affaires in Egypt,
who had to lecture at a United States university. The Court of Appeals rejected the
contention. After having observed that Article V(1) (b) "essentially sanctions the
application of the forum State's standards of due process", the Court reasoned that
the respondent's due process rights were in no way infringed by the arbitrators
because: (1) the inability to produce a witness is inherent to arbitration, (2) the
lecture commitment is hardly the type of obstacle to his presence which would
require the arbitrators to postpone the hearing as a matter of fundamental fairness
to the respondent, and (3) the arbitrators had before them an affidavit from the
witness in question.
Another example is a case decided by the Court of Appeal of Hamburg in which
it was held that the refusal by the arbitrators to postpone a hearing because a witness "was on business trip" was not a violation of due process. The arbitrator had
replied to the request of the respondent for a postponement of the hearing that an
affidavit from the witness would also do, which suggestion was not followed by the
respondent.221
A further example is the already-mentioned Court of Appeal of Paris.222Before
the Court of Appeal the respondent had invoked a violation of French public policy
within the meaning of Article V(2) (b), alleging that the arbitrator had refused to
hear again witnesses in respect of documents produced by him, the respondent.
The Court of Appeal considered that this did not amount to a violation of French
public policy as the arbitrator could rightly assume that the previous declarations of
the witnesses were not in contradiction with the newly produced documents.
A last case which may be mentioned in this context is a decision of the Court
of Appeal of Geneva concerning an award made in the nether land^.^^^ The respondent had asserted that the conduct of the arbitrators constituted a violation of
public policy as provided in Article V(2) (b) because they had consulted an expert
(in the chrome trade) in the absence of the parties and without giving them an opportunity 'to express an opinion on the conclusions of the expert. The Court found
that no violation of Swiss public policy had occurred because it appeared that the
220. U.S. Court of Appeals (2nd Cir.), December 23, 1974,Parsons & Whitternore Overseas
Co. Inc. V. SociAt6 G6nBrale de 1'Industrie du Papier (RAKTA) (U.S. no. 7).
222. Cour d'appel of Paris, May 10, 1971, Compagnie Saint-Gobain - Pont ri Mousson v.
The Fertilizer Corporation of India Ltd. (FCIL) (France no. 1).
.223. Cour de Justice (1st Section) of the Canton Geneva, September 17, 1976, Lgopold
Lazarus Ltd. v. Chrome Kessources S.A. (Switz. no. 6).
3 10
Eizforcemen t Award
arbitrators had merely consulted an expert for ascertaining the prices of chrome
according to its differing compositions, a question which did not relate to a point
controverted by the parties, but which had come up during the deliberations in
respect of the commercial practice in this field. The Court considered also that it
is an undisputed doctrine in the Netherlands that an arbitrator is not limited to
relying on the experience which he already possesses, but may also make inquires
in order t o elucidate a certain problem.
The review of cases decided under Article V(1) (b) and Article
V(2) (b) concerning due process demonstrates that the courts accept
the defence of a violation of due process in very serious cases only.
However, this must not give the impression that this judicial attitude
would give a free rein to reckless conduct and administration of arbitrations by arbitrators and arbitral institutions. Rather, it has appeared
that the arbitrators and the arbitral institutions generally have paid
due attention to the principles of fair trial, but that the defence of a
violation of due process was made by respondents in many cases for
These obstructive defences
what is described as "mere
fortunately have not misled the courts. In conclusion, one may say that
in interpreting and applying Article V(1) (b) and Article V(2) (b) in
respect of the requirements of due process, in particular, the courts
have in general underlined the Convention's pro-enforcement bias.
111-4.2.4 Uniform interpretation (and summary)

Article V(1) (b) according t o which enforcement of an award may be
refused if a respondent proves that he has not been given proper notice
of the appointment of the arbitrator or of the arbitral proceedings or
was otherwise unable to present his case, concerns the fundamental
standards of due process (p. 297).
What is regarded as a violation of due process in domestic cases need
not necessarily be a violation of due process in cases falling under the
Convention, the latter being limited t o serious irregularities (p. 298).
The violation of due process may also be based on the public policy
provision of Article V(2) (b). Article V(1) (b) does not have.the effect
of preempting this question from Article V(2) (b) (pp. 299-30 1).
Article V(1) (b) is a corrective on the provision contained in Article
V(1) (d) that, in the case of an agreement of the parties on the composition of the arbitral tribunal and the arbitral procedure, the law governing the arbitration is not t o be taken into account (p. 301).
A serious violation of due process may not lead t o a refusal of en-
224. P. Sanders, "Consolidated Commentary Vols. 111 and IV", in Yearbook Vol. IV (1979)
p. 231 at p. 248.
Enforcement Award
311
forcement if it is beyond any doubt that the arbitral decision could not
have been different, had the irregularity not occurred (pp. 30 1-302).
The word "proper" before "notice" in Article V ( l ) (b) includes also
the improper representation of a party in the arbitral proceedings
(p. 303).
The notice of the appointment of the arbitrator and of the arbitral
proceedings must be adequate, but need not be in a specific form (pp.
303-304).
The shortness of time limits for the appointment of an arbitrator by
a party is generally not a ground for refusal of enforcement (pp. 304-305).
The parties must be informed of the name of the arbitrator() (pp.
305-306).
The wording ". . . or was unable to present his case9' covers any
serious irregularity in the arbitral proceedings (p. 306).
A party who has refused t o participate, or remains inactive, in the
arbitration, after having been duly notified, generally cannot invoke
Article V(1) (b) or Article V(2) (b) (pp. 306-307).
The arbitrator must inform a party of the arguments and evidence
of the other party and allow the former to express an opinion thereon
(pp. 307-308).
Short time limits for the preparation of defence are generally not a
violation of due process (pp. 308-309).
111-4.3
Ground c : Excess by Arbitrator of His Authority
Article V(1) (c) of the Convention provides:

""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:
(.
. . .)
( c ) he award deals with a difference not contemplated by or not

fallhg 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 deckions on matters submitted to arbitration may be
recognized and enforced ;"
111-4.3.1 In general
Ground c can be divided in half. The first half is concerned with the
award which contains decisions in excess of the arbitrator's authority.
The second half deals with the possibility of a partial enforcement of
3 12
Enforcement Award
an award which contains both decisions within the arbitrator's authority and decisions outside that authority.
Contrary to the preceding ground b concerning due process, ground
c has seldom been relied upon by a party against whom enforcement of
a Convention award was sought; in fact, it is the least invoked ground of
all the grounds for refusal of enforcement provided in Article V. Moreover, in the few cases in which the defence on the basis of ground c
was made, it has always been dismissed. It may be added that the
second half of Article V(1) (c) concerning the partial enforcement has
never been applied.
At the outset it should be pointed out that the excess of authority
by the arbitrator as provided by Article V ( l ) (c) does not concern the
case where the arbitrator had no competence at all because of the lack
of a valid arbitration agreement. For that case of incompetence, Article
V(1) (a) concerning the validity of the arbitration agreement has to be
invoked. Article V ( l ) (c), on the other hand, concerns the case where
the arbitration agreement may be valid as such, but the arbitrator has
given decisions which are not contemplated by or not falling within the
scope of the arbitration agreement and the questions submitted to him
by the parties.
The Convention does not imply that the arbitrator may give a final decision on his
competence (the question of so-called Kornpetenz-Icompetenz). Under almost all
arbitration laws the arbitrator has no power to give such f h a l decision; as arbitration excludes the competence of the courts, which is considered as a far-reaching
effect, the courts retain the last word in this matter. Many laws, however, allow the
arbitrator to give a provisional ruling on his competence in order not to delay the
arbitration and to alleviate dilatory tactics by obstructive respondents. This principle that the court has the last word on the arbitrator's competence is not different for the New York Convention. If it were otherwise, the Convention would
have contained express provisions to that effect in order to make clear that it
deviates from the prevailing principle of the national arbitration laws. Thus, regardless of the arbitrator's opinion that the arbitration agreement is valid, if the agreement is proven to be invalid, enforcement may be refused under Article V(l) (a).
Similarly, regardless of the arbitrator's ruling that certain matters fall within the
scope of the arbitration agreement or concern questions submitted to him, if it is
proven that he has exceeded his authority, enforcement may be refused under
Article V(l) (c).
Another question is under which law the competence of the arbitrator is t o be
determined. As far as the invalidity of the arbitration agreement is concerned, this
question is to be judged under the law applicable to it as determined according to
the conflict rules of Article V(1) (a). As far as the excess of authority due to a
transgression of the scope of the arbitration agreement and the questions submitted
to him is concerned, the question of applicable law will normally not arise, as the
excess of authority is largely a question of fact. In exceptional cases, which have
not arisen in practice so far in connection with the enforcement of an arbitral
award, it may be necessary to ascertain this law. An example is the question wheth. ~ the
~ ~ absence of an
er the arbitration agreement extends to a bill of e x c h ~ n g e In
express provision to this effect in the Convention, two laws would be equally quali-
Enforcernent Award
3 13
fied for this question: the law applicable to the arbitration agreement and the law
applicable t o the arbitral award. As in practice both laws are in most cases the
same226, the question is rather academic. It may be mentioned that the Swedish
implementing Act opts for the law applicable t o the award as it provides in Section
7(1) (3), which is intended to give effect t o Article V(1) (c) of the C o n v e n t i ~ n ~ ~ ~ :
"that the arbitrators have gone beyond the matters submitted to them and that
. by reason thereof the arbitral award is ineffective in the State where it was given
or under whose law it was given".
As far as the interpretation of Article V(1)( c ) is concerned, like the

other grounds for refusal of enforcement of Article V, Article V(1) (c)
is to be construed narrowly. In any case, the question whether an arbitrator has exceeded his authority should not lead to a re-examination of
the merits of the award.
This interpretation was clearly stated by a United States Court of Appeals in one of
the few decisions involving the defence of Article V ( l ) ( c ) . The
~ ~ considerations
~
of
the Court are well worth quoting:
" [ ~ r t i c l e V(1) (c)] basically aLlow[s] a party to attack an award predicated
upon arbitration of a subject matter not within the agreement to submit to arbitration. This defense to enforcement of a foreign award, like the others already
discussed, should be construed narrowly. Once again a narrow construction
would comport with the enforcement-facilitating thrust of the Convention. In
addition, the case law under the similar provision of the Federal Arbitration Act
strongly supports a strict reading.229
In making this defense . . . Overseas must therefore overcome a powerful presumption that the arbitral body acted within its powers. Overseas principally
directs its challenge at the U.S. $ 185,000 awarded for loss of production. Its
jurisdictional claim focuses on the provision of the contract reciting that '(n)either party shall have any liability for loss of production-.' The tribunal cannot
properly be charged, however, with simply ignoring this alleged limitation on the
subject matter over which its decision-making powers extended. Rather, the
arbitration court interpreted the provision not to preclude jurisdiction on this
225. Comp. with Court of Appeal, April 2-8, 1976, and House of Lords, February 16,1977,
Kammgarn Spinnerei G.m.b.H. v. Nova Jersey Knit Ltd. (U.K. nos. 1 and 2) in which this question was considered under the law applicable to the arbitration agreement in an action for the
enforcement of the arbitration agreement under Art. II(3) of the Convention, see supra 11-1.3.2
("Difference in Respect of a Defined Legal Relationship").
226. See supra 111-4.1.3.5 ("Determination of the Law Applicable to the Arbitration Agreement").
Co. Inc. V. SociBtB GBn6rale de l'lndustrie du Papier (RAICTA) (U.S. no. 7). In the same sense:
U.S. District Court of Michigan, S.D., Audi-NSU Auto Union A.G. v. Overseas Motors Inc.
(U.S. no. 16).
229. The Court referred to the U.S. Supreme Court decision in United Steelworkers of
America v. Enterprise Wheel & Car Corp., 363 United States Supreme Court Reports 593
(1960). The provision referred to by the Court is Sect. 10(d) of the U.S. Federal Arbitration
Act, reading:
'<Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made."
3 14
Enforcement Award
matter . . . he court may be satisfied that the arbitrator premised the award
on a construction of the contract and that it is 'not apparent' . . . that the scope
of the submission t o arbitration has been exceeded.230
The appellant's attack on the U.S. $ 60,000 awarded for start-up expenses . . .
cannot withstand the most cursory scrutiny. In characterizing the U.S. $ 60,000
as 'consequential damages' (and thus proscribed by the arbitration agreement),
Overseas is again attempting to secure a reconstruction in this court of the
contract - an activity wholly inconsistent with the deference due to arbitral
decisions on law and fact . . ."
Although the Convention recognizes that an award may not be enforced where
predicated on a subject matter outside the arbitrator's jurisdiction, it does not
sanction second-guessing the arbitrator's construction of the parties' agreement.
The appellant's attempt to invoke this defense, however, calls upon the court to
ignore this limitation on its decision-making powers and usurp the arbitrator's
role . . .".
111-4.3.2 'Submission to arbitration"

Although not yet questioned in the courts so far, the expression "submission to arbitration9' as appearing in the English text of Article V(1) (c)
may be open to certain difficulties in its interpretation. The same can
be said of the French wording of the expression.
In the case of an arbitral clause the allegation of a respondent that the
arbitrator has overstepped his authority may be of two kinds. The first
type of allegation is that the arbitrator has dealt with a dispute which
does not fall within the scope of the arbitral clause. The second type of
allegation is that the arbitrator has given decisions on matters which are
beyond or outside the questions submitted to him by the parties, which
may be called the arbitrator's mandate. The latter type of allegation
usually concerns the allegation that the arbitrator has awarded more
than, or differently from, what was claimed. The difference between
both types of allegations is that the first is based on the arbitral clause
itself whereas the second is based on the mandate given by the parties
to the arbitrator. The relevance of this distinction is that the mandate
may comprise less than the arbitral clause. This has as consequence that
in the case of the arbitral clause it depends on the type of allegation
made whether the arbitral clause or the mandate must be taken as the
measuring standard for determining the question whether the arbitrator
has exceeded his authority.
In the case of the submission agreement, on the other hand, there is
no need to distinguish between the agreement and the mandate since
the mandate is defined in the agreement itself.
As regards the expression "submission to arbitration" in Article
230. The Court referred to the U.S. Supreme Court decision, supra n. 229.
Enforcement Award
315
V(1) (c), a difference between the English and French texts of Article
V(1) (c) - which are according t o Article XVI of the Convention equally
authentic - is to be mentioned. The English text reads "a difference not
contemplated by or not falling within the terms of the submission t o
arbitration". The French text, on the other hand, reads "un differend
non vise dans le compromis ou n9entrant pas dans les previsions de la
~ ~wording
~
similar t o the French text can be
clause c o m p r o m i ~ s o i r e " . A
found in the equally authentic Spanish text and the non-authentic German translation.232 The literal translation of the French text is "a difference not contemplated by the submission agreement or not falling
within the terms of the arbitral clause". The same difference between
the English and French texts existed under Article 2(1) (c) of the Geneva Convention of l 927, which provision is similar to the first half of
Article V(1) ( c ) . ~ ~ ~
In the case of the arbitral clause, the expressions "submission t o arbitration" and "clause compromi~soire~~
must be deemed to have two
meanings. The first meaning, which is the one referred t o by the French
text, is that it refers t o the arbitral clause itself. This meaning suits the
first type of allegation mentioned above (i.e., that the dispute does not
fall within the scope of the arbitral clause). The second meaning is that
it also refers t o the delineation of the arbitrator's authority as made by
the questions submitted to him (i.e., the arbitrator's mandate). The latter meaning suits the second type of allegation mentioned above. The
English text of the Convention supports the second meaning: whilst,
for example, Article V(1) (a) refers t o the arbitration agreement in general, Article V(1) (c) mentions specifically the "submission t o arbitration". If the submission agreement and the arbitral clause were only intended t o be provided for, Article V ( l ) (c) could simply have mentioned
"arbitration agreement9'.
Accordingly, the first meaning of the expressions 66submissiont o arbitration" and "clause c ~ m p r o m i s s o i r eis~ to
~ , be derived from the French
text, whilst the second meaning is to be derived from the English text.
231. The French text of Art. V(l) (c) cannot be interpreted as meaning that in the case of
an arbitral clause a submission agreement must be concluded once the dispute has arisen. As
explained in supra 11-1.2.2, the New Yorlc Convention treats both types of arbitration agreements alike. See for this far-fetched interpretation of Art. V(1) (c), P. Schlosser, Das Recht der
internationalen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) no. 265; G. Gaja, "Introduction", in New York Convention (Dobbs Ferry 1978-1980) I.C. 2.
232. The Spanish text reads: "una diferencia no prevista en el compromiso o no comprendida en las disposiciones de la cla'usula compromisoria". The German translation reads "eine
Streitigkeit ..., die in der Schiedsabrede nicht erwahnt ist oder nicht unter die Bestimmungen
der Schiedsklausel fallt".
233. Like it is the case for the difference between the English and French text of the first
half of Art. V(1) (c) of the New York Convention, no explanation for the difference between
the English and French text of Art. 2(1) (c) of the Geneva Convention can be found in literature.
3 16
Enforcement Award
Colisequently, as far as their interpretation is concerned, both texts are

t o be read together. Thus, depending on the type of allegation made, if
the English text is relied upon, it may be necessary t o interpret it by
relying also on the French text (i.e., in the case of the arbitral clause),
and conversely, again depending on the type of allegation made, if the
French text is relied upon, it may be necessary t o interpret that text by
relying on the English text (i.e., in the case of the mandate).
In the case of the submission agreement, the French text explicitly
refers to this type of agreement ("compromis"). Accordingly, in this
case the expression "submission t o arbitration" as appearing in the English text is to be interpreted in the sense of "submission agreement"
on the basis of the clearer French text.
111-4.3.3 Court decisiopas regarding Article V(I)(c)

(a) The allegation that the arbitrator has awarded something which
was not claimed was dealt with by the Svea Court of Appeal in Stockholm in the matter of Gotaverken v. GNMTC.234
The dispute concerned the refusal of GNMTC from Libya t o take delivery of three
oil tankers which it had ordered from the Swedish shipyard Gotaverken. The arbitrators decided that GNMTC should take delivery of the vessels against a price reduction for certain minor defects. Before the Court of Appeal, GNMTC opposed t o
the request for enforcement of the award, inter alia, on the ground that the arbitrators had exceeded their authority since they had never been aslted t o determine
whether there should be a price reduction. The Court of Appeal held that the arbitrators' mission was t o determine whether GNMTC was obliged t o take delivery of
the vessels and t o pay the last instalment of the purchase price. It meant, according
t o the Court, that they had the power t o determine that GNMTC should take delivery and should pay the last instalment with a reduction for non-substantial defects
in the vessels. The reduction was not an unsolicited award of damages t o GNMTC,
but rather a price adjustment connected with the general determination that GNMTC
owed the last instalment.
I t may be interesting t o add that GNMTC had also asserted that the arbitrators
had exceeded their authority by declaring in the decisional part of the award: "By
the execution of this decision, both parties will be deemed to have fulfilled all their
obligations under the three contracts." GNMTC alleged that this was not a question
submitted'to the arbitrators. The Court of Appeal refrained from deciding on this
assertion by holding that this declaration of the arbitrators was of a general nature
and not subject to enforcement.
(b) Provisions in the contract of the parties may sometimes also contain a directive which may have t o be taken into account by the arbitrator. The defence that the arbitrator has transgressed his authority by in234. Svea Court of Appeal (5th Dep't), December 13, 1978, affirmed by the Swedish
Supreme Court, August 13, 1979 (Sweden no. 1).
Enforcement Award
317
terpreting such contractual provision, which allegedly he would not

have been allowed to do, is approachecl with great caution by the courts.
Such defence usually appears to be a disguised attempt to have the merits
of the award re-examined by the court whicli it is not permitted t o do
under the Convention.
An example of this defence was already given in the above quoted decision of the
United States Court of Appeals.235 In that case the respondent had alleged that the
arbitrator had awarded U.S. $ 185,000 for loss of production in excess of his authority as the contract provided that "[nleither party shall have any liability for loss of
production." The Court of Appeal rejected the defence arguing that this clause was
a matter of construction of the contract for the arbitrator and that it was not apparent that the scope of the submission to arbitration had been exceeded.
Another example can be found in a decision of the Court of Appeal of Pal-is in the
matter of Saint-Go bain (France) v. FCIL (India).236 Saint-Gobain, against whom the
enforcement of the award was sought by FCIL, had asserted that the arbitrator had
exceeded his authority because according t o the award Saint-Gobain had t o pay
FCIL the indemnity it received from the insurers on the account of materials damaged during transport, whilst the contract of the parties provided that such indemnity
was to be transferred by FCIL to Saint-Gobain. The Court held that this concerned
a simple slip of the pen in the award as the words "respondent" and "claimant"
had erroneously been changed. As this was recognized by FCIL, which declared to
be prepared to reimburse Saint-Gobain the amount in question, the Court considered the question as moot.
(c) The question of the transgression by the arbitrators of time limits

for initiating arbitration was dealt with by the German Federal Supreme
~ ~ be questioned whether this is
Court under Article V(1) ( c ) . It~ may
correct.
The case concerned the addition t o the arbitral clause: "Any claim for arbitration
formulated after 6 months from the date of arrival of the goods at the final station
or port of destination is null." Although the arbitration had been initiated after
6 months from the date of arrival of the goods, the arbitral tribunal in Bucharest
had declared itself competent. The transgression of the time limit was sufficient
reason for the German Court of Appeal in this case to refuse enforcement of the
award on the basis of Article V ( l ) (c). This decision was reversed by the German
Federal Supreme Court. It reasoned that the addition t o the arbitral clause was ambiguous as it did not expressis verbis exclude the competence of the arbitral tribunal
after the six months period. According to the Court, it could mean, inter alia, an
absolute bar to the competence of the arbitral tribunal, or one which could still be
decided upon by it. Nor was it clear whether the time limit was t o be observed by
the arbitral tribunal on its own motion, or only at the request of a party. With reference t o the conflict rules of Article V(1) (a), the Court held that these questions
Co. Inc. v. SociBtB GknBrale de 1'Industrie du Papier (RAKTA) (U.S. no. 7), see supra at n. 228.
236. Cour d'appel of Paris (1st Chamber), May 10, 1971 (France no. 1).
237. Bundesgerichtshof, February 12, 1976 (F.R. Germ. no. 12), see also supra n. 169.
3 18
Enforcement Award
should have been examined by the Court of Appeal under Romanian law and referred the case back to the latter.
Like the Court of Appeal in this case, the German Supreme Court referred also
to Article V(1) (c). It may be questioned whether the reliance on ground c is appropriate for the question whether the arbitrators have transgressed the time limits
for initiating arbitration. Rather, time limits for initiating arbitration affect the va-v
lidity of the arbitration agreement. As explained in 111-4.3.1 supra, Article V ( l ) (c)
is not concerned with the incompetence of the arbitrators due to an invalid arbitration agreement, as this question falls under the ground for refusal of enforcement
set out in Article V(1) (a). The Supreme Court should therefore have referred to
Article V ( l ) (a) not only for the purpose of determining the law for resolving the
question of time limits for initiating arbitration, but also for deciding on this question regarding the arbitrator's competence in its entirety.
111-4.3.4 Partial enforcement

The second half of Article V(1) (c) provides:
". . ., if the decisions on the matters submitted to arbitration can be separated

from those not so submitted, that part of the award which contains decisions on
matters submitted t o arbitration may be recognized and enforced;"
The proviso concerning the partial enforcement of an award which is in
part ultra or extra petita was intended to "replace9' Article 2(2) of the
Geneva Convention of 1927.238There is, however, a difference between
the provisions. Article 2(2) of the Geneva Convention of 1927 namely
provides:
"If the award has not covered all the questions submitted t o the arbitral tribunal,
the competent authority of the country where recognition or enforcement of
the award is sought can, if it thinks fit, postpone such recognition or enforcement or grant it subject to such guarantee as that authority may decide,"
This provision concerns an award which is infra petita, i.e., an award

which does not dispose of all questions submitted to the arbitrator's decision. In contrast, the proviso in the New York Convention concerns,
according t o its text, the award which is ultra or extra petita, i.e., an
award containing decisions which are partially or entirely outside the
questions submitted to the arbitrator's decision. In fact, the text of the
New York Convention does not regulate the case of an incomplete award
at all. We will come back on this question in the following Sub-section.
Leaving aside the difference between an incomplete award and an
award made in excess of the arbitrator's authority, the proviso in the
238. See Th. Bertheau, Das New Yorker Abkommen vom 10. Juni 1958 uber die Anerlcennung und Vollstreckung auslindischer Schiedsspriiche (Winterthur 1965) p. 77.
Enforcement Award
319
New York Convention is more flexible than Article 2(2) of the Geneva
Convention in that it does not limit the partial enforcement to a postponement of the decision on the enforcement or an enforcement subject
to a guarantee. It offers the possibility t o grant an unfettered enforcement of that part of the award which contains decisions on matters
which were submitted t o the arbitrator's decision.
Whereas the first half of Article V ( l ) (c) was not subject t o discussions at the New York Conference, the second half occasioned debates
on certain aspects. The delegate from Israel thought it unduly long and
complex. The Belgian delegate feared that a court, having t o sever, would
inevitably have to look into the merits. The delegate from India, on the
other hand, stated according t o the Summary Records239:
"[Iln a commercial arbitration, the extraneous matter introduced by the arbitrator into the award might be of a very incidental nature. If the enforcing court
was not authorized to sever that matter from the remainder of the award and was
obliged to refuse enforcement altogether merely because a small detail fell outside the scope of the arbitral agreement, the applicant might suffer unjustified
hardship. He consequently thought that the proviso could be retained."
This statement was seconded by statements of delegates of a number

of other States. The Italian and Dutch delegates in particular cited as
examples the unauthorized decisions on interests and costs. These statements convinced the Conference to vote down the Belgian proposal t o
delete the proviso .240
The partial enforcement as provided by Article V ( l ) (c) has not been
subject t o judicial application. It may be mentioned that the proviso gives
the court the discretion t o grant the partial enforcement ("may be recognized and enforced"). The above-mentioned Conference discussions may
provide some guidelines as t o how this discretion could be exercised:
partial enforcement may be granted if the matter in excess of the arbitrator's authority is of a very incidental nature and the refusal of enforcement would lead t o unjustified hardship for the party seeking enforcement.
The possibility of partial enforcement is unknown in a certain number of countries. In these countries the proviso of Article V(1) (c) will
introduce a novelty. In those countries where the partial enforcement is
made subject t o certain conditions, such as a guarantee, the relevant provisions of their laws are superseded by this uniform rule of the Convention.
239. UN DOC E/CONF.26/SR. 17.

240. Id.
111-4.3.5 A ward infra peltita

As noted before the award infra petita, i.e., the award which does not I
I
dispose of all questions submitted t o the arbitrator's decision, was regu- i
lated by Article 2(2) of the Geneva Convention of 1927. The latter pro- 1
vided that in the case of an incomplete award the court could either 1
postpone the decision on the enforcement or grant enforcement subject
t o such guarantee as the court would decide. The '"replacement" of Article 2(2) of the Geneva Convention resulted in a different proviso in
Article V ( l ) (c) which concerns the partial enforcement of an award
ultra or extra petita. Hence, the case of an incomplete award is no longer
listed as a ground for refusal of enforcement under the New York Convention.
The case of an incomplete award has hitherto not been brought up
before the courts. In anticipation of possible future cases, may it be argued that an award, in the decisional part of which matters submitted
t o the decision of the arbitrator are omitted, may be refused enforcement under the Convention?
It is submitted that this argument cannot be maintained. The main
reason is that the grounds for refusal of enforcement of Article V of the
Convention are limitative and have t o be construed ~trictly.~"As the
incomplete award is not included in the text of Article V, it can, on principle, not be considered as a g r ~ u n dfor refusal. The primary purpose of
the drafters of the Convention was to limit as much as possible the
grounds for refusal of enforcement. Thus, although there is no express
mention in the Summary Records of the New York Conference that the
incomplete award was to be excluded from the new Convention, the
"replacement" of Article 2(2) of the Geneva Convention, in which the
incomplete award does not re-appear, may be construed as a consequence
of the desired limitation. In addition, there would not seem to exist an
objection t o the enforcement of an arbitrator's decision which he was
competent to take. This is fundamentally different from the case where
the arbitrator made a decision in excess of his authority.
It may be added that Article V ( l ) (d) regarding the ground for refusal of enforcement due t o an irregularity in the arbitral procedure is,
in my opinion, inappropriate for the case of an incomplete award as it
would confer upon the word 66procedure9'a too extensive meaning.
Similarly, for this case it is not appropriate t o rely on Article V ( l ) (e)
according t o which enforcement may be refused if the award has not
become binding on the parties; the concept of "binding9' should be limited t o those cases where the a w u d is still open t o ordinary means of
241. See supra 111-3.1 ("The Main Features of the Grounds for Refusal of Enforcement")
at n. 86.
Enforcement Award
321
recourse, such as an appeal on the merits to a second arbitral instance

or a. court.
Consequently, an incomplete award can, in principle, be enforced under the Convention. It may, however, be that in the country of origin
of the award, an award infra petita is a ground for setting it aside.242In
such a case, if a respondent wishes to foreclose ;the possibility of enforcement of an incomplete award in the other Contracting States under the
Convention, he should attempt to obtain its setting aside in t11e country
of origin. In the other Contracting States he can then invoke the second
part of ground e of Article V ( l ) that the award has been set aside in the
country in which, or under the law of which, the award was made.
It may be added that certain Arbitration Rules provide for the possibility of an additional award in order to avoid the possibility of a setting
aside or, if such a possibility does not exist under the applicable arbitration law, t o avoid the introduction of a new arbitration to obtain a decision on an omitted point.243Such an additional award is of course enforceable under the Convention as any other ordinary award.
The ground for refusal as provided in Article V(1) (c) that the award
deals with a difference not contemplated by or not falling within the
terms of the submission to arbitration, or contains decisions on matters
beyond the scope of the submission t o arbitration, concerns those cases
where the arbitrator has given decisions in excess of his authority due
to a transgression of the scope of the arbitration agreement and the
questions submitted to him by the parties. It does not concern the lack
of competence of the arbitrator due t o an invalid arbitration agreement
as this matter is regulated by Article V(1) (a) (pp. 3 12-3 13).
Like the other grounds for refusal of an award contained in Article V
242. This is the case in several countries; see the National Reports in the Yearbooks under
Chap. VI.3. The European Convention Providing a Uniform Law on Arbitration, done at
Strasbourg January 20, 1966, European Treaty Series no. 56, provides as ground for setting
aside in Art. 25(2) (e):
"if the arbitral tribunal has omitted to make an award in respect of one or more points of
the dispute and if the points omitted cannot be separated from the points in respect of
which an award has been made".
243. For example, Art. 37 of the UNCITRAL Arbitration Rules 1976 provides:
"1. Within thirty days after receipt of the award, either party, with notice to the other
party, may request the arbitral tribunal to make an additional award as to claims represented
in the arbitral proceedings but omitted from the award.
2. If the arbitral tribunal considers the request for an additional award to be justified and
considers that the omission can be rectified without any further hearings or evidence, it
shall complete its award within sixty days after receipt of the request."
See P. Sanders, "Commentary on UNCITRAL Arbitration Rules", in Yearbook Vol. I1 (1977)
p. 172 at p. 214.
Enforcement Award
3 22
of the Convention, Article V ( l ) (c) has to be construed narrowly. In

any case it should not be allowed to result in a re-examination of the
merits of the award (pp. 3 13-3 14).
The expression "submission to arbitration" in Article V(1) (c) includes both the arbitration agreement, comprising the submission agreement and the arbitral clause, and the mandate given by the parties to
the arbitrator which concerns the questions actually submitted to him
by the parties (pp. 3 14-316).
The court has the discretion to grant partial enforcement of an award
which is in part ultra or extra petita. A guideline for the exercise of the
discretion may be that partial enforcement may be granted if the matter in excess of the arbitrator's authority is of a very incidental nature
and the refusal of enforcement would, lead t o unjustified hardship for
the party seeking enforcement. In cases of enforcement falling under
the Convention the possibility offered by the second half of Article
V ( l ) (c) constitutes an innovation for those laws which do not contain
this possibility, and supersedes those laws which provide for a different
regulation of the partial enforcement (pp. 3 18-319).
An incomplete award (an award infva pefita) does not constitute a
cause for refusal of enforcement under Article V(1) (c), nor under any
other ground of Article V (pp. 320-32 1).
111-4.4
Ground d : Irregularity in the Composition of the Arbitral

Tribunal or the Arbitral Procedure
Article V ( l ) (d) of the Convention provides:

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:
(.
. . .)
(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;"
111-4.4.1 In general
Ground d lays down the rule that enforcement of an award may be
refused if the respondent can prove that the composition of the arbitral
tribunal or the arbitral procedure was not in accordance with the agreement of the parties, or in the absence of an agreement on these matters,
was not in accordance with the law of the country where the arbitration
took place.
Enfircemen t A ward
323
Ground d can be deemed t o be the result of the desire of the drafters

of the Convention to reduce the role of the law of the country where
the arbitration took place in the enforcement proceedings in other Contracting States. Under the Geneva Convention of 1927, enforcement of
the award could be refused if the composition of the arbitral tribunal
and the arbitral procedure was not in accordance with the agreement of
the parties and the law of the country where the arbitration took place.
Thus, even if there was an agreement of the parties on these matters,
the law of the country where the arbitration took place was to be taken
into account in an enforcement procedure under the Geneva Convention
of 1927. This could lead t o a refusal of enforcement of an award if, notwithstanding the agreement of the parties, the composition of the arbitral tribunal or the arbitral procedure had deviated, in however small and
insignificant manner, from the law of the country where the arbitration
took place. The drafters of the Convention thought it therefore preferable t o leave out as ground for refusal of enforcement of the award the
irregularity of the composition of the arbitral tribunal and the arbitral
procedure under the law of the country in which the arbitration took
place in those cases where the parties had agreed on these matters.
It may be recalled that despite the difference in text between Article V ( l ) (d) which
states "the law of the country where the arbitration took place" on the one hand,
and Article V ( l ) (a) and (e) concerning the arbitration agreement and the arbitral
award which refer to the law of the country where the award was made on the
other hand, both must be deemed t o point t o the same law, as the arbitration must
be deemed t o have taken place where the award, as stated by it, has been made.2*
Although Article V(l ) (d) was subject to extensive debates at the New
York Conference245 and has been commented upon in depth in literature, few courts have dealt with this provision of the Convention. The
reason is that in the case of an agreement of the parties on the composition of the arbitral tribunal, it rarely occurs that the tribunal is not constituted in accordance with their agreement. As far as the agreement on
the arbitral procedure is concerned, which agreement is usually embodied
in Arbitration Rules of a specific arbitral institution, such an agreement
generally affords wide discretionary powers t o arbitrators as t o the conduct of the arbitral procedure. It therefore rarely happens that the arbitral procedure has not been conducted in accordance with the agreement of the parties.
244. See supra 111-4.1.3.5(b) ("Law of the Country Where the Award Was Made").
245. See for the history of Art. V ( l ) (d) supra 1-1.6.2 ("Does the 'A-national' Award Fall
under the Convention?").
324
Enforcement Award
An example of one of the rare cases in which enforcement of the award was refused by virtue of Article V ( l ) (d) because the composition of the arbitral tribunal
and the arbitral procedure had not been carried out in accordance with the agreement of the parties is a case decided by the Court of Appeal of ~ a s l e The
. ~ con~ ~
tract between a Swiss seller and a German buyer concerning the sale of nuts contained an arbitral clause according t o which arbitration was to be held under the
Conditions of the Commodity Association of the Hamburg Exchange. When a dispute arose between the parties in respect of the quality of the nuts delivered by the
Swiss seller, the German buyer wanted t o settle the dispute in two phases: the first
to ascertain the quality of the nuts and the second to assess the damages. This was
unacceptable to the Swiss seller who wished t o have the differences settled in one
arbitration. When the German buyer pursued the arbitration in two phases, the
Swiss seller declined to participate. The enforcement of the award, which was in
favour of the German buyer, was refused by the Court of First Instance of Basle.
The Court of Appeal of Basle affirmed this decision. With express reference t o Article V ( l ) (d) of the Convention, the Court of Appeal reasoned that neither the composition of the arbitral tribunal nor the arbitral procedure was in accordance with
the agreement of the parties because the applicable Arbitration Rules of the Hamburg Commodity Association (Sect. 20 of the Platzusancen) do not provide for
an arbitration in two phases, although it might recently have become customary t o
do so in Hamburg. The Court added that inasmuch as the Swiss seller may have
had knowledge of this recent development, he still could have assumed in good faith
that the Arbitration Rules as printed were still in force.
If the parties have made an agreement on the composition of the

arbitral tribunal and the arbitral procedure, according to Article V(l) (d),
the alleged irregularity of these matters has to be determined under the
agreement alone. The generally accepted interpretation is, however,
that notwithstanding the supremacy of the parties9 agreement under
Article V(l) (d), the composition of the arbitral tribunal and the arbitral
procedure are still subject to the fundamental requirements of due process. Thus, if the agreement of the parties provides that one party only
may nominate the arbitrator(s) or does not grant the respondent the
opportunity to present his case, and this has actually happened, enforcement of the award may be refused in virtue of Axticle V(l) (b) or Article V(2) (b).247
Failing an agreement of the parties on the composition of the arbitral
tribunal and the arbitral procedure, or on certain aspects thereof, ac-
246. Appellationsgericht of the Canton Baselstadt, September 6, 1968 (Switz. no. 4).
247. P. Sanders, "The New York Convention", in International Commercial Arbitration Vol.
I1 (The Hague 1960) p. 293 at p. 3 17; P. Schlosser, Das Recht der privaten internationalen
Schiedsgerichtsbarlceit (Tiibingen 1975) no. 421. See also for the relationship between Art.
V ( l ) (b) and Art. V(l) (d), supra 111-4.2.2 under the third question. An example of Art.
V(1) (b) overriding the agreement of the parties on the composition of the arbitral tribunal can
be found in Oberlandesgericht of Cologne, June 10, 1976 (F.R. Germ. no. 14) in which it was
held that the provision in the Arbitration Rules of the Copenhagen Arbitration Committee for
Grain and Feed Stuff Trade providing that the names of the arbitrators are not made known to
the parties is in violation of the fundamental requirements of due process. Art. V(l) (d), however, was not explicity mentioned in this case. See supra at n. 207.
Enforcement Award
325
cording t o Article V(1) (d) the alleged irregularity of these matters has
to be determined under the law of the co~lntrywhere the arbitration
took place. It goes without saying that also in this case the fundamental
requirements of due process must have been observed. The reason why,
here again, there are few cases reported is undoubtedly that parties take
care that the asbitral tribunal is constituted in conformity with the law
of the place of arbitration. As far as the arbitral procedure is concerned,
the arbitration laws too, as a rule, offer freedom to the arbitrators in
conducting their arbitration.
Although the distinction made by Article V(1) (d) between the agreement of the parties on the composition of the arbitral tribunal and the
arbitral procedure on the one hand and the law of the country where
the arbitration took place on the other may seem to be clear, the role
which the latter law may play according to this provision of the Convention may be looked at more closely (111-4.4.2 below). However, the
question whether Article V(1) (d) would also apply to the exceptional
case of the so-called "de-nationalized" agreement of the parties on the
composition of the arbitral tribunal and the arbitral procedure is not
considered in this Section as it has already been examined in connection
with the question whether the so-called "a-national" award falls under
~ ~ ~following is based on the ordinary case that in
the C o n v e n t i ~ n .The
the country o f origin the agreement of the parties on these matters is
governed by the arbitration law of that country.
111-4.4.2 Role of the law o f the country where the arbitration took
place according to Article V ( d ) ( d )
The role of the law of the country where the arbitration took place
for the composition of the arbitral tribunal and the arbitral procedure
under Article V(1) (d) can be divided into a subsidiary and a complementary role. The role is subsidiary if the parties have provided nothing
in respect of these matters: in that case only is the law of the place of
arbitration t o be taken into account. The role is complementary for those
aspects not provided for by the parties in their agreement: in these cases
the law of the place of arbitration can fill the lacunae in the agreement
of the parties.
An example of the complementary role of the law of the country in which the arbitration took place can be found in a case decided by the Court of Appeal of Venice.wg The arbitral clause in the charter party in question read:
248. See supra 1-1.6 (" 'A-national' Award") and in particular 1-1.6.2 ("Does the 'Anational' Award Fall under the Convention?").
249. Corte di Appello of Venice, May 21, 1976, S.A. Pando Compania Naviera v. S.a.S.
Filmo (Italy no. 16).
3 26
Enforcement Award
"If any controversy may arise between the owners and the charterers, such a dispute must be referred to three persons in London, one t o be appointed by each
party, and the third by the two thus appointed . . .".
The arbitral clause did not provide for the event that the respondent would not appoint his arbitrator which indeed happened after the dispute arose between the
parties. When the Italian charterer refused t o appoint his arbitrator, the Panamanian
owner acted in conformity with English arbitration law : he appointed his arbitrator
as sole arbitrator. The Court of Appeal of Venice granted the enforcement of the
award which was in favour of the Panamanian owner. It rejected the defence of the
Italian charterer made under Article V ( l ) (d), reasoning that the appointment was
valid under English law.250
It should be emphasized that the subsidiary and complementary role

of the law of the country where the arbitration took place in the case of
an agreement of the parties on the composition of the arbitral tribunal
and the arbitral procedure is confined to enforcement proceedings under
the Convention, i.e., when the enforcement of an arbitral award made in
a (Contracting) State (the country of origin) is sought in another Contracting State. As in the country of origin the Convention is not applicable, the principle of Article V ( l ) (d) does not apply in that ~ o u n t r y . ~ "
In fact, in the country of origin the role of the arbitration law will usually
be a primary one as in the majority of cases the arbitration, including
the composition of the arbitral tribunal and the arbitral procedure, are
governed by the law of that country. Consequently, in the country of
origin the violation of a mandatory provision of the arbitration law in
respect of the composition of the arbitral tribunal or the arbitral procedure may well lead to a setting aside of the award. However, the action for a setting aside in the country of origin appears t o be a rara avis,
and rarely s u c ~ e s s f u 1 . ~ ~ ~
This results in the seemingly curious situation that in most cases the
agreement of the parties on the composition of the arbitral tribunal and
the arbitral procedure is, in the country where the arbitration took place,
subject t o the law of that country, whilst, by virtue of Article V ( l ) (d)
of the Convention that law is not to be taken into account in enforcement proceedings in another Contracting State, even if the mandatory
provisions of that law have been violated. As noted, the idea behind this
system is to reduce the role of the law of the country where the arbitra-
250. According to Sect. 7(b) of the English Arbitration Act of 1950, if there is a reference
to two arbitrators and the respondent does not appoint an arbitrator, the claimant may appoint
his arbitrator as sole arbitrator. This provision, which is still good law, is held to apply also to
the case where there is a reference to three arbitrators, one to be appointed by the claimant,
one to be appointed by the respondent, and the third by the two chosen, and the respondent
does not appoint his arbitrator: in that case too, the claimant may appoint his arbitrator as sole
arbitrator. See A. Walton, Russell on the Law ofArbitration, 19th ed. (London 1979) p. 132 et
seq.
25 1. See supra 1-1.4 ("convention Not Applicable in Country of Origin").
252. See infra 111-4.5.3.
Enforcement Award
327
tion took place in enforcement proceedings under the Convention. However, as a setting aside action in the country of origin seldom occurs, the
idea behind Article V ( l ) (d) can be deemed to be realized to a certain
extent in the country of origin as well, even though that provision is
inapplicable in that country,
It might be argued that in most cases the agreement of the parties on
the composition of the arbitral tribunal and the arbitral procedure includes an implied or express agreement on the law governing these matters, i.e., the law of the country where the arbitration took place. However, such implied or express agreement on the law governing the composition of the arbitral tribunal and the arbitral procedure must be
deemed not to form part of 'the agreement as referred t o in Article
V ( l ) (d): this provision draws a clear distinction between the agreement on the composition of the arbitral tribunal and the arbitral procedure as such on the one hand, and the law of the country where the
arbitration took place on the other. If it were otherwise, the very purpose of Article V(1) (d), viz. the primary role of the agreement of the
parties on these matters vis-A-vis the law of the country where the arbitration took place, would be defeated. It would mean that in most cases,
despite the agreement of the parties on the composition of the arbitral
tribunal and the arbitral procedure, the alleged irregularity of these matters would still have to be judged under the law of the country where
the arbitration took place in enforcement proceedings under the Convention. This would amount to the same system as existed under the
Geneva Convention of 1927 - a system which the drafters of the New
York Convention specifically wished to abandon.
Consequently, it is not a defence under Article V ( l ) (d) that, although
the composition of the arbitral tribunal or the arbitral procedure was in
accordance with the agreement of the parties, it was not in accordance
with the mandatory provisions of the law governing these matters. Conversely, it will be a good defence that the composition of the arbitral
tribunal or the arbitral procedure was not in accordance with the agreement of the parties although it was in accordance with the law governing
these matters. Such deviations between the agreement of the parties
concerning the composition of the arbitral tribunal and the arbitral procedure on the one hand and the law governing these matters on the other
are rather unusual in practice.
An example of an exceptional case where the composition of the arbitral tribunal
was not in accordance with the agreement of the parties, although it was in accordance
with the law of the country where the arbitration took place, is a decision of the
Court of Appeal of Florence.253 The case involved a charter party (EXXONVOY
253. Corte di Appello of Florence, April 13, 1978, Rederi Aktiebolaget Sally v. S.r.1. Termarea (Italy no. 32).
328
Enforcemen t A ward
1969) between a Finnish charterer and an Italian shipowner, which provided in

clause 24 that:
"Any and all differences and disputes of whatsoever nature arising out of this
Charter shall be put to arbitration in the City of New York or in the City of
London, whichever place is specified in Part I of this Charter pursuant to the laws
relating t o arbitration there in force, before a board of three persons, consisting
of one arbitrator to be appointed by the Owner, one by the Charterer, and one
by the two so chosen. The decision of any of two of the three on any point or
points shall be final . . .".
The arbitral clause further contained details as t o how the three arbitrators had to
be appointed, including provisions for the case that the second was not appointed
by the respondent and the case that the two arbitrators could not reach agreement
on the third arbitrator. In the latter case the third arbitrator was t o be appointed
by the "Judge of any court of maritime jurisdiction in the city abovementioned".
The place specified in Part I was London.
Following a dispute concerning demurrage, each party appointed an arbitrator.254
The two arbitrators, however, did not appoint a third arbitrator. In the award,
made in favour of the Finnish charterer, the arbitrators explained this as follows:
"Clause 24 of the said charter party required arbitration before a board of three
persons, the third arbitrator t o be appointed by the two chosen by the parties.
The Arbitration Act 1950, Section 9(1) states that any such provision shall take
effect as if provided for the appointment of an Umpire. As the two arbitrators
were minded t o agree, an Umpire was not required and if so appointed would
not have entered into the Reference."
Section 9(1) of the Arbitration Act of 1950, which has been changed by the Arbitration Act of 1979255,provided:
"Where an arbitration agreement provides that the reference shall be to three arbitrators, one t o be appointed by each party and the third to be appointed by
the two appointed by the parties, the agreement shall have the effect as if it
provided for the appointment of an umpire, and not for the appointment of a
third arbitrator, by the two arbitrators appointed by the parties."
Section 9(1) was considered mandatory in England. It was held that where there is
an apparent reference t o three arbitrators, the third of them is to be treated as though
he were an umpire, and the provision that "the decision of any two of the three on
any point or points shall be final" must be overriden by Section 9(1).256 The umpire is an arbitrator who decides the dispute in lieu of the two arbitrators if the latter cannot reach a decision; before that event he does not take part in the arbitration.
The Court of Appeal of Florence, before which the enforcement of the award was
sought by the Finnish charterer against the Italian shipowner, refused to grant the
enforcement on account of Article V ( l ) (d) of the Convention, considering that the
composition of the arbitral tribunal was not in accordance with the agreement of
the parties. The Court overruled the applicability of Section 9(1) of the English Arbitration Act of 1950 arguing that according to Article V ( l ) (d) the agreement of
the parties prevails over the law of the country where the arbitration took place.
The decision of the Court of Appeal makes it clear that even in the case of an
express agreement of the parties on the law governing the composition of the arbi-
254. As the respondent appointed his arbitrator, the case is different from the one mentioned in supra n. 250.
256. A. Walton, Russell on the Law ofArbitration, 18th ed. (London 1970) p. 98.
Enforcement Award
329
tral tribunal - the arbitral clause read: ". . . pursuant to the laws relating to arbitration there in force . . ." - that law is not to be taken into account under Article
V(1) (d) in the case of an agreement of the parties on the composition of the arbitral tribunal and the arbitral procedure.
One may argue that it is not entirely satisfying that the agreement in question
was not construed under Enghsh arbitration law. In that case the validity of the
composition of the arbitral tribunal would certainly have been upheld. But if that
would have been done, the purpose of Article V ( l ) (d) to restrict the role of the law
of the c o u n t ~ ywhere the arbitration took place would be defeated because, as noted,
in most cases that law is implicitly or expressly agreed upon. It would mean that in
most cases the law of the place of arbitration, including all its particularities and its
public policy, has t o be taken into account under Article V ( l ) (d). On the other
hand, it may also be pointed out that the Finnish and Italian party probably had
n o t expected that their agreement on three arbitrators would mean an agreement
on two arbitrators and an umpire under Enghsh arbitration law. Moreover, this unusual case of a deviation of the agreement of the parties from the law of the country where the arbitration taltes place will n o longer occur in England as the arbitration law has changed in the meantime.257
The moral is that parties should be very careful in drafting the arbitral clause.
At the time of concluding the charter party, the arbitral clause in EXXONVOY
1969 was not a well drafted clause: depending on the place of arbitration specified
in Part I, the arbitral tribunal would have consisted of two arbitrators and eventually
an umpire in the case London was specified, and of a tribunal of three ordinary arbitrators in case New York was specified, in which jurisdiction the former particularity of English arbitration law does not exist.
The decision of the Court of Appeal of Florence shows, however,

that the desire of the drafters of the Convention to degrade the law of
the country where the arbitration took place may create a Scylla and
Charybdis situation in the exceptional case that the agreement of the
parties on the composition of the arbitral tribunal and the arbitral procedure deviates from the mandatory provisions of the law of the country where the arbitration is to take place. The Scylla is that if the two
arbitrators, as they did, followed English arbitration law in disregard of
the letter of the agreement of the parties, the award was valid in England,
but the enforcement was to be refused under Article V(1) (d) of the
Convention in Italy. The Charybdis is that if the arbitrators had followed
257. Sect. 9(1) has been changed by Sect. 6(2) of the Arbitration Act of 1979 as follows:
"Unless the contrary intention is expressed in the arbitration agreement, in any case where
there is a reference to three arbitrators, the award of any two of the arbitrators shall be
binding."
This change was prompted by the Commercial Court Committee which observed in its Report
on Arbitration of July 1978 (Command Report 7284) in para. 5 9 at p. 15 that Sect. 9(1) is
"unpopular with those sections of the commercial community which favour three-arbitrator
agreements. They point out, not unreasonably, that if they wanted an umpire, they would
have so provided in their agreement. Instead they wanted a third arbitrator who would be
seized of their dispute ab initio. Parliament, for reasons which are wholly: unexplained, has
frustrated their intentions. This complaint is unanswerable and should be remedied by
amending the Section."
330
Enforcement Award
the agreement of the parties and appointed a third arbitrator in disregard of mandatory English arbitration law, the award would have been
enforceable under the Convention in Italy. However, in the latter case
the Italian party could have instituted setting aside procedures before
the High Court in London. If the Court in London had set aside the
. award for the reason that the composition of the arbitral tribunal was
in violation of mandatory English arbitration law, the enforcement of
the award could have been resisted in Italy on the ground contained in
Article V ( l ) (e) of the Convention that the award "has been set aside
. . . by a competent authority of the country in which . . . that award
was made". This "side-effect" of Article V(1) (d) is unfortunate but
apparently inevitable.
Dr. Gentinetta agrees that the composition of the arbitral tribunal and the arbitral
,procedure in accordance with the agreement of the parties but in violation of the
law of the country where the arbitration took place is not a ground for refusal of
enforcement of the award under Article V ( l ) (d).258 However, the author is of the
opinion that if contrary to the agreement of the parties on these matters the law
of the country where the arbitration took place has been observed, it is not a ground
for refusal of enforcement of the award under Article V(1) (d) that in this case the
agreement of the parties has not been followed. The author argues that Article
V(1) (d) cannot have the meaning that a situation whereby Article V ( l ) (e) could
be invoked would arise (i.e., a setting aside in the country of origin). He fails, however, to explain why the latter would not apply also t o the first case. Moreover, it
should be pointed out that Article V(1) (e) is limited t o cases where the award "has
b e e n set aside" in the country of origin. In addition, in the first case the agreement
of the parties would rank first, whilst in the second case the law of the country
where the arbitration took place would have a primary role. This is difficult t o maintain in view of the unambiguous wording of Article V ( l ) (d).
111-4.4.3 Uniform imterpretatiom (and summary)

Article V ( l ) (d) according t o which enforcement of an award may be
refused if the respondent can prove that the composition of the arbitral
tribunal 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, means that
if the parties have made an agreement on these matters, the alleged irregularity in their respect is to be judged under that agreement alone.
The law of the country where the arbitration took place may be talten
into account only if the agreement on these matters is lacking or t o the
extent that matters are not covered by the agreement (pp. 322-324).
Although in the case of an agreement of the parties on the composi-
25 8. J. Gentinetta, Die Lex Fori internationaler Handelsschiedsgerichte (Bern 1973) p. 302.
Enforcement Award
33 1
tion of the arbitral tribunal and the arbitral procedure the agreement is
supreme, these matters must comply with the requirements of due process, and a violation thereof may lead t o a refusal of enforcement under
Article V ( l ) (b) or Article V(2) (b) (p. 324).
In the case of an agreement of the parties on the composition of the
arbitral tribunal and the arbitral procedure, the implied or express agreement on the law governing these matters is t o be observed in the country of origin in which the Convention is not applicable, but is not to be
taken into account for the purpose of Article V(1) (d) in another Contracting State in enforcemen: proceedings under the Convention (pp.
325-327).
The supremacy of the agreement of the parties regarding the composition of the arbitral tribunal and the arbitral procedure over the law of
the country where the arbitration took place in the enforcement proceedings under the Convention, means also that if the mandatory provisions of that law have been violated, this exceptional case is no ground
for refusal of enforcement of the award under Article V(1) (d) nor any
other provision of the Convention. This is, however, without prejudice
t o the possibility of setting aside the award in the country of origin, and,
as observed above, t o a refusal of enforcement on the basis of Article
V ( l ) (b) or Article V(2) (b).
Conversely, a ground for refusal of the award under Article V ( l ) (d)
is the again exceptional case that, whilst the mandatory provisions of
the law of the country where the arbitration took place have been observed, the agreement has been disregarded (pp. 327-330).
111-4.5
Ground e : Award Not Binding or Set Aside
Article V ( l ) (e) of the Convention provides:

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:
(.
. . .)
( 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."
Ground e of Article V ( l ) contains in fact two grounds for refusal.

They will be examined consecutively in this Section: the award which
has not become binding (111-4.5.2), and the award which has been set
aside or suspended (111-4.5 3 ) .
332
Enforcement Award
According to the first part of Article V(1) (e), enforcement of the

award may be refused if the respondent can prove that the award has
not yet become binding on the parties. The term "binding9' is acknowledged t o be one of the major improvements of the Convention in comparison with its predecessor, the Geneva Convention of 1927 which required the award to be "final". The term was probably the most discussed proviso of the Convention at the New York Conference of 1958.
As its meaning is difficult t o grasp without the legislative history, this
will be reviewed at some length in 111-4.5 .%.1. The term has given rise
t o diverging judicial interpretations, but, and this is very significant, has
hitherto not led t o a refusal of enforcement, notwithstanding the many
cases in which it was applied. How the term "binding" could be interpreted in a uniform manner, and especially whether to this end an autonomous interpretation is possible, will be examined in 111-4.5.2.2.
As we shall see, the term "binding" implies that a leave for enforcement (exequatur or the like) issued by the court in the country of origin
is not needed. However, if such leave has been issued, another question
may arise: if the leave for enforcement can be equated to a judgment,
the question is whether the award still continues to exist as an award
and can be enforced as such under the Convention, or has been absorbed
by the judgment, in which case the Convention would not be the basis
for enforcement. As this question of merger is related t o the interpretation of the term "binding", it will be dealt with at the end of the Subsection concerning this term (111-4.5 2.3).
According t o the second part of Article V(1) (e), enforcement of the
award may be refused if the respondent can prove that the award has
been set aside or suspended by the court in the country of origin. This
ground for refusal that the award has been set aside, which seldom occurs and is almost never successful, will be examined in 111-4.5.3.1.
Thereafter we will deal briefly with the rare case of a suspension of the
award (111-4.5.3 2 ) . This will be followed by an examination of the corollary provision contained in Article VI. According to the latter provision, if an application for the setting aside or suspension of the award is
made in the country of origin, the court before which enforcement of
the award is sought under the Convention may, "if it considers it proper", adjourn the decision on enforcement and may, at the request of
the claimant, order the respondent to put up suitable security (11%4.5.3.3). Finally, the question will be addressed whether the setting
aside of the award in the country of origin should be retained as a ground
for refusal of enforcement under the Convention (111-4.5 3.4).
Enforcement Award
333
111-4.5.2 Award not "binding
"
111-4.5 2 . 1 Legislative history "'

Pursuant to Article l(2) (d) of the Geneva Convention of 1927, to
obtain enforcement of the award it was necessgry:
"That the award has become final in the country in which it has been made, in the
sense that it will not be considered as such if it is open to opposition, nppel or
pourvoi en c ~ s s a t i o n(in the countries where such forms of procedure exist) or if
it is proved that any proceedings for the purpose of contesting the validity of the
award are pending;"
The word "final" in this provision was generally interpreted as meaning that means of recourse involving a short time limit were no longer
open against the award in the country where that award was made.260
However, since according to Article 4(2) of the Geneva Convention the
party seeking enforcement of the award had the burden of proving that
the award had become final in the country in which it was made, in practice it meant that he could prove this only by submitting a leave for enforcement (exequatur or the like) issued by the court of the latter country. As an exequatur was also required in the country where the enforcement was sought, this amounted t o the system of the so-called "double
exequatur". Furthermore, in virtue of the last part of Article l(2) (d)
of the Geneva Convention, the party against whom the enforcement of
the award was sought could easily obstruct the finality of the award, and
hence its enforcement, by instituting proceedings for contesting the validity of the award in the country where it was made.
Considering that the Geneva Convention's requirement of a "final"
award was both burdensome and inadequate, the International Chamber
of Commerce left it out in its Draft Convention of 1953. It reasoned
that "it has appeared advisable t o consider the problem from a more
practical angle and t o envisage only the case of awards effectively set
aside.99261
In addition, the latter condition did not have to be proven by
the party seeking enforcement, but had t o be established by the other
party or the court on its own motion.
The ECOSOC Committee, however, proposed in Article III(b) jo Article V(b) of its Draft Convention of 1955 that to obtain enforcement the
party seeking enforcement had to prove:
259. See also for the legislative history of the term "binding", Th. Firth, "The F i ~ a l i t yof a
Foreign Arbitral Award", 25 Arbitration Journal (1970) p. 1 at p. 10.
260. See H.-W. Greminger, Die Genfer Abkommen von 1923 und 1927 uber die internationale private Schiedsgerichtsbarkeit (Winterthur 1957) p. 5 7.
261. International Chamber of Commerce, Enforcement of International Arbitral Awards.
Report and Preliminary Draft Convention, ICC Brochure no. 174 (Paris 1953) p. 11 (reproduced in UN DOC ElC.21373).
3 34
Enforcement Award
"That, in the country where the award was made, the award has become final
and operative and, in particular, that its enforcement has not been suspended."
(emphasis added)
The ECOSOC Committee explained in its Report accompanying the

Draft Convention that it decided t o re-introduce this requirement "in
order properly to safeguard the rights of the losing party.99262'
In their comments on the ECOSOC Draft Convention, many Governments objected t o the above-quoted provision regarding the finality of
the award. They argued that it would be normally impossible for a claimant to submit the negative proof that no recourse has been taken against
the award or that its enforcement has not been suspended in the country in which it was made. Furthermore, they objected that the word
"operative" in combination with the word "final" was likely t o be interpreted by enforcement courts as requiring a prior leave for enforcement in the country where the award was made. This would amount t o
a duplication of enforcement actions, one in the country in which the
award was made, and another in the country where the enforcement
was sought (i.e., the so-called "double exequatur"), which existed in
practice under the Geneva Convention of 1927.263
Taking account of these objections, the Dutch proposal to amend the
ECOSOC Draft Convention provided that enforcement of the award
could be refused if the party against whom the enforcement was sought
could prove that 264 :
"the award has been annulled in the country in which it was made or has not become final in the sense that it is still open t o ordinary means of recourse."
The Dutch delegate explained that the effect of the amendment was
t o eliminate the "double exequatur", which resulted from the word
"operative" in the ECOSOC Draft Convention. However, as the Dutch
delegate explained, the respondent was not completely stripped of his
protection since the award would not be final if it was still open t o ordinary means of recourse.265
At this juncture it should be observed that the distinction between ordinary and extraordinary means of recourse, as introduced by the Dutch
delegate t o distinguish between non-final and final awards, is typical for
several Civil Law countries, but is unknown in many Common Law countries. Although varying from country to country in the Civil Law world,
it can generally be said that ordinary means of recourse connote a gen-

263. UN DOC ElCONF.2612 para. 15.
Enforcement Award
335
uine appeal on the merits, whilst extraordinary means of recourse are

resewed for certain irregularities, especially the procedural ones, tainting a final decision.266
The Dutch proposal led to a deluge of other amendments regarding
the provision in question and was debated extensively at the Confere n ~ e Certain
. ~ ~ ~delegates, including those from Belgium, the United
States, and certain Latin American countries, were squarely opposed t o
the elimination of the leave for enforcement issued by the court of the
country in which the award was made. The majority of delegates could,
in principle, agree with the elimination, but several had difficulties with
the expression "ordinary means of recourse", which could have different meanings in the various countries. They wished to replace it by means
of recourse involving a - short - time limit. The Swiss delegate went so
far as t o propose that the provision should only read that "The award
has been annulled or its execution suspended in the country in which
it was made".268
The drafting of the provision was referred to Worlting Party No. 3,
which brought forth the folllowing text269:
"or the award, recognition and enforcement of which is sought, has not yet become binding on the parties, or has been set aside in the country in which it was
made." (emphasis added)
The Working Party could not agree whether this provision should be
a ground for refusal t o be proven by the party against whom the enforcement is sought, or was t o be examined by the enforcement court
on its own motion. The Conference voted in favour of the former.270
What is interesting is that the Working Party had replaced the word
"final" with the word "binding". According t o the Summary Records,
the Chairman of the Worlting Party explained this as follows271:
"[Tlhe text of paragraph l(e) of Article [V] was drafted with the aim of making
the Convention acceptable to those States which considered an arbitral award t o
be enforceable only if it fulfiUed certain formal requirements which alone made
the award binding on the parties, The Working Party agreed that the award
should not be enforced if under the applicable arbitral rules it was still subject t o
an appeal which had a suspensive effect, but at the same time felt it would be
unrealistic to delay the enforcement of an award until all the time Limits pro-
266. See inpa at n. 296-309.

267. The various amendments are compared in UN DOC E/CONF.26/L.33/Rev.l. The
Summary Records concerning the discussions in regard of these amendments can be found
in UN DOC E/CONF.26/SR.11-14.
268. UW DOC E/CONF.26/L.30.
271. Id.
336
Enforcement Award
vided for by the statutes of Limitations had expired or until all possible means of
recourse, including those which normally did not have a suspensive effect, have
been exhausted and the award had become 'final'. The Working Party also agreed
t o avoid the use of the words 'operative' or 'capable of enforcement' which many
delegations considered unacceptable because they could be interpreted as requiring the award to satisfy all conditions for its enforcement in the country
where it was made."
However one may view the correctness of the stalement in its ent i r e t ,~it ~signifies
~ ~ in any case that the term "binding" was inserted as
a compromise between those favouring the mere provision that the
award has been effectively set aside in the country of origin and those
favouring the requirement of a leave for enforcement issued by the court
of that country.
The above-quoted statement of the Chairman of Working Party No. 3
indicates in particular that the term "binding" was used in order t o make
clear that no leave for enforcement from the court of the country in
which the award was made was needed. This was also confirmed by the
Conference which rejected a Brazilian proposal t o insert in the text the
requirement that the award has been "ratified" in the country of origin o 2 73
Apart from the just mentioned certainty which exists regarding the
meaning of the term "binding", the legislative intent is not entirely clear.
The text proposed by Working Party No. 3 did not contain the mention
of "in the sense that it is still open t o ordinary means of recourse" as
could be found in the Dutch proposal. The Italian delegate, who was a
member of Working Party No. 3, explained: "[Iln the Working Party
the term <binding9had been taken to mean that the award would not be
open to ordinary means of
The Turkish delegate proposed t o re-introduce the phrase. The Israeli delegate, whilst agreeing with the interpretation of the term "binding" as given by the Italian delegate, opposed the Turkish proposal arguing that the Working Party had wisely refrained from using the phrase
as it would have been difficult t o reconcile this expression with the law
of Common Law countries in which the distinction between ordinary
and extraordinary means of recourse is unknown. The Turkish proposal
was thereupon defeated. On the other hand, the delegate from Guatemala disagreed with the interpretation given by the Italian delegate. In
his view, an award would not become binding until all means of recourse,
both ordinary and extraordinary, had been
272. See especially, inpa n. 305. Furthermore, the first sentence does not indicate cleary
whether the binding force of the award is to be determined under the law governing the award.
See for an autonomous interpretation of the term "binding9', infm 111-4.5.2.2.
273. UN DOC E/CONF.26/L.37/Rev.le, rejected at SR. 17.
275. Id.
Enforcement Award
337
Although several delegates urged t o find a better word for the term
"binding" as it would probably be subject t o diverging interpretations,
the Conference left the term untouched. The fear that the term "binding" would be subject t o diverging interpretations has turned out to be
justified in practice, as we will see in the following Paragraph.
For completeness' sake it may be added that as a provision corollary to the ground
for refusal that the award has been set aside in the country of origin, the Working
Party proposed also that if an application for setting aside had been made in the
country of origin, the enforcement court can adjourn the decision on enforcement.
With some minor amendments, this provision became Article V I . ~ ~ ~
After several other amendments, the text of ground e as adopted by the Conference at the stage when it was being discussed extensively, was that enforcement
may be rejected if the party against whom the enforcement it sought could prove
that:
"the award, recognition and enforcement of which is sought, has not yet become
binding on the parties, or has been set aside or suspended by the competent
authority ."
At the penultimate session of the New York Conference this text was amended t o
its present text at the proposal of the delegate from the U.S.S.R.277
111-4.5.2.2 Meaning of the term "binding"

The intent of the drafters t o eliminate the so-called "double exequatur7' by using the term "binding9' in Article V ( l ) (e) has been almost
unanimously affirmed by the courts.
For example, a French court rejected the objection by the French respondent to the
request for enforcement of an award made in F.R. Germany that no leave for enforcement had been issued by a Germw- court, holding that, as the Convention has
done away with the system of the "double exequatur", it does not require a leave
for enforcement from the country in which the award is made.278 Similarly, the Italian Supreme Court overruled the objection of the Italian respondent t o the enforcement of an award made in the United States that a United States court should have
entered judgment upon the award.279 For the same reason, a Mexican court brushed
aside the defence of the Mexican respondent that the award, which was made in
France, should have been declared enforceable in France by means of an exequat~r.~~O
276. See infra 111-4.5.3.3.

Animalfeeds International Corp. v. S.A. A. Becker et Cie (France no. 2).
Bobbie Brooks Inc. (Italy no. 40), affirming Corte di Appello of Florence, October 8, 1977
(Italy no. 29).
280. Tribunal Superior de Justicia, 18th Civil Court of First Instance for Mexico D.F.,
February 24, 1977, Presse Office .A. v. Centro Editorial Noy S.A. (Mexico no. 1). In the same
sense: Landgericht of Hamburg, January 18, 1979 (F.R. Germ. no. 22). The Court of First
Instance of Piraeus, decision no. 1193/1968 (Greece no. 1) held that according to Greek law
---+
338
Enforcement Award
Furthermore, the courts have unanimously held that the party against '
whom the enforcement is sought has to prove that the award has not 1
become binding. It still happens in some cases that a respondent merely
asserts that the award has not become binding. In these cases the courts
have invariably held that the respondent should furnish proof to this
effect .281
The above interpretation of the term "binding" is also almost unanimously affirmed by the authors.282 To this extent there exists a uniformity of interpretation.
The uniformity of the interpretation begins to waver, however, when
it comes to the question at which moment an award can be considered
to have become binding under Article V(1) (e). Although in no case has
it been held hitherto that the award in question was t o be considered as
not having become binding, the various reasonings are diverse. If this
situation continues, it may occur that an award will not be considered
as binding by one court, whilst the same award would have been considered as binding by another court.
In finding the answer to the question at which moment the award
the leave for enforcement issued by a court in the country of origin is a prerequisite for the enforcement of foreign awards in Greece. The Court granted the enforcement, as the award,
which was made in F.R. Germany, had been declared enforceable by a German court. The requirement was laid down in Art. 858 of the former Greek Code of Civil Procedure. The
new Greek Code of Civil Procedure of 1968 has done away with this requirement, see A. Foustoucos, "National Report Greece", in Yearbook Vol. V (1980) p. 57 at p. 82. It should be observed, however, that according to the prevailing interpretation of the term "binding" of Art.
V(l) (e), this question in any case does not depend on the law of the country in which the enforcement is sought, but is governed by the Convention alone. In practice, Greek courts and
lawyers still appear not to be conversant with the New York Convention as the party seeking
enforcement of a foreign award is still requested to submit a sworn affidavit from a legal expert
of the country in which the award was made, certifying that the award is valid, binding, final
and enforceable under the law of that country.
281. E.g., President of the Tribunal de grande instance of Paris, May 15, 1970, Compagnie
de Saint-Gobain-Pont $ Mousson v. The Fertilizer Corporation of India Ltd. (FCIL) (France
110.1); Corte di Appello of Naples, February 20, 1975 Carters (Merchants) Ltd. v. Francesco
Ferraro (Italy no. 21); President of Rechtbank of Amsterdam, December 14, 1977 (Neth. no.
4).
282. J. Robert, "La Convention de New York du 10 juin 1958 pour la reconnaissance et
l'ex6cution des sentences arbitrales BtrangBres", Revue de l'arbitrage (1958) p. 70 at p. 79;
F.-E. IClein, "La Convention de New York pour la reconnaissance et l'exdcution des sentences
arbitrales BtrangBres", 57 Revue Suisse de Jurisprudence (1961) p. 229 at p. 248; Private International Law Committee, Fifth Report on the Recognition and Enforcement of Foreign Arbitral Awards, Command Report 1515 (London 1961) p. 31; Th. Bertheau, Das New Yorker
Abkommen vom 10. Juni 1958 iiber die Anerkennung und Vollstreckung auslandischer Schiedsspriiche (Winterthur 1965) p. 94; Firth, supra n. 259, at p. 6 1 ; K.-H. Schwab, Schiedsgerichts'
barkeit, 3d ed. (Munich 1979) p. 423; P. Sanders, "The New York Convention", in International Commercial Arbitration Vol. 11 (The Hague 1960) p. 293 at p. 319, "Commentary", in
Yearbook Vol. I (1976) p. 207 at q p . 215-216, "Commentary", in Yearbook Vol. I1 (1977)
p. 254 at p. 262, "Consolidated Commentary Vols. I11 and IV", in Yearbook Vol. IV (1979)
p. 231 at p. 249, and "Consolidated Commentary Vols. V and VI", in Yearbook Vol. VI
(1981) p. 202 at p. 213.
Enforcement Award
339
can be considered binding, the prevailing judicial interpretation seems

t o be that this question is to be determined under the law applicable t o
the award. The law applicable t o the award is according to Article
V(1) (e), the law of the country in which, or under the law of which,
that award was made (the country of origin). Several courts appear t o
search under the applicable law for the moment at which the award can
be considered t o be inchoate for enforcement in the country of origin.
Others attempt t o find an equivalent of the term "binding" under the
arbitration law of the country of origin.
Before the Court of Appeal of Naples the Italian respondent had resisted the request for enforcement of an award made in London, alleging that the award should
have been declared enforceable in England.283 The Court rejected the defence, reasoning that the legal effect of the award was not t o be determined under Italian
law, according t o which an award becomes binding only upon an enforcement order
of the Pretore, but should be assessed under English law according to which the
leave for enforcement is not necessary in order to confer binding force upon the
award .284
Another example is the Court of First Instance of Strasbourg before which the
French respondent had asserted that the enforcement of an award made in F.R.
Germany could not be granted because a leave for enforcement had not been issued
by a German
Whilst observing that the Convention has abolished the
"double exequatur", the Court reasoned that the award had become binding when
it had been deposited with the German court. The latter is indeed a prerequisite for
the binding force (Verbindlichkeit) of an award under German
The binding force of an award under German law was also considered by the
. ~ ~Court
~ referred t o the Report of the Swiss Federal
Court of Appeal of B a ~ l e The
Council (Conseil fe'de'rral) accompanying the implementation of the Convention in
Switzerland, in which it is stated that "an award is binding within the meaning of
Article V(1) (e) when the award complies with the conditions required for being
enforceable or for being capable for being declared enforceable in the country in
which it was made".2s8 The Court held that the award was binding on the ground
284. The Court referred to Sect. 16 of the English Arbitration Act of 1950, which Section
has not been changed by the Arbitration Act of 1979, providing:
"Unless a contrary intention is expressed therein, every arbitration agreement shall, where
such a provision is applicable to the reference, be deemed to contain a provision that the
award to be made by the arbitrator or umpire shall be final and binding on the parties and
the persons claiming under them respectively."
Animalfeeds International Corp. v. S.A. A. Becker et Cie (France no. 2).
286. Under German law an award becomes verbindlich (the German equivalent of binding)
only after the three conditions of Sect. 1039 of the German Code of Civil Procedure, viz.
signing, delivery and deposit with the competent court, have been fulfilled. See 0. Glossner,
"National Report F.R. Germany", in Yearbook Vol. IV (1979) p. 60 at p. 75.
287. Appellationsgericht of the Canton Baselstadt, September 6, 1968 (Switz. no. 4). This
part of the decision is not summarized in the extract appearing in Yearbook Vol. 1 (1976)
p. 200.
288. "Message du Conseil f6dGraI $ l'Assembl6e f6d6rale concernant l'approbation de la
Convention pour la reconnaissance et l'ex6cution des sentences arbitrates Ctrang$res (dite Convention de New York)", Feuille fkdkrale de la Confkdkration Suisse (1964) I1 p. 625 at p. 637.
3 40
Enforcement Award
that a declaration of enforceability of the award had been issued by the Court of
First Instance of Hamburg.2sg
This decision might create the impression that in order to be binding under Article V(1) (e), an award made in F.R. Germany must have been declared enforceable
by a German court. However, the Swiss Conseil fe'dkral merely meant to say that
"binding" should beunderstood as "ready for enforcement" and not as "enforced".
If the Court had followed this interpretation, it would have probably have reached
the same conclusion as the above-mentioned Court of First Instance of Strasbourg
which considered the award to be binding under German law once it had been deposited with the German court. Nevertheless, both courts have in common that they
considered the question at which moment an award becomes binding within the
meaning of Article V(1) (e) under the law applicable to the award.
Another example is a decision of the President of the Court of First Instance of
Paris.290 The French respondent had objected to the request for enforcement of
an award made in India that it had not become binding as provided by Article V(1) (e)
because it had not been confirmed by the High Court in New Delhi. The President
observed that an award must be considered as "binding" within the meaning of the
Convention "even if it is open to means of recourse". The Judge, however, rejected
the objection for the reason that according to Article V(1) (e) the respondent ' h u s t
prove that an award has not become binding in t h e c o u n t r y in which it was made"
(emphasis added), which the respondent had failed to do.
Furthermore, whilst declaring that the Convention has eliminated the "double
exequatur", the Italian Supreme Court held that the Court of Appeal had correctly
ascertained that the award in question, made in the United States, had become
binding under the relevant law of the United States.291
Finally, mention should be made of the Swedish Foreign Arbitration Agreements and Awards Act of 1971 (as amended in 1976), which Act implements the
Convention in Sweden. This Act is the only implementing legislation which expressly
provides that the binding force of the award is to be ascertahed under the applicable
law: Section 7(1) (5) of the Act, implementing Article V(1) (e) of the Convention,
reads:
"that the arbitration award has not yet become enforceable or otherwise binding
on the parties in the State where it was given or under whose law it was given or
that it has been set aside or suspended by a competent authority in the said
State." 292
In the Gotaverken v. GNMTC decision, the Swedish Supreme Court, however, assigned a very limited role to the law of the country of origin for determining the
question when an award is binding.293We will come back to this aspect presently.294
It suffices to mention here that the Supreme Court observed that the phrase "enforceable or otherwise", which does not appear in Article V(l) (e) of the Conven-
289. The Court referred to Sect. 1042 of the German Code of Civil Procedure according to
which the actual enforcement (Zwangsvollstreckung) of the award can only take place after
the court has declared the award enforceable (vollstreckbar), Comp. supra n. 286.
290. President of the Tribunal de grande instance of Paris, May 15, 1970, Compagnie de
Saint-Gobain-Pont 5 Mousson v. The Fertilizer Corporation of India Ltd. (FCIL) (France no. 1).
Bobbie Brooks Inc. (Italy no. 40), affirming Corte di Appello of Florence, October 8, 1977
(Italy no. 29).
292. The translation is taken from Stockholm Chamber of Commerce, ed., Arbitration in
Sweden (Stockholm 1977) Appendix 3.
293. Supreme Court, August 13,1979 (Sweden no. 1).
294. See infra at n. 302-304.
/!
I
1
,
Enforcemen t A ward
341
tion, was added at the initiative of the Swedish Law Council, but that according to
the legislative history of the Act, no material deviation from the Convention was
intended. Apparently, the Swedish Law Council added '"enforceable or otherwise
binding" with the purpose of making it clear that the term "bislding" means in any
case "ready for enforcement".
From the above cases it appears that the courts generally consider
that the award becomes binding within the meaning of Article V(1) (e)
at the moment when the award becomes inchoate for enforcement under the law governing the award or at the moment when the award fulfills the conditions of a term under the applicable law equivalent t o the
term "binding". It will be clear that this moment may vary from law to
law. This disparity is aggravated by the fact that certain laws distinguish
between a judicial approval of the award and its subsequent enforcement,
whilst others do not know the former or, at least, do not distinguish between them.
Most of the authors are also of the opinion that the moment at which
an award becomes binding within the meaning of Article V(1) (e) is to
be determined under the law governing the award. However, they also
differ a t which moment this should be assumed under that law.295
Considering that the determination of the moment when the award
becomes binding under the applicable law may lead t o differing results,
it may be questioned whether this law should be relied upon for the purpose of applying the term "binding" of Article V ( l ) (e).
The courts and authors mentioned above implicitly do give an autonomous interpretation t o the term "binding" of Article V(1) (e) as far
as the elimination of the "double exequatur" is concerned. If the binding
force of the award is t o be determined in all respects under the applicable law, it may happen that a law, such as Italian law296,considers
an award binding only when the court has granted a leave for enforcement on the award. If the latter aspect of the applicable law were t o be
taken into account for the purposes of Article V(1) (e), it would amount
t o the system of "double exequatur", which was precisely intended to
be avoided by the use of the term
The use of the specific term "binding" in the Convention indicates
that it is t o be conceived independent of the law governing the award in
so far as the elimination of the "double exequatur" is concerned. If this
295. See for an overview of the differing opinions of the authors, G. Gaja, "Introduction",
inNew York Convention (Dobbs Ferry 1978-1980) at n. 74.
296. Cf. Corte di Appello of Naples, February 20, 1975 (Italy no. 21), supra at n. 283.
297. Some authors draw as logical conclusion from their interpretation that the term "binding" is to be determined under the law applicable to the award, that if the applicable law
i-equires a leave for enforcement for the validity of the award, such leave is necessary in order to
meet the term "binding" of Article V(l) (e). See, for example, P. Schlosser, Das Recht der
internationalenpn'vaten SchiedsgerichtsbarltedP (Tiibingen 197 5) no. 6 55.
342
Erzforcement Award
is accepted, could the autonomous interpretation then not be extended

to all questions regarding the binding force of an award, and, in particular, the question of at which moment the award becomes binding, for
the purposes of Article V(1) (e)? The text of Article V(1) (e) conspicuously does not link the term "binding" with the law applicable to
the award, as it does, on the other hand, in the second part of this provision in respect of the setting aside and suspension of the award.
Furthermore, an autonomous interpretation for the question at which
moment an award becomes "binding" within the meaning of Article
V(1) (e) may also be possible on the basis of a combined reading of the
legislative history, as outlined in the preceding Paragraph, and Articles
V ( l ) (e) and VI.
At the New York Conference of 1958, the distinction between ordinary and extraordinary means of recourse was proposed for the term
binding: the ordinary means of recourse were used for denoting a genuine
appeal on the merits of the arbitral award t o a second arbitral instance
or to a court. Extraordinary means of recourse were reserved for other
irregularities, and especially the procedural ones, tainting a final decision.
The latter means of recourse were meant t o correspond t o setting aside
or equivalent proceedings. The distinction was proposed in order t o
make clear that if the award was still open t o the possibility of another
decision, it was not t o be considered "binding9', whereas if it was open
t o the possibility of other means of recourse, this would not prevent the
award from becoming binding. The expression "has not become binding
in the sense that the award is still open to ordinary means of recourse"
was finally not inserted. This must be deemed, however, not t o be due
t o a rejection of the distinction as such. Rather, the expression was rejected because, in various countries, the distinction between ordinary
and extraordinary means of recourse did not exist, or existed with different meanings.
The essence of the distinction may be deemed t o have been retained.
This can also be inferred from the text of Article V ( l ) (e) as the concept
behind extraordinary means of recourse is covered by the second part
of Article V ( l ) (e) and Article VI which refer t o the setting aside of the
award. The idea behind the ordinary means of recourse, i.e., the appeal
on the merits to a second arbitral instance or t o a court, can then be
deemed t o be covered by the first part of Article V(1) (e), viz., the term
"binding".
This distinction has the advantage that it dispenses with the sometimes difficult inquiries under the law governing the award, such as, at
which moment it is ready for enforcement under that law, or what may
be the equivalent of the term "binding" under that law. It is true that
the law governing the award is still to be consulted in order t o find out
whether it is still open to a genuine appeal on the merits t o a court (which
is exceptional). I-l[owever,technically speaking, this is not an inquiry t o
Enforcement Award
343
find out whether the award has become binding under the applicable
law, but an inquiry only for the purpose of the term "binding" of Article V(1) (e).
The autonomous interpretation of the term "binding" of Article
V ( l ) (e) has not yet been formulated by many authors.298The number of
courts which have hitherto expressly adhered to this interpretation is
also limited.299
An example is the Court of First Instance of Naples.300 The Court rejected the request of the Italian respondent for a re-examination of the merits of the award.301
In support of this rejection, the Coprt argued that the exclusion by virtue of the
Convention of the possibility of a re-examination of the merits of a foreign award
does not lead to an anomalous situation. The Court pointed to the safeguards contained in the Convention against awards tainted by serious defects, referring to the
possibility of the award having been set aside in the country of origin, as provided
in the second part of Article V(l) (e), and to the pbssibility of adjournment of the
decision on enforcement in case the application for setting aside is made in the country of origin, as provided in Article VI. The subsequent observation of the Court is
well worth being quoted:
"It is obvious, however, that by using the general expression 'setting aside or suspension' of the arbitral award, the Convention intends to refer to extraordinary
means of recourse against the award as provided for, under different denomination, in the various States. On the other hand, the ordinary means of recourse
are covered by the concept of the binding or final character of the award. Consequently, and also in view of the foregoing, the silence of the Convention in respect of the re-examination on the merits in the State where the enforcement is
sought, is not accidental, but appears to be significant as an intentional exclusion
of this practice."
The decision of the Swedish Supreme Court in the Gotaverken v. GNMTC case may
also be mentioned.302 As noted before, the "version" of Article V(1) (e) of the Convention in the Swedish implementing Act is Section 7(1) ( 5 ) , reading in the relevant
part that the award "has not yet become enforceable or otherwise binding on the
298. P. Sanders, "A Twenty Years' Review of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards", 13 The International Lawyer (1979) p. 269 at p. 275.
By implication: Ph. Fouchard, L'arbitrage commercial international (Paris 1965) no. 742; G.
Aksen, "American Arbitration Accession Arrives in the Age of Aquarius: United States Implements United Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards", 3 Southwestern University Law Review (1971) p. 1 at p. 11. See also B. Oppetit in
his case comment in Revue de l'arbitrage (1971) p. 97.
299. Compare with the decision of the Court of Justice of the European Communities,
Judgment of November 22, 1977, Industrial Diamond Supplies v. Luigi Riva, Case no. 43/77,
European Court Reports [I9771 p. 2175, in which it was held that the expression "ordinary
appeal" within the meaning of Arts. 30 and 38 of the Judgments Convention of 1968 (supra
n. 11. 306) "must be defined solely within the framework of the system of the Convention itself
and not according to the law either of the State in which the judgment was given or of the State
in which recognition or enforcement of that judgment is sought."
300. Tribunale of Naples, June 30, 1976, Societi La Naviera Grancebaco S.A. v. Italgrani
(Italy no. 22). A similar reasoning, albeit not so outright, can be found in Corte di Appello of
Milan (Sez. I), May 3, 1977, Renault Jacquinet v. Sicea (Italy no. 27).
301. See supra 111-3.2 ("No Review of the Merits of the Arbitral Award").
302. Supreme Court, August 13, 1979 (Sweden no. 1).
344
Enforcement Award
parties in the State where it was given or under whose law it was given . . ." (emphasis added).303 Notwithstanding this provision referring expressly to the law applicable t o the award, the Swedish Supreme Court gave an interpretation which may
be considered as very close to an autonomous interpretation. The Court observed:
"The legislative history states unequivocally that the possibility of an action for
setting aside the award shall not mean that the award is not to be considered as
not being binding. This meaning has even been admitted by GNMTC. A case in
which a foreign award is not binding is when its merits are open t o appeal t o a
higher jurisdiction. The choice of the word binding was provided for the pasty
relying on the award. The intent was, inter alia, t o avoid the necessity of a double
exequatur or the need for the party relying on the award t o prove that the
award is enforceable according t o the authorities of the country in which it was
rendered.
According t o the arbitral clause in the contracts (Art. 13) the parties agreed t o
abide by the award as being finally binding and enforceable in regard of the matters submitted t o the arbitrators. Furthermore, the ICC Arbitration Rules, according to which the arbitration has been conducted, provide in Article 24 that
the arbitral award shall be final.
Having regard t o the above observations, the present arbitral award must be
considered to have become enforceable and binding on the parties in France
within the meaning of Section 7(1) (5) of the Foreign Arbitration Agreements
and Awards Act as from the moment on which, and by virtue of the very fact
that, the award was rendered. The fact that GNMTC has subsequently challenged
the award in France by means of 'opposition' has n o effect in this respect."
GNMTC had asserted that the award was not binding within the meaning of Article
V(1) (e) because the 'opposition' it had instituted against the award before the French
courts, which is a kind of setting aside procedure, automatically suspends the enforceability of the award under French arbitration law. If the Court had followed
the prevailing judicial interpretation, which is also laid down in Section 7(1) (5) of
the Swedish Act, that the binding force is t o be determined under the applicable
law, it would have been obliged t o hold in this case that the award had no binding
force under French
But this would have been at odds with the second part
of Article V ( l ) (e) that the award must have been declared suspended by the court
in the country of origin, and Article VI, according t o which in the case of the application for a setting aside or suspension in the country of origin the enforcement
court may adjourn its decision on the enforcement. The Supreme Court therefore
first made an implicit autonomous interpretation of the term "binding", adding discretely "enforceable and binding on the parties in France", but conspicuously avoiding "under French law". It was thereupon able t o infer from the second part of
Articles V ( l ) (e) and VI that the automatic suspension of the enforceability of the
award under French law had no bearing on its binding force within the meaning of
the first part of Article V ( l ) (e).
In fact, the provisions relating t o the suspension of the award are another argument in favour of an autonomous interpretation of the term "binding" of Article
V ( l ) (e). I t would be halting between two opinions t o consider the binding force of
303. See for the words "enforceable or otherwise", supra at n. 292-293.

304. At the time that this case was decided, the application for the opposition d ordonmnce
d'exequatur had a suspensive effect on the enforcement of the award unless provisional enforcement was granted, see J. Robert, Arbitrage civil et commercial (Paris 1967) nos. 254 and 260.
Under the new French arbitration law (Decree no. 80-354 of May 14, 19.80,Journal Officiel
de la Rbublique Franqaise of May 18, 1980, p. 1238, in force as of October 1, 1980) the
exequatur is no longer subject to opposition (Art. 48(1)).
Enforcement Award
345
the award under the applicable law, but to rely on the Convention's provisions
alone for the question of a subsequent suspension.305
The result of the autonomous interpretation is that in most cases an

award can be deemed "binding" within the meaning of Article V ( l ) (e),
and hence can be enforced under the Convention, once it is rendered.
It may be mentioned that in practice the provision in the parties9 agreement for the possibility of an appeal on the merits t o a second arbitral
instance is limited to the Arbitration Rules of certain commodity assoc i a t i o n ~ .The
~ ~ ~statutory possibility of an appeal on the merits to a
court is highly exceptional. It exists on paper, for example, in France
and the Netherlands, but virtually never occurs in practice.307
It may be added that the possibility of an appeal on the merits to a
court must be a genuine appeal in full. Thus, where an arbitration law,
such as Article 36 of the Swiss Concordat, provides as ground for setting
aside that the award "constitutes a clear violation of law or equity", this
is not to be considered as an appeal on the merits for the purposes of the
term "binding" of Article V ( l ) (e). Similarly, the appeal to the English
High Court on a question of law arising out of the award as introduced
by the English Arbitration Act of 1979308would not seem to be a
genuine appeal in full.
Under the former "Special Case" procedure, according to which any question of
law or fact arising out of the award could be referred to the High Court, it has never
been a question that the possibility of an application for a "Special Case" would
prevent an English award from becoming binding under Article V ( l ) (e) of the Convention. The "Special Case" procedure was apparently not conceived as a genuine
appeal in full. This view may be prompted by the specific nature of English arbitration, being closely intermingled and identified with the judicial process. The English
305. See for suspension of the award, infra 111-4.5.3.2. It may be added that from the observations in the text it follows that the statement of the Chairman of Working Party no. 3 at
the New York Conference of 1958 (" ... the award should not be enforced if under the applicable arbitral rules it was still subject to an appeal which had a suspensive effect ..." (emphasis
added), see supra at n. 271) must be deemed inconsistent with the Convention's provisions
relating to suspension as they were finally adopted by the New York Conference.
306. E.g., the Arbitration Rules of the Grain and Feed Trade Association (GAFTA) in
London provide for an appeal to a Board of Appeal Arbitrators within 30 days (Rule 10).
307. The new French arbitration law, see supra n. 304, has retained the possibility of appeal
on the merits to the court, unless the parties have renounced this means of recourse in their
arbitration agreement (Art. 42). As it was the case under the former arbitration law, this appeal
is likely to be excluded in virtually all cases in practice. Art. 646(1) of the Dutch Code of Civil
Procedure provides that no appeal from an arbitral award to the court shall be allowed, unless
such possibility has been reserved in the arbitration agreement. The latter almost never happens
in practice. It may be added that the possibility of appeal on the merits exists also in various
Latin American countries, see my article, "L'arbitrage commercial en Amerique latine", Revue
de l'arbitrage (1979) p. 123 at p. 187.
308. See C. Schmitthoff, "The United Kingdom Arbitration Act 1979", in Yearbook Vol.
V (1980) p. 231; R. Gibson-Jarvie and G. Hawker, A Guide t o Commercial Arbitration under
the 1979 A c t (London 1980).
346
Enforcement Award
Arbitration Act of 1979 has restricted the judicial review of the arbitration decision,
inter alia, to questions of law only. Thus, what would seem to be the generally prevailing view in respect of the "Special Case" procedure, would seem to apply with
even stronger force to the possibility of appeal under the 1979 Act.
The above autonomous interpretation of the term "binding" would

not unduly curtail the rights of the losing party t o contest the validity
of the award in the country of origin, the safeguarding of which right
caused concern amongst the delegates at the New Uork Conference. If
the merits of the award can still be appealed t o a second arbitral instance
or t o a court, the losing party can successfully invoke Article V ( l ) (e)
on the basis that the award has not become binding. If such means of
recourse is not available, the losing party cannot invoke the first part of
Article V ( l ) (e), but may contest the validity of the award in the country of origin by instituting a setting aside or equivalent procedure. Article VI of the Convention has provided a safety catch against premature
enforcement abroad: in this case the enforcing court may, "if it considers
it proper", adjourn the decision on enforcement. The discretion conferred upon the enforcement court by Article VI may be exercised depending upon whether the losing party has instituted the setting aside
procedure in the country of origin in good faith or for dilatory reasons
It may be added that the autonomous interpretation of the term "binding" could
not result in the seemingly anomalous situation that the award is enforced under
the Convention in another Contracting State, whilst it would not be valid in the
country of origin because it would not satisfy certain prerequisites. This would, for
example, be the case in Italy if the award has not been deposited with the Pretore
within five days after its rendition. In this case, the respondent could request
the Italian courts to set aside the award or to declare that the award has no legal
effect. Such decision of the country of origin would constitute a bar to enforcement according to the second part of Article V(l)(e).
111-4.5.2.3 Merger o f award in to judgment

If in the country of origin a leave for enforcement is issued by the
court on the award, the leave may constitute a court judgment in that
country. Such judgment may furthermore have the effect of absorbing
the award into the judgment in that country. If in this case the enforcement is sought in another Contracting State, the question arises whether
the award is t o be enforced as a foreign award under the Convention or
as a foreign judgment on another basis. In other words, does the merger
of the award into the judgment in the country of origin have an extraterritorial effect?
309. See infra 111-4.5.3.2 ("Adjournment of Decision on Enforcement").
Enforcement Award
347
This question was raised before the Court of Appeal of Hamburg in

respect of an award made in London, on which award the High Court in
London had given a judgment in terms of the award pursuant to Section
26 of the English Arbitration Act.310 The German respondent contended
that the award could not be enforced under the Convention because it
had been merged into the judgment of the English High Court, The
Court of Appeal discarded the defence. It reasoned that, although it
can be assumed that under English law the award merges into the judgment3I1, in view of Article V(1) (e) of the Convention which requires
the award t o be "binding", and which Convention has the purpose of
facilitating enforcement of foreign awards, in Germany the award must
be considered as not having bken absorbed by the English judgment. The
Court concluded that the effects of the merger are limited t o English
jurisdiction only. It added that English courts do not apply the merger
doctrine t o foreign awards declared enforceable by judgment in the country of origin either.312
The view of the Court of Appeal of Hamburg is to be approved as it
must indeed be assumed that the merger of the award into the judgment
in the country of origin does not have extra-territorial effect. The leave
for enforcement means that a court authorizes the enforcement of the
arbitral award within its jurisdiction. The fact that the lkave for enforcement has the effect of absorbing the award in the country of origin is a
technical aspect for the purposes of enforcement within that country.
The award can therefore be deemed t o remain a cause of action for enforcement in other countries.313
It may be mentioned that a United States Court of Appeals was uncertain as t o
whether extraterritorial effect should be given to the merger in the country of origin. The Dutch political entity, Curaqao, had obtained an award against Solitron
Devices, a United States corporation, on which award the Court in Curaqao had issued an exequatur (leave for enforcement). The District Court in New York granted
310. Oberlandesgericht of Hamburg, July 27, 1978 (F.R. Germ. no. 18). Sect. 26 of the
English Arbitration Act of 1950, which Section has not been changed by the Arbitration Act of
1979, reads:
"An award on an arbitration agreement may, by leave of the High Court or a judge thereof,
be enforced in the same manner as a judgment or order to the same effect, and where leave
is so given, judgment may be entered in terms of the award."
311. In this sense, A. Walton, Russell on the Law of Arbitration, 19th ed. (London 1979)
p. 399and p.419.
312. In this sense also, Walton, supra n. 311, p. 399 and p. 412.
313. See also M. Domke, The Law and Practice of Commercial Arbitration (Mundelein
1968-1979) Sect. 39.03; E. Minoli; "L'esecuzione delle sentenze arbitrali stranieri in Italia", 12
Rassegna dell 'Arbitrato (1972) p. 66 at 77; P. Schlosser, Das Recht,der internationalen privaten
Schiedsgerichtsbarkeit (Tiibingen 1975) no. 782; G. Delaume, Dansnational Contracts. Applicable Law and Settlement of Disputes (Dobbs Ferry 1978-1980) Sect. 13.15. J. Robert, Arbitrage civil et commercial (Paris 1967) no. 459, is of the opinion that the merger has an extraterritorial effect.
348
Enforcement Award
the enforcement - apparently for security's sake - on the basis of both the New
York Convention and the New York Foreign Country Money Judgments Statute.314
The Court of Appeals enforced the award as a foreign judgment under the New
York Statute only, considering that by doing so, it
"need not deal with the question . . . whether the action on the arbitration award
was merged in the Curaqaoan judgment . . . . By first addressing ourselves to the
question whether or not the Cura~aoanjudgment confirming or enforcing the
award is enforceable qua judgment, we avoid the question . . . that the award
might not be enforceable qua award . . .".315
As far as the New York Convention is concerned, it may be recalled

that the Geneva Convention of 1927 required, in practice, a leave for
enforcement issued by the court in the country of origin. Under that
Convention it has not been questioned that the effect of the leave for enforcement of absorbing the award in the country of origin would operate
in other States where the enforcement of the award was sought under
the Convention. If that had been the case, it would have resulted in the
absurd situation that by requiring, in practice, the leave for enforcement
of the court in the country of origin, the Convention would have rendered itself inapplicable.
The term "binding" of Article V(l) (e) of the New York Convention
was principally inserted to eliminate the burdensome requirement of a
leave for enforcement from a court in the country of origin. But this
change of wording does not mean that a contrario if such leave has been
granted in the country of origin, the award is no longer "binding" within the meaning of Article V ( l ) (e) of the New York Convention. The
term "binding" has been merely inserted for the purpose of facilitating
enforcement. Thus, where enforcement was possible under the Geneva
Convention, it should certainly be possible under the New York Convention.
We see here a parallel with the question at which moment the award
314. U.S. District Court of New York, S.D., February 14,1973, Island Territory of Curac;ao
Solitron Devices Inc. (U.S. no. 1). The New York Statute is embodied by the New York Civil
Practice Law and Rules (NYCPLR) Sect. 5301-5309.
315. U.S. Court of Appeals (2nd Cir.), December 26, 1973 (U.S. no. 1). It may be noted
that the New York State courts disregard the merger of the award into the foreign judgment,
see Domke, supra n. 313, Sect. 39.03. The Court of Appeals dealt also with the question
whether the New York Convention, being implemented by a federal Statute, would have preempted the New York Statute (i.e., NYCPLR Sect. 5301-5309) which the Court denied. See
for the latter question D. Swisher, "Comment. International Commercial Arbitration under the
United Nations Convention and the Amended Federal Arbitration Statute", 47 Washington
Law Review (1972) p. 441 at p. 447. The question whether an award made in Japan was t o
be treated as a foreign judgment because Art. 800 of the Japanese Code of Civil Procedure
provides that "An award shall have the same effect as a judgment which is final and conclusive", and the relationship between the New York Convention and NYCPLR Sect. 5301-5309,
was considered by U.S. Court of Appeals (2nd Cir.), May 29, 1975, Copal Co. Ltd. v. Fotochrome Inc. (U.S. no. 3). The Court treated the Japanese award as an'award in this case. See
Note in 8 Law and Policy in International Business (1976) p. 732 at p. 756.
V.
Enforcement Award
349
becomes "binding" within the meaning of k t i c l e V(1) (e), as was examined in the preceding Paragraph. The differing formalities to be fulfilled, according to various laws, for an award t o become binding - e.g.,
the deposit of an award - are usually imposed in view of the enforcement of the award within the jurisdiction concerned. As has been shown
pursuant to the autonomous interpretation of the term "binding9" of
rhrticle V(1) (e), these prerequisites, or any other, of the law applicable
t o the award need not be taken into account. Similarly, the question
what happens with the award under the law of the country of origin if
a leave for enforcement is granted thereon in that country, is limited t o
that country. In fact, the Limitation of the question of the merger to the
country of origin can be viewed as another aspect of the autonomous
status of the "binding" award as referred to in Article V ( l ) (e).316
On the other hand, it would go too far to reason that because of the
elimination by the term "binding9' of the requirement of a leave for enforcement from a court in the country of origin, the leave for enforcement cannot constitute, as a foreign judgment, a basis for enforcement
outside the Convention in other Contracting States. The more-favourable-right-provision of Article VII(1) can be deemed to apply by analogy
t o this case.317 According to that provision the Convention allows t o
base the request for enforcement on a bilateral or another multilateral
convention or domestic law concerning enforcement of foreign arbitral
awards. This may be deemed to apply also to the leave for enforcement
issued by the court in the country of origin in those cases where the
leave can be equated to a foreign judgment, and the enforcement as foreign judgment would be more f a ~ o u r a b l e . ~ l *
111-4.5.3 Award set aside or suspended
111-4.5.3.1
Award set aside
The ground for refusal of enforcement in the second part of Article

V(1) (e) that the award 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 has scarcely been invoked, and was hardly successful.
Article V(1) (e) - and Article VI with which we will deal presently -
316. There are several cases in which the award had received a leave for enforcement in the
country of origin, but in which the award was enforced under the Convention without discussion on this point. See, for example, Oberlandesgericht of Hamburg, May 21, 1969 (F.R. Germ.
no. 6): enforcement of award made in France which was granted leave for enforcement by the
President of the Tribunal de grande instance of Paris.
3 17. See supra 1-4.2 ("More-favourable-right-provision").
318. See for the option to choose between the enforcement as foreign award and the enforcement as foreign judgment, Ph. Fouchard, L 'arbitrage commercial international (Paris 1965) no.
753 and references given.
3 50
Enforcement Award
of the Convention unequivocally lay down the principle that the court
in the country in which, or under the law of which, the award was made
has the exclusive competence to decide on the action for setting aside
the award. This principle, which has been unanimously affirmed by the
courts, has already been dealt with in the first Chapter of this study
concerning the Convention's field of application.319
t
It may be added that the exclusive competence according to Article V ( l ) (e) of the
court in the country of origin t o decide on the setting aside was one of the reasons
for several Italian courts to hold that the Convention excludes a re-examination of
the merits of the award by the courts of other Contracting States before which the
enforcement of the award is
The "competent authority" as mentioned in Article V ( l ) (e) for entertaining the action of setting aside the award is virtually always the
court of the country in which the award was made. The phrase "or under the law of which" the award was made refers to the theoretical case
that on the basis of an agreement of the parties the award is governed by
an arbitration law which is different from the arbitration law of the
country in which the award was made.
The phrase was inserted at the penultimate session of the New York Conference at
the instigation of the U.S.S.R. delegate.321 The question of an award governed by
another arbitration law, including the question of the setting aside of such an award,
in particular according to the German implementing law, has already been discussed
in supra 1-1.5 ("Awards Not Considered as Domestic").
It may be observed that the phrase "of the country in which, or under the law
of which" is somewhat out of tune with Article V ( l ) (a) which accords the primary
role t o the law as chosen by the parties, and the subsidiary role t o the law of the
country where the award was made. Although Article V ( l ) (e) reverses this order,
this has no legal consequence.
The ground for refusal in the second part of Article V ( l ) (e) applies
only if the award has been effectively set aside in the country of origin.
The case where a party has merely made an application for setting aside
in that country, calls only for the possibility of an adjournment of the
decision on the enforcement as provided by Article VI of the Convention (see following Paragraph).
A particular question, which has not occurred in practice, is what happens if after the granting of enforcement of the award in another Con-
3 19. See supra 1-1.4.2 ("Setting aside").

320. E.g., Corte di Appello of Florence, October 22, 1976, S.A. Tradax Export v. S.p.A.
Carapelli (Italy no. 18); Tribunale of Naples, June 30, 1976, Societi La Naviera Grancebaco
S.A. v. Italgrani (Italy no. 22); Corte di Appello (Sez. I) of Milan, May 3, 1977, Renault Jacquinet v. Sicea (Italy no. 27). See supra 111-3.2 ("No Review of the Merits of the Arbitral Award").
Enforcement Award
351
tracting State, the award is set aside in the country of origin. This is not
likely to occur. It is true, as explained in the preceding Paragraph, that
in most cases the award is "binding" within the meaning of Article
V(1) (e) as soon as it is rendered, and can be directly enforced under
the Convention in other countries after that moment. However, if there
are doubts about the validity of the award under the applicable law
which are likely to lead to a setting aside, a losing party will certainly
institute an action for setting aside the award in the country of origin.
In this case the court may according to Article VI adjourn its decision
on the enforcement.
Whatever may be, if a subsequent setting aside occurs, it would seem
to be reasonable to cancel the order by which the enforcement is granted.
The question would seem to have to be solved by virtue of Article I11
of the Convention under the law of procedure of the country where the
enforcement was granted.322
111-4.5.3.2 Award suspended
The second part of Article V(l) (e) mentions also as ground for refusal of enforcement that the award has been "suspended" by the court
in the country of origin. According to Article VI, a court may adjourn
its decision on enforcement if the respondent has applied for the suspension of the award in the country of origin. Although it is not entirely
clear what the drafters of the Convention exactly meant by the suspension of an award, it refers presumably t o a suspension of the enforceability or enforcement of the award by the court in the country of origin.
The term "suspension" did not figure in the Geneva Convention of 1927. It appeared
for the first time in the ECOSOC Draft Convention of 1955 which provided in Article III(b) that to obtain enforcement it was necessary that the claimant should
prove "that, in the country where the award was made, the award has become final
and operative and, in particular, that its enforcement has n o t been suspended" (emphasis added). In the Dutch proposal t o amend the ECOSOC Draft Convention the
suspension of enforcement was eliminated. The Dutch delegate explained the elimination by stating that it would lead t o delaying tactics on the part of the respondent.323 In the text prepared by Working Party No. 3 suspension was re-introduced
but without specifying "suspension of enforcement": it was proposed that if an
award has been suspended in the country where it was given, the enforcement court
was obliged t o adjourn the decision on the enforcement, but if only an application
for suspension of the award was made in the country of origin, the enforcement

3 22. See P. SchlosseryDas Rech t der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) no. 663.
323. UN DOC E/CONF.26/L.17 and S R . l l .
352
Enforcement Award
court had the discretion whether t o adjourn the decision on enforcement.324 At the
Conference, the Israeli delegate argued that the suspension of the award in the
country of origin should entail the refusal of enforcement, not merely the adjoumment of the decision on enforcement. The Conference adopted the proposal of the
Israeli delegate to insert the words "or suspended" after the words "set aside" and
to delete the Worlting Party's proposal t o oblige the court t o adjourn the decision
on enforcement if the court in the country of origin has suspended the award.32s
On the other hand, the Conference retained the provision that if only an application
for suspension of the award has been made in the country of origin, the enforcement court has the discretion whether to adjourn the decision on enforcement (Art.
VI).
Whatever may be, in order for the suspension of the award to be a

ground for refusal of enforcement of the award, the respondent must
prove that the suspension o f the award has been effectively ordered by
a court in the country of origin. This rule is clearly laid down by the
text of Articles V ( l ) (e) as it states "haas been . . . suspended by a competent authority . . ." . The automatic suspension of the award by operation of law in the country of origin therefore is not sufficient.326
This rule was affirmed by the Swedish Supreme Court in the Gotaverken v. GNMTC
case discussed above.327 The Court observed in particular:
"As noted, GNMTC has also argued that under French law the challenge of the
award automatically bars and suspends the enforceability of the award pending
the decision of the competent court on the validity of the award. In GNMTC's
view, this would constitute a suspension for enforcement as is mentioned in Section 7(1) (5) of the said Act. According t o the letter of the law as well as its
drafting history . . ., this provision refers in this respect t o a situation where,
after specific consideration of the matter, the foreign authority orders the setting
aside of a binding and enforceable award or the suspension of its enforcement.
GNMTC has not even asserted that such a decision has been made in the procedure for challenging the award or otherwise."
It may be added that the arbitration laws of many countries, amongst which France,
provide that the institution of setting aside proceedings automatically suspends the
enforcement of the award in that country. If such automatic~suspensionwere sufficient for "has been suspended" as provided in Article V ( l ) (e), it would defeat
the system of the Convention. It would mean that by a mere application for setting
aside the award in the country of origin - often prompted by the wish t o delay enforcement -, enforcement would have t o be refused under the Convention in other
Contracting States. This obviously runs counter to the reason behind the term "binding" in Article V ( l ) (e) and the adjournment provisions in Article VI (327A).

326. See for criticism of the statement of the Chairman of Working Party no. 3 at the New
York Conference of 1958 about the suspensive effect of appeal, supra n. 305.
327. Supreme Court, August 13, 1979 (Sweden no. I), dis'cussed supra at n. 302-304.
327A. Accord, P. Sanders, "Consolidated Commentary Vols. V and VI", in Yearbook VI
(1981) p. 202 at p. 213.
E nforcemen t Award
353
111-4.5.3.3 Adjournment o f the decision o n enforcement (Art. VI)

Article VI of the Convention provides:
"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 upoil 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."
Under the Geneva Convention of 1927, the mere application for the
setting aside of the award in the country of origin was usually interpreted
as being sufficient to refuse enforcement of the award in the other Contracting States. This made it too easy t o delay the enforcement of an
award. Although in most cases the setting aside of an award is requested
in order to have its enforcement postponed, the problem was how t o
safeguard the right of a bona fide losing party t o contest the validity of
an award in the country of origin. The drafters of the Convention provided a sensible solution for this problem. On the one hand, they provided in Article V ( l ) (e) that enforcement may be refused if the award
has been effectively set aside or suspended in the country of origin. On
the other, they provided in Article VI that if the setting aside or suspension of the award is requested in the country of origin, the court may
adjourn, "if it considers it proper", the decision on the enforcement t o which must be added: until the court in the country of origin has decided on the setting aside or suspension - and, may also, on the application of the claimant, order the respondent to put up suitable security.
The question whether a court should adjourn its decision on the enforcement in the case of an application for setting aside or suspension
of the award in the country of origin and whether t o order the respondent to give security in this case, is discretionary. This can be inferred
In conformity
from the words "if it considers it proper" and 66may99.
with the division made between the second part of Article V ( l ) (e) and
Article VI, it is likely that the court before which the enforcement is
sought will adjourn its decision on enforcement if it is prima facie convinced that the request for the setting aside or suspension of the award
in the country of origin is not made on account of dilatory tactics, but
is based on rather reasonable grounds.328In my opinion, it implies that
the respondent has the burden of giving some summary proof that the
328. See P. Sanders, "Consolidated Commentary Vols. 111 and IV", in Yearbook Vol. IV
(1979) p. 231 at p. 252, and "Consolidated Commentary Vols. V and VI", in Yearbook Vol. VI
(1981) p. 202 at p. 215.
3 54
Enforcemen t Award
award is tainted by a defect which is likely to cause its setting aside in

the country of origin.
The adjournment of the decision on enforcement pursuant to Axticle
VI has hitherto been requested in two cases only. In both cases the adjournment was refused by the court.
The first case is the already mentioned decision of the President of the Court of
~ ' French responding company Saint-Gobain had reFirst Instance of ~ a r i s . ~The
quested the adjournment of the decision on the enforcement of the award, which
was sought by the Indian company FCIL, pending the action for a declaration of no
legal effect of the award which it had applied for before the Indian courts.330 The
President rejected the request, reasoning that Saint-Gobain had not furnished sufficient terms to make the granting of an adjournment an appropriate measure.
The second case, already mentioned several times, is the Swedish Supreme Court
decision in the Gotaverken v. GNMTC case.331 GNMTC had requested the adjournment of the decision on enforcement as it had instituted setting aside procedures in
France as well as new arbitration proceedings. After having observed that Article VI
of the Convention gives the enforcement court a discretionary power whether t o
grant an adjournment, the Court rejected the request as follows:
"Having regard to the general purpose of the New York Convention and the legislation of 1971 based thereon t o expedite the enforcement of foreign arbitral
awards . . . , it cannot be said that there exist circumstances which would justify
an adjournment of the decision on enforcement in this case on the ground for
the procedures initiated by GNMTC in France."
It may be mentioned that Mr. Justice Brentsson of the Swedish Supreme Court dissented on this point from the majority of the Judges. He pointed out, inter alia, that
"The grounds invoked by GNMTC against the award are, in part, of such a nature
that, although the award could not be considered invalid under Swedish law, the
possibility that a French court might come to an opposite conclusion cannot be
disregarded. The hearings on the merits of the challenge are said to be scheduled
for October 16, 1979.
In view of the above and the substantial amounts involved in this case, I find preponderant reasons in favour of an adjournment of the decision on the enforcement of the award . . . ,,,
This reasoning sounds, in my opinion, more convincing than that of the majority of
the Judges, especially since the arbitral award in this case was rather questionable.
Nevertheless, the decision of the majority not to adjourn the decision on enforcement turned out to be fortunate as the French Court decided that the award in
question was not an award governed by French arbitration law. If the Swedish Supreme Court had adjourned .and then had to face the latter decision, it would have
been in a difficult position.332
329. President of the Tribunal de grande instance of Paris, May 15, 1970, Compagnie de
Saint-Gobain - Pont B Mousson v. The Fertilizer Corporation of India Ltd. (FCIL) (France
no. 1).
330. High Court of Delhi, August 28, 1970, Compagnie de Saint-Gobain - Pont d Mousson
v. The Fertilizer Corporation of India Ltd. (FCIL) (India no. 2).
331. Supreme Court, August 13, 1979 (Sweden no. I), discussed supra at n. 302-304.
332. See supra at n. 1.88-90.
Enforcement Award
355
111-4.5 -3.4 Is the setting aside o f the award in the country of origin a
necessary ground for refusal of enforcement?
It may be questioned whether the ground that the award has been set
aside in the country of origin should be retained as a ground for refusal
of enforcement under the Convention. This question might be considered
if it were decided to amend the Convention in the form of an additional
Protocol or the like. The possible effect of this ground for refusal is that,
as the award can be set aside in the country of origin on all grounds contained in the arbitration law of that country, including the public policy
of that country, the grounds for refusal of enforcement under the Convention may indirectly be extended to include all kinds of particularities of the arbitration law of the country of origin.This might undermine
the limitative character of the grounds for refusal listed in Article V,
and possibly also the uniform rule of the written form of the arbitration
agreement of Article II(2), and thus decrease the degree of uniformity
existing under the Convention. Could it not be sufficient t o provide that
enforcement may be refused on the grounds listed in the Convention
only, without the ground that the award has been set aside in the country of origin?
In practice, the ground for refusal of enforcement that the award has
been set aside has not produced the above-mentioned effect so far since
there is a paucity of cases decided under the Convention in which the
setting aside in the country of origin has been invoked. Of course, this
paucity may be due t o the fact that once an award is set aside in the
country of origin, it is unusual that a claimant pursues enforcement in
another Contracting State in view of the second part of Article V ( l ) (e).
However, it is more likely that the action for setting aside in the country
of origin is initiated in exceptional cases only.
Apart from these considerations as t o practice, an elimination of the
ground for refusal that the award has been set aside in the country of
origin would, in my opinion, be undesirable. A losing party must be
afforded the right to have the validity of the award finally adjudicated
in one jurisdiction. If that were not the case, in the event of a questionable award a losing party could be pursued by a claimant with enforcement actions from country to country until a court is found, if any,
which grants the enforcement. A claimant would obviously refrain from
doing this if the award has been set aside in the country of origin and
this is a ground for refusal of enforcement in other Contracting States.
It is to be mentioned that the drafters of the European Convention
of 1961333 have attempted to cope with the above problem of setting
aside in the country of origin by providing the following intermediary
333. See supra 1-4.4.2.
3 56
Enforcement Award
solution. According to Article IX(2) of the European Convention, in

relations between States that are also Party t o the New Yorlc Convention, the ground for refusal of enforcement of Article V(1) (e) of the
New York Convention that the award has been set aside in the country
of origin is limited t o those cases where the award is set aside in the country of origin on the grounds mentioned in Article IX(1) of the European Convention. The grounds mentioned in Article IX(1) are substantially similar to grounds a - d of Article V ( l ) of the New York Conent ti on.^^^
The advantage of the solution of the European Convention is that it
excludes the possible incorporation of particularities for setting aside
contained in the arbitration law of the country of origin into the grounds
for refusal of enforcement under the Convention. In particular, the setting
aside in the country of origin for reasons of public policy of that country is not a ground for refusal of enforcement within this system. However, this system may lead to the unsatisfying situation that, if the enforcement of the award is sought in the country of origin, enforcement
would have to be refused in those cases where the award has been set
aside in that country, whilst, if enforcement of the same award is sought
in another Contracting State, enforcement would not have to be refused in those cases where the award has been set aside in the country
of origin on grounds not listed in the Convention. This is so because the
limitation on the grounds for refusal of enforcement in other Contracting States is not extended t o a limitation on the grounds for setting
aside in the country of origin itself. In the country of origin therefore
enforcement is t o be refused in all cases in which the award is set aside
in that country.
If the European Convention of 1961 had provided that the award
could be set aside in the country of origin on the grounds listed in the
Convention only, this would have caused a fundamental change of the
arbitration laws of the Contracting States. It would have meant that
for those awards falling under the European Convention the grounds
for setting aside mentioned in the arbitration laws would be replaced
by, or at least limited to, those listed in the European Convention.
The latter system of congruence of the grounds for setting aside in
the country of origin and the grounds for refusal of enforcement in
other Contracting States is certainly attractive. However, if this system
were envisaged for inclusion in an additional Protocol or the like, it
would constitute a far-reaching change of the New York Convention as
334. According to the prevailing interpretation, in relations between States which are also
Party to the New York Convention, the first part of ground (e) of Article V(l) that the award
has not yet become binding, applies as well. See P. Pointet, "The Geneva Convention on International Commercial Arbitration", in P. Sanders, ed., International Commercial Arbitration
Vol. I11 (The Hague 1965) p. 263 at p. 291.
Enforcement Award
357
it would mean that the latter is to be made applicable in the country of

origin, which is presently not the case. Such a change, which may create
many complex problems, is, in my view, unnecessary for the time being,
since, as noted, the possibility offered by the New York Convention to
have an award set aside in the country of origin on all grounds contained
in its arbitration law, is in practice not a problem of such magnitude as
it theoretically appears to be. This is underscored by the experience
with the European Convention whose Article IX(2) has, as far as it is
known, not been applied.
The first part of Article V ( l ) (e) according to which enforcement of
an award may be refused if the respondent proves that the award has not
yet become "binding" on the parties, means that a leave for enforcement (exequatur or the like) of the court in the country in which, or
under the law of which, the award was made, is not required in order to
be "binding" within the meaning of this provision of the Convention
(p. 337).
Apart from this interpretation, the question at which moment an
award can be considered as t o have become binding within the meaning
of Article V ( l ) (e) is, according to the interpretation of most courts, to
be resolved under the law of the country of origin. However, it is arguable that, like the elimination by the term "binding" of the so-called
"double-exequatur", this question too is to be resolved independently
of the otherwise applicable law. According to this autonomous interpretation, the award can be considered to have become "binding" for
the purposes of Article V ( l ) (e) at the moment on which it is no longer
open t o a genuine appeal on the merits to a second arbitral instance or
court in those cases where such means of recourse are available (pp.
338-346).
In case a leave for enforcement is granted on the award by the court
in the country of origin and the leave for enforcement, having the same
status as a judgment, has the consequence of absorbing the award, such
a merger has no extra-territorial effect in other Contracting States. In
the latter States enforcement can be sought as an award under the Convention. Conversely, the term "binding" of Article V ( l ) (e) does not
preclude that the leave for enforcement in this case may also serve as
basis for enforcement as a foreign judgment if the latter basis is more
favourable for the party seeking enforcement than enforcement under
the Convention (pp. 346-349).
The second part of Article V(1) (e), according t o which enforcement
of an award may be refused if the respondent proves that the award has
been set aside or suspended by the court of the country in which, or
under the law of which, the award was made, as well as Article VI (see
358
Enforcemen 2" Award
below), imply that these actions belong t o the exclusive competence of

the courts of that country (pp. 349-350).
In order to be a ground for refusal of enforcement falling under the
second part of Article V ( l ) (e), the award must have been effectively
set aside by the court in the country of origin. The mere application for
setting aside is covered by the adjournmeni provision of Article VI (p.
350).
The suspension of the award as mentioned in Articles V ( l ) (e) and
VI refers presumably to a suspension of the enforceability or enforcement of the award by the court in the country of origin. In order to be
a ground for refusal of enforcement as mentioned in Article V ( l ) (e),
the suspension of the award must have been effectively ordered by a
court in the country of origin; the automatic suspension of the award
by the operation of law in the country of origin can be disregarded in an
enforcement action under the Convention (pp. 3 5 1-352).
The power of the court granted by Article VI t o adjourn the decision
on enforcement in case the respondent has applied for a setting aside
or suspension of the award in the country of origin, is discretionary. The
discretionary power is to be exercised between the limits of the safeguarding of the right of a bona fide losing party t o contest the validity
of the award in the country of origin and of protecting a claimant against
dilatory tactics of an obstructive respondent (pp. 353-354).
The case of an award having been set aside in the country of origin
should be retained as ground for refusal of enforcement of an award in
the Convention, even if the Convention were t o be made applicable in
the country of origin (which is presently not the case) (pp. 355-357).
Enforcemen t A ward
359
PART 111-5 PUBLIC POLICY AS GROUND FOR RIEFUSAL OF ENFORC'EIMENT EX OFFICIO (ART V(2))
Article V(2) of the Convention provides:
"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 a&itration 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."
111-5.1
In General
In the foregoing Part 111-4 we dealt with the grounds for refusal of
enforcement of an award mentioned in Article V(l) which have to be
proven by the party against whom the enforcement is sought. In this
Part we will deal with the ground of public policy as provided in Article V(2) on which ground a court may refuse enforcement on its own
motion (ex officio). At the outset three preliminary points should be
made.
The first preliminary point is that it is said that the Civil Law term
"ordre public" is generally given a wider application than the Common
Law term "public policy".335 However, as both terms are frequently
used interchangeably, the term "public policy" will be used with the
understanding that it has the same meaning as the term "ordre public".
The second preliminary point is that the Convention refers to the
question of the non-arbitrable subject matter (hereafter also referred to as
arbitrability) in connection with both the action for the enforcement of
the arbitration agreement - Article II(3) jo Article II(1) (". . . an [arbitration] agreement . . . concerning a subject matter capable of settlement by arbitration") - and the action for the enforcement of the arbitral award - Article V(2) (a) (quoted above). As at both stages the
question of arbitrability is the same, it is examined in this Part within
the framework of the enforcement of the arbitral award. In order not
to confuse this Part unduly, the question of arbitrability in the context
of the enforcement of the arbitration agreement will not be mentioned
specifically.336
335. See J. Lew, Applicable Law in Internation~lCommercial Arbitration (Dobbs Ferry
1978) para. 401 n. 1.
336. See also supra 11-1 ("Referral by Court to Arbitration"), and, in particular, 11-1.3.3
("Subject Matter Not Capable of Settlement by Arbitration").
360
Enforcement Award
The third preliminary point concerns the distinction between grounds

(a) and (b) of Article V(2). It is generally accepted that arbitrability
forms part of the general concept of public policy and that therefore
Article V(2) (a) can be deemed superfluous.337 The fact that the Convention mentions it separately has historical reasons which will be explained later. Although arbitrability can be deemed t o be included in the
general concept of public policy, the distinction as made by the Convention will be followed in this Part for clarity's sake: Part 111-5.2 will
be devoted t o the question of the non-arbitrable subject matter and Part
111-5.3 will be concerned with the other questions regarding public
policy.
In general, public policy is a traditional ground for the refusal of enforcement of foreign arbitral awards and foreign judgments, as well as
for the refusal to apply a foreign law. A public policy provision can be
found in almost every international convention or treaty relating t o
these matters. Its function is basically t o be the guardian of the "fundamental moral convictions or policies of the forum".338 The reason why
the concept of public policy is so difficult to grasp is that the degree of
fundamentality of moral conviction or policy is conceived differently
for every case in the various States.
It is impossible within the limited scope of this study to make even
an attempt t o review the numerous doctrines of public policy (or its
equivalent) and arbitration.339 It may suffice t o draw the attention to
the important distinction between domestic and international public
policy. This distinction is gaining increasing acceptance in matters of
arbitration as well. According t o this distinction what is considered t o
pertain t o public policy in domestic relations does not necessarily pertain t o public policy in international relations. It means that the number
of matters considered to fall under public policy in international cases
is smaller than that in domestic cases.340 The distinction is justified by
the differing purposes of domestic and international relations.
It should be pointed out that even if public policy is acknowledged to be "international", its basis is national as it can be sanctioned only by a national judge. To
3 37. E.g., P. Sanders, "The New York Convention", in International Commercial Arbilration Vol. I1 (The Hague 1960) p. 293 at p. 323; F.-E. Iclein, "La Convention de New York pour
la reconnaissance et 1'exCcution des sentences arbitrales BtrangBres", 57 Revue Suisse de Jurisprudence (1961) p., 229 at p. 249; Th. Bertheau, Das New Yorker Abkommen vom 10. Juni
1958 iiber die Anerlcennung und Volistreclcung auslandischer Schiedsspriiche (Wnterthur
1965) p. 60; I<.-H. Schwab, Schiedsgerichtsbarkeit, 3d ed. (Munich 1979) p. 427.
338. Lew, supra n. 335, para. 403.
3 3 9. See P. Schlosser, Das Rech t der internationalen privaten Schiedsgerichtsbarkeit (Tiibingen 1975) nos. 274-297 and 733-754.
340. See P. Sanders, "Trends in the.Field of International Commercial Arbitration", Recueil
des Cours, 1975 - Vol. 11, p. 297 at pp. 220-227 and 285-287.
,
.
Enforcement Award
361
this end French doctrine identifies the two categories of public policy, "internal"
and "external" ("ordre public interne" and "ordre public externe" or "ordre pzlblic a usage international"). Since the term "international public policy" is commonly used, this term will be maintained hereafter.
It should further be pointed out that in certain countries, such as F.R. Germany,
the distinction is deemed unnecessary as far as arbitration is concerned, because in
domestic relations the notion of public policy as such is regarded as n o n e x i ~ t e n t . ~ ~
However, upon further analysis, in these countries also there can be deemed to exist
an equivalent of domestic public policy in the sense that statutory provisions exist
which cannot be contracted out by the parties or which cannot be disregarded by
the arbitrators. Hence the distinction can be used for the purpose of Article V(2)
of the Convention for these countries as well.
I t may be added that certain French and Swiss authors maintain that there also
exists a third category of public policy, the so-called "truly international public
~ ~ ~rules of this public policy
policy" ("ordre public re'ellernent i n t e r n a t i ~ n a l " ) .The
would comprise fundamental rules of natural law, the principles of universal justice,
jus cogens in public international law and the general principles of morality accepted
by what is referred t o as "civilized nations".343 The precise contents of this category of public policy, however, are rather unclear. Moreover, these rules can be
deemed t o be covered to a large extent by "international public policy" (i.e., external public policy). As very few courts have made the distinction between "international public policy" and "truly international public policy" in general, and none
under the Convention in particular, this distinction will be left aside.344
Considering the legislative history of Article V(2) (b), the Convention

can be said t o refer t o "international public policy" as distinct from "domestic public policy". The Geneva Convention of 1927 provided in pertinent part "contrary t o the public policy or the principles of law of the
country" in which the enforcement of the award was sought. The
ECOSOC Draft Convention of 1955 provided 66clearlyincompatible with
public policy or with fundamental principles9'. Considering that "the
provision should not be given a broad scope of interpretation" 345, Working Party No. 3 proposed t o limit it t o "public policy" alone. This limitation was accepted by the Conference, which, moreover, rejected a
341. See Schwab, supra n. 337, p. 226 and 428.

342. See especially, B. Goldman, "Les conflits des lois dans l'arbitrage international de droit
privg", Recueil des Cours, 1963 - Vol. 11, p. 352 at p. 432.
343. Lew, supra n. 335, para. 407.
344. The Swiss Supreme Court rejected in a recent decision the notion of "ordre public
international" in the sense of a "truly international public policy". The Court observed inter
alia:
"It concerns rather a formula proposed by certain authors, who do not, however, give it a
precise and unambiguous meaning. It cannot be ascertained how this 'ordre public international' would limit the application of the foreign law more, or in another manner, than
Swiss public order does."
Tribunal FBdBral, May 5, 1976, Soci6tC des Grands Travaux de Marseille (SGTM) v. People's
Republic of Bangladesh and the Bangladesh Industrial Development Corporation (BIDC), Arrets
du Tribunal Fkdkral 102 Ia 574, summarized in Yearbook Vol. V (1980) p. 217.
,345. Statement of the Chairman of Working Party no. 3 , U N DOC E/CONF.26/SR.17.
3 62
Enforcement Award
Brazilian proposal to re-introduce "fundamental principles of law".346

Although directly after the adoption of the ~ o n v e n t i d nthere existed
some doubts whether the distinction between domestic and international
public policy would also apply to the question of arbitrabi1it.y as mentioned in Article V(2) (a) of the Convention, at present this is no longer
doubted by the majority of the courts and
In a great number of court decisions reported under the Convention,
the distinction between domestic and international public policy is
made either expressly or implicitly. In the United States the leading case
is the Supreme Court decision in Fritz Scherk v, Alberto-Culver Co.348
The Supreme Court held that, although disputes arising out of securities
transactions cannot be submitted to arbitration if the contract is domestic, disputes arising out of such transactions are arbitrable if the contract is international.
By a contract made in 1969 the German citizen Fritz Scherk had transferred t o the
Deleware corporation Alberto-Culver the ownership of its enterprises along with all
rights held by these enterprises t o trademarks in cosmetic goods. The contract provided for arbitration pursuant to the Arbitration Rules of the International Chamber of Commerce. Contending fraudulent representations made by Scherk concerning the unencumbered ownership of the trademarks, Alberto-Culver commenced an
action for damages and other relief before the United States District Court of Illinois in 1970. Scherk filed a motion to stay the action pending arbitration in Paris.
Alberto-Culver, in turn, opposed this motion and sought an injunction restraining
the arbitration proceedings. The District Court denied Scherk's motion, and granted
Alberto-Culver's motion. In granting the latter motion the District Court relied entirely on the Supreme Court's 1953 decision in Wilko v. Swan349,in which it was
held that an agreement to arbitrate could not preclude a buyer of securities from
seeking judicial remedy for an alleged fraud in the transaction under the Securities
Act. The Court of Appeals for the Seventh Circuit affirmed.
The United States Supreme Court reversed. After having pointed t o the difference between the domestic character of the transaction in the Wilko-case and the
international aspects of the case at hand, the Supreme Court stated that an international contract involves considerations and policies significantly different from those
found controlling in Wilko. In Wilko there was no doubt that the contract was governed by United States law and federal securities laws in particular. In contrast, in
the present case it was uncertain whether the federal securities laws would apply
346. UN DOC E/CONF.26/SR.17. Accord, inter alia, J.-D. Bredin, "The New York Convention of June 10th 1958 for the Recognition and Enforcement of Foreign Arbitral Awards",
87 Journal du Droit International (1960) p. 1003 at p. 1027; Lew, supra n. 335, para. 410.
347. Sanders, supra n. 337, at p. 323 regretted the distinction between grounds (a) and (b)
of Art. V "as now the distinction, which in my opinion could be made between national and
foreign arbitrations ... cannot be made as far as the subject matter is concerned". The author
appears to have reconsidered this opinion in his Hague Lectures of 1975, supra n. 340, in which
he states at p. 225 when discussing the distinction between domestic and international public
policy that "ground (a) can be interpreted in the same way as ground (b)".
348. June 17, 1974 (U.S. no. 4).
349. 346 United States Supreme Court Reporter 4 27 (195 3).
Enforcement Award
363
to this international transaction. In this context, the absence of an arbitration agreement would create considerable uncertainty. The Court observed:
"Such uncertainty will almost inevitably exist with respect to any contract
touching two or more countries, each with its own substantive laws and conflictof-laws rules. A contractual provision specifying in advance the forum in which
disputes shall be litigated and the law t o be applied is, therefore, an almost indispensable precondition t o achievement of the orderliness and predictability essential t o any international business transaction.
. . . A parochial refusal by the courts of one country t o enforce an international
arbitration agreement would not only frustrate these purposes, but would invite unseemingly and mutually destructive jockeying by the parties to secure tactical litigation advantages."
The Supreme Court referred then to its decision in The Bremen v. Zapata Off-Shore
which also involved an international contract.350 In that case the Supreme Court
had rejected the doctrine that a forum-selection clause in a contract will not be respected in a suit brought in the United States unless the selected State would provide a more convenient forum than the State in which suit is brought. The Supreme
Court had held that a "forum clause should control absent a strong showing that it
should be set aside". In that case also, the Court had observed that the elimination
of uncertainties in respect of the courts of which country would have jurisdiction
over a suit by agreeing in advance on a forum acceptable t o both parties, is an indispensable element in international trade. Observing that an arbitration agreement
"is, in effect, a specialized kind of forum-selection clause", the Supreme Court repeated in the Scherk case that the repudiation of such an agreement would also reflect a
"parochial concept that all disputes must be resolved under our laws and in our
courts . . . . We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in
our courts."
In a footnote351 the Supreme Court stated that its conclusion was confirmed by
the adherence of the United States t o the New York Convention, the principle purpose of which is
"to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and t o unify the standards by which agreements
t o arbitrate are observed and arbitral awards are enforced in the signatory countries."
In Parsons & Whittemore Overseas Inc. v. R A K T A , the United States

Court of Appeals for the Second Circuit observed:
". . . the Convention's public policy defense should be construed narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum State's most basic notions70f morality and
The case concerned .a contract from 1962 between the United States corporation Overseas and the Egyptian corporation RAKTA for the construction of a paperboard mill in Egypt, financed by the United States Agency for International Development (AID). The construction was near completion when the six-day Arab-Israeli
350. 407 United States Supreme Court Reports 1 (1972).
351. Supra n. 348, at p. 521 n. 15.
352. December 23,1974 (U.S. no. 7).
3 64
Enforcement Award
war was about to brealc out. Egypt expelled all Americans except those who would
apply and qualify for a special visa. AID informed Overseas that it was withdrawing
financial backing. Thereupon, Overseas abandoned the project and notified RAMTA
that it regarded itself as excused by force majeure. RAKTA disagreed and obtained
an award largely in its favour. In the award Overseas' force majeure defence was
considered as valid only during the period from May 28 t o June 30, 196'7. Furthermore, Overseas was considered to have made no more than a perfunctory effort t o
secure special visas. Finally, AID'S notification was held as not justifying Overseas'
unilateral decision t o abandon the project.
In the enforcement action Overseas argued before the United States Court of
Appeals that the various actions by United States officials, most particularly AID'S
withdrawal of financial support, required Overseas "as a loyal American citizen" t o
abandon the project. Enforcement of an award predicated on the feasibility of Overseas' returning to work in defiance of these expressions of national policy would
therefore contravene United States public policy.
After having made the above-quoted observation concerning the public policy
defence of the Convention in general, the Court of Appeals rejected Overseas'
arguments as follows:
"In equating 'national' policy with United States 'public' policy, the appellant
quite plainly misses the mark. To read the public policy defense as a parochial
device protective of national political interests would seriously undermine the
Convention's utility. This provision was not meant t o enshrine the vagaries of
international politics under the rubric of 'public policy'. Rather, a circumscribed
public policy doctrine was contemplated by the Convention's framers and every
indication is that the United States, in acceding t o the Convention, meant t o
subscribe t o this supranational emphasis.
To deny enforcement of this award largely because of the United States9falling
out with Egypt in recent years would mean converting a defense intended t o be
of narrow scope into a major loophole in the Convention's mechanism for enforcement. We have little hesitation, therefore, in disallowing Overseas' proposed
public policy defense."353
The interpretation that the public policy limitation of the Convention is t o be construed narrowly and t o be applied only where the enforcement would violate the
forum State's most basic notions of morality and justice, was adopted by the same
Court of Appeals in a subsequent case in which it held that the order of a United
States bankruptcy judge staying all proceedings, including arbitration, did not have
extra-territorial effect on the arbitration talcing place in ~ o k y o . ~ ~ ~
353. The Court referred the U.S. Supreme Court decision in Fritz Scherk v. AlbertoCulver
Co. (U.S. no. 4), supra n. 348.
(U.S. no. 3). See also U.S. District Court of New Jersey, May 12, 1976, Biotronik Mess- und
Therapiegerate G.m.b.H. & Co. v. Medford Medical Instrument Company (U.S. no. 8): auegation of the respondent of fraud on the part of the claimant as being contrary to public policy
withit1 the meaning of Art. V(2) (b) rejected, see supra at n. 211; U.S. District Court of New
York, S.D., June 28, 1976, Antco Shipping Co. Ltd. v. Sidermar S.p.A. (U.S. no. 9): exclusion
of Israel in charter party was held not to be against public policy of the United States. The U.S.
District Court of Georgia, N.D., January 18, 1980, Laminoirs-TrefilieriesCablekes de Lens
S.A. v. Southwire Company (U.S. no. 32) referred also to the U.S. Court of Appeals in the
Parsons case, supra n. 352, that enforcement of foreign arbitral awards may ,be denied on the
basis of Art. V(2) (b) of the Convention only "where enforcement would violate the forum
country's most basic notions of morality and justice". The District Court refused, however, to
enforce that part of an award made under the Arbitration Rules of the International Chamber
d
Enforcement A ward
365
In F.R. Germany the courts have repeatedly held that in the case of
a foreign award not every infringement of mandatory (zwingend)provisions of German law constitutes a violation of public policy; they accept a violation of public policy in "extreme cases
Similarly, the Swiss courts affirm that a violation of Swiss public
policy will only be deemed t o be present where the innate feeling of
justice is hurt in an intolerable manner, where fundamental provisions
of Swiss legal order have been disregarded, or where the Swiss legal thinking compels prevalence over the applicable or applied law. Whether this
is the case can be decided only on the basis of the facts of the specific
case, whereby, when foreign decisions are to be enforced, the scope of
public policy is narrower than in the case of a direct application of Swiss
law.356
The Court of Appeal of the Canton Geneva quoted approvingly from the Swiss
Federal Supreme Court, which, in an earlier decision under the Geneva Convention
of 1927, had observed357:
"The extent of the exception of Swiss public order is more restrictive in respect
of the recognition and enforcement of foreign awards than in respect of the application of foreign law by Swiss courts. Accordingly, as far as the procedure is
concerned, this limitation means that an irregularity in the procedure does not
necessarily entail the refusal of enforcement of the foreign arbitral award, even
if such an irregularity would imply the setting aside of an award made in Switzerland. There must be aviolation of fundamental principles of the Swiss legal order,
hurting intolerably the feeling of justice . . . . This exception of public order
should not be twisted in order to avoid application of international conventions which are signed by Switzerland and which form part of Swiss law. This
would ultimately lead t o the exclusion of application of Swiss law. In the final
analysis, it should not lead to a violation of a Convention, the purpose of which
is precisely t o recognize the existence of different legal systems and to coordinate
them."
The Mexican courts have also distinguished between domestic and

international public policy. They held that although the Mexican statutory provisions regarding the summoning of a party in personam per-
of Commerce in which the arbitrators had applied a French law which increased the rate of
interest by 5% after two months from the date of the award, as it considered this an impermissable penalty under United States law. This decision appears to be somewhat out of tune
with the other decisions mentioned above.
355. E.g., Oberlandesgericht of Hamburg, April 3, 1975 (F.R. Germ. no. l l ) , discussed
supra at n. 215.
356. Tribunal F6dBra1, May 3, 1967, Billerbeck & Co. v. Bergbau-Handel G.m.b.H. (Switz.
no. 3), see infra n. 403, referred to by Obergericht of Basle, June 3, 1971 (Switz. no. 5).
357. Cour de Justice (1st Section) of the Canton Geneva, September 17, 1976, LBopold
Lazarus Ltd. v. Chrome Ressources S.A. (Switz. no. 6), quoting the Swiss Federal Supreme
Court's decision of December 12, 1975, Provenda .A. v. Alimenta S.A., Arr2is du Tribunal
Fkdkral Suisse 101 l a 521, in which it was held that an English award without reasons does not
violate Swiss public policy.
3 66
Enforcement Award
tain to Mexican public policy, these provisions do not apply in the case
of an international a r b i t r a t i o i ~ . ~ ~ '
Other examples of the distinction between domestic and international public policy
are the even number of arbitrators and the lack of reasons in the award.359
It is true that in the above cases not all courts make the distinction
in express terms between domestic and international public policy. However, it is clearly apparent from these and other cases decided under the
Convention that the courts are prepared to refuse enforcement of an
arbitration agreement or arbitral award in very serious cases only. To
this extent it is justified to use the helpful distinction between domestic
and international public policy also in those cases where the courts do
not resort expressly to the distinction.
The foregoing observation brings us to the main point to be made in
respect of judicial interpretation and application of the Convention's
public policy provisions: contrary t o what was feared by some directly
after the adoption of the Convention that the Convention's public policy
provisions could be used by the courts t o take away a great deal of its
effectiveness, the courts have refused enforcement in very exceptional
cases only. Although they have had this basis in the Convention to
do otherwise, the courts have generally given a narrow interpreta$ion and application to the Convention's public policy provisions.
It is in the judicial interpretation and application of the Convention's
public policy provisions that the courts have exhibited a particularly
favourable attitude towards the Convention.
In fact, although the public policy provisions are frequently invoked,
out of some 140 decisions, enforcement of an arbitration agreement and
an arbitral award was refused in five decisions only on account of public
policy. These cases are the following.
The first case is a decision of the Court of Appeal of Hamburg in which the Court
refused enforcement of the award, made in New York under the Arbitration Rules
of the American Arbitration Association, because the arbitrators were considered
to have violated fundamental requirements of due process by not forwarding t o
the respondent a letter submitted by the claimant t o the arbitrators.360
358. Tribunal Superior de Justicia, 18th Civil Court of First Instance of Mexico, D.F.,
February 24, 1977, Presse Office S.A. v. Centro Editorial Hoy S.A. (Mexico no. 1); Tribunal
Superior de Justicia [Court of Appeals1 (5th Chamber) of Mexico, S.F., August 1, 1977, Malden
Mills Inc. v. Hilaturas Lourdes S.A. (Mexico no. 2). Both decisions are discussed supra at n.
198-199.
359. See infra 111-5.3.2 ("Lack of Impartiality of the Arbitrator") at n. 410 and 111-5.3.3
("Lack of Reasons in Award").
360. Oberlandesgericht of Hamburg, April 3, 1975 (F.R. Germ. no. 1I), discussed supra
at n. 215.
Enforcemen t Award
367
The second case is a decision of the Court of Appeal of Cologne in which enforcement of the award, made under the Arbitration Rules of Copenhagen Arbitration
Committee for Grain and Feed Stuff Trade, was refused because the names of the
arbitrators were not made known t o the parties.361
The third case is a decision of the United States District Court of New York in
which it was held that in virtue of the United States Public Vessels Act, disputes
concerning the salvage of a United States warship cannot be submitted t o arbitration (i.e., in London).362
The fourth case is a decision of the Belgian Supreme Court which held that on
the basis of a Belgian Law of 196 1 the unilateral termination of an exclusive distributorship agreement under which a Belgian firm was the concessionaire could not
be dealt with by arbitration in Zurich as provided in the agreement, but exclusively
by the Belgian courts.363
A fifth case is a decision of the United States District Court for the District of
Columbia which held that the nationalization by Libya constituted an Act of State
which was not arbitrable for which reason enforcement was t o be refused in virtue
of Article V(2) (a) of the
It is questioned whether the courts, and especially those in the United States, have gone too far in limiting public policy to considerations
of "the forum State's most basic notions of morality and justice9'.365
It is alleged that the United States courts have given public policy so
narrow a construction that it now must be characterized as having no
meaningful definition, leaving it pragmatically useless if not altogether
nonexistent. This would apply, for instance, to the decision that an
award even in direct conflict with United States law or policy is held not
to be a violation of public policy.366 In other words, United States
courts would blindly pay lip service t o international commercial arbitration. It is concluded that this attitude could have adverse effects on
international commercial arbitration as parties would no longer wish t o
use this mechanism of dispute settlement fearing the deprivation of the
public policy defence as a "catch-all" t o protect "the integrity of arbitration ,:,.367
361. Oberlandesgericht of Cologne, June 10, 1976 (F.R. Germ. no. 14), discussed supra
at n. 207.
362. U.S. District Court of New York, S.D., December 21, 1976, B.V. Bureau Wijsmuller v.
United States of America (U.S. no. 15), discussed infra at n. 386.
363. Cour de Cassation (1st Chamber), June 28, 1979, Audi-NSU Auto Union A.G. v.
Adelin Petit & Cie (Belgium no. 2), discussed inpa at n. 379.
364. U.S. District Court of Columbia, January 18, 1980, LIAMCO v. Libya (U.S. no. 33),
see infra at n. 380.
A possible sixth case is the U.S. District Court of Georgia, N.D., January 18, 1980, LaminoirsTrefilieries-Cableries de Lens S.A. v. Southwire Company (U.S. no. 32), see supra n. 354.
365. J. Junker, "The Public Policy Defense to Recognition and Enforcement of Foreign
Arbitral Awards", 7 California Western International Law Journal (1977) p. 228 at p. 245.
366. See U.S. Court of Appeals (2nd Cir.), December 23, 1974, Parsons & Whittemore Overseas Co. Inc. v. SociBt6 G6n6rale de 1'Industrie du Papier (RAKTA) (U.S. no. 7), discussed
supra at n. 35 2-353.
367. Junker, supra n. 365, at p. 246 n. 103 voices here the opinion of counsel for Overseas
which lost the case.
36 8
Enforcement Award
This criticism is, in my opinion, not justified. The interpretation of

public policy is like the movement of a pendulum. It has moved from
an earlier parochialism t o the present attitude in favour of international
commercial arbitration. It may reach a point where international commercial arbitration may be favoured too much by an overly narrow interpretation of public policy, and this may produce a counter reaction.
But the pendulum has by no means reached that point. At present the
judicial attitude in favour of international commercial arbitration is just
emerging in various countries. For example, in the United States the
movement in favour of international commercial arbitration started only
in the early 70's. This movement should be encouraged, to which end
the distinction between domestic and international public policy is a
useful criterion. It is true that the limitation put on public policy should
~ magic. This posnot be applied blindly. The word " i n t e r n a t i ~ n a lis~ not
sible danger should, however, not lead t o a rejection of the limitation altogether.
It may be added that, analyzing the decisions of the United States courts in which
the limitation on public policy was alleged to have been applied blindly, the criticism does, in my opinion, not hold water: the respondents tried t o obstruct enforcement either by rather parochial defences or by simply breaching their own promise
t o go to arbitration.
111-5.2
Non-arbitrable Subject Matter (Arts, V(2) (a) and %I(

11 ))
As indicated, Article V(2) (a) according t o which a court may refuse

enforcement on its own motion of an award if the difference is not
capable of settlement by arbitration under its law, may be considered
superfluous as the question of the non-arbitrable subject matter is deemed
to form part of the general concept of public policy. The reason why
Article V(2) (a) nevertheless figures as a separate ground for refusal of
enforcement is historical. It was a distinct ground in the Geneva Convention of 1927368,the ICC Draft Convention of 1953369,and the ECOSOC
Draft Convention of 1955.370 Despite an isolated objection of the French
delegate that its retention could induce a court "to give international
application t o rules which were of exclusively domestic validity9' and
that public policy alone would be sufficient371,the Conference kept the
question of non-arbitrable subject matters as a separate ground without
discussion.
The concern expressed by the French delegate has turned out t o be
368. Geneva Convention of 1927, Art. 1(2) (b).

369. ICC Draft Convention of 1953, Art. IV(a).
370. ECOSOC Draft Convention of 1955, Art. IV(b).
Enforcement Award
369
unwarranted since, as demonstrated in the preceding Section, for the

question of arbitrability also, the courts generally use the distinction between domestic and international public policy. The mention of the nonarbitrable subject matter as a separate ground for refusal of enforcement therefore has not had undesirable consequences in practice.
It is a question, however, under which law the arbitrability of the subject matter is to be determined in enforcement actions falling under the
Convention. Concerning the enforcement of th.e arbitral award, Article
V(2) (a) refers explicitly t o the law of the country where the enforcement of the award is sought. This appears also to be the unanimous interpretation of the courts in all cases in which the question of arbitrability was considered under the Convention. Some authors, however,
have argued that the question of arbitrability may also have to be determined under some other law. This opinion should be rejected not
only because of the unanimous judicial interpretation to the contrary,
but also because, as Prof. Gaja rightly points out, this opinion would
render it difficult t o understand why the case of the non-arbitrable subject matter should have been considered so important that the enforcement court can ascertain it on its own motion.372
The arbitrability under the law governing the award may nevertheless play a role in
an enforcement procedure under the Convention if the award has been set aside on
this ground in the country of origin. Enforcement may then be refused on the basis
of the second part of Article V(1) (e) of the Convention.
With respect to the action for enforcement of the arbitration agreement pursuant
to Article 11(3), Article II(1) merely requires that the arbitration agreement concern
"a subject matter capable of settlement by arbitration". It has been argued earlier
that at this stage the enforcement court also has to rely on its own law only for the
question of arbitrability of the subject matter.373
The non-arbitrability of a subject matter reflects a special national

interest in judicial, rather than arbitrable, resolution of dispute.374 Classic examples of non-arbitrable subject matters are anti-trust, the validity
of intellectual property rights (patents, trademarks, etc.), family law
and the protection of certain weaker parties. The various subject matters differ, however, from country t o country.375In spite of this divergence, it is remarkable that the question of a non-arbitrable subject mat-
372. G. Gaja, "Introduction", in New Yorlc Convention (Dobbs Ferry 1978-1980) at n. 82

in which also the references to the authors are given.
373. See supra 11-1.3.3 ("Subject Matter not Capable of Settlement by Arbitration").
374. As defined by U.S. Court of Appeals (2nd Cir.), December 23,1974, Parsons & Whittemore Overseas Co. Inc. v. SociBtB GBnBrale de 1'1ndust1ie du Papier (RAKTA) (U.S. no. 7).
375. See National Reports under Chap. 11.3 ("Domain of Arbitration") in the Yearbooks.
See also, P. Sanders, "Trends in the Field of International Commercial Arbitration", Recueil
des Cours, 1975 - Vol. 11, p. 207 at p. 220.
Enforcement Award
37 1
The German car manufacturer Audi informed Petit that he would cease to be its
exclusive distributor in Belgium. As Petit was not willing to accept such termination without a substantial compensation, Audi started arbitration in Zurich on the
basis of the arbitral clause in the exclusive distributorship agreement, which agreement also provided that it was to be governed by German law. Petit appeared before
the arbitrators in Zurich solely with the purpose of contesting their competence to
deal with the dispute. The arbitrators declared themselves to be competent, which
decision was confirmed by the Superior Court of Zurich. The arbitrators made an
award on the merits, holding that the agreement was terminated and that Petit did
not have any right to compensation because of the termination.
Petit started proceedings in Belgium seeking a declaration from the courts that
they had exclusive jurisdiction to deal with the dispute and that they refuse recognition and enforcement of the award made in Zurich. The Commercial Court of
Likge, the Court of Appeal of the same city and the Belgian Supreme Court all
agreed with Petit, holding that the Belgian courts had exclusive jurisdiction to deal
with the dispute, and refused to recognize and enforce the award. In justifying its
decision the Supreme Court referred, inter alia, to Article V(2)(a) of the New York
Convention. The. Supreme Court observed:
"Considering that the Law of July 27, 196 1, concerning the Unilateral Termination of Concessions for Exclusive Distributorships of an Indefinite Time, as modified by the Law of April 13, 197 1, declares in Article 4 that upon termination of
a concession of sale which concerns wholly or partially the Belgian territory, the
aggrieved concessionnaire in all cases can cite the grantor of the concession in
Belgium, whether before the court of his own domicile, or before the court of
the domicile or seat of the grantor of the concession, and that in the case that the
dispute is brought before a Belgian court, the latter shall apply exclusively Belgian law;
Considering that, by virtue of Art. 6 of the same Law, the provisions of this
Law are applicable notwithstanding any agreement to the contrary which is concluded before the end of the contract under which the concession is granted;"
Considering that those mandatory (imperatives) provisions are intended to ensure
that in all cases the concessionnaire has the right to invoke the protection of
Belgian law, except where he has renounced this right by an agreement concluded
after the end of the contract under which the concession is granted;"
It may be added that the choice of German law was ovemled by the Supreme
Court as being an abuse of the right to choose a law Cfraude d la loi).
Finally, mention should be made of an unfortunate decision of the United States
District Court for the District of Columbia in the case LIAMCO v. ~ i b y a . ~ "Following a nationalization by Libya of LIAMCO's assets in that country in 1973, LIAMCO
commenced an arbitration in accordance with the arbitral clause contained in .the
concession agreements. The award, made in Geneva, was in favour of LIAMCO, condemning Libya to pay approximately US $ 8 0 million.381
The District Court refused to enforce the award on the ground of Article V(2) (a)
of the Convention, reasoning that Libya's nationalization, being an Act of State, is
a subject matter not capable of settlement by arbitration. The Court considered in
particular:
380. U.S. District Court for the District of Columbia, January 18, 1980 (U.S. no. 33).
381. Award .of April 12, 1977, extract in Yearbook Vol. VI (1981) p. 89. See for the other
two awards concerning Libya's nationalization (BP v. Libya and TOPCO v. Libya), supra n.
125.
3 72
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"The 'subject matter of the difference' in this case is Libya's nationalization of

LIAMCO's assets and the rate at which EIAMCO should be compensated for the
assets taken under that nationalization. Should that rate be determined according
to the terms of the original concessions (by arbitration), or should it rather be
determined according to the provisions of the nationalization laws themselves
(by Libyan committee)?
Had this question been brought before this Court initially, the Court could not .
have ordered the parties to submit to arbitration because in so doing it would
have been compelled to rule on the validity of the Libyan nationalization law.
That law by its terms abrogated the concessions entirely and vested exclusively
determination of any compensation in a special committee provided for in the
same law. The practice that counsels this judicial abstention from passing on the
effectiveness of the acts of foreign sovereigns is termed the act of state doctrine."
The Act of State doctrine, as formulated by the United States Supreme Court in
1897, is that every sovereign State is bound to respect the independence of every
other sovereign State, and that the courts of one country will not sit in judgment
on the acts of the government of another, done within its own territory.382 The
courts in the United States have invariably held that the nationalization by a foreign State is an Act of State. The exception to the Act of State doctrine is the socalled Hickenlooper Amendment to the Foreign Assistance Act of 1964 according
to which the doctrine does not apply in the case of a confiscation or taking in violation of the principles of international law. According to the Court, the exception
did not apply because LIAMCO would have failed to prove that the Amendment's
requirements had been met.
It is submitted that the Court confuses the right of a State to nationalize and
the method of settlement of disputes as agreed upon by that State and a foreign
private party. Today it is generally recognized that a State has the right to nationalize within its own territory. On the other hand, a State should not have the right
to unilaterally revoke its commitment to arbitrate, even if it is in the form of a
statutory enactment.
The concession agreements contained an arbitration agreement which was carefully drafted by the parties in 1955 and amended by them in 1966, and was valid
beyond any doubt. If a State were permitted to unilaterally revoke its commitment
to arbitrate, such an agreement would be worthless. It would seriously frustrate the
settlement of disputes in the ever delicate field of relations between States and foreign private parties. It could also have adverse effects on the economic development
of the States concerned, as it would discourage foreign private parties from malting
investments.
The Court would certainly have had a legal justification to make the distinction
between the nationalization as such and the agreed method of settlement of disputes:
the United States Supreme Court has held that the arbitral clause is an agreement
independent of the agreement in which it is contained.383 Under this separability
doctrine the Court could have considered both questions independently, which the
Court omitted to do when it observed that the nationalization law "by its terms
abrogated the concessions entirely" (emphasis added).
Furthermore, the Court could have referred to its own - correct - reasoning
that it had jurisdiction over Libya. In respect of this question the Court had held on
382. Underhill v. Hernandez, 168 United States Supreme Court Reports 250 (1897).
383. Prima Paint v. Flood Rt Conklin Mfg. Co., 388 United States Supreme Court Reports
395 (1967). See for the separability doctrine, supra 11-1.3.1.2.
Enforcemen t Award
373
the basis of the United States Foreign Sovereign Immunities Act of 1976 that where
Libya has agreed to arbitrate in another country, this constituted an implicit waiver
of sovereign immunity.384 If the agreement to arbitrate constitutes a waiver of immunity, the logical conclusion would have been t o hold that the agreement to arbitrate should also be honoured.
Seen in this light, the Act of State doctrine would not apply to that part of the
nationalization law which is concerned with the settlement of disputes. The foregoing also answers the question whether the subject matter was capable of settlement by arbitration. Here again, the Act of State doctrine would, in principle, not
apply as arbitration was the agreed method of settlement of dispute. Of course, a
court in the United States would not be obliged to recognize and enforce an award
in which an arbitrator has held that the nationalization law was invalid, as the Act
of State doctrine expresses a policy of the United States t o refrain from ruling on
the validity of a nationalization by a foreign State. But this was not done by the
arbitrator in this case; he had recognized the sovereign right of Libya to nationalize.
The arbitrator had also applied the principles of international law and found that a
premature termination of the concession agreements creates the obligation of indemnification. In fact, this was not different from a combined application of the Act
of State doctrine and the Hickenlooper Amendment.
During the pleadings before the Court of Appeals for the District of Columbia,
Libya and LIAMCO reached a settlement on March 20, 198 1. The amici curiae of
LIAMCO, among which the American Arbitration Association and the Chamber of
Commerce of the United States, lodged thereupon a motion requesting an order
vacating the decision of the District Court, which motion was, without reasons,
granted by the Court of Appeals on May 6,1981.
The field of non-arbitrablematters may also be delineated by the fact

that the State in question has used the second reservation of Article 1(3)
according to which when adhering to the Convention, a State may "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." (emphasis a~Ided)~a5
In this connection the decision of District Court in New York in Wijsmuller v. United States may be recalled.386 Wijsmuller and the Captain of a United States warship, stranded off the Dutch coast in 1974, had signed a Lloyd's Open Form salvage
agreement (LOF). This agreement provided for the submission of the salvor's claim
for salvage compensation t o arbitration in London in accordance with English Law.
The District Court rejected the motion of Wijsmuller t o arbitrate in London, holding that the Public Vessels Act permitted recovery against the United States only by
suit in the appropriate United States District Court. In its reasoning, the District
Court first considered the question whether by enacting the Public Vessels Act, United States Congress intended to waive sovereign immunity in such a manner as to
require the United States t o submit to arbitration in London. The Court reached the
conclusion that this was not the case.387 The Court further rejected the contention

385. See supra I - 1.8 ("Second Reservation ('Commercial Reservation') ").
386. U.S. District Court of New York, S.D., December 21, 1976 (U.S. no. 15).
387. See supra 111-4.1.2 ("State or Public Body as Party to the Arbitration Agreement").
374
Enforcement Award
of Wijsmuller that the adherence of the United States t o the New York Convention
had changed the foregoing principles, and the further contention that the adherence
reflected a policy in favour of international commercial arbitration. In this connection the Court referred, inter alia, t o the commercial reservation laid down in Article 1(3) of the Convention, stating that relations arising out of activities of warships have never been regarded as "commercial". This case shows also the special
national interest in judicial, rather than arbitrable, resolution, as mentioned before.
It should be added that the non-arbitrability of a subject matter of

the arbitration is not t o be accepted if it is only of an incidental nature
in the resolution of dispute. Rather, the non-arbitrability should concern certain categories of claims. For example, a United States Court
held that the mere fact that an issue of national interest may incidentally
figure into the resolution of a breach of contract claim does not make
the dispute non-arbitrable, but that the non-arbitrability should concern
a certain category of claims which is non-arbitrable because of the special national interest vested in their resolution.388
Similar observations can be found in a decision of the United States District Court
in Michigan, again involving the German car manufacturer ~ u d i Following
. ~ ~ ~ a
dispute with its United States distributor Overseas Motors, Audi sought arbitration
in Zurich on the basis of the arbitral clause in the agreement. Overseas started an
action against Audi for alleged anti-trust conspiracy before the District Court. The
District Court denied Overseas' motion for a stay of the arbitration in Zurich and
decided that the anti-trust action instituted by Overseas was without merit.390 In
the meantime, the arbitrators in Zurich rendered an award in favour of Audi. In the
subsequent enforcement action before the District Court, Overseas again contended
that the subject matter of the arbitration was not capable of settlement by arbitration as it related t o anti-trust issues. The Court rejected Overseas' argument once
again. It reasoned that
"Certainly some of the factual findings were common t o both the contractual
dispute and the anti-trust claim. But that does not make the former "not capable
--of settlement by arbitration."
The District Court quoted in this connection from the earlier decision in which the
allegation of anti-trust conspiracy was rejected:
". . . in the absence of allegations that the contract itself was intrinsically violative of the antitrust laws such actions are not preempted by this Court's exclusive authority over them."
Mention may also be made of the Court of Appeals of Florence before which the
Italian respondent objected t o the request for enforcement of an award made in
London that it was contrary t o public policy as the arbitrators had no power t o de-
388. U.S. Court of Appeals (2nd Cir.), December 23,1974, Parsons & Whittemore Overseas
Co. Inc. v. Soci6t6 GBn6rale de 1'Industrie du Papier (RAKTA) (U.S. no. 7) discussedsupra at
n. 352.
389. U.S. District Court of Michigan, S.D., March 15, 1977, Audi-NSU Auto Union A.G. v.
Overseas Motor Inc. (U.S. no. 16).
390. 375 Federal Supplement 499 (1974).
Enforcement Award
375
cide over the alleged illegal behaviour of the Panamanian claimant.391The Court of
Appeal rejected the objection. It reasoned that the fact that the claimant might have
been engaged in illegal behaviour was arbitrable. Whilst such question may be subject
to a penal law action, it may also be submitted to arbitrators in the form of an action e x delicto for liability under civil law which action may result in an award of
monetary damages.
In view of the diversity in the Contracting States in regard to the subject matters which are non-arbitrable, it has been suggested that a list of
non-arbitrable subject matters should be drawn up for each State. It has,
furthermore, been suggested that the possibility should be considered
of establishing a generally acceptable list which could eventually be
. ~ ~ ~ suggestions, made some
annexed to a possible new C o n ~ e n t i o n These
time ago, have not been responded to. Indeed, it does not seem advisable
to draw up such a list.
Leaving aside the question whether it is desirable that the New York Convention
be revised by an additional Protocol or the like, it will prove to be difficult to establish a list of non-arbitrable matters for each Contracting State. In many States it is
unclear which matters are non-arbitrable; and in those cases where they can be identified, it is difficult to lay down all the necessary kinds of subtle distinctions for
each case. Moreover, it will not be easy to reduce to writing all cases in which the
distinction between domestic and international public policy could be made. There
is also a danger that States will be tempted to reverse the order by stating which matters are allowed to be arbitrated upon, and to consider as arbitrable only the matters expressly mentioned in the list. This would vitiate instead of improving the
existing situation,393These observations would lead to the conclusion that the adoption of a generally acceptable list is both difficult to attain and undesirable because
of the possibly adverse effect. Moreover, for the time being the establishment of
such a list would not have high priority considering the few cases in which the nonarbitrability of the subject matter has led to a refusal of enforcement under the
Convention.
391. Corte di Appello of Florence, October 22, 1976, S.A. Tradax Export v. S.p.A. Carapes
(Italy no. 18).
392. This suggestion was made by I. Nestor in his Report of 1972 to UNCITRAL, "Problems
concerning the Application and Interpretation of Existing Multilateral Conventions on International Commercial Arbitration and Related Matters", UNCITRALL Yearbook, Vol. I11 (1972)
p. 193 a t p. 244 (UN DOC AlCN.9164 para. 172)..
393, In this sense, A. Chavanne, "Arbitrage et transfert de brevets, savoir-faire, marques de
fabrique et de commerce et autre droits de nature 2 promouvoir la coopBration internationale",
in Schiedsgerichtsbarkeit und gewerblicher Rechtsschutz, Interim Meeting of the International
Council for Commercial Arbitration, Vienna, September 29 - October 1, 1976, Schriftenreihe
der Bundeswirtschaftskammer no. 30 (Vienna 1976) p. 9 at p. 17.
396
111-5.3
Enforcement Award
Other Grounds of Public Policy (Art. V(2) (b))
111-5.3.1 Introduction
Within the system of the Convention, Article V(2) (b), according to
which a court may refuse enforcement on its .own motion if the enforcement would be contrary to its public policy, would appear to be a provision of residual application for those cases not covered by the other
provisions of the Convention. This would especially apply to the due
process provision contained in Article V(l) (b) which can be considered
to form part of public policy. In reality, however, the public policy provision of Article V(2) (b) co-exists with the other provisions. Thus where
according to Article V ( l ) (b) the respondent must prove a violation of
due process, a court may also refuse enforcement of the award on its
own motion if it finds that such ground for refusal is present. The latter
may, for instance, occur if the respondent declines t o participate in the
enforcement proceedings.
The seemingly residual character of Article V(2) (b) has as consequence
that in this study various aspects of it, such as the violation of due process which is covered by the Sub-section concerning Article V ( l ) (b)394
and the question of non-arbitrable subject matters according t o Article
V(2) (a) which was considered in the preceding Section, have already
been dealt with in the context of the other provisions of the Convention.
They will therefore not be repeated in this Section.
It may be recalled that the fact that the parties have the same nationality cannot
be considered as pertaining to public policy under the Convention. This question
was considered in I- 1.2 supra. However, it may also be recalled that the case where
two parties have arbitrated in another country in a purely domestic matter in order to
circumvent mandatory provisions of the law of their country (e.g., tax regulations),
may be regarded as a violation of public policy. This case is not different from the
case where parties of a different nationality have arbitrated abroad and the award
violates mandatory tax laws of the country where enforcement is sought. Such a
case has not occurred in practice under the Convention.
As noted, public policy concerns in essence the fundamental moral

convictions and policies of the forum. These matters vary from country
to country. Moreover, what constitutes a violation of public policy is
largely a question of fact and is to be decided on an ad hoc basis. Although Article V(2) (b) has been frequently invoked, two cases may be
394. See supre 111-4.2 ("Ground b: Violation of Due Process"), especially under the second
question at n. 187-193.
Enforcemen t Award
377
singled out: the lack of impartiality of arbitrators (111-5.3.2) and the

lack of reasons in the award (111-5.3 .3).395
111-5.3.2 Eaclc o f impartiality o f the arbitrator
The lack of impartiality of an arbitrator can also be asserted within
the system of the Convention under Article V(1) (b) concerning the requirements of due process. As the assertion of lack of impartiality is almost alwaysmade on the basis of an alleged violation of Article V(2) (b)
this question is dealt with in this Section.
The impartiality of the arbitrator is a fundamental requirement of
every arbitration. Impartiality of the arbitrator means basically that he
has no personal interest in the case and is independent vis-A-vis the parties.396 The assertion of a lack of impartiality must, however, be made
in good faith. Two cases decided by courts in the United States may illustrate this.
A first example can be found in a decision of the Court of Appeals for the Fifth
The respondent, the United States corporation Baruch Foster, had opposed to an award rendered between it and the Ethiopian Government that the arbitrator, the French professor Reni: David, was disqualified to act as arbitrator since
between 1954 and 1958 he had drafted the Ethiopian Civil Code. Ethiopia had submitted affidavits in opposition in which it appeared that after 1958 Prof. David had
not acted in any capacity for the Ethiopian Government and in which the integrity
and worldwide reputation of Prof. David was attested. The Court of Appeals rejected the contention of Baruch Foster by referring t o Prof. David's integrity and
reputation and by adding that Baruch Foster had failed "to come forward with anything tending t o show that the claim was asserted in good faith and for any reason
other than delay".
A second example can be found in a decision of the District Court in New
Y ~ r k In
. ~this
~ ~
case the respondent had asserted that enforcement of the award
should be refused because one of the arbitrators was the president of a firm that
served as general agents for a shipowning corporation which had pursued a claim
against it in prior arbitration and court proceedings. The Court found that the arbitrator's relationship with the respondent was "far too tenuous . . . to require the
disqualification of an experienced and respected maritime arbitrator, particularly
where [the respondent] offers no challenge to [the arbitrator's] personal integrity".
Whilst clearly affirming this principle in the cases decided under the
Convention, the courts generally distinguish between the case where
395. The other cases involving Art. V(2) (b) dealt with in the context of various other
~rovisionsof the Convention can be found in the Index on Articles of the Convention under
Article V(2) (b).
396. See generally, P. Schlosser, Das Recht der international privaten SchiedsgerichtsbarIceit
(Tiibingen 1975) no. 458 et seq.
,397. U.S. Court of Appeals (5th Cir.), Imperial Ethiopian Government v. Baruch Foster
Corp. (U.S. no. lo).
398. U.S. District Court of New York, S.D., Transmarine Seaways Corp. of Monrovia V .
Marc Rich & Co. A.G. (U.S. no. 30).
378
Enforcement Award
there are circumstances which might have created the lack of impartiality on the part of the arbitrator, and the case where the arbitrator
has effectively not acted in an impartial manner. As a rule it is in the
latter case only where the courts are prepared t o refuse enforcement of
the award. It is needless to add that the former case should be avoided
as much as possible by arbitrators, arbitral institutions, and parties.
Of course, a prerequisite is that the name of the arbitrator is made known to the
parties. If that is not done, a party is deprived of the possibility to investigate
whether the arbitrator lacks impartiality and to challenge him.399
The question of a personal interest in the case may come up especially

in arbitration administered by trade associations. In certain trade associations arbitrators are chosen from a small circle of member merchants
who regularly do business with each other. Another problem for such
arbitrations is the case where a non-member is involved in arbitration administered by the association.
In opposition to a request for enforcement of an award rendered by an arbitral tribunal of the Netherlands Hide and Leather E.xchanges Association, the Swiss respondent contended before the Court of Appeal of Basle that the arbitral tribunal could
not be considered independent because all arbitrators came from the circle of merchants in raw materials, whilst no person representing the leather manufacturing industry (to which the Swiss respondent belonged) had been nominated?OO Rejecting
the objection, the Court observed that the Swiss Supreme Court has been very reluctant to accept the composition of an arbitral tribunal in international commercial
arbitration as a violation of public order (see below). The fact that an arbitrator
belongs to a certain economic group, according to the Court, did not justify considering him beforehand as not being independent. The Court stated that the crucial question is whether in a specific case an arbitrator has been dependent on one
of the parties. The latter had not appeared to be the case for the arbitral tribunal in
question.
The impartiality of arbitral tribunals of the Courts of Arbitration

attached t o the Chambers of Commerce in Eastern European countries
is questioned from time to time. The main complaint is that in many
CMEA countries arbitrators can be chosen solely from a list which is
drawn up in advance by the Chamber of Commerce of the Socialist country concerned and which is composed of nationals of that country
only?O1 A further complaint is that the Chamber of Commerce, which
399. Cf. Oberlandesgericht of Cologne, June 10, 1976 (F.R. Germ. no. 14) discussed supra
at n. 162.
401. See National Reports under Chap. 111.1 ("Qualifications Required for Being an Arbitrator") and under Chap. 111.3 ("Appointment of Arbitrators") in Yearbook Vol. I (1976). See
also D. Pfaff, Die Aussenhandelsschiedsgerichtsbarkeit der socialistischen Lander im Handel
mit der Bundesrepublilc Deutschland (Heidelberg 1973).
Enfircement Award
379
draws up the list, could be controlled by the State and that the Socialist
arbitrators owe allegiance to the State, for which reasons they cannot be
considered independent.
As far as the former complaint is concerned, this situation continues to exist at
present in several CMEA countries in spite of the objections from countries outside
the CMEA world and the promises by the CMEA countries to change this unsatisfactory situation. After the adoption of the European Convention of 1961, to
which all CMEA countries have adhered, and which provides in Article I11 that
"foreign nationals may be designated as arbitrators", one would have expected some
change.
As far as the latter complaint is concerned, all authors from Eastern Europe
stress the independent status of the Chambers of Commerce and their arbitral institutions in respect of the State under the relevant laws, and that their Rules prescribe
expressly that the arbitrators must be absolutely impartial.402
The courts, however, have invariably rejected the allegation that the
constitution and composition of arbitral tribunals in CMEA countries
would constitute in itself a violation of public policy. They point out,
in this case also, that what matters is that in a given case the arbitrators
have not acted in an impartial manner. In deciding so, Swiss courts, in
particular, resort to the distinction between domestic and international
public policy?03 The courts give as an additional justification that the
particular manner of constituting and composing an arbitral tribunal in
Eastern European countries is well ltnown and that the foreign party
submits himself to it with full knowledge thereof.404
Some courts refer in relation to the arbitral tribunals in Eastern European countries
to Article 1(2) of the Convention according to which "The term 'arbitral awards'
shall include not only awards made by arbitrators appointed for each case but also
402. See references given in supra n. 401.

403. Tribunal FBdBral, May 3, 1967, Billerbeck & Cie. v. Bergbau-Handel G.m.b.H. (Switz.
no. 3) concerning an award rendered by the Court of Arbitration attached to Chamber of
Foreign Trade of the German Democratic Republic. The Court referred to its earlier decision
Ligna v. Baumgartner, Arrkts du Tribunal Fdddral Suisse 84 I 39 (195 8) in which the same was
held in respect of an award rendered by the Court of Arbitration attached to the Chamber of
Commerce of Czechoslovakia.
404. E.g., Oberster Gerichtshof, June 11, 1969 (Austria no. 3) concerning an award rendered by the Court of Arbitration attached to the Bulgarian Chamber of Commerce and Industry; Oberlandesgericht of Hamburg, October 14, 1964, affirmed by the Bundesgerichtshof,
March 6, 1969 (F.R. Germ. no. 5 ) concerning an award rendered by the Court of Arbitration
attached to the Chamber of Commerce of Czechoslovakia; Corte di Appello of Rome, September 24, 1973, Intercommr-ce v. Menaguale (Italy no. 9), affirmed by Corte di Cassazione (Sez.
I), April 18, 1978, no. 1842 (Italy no. 25), concerning an award rendered by the Court of
Arbitration attached to the Bulgarian Chamber of Commerce and Industry; President of Rechtbank of Amsterdam, December 14, 1977 (Neth. no. 4) concerning an award rendered by the
Arbitration Commission attached to the Chamber of Commerce and Industry of Romania. In
none of these cases the enforcement of the award was refused.
3 80
Enforcement Award
those made by permanent arbitral bodies t o which the parties have submitted".405
Originally, the U.S.S.R. had proposed to insert a provision t o this effect in the
ECOSOC Draft Convention of 1955, but the Committee deemed such a provision,
in my opinion rightly, unnecessary.406 At the beginning of the New York Conference of 1958, the Czechoslovak delegate took up the U.S.S.R. proposal, arguing
that he did not agree that it was unnecessaiy and that it would tend to strengthen
the Convention and help in avoiding certain difficulties which had been encountered in the past and might arise again in the future?07 An entire session was devoted
to this proposal.408 The crucial question was whether the proposal would include
permanent arbitral tribunals t o which parties were obliged t o submit their disputes
(so-called compulsory arbitration). The Czechoslovak delegate emphasized that his
proposal envisaged voluntary arbitration only. The Conference decided then to add
"to which the parties have voluntarily submitted". Upon instigation of the Drafting
Committee, the word "voluntarily" was subsequently deleted as it was considered
redundant.409
The arbitral tribunal composed of an even number of arbitrators has

not been held to be a violation of public policy under the Convention.
In many countries an uneven number of arbitrators is prescribed mandatorily, inter alia, in order to guarantee the impartiality of the arbitrat o r ( ~ ) In
. these countries it is considered that if the arbitrators are even
in number, they will almost always be appointed by the parties and be
inclined to defend the point of view of the party who nominated him.
This inclination is less likely if there are three arbitrators, one of which
is not appointed by one party alone. Nevertheless, relying expressly or
implicitly on the distinction between domestic and international public
policy, the courts of these countries generally enforce an award made
by two arbitrators in a country where the composition of such arbitral
tribunal is valid, such as England."'
111-5.3.3 Lack of reasons in award
On the question of reasons in the award we may be relatively brief

as it has not led to diverging judicial applications under the Convention.
As is the case for an uneven number of arbitrators, the arbitration
laws of many countries prescribe mandatorily that the award must contain the reasons on which the arbitral decision is based. In these coun405. E.g., Tribunal FBdBral, May 3, 1967, Billerbeck & Cie. v. Bergbau-Handel G.m.b.H.
(Switz. no. 3); Corte di Appello of Rome, September 24, 1973, Intercommerce v. Menaguale
(Italy no. 9), affirmed by the Corte di Cassazione (Sez. I), April 18, 1978, no. 1842 (Italy no.
25).
407. UN DOC ElCONF.26lL.10 and Rev. 1.
409. UN DOC E/CONF.26/SR.23. Art. I(2) is considered superfluous, inter alia, by P.
Sanders, "Commentary", Yearbook Vol. I (1976) p. 207.
410. By implication: Corte di Appello of Venice, May 21, 1976, S.A. Pando Compania
Naviera v. S.a.S. Filmo (Italy no. 16), discussed supra at n. 249.
Enforcenzent Award
381
tries it is considered fundamental that the parties are informed how justice has been done to their case. On the other hand, in several Common
Law countries it is customary not t o give reasons in the award?ll
Here again, whilst making the distinction between domestic and international public policy, the courts of the countries under whose law the
giving of reasons is mandatory generally enforce awards without reasons
made in countries where such awards are valid.412
In this connection Article VIII of the European Convention of 1961413 may be
quoted:
"The parties shall be presumed t o have agreed that reasons shall be given for the
award unless they
(a) either expressly declare that reasons shall not be given; or
(b) have assented t o an arbitral procedure under which it is not customary to give
reasons for awards, provided that in this case neither party requests before the
end of the hearing, or if there has not been a hearing then before the making of
the award, that reasons be given."
It may be argued that the reasons in an award are also unnecessary as

no re-examination of the merits of an arbitral award is allowed under
the C ~ n v e n t i o n .However,
~~~
the requirement of the giving of reasons
should not be seen in this light. The countries in which the giving of reasons in the award is mandatory, impose this requirement as part of the
right of the parties to know how the arbitrator has reached his decision.
The antiquated re-examination of the merits of an arbitral award, on
the other hand, has as purpose to supervise the application of the law by
the arbitrator.
It may be added that, in my opinion, it goes too far, as one Italian
Court of Appeal did, to' state that a violation of public policy must be
appreciated on the basis of the decisional part alone, and not on the basis
of the reasoning.415 If reasons are given, there is the slight chance that
411. See my article "Etude comparative du droit de l'arbitrage commercial dans les pays de
Common Law", 19 Rassegna dellNrbitrato (1979) p. 11 at p. 37. The English practice not to
give reasons for the award has undergone a change because of the English Arbitration Act of
1979 (Sect. l(5)-(6)), see C. Schmitthoff, ' T h e United Kingdom Arbitration Act 1979", in
Yearbook Vol. V (1980) p. 231 at p. 237.
412. E.g., Oberlandesgericht of Hamburg, July 27, 1978 (F.R. Germ. no. 18) concerning an
award made in England; Corte di Appello of Florence, October 22, 1976, S.A. Tradax Export
v. S.p.A. Carapelli (Italy no. 18) again concerning an award made in England; Corte di Appello
of Florence, October 8, 1977, Bobbie Brooks Inc. v. Lanificio Walter Banci S.a.S. (Italy no.
29), affirmed by Corte di Cassazione (Sez. I), April 15, 1980, no. 2448 (Italy no. 40) concerning an award made in the United States.
413. See supra 1-4.4.2.
414. See supra 111-3.2 ("No Review of the Merits of the Arbitral Award").
415. Corte di Appello of Florence, October 8, 1977, Bobbie Broolts Inc, v. Lanificio Walter
Banci S.a.S. (Italy no. 29); the Court found that no violation of public policy had occurred.,
The Corte di Cassazione (Sez. I), April 15, 1980, no. 2448 (Italy no. 40) did not express an
opinion on this aspect of the case.
3 82
Enforcement A ward
they may contain something which is fundamentally in violation of public policy (e.g., approval by the arbitrator of bribes by a party), which is
not apparent in the decisional part of the award. In this case, such
reasoning in the award should be vindicated.
111-5.4
Public policy may be distinguished as domestic and international public policy. This distinction is based on the proposition that what pertains
to public policy in domestic cases is not necessarily t o be regarded as
pertaining t o public policy in international cases. Accordingly, the field
of public policy in international cases may be narrower than in domestic
cases. Pursuant to the notion of international public policy, a violation
of public policy is t o be deemed present in very serious cases only. Article V(2) (a) and (b) can be said t o refer to international public policy
as has been expressly or implicitly affirmed by a substantial number of
courts (pp. 359-368).
Article V(2) (a) according t o which a court may refuse enforcement
of an award on its own motion (ex officio) if the subject matter is not
capable of s e t t l e ~ e n by
t arbitration under its law, is superfluous as it
forms part of the general concept of public policy as provided in Article V(2) (b). The separate mention of the non-arbitrable subject matter in Article V(2) (a) has, however, not produced averse effects in practice (p. 359 and pp. 368-369).
The question of the non-arbitrable subject matter of Article V(2) (a)
is t o be determined under the law of the forum only (p. 369). The
non-arbitrability of a subject matter must concern the claim as dealt
with in the arbitration in its entirety; it is not to be accepted if it is
only of an incidental nature (pp. 374-375).
Article V(2) (b) according t o which a court may refuse enforcement
of an award o n its own motion if the enforcement would be contrary
t o its public policy is not of a residual nature, but coexists with the
other provisions of the Convention, in particular Article V ( l ) (b) concerning due process (p. 3 76).
The lack of impartiality of an arbitrator is, in principle, not t o b e
evaluated on the basis of the circumstances which may have created the
lack of impartiality, but on the basis of the examination whether the
arbitrator has effectively not acted in an impartial manner (pp. 377-380).
The even number of arbitrators is not a ground for refusing enforcement of the award on account of public policy if an arbitral tribunal
composed of an even number of arbitrators is valid in the country in
which, or under the law of which, the award was made (p. 380).
The same applies t o the award without reasons (pp. 380-382).
Summary and Conclusion
1.
Introduction
This study has been concerned with the interpretations given by the
courts in the Contracting States in respect of the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, done at New
York on June 10, 1958. In essence, the Convention covers two fundamental aspects of international commercial arbitration: the enforcement of the arbitration agreement and the enforcement of the arbitral
award.l The main object has been to examine whether a uniform
interpretation for the various provisions of the Convention could be
achieved.
The examination has drawn its inspiration from the lessons of the
past that, whilst international conventions are established to regulate a
certain subject matter in a uniform manner, they are interpreted and
applied differently by the courts in the States Party to them. Nearing
its 25th anniversary, during which period the Convention has found adherence by 56 States, it appears that the New York Convention does
not constitute an exception t o this phenomenon as may be seen from
some 140 cases from 18 Contracting States.
These court decisions are reported in the Yearbook Commercial
Arbitration Volumes I(1976) - VI(1981), and have formed the basic
material of this study. They have been analyzed and compared in respect of the relevant provisions of the Convention. On the basis of this
comparative caselaw method, it has been attempted to formulate an
interpretation which may be workable in current practice and acceptable for the courts in the Contracting States, having regard to their
differing legal systems and concepts of law.
The study has been divided into the three main subject areas where
(the Convention is open to interpretation: the field of application (Chapter I, Arts. I and VII), the enforcement of the arbitration agreement
(Chapter 11, Art. 11), and the enforcement of the arbitral award (Chapter 111, h t s . 111-VI). Each Chapter is sub-divided into two or more
Parts, corresponding to the sub-divisions of the relevant provisions of
the Convention.
1. The Convention refers also to the recognition of arbitration agreements and arbitral
awards. For simplicity's sake, the recognition, which scarcely plays a role in practice, is left
aside. See n. 11.1 and 111-1.4.
384
Summary and Conckwion
At the end of each Part, the uniform interpretations, developed in

that Part, are summarized; it is unnecessary to reiterate them in this
Conclusion. It may suffice to repeat certain significant interpretations
within the framework of a survey of the Convention's provisions.
2.
Arbitral Awards Falling under the Convention
The Convention provides in Article I(1) that it applies to the enforcement of foreign arbitral awards, i.e., arbitral awards made in the territory of another State. This may be limited to awards made in other
Contracting States if the first reservation of Article 1(3) is used.2
The criterion of territoriality is, in fact, the sole criterion for the Convention's field of application in regard t o the award. In particular, it
does not condition its scope upon either the nationality of the parties
or the internationality of the subject matter i n ~ o l v e d .The
~ use of one
clear criterion has probably been the reason why the courts have generally not had difficulties with the Convention's definition of its field of
application for the arbitral award as such.
On the other hand, according to Article I(1), the Convention can also
be applied t o awards which are not considered as domestic awards. This
additional possibility for the Convention's field of application envisages
those awards which are, on the basis of an agreement of the parties,
governed by an arbitration law of a country which is different from the
country in which the award is to be made. It would carry too far to
repeat the inextricable complications to which the application of the
second criterion may lead.4 Presumably, because of these complications, an agreement by which the award is to be governed by an arbitration law which is different from the arbitration law of the country in
which the award is t o be made, virtually never occurs in practice. Correspondingly, the second criterion has not been applied by the courts
hitherto; and, it is submitted, this rather theoretical invention, with
which the Convention could have dispensed, should remain a dead letter.
There exists a difference of opinion amongst the courts whether two
other types of decisions can be enforced under the Convention. The
first type is the so-called "a-national" award which will be considered
hereafter (see no. 10).
The second type of decisions are decisions rendered in procedures
akin to arbitration. These procedures are governed not by a law on arbitration, but by contract law. Examples are the Italian arbitrato irrituale
(as opposed t o the Italian arbitration proper, called arbitrato rituale
2. See 1-1.1.
3. See 1-1.2 and 3 ,
4. See 1-1.5.
385
governed by the law on arbitration contained in the Italian Code of

Civil Procedure) and the Dutch bindend advies (as opposed to arbitration proper, called arbitrage governed by the law on arbitration contained in the Dutch Code of Civil Procedure). For this type of decisions, it is my view that their enforcement cannot take place on the
basis of the Convention, as the Convention must be deemed to apply
only to arbitration proper.'
3.
Arbitration Agreements Falling Under the Convention
The Convention does not define which arbitration agreements can be

enforced under its Article II(3). This lack of a definition, due to the last
minute insertion of Article I1 concerning the arbitration agreement into
the Convention, has troubled the courts to some extent. A possible uniform interpretation may be as follows: if the award is to be made in a
State other than the State in which the agreement is invoked, the Convention applies to the enforcement of the agreement regardless of nationality or subject matter. If the award is to be made within the State
in which the agreement is invoked; the Convention applies to the enforcement of the agreement as soon as one of the parties is foreign or
the subject matter involves international commerce. The second rule of
interpretation applies also if, at the time of enforcement of the agreement, it is not yet known where the award is to be made.6
4.
Retroactive Applicability of the Convention
The Convention is also silent on the question whether it applies

retroactively, which has caused quite diverse judicial interpretations.
However, with the progress of time this is becoming a moot point. The
character of the Convention is mainly procedural; thus a possible uniform interpretation may be that the Convention applies to the enforcement of any arbitration agreement and arbitral award whenever made.7
5.
Non-exclusive Applicability of the Convention
Another aspect of the Convention's applicability is that the Convention is not exclusively applicable once an agreement or award falls
under it. According to Article VII(1) the enforcement of an arbitral
award may also be based on other mulitlateral or bilateral treaties, or
domestic law concerning the enforcement of foreign arbitral awards, if
such basis is more favourable than the Convention.
5 . See 1-1.7.
6 . See 1-2.
7. See 1-3.
386
Summary and ~onclusion
Although the text of Article VII(1) does not refer to the enforcement of the arbitration agreement, the provision can be deemed to apply to this action as we1le8
As far as domestic law is concerned, this basis is usually less favourable than the Convention and, therefore, finds little application in pract i ~ e On.
. ~ the other hand, enforcement on the basis of another multilateral or bilateral treaty may sometimes be more favourable. 1n.regard to
the relationship between the other mulitlateral and bilateral treaties and
the Convention, conflicts can generally be resolved by virtue of the conflict of treaties principle of maximum efficacy, rather than the principles of lex posterior or lex specialis.
The more-favourable-right-provision of Article VII(1) appears to be
somewhat neglected in practice. Although it was inserted in the Convention to provide for enforcement in the largest pocsible number of cases,
it may have the negative effect of hampering the achievement of uniformity in the legal regime governing the enforcement of arbitration
agreements and arbitral awards within the context of international commercial arbitration.
6.
Enforcement of the Arbitration Agreement
The Convention's provisions relating to the enforcement of the arbitration agreement have hitherto not posed major problems of interpretation for the courts, with the exception of Article II(2) relating to the
written form of the arbitration agreement. According to Article II(3),
the court of a Contracting State, when seized of an action in a matter
in respect of which the parties have made an arbitration agreement,
shall, at the request of one of the parties, refer them to arbitration,
unless it finds that the agreement is null and void, inoperative or
incapable of being performed.
Article II(3) gives no discretionary power whether or not to comply
with a request for a stay of court proceedings brought in violation of an
arbitration agreement. The rule that the stay is mandatory has been almost unanimously affirmed by the courts.ll
The condition for the enforcement of the agreement that the arbitration agreement should not be "null and void, inoperative or incapable
o f being performed" has not been frequently applied by the courts. Although the wording is seemingly all-embracing, and could potentially
lead to diverging interpretations, in anticipation of future cases it is submitted that it is to be construed narrowly.12
8. See 1-4.2.
9. See 1-4.3.
10. See 1-4.4.
11. See 11-1.2.3.
12. See 11-1.3.4.
Sunzmary and Concltlsion
387
The phrase in Article II(3) "an agreement within the meaning of this
article" incorporates as conditions for enforcement of the agreement
that
(a) there be a difference in respect of a defined legal relationship
whether contractual or not (Art. II(l)),
(b) that the subject matter be capable of settlement by arbitration
(the question of arbitrability, Art. 11( I)), and
(c) that the agreement be in writing (Art. II(2)).
Conditions (b) and (c) will be discussed under nos. 9 in fine and 7 respectively. As far as condition (a) is concerned, no noticeable difficulties of interpretation have arisen for the courts.13
A particula~.lyworrying development in the United States is that certain courts have held that the Convention precludes the availability of
an attachment before an award is rendered. This view, which is not followed by the courts in the other Contracting States, in my opinion, is
not warranted under the Convention.14
7.
Arbitration Agreement ""IWriting9'
The provision of the Convention which has provoked the most diverse judicial interpretations is the requirement of the written form of
the arbitration agreement as defined by Article II(2) of the Convention.
This provision states that "The term 'agreement in writing' shall include
an arbitral clause in a contract *oran arbitration agreement, signed by
the parties or contained in an exchange of letters or telegrams." The
confusion mainly stems from the Italian courts, although several courts
in other Contracting States have likewise expressed differing views. l 4
With the exception of the Italian Supreme Court, the courts have
underwritten the principle that Article II(2) supersedes the requirements of municipal law regarding the form of the arbitration agreement
in those cases where the agreement falls under the Convention. In other
words, it can be regarded as an internationally uniform rule for the
formal validity of the arbitration agreement.
This means that if an arbitration agreement does not meet the formal
requirements of Article II(2), enforcement cannot be based on the
Convention. In such a case enforcement may be possible, by virtue of
the more-favourable-right-provision of Article VII(l), on the basis of
domestic law or another multilateral or bilateral treaty (see no. 5
above).
The uniform rule character of Article II(2) has as consequence that
neither more nor less than is provided by Article II(2) may be
demanded for the form of the arbitration agreement. Similarly, if an
13. See 11-1.3.2.
14. See 11-1.2.5.
388
Surnnzarj) and Conclusion
arbitration agreement does not comply with Article II(2), the uniform
rule character precludes the possibility of proof of the existence of the
agreement by other means. Both aspects have not encountered difficulties on the judicial level.
On the other hand, the courts differ on the question whether a party
can be deemed to be estopped from invoking non-compliance of the
agreement with Article II(2) in those cases where that party has acted
specifically as if he considers himself bound by the arbitration agreement. In my opinion, the estoppel is to be accepted in this case because of the fundamental principle of good faith.15
Another consequence of the uniform rule character may be that
international arbitrators have to apply Article II(2) of the Convention
as well. In my opinion, an international arbitrator must indeed do
so, sub~ectto the possibility to rely on another basis in virtue of the
more-favourable-right-provision of Article VII(1) of the Convention.16
The question as t o when the requirements of Article II(2) can be
deemed to be met has been given different answers by the courts. This
does not apply so much t o the first alternative of Article II(2), an
arbitral clause contained in a contract or an arbitration agreement
which is signed by the parties. In this case the signatures of the parties
are indispensable. However, in the case of an arbitral clause contained
in a contract, the signatures for the contract as a whole are sufficient;
contrary to what the Italian Supreme Court in certain cases has held,
the signatures need not specifically concern the arbitral clause.17
Uncertainty exists especially in regard to the second alternative of
Article 11(2), the contract including the arbitral clause or the arbitration agreement contained in an exchange of documents. The second
alternative was added by the drafters of the Convention to make allowances for the more modern means of concluding contracts in international trade.
The interpretation advanced in this study is that the second alternative of Article II(2) does not require the signatures of the parties. On
the other hand, the requirement of an exchange means that a written
proposal to arbitrate is made by one party to the other who must return his acceptance t o the former in writing.
Regarding the question when the acceptance in writing can be deemed to have been complied with, it is submitted that the existence of
such acceptance is to be readily assumed. This interpretation may attenuate the fairly demanding requirements of Article II(2) which, in
spite of the efforts of the drafters of the Convention, does not fully
correspond to current practices in international trade.18
15. See 11-2.2.2 and 3.
16. See 11-2.2.4.
17. See 11-2.3.2.
18. See 11-2.3.3 and 4.
389
The question of an arbitral clause in standard conditions has not yet

had extensive judicial review, llotwithstanding the fact that most international transactions are concluded on this basis. To this end, it has
been attempted to develop interpretations independent from municipal
law. l 9
8.
Enforcement of the Arbitral Award
The second aspect of international commercial arbitration as regulated by the Convention, is the enforcement of the award made in another State. The initial provision of the Convention relating to this action is Article III, which essentially concerns the procedure for the enforcement. This provision has generally not provoked differing interpretation~.~~
The same can be said of Article I V which lays down the conditions
t o be fulfilled by the party seeking enforcement of an award, viz., that
he has only to supply the authenticated arbitral award or certified copy
thereof and the arbitration agreement or a certified copy thereof.21
9.
Grounds for Refusal of Enforcement of the Arbitral Award
The main features of the grounds for refusal of enforcement of the

award as embodied by Article V, are likewise interpreted by the courts
in a more or less uniform manner. Accordingly, in general the courts
have affirmed that the grounds listed in paragraph 1 of Article V have
t o be proven by the ,party against whom the enforcement is sought; that
the grounds listed in Article V are limitative, excluding, in particular,
the review of the merits of the award by the enforcement court; and
that they have to be construed narrowly.22
On the other hand, the courts have given differing interpretations in
respect of some of the grounds for refusal of enforcement enumerated
in the first paragraph of Article V.
With regard to ground a concerning the invalidity of the arbitration
agreement, the Italian Supreme Court has held that it does not include
the requirements for the form of the agreement as contained in the uniform provisions of Article II(2), but that the formal validity is to be
judged under the applicable law. In my opinion, other courts have been
correct in not sharing the view that Article II(2) applies only in the action for the enforcement of the arbitration agreement, and, according-
19. See 11-2.4.3.

20. See 111-1.
21. See 111-2.
22. See 111-3.
390
Sunzmilry and Conclusion
ly, have applied Article II(2) in the action for the enforcement of the
arbitral award as
Although ground b has frequently been invoked by respondents, the
courts have rarely held that the requirements of due process have been
violated. There exists an almost uniform interpretation - corresponding
to the "pro-enforcement bias" of the Convention - that a violation of
due process is to be accepted in serious cases 0 n 1 y ~ ~ ~
Ground c concerning the award made by the arbitrator in excess of
his authority (extra or ultra petita) has scarcely been applied in practice. This ground does not seem to pose problems of interpretation,
except for the question of an award which does not dispose of all questions submitted to the arbitrator's decision (inpa petita), a case not envisaged by the text of ground c. 25
According t o ground d, enforcement may be refused if the composition of the arbitral tribunal 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. The meaning of this ground for refusal of enforcement is
not readily understood. In this study the interpretation is advanced that
ground d implies that a court may not verify the regularity of the
composition of the arbitral tribunal or the arbitral procedure under the
law applicable to the arbitration in those cases where the parties have
made an agreement on these matters, subject, however, to the overriding fundamental principles of due process.26 On the other hand, ground
d cannot, in my opinion, be taken as basis for the so-called "de-nationalized" arbitration and its companion "a-national9' award (see no. 10
hereafter).
Ground e contains, in fact, two grounds for refusal of enforcement. The first ground is that the award has not yet become binding
on the parties. Whilst the courts generally agree that this term does
not imply that a leave for enforcement (exequatur or the like) need be
obtained in the country in which the award is made, they differ in particular as t o at which moment the award is to be considered as having
become binding. Most of them make inquiries to this effect under the
law governing the award. In my opinion, an interpretation independent
from municipal law can be made. Pursuant to this autonomous interpretation, an award becomes binding once its merits can no longer be reviewed by a court or a second arbitral instance.27
23.
24.
25.
26.
27.
See 111-4.1.3.3.
See 111-4.2.
See 111-4.3.
See 111-4.4.
See 111-4.5.2.
391
The second ground for refusal of enforcement provided by ground e

is that the award has been set aside or suspended in the country of
origin. This ground has not given rise to many court decisions.28 Yet,
the possible effect of this ground for refusal of enforcement may be
that the grounds for refusal of the Convention may indirectly be
extended to include all kinds of particularities of the arbitration law of
the country of origin, as in that country the award can be set aside on
all grounds contained in its arbitration law.29 In this connection it may
be added that Article VI gives a court the discretion to adjourn its
decision on enforcement if an action for setting aside or suspension has
been initiated in the country of origin. This provision has rarely been
applied by the courts, but seems to be u n a m b i g ~ o u s . ~ ~
The grounds mentioned in the second paragraph of Article V, for
which a court may refuse enforcement on its own motion, concern the
question whether the subject matter is capable of settlement by arbitration (i.e., the question of arbitrability (grounda, see also Art. II(1)), and
public policy (ground 6 ) . Although ground a concerning arbitrability
is listed as a separate ground, it must be deemed superfluous since the
question of arbitrability is generally conceived as forming part of public
policy.31
Notwithstanding the fact that these provisions, in particular, could
enable courts to take away a great deal of the Convention's effectiveness, the courts have construed these provisions narrowly, as well. To
this end, the use of the distinction between the notions of domestic
public policy and the narrower international public policy is increasingly gaining acceptance. It can be said that, particularly in respect of
Article V(2), the courts have generally exhibited a favourable attitude
towards the C ~ n v e n t i o n . ~ ~
10. AppGcablle Law
The Convention contains several conflict of laws provisions for
determining the applicable law. According to Article V(l)(a) the arbitration agreement is governed by the law to which the parties have subjected the agreement, or, failing any indication thereon, the law of the
country where the award was made. As'mentioned before, Article V(1)
(d) provides that, only in the absence of an agreement of the parties in
respect of the composition of the arbitral tribunal or the arbitral procedure, is the law of the country where the arbitration took place t o be
applied. And, according to Article V(l)(e), the arbitral award is govern28. See 111-4.5.3.1 and 2.
29. See 111-4.5.3.4.
30. See 111-4.5.3.3.
31. See 111-5.2.
3 2 . See 111-5.1 and 3.
392
Summary a72d Conclusion
ed by the law of the country in which, or under the law of which, the
award was made.33
These provisions have been dealt with extensively in the literature
from the point of view of party autonomy. In particular, they would
allow the parties to provide for the applicability of an arbitration law
which is different from the law of the place of arbitration (i.e., the
country where the award is, or is to be, made). This faculty corresponds
with the afore-mentioned second criterion of the Convention's field of
application (see no. 2 above). Although this faculty theoretically can be
used pursuant to the Convention, in practice it has appeared that the arbitration agreement and the arbitral award have almost always been
found t o be governed by the law of the country where the award is, or
is to be, made.
It has been argued that Article V(l)(d) would even allow a complete
party autonomy in the sense that the parties are permitted t o "de-nationalize" the arbitration from the applicability of any national arbitration. In my view, the Convention does not provide a legal basis for the
"de-nationalized9' arbitration since the Convention's provisions, notably
Article V(l )(a) and (e), presuppose that arbitration is governed by a national arbitration law. Consequently, the so-called "a-national9' award
resulting from such arbitration cannot be enforced under the Convent i ~ n . ~ ~
Whatever may be, a general practice has been developed on the issue
of the applicable arbitration law, viz., that the arbitration agreement,
arbitral procedure and arbitral award are normally governed by one and
the same law, which is the law of the country where the award is, or is
t o be, made. Of course, the national arbitration law does not apply to
those elements for which the Convention provides uniform rules (e.g.,
Art. II(2) concerning the written form of the arbitration agreement).
It is true that this general practice may not be ideal in view of the
sometimes fortuitous character of the place of arbitration and the
sometimes parochial particularities of national arbitration laws. Nevertheless, for the time being, the clear rule of the applicability of the law
of the place of arbitration is, failing a better solution, to be preferred
over the other possibilities which may involve complex legal problems
and create an undesirable degree of uncertainty, It means, in fact, that
one should be aware of choosing a country which is favourable to arbitration.
33. See 111-4.1.3.4 and 5,111-4.4.2

34. See 1-1.6.
and 111-4.5.3.
393
1 1. 1s a Revision of the Convention Needed?

The survey of the Convention's provisions and judicial interpretations, as given under nos. 2-10 above, is, of course, of a very genera1
nature and does not mention the many detailed points examined in this
study, which are subject to differing interpretations or which are
susceptible to different interpretations. Yet, it may be said that the
court decisions on the Convention reported so far show that, as a rule,
the courts interpret and apply the Convention in a manner which is
well-disposed towards international commercial arbitration.
The differences in judicial interpretations are not such that they
seriously hamper the Convention's effectiveness. This is remarkable if
one considers the system and text of the Convention itself. The Convention's system is not readily accessible to one who reads it for the
first time: it starts with a definition of its field of application in respect
of the arbitral award. It then mentions in Article I1 the arbitration
agreement, including a rather "hidden" provision in the third paragraph
- not announced in the title of the Convention - concerning the enforcement of the arbitration agreement, without specifying the field of
application in this respect. Ht contains subsequent provisions concerning
the procedure and conditions for the enforcement of the arbitral
award (Arts, III-V%).And finally, it contains a more-favourable-rightprovision (Art. VII(1)) which, by implication, must be deemed also to
apply t o the enforcement of the arbitration agreement. Furthermore,
several provisions are rather ambiguous or not readily understandable
(e.g., Art. %(I),second criterion, Art. II(2) and Art. V( l)(d)).
This brings us t o the final question: does the Convention need to be
revised with the purpose of clarifying its text by means of an additional
Protocol or the like? As observed in the Introduction, the opinion has
been expressed, in particular by the Asian-African Legal Consultative
Committee (AALCC), that such a revision may be desirable.
Having regard to the examination in this study of the approximately
140 reported court decisions from 18 Contracting States in which the
Convention has been interpreted and applied so far, the difficulties are,
in my opinion, not of such a magnitude that a revision is needed for the
time being. The only provision which might qualify for a revision would
be Article H(2) relating to the written form of the arbitration agreement because, as mentioned, to a certain extent it is no longer in accordance with the practices of current international commerce. But for
this provision also, it has been concluded that the process of establishing an additional Protocol or the like is not worth the price of a new
text .35
35. See 11-2.6.
394
The process of adoption and implementation of an additional Protocol is time-consuming and may lead to complex situations. Assuming
that a better text than the present one can be established, it will take
time before the Protocol will be adopted by all States which are
presently Party to the Convention. In the interval uncertainty may
exist. This situation may even continue if States do not deem it necesary t o adhere to the new Protocol. In addition, however better the
new text may be, even the new Protocol will require time before a more
or less uniform judicial interpretation can be achieved.36
12. Model Uiliforan Law on International Commercial Arbibation
The question whether the Convention needs to be revised is to be distinguished from the question of a uniform law on arbitration. The Convention's field of application is limited to the enforcement of arbitration agreements within its purview and of foreign arbitral awards. It
does not give an all-embracing regulation of international commercial
arbitration. For example, it does not apply to the action for the setting
aside of awards, international as they may be, which action is left to the
arbitration law of the country of origin.37 In view of the differences in
national arbitration laws, it may be desirable to establish a uniform law
on arbitration, at least as far as international commercial arbitration is
concerned. The efforts to establish a uniform law by means of an international convention, however, have proven to be difficult. The disappointing experience of the European Uniform Law of 1966 is an example of this.38 A more realistic approach would seem to be to prepare a
model uniform law which can serve as basis for adapting national arbitration laws. Within this perspective, the United Nations Commission
on International Trade Law (UNCITRAL), at its twelfth session in
June 1979, has talcen the decision to prepare such a model law which, 1
hope, will materialize within the not too distant future.39
36. The conclusion that the Convention, despite some deficiencies, has satisfactorily met the
general purpose for which it was adopted and that it would therefore be inadvasible to amend
its provisions or prepare a Protocol, at least for the time being, is also reached by the SecretaryGeneral of UNCITRAL in his report Shldy on the Application and Interpretation of the Convention on the Reco~nitionand En forcement of Foreign Arbitral Awards (New Yorl; 1 958),
UN DOC AICN.91168 (April 1979).
37. See 1-1.4.2.
38. The Uniform Law is attached to the European Convention on Arbitration, done at
Strasbourg on January 20, 1966, European Treaty Series No. 56. The Convention has been
signed only by Austria and Belgium. Belgium has also deposited the instrument of ratification
on February 22, 1973, and has implemented the Uniform Law by a Law of July 4, 1972,
Moniteur belge of August 8, 1972.
39. "Report of the United Nations Commission on International Trade Law on the Work of
Its Twelfth Session", Official Records o f the General Assembly, Thirty-fourth Session, Supplement No. 17, UN DOC A/34/17, para. 81 (1979). See also the note by the Secretariat of
395
13. Unification of Judicial Interpretation

The conclusion being that, at present, the New Yorlc Convention
does not need a revision for clarifying its text by means of an additional
Protocol or the lilte, but that the preparation of a model uniform law
for international commercial arbitration is desirable, efforts should be
continued to harmonize the judicial interpretations of the Convention
with the object of arriving at a uniform interpretation. This requires
that the judicial interpretations should continue to be monitored on a
worldwide basis.
The reporting of court decisions on the Convention in the Yearbook
Commercial Arbitration as of its first Volume in 1976, as well as the reporting and surveys in various other places, are invaluable aids to this
aim. The effectiveness of the Convention for international commercial
arbitration can continue and improve only if the judicial interpretations
converge.
I hope that the analyses and comparisons of the judicial interpretations during the almost 25 years of the Convention's existence, as well
as the suggestions for uniform interpretations in this study, may be a
modest contribution to this end.
UNCITRAL entitled "Progress Report on the Preparation of a Model Law on Arbitral Procedure", UN DOC A/CN.9/190 (1980).
Annexes
mNEx A
TEXT OF THE CONVENTION
The text of the Convention is published in 330 United Nations Treaty Series, p.
38, no. 4939 (1959).
Because of technical difficulties in reproduction, the equally authentic Chinese
andRussian texts of the Convention as mentioned in Article XVI(1) have not been
included.
Convention on the Recognition and Enforcement of Foreign Arbitrd Awards, New
York, June 10,1958
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 tenitony 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 we considered as commercial under the national law of the State
making such declaration.
Article 46
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 wsiting" 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 meming of this
398
Annex A
article, shall *, at the request of one of the parties, refer the paxties to arbitration,
unless if finds that the said agreement is null and void, inoperative or incapable of
being pesformed.
Article 611
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.
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 I1 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 releid 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.
1. Recognition and enforcement of the award may be refused, at the request of

the party against whom it is invoked, only if that pasty furnishes to the competent
authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article I1 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
" T h e word "shall" has been left out in the text of Article II(3) of the Convention as published in 330 United Nations Treaty Series (1959) p. 38 at p. 39. The omission must be considered as a printing error as the Final Act of the New York Conference of 1958 includes the
word "shall" (UN DOC EICONF. 26/8/Rev. 1 and E/CONF.26/9/Rev. 1, p. 9).
Annex A
399
(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 asbitral awasd 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 asbitsation under the law of that country; or
( b ) The recognition or enforcement of the awasd 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(l)(e), the authority before which
the awasd 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 pasty to give suitable
secu~<ty.
Article V I .
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
pasty 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 wit11 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, declase 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.
400
Annex A
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 Secreta~y-Generalof 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 tel~itoliesto 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 bsing 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 P a t y to this Convention sl~all,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 thisd 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 of such State of its instrument of ratification or accession.
Article XIId
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 y e a after the date of the receipt of the notification by the Secretary-General.
3. This Convention s h d continue to be applicable to arbitral awards in respect
of which recognition or enforcement proceedings have been instituted before the
denunciation talces effect.
A Contracting State shall not be entitled to avail itself of the present Convention
Annex A
401
.gainst other Contracting States except to the extent that it is itself bound to apply
he Convention.
Article X V
The Secretary-General of the United Nations shall notify the Sta-tes contemdated in article VIII of the following:
Signatures and ratifications in accordance with article VIII;
(a)
Accessions
in accordance with article IX;
(b)
Declarations
and notifications under articles I, X and XI;
(c)
The
date
upon
which this Convention enters into force in accordance with
(d)
sticle XII;
Denunciations and notifications in accordance with article XIII.
(e)
Article X VI
1. This Convention, of which the Chinese, English, French, Russian and Spanish
exts shall be equally authentic, shall be deposited in the archives of the United Naions.
2. The Secretary-General of the United Nations shall transmit a certified copy of
his Convention to the States contemplated in article VIII.
Ionvention pour la reconnaissance et %'ex6cution des sentelnces arbitrales j?txm!&re,,New Ysrk, le 10 juin 6958
Article I
1. La pr6sente Convention s'applique 2t la reconnaissance et h 19ex6cutiondes senences arbitrales rendues sur le territoire d'un Etat autre que celui oh la reconnaisance et 19ex6cutiondes sentences sont dernand6es9et issues de differends entre peronnes physiques ou morales. Elle s'applique egalernent aux sentences arbitrdes qui
le sont pas consid6r6es comme sentences nationdes dans 19Etatoil leur reconnaisance et leur execution sont demandees.
2. On entend par "sentences arbitrales" non seulernent les sentences rendues par
es arbitres nomm6s pour des cas d6termin6sI mais 6galement celles qui sont renues par des organes d'arbitrage permanents auxquels les parties se sont soumises.
3. Au moment de signer ou de ratifier la pr6sente Convention, d'y adh6rer ou de
aire la notification d'extension pr6vue i l'article X, tout Etat pouna, sur la base de
n r6ciprocit6, declarer qu'il appliquera la Convention i la reconnaissance et A l'ex6ution des seules sentences rendues sur le territoire d'un autre Etat contractant. I1
~ourra6galement declarer qu'il appliquera la ~onventiofiuniquement aux diff6ends issus de rapports de droit, contractuels ou non contractuels, qui sont consil6r6s cornme commerciaux par sa loi nationale.
Article 11
1. Chacun des Etats contractants reconndt la convention 6crite par laquelle les
,axties s'obligent h sournettre i un arbitrage tous les diff6rends ou certains des
iff6rends qui se sont Blevbs ou pourraient s961everentre elles au sujee d9unrapport
.e droit d6temin6, contractuel ou non contractuel, portant sur une question suseptible dy6trer6gl6e par voie d'arbitrage.
2. On entend par "convention 6crite" une clause cornpromissoire ins6~6edans un
ontrat, ou un compromis, sign6s par 1es parties ou contenus dans un &changede
:ttres ou de t616grammes.
402
Annex A
3 . Le tribunal d'un Etat contractant, saisi d9unlitige sur une question au sujet de
laquelle les parties ont conclu une convention au sens du present article, renverra les
pasties B l'arbitrage, B la demande de 19une d9elles, B moins qu'il ne constate que
ladite convention est caduque, inoperante ou non susceptible d'stre appliqu6e.
Article 11.
Chacun des Etats contractants r e c o n n ~ t r a19autorit6d'une sentence asbitrale et
accordera 19ex6cution de cette sentence conform6ment aux regles de proc6dure
suivies dans le ten-itoise oh la sentence est invoquhe, aux conditions 6tablies dans les
articles suivants. I1 ne sera pas impos6, pour la reconnaissance ou 19ex6cutiondes
sentences arbitsales auxquelles s'applique la pr6sente Convention, de conditions sensiblement plus rigoureuses, ni de frais de justice sensiblement plus 6lev6s, que ceux
qui sont impods pour la reconnaissance ou l'ex6cution des sentences asbitrales nationales.
Article IV
1. Pour obtenir la reconnaissance et 19ex6cutionviskes B l'article prbckdent, la

partie qui demande la reconnaissance et 19ex6cutiondoit fournis, en mBme temps
que la demande:
(a) L90riginaldament authentifi6 de la sentence ou une copie de cet original
r6unbsant les conditions requises pour son autlzenticit6;
( b ) L'original de la convention vis6e B l'article II, ou une copie r6unissant les conditions requises pour son authenticit6.
2. Si ladite sentence ou ladite convention n'est pas r6dig6e dans une langue
officielle du pays oh la sentence est invoqu6e, la partie qui demande la reconnaissance et 19ex6cutionde la sentence aura B produire une traduction de ces pieces dans
cette langue. La traduction devra Btre certifi6e par un lraducteur offidel ou un traducteur jur6 ou par un agent diplomatique ou consulaire.
Article V
I. La reconnaissance et 19ex6cutionde la sentence ne seront refus6esYsur requBte
de la partie contre laquelle elle est invoquhe, que si cette partie fournit B l'autorite
compbtente du pays oh la recomaissance et 17ex6cutionsont demandees, la preuve:
(a) Que les parties B la convention vis6e B l'article 11 6taient, en vertu de la loi 21.
elles applicable, frappees d'une incapacite, ou que ladite convention n'est pas
valable en vertu de la loi A laquelle les pasties l'ont subordonn6e ou, h d6faut d'une
indication B cet Bgard, en vertu de la loi du pays oh la sentence a 6th rendue; ou
(b) Que la partie contre laquelle la sentence est invoquee n'a pas kt6 dQment
informke de la designation de l'asbitre ou de la proc6dure d'arbitrage, ou qu'il lui a
6t6 impossible, pour une autre raison, de faise valoir ses moyens; ou
(c) Que la sentence porte sur un differend non visb dans le compromis ou n'entrant pas dans les pr6visions de la clause compromissoire, ou qu9elle contient des
decisions qui d6passent les termes du compromis ou de la clause coinpromissoire;
toutefois, si les dispositions de la sentence qui ont trait B des questions soumises B
l'arbitrage peuvent Btre dissoci6es de celles qui ont trait B des questions non soumises B l'arbitrage, les premieres pourront Btre reconnues et ex6cut6es; ou
( d ) Que la constitution du tribunal arbitral ou la proc6dure d'asbitrage n'a pas
6t6 conforme B la convention des parties, ou, B d6faut de convention, qu9ellen'a pas
6t6 conforme h la loi du pays oh 19arbitragea eu lieu; ou
(e) Que la sentence n9est pas encore devenue obligatoire pour les parties ou a 6t6
annul6e ou suspendue par une autorite comp6tente du pays dans lequel, ou. d9apr&s
la loi duquel, la sentence a 6t6 rendue.
Annex A
403
2. La reconnaissance et 19ex6cutiond'une sentence arbitrale pourronl aussi etre

refusees si 19autorit6 compktente du pays oil la reconnaissance et l'exkcution sont
requises constate:
(a) Que, d9apr&sla loi de ce pays, 190bjetd1. differend n9estpas susceptible d96tre
reg16 par voie d'arbitrage; ou
(b) Que la reconnsaissance ou 19ex6cutionde la sentence serait contraire A 190rdre
public de ce pays.
Article Vl
Si 19annulationou la suspension de la sentence est demand& A 19autorit6comp6tente vis6e A l'article V, paragraphe 1, e, 19autorit6 devant qui la sentence est invoquee peut, si elle 19esthe appropri6, surseoir A statues sur 19ex6cution de la -sentence; elle peut aussi, A la requete de la partie qui demande 19ex6cutionde la sentence, ordonner A 19autrepartie de foumir des sQret6sconvena.bles.
Article VII
1. Ees dispositions de la presente Convention ne portent pas atteinte A la validit6
des accords multilat6raux ou bilat6raux conclus par les Etats contractants en mati&rede reconnaissance et d9ex6cution de sentences asbitrales et ne privent aucune
partie int6ress6e du droit qu'elle pourrait avoir de se pr6valoir d9unesentence arbitrale de la maniQre et dans la mesure admises par la legislation ou les traitbs du pays
OG la sentence est invoqu6e.
2. Le Protocole de Genbve de 1923 relatif aux clauses d9aabitrage et la Convention de Genhve de 1927 pour l'ex6cution des sentences arbitrales Btranghres
cesseront de produire leurs effets entre les Etats contractants du jour, et dans la mesure, 06 ceux-ci deviendront lies par la presente Convention.
Article VIII
1. La presente Convention est ouverte jusqu'au 3 1 decembre 1958 A la signature
de tout Etat Membre des Nations Unies, ainsi que de tout autre Etat qui est, ou
deviendra paa la suite, membre d'une ou plusieurs institutions sp6cialises des Nations Unies ou partie au Statut de la Cour intesnationale de Justice, ou qui aura 6tB
invite par 19Assemb16eg6nBrale des Nations Unies.
2. La presente Convention doit &re ratifiee et 1es instruments de ratification d6poses auprhs du Secrbtaire g6n6ral ale l9Organisation des Nations Unies.
Article IX
1. Tous les Etats vises Q l'article VIII peuvent adh6rer A la presente Convention.
2. L'adhesion se fera par d6pbt d'un instrument d7adh6sionauprhs du Secr&t&e
g6n6ral de 1'Organisation des Nations Unies.
Article X
1. Tout Etat poursa, au moment de la signature, de la ratification ou de l9adh6sion, declarer que la presente Convention s76tendraQ l'ensemble des territoires qu9il
represente sur le plan international, ou Q l'un ou plusieurs d'entre eux. Cette d6claration produisa ses effets au moment de 19entr6een vigueur de la Convention pour
ledit Etat.
2. Par la suite, toute extension de cette nature se fera par notification adressbe
au Secrktaire general de 190rgmisation des Nations Unies et produisa ses effets A
partip. du quatre-vingt-dixihe jour qui suivra la date B laqueue le Secretzaire g6n6ral
404
Annex A
de lYOrganisationdes Nations Unies aura requ la notification, ou d la date d'entree

en vigueur de la Convention pow: ledit Etat si cette derniere date est posteriewe.
3 . En ce qui conceme les territoires auxquels la presente Convention ne s9applique pas & la dateide la signature, de la ratification ou de l'adhesion, chaque Etat
int6ress6 examinera la possibilit6 de prendre les mesures voulues pour 6tendre la
Convention B ces territoires, sous reserve le cas 6chBant, lorsque des motifs constitutiomels l'exigeront, de l'assenthent des gouvernements de ces tei~itoires.
Article XI
Les dispositions ci-apses s'appliqueront aux Etats f6dhratifs ou non unitaires:

(a) En ce qui concerne les articles de la ps6sente Convention qui relevent de la
competence legislative du pouvoir f6dBra19les obligations du gouvemement federal
seront les mgmes que celles des Etats contractants qui ne sont pas des Etats federatifs;
(b) En ce qui conceme les articles de la prBsente Convention qui relevent de la
competence legislative de chacun des Etats ou provinces constituants, qui ne sont
pas, en vertu du systhme constitutionnel de la f6deration, tenus de prendre des
meswes legislatives, le gouvemement fed6ral portera le plus tat possible, et avec
son avis favorable, lesdits articles 21 la connaissance des autorites competentes des
Etats ou provinces constituants;
(c) Un Etat fedbratif Partie B la pr6sente Convention communiquera, B la demande de tout autre Etat contractant qui lui aura 61-6 transmise par I'intesm6diaire
du Secretaire gen6ral de 130sganisation des Nations Unies, un expose de la legislation et des pratiques en vigueur dans la f6dbration et ses unites constituantes, en ce
qui conceme telle ou telle disposition de la Convention, indiquant la mesure dans
laquelle effet a 6t6 donne, par une action legislative ou autre, 2I ladite disposition.
Article XI1
1. La presente Convention entrera en vigueur le quatre-vingt-dlixi&mejour qui

suima la date du dbp8t du troisieme instrument de ratification ou d'adhesion.
2. Pour chacun des Etats qui ratifieront la Convention ou y adhereront apres 1e
dBp6t du troisihme instrument de ratification ou d'adhesion, elle entrera en vigueur
le quatre-vingt-dixi6me jour qui suivra la date du d6p6t par cet Etat de son instmment de ratification ou d'adhesion.
Article XI11
1. Tout Etat contractant poun-a dbnoncer la prbsente Convention pas notification bcrite adressee au Secretaire general de l'osganisation des Nations Unies. La dBnonciation p~endraeffect un an apses la date oG le Secretairs gkneral de l'organisation des Nations Unies aura requ la notification.
2. Tout Etat qui aura fait une declaration ou une notification conformement A
l'article X pobura notifier ult6rieurement au SecrBtaire gBn6ral de I'Orgaraisation des
Nations Udes que la Convention cessera de s'appliques au teiritoise en question un
.anapses la date B laquelle le Secrktaire gBn6ral aura r e p cette notification.
3. La presente Convention demeurera applicable aux sentences arbitsales au sujet
desquelles une procedure de reconnaissance ou d'exkcution aura kt6 entamhe avant
l'entrbe en vigueur de la denonciation,
Un Etat ,contractant ne peut se redarner des dispositions de la presente Convention contre d'autres Etats contractants que dans la mesuse oh il est lui-m6rne tenu
d'appliquer cette convention.
Annex A
405
Article X V
La Secrbtaise general de 190rganisation des Nations Unies notifiera h tous les
Etats vises 6 l'article VIII:
Les signatures et ratifications vis6es h l'article VIII;
(a)
( b ) Les adhksions visees 6 l'article IX;
Les d6clarations el notifications viskes aux articles premier, X et XI;
(c)
( d ) La date oG la pr6sente Convention entrera en vigueur, en application de
l'asticle XII;
Les d6nonciations et notifications vis6es 6 l'article XIII.
(e)
Article XV6
1. La presente Convention, dont les textes anglais, chinois, espagnol, franqais et
russe font 6galement foi, sera depos6e dans les archives de l'organisation des
Nations Unies.
2. Le Secrktaire g6n6ral de 190rganisation des Nations Unies remettra une copie
cestifi6e conforme de la pr6sente convention aux Etats vis6s 6 192bl-ticleVIII.
Comvemci6n sobre el reconochiento y ejecud6n de %assemtencias arrbibales extranjeras, Nueva York, el 110 de jumio de 1958
1. La presente Convencibn se aplicari al reconocimiento y la ejecucibn de las

sentencias arbitrales dictadas en el territorio de un Estado distinto de aquel en que
se pide el reconocimiento y la ejecucibn de dichas sentencias, y que tengan su
origen en diferencias entre personas naturales o jurfdicas. Se aplicasi tambien a las
sentencias arbitrales que no sean consideradas como sentencias nacionales en el
Estado en el que se pide su reconocimiento y ejecucibn.
2. La expresibn "sentencia asbitral" no sblo comprenderi las sentencias dictadas
por 10s icrbitros nombrados para casos determinados, sino tambi6n las sentencias
dictadas por 10s brganos arbitrales permanentes a 10s que las pastes se hayan
sometido.
3 . En el momento de firmar o de ratificar la presente Convencibn, de adherirse a
ella o de hacer la notificacibn de su extensi6n prevista en el asticulo X, todo Estado
podr6, a base de reciprocidad, declarar que aplicar5 la presente Convencibn al
reconocimiento y a la ejecucibn de las sentencias arbitrales dictadas en el tel-ritorio
de otro Estado Contratante Gnicamente. Podri tambi6n declarar que sblo aplicari la
Convenci6n a 10s litigios surgidos de relaciones juridicas, sean o no contractuales,
consideradas comerciales por su derecho interno.
1. Cada uno de 10s Estados Contratantes reconocer8 el acuerdo por esc~itoconforme a1 cual las partes se obbiguen a someter a asbitraje todas las diferencias 0
ciertas diferencias que hayan surgido o puedan surgir entre ellas respecto a una
deterrninada relacibn juridica, contractual o no contractual, concerniente a un
asmto que pueda ser resuelto por arbitraje.
2. La expresibn "acuerdo por escsito" denotar6 una cliusula compromisoria incluida en un contrato o un compromiso, firmados por las partes o contenidos en un
canje de car'cas o telegramas.
3. El tribunal de uno de 10s Estados Contratantes al que se someta un litigio
respecto del cual las partes hayan concluido un acuerdo en el sentido del presente
406
Annex A
articulo, remitis6 a las parl-es a1 arbitraje, a instancia de una de ellas, a menos que
cornpsuebe que dicho acuerdo es nulo, ineficaz o inaplicable.
Arficulo PI1
Cada uno de 10s Estados Contratantes reconocerh la autoridad de la sentencia
arbitral y conceder6 su ejecuci6n de conformidad con las normas de procedimiento
vigentes en el territorio domde la sentencia sea invocada, con asseglo a las condiciones que se establecen en 10s asticulos siguientes. Para el reconocimiento o la
ejecucibn de las sentencias arbitrales a que se aplica la presente Convenci6n, no se
impondrin condiciones apreciablemente miis rigurosas, ni honorarios o costas m6s
elevados, que 10s aplicables a1 reconocimiento o a la ejecuci6n de las sentencias
arbitrales nacionales.
1. Para obtener el reconocimiento y la ejecuci6n previstos en el asticulo anterior,

la parte que pida el reconocimiento y la ejecuci6n deber6 presentas, junto con la
demanda:
(a) El original debidamente autenticado de la sentencia o una copia de ese original que r e h a las condiciones requeridas para su autenticidad;
(b) El original del acuerdo a que se refiere el articulo 11, o una copia que refina
las condiciones requeridas para su autenticidad.
2. Si esa sentencia o ese acuerdo no estuvieran en un idioma oficial del pais en
que se invoca la sentencia, la parte que pida el reconocimiento y la ejecuci6n de esta
bltima deberri presentar una traducci6n a ese idioma de dichos documentos. La eraducci6n deberi ser certificada por un traductor oficial o un traductor jurado, o por
un agente diplomdtico o consular.
Articulo V
1. Sblo se podri denegar el reconocimiento y la ejecuci6n de la sentencia, a instancia de la parke contra la cud es invocada, si esta parke prueba ante la autoridad
competente del pais en que se pide el reconocimiento y la ejecucibn:
(a) Que las partes en el acuerdo a que se refiere el articulo I1 estaban sujetas a
alguna incapacidad en virtud de la ley que le es aplicable o que dicho acuerdo no es
vdlido en virtud de la ley a que las partes lo han sometido, o si nada se hubiera
indicado a este respecto, en virtud de la ley del pais en que se haya dictado la sentencia; o
(b) Que la parte contra la cual se invoca la sentencia arbitral no ha sido debidamente notificada de la designaci6n del hrbitro o del procedimiento de arbitraje o no
ha podido, por cualquier otra razbn, hacer valer sus medios de defensa; o
( c ) Que la sentencia se refiere a una diferencia no prevista en el compromiso o no
comprendida en las disposiciones de la clriusula compromisoria, o contiene decisiones que exceden de 10s tkminos del compromiso o de la clriusula compromisoria;
no obstante, si las disposiciones de la sentencia que se refieren a las cuestiones
sometidas al arbitraje pueden sepasarse de las que no han sido sometidas al arbitraje,
se podri das reconocimiento y ejecuci6n a las primeras; o
(d) Que la csnstitucibn del tribunal arbitral o el procedimiento asbitral no se han
ajustado a1 acuerdo celebrado entre las partes o, en defect0 de tal acuerdo, que la
constituci6n del tribunal arbitral o el procedimiento arbitral no se han ajustado a la
ley del p d s donde se ha efectuado el arbitraje; o
( e ) Que la sentencia no es aian obligatoria para las partes o ha sido anulada o suspendida por una autoridad competente del pds en que, o conforme a cuya ley, ha
sido dictada esa sentencia.
Annex A
4-07
2. Tambihn se pods6 denegar el reconocimiento y la ejecucibn de una sentencia

asbitral si la autoridad competente del pais en que se pide el reconocimiento y la
ejecucibn, comprueba:
(a) Que, seglian la ley de ese pais, el objeto de la diferencia no es susceptible de
soluci6n por via de arbitraje; o
(b) Que el reconocimiento o la ejecuci6n de, la sentencia serian contrarios al
orden ptlblico de ese pais.
Articulo V '
Si se ha pedido a la autoridad competente prevista en el arl;iculo V, pkrafo l(e),
la anulacibn o la suspensi6n de la sentencia, la autoridad ante la cual se invoca dicha
sentencia podr6, si lo considera procedente, aplazar la decisibn sobre la ejecudbn de
la sentencia y, a instanda de la parte que pida la ejecucibn, pods5 tambikn ordenar a
la otra p a t e que dB garantias apropiadas.
Articulo V11
1. Las disposiciones de la presente Convencibn no afectar6.n la validez de 10s
acuerdos multilaterales o bilaterales relativos al reconocimiento y la ejecucibn de las
sentencias arbitrales concertados por 10s Estados Contratantes ni psivarLn a ninguna
de las pastes interesadas de cualquier derecho que pudiera tener a hacer valer una
sentencia arbitral en la forma y medida admitidas por la legislaci6n o 10s tratados
del pais donde dicha sentencia se invoque.
2. El Protocolo de Ginebra de 1923 selativo a las cliusulas de arbitraje y la Convencibn de Ginebra de 192'7 sobre la ejecucibn de las Sentencias Arbitrales Extranjeras dejar6.n de surti~efectos entre 10s Estados Contratantes a partir del momento y
en la medida en que la presente Convencibn tenga fuerza obligatoria para ellos.
Articulo VIII
1. La presente Convencibn estar5 abierta hasta el 3 1 de diciembre de 1958 a la
f i m a de todo Miembro de las Naciones Unidas, asi como de cualquier otso Estado
que sea o llegue a ser miembro de cualquier organismo especializado de las Naciones
Unidas, o sea o llegue a ser parte en el Estatuto de la Corte International de Justicia, o de todo otro Estado que haya sido invitado pos la Asamblea General de las
Naciones Unidas.
2. La presente Convencibn deberi ser ratificada y 10s instrumentos de ratificaci6n se depositar6.n en poder del Secsetario General de las Naciones Unidas.
Articulo 6X
1. P o d r h adhesisse a la presente Convencibn todos 10s Estados a que se refiere el
articulo VIII.
2. La adhesibn se efectuar6 mediante el dep6sito de un instsumento de adhesibn
en poder del Secretario General de las Naciones Unidas.
Articulo X
1. Todo Estado pods6 declarar, en el momento de la fisma, de la satificacibn o de
la adhesibn, que la presente Convencibn se has6 extemiva a todos 10s territosios
cuyas relaciones internacionales tenga a su cargo, o a uno o varios de ellos. Tal declaracibn surtis5 efecto a parth del momento en que la Convencibn entre en vigor
para dicho Estado.
2. Posteiiormente, esa extensi6n se hari en cualquier momento por notificacibn
disigida al Secretasio General de las Naciones Unidas y surtir5 efecto a partir del
nonaghsimo dia siguiente a la fecha en que el Secsetario General de las Naciones
408
Annex A
Unidas haya recibido tal notificacibn o en la fecha de entrada en vigor de la Convenci6n para tal Estado, si esta iiltima fecha fuere posterior.
3 . Con respecto a 10s territories a 10s que no se haya hecho extensiva la presente
Convenci6n en el momento de la firma, de la ratifaci6n o de la adhesibn, cada
Estado interesado exarninari la posibilidad de adoptar las medidas necesuias para
hacer extensiva la aplicaci6n de la presente Convenci6n a tales tei~itorios,a reserva
del consentimiento de sus gobieinos cuando sea necesario por razones constitucionales.
Con respecto a 10s Estados federales o no unitarios, se a p l i c u h las disposiciones

siguientes :
(a) En lo concerniente a 10s articulos de esta Convenci6n cuya aplicaci6n
dependa de la competencia legislativa del poder federal, las obligaciones del
gobiei-no federal s e r h , en esta medida, las mismas que las de 10s Estados Contratantes que no son Estados federales;
(b) En lo concelniente a 10s articulos de esta Convenci6n cuya aplicaci6n dependa de la competencia legislativa de cada uno de 10s Estados o provincias constituyentes que, en virtud del regimen constitutional de la federacibn, no estBn obligados a adoptar medidas legislativas, el gobierno federal, a la mayor brevedad posible
y con su recomendaci6n favorable, pondrri dichos articulos en conocimiento de las
autoa-idades competentes de 10s Estados o provincias constituyentes;
(c) Todo Estado federal que sea Parte en la presente Convenci6n proporcionari,
a solicitud de cudquier otro Estado Contratante que le haya sido trmsmitida por
condueto del Secretario General de las Naciones Unidas, una exposici6n de la legislaci6n y de las prhcticas vigentes en la federaci6n y en sus entidades constituyentes
con respecto a deteminada disposici6n de la Convencibn, indicmdo la medida en
que por acci6n legislativa o de otra hdole, se haya dado efecto a tal disposicibn.
Articulo XI1
1. La presente Convenci6n entrarri en vigor el nonagesirno dia siguiente a la fecha
de1 dep6sito del tercer instrumento de ratificacibn o de adhesi6n.
2. Respecto a cada Estado que ratifique la presente Convenci6n o se adhiera a
ella despues del dep6sito del tercer instrumento de ratificacgn o de adhesibn, la
presente Convenci6n e n t r a i en vigor el nonagesimo dia siguiente a la fecha del
dep6dto por tal Estado de su instrumento de ratificaci6n o de adhesi6n.
1. Todo Estado Contratmte podrh denunciar la presente Convenci6n mediante

notificacibn escrita dirigida al Secretado General de las Naciones Unidas, La denuncia suf.tiPh efecto un aiio despuhs de la fecha en que el Secretuio General haya
recibido la notificaci6n.
2. Todo .Estado que haya hecho una declaraci6n o enviado una notificaci6n conf o m e a lo previsto en el articulo X, podrB declarar en cudquier momento posterior,
medimte notificaci6n dirigida al Secretario General de las Naciones Unidas, que la
Convenci6n deja8 de apllcarse al tenitorio de que se trate un aiio despues de la
fecha en que el Secretario General haya recibido tal notificaci6n.
3. La presente Convenci6n segufp.8 siendo aplicable a las sentencias arbitrdes
respecto Be las cudes se'haya promovido un procedimiento para el reconocimirmeto o
%a%jecucii>na
ant&de que entre en vigor la denuncia.
Annex A
4-09
NingGn Estado Contratante podr6 invocu las disposiciones de la presente Conrenci6n respecto de otros Estados Contratantes mLs que en la medida en que 61
nismo est6 obligado a aplicar esta Convencibn.
El Secretario General de las Naciones Unidas notMcarh a todos los Estados a que
;e refiere el articulo VEII:
(a) Las firmas y ratificaciones previstas en el articulo VIIII;
( b ) Las adhesiones previstas en el articulo IX;
( c ) Las declaraciones y notificaciones relativas a 10s articulos I, X y XI;
( d ) La fecha de entrada en vigor de la presente Convencibn, en conformidad
:on el articulo XII;
( e ) Las denuncias y notificaciones previstas en el articulo XIII.
1. La presente Convencibn, cuyos textos chino, espaiiol, franc&, indks y ruso

;erhn igualrnente autknticos, serh depositada en 10s xchivos de las Naciones Unidas.
2. El Secretario General de las Naciones Unidas transmitirk una copia cer.tificada
Le la presente Convencibn a 10s Estados a que se refiere el articulo VIII.
LIST OF CONTRACTING STATES

(as of February 1, 198 1)
The reservations refer to the resewations mentioned in Article I(3) of the Convention. According to the 1st reservation, a State may declare that it will apply the
Convention to the recognition and enforcement of awards made only in the territory of another Contracting State (see in particular 1-1 .I). According to the 2nd
reservation, a State may 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
(see in particular 1-1.8). The texts of the declarations and resewations of the Contracting States are reproduced below.
State
Ratification
Accession (a)
Australia
Mar. 26, 1975a
Austria
May 2, 19610
Aug. 18,1975
Belgium
Benin
May 16, 1974a
Botswana
Dec. 20, 1971a
Bulgaria
Oct. 10, 1961
Byelomssian
SSR
Nov. 15,1960
Central AfricanErnpire Oct.15,1962a
Chile
Sep. 4, 1975a
Colombia
Sep. 25, 1979a
Cuba
Dec.30,1974a
Czechoslovakia
July 10, 1959
Democratic
Kampuchea Jan. 5, 1960a
Denmark
Dec. 22, 1972a
Ecuador
Jan. 3, 1962
Egypt
Mar. 9, 1959a
Finland
Jan. 19, 1962
France
June 26,1959
German DR
Feb. 20, 1975a
Germany, FR of June, 30 1961
Ghana
Apr. 9, 1968a
Greece
July16,1962a
Holy See
May 14, 1975a
Hungary
Mar.5 1962a
India
July 13, 1960
Israel
Jan. 5, 1959
Italy
Jan 31, 1969a
Japan
June 20,196 la
Jordan
Nov. 15,1979
Reservation
1
1
1-2
1
1
1-2
1-2
1
1-2
1-2
1-2
1-2
1
1-2
1-2
1-2
1-2
-
1
-
State
Ratification
Accession (a)
Weservation
Kuwait
Madagascar
Mexico
Morocco
Netherlands
Niger
Nigeria
Norway
Philippines
Poland
Rep. of Korea
Romania
SanMarino
South Africa
Spain
Sri Lanka
Sweden
Switzerland
Syrian Arab
Rep.
Thailand
Trinidad and
Tobago
Tunisia
Ukrainian SSR
USSR
United Kingdom
United Rep. of
Tanzania
United States
of America
Apr. 28, 1978a

July 16, 1962a
Apr. 14, 1971a
Feb. 12, 1959a
Apr. 24,1964
Oct. 14, 1964a
Mar. 17, 1970a
Mar. 14, 1961a
July 6, 1967
Oct. 3, 1961
Feb. 8, 1973a
Sep. 13, 1961a
Mayl7,1979a
May 3, 1976a
May 12, 1977a
Apr. 9, 1962
Jan. 28, 1972
June 1, 1965
1
1-2
1
1
Mar. 9, 1959a
Dec. 21, 1959a
Feb. 14, 1966a

July17,1966a
Oct. 10, 1960
Aug. 24,1960
1-2
1-2
11
Sep. 24, 1975a
Oct. 13, k964a
Bep. 30, 1970a
1-2
1-2
1
1-2
1-2
1-2
1-2
-
Annex B
Extensions
Australia (Mar. 26, 1975):
Denmark (Feb. 10, 19196):
France (June 26, 1959):
Germany, FR of (June 30, 1961):
Netherlands (Apr. 24, 1964):
United Kingdom:
United States of America

(Nov, 3,1970):
41 1
Australian Antaltic Territory, Ckfistmas

Island, Cocos (Keeling) Islands, Norfolk Island.
Faroe Islands, Greenland.
Afars and the Issas, Comoro Islands, French
Polynesia, New Caledonia, St. Pierre et
Miquelon, Wallis and Futuna Islands.
West ~es1in.l
Netherlands Antilles, ~ u ~ i - d l a m . ~
Bermuda (Feb. 12, 1980), Gibraltar (Sep. 24,
1975), Hong Kong (Apr. 21, 19197), Isle of
Man (May 23, 1979), Cayman Islands and
Belize (Feb. 24, 198 1, 1st reservation).
American Samoa, Canton Island, Enderbesry
Island, Guam, Puerto Rico, Virgin Islands,
Wake Island.
Declarations and Reservations of the Contracting States

The declarations and reservations reproduced below, including particularities of
punctuation, are taken from the United Nations publication '6Multilateral Treaties
in R e s p e c t of Which the Secretary-General Performs Depositary Functions. List of
Signatures, Ratifications, Accessions etc.", UN DOC ST/LEG/SER.D/12 p. 573 et
seq.
The statements concerning the extensions have not been included in the texts reproduced below (see above).
The declarations and reservations made by the States which have signed the Convention only have not been reproduced. They can be found in the United Nations
publication mentioned abovee3
1. The Governments of Albania, Bulgaria, the Byelorussian SSR, Cuba, Czechoslovakia,

Poland, Romania, the Ukrainian SSR and the USSR have informed the Secretary-General of the
United Nations that they consider the statement of F.R. Germany that the Convention will also
apply to the Land Berlin as having no legal force on the ground that West Berlin is not, and
never has been a State territory of F.R. Germany and that, consequently, the Government of
F.R. Germany is in no way competent to assume any obligations in respect of West Berlin or to
extend to it the application of international agreements, including the Convention in question.
The Governments of F.R. Germany, France, the United Kingdom and the United States
have informed the Secretary-General that, in the Declaration on Berlin of May 5, 1955, which
accords with instruments that previously entered into force, the Allied Kommandatura as the
supreme authority in Berlin had authorized the Berlin authorities to assure the representation
abroad of the interests of Berlin and its inhabitants under suitable arrangements, and that the
arrangements made in accordance with the said authorization permitted F.R. Germany to
extend to Berlin the international agreements which F.R. Germany concludes, provided that
the final decision in every case of such an extension was left to the Allied Mommandatura and
that internal Berlin action was required to make any such agreement applicable as domestic law
in Berlin. For these reasons they consider the objections referred to in the preceding paragraph
as unfounded.
2. Surinam became independent on Nov. 25, 1975. By a letter of Nov. 29, 1975, of the then
Prime Minister to the Secretary-General of the United Nations, Surinam has declared that it will
remain bound by the treaties and conventions which the Netherlands had extended to it.
3 . The States which have signed the Convention only are: Argentina (Aug. 26, 1958), Costa
412
Annex B
A ustria
The Republic of Austria wiU apply the Convention, in accordance with the first
sentence of article I(3) thereof, only to the recognition and enforcement of arbitrd
awards made in the territory of another Contracting State.
Belgium
U p o n ratification: In ac~ordancewith article 1, paragraph 3, the Government
of the Kingdom of Belgium declares that it will apply the Convention to the recognition and enforcement of arbitral awards made only in the territory of a Contracting State.
Bo~swana
"The Republic of Botswana will apply the Convention only to differences arising
out of legal relationship, whether contractual or not, which are considered commercial under Botswana law.
"The Republic of Botswana will apply the Convention to the Recognition and Enforcement of Awards made in the territory of another Contracting State."
Bulgaria
"Bulgaria will apply the Convention to recognition and enforcement of awards
made in the territory of another contracting State.With regard to awards made in
the territory of non-contracting States it will apply the Convention only to the
extent to which these States grant reciprocal treatment."
Byelomssian Soviet Socialist Republic
The Byelomssian Soviet Socialist Republic will apply the provisions of this Convention in respect to arbitral awards made in the territories of non-contracting
States only to the extent to which they grant reciprocal treatment.
Central African Empire
Referring to the possibility offered by paragraph 3 of article I of the Convention, the Central African Republic declares that it will apply the Convention on the
basis of reciprocity, to the recognition and enforcement of awards made only in the
territory of another contracting State; it further declares that it will apply the Convention only to differences arising out of legal relationships, whether contractual or
not, which are considered as commercial under its national law.
Cuba
The Republic of Cuba will apply the Convention to the recognition and enforcement of arbitral awards made in the territory of another Contracting State. With respect t o arbitral awards made by other non-contracting States, it will apply the
Convention only in so far as those States grant reciprocal treatment as established
by mutual agreement between the parties. Moreover, it will apply the Convention
only to differences arising out of legal relationships, whether contractual or not,
which are considered as commercial under Cuban legislation.
Czechoslovakk
66Czechoslovakiawill apply the Convention to recognition and enforcement of
awards made in the territory of another Contracting State. With regard to awards
Rica (June 10, 1958), El Salvador (June 10, 1958), Luxembourg (Nov. 11, 1958), Monaco
(Dec. 31, 1958), and Pakistan (Dec. 31,1958).
Annex B
413
made in the territory of non-contracting States it will apply the Convention only to
the extent to which these States grant reciprocal treatment."
Denmark
In accordance with the terms of article I, praragraph 3, [the Convention] shall
have effect only as regards the recognition and enforcement of arbitral awards made
by another Contracting State and [it] shall be valid only with respect to commercial
relationships.
Ecuador
Ecuador, on a basis of reciprocity, will apply the Convention to the recognition
and enforcement of arbitral awards made in the territory of another contracting
State only if such awards have been made with respect to differences arising out of
legal relationships which are regarded as commercial under Ecuadorian law.
France
Referring to the possibility offered by paragraph 3 of Article 9: of the Convention, France declares that it will apply the Convention on the basis of reciprocity,
to the recognition and enforcement of awards made only in the territory of another
contracting State; it further declares that it will apply the Convention only to
differences arising out of legal relationships, whether contractual or not, which are
considered as commercial under its national law.
German Democratic Republic
In respect of article I: The German Democratic Republic will apply the Convention to the recognition and enforcement of arbitral awards made in the territory of
another Contracting State. To arbitral awards made in the territories of non-contracting States, the Convention will be applied only to such extent as those States
grant reciprocity. Furthermore, the German Democratic Republic will apply the
Convention only to differences arising out of contractual or non-contractual legal
relationships which are considered as commercial under the national law of the German Democratic Republic.
Piz respect of articles VIII and IX: The German Democratic Republic considers
that the provisions of articles VIII and IX of the Convention are inconsistent with
the principle that all States pursuing their policies in accordance with the purposes
and principles of the Charter of the United Nations shall have the right to become
parties to conventions affecting the interests of all States.
In respect of article X: The position of the German Democratic Republic on article X of the Convention, as far as the application of the Convention to colonial and
other dependent territories is concerned, is governed by the provisions of the
United Nations Declaration on the Granting of Independence to Colonial Countries
and Peoples (Res. 1514 (XV) of 14 December 1960) proclaiming the necessity of
bringing to a speedy and unconditional end colonialism in a l l its forms and manifestations.
Germany, Federal Republic of
'With respect to paragraph 1 of article I, and in accordance with paragraph 3 of
article I of the Convention, the Federal Republic of Germany will apply the Convention only to the recognition and enforcement of awards made in the territory of
another Contracting State."
Greece
[Although the Greek implementing Act (Legislative Decree no. 4220 of 196 1)
contains in its Article 2(1) both reservations of Article 1(3) of the Convention,
414
Annex B
Greece had not communicated any reservation to the SecretaryGeneral of the

United Nations when it acceded to the Convention on July 16, 1962. Greece has
rectified the omission by communicating both reservations to the Secretaiy-General
on April 18, 1980-AJB.]
Holy See
The State of Vatican City will apply the said Convention on the basis of reciprocity, on the one hand, to the recognition and enforcement of awards made only
in the territory of another Contracting State, and on the other hand, only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under Vatican law.
Hungary
. . the Hungarian People's Republic shall apply the Convention to the recognition and enforcement of such awards only as have been made in the territory of one
of the other Contracting States and are dealing with differences arising in respect of
a legd relationship considered by the Hungarian law as a commercial relationship."
"".
India
"In accordance with Article I of the Convention, the Government of India declare that they will apply the Convention to the recognition and enforcement of
awards made only in the territory of a State, party to this Convention. They further
declare that they will apply the Convention only to differences arising out of legal
relationships, whether contractual or not, which are considered as commercial
under the Law of India."
Japan
". . . It will apply the Convention to the recognition and enforcement of awards
made only in the territory of another Contracting State.''
Jordan
[The Government of Jordan] shall not be bound by any awards which are made
by Israel or to which an Israeli is a party.
Ru wait
The State of Kuwait will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State.
It is understood that the accession of the State of Kuwait to the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards, done at fJew York,
on the 10th of June 1195 8, does not mean in any way recognition of Israel or entering with it into relations governed by the Convention thereto acceded by the State
of Kuwait.
fidagascar
The Malagasy Republic declares that it will apply the Convention on the basis of
reciprocity, to the recognition and enforcement of awards made only in the territory of another contracting State; it further declares that it will apply the Convention only to differences arising out of legal relationships, whether contractual or
not, which are considered as commercial under its national law.
Morocco
The Government of His Majesty the King of Morocco will only apply the Convention to the recognition and enforcement of awards made only in the territory of
another Contracting State.
Annex B
415
Netherlands
Referring to paragraph 3 of article I of the Convention or, the Recognition and
Enforcement of Foreign Arbitral Awasds, the Government of the Kingdom declares
that it will apply the Convention to the recognition and enforcement of awards
made only in the t e n i t o ~ yof another Contracthg State.
Nigeria
"In accordance with paragraph 3 of article 1 of the Convention, the Federal Military Government of the Federal Republic of Nigeria declares that it will apply the
Convention on the basis of reciprocity to the recognition and enforcement of
awards made only in the territory of a State party to this Convention and to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the laws of the Federal Republic of Nigeria."
Norway
"1. We will apply the Convention only to the recognition a d enforcement of
awards made in the territory of one of the Contracting States."
" 2 . We will not apply the Convention to differences where the subject matter of
the proceedings is immovable property situated in Norway, or a right in or to such
property."
Philippi~es
"'The Philippines delegation signs ad referendum this Convention with the reservation that it does so on the basis of reciprocity and declares that the Philippines
will apply the Convention to the recognition and enforcement of awards made only
in the tersitory of another contracting State pursuant to Article I, paragraph 3 of
the Convention."
(Declaration made o n ratification) . . the Philippines, on the basis of reciprocity, will apply the Convention to the recognition and enforcement of awards made
only in the territory of another Contracting State and 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."
".
Poland
"With reservations as mentioned in article I, para. 3."
Republic of Korea
"By virtue of paragraph 3 of article I of the present Convention, the Government of the Republic of Korea declares that it will apply the Convention to the
recognition and enforcement of arbitral awards made only in the tenitory of another Contracting State. It further declares that it will apply the Convention only
to differences arising out of legal relationships, whether contractual or not, which
are considered as commercial under its national law."
Romania
The Romanian People's Republic will apply the Convention only to differences
arising out of legal relationships, whether contractual or not, which are considered
as commercial under its legislation.
The Romanian People's Republic will apply the Convention to the recognition
and enforcement of awards made in the territory of another Contracting State. As
regards awards made in the territory of certain non-contracting States, the Romanian People's Republic will apply the Convention only on the basis of reciprocity
established by joint agreement between the parties.
416
Annex B
Switzerland
Referring to the possibility offered by paragraph 3 of article I, Switzerland will
apply the Convention to the recognition and enforcement of awards made only in
the territory of another Contracting State.
Trinidad and Tobago
"In accordance with article 1 of the Convention, the Government of Trinidad
and Tobago declares that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. The
Government of Trinidad and Tobago further declares that it will apply the Convention only to differences arising out of legal relationships, whether contracted or
not, which are considered as commercial under the Law of Trinidad and Tobago."
Tunisia
With the reservations provided for in article I, paragraph 3, of the Convention,
that is to say, the Tunisian State will apply the Convention to the recognition and
enforcement of awuds made only in the tenitory of another Contracting State and
only to differences arising out of legal relationships, whether contractual or not,
which are considered as commercial under Tunisian law.
Ukrainian Soviet Socialist Republic
The Ukrainian Soviet Socialist Republic will apply the provisions of this Convention in respect to arbitral awards made in the territories of non-contracting States
only to the extent to which they grant reciprocal treatment.
Union of Soviet Socialist Republics
The Union of Soviet Socialist Republics will apply the provisions of this Convention in respect to arbitral awards made in the territories of non-contracting States
only to the extent to which they grant reciprocal treatment.
United Kingdom
[Although the United Kingdom implementing Act (Arbitration Act 1975) contains in its Article 7(1) the first reservation of Article 1(3) of the Convention, the
United Kingdom had not communicated the making of the reservation to the Secretary-General of the United Nations when it acceded to the Convention on September 24, 1975. The United Kingdom has rectified the omission by communicating
the first reservation to the Secretary-General on May 5, 1980-AJB.]
United Republic of Tanzania
'The Government of the United Republic of Tanganyika and Zanzibar will
apply the Convention, in accordance with the first sentence of wticle I(3) thereof,
only to the recognition and enforcement of awards made in the territory of another
Contracting State."
United States of America
' m e United States of America will apply the Convention, on the basis of reciprocity, to the recognition and enforcement of only those awards made in the territory of mother Contracting State.
"The United States of America 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 United States."
ANNEX C
LIST OF MPLEMENTIING ACTS
Listed below are references of those implementing Acts which contain specific provisions in furtherance of the New York Convention.
Numbers without indication refer t o pages. Number with a "n." refer t o footnote on page indicated. Italics indicate place where provision is examined in particular.
"Gaja" means that the implementing Act is reproduced in G. Gaja, New York
Convention (Dobbs Ferry 1978-1980).
A ustralia
Arbitration (Foreign Awards and Agreements) Act 1974, No. 136 of 1974,
assented t o December 9, 1974, reproduced in Gaja, IV. 13.1.
In general
: 236.
Sect. 9(2)
: 255.
Sect. 2(1)-(2) : 73.
Sect. 9(4)
: 26 1.
: 66-67.
Sect. 9(5)
: 248.
Sect. 7(1)
Sect. 7(2)
: 123; 130 n. 17.
Sect. 14
: 73.
Botswana
The Recognition and Enforcement of Foreign Arbitral Awards Act 1971, No.
49 of 197 1, assented t o December 22, 197 1, reproduced in Gaja, IV. 12.1.
In genera1
: 23 6.
Sect. 3(1)
: 73; 75.
Denmark
Executive Order No. 117 of March 7, 1973, Regarding Recognition and Execution of Foreign Arbitral Awards and Regarding International Commercial Arbitration, translated in English in 43 Nordisk Tidsskrift for International Ret (1973) p.
179, m d translated in French in Revue de l'arbitrage (1977) p. 358.
In general
: 236.
Sect.2(2)
:259.
Germany, F.R.
Law of March 15, 1961, Regarding the Convention of June 10, 1958, Concerning the Recognition and Enforcement of Foreign Arbitral Awards, Bundesgesetzblatt 11, p. 121 of March 22, 196 1, reproduced Gaja, IV.3.1.
Sect. 2
: 27-28.
Ghana
The Arbitration Act 196 1, No. 38 of 196 1, assented to on March 16, 196 1, reproduced in Gaja, IV.5 .l.
In general
: 23 6.
Sect.38(2)
:261.
Sect. 36(1)
: 73; 75.
Sect. 4 0
: 139 n. 55.
Sect. 38(1)
: 254.
India
The Foreign Awards (Recognition and Enforcement) Act 1961., No. 45 of 1961
of November 30, 1961, reproduced in Gaja, IV.6.1.
413
Ingeneral
Sect. 2
Sect. 3
Annex C
Sect. 8(1)
: 254.
:20;236.
Sect. 8(l)(c) : 248.
: 53; 73; 75; 77.
: 261.
: 53-54; 77; 129 n. 17; 132- Sect. 8(2)
133; 139 n. 55; 147; 166.
The Foreign Awards (Recopition and Enforcement) Amendment Act 1973,

No. 57 of 1973 (of N0vemb.e~26, 1973), reproduced in Gaja, IV.6.5.
Sect. 1-2
: 77; 133.
Sweden
Act of 1929 Concerning Foreign Arbitration Agreements and Awards, No. 147
of 1929, as amended in 197 1 and 1976, translated in English in Stockholm Chamber of Commerce, ed., Arbitration in Sweden (Stockholm 1977) Appendix 3.
In general
: 236.
Sect. 7(1)(3) : 3 13.
Sect. 1
: 61-62.
Sect. 7(1)(5) : 340-341; 343-344;
Sect. l(2)
: 70.
352.
United Kingdom
The Arbitration Act 1975, 1975 c. 8, reproduced in Gaja, IV.15.1, and in A.
Walton, Russell on the Law o f Arbitration, 19th ed. (London 1979) p. 548.
In general
: 59; 62; 149; 164; 236.
Sect. f(2)-(4) : 63-64; 65; 66; 69.
: 130 n. 17; 136-137; 139
Sect. l(1)
n. 55; 140; 147.
United States
An Act to Implement the Convention on the Recowition and Enforcement of
Foreign Arbitrd Awards, July 31, 1970, Public Law 91-368 (84 Stat. 692), amending Title 9 of the United States Code, by adding a Chapter 2 (also referred to as
Chapter 2 of the Federal Arbitration Act), reproduced in Gaja, IV.ll.l, and in
Yearbook Vol. V(1979) p. 360.
Ingeneral
:236;243n.32.
Sect. 206
: 62-63; 67; 130.
Sect. 202
: 1 7 ; 18; 52; 59-60; 67-68
Sect. 207
: 241.
Sect. 203
: 5211. 120.
Sect. 208
: 130 n. 18; 242.
Sect. 205
: 141-142.
AiVVEX D
TABLE OF COURT DECISIONS ON THE CONVENTION
(a) The table of references for the court decisions on the Convention as given
below is divided per country. In order to facilitate research, the numbering of
decisions per country corresponds with the numbering of the extracts of the decisions as appeasing in the Yearbook Commercial Arbitration.
(b) The numbering coi~espondsalso with the abbreviated references in the footnotes of this study. For example, the detailed references of the abbreviation "(Austria
no. 1)" in a footnote can be found in this table under Austria no. 1.
means that a copy of the original text of the decision in full can be
(c) 66Gaja99
found at the indicated number in Part V of G. Gaja, New York Convention (Dobbs
Ferry 1978-1980). For example, "Gaja V.26" in Austria no. 1 indicates that the
copy of the oiiginal text of this decision can be found at number 26 of Part V of
Gaja's publication.
A full set of the original texts of all court decisions on the Convention is with
the International Commercial Arbitration Library of the T.M.C. Asses Institute for
International Law in The Hague.
(d) "Yearbook" means that an extract of the decision can be found at the indicated Volunie and page of the Yearbook Commercial Arbitration. For example,
"Yearbook I (1976) p. 182" in Austria no. 1 indicates that the extract of this decision is published in Yearbook Commercial Arbitration Vol. I(1976) p. 182.
(e) The case comments, if any, are included in the references. Some publications, however, contain a review of several decisions on the Convention rendered
in one country. Such reviews of decisions per country are mentioned at the beginning of each country beneath the words "Reviews of several decisions".
There exist a few publications in which the judicial interpretation and application of the Convention are reviewed in a general manner, not limited t o one country. It may suffice t o mention here:
GAJA, G., "Introduction", i n New York Convention (Dobbs Ferry 1978-1980)
Part I.
SANDERS, P., "Commentary", Yearbook Vol. I(1976) p. 207 and Vol. II(1977)
p. 254; "Consolidated Commentasy Vols. 111 and IV9', Yearbook Vol. IV(1979)
p. 231; "Consolidated Commentary Vols. V and VI", Yearbook Vol. VI(1981)
p. 202.
SANDERS, P., "A Twenty Years' Review of the Convention on the Recognition
and Elzforcement of Foreign Arbitral Awards", 13 The International Lawyer
(1 979) p. 269; a French version of this article entitled "Vingt annCes de la Convention de New York de 1958" is published in 5 Droit e t pratique du commerce
international (1 979) p. 359.
It may be added that a bibliography on publications concerning the Convention can
be found under "Bibliography" hereafter.
The footnotes in this study in which a given court decision is refei~edt o are
indicated after the words '6Discussed at n.: ". The Roman numerals I, I1 and 111 refer
to the Chapter in which the footnote is t o be found. For example, "Discussed at
n.: 1.202" under Austria no. 1 means that the decision is refen-ed t o in footnote
202 of Chapter I'and discussed in the text accompanying this footnote.
420
Annex D
AUSTRALIA
no. 1 SUPREME COURT OF NEW SOUTH WALES (EQUITY DEVISION),
September 5, 1979,
FIakt Australia Etd. v. Willcens & Davis Construction Co. Ltd.,
25 Australian Law Reports (1979) p. 605; Yearbook VI(1981) p. 218.
Discussed at n.: 11.40; 11.55.
AUSTRIA
Oberster Gerichtshof = Supreme Court
no. 1 OBERSTER GERICHTSHOF, November 17,1965,
9 Zeitschrift fur Rechtsvergleichung (1968), p. 123 with comment by
Zacherl; Gaja V.26; Yearbook I(1976) p. 182.
Discussed at n.: 1.3; 1.202; 1.306; 111.45.
no. 2
OBERSTER GERICHTSHOF, November 17,197 1,

96 Juristische Blatter (1974) p. 629; Gaja V.29; Yearbook I(1976) p. 183.
Discussed at n.: 1.150; 1.166; 11.12; 11.153; 11.234; 11.237; 111.15 1.
no. 3
OBERSTER GERICHTSHOF, June 1 1,1969,

42 Entscheidungen des osterreichischen Obersten Gerichtshofes (1969)
p. 269; Gaja V.28; Yearbook II(1977) p. 232.
Discussed at n.: 111.63; 111.65 ;111.77; 111.404.
BELGIUM
Cour de Cassation
Cour d'appel
= Supreme Court
= Court of Appeal
no. 1 COUR D'APPEL OF LIEGE, May 12,1977,

Audi-NSU Auto Union A.G. v. .A. Adelin Petit & Cie,
Journal des Tribunaux (1 977) p. 7 10 with comment by Keutgen and Huys;
Gaja V.75; Yearbook IV(1979) p. 254. See also Ledoux, Journal des Tribu~ Q U X(1976) p. 305.
Discussed at n.: 1.298; 111.379.
no. 2
COUR DE CASSATION (1ST CHAMBER), June 28,1979,

Audi-NSU Auto Union A.G. v. S.A. Adelin Petit 8r. Cie,
Pasicrisie Belge (1979) I, p. 1260; Gaja V.76; Yearbook V(1980) p. 257.
Discussed at n.: 1.287; 111.363; 111.379.
.FRANCE
Tribunal de grande instance
Cour d 'appel
= Court o f First Instance
= Court o f Appeal
no. 1 PRESIDENT OF TRIBUNAL DE GRANDE INSTANCE OF PARIS, May

15, 1970,
COUR D'APPEL OF PARIS (1ST CHAMBER), May 10,197 1,
Compagnie de Saint-Gobah-Pont Mousson v . The Fertilizer Corporation
of India Ltd. (FCIL),
Journal du Droit International (1971) p. 313 with comment by Mahn;
Annex D
42 1
Revue de l'arbitrage (1971) p. 108 with comment by Oppetit (at p. 97);

Gaja V.ll-12; Yearbook I(1976) p. 184.
Discussed at n.: 1.29; 111.85; 111.187; 111.192; 111.217; 111.222; 111.236;
111.281; 111.290; 111.329.
no. 2
TRIBUNAL DE GRANDE INSTANCE (COMMERCIAL CHAMBER) OF

STRASBOURG, October 9, 1970,
Animalfeeds International Corporation v. .A. A. Becker & Cie,
Revue de l'arbitrage (1970) p. 166; Gaja V. 10; Yearbook 11(1977) p. 244.
Discussed at n.: 11.28 1; 111.63; 111.80; 111.278; 111.285.
no. 3 COUR D'APPEL (1 ST CHAMBER) OF PARIS, February 2 1,1980,

General National Maritime Transport Company (GNMTC) v. AB Gotaverlcen,
Revue de l'arbitrage (1980) p. 524 with comment by Jeantet; Journal du
Droit International (1980) p. 661 with comment by Fouchmd; Revue
critique de droit international prive' (1980) p. 763 with comment by Mezger;
Yearbook VI(1981) p. 221.
Discussed at n.: 1.33; 1.44; 1.50; 1.54; 1.70; 1.79; 1.88.
GERMANY, FEDERAL REPUBLIC OF*
Bundesgerichtshof
= Federal Supreme Court
Oberlandesgericht (OLG) = Court o f Appeal
Landgerich t ( L G )
=
Court o f First Instance
no. 1 OBERLANDESGERICHT OF HAMBURG, April 15,1964,
Die deutsche Rechtsprechung auf d e m Gebiete des internationalen Privatrechts (1964-1965) p. 786, no. 275; Yearbook II(1977) p. 233.
Discussed at n.: 1.4.
no. 2
LANDGERICHT OF BREMEN, December 16,1965,

Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts (1964-1965) p. 808, no. 284; Yearbook II(1977) p. 233.
Discussed at n.: 1.298; 111.15 1.
no. 3
LANDGERICHT OF BREMEN, June 8,1967,

Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts (1966-1967) p. 860, no. 283; Gaja V.46; Yearbook II(1977) p. 234.
Discussed at n.: 11.234; 111.151.
no. 4
LANDGERICHT OF HAMBURG, December 19,1967,

Arbitrale Rechtspraak ( 1 9 6 8 ) ~ 138,
.
no. 565;GajaV.47; Yearbook II(1977)
p. 235.
Discussed at n.: 11.21 1; 11.305.
no. 5
BUNDESGERICHTSHOF, March 6,1969,

OBERLANDESGERICHT OF HAMBURG, October 14,1964,
BGH: Wertpapier-Mitteilungen (1969) p. 671; Der Betrieb (1969) p. 922;
Monatschrift fur deutsches Recht (1 969) p. 567; 3 1 Konkurs-, Treuhand
und Schiedsgerichtswesen ( 1 970) p. 30; Die deutsche Rechtsprechung auf
* It is in F.R. Germany a general policy not to publish the names of the parties.
dem Gebiete des internationalen Privatrechts (1968-1969) p, 656, no. 256;

Gaja V.48;
OEG: Die deutsche Rechtsprechung auf dem Gebiete des internationalen
Privatrechts (1964-1965) p. 739, no. 277; Gaja V.45;
BGH and OLG: Yearbook II(1977) p. 235.
Discussed at n.: 111.89; 111,165;111.180; 111,404.
no. 6 OBERLANDESGERICHT OF HAMBURG, May 21,1969,

Wertpapier-Mitteilungen (1969) p. 875; Die deutsche Rechtsprechung auf
dern Gebiete des internationalen Privatrechts (1968-1 969) p. 662, no. 257;
Gaja V.49; Yearboolc II(1977) p. 236.
Discussed at n.: 11.304; 111.70; 111.316.
no. 7
BUNDESGERICHTSHOF, May 25,1970,

Wertpapier-Mitteilungen (1970) p. 1050; Aussenwirtschaftsdienst des Betriebs-Beraters (1 970) p. 41 7; 50 Revue critique de droit international
prive' (1 97 1) p. 88 with comment by Mezger (at p. 37); Die deutsche Rech tsprechung auf dern Gebiete des internationalen Privatrechts (1 970) p. 456,
no. 133; Gaja V.8; Yearbook II(1977) p. 237.
Discussed at n.: 1.246; 11.250.
no, 8 OBERLANDESGERICHT OF D ~ ~ S S E L D O RNovember

F,
8,197 1,
Die deutsche Rechtsprechung auf d e m Gebiete des internationalen Privatrechts (197 1) p. 491, no. 161;Aussenwirtschaftsdienst des Betriebs-Beraters
(1972) p. 478; Der Betrieb (1972) p. 1060; Gaja V.50; Yearbook II(1977)
p. 237; comment by Habscheid, Konkurs-, Treuhand und Schiedsgerichtswesen (1973) p. 236.
Discussed at n.: 1.224; 1,240; 1.302; 11.172; 11.181; 11.247; 111.151.
no. 9 OBERLANDESGERICHT OF KARLSRUHE, March 13,1973,
LANDGERICHT OF MEIDELBERG, October 23,1972,
OLG: Aussenwirtschaftsdienst des Betriebs-Beraters (1 973) p. 403; Die
Justiz (1973) p. 389; Der Betrieb (1974) p. 184; Gaja V.52;
OLG and LG: Die deutsche Rechtsprechung auf dern Gebiete des internationalen Privatrechts (1973) p. 365, no. 129; Gaja V.5 l ; Yearboolc II(1977)
p. 239.
Discussed a t n.: I, 17 1;11.10; 11.105.
no. 10 OBERLANDESGERICHT OF I-IAMBURG, March 27,1975,
LANDGERICHT OF HAMBURG, March 27,1974,
OLG: 21 Recht der internationalen Wirtschaft (1975) p. 645; Gaja V.60;
LG: 21 R e c h t der internationalen Wirtschaft (1975) p. 223; Gaja V.19;
OLG and LG: Yearbook II(1977) p. 240.
no. 11 OBERLANDESGERICHT OF HAMBURG, April 3,1975,
21 Recht der internationalen Wirtschaft (1975) p. 432 with comment by
Griindisch (at p. 577); Gaja V.36; Yearboolc II(1977) p. 241; see also
Schlosser, "Verfahrensintegritat und Anerkennung von Schiedsspriichen irn
deutsch-amerikanischen Verhaltnis", Neue Juristische Wochenschrift
(1978) p. 455.
Discussed at n.: 1.192; 1.294; 111,186; 111.195; 111.215; 111.355; 111.360.
Annex D
423
no. 12 BUNDESGERICHTSHOF, February 12,1976,

22 Recht der internationalen Wirtschaft (1976) p. 449; We~tpapier-Mitteilungen (1976) p. 435; Monatschrift fiir deutsches Recht (1976) p. 649;
Gaja V.34; Yearboolc II(1977) p. 242.
Discussed at n.: 1.3; 1.48; 1.214; 1.223; 1.248; 11.114; 11.154; 11.289; 111.98;
111.151; 111.169; 111.119; 111.231.
no. 13 LANDGERICHT OF HAMBURG, March 16,1977,
Klinke (at p. 642); Gaja V.61; Yearbook III(1978) p. 274.
Discussed at n.: 1.30; 1.147; 11.294.
no. 14 OBERLANDESGERICHT OF COLOGNE, June 10,1976,
91 Zeitschrift fur Zivilprozess (1978) p. 3 18 with comment by Komblum;
Yearbook IV(1979) p. 258.
Discussed at n.: 1.32;1.211;1.214; 1.217; 1.244; 111.50; 111.62; 111.91; 111.194;
111.207; 111.247; 111.361; 111.399.
no. 15 LANDGERICHT OF HAMBURG, April 20,1977,
Die deutsche .Rechtsprechung auf dem Gebiete des internationalen Brivatrechts (1978); Yearbook IV(1979) p. 261.
no. 16 LANDGERICHT OF ZWEIBR~CKEN,Januay 1 1,1978,
unpublished; Yearbook IV(1979) p. 262.
Discussed at n.: 11.208; 11.21 1; 11.246; 11.278; 111.99; 111.204; 111.212.
no. 17 BUNDESGERICHTSHOF, March 9,1978,
Wertpapier-Mitteilungen (1978) p. 573; Gaja V.77; Yearboolc IV(1979) p.
264.
no. 18 HANSEATISCHES OBERLANDESGERICHT OF HAMBURG, July 27,
1978,
Discussed at n.: 1.3; 1.187; 1.193; 1.204; 11.185; 111.66; 111.80; 111.186;
111.213; 111.221; 111.310; 111.412.
no. 19 LANDGERICHT OF MUNICH, June 20,1978,
unpublished; Yearbook V(1980) p. 260.
Discussed at n.: 1.48; 1.291; 11.248; 111.206.
no. 20 OBERLANDESGERICHT OF HAMBURG, September 22,1978,
Mezger; Gaja V.78; Yearbook V(1980) p. 262.
Discussed at n.: 1.31 ;1.152; 1.245; 11.297; 11.304.
no. 2 1 LANDGERICHT OF HAMBURG, April 24,1979,
25 Recht der internationalen Wirtschaft (1979) p. 493; Yearbook V(1980)
p. 264.
no. 22 LANDGERICHT OF HAMBURG, January 18,1979,
Die deutsche Rechtsprechung auf dem Ge biete des internationalen Privat-
Annex D
4-24
rechts (1979); Yearbook VI(1981) p. 225.

Discussed at n.: 1.103; 111.280.
GHANA
no. 1 HIGH COURT OF GHANA, .September 29, 1965,
Strojexport v. Edward Nasser and Company (Motors) Ltd.,
African Law Reports (1965) p. 493; Gaja V.1; Yearbook III(1978) p. 276.
GREECE
Areios Pagos = Supreme Court
no. 1 COURT OF FIRST INSTANCE OF PIRAEUS, decision no. 1193 of 1968,
20 Archeion Nomologias [Archives of Jurisprudence] (1969) p. 229; Yearbook I(1976) p: 186.
no. 2
COURT OF APPEAL OF ATHENS, decision no. 2768 of 1972,

24 Epitheorissis Emporilcou Dikaiou [Commercial Law ~ e v i e w ](197 3)
p. 42; Yearbook I(1976) p. 186.
no. 3
AREIOS PAGOS, decision no. 926 of 1973,

22 Nomikon Vima [ ~ a wTribune] (1974) p. 486; 41 Emphimeris Ellinon
Nomikon [Journal of Greek ~ a w y e r s ](1974) p. 374; Yearbook I(1976)
p. 187.
Discussed at n.: 111.4 1; 111.86.
no.
COURT OF APPEAL OF PATRAS, decision no. 469 of 1974,

6 Dike (1975) p. 241 with comment by Leklcas and Beis; Yearbook I(1976)
p. 187.
no. 5
AREIOS PAGOS, decision no. 88 of January 14,1977,

Agrimpex .A. v. J.F. Braun & Sons Inc.,
25 Nomikon Vima [ ~ a wTribune] (1977) p. 1126; Yearbook IV(1979)
p. 269.
Discussed at n.: 11,300; 111.92; 111.15 1.
INDIA
no. 1 SUPREME COURT OF INDIA, January 197 1,
V/O Tracto~oexportv. Tarapore and Co.,
All India Reporter (1971) S.C. p. 3; 66 American Journal of International
Law (1972) p. 637; Gaja V.3; Yearbook I(1976) p. 188. See for comment
U. Baxi, 'Goodbye t o Unification? The Indian Supreme Court and the
United Nations Arbitration Convention", 15 Journal of the Indian Law Institute (1973) p. 353.
Discussed at n.: 1.199; 11.28; 11.1 17.
Annex D
4.25
no. 2 HIGH COURT OF DELHI, August 28,1970,

Compagnie Saint-Gobain - Pont Mousson v. The Fertilizer Corporation of
India Ltd. (FCIE),
unpublished (suit no. 1 2 2 ( ~of
) 1970); Yearbook II(1977) p. 245.
Discussed at n.: 1.29; 111.330.
no. 3 HIGH COURT OF KERALA, January 3 1,1977,
Food Corporation of India v. Mardestine Compania Naviera,
All India Reporter (1977) Kerala 108; 13 Arbitration Quarterly (Indian
Council of Arbitration) (1978) p. 23; Gaja V.79; Yearbook IV(1979) p.
270.
no. 4 HIGH COURT OF BOMBAY, April 4,1977,
Indian Organic Chemicals Ltd. v. Chemtex Fibres Inc.,
All India Reporter (1978) Bombay 106; Gaja V.80; Yearbook IV(1979)
p. 271.
Discussed at n.: 1.125; II.118;II.135.
Reviews o f several decisions:

BERLINGIERI, F., "Note on' Enfo'rcement in ItBly of Foreign Arbitration
Awards", G A F T A Newsletter, December 1980, Annex I.
FOIS, P., "Primi orientamenti giurisprudenziali in Italia circa l'interpretazione della Convenzione di New York sull'arbitrato", 12 Rivista di Diritto
Internazionale Privato e Processuale (1 976) p. 299.
GIARDINA, A., "L'appiicazione in Italia della Convenzione di New York
sul19arbitrato", 7 Rivista di Diritto dnternazionale Privato e Processuale
(1971) p. 268.
RECCHIA, G., "La giurispmdenza italiana sulla Convenzione di New York
del 1958 cenni sulla giurispmdenza estera", 13 Rassegna dell'Arbitrato
(1973) p. 195.
RECCHIA, G., "L'interpretazione della Convenzione di New York del 1958
nella giurispmdenza: Alcune riflessioni sul ruolo delle camehe arbitrali":
Arbitrati e Appalti (1975) p. 299.
RECCHIA, G., "An Italian Approach to International Conventions o n Arbitration", in Associazione Italiana per lYArbitrato,ed., Commercial Arbitration - Essays in Memoriam Eugenio Minoli (Turin 1975) p. 393.
RECCHIA, G., '6Q~estions
actuelles de 19arbitrage commercial international
en Italie", Revue de l'arbitrage (1978) p. 3.
Corte d i Cassazione
Corte d i Appello
Tribunale
= Supreme Court
=
=
Court o f Appeal
Court o f First Instance
* The Italian practice of publishing court decisions is to give the date on which the decision
is filed with the Cancelleria of the court, and not the date on which the decision is made.
4.26
Annex D
no. 1 CORTE DI CASSAZIONE, April 30,1969, no. 1403,

Officina Fratelli Musso v. S.r.1. Sevplant,
6 Rivista di Diritto Internazionale Privato e Processuale (1970) p. 332; Foro
Italiano (1969) I. p. 2223; Giustizia Civile (1969) I. p. 1678; 8 Diritto negli
Scam bi Internazionali (1 969) p. 563 with comment by Ubertazzi; Gaja V.4;
Yearbook I(1976) p. 189.
Discussed at n.: I. 194.
no. 2
CORTE DI CASSAZIONE (SEZ. UN), February 27,1970, no. 470,

Louis Dreyfus Corporation of New Yorlc v. Oriana Societh di Navigazione
S.p.A.,
6 Rivista di Diritto Internazionale Privato e Processuale (1 970) p. 393; Foro
Italiano (1970) I. p. 105 1 with comment by Barone; Giurisprudenza Italiana
(1 970) I . 1, p. 1 18 with comment by Franchi; 9 Diritto negli Scam bi Internazionali (1 970) p. 153 with comment by Cutrera; Gaja V.5; Yearbook
I(1976) p. 189.
Discussed at n.: 1.133; 11.40; 11,299.
no. 3
TRIBUNALE OF RAVENNA, April 15,1970,

S,p.A. Agnesi v. Ditta Augusto Miserocchi,
6 Rivista di Diritto Internazionale Privato e Processuale (1970) p. 877; 9
Diritto negli Scambi Internazionali (1970) p. 556; Gaja V.6; Yearbook
a(1976) p. 190.
no. 4
CORTE DI APPELLO OF VENICE, July 13,1970,

G.A.P.A.P. K.G. v. Veronese,
Diritto neglia Scambi Internazionali (1971) p. 517; Gaja V.7; Yearbook
I(1976) p. 190.
Discussed at n.: %I.155.
no. 5
CORTE DI CASSAZIONE (SEZ. UN.), December 13,1971, no. 3620,

Ditta Augusto Miserocchi v. S.p.A. Paolo Agnesi,
8 Rivista di Diritto Internazionale Privato e Processuale ( 1 972) p. 563; 95
Foro Italiano (1972) 1.1, p. 6 15 with comment by Barone; 1 1 Diritto negli
Scambi Internazionali (1972) p. 112; Gaja V.13; Yearbook I(1976) p. 190;
see for comment also Morviducci, "La forma della clausola compromissoria
second0 la Convenzione di New Yorlc del 1958", 56 Rivista di Diritto Internazionale (1973) p. 732.
Discussed at n.: 1.20; 1.139; 1.191; 1.204.; 11.155; 11.201; 11.214; 11.271;
11.277; 11.282.
no. 6
TRIBUNALE OF MILAN, December 11,1972,

Pezzota Camillo v. S.a.S. C.I.P.R.A. di Schmutz & Co.,
11 Diritto negli Scambi Internazionali (1972) p. 484; Gaja V.14; Yearbook
I(1976) p. 191.
no. 7
CORTE DI APPELLO O F TURIN, March 30,1973,

Barthl Mayer O.H.G. v. Pannelli F.G.B.,
10 Rivista di Diritto Internazionale Privato e Processuale (1974) p. 126; 1 3
Annex D
427

I(1976) p. 391.
no. 8 CORTE DI ABBELEO OF BARI, May 30,1993,
Figli di Antonio Casulli v. Tradax England Ltd.,
10 Rivista di Diritfo Internazionale Privato e Processuale (1974) p. 285; 13
I(1976) p. 192.
Discussed at n.: I. 104; 1.227.
no. 9 CORTE DI NPELLO OF ROME, September 24,1973,
Intercommerce v. Eugenio Menaguale,
12 Diritto negli Scambi Internazionali (1973) p. 443; Gaja V.32; Yearbook
I(l976) p. 192.
Discussed at n.: 111.41;111.404; 111.405.
no. 10 CORTE DI CASSAZIONE (SEZ. UN.), November 10,1973, no. 2969,
Cantiere Navale Leopoldo Rodriguez v. Supramar A.G.,
Giurisprudenza Italiana (1975) I. p. 330 with comment by Franchi; Gaja
V.17; Yearbook L(1976) p. 192.
Discussed at n.: 1,134.
no. 1 1 CORTE DI APPELLO OF NAPLES, December 13,1974,
Frey, Milota, Seitelberger and Vesely v. F. Cuccaro e Figli,
1 l Rivista di Diritto I n ternazionale Privato e Processuale (1 975) p. 552;
Gaja V.22; Yearbook I(1976) p. 193.
Discussed at n.: 11.161; 11.220; 111.13; II1.lO1.
no. 12 CORTE DI APBELEO OF MILAN, December 13,1974,

S.a.S. C.I.P.R.A. di Schmutz & Co. v. Pezzota Camillo,
unpublished, Yearbook II(1977) p. 247.
Discussed at n.: 1.22; 1.305; 111.66.
no. 13 CORTE DI CASSAZIONE (SEZ. UN.), April 8,1975, no. 1269,
Agenzia Marittima Constantino Tomasos Ltd. v . Sorveglianza S.I.P.A.,
12 Rivista di Diritto Internazionale Privato e Processuale (1976) p. 133;
Gaja V.23; Yearbook II(1977) p. 247.
Discussed at n.: 1.133; 1.196; 11.155; 11.272; 11.299.
no. 14 TRIBUNALE OF MILAN, March 22,1976,
Sopac Italiana S.p.A. v. Bukama G.m.b.H. and F.I.M.M.,
12 Rivista d i Diritto Internazionale Privato e Processuale (1976) p. 574;
Gaja V.40; Yearbook II(1977) p. 248.
no. 15 CORTE D1 CASSAZIONE (SEZ. UN.), April 22,1 976, no. 1439,
Junakovic v. Seagull Shipping Company, and Oceanus Mutual Underwriting
Association v. Seagull Shipping, and Junakovic,
99 Fovo Italiano (1976) I. p. 1495; 13 Rivista di Diritto Internazionale
Privato e Processuale (1977) p. 852; Gaja V.33; Yearbook II(1977) p. 249.
428
Annex D
no. 16 CORTE DI APPELLO OF VENICE, May 21,1976,

S.A. Pando Compania Naviera v. S.a.S. FIEMO,
12 Rivista di Diritto Internazionale Privato e Processuale (1976) p. 85 1;
Gaja V.38; Yearbook III(1978) p. 277.
Discussed at n.: 1.240; 111.101; 111.249; 111.410.
no. 17 CORTE DI CASSAZIONE (SEZ. UN.), May 25,1976, no. 1877,
Begro B.V. v. Voccia and Antonio Eamberti,
13 Rivista di Diritto Internazionale Privato e Processuale (1 977) p. 88; 7 l
Foro Padano (1976) I. col. 57; 24 Recht der internationalen Wirtschaft
(1978) p. 619; Gaja V.39; Yearbook III(1978) p. 278; see for comment:
Luzzatto, "'La Corte di Cassazione e la 'forma' della clausola compromissoria
per arbitrato estero: forza di una tradizione ed equivoci di una massima", 14
Rassegna dell 'Arbitrato (1976) p. 157; Schneider, 24 Recht der internationalen Wirtschaft (1978) p. 619; Gaja, "' a legge olandese i: ignota a questa
Suprema Corte", 13 Rivista di Diritto Internazionale Privato e Processuale
(1977) p. 401; Franchi, ""$l19inte~azione della convenzione arbitrale mediante richiamo extratestuale", Giurisprudenza Italiana (1977) 1.1, p. 155 1.
Discussed at n.: 1,298; 11.155; 11.215; 11.269; 11.277.
no. 18 CORTE DI APPELLO OF FLORENCE, October 22,1976,
.A. Tradax Export v. S.p .A. Carapelli,
unpublished; Yearbook III(1978) p. 279.
Discussed at n.: 1.2; 1.104; '1.240; 1.249; 111.103; 111.320; 111.392 ;111.412.
no. 19 TRIBUNALE OF MILAN, November l 1, 4.976,
S.p.A. S.I.A.C.A. v. Solna Offset A.G. Printing Equipment and v. S.p.A.
Stabilimento Poligsafico C. Colombi,
13 Rivista di Diritto. Internazionale Privato e Processuale (1977) p. 110;
Discussed at m.: 11.122.
no. 20 TRIBUNALE OF MILAN, March 30,1977,

Montaggi Tubolari Montubi S.p.A. v. Spie Batignolles et al.,
14 Rivista di Diritto Internazionale Privato e Processuale (1 978) p. 360;
Not discussed.
no. 21 CORTE DI APPELLO OF NAPLES, February 20,1975,
Carters (Merchants) Ltd. v. Francesco Femaro,
Rassegna dell'Arbitrato (1978) p. 143; Gaja V.58; Yearbook IV(1979) p.
275.
Discussed at n.: 11.161; 11.279; 111.86; 111.96; 111.101; 111.186; 111.204;
111.218; 111.28%;111.283; 111.296; 111.376.
no. 22 TIXIBUNALE OF NAPLES, June 30,1976,
La Naviera Grmcebaco .A. v. Italgrani,
Gaja V.59; Yearbook IV(1979) p. 277.
Discussed at n.: 1.304; 111.18; 111.68; 111.102; 111.300; 111.320.
no. 23 CORTE D1 CASSAZIONE (SEZ. I), J m u a ~ y20, 1977, no. 272,
S.p.A. Nosegno e Morando v. Bohne Friedrich und Co .,
Annex D
429

Rassegna dell'Arbitrato (1977) p. 87; Gaja V.70; Yearbook IV(1979) p.
279.
Discussed at n.: 11.270;111.154.; 111.205.
Societh Brisighello v. Societh Chemapol, and Casa di Spedizioni Internazionali Zoni v. Festari,
Foro Italiano (1977) I. col. 2756; 14 Rivista d i Diritto Internazionale Privatu e Processuale (1978) p. 93; 17 Rassegna dell'Arbitrato (1977) p. 30;
Gaja V.68; Yearbook IV(1979) p. 280.
Discussed at n.: 1.197; 11.156; 111.155.
no. 25 CORTE DI CASSAZSONE (SEZ. I), April 18, 1978, no. 1842,
Eugenio Menamale v. Intercommerce,
unpublished; 18 Rassegna dell'Arbitrato (1978) p. 278; Yearboolc IV(1979)
p. 282.
Discussed at n.: 11.264; 11.273; 111.100; 111.104; 111.155; 111.404; 111.405.
no. 26 CORTE DI CASSAZIONE (SEZ. UN.), January 25,1977, no. 361,
Total Soc. It. p.a. v. Achille Lauro,
17 Rassegna dell Yrbitrato (1 977) p. 94; 9.4 Rivista d i Diritto Internazionale
Privato e Processuale (1978) p. 118; Gaja V.69; Yearbook IV(1979) p. 284.
Discussed at n.: 1.140; 1.190; 1.204; 11.155; 11,299.
no. 27 CORTE DI APPELLO OF MILAN (SEZ. UN.), May 3,1977,
Renault Jacquiriet v. Sicea,
32 Foro Padano (1974) col. 129; 18 Rassegna dell'Arbitrato (1978) p. 149;
Discussed at n.: 11.155; 11.260; 11.284; 111.105; 111.186; 111.205; 111.214;
111.300; 111.320; 111.376.
no. 28 CORTE DI CASSAZIONE (SEZ. UN.), May 12, 1977, no. 3989,
Scherk Enterprises A.G. v. Societ6 des Grandes Marques,
unpublished; 17 Rassegna dell irlrbitrato (1 977) p. 196; Yearbook IV(1979)
p. 286.
Discussed at n.: 1.190; 11.58; 11.96; 11.260; 11.264; 111.378.
no. 29 CORTE DI APPELLO OF FLORENCE, October 8,1977,
Bobbie Brooks 1nc. v. Lanificio Walter Banci .ti.$.,
18 Rassegna dellgrbitrato (1978) p. 161; Yearbook IV(1979) p. 289.
Discussed at n.: 11.231; 11.276; 111.85; 111.106; 111.153; 411.180; 111.202;
111.212; 111.279; 111.291; 111.376; 111.412; 111.415.
no. 30 CORTE DI CASSAZIONE (SEZ. I), February 2,1978, no. 459,
Catz 1ntemational N.V. v. S.p.A. Vaccaro,
18 Rassegna dell 'Arbitrato (1 978) p. 136; 80 Gizlrisprudenza dtaliana
(1978) I. col. 1008; Yearbook IV(1979) p. 292.
Discussed at n,: 111.100.
no. 3 1 TRIBUNALE OF BIELEA, Februasy 7,1978,
Filatura Abate Giuseppe e Figli S.a.S. v. S.A. Paul Aza.is et Cie,
430
Annex D
unpublished; 18 Rassegna dell'Arbitrato (1978) p. 171; Yearbook IV(1979)
p. 293.
no. 32 CORTE DI APPELLO OF FLORENCE, April 13,1978,

Rederi Aktiebolaget Sally v. S.r.1. Termarea,
unpublished: Gaja V.92; Yearbook IV(1979) p. 294.
no. 33 CORTE DI CASSAZIONE (SEZ. UN.), September 18, 1978,110.4167,
Gaetano Butera v. Pietro e Romano Pagnan,
Foro Italiano (1978)I. p. 2422;4Diritto Marittimo ( 1 9 7 8 ) ~671;
.
Yearbook
IV(1979) p. 296.
Discussed at n.: 1.101; 11.182; 11.216; 11.285.
no. 34. CORTE DI APPELLO OF MESSINA, May 19,1976,
S.a.S. Wieland 1C.G. v. Societh Industriale Meridionale,
Gaja V.67; Yearbook V(1980) p . 266.
Discussed at n.: 111.44; 111.84; 111.101.
no. 35 CORTE DI CASSAZIONE (SEZ. UN.), May 18,1978, no. 2392,
Societh Atlas General Timbers S.p.A. v. Agenzia Concordia Line S.p.A.,
Discussed at n.: 1.241; 11.155; 11.204; 11.299.
no. 36 CORTE DI APPELLO OF NAPLES (SALERNO SECTION), February 13,
1978,
G.A. Pap - K.G. Holzgrosshandlung v. Giovanni G. Pecoraro,
Yearbook VI(1981) p. 228.
Discussed at n.: 11.103; 111.163; 111.180.
no. 37 CORTE DI CASSAZIONE (SEZ. UN.), April 27,1979, no. 2429,
Compania Generale Construzioni CODEGA S.p .A. v. Piersanti,
Foro Italiano (1 980) 1. col. 190; 15 Rivista d i Diritto In ternazionale Privato
e Processuale (1 979) p. 565; Yearboolc VI(198 1) p. 229.
no. 38 CORTE DI CASSAZIONE (SEZ. UN.), September 1 1,1979, no. 4746,
Lloyd Continental v. S.p.A. Navigazione Alga,
16 Rivista d i Diritto Internazionale Privato e Processuale (1980) p. 425; 19
Rassegna dell'Arbitrato (1979) p. 307; Yearbook VI(1981) p. 230.
Discussed at n.: 11.159; 11.266; 11.269.
Metallgesellschaft A.G. v. Motosi Aldo and S.p .A. l.P .1.M. Ingegneria Prornozione Industriale Mineraria,
Giurisprudenza Italiana (1 980) 1. p. 562; 19 Rassegna dell 'Arbitrato (1 979)
p. 3 12; Yearbook VI(1981) p. 232.
no. 40 CORTE D1 CASSAZIONE (SEZ. I), April 15, 1980, no. 2448,
Official Receiver in the Bankruptcy of Lanificio Walter Banci S.a.S. v. Bob-
Annex 6>
43 1
bie Brooks Inc.,

Foro Italiano (1 980) I. col. 2 164 with comment by Barone; Gizlrispnldenza
Italiana (1980) I. p. 1259 with comment by Franchi; Yearboolc VI(1981)
p. 233.
Discussed at n.: 11.162; 11.231; 11.276; 111.152; 111.17 1; 111.180; 111.279;
111.291; 111.412; 111.415.
JAPAN
no. 1 COURT OF APPEAL OF TOKYO (2ND CIVIL SECTION), March 14,

1963,
Niroshi Nishi v. Casaregi Compania di navigazione e commercio,
Revue de l'arbitrage (1964) p. 102; Yearbook I(1976) p. 194.
MEXICO
no. 1 TRIBUNAL SUPERIOR DE JUSTICIA, 18TH CIVIL COURT OF FIRST

INSTANCE FOR THE FEDERAL DISTRICT OF MEXICO, February 24,
1977,
Presse Office .A. v. Centro Editorial Hoy S.A.,
unpublished; Newsletter Inter-American Arbitration (1977) 4th quarter;
Discussed at n.: 111.43; 111.65; 111.83; 111.198; 111.280; 111.358.
no. 2
TRIBUNAL SUPERIOR DE JUSTICIA [COURT OF APPEALS] (5TI-I

CHAMBER) FOR THE FEDERAL DISTRICT OF MEXICO, August 1,
1977,
Malden Mills Inc. v. Hilaturas Lourdes S.A.,
unpublished; Newsletter Inter-American Arbitration (1977) 4th quarter;
Discussed at n.: 111.41; 111.198; 111.358.
NETHERLANDS
Hoge Raad
Hof
Rechtbanlt
no.1
= Supreme Court
= Court of Appeal
RECHTBANK OF ROTTERDAM, June 26,1970,

Israel Chemicals & Phosphates Ltd. v. N.V. Algemene Oliehandel,
Nederlandse Jurisprudentie (1 97 1) p. 1372, no. 470; Uniform Law Cases
(UNIDROIT) (1970) p. 313; Gaja V.9; Yearbook I(19'76) p. 195; see for
comment Sanders, Weekblad voov Privaatrechf, Notariaat en Registratie no.
5307 (1975) p. 354.
Discussed at n.: I. 157; 11.202; 11.21 1; 11.222; 11.244.
no. 2A HOF OF THE HA6UE;September 8, 1972,

Societi: Europgenne d'Etudes et d9Entreprisesv. Federal Republic of Uugoslavia,
Revue de l'arbitrage (1 974) p. 3 13 with comment by Battifol; Netherlands
Annex D
4.32
Yearboolc o f International Law (1973) p. 390; Yearboolc I(1976) p. 196.

See for comments also Stuyt, "Misconceptions About International (Commercial) Arbitration", Netherlands Yearbook of International Law (1 974)
p. 35 ; Sanders, Weekblad voor Privaatrecht, Notariaat en Registratie no.
5394 (1977) p. 362.
Discussed at n.: 1.83; 1.181; 111.134.
no. 2B HOGE RAAD, October 26, 1973,

SociCte Europeenne d'Etudes et d'Entreprises v. Federal Republic bf Yugoslavia,
Nederlandse Jurisprudentie (1974) no. 361 with comment by Zonderland
and Panhuys; Revue de l'arbitrage (1 974) p. 3 18 with comment by Batiffol;
Netherlands Yearbook o f International Law (1974) p. 290; Gaja V.18;
Yearbook I(1976) p. 196. See for comment also t u y t and Sanders, supra
Neth. no. 2A.
Discussed at n.: 1.84; 1.181; 1.188; 111.137.
no. 2C HOF OF THE HAGUE, October 25,1974,
SociCtC EuropCenne d7Etudes et dCEntreprisesv. Federal Republic of Yugoslavia,
Revue de l'arbitrage (1974) p. 322 with comment by Batiffol; Yearbook
I(1976) p. 196. See for comment also Stuyt and Sanders, supra Neth. no.
2A.
Discussed a t n: 1.85; 111.114.
no. 2D HOGE RAAD, November 7,1975,
SociCt6 Europeenne d'Etudes et d9Entreprisesv. Federal Republic of Yugoslavia,
Nederlandse Jurisprudentie (1975) no. 274 with comment by Zonderland;
Gaja V.35; Yearboolc I(1976) p. 196. See for comment also Sanders, supra
Neth. no. 2A.
Discussed at n.: 1.87; 1.189; 111.113.
no. 3 PRESIDENT OF RECHTBANK O F THE HAGUE, April 26,1973,
unpublished; Aussenwirtschaftsdienst des Betriebs-Beraters (1 974) p. 163;
Discussed at n.: 11.186; 111.86; 111.179.
no. 4
PRESIDENT OF RECHTBANK O F AMSTERDAM, December 14,1977,

Discussed at n.: 111.85; 111.281;111.404.
no. 5 HOF OF THE HAGUE, April 19, 1973,

PRESIDENT OF RECHTBANK OF THE HAGUE, June 23, 1972,
Weinstein International Corporation v. Nagtegaal N.V.,
Discussed at n.: 1.309; 111.74.
SWEDEN
no. 1 SUPREME COURT, Aug~ast13, 1979,
SVEA COURT OF APPEAL (5TH DEPARTMENT) IN STOCKHOLM,
December 13, 1978,
Annex D
433
AB Gotaverlten v. General Maritime Transport Company (GNMTC),

unpublished (Case no. 0 1243/78); an English translation of the decision of
the Supreme Court and the summary of the decision of the Court of Appeal
can be found in Paulsson, "Arbitration and the Swedish Courts", paper submitted to the Seminar "Arbitration and State Courts", organized by the
Institute of International Business Law and Practice of the International
Chamber of Commerce, Paris, April 21-23, 1980; a French translation is
published in Revue de l'arbitrage (1980) p. 555; Yearbook VI(1981) p. 237.
Discussed at n.: 1.55; 1.90; 111.1 11; 111.234; 111.293; 111.302; 111.327; 111.331.
SWITZERLAND
Tribunal Fe'de'ral = Bundesgericht = Federal Supreme Court
Cour de Justice = Appellationsgericht = Obergericht = Court o f Appeal
Tribunal
no. 1 TRIBUNAL OF THE CANTON GENEVA (6TH CHAMBER), June 8,
1967,
J.A. van Walsum N.V. v. Chevalines S.A.,
64 Schweizerische Juristen-Zeitung (1968) p. 5 6 with comment by Schwartz
(at p. 49); Gaja V.2; Yearbook I(1976) p. 199,
Discussed at n,: 11.152; 11.200; 11.212; 11.226; 11.239.
no. 2
COUR DE JUSTICE OF THE CANTON GENEVA, May 12,1967,

Commoditex S.A. v. Alexandria Commercial Co .,
Semaine Judiciaire (1968) no. 37; YearbookII(1976) p. 199.
no. 3
TRIBUNAL FEDERAL (BUNDESGERICHT), May 3,1967,

Billerbeck & Cie. v. Bergbau-Handel G.m.b .H.,
Arrbts du Tribunal Fe'de'ral Suisse (Entscheidungen des schweizerischen
Bundesgerichts) (1967) 93 I. p. 265; Yearbook I(1976) p. 200.
Discussed at n.: 111.356; 111.403; 111.405.
no. 4
APPEELAT;60NSGERICHT O F THE CANTON BASELSTADT, September

6, 1968,
6 4 Schweizerische Juristen-Zeitung (1968) p. 378; Gaja V.27; Yearbook
I(1976) p. 200.
Discussed at n.: 111.246; 111.287.
no. 5
OBERGERICHT OF BASLE, June 3 , 1 9 7 1,

Basler Juristische Mitteilungen (1 973) p. 193; Yearbook IV(1978) p. 309.
Discussed at n.: 1.3; 1.186; 11.209; 11.213; 111.63; 111.8 1; 111.186; 111.188;
111.203; 111.219; 111.356; 111.400.
no. 6
COUR DE JUSTICE (FIRST SECTION) O F THE CANTON GENEVA,

September 17, 1976,
Lkopold E a z a s Ltd. v. Chrome Ressources S.A.,
Semaine Judiciaire (1977) p. 505; Yearbook IV(1978) p. 3 1 1.
Discussed at n.: 111.82; 111.223; 111.357,
Annex B
434
TUNISIA
no. 1 COURT OF FIRST INSTANCE OF TUNIS, March 22,1976,

SociBtB Tunisienne d'Electricit6 et de Gaz v. SociBtB Entrepose,
Revue de l'arbitrage (1976) p. 268 with comment by Mechri; Journal du
Droit International (1979) p. 661; Yearbook III(1978) p. 283.
Discussed at n.: 1.133; 111.129.
UNITED KINGDOM
no. 1 COURT OF APPEAL, April 2-8, 1976,
Kammgarn Spinnerei G.m.b.H. v. Nova (Jersey) Knit Ltd .,
2 Lloyd's Law Reports (1976) p. 155; Gaja V.55; Yearbook III(1978)
p. 284.
Discussed at n.: 11.44; 11.83; 11.89; 111.225.
no. 2 HOUSE OF LORDS, December 6-14,1976, Februa~y16,1977,
Nova (Jersey) Knit Ltd. v. Kammgarn Spinnerei G.m.b.H.,
1 Lloyd's Law Reports (19'77) p. 463; 1 Weekly Law Reports p. 7 13; All
England Law Reports (1977) Part 2, p. 463; Gaja V.56; Yearbook IV(1979)
p. 314.
Discussed at n.: 1.133; 11.44; 11.83; 11.89; 111.225.
no. 3 COURT OF APPEAL, July 20-21,1977,
1Coch Shipping Inc. v. Associated Bulk Carriers Ltd. ("The Fuohsan Maru"),
1 Lloyd's Law Reports (1978) p. 24; 7 Building Law Reports (1978) p. 18;
All England Law Reports (1978) Part 2, p. 254; Gaja V.57; Yearbook
IV(1979) p. 316.
Discussed at n.: 1. 156; 11.45; 11.82.
no. 4
HIGH COURT OF JUSTICE (CHANCERY DIVISION), October 4-6,1977,

Roussel-Uclaf v. G.D. Searle & Co. Ltd., and G.D. Searle & Co.,
1 Lloyd's Law Reports (1978) p. 225; Gaja V.72; Yearbook IV(1979) p.
317.
Discussed at n.: 11.44; 11.55; 11.126; 11.128.
no. 5 HIGH COURT OF JUSTICE (CHANCERY DIVISION), January 31,1978,

Lonrho Ltd., and Compania do Pipeline Mocambique Rodesia S.k r.l. v.
Shell Petroleum Company Ltd., British Petroleum Company Ltd., and 27
other oil companies and associated companies,
unpublished; The Times of February 1, 1978; Yearbook IV(1979) p. 320.
Discussed at n.: I. 154; 11.43; 11.86; 11.125.
no. 6 ADMIRALTY COURT (QUEEN'S BENCH DIVISION), December 12-21,
1977, and January 13, 197.8,
The Mauritius Sugar Syndicate and Tate & Lyle Refineries Ltd., Emcar Ltd.,
and Adam & Co. Ltd. v. Black Lion Shipping Co. S.A., and London Steamship Owners' Mutual Insurance Association ("The Rena K9'),
1 Lloyd's Law Reports (1978) p. 545; Gaja V.74; Yearbook IV(1979) p.
323.
Discussed at n.: 1.155; 11.59; 11.1 16; 11.286.
Annex B
435
UNITED STATES
Reviews o f several decisions:
EISEMANN, P., "L'arbitrage commercial international et le juge am6ricain",
1 Droit et pratique du commerce international (1975) p. 653.
JUNKER, J., "The Public Policy Defense to Recognition and Enforcement
of Foreign Arbitral Awards9', 7 California Western Internatio~zalLaw Jozirnal(1977) p. 228.
MIRABITO, A., "The United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards: The First Four Years", 5 Georgia
Journal of International & Comparative Law (1975) p. 471.
NOTES, "Judicial Interpretations of Foreign Arbitral Awards under the
U.N. Convention", 8 Law & Policy in International Business (1 976) p. 737.
TROOBOFF, P., and GOLDSTEIN, C., "Foreign Arbitral Awards and the
1958 New Yo& Convention: Experience to Date in the U.S. Courts9', 17
Virginia Journal o f International Law (1 977) p. 469.
no. 1 U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW

YORM, February 14,1973,
U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT, December 26,
1973,
Island Territory of Curaqao v. Solitron Devices Inc.,
356 Federal Supplement (1 973) p. 1; 489 Federal Reporter Second Series
(1973) p. 1314.; certiorari denied 416 United States Supreme Court Reports
(1974) p. 986; Gaja V.30 and 31; Yearbook I(1976) p. 201.
Discussed at n.: 1.119; 111.314; 111.315.
no. 2 U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT, May 24,1974,
National Metal Converters Inc. v. I/ Stavborg,
500 Federal Reporter Second Series (1974) p. 424; Yearbook I(1976)
p. 201.
no. 3 U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK,
June 4, 1974,
U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT, May 29,1975,
Copal Co. Ltd. v. Fotochrome Inc.,
377 Federal Supplement (1974) p. 26; 517 Federal Reporter Second Series
(1975) p. 5 12; Gaja V.20 and 25; Yearbook I(1976) p. 202.
Discussed at n.: 1.182; 1.293; 111.25; 111.34; 111.97; 111.3 15; 111.354.
no. 4 U.S. SUPREME COURT, June 17,1974,
Fritz Scherk v. Alberto-Culver Company,
417 United States Supreme Court Reports (1974) p. 506; Gaja V.54; Yearbook I(1976) p. 203. See for comments the publications mentioned under
"Review of several decisions"; see also 7 New York University Journal o f
International Law & Politics (1974) p. 383.
Discussed at n.: 11.7; 11.92; 11.96; 11.275; 111.348; 111.353; 111.377.
no. 5 U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT, July 8, 1974,
CEAT S.p.A. v. McCreary The & Rubber Co.,
501 Federal Reporter Second Series (1974) p. 1032; Gaja V.24; Yearbook
Annex D
I(1976) p. 204.
YORIC, September 27, 1974,
Splosna Plovba of Piran v. Agrelak Steamship Corporation,
. 381 Federal Supplement (1974) p. 1368; Yearbook I(1976) p. 204.
no. 7
U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT, December 23,

1974,
Parsons & Whittemore Overseas Co. Inc. v. Soci6t6 G6nkrale de 1'1ndustrie
du Papier (RAKTA), and Bank of America,
I(1976) p. 205.
Discussed at n.: 111.95; 111.97; 111.1 16; 111.183; 111.186; 111.220; 111.228;
111.235; 111.352; 111.366; 111.374; 111.388.
no. 8 U.S. DISTRICT COURT FOR THE DISTRICT OF NEW UERSEU, May 12,
1976,
Biotronik Mess- und Therapiegerate (3.m.b.H. & Co. v. Medford Medical Instrument Company,
415 Federal Supplement (1976) p. 133; Gaja V.41; Yearbook 11(1977) p.
250.
Discussed at n.: 111.97; 111.186; 111.193; 111.21 1 ; 111.354.
YORK, June 28,1976,
Antco Shipping Company Ltd. v. Sidermar SS.p
.A.,
417 Federal Supplement (1 976) p. 207; Gaja V.42; Yearbook II(1977) p.
251.
Discussed at n.: 1.1 19; 1.162; 11.129; 111.354.
no. I10 U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT, July 19,1976,
Imperial Ethiopian Government v. Baruch Foster Corporation,
II(1977) p. 252. See for comment, 12 Texas International Law Journal
(1977) p. 104,
Discussed at n.: 1.17; 111.21; 111.46; 111.90; 111.397.
no. 11 U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION, August 9,1976,
Audi-NSU Auto Union A.G. v. Overseas Motors Inc.,
418 Federal Supplement (1976) p. 982; Gaja V.43; Yearbook II(1977)
p. 252.
Discussed at n.: 1.23; 1.294; 111.29.
no. 12 U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT O F NEW YORK,
December 22, 1975,
Metropolitan World Tanker Corporation et al. v. P.N. Pertambangan Minjakdangas Bumi Nasional (P.M. Pertamha),
427 Federal Supplement (1975) p. 2; GajaV.62; Yearbook III(1978) p. 286.
Annex D
437
no. 13 U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, October 19,1976,
Fuller Company v. Compagnie des Bauxites de Guinee,
421 Federal Supplement (1976) p. 938; Gaja V.63; Yearbook XII(1978)
p. 287.
Discussed at n.: 1.163; 11.15; 11.1 13.
no. 14 U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, December 2, 1976,
Star-Kist Foods Inc. et a1. v. Dialtan Hope .A. et al.,
423 Federal Supplement (1976) p. 1220; Gaja V.6<; Yearboolc III(1978)
p. 289.
-Discussed at n.: I. 133.
1 , no. 15 U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, December 21, 1976,
B.V. Bureau Wijsmuller v. United States of America,
American Maritime Cases (1976) p. 2514; Yearbook III(1978) p. 290. See
for comment, McMahon, "United States Not Bound by Arbitration Provision of Salvage Contract Signed by Warship's Commander. B.V. Wijsmuller
v. United States", 9 Journal o f Maritime Law & Commerce (1978) p. 278.
Discussed at n.: 1.121; 11.96; 111.142; 111.362; 111.386.
no. 16 U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION, March 15,1977,
Audi-NSU Auto Union A.G. v. Overseas Motors Inc.,
unpublished (Civil Action No. 6-7 1054); Yearbook III(1978) p. 291.
Discussed at n.: 111.16; 111.23; 111.48; 111.86; 111.202; 111.228; 111.389.
YORK, March 21, 1977,
Andros Compania Maritima .A. v. Andri: & Cie S.A.,
430 Federal Supplement (1977) p. 88; Gaja V.65; Yearboolc III(1978) p.
293.
Discussed at n.: 1.3; 1.144; 11.65.
no. 18 U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT, June 20,1977,
Drys Shipping Corporation v. Freights etc. of the M.S. Drys et al.,
558 Federal Reporter Second Series (1977) p. 1050; Yearbook IV(1979)
p. 328.
YORK, August 8, 1977,
Coastal States Trading Inc. v. Zenith Navigation S.A., and Sea King Corporation,
446 Federal Supplement (1977) p. 330; Gaja V.82; Yearbook IV(1979)
p. 329.
Discussed at n.: I. 164; 11.64; 11.288.
no. 20 U.S. DISTRICT COURT FOR THE SO.UTHERN DISTRICT OF NEW
YORIC, December 2, 1977,
Ferrara S.p.A., and Fratelli Moretti Cereali S.p.A. v. United Grain Growers
Ltd.,
438
Annex B
441 Federal Supplement (1977) p. 778; Gaja V.84; Yearbook IV(1979)
p. 331.
Discussed at n.: 1.162; 11.7; 11.15; 11.101; II.255; 71.267; 11.274.

YORK, December 27,1977,
Dale Metals Corp., and Overseas Corp. v. KIWA Chemical Industry Co. Ltd.,
Tokyo Menka Kaisha Ltd., Sakai Trading New York Inc., and Sakai Trading
CO. Inc.,
442 Federal Stipplement (1977) p. 78; Yearboolc IV(1979) p. 333.
Discussed at n.: 1.133; 11.127.
YORIC, April 21, 1978,
Jugometal v . Samincorp Inc.,
unpublished (case no. 77 Civ. 5569-CLB); Yearbook IV(1979) p. 334.
Discussed at n,: 111.24.
I
I
no. 23 U.S. .DISTRICT COURT FOR THE NORTHERN DISTRICT OF CAEIFORNIA, September 26,1977,
Carolina Power & Light Company v. G.I.E. URANEX,
45 1 Federal Supplement (1 977) p. 1044; 17 International Legal Materials
(1978) p. 903; Gaja V.83; Yearbook IV(1979) p. 336.
no. 24 U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, September
25, 1978,
Ipitrade International .A. v. Federal Republic of Nigeria,
465 Federal Supplement (1978) p. 284; 17 International Legal Materials
(1978) p. 1395; Gaja V.88; Yearbook IV(1979) p. 337.
YORK, April 25, 1978,
Siderius Inc. v. Compania de Acero del Pacifico S.A.,
453 Federal Supplement (1978) p. 22; Gaja V.85; Yearbook V(1980)
p. 271.
Discussed at n,: 2.145; 11.40.
no. 26 U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT, July 17,1978,
Becker Autoradio U.S.A. Inc. v. Becker Autorailiowerk G.rn.b.H. et al.,
V(1980) p. 272.
YORK, July 19,1978,
Atlas Chartering Services Inc. v. World Trade Group Inc.,
453 Federal Supplement (1978) p. 861; Gaja V.87; Yearbook V(198C)
p. 274.
Annex D
439

YORK, Febsuay 14,1979,
Paramount Carriers Corporation v. Cook Industries Inc.,
465 Federal Supplement (1979) p. 599; Gaja V.89; Yearbook V(1980)
p. 275.
YORK, Apsil3,1979,
Beromun Aktiengesellschaft v. Societi Industride Agricola "Tresse" di Dr.
Domenico e Dr. Antonio Dal Feno,
471 Federal Supplement (1979) p. 1163; Gaja V.90; Yearbook VI(1981)
p. 243.
Discussed at n.: 11.21 1.
YORK, June 15,1979,
Transmarine Seaways Corp. of Monrovia v. Marc Rich g& Co. A.G.,
480 Federal Supplement (1979) p. 352; Yearbook VI(1981) p. 244.
YORM, October 12, 1979,
Sumitomo Corp., and Oshima Shipbuilding Co. Ltd. v . Parakopi Compania
Maritima S.A.,
477 Federal Supplement (1 979) p. 737; Gaja V.95; Yearbook VI(198 1)
p. 245.
Discussed at n.: I. 120.
no. 32 U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA,
January 18, 1980,
Lamiraoi7.s-Trefilieries-Cableriesde Lens .A, v. Southwire Company,
484 Federal Supplement (1 980) p. 1063; Yearbook VI(198 1) p. 247.
Discussed at n.: 111.354; 111.364.
no. 33 U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, January
18, 1980,
Libyan American Oil Company (LIAMCO) v. Socialist People's Libyan Arab
Jamahirya,
482 Federal Supplement (1980) p. 1175; Yearbook VI(1981) g . 248.
Discussed at no:111.140; 111.364; 111.380.
no. 1 MOSCOW CITY COURT (CIVIL DEPARTMENT), May 6, 1968,

Ingosstrakh v . Aabis Rederi, and Sovfrakht,
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Bibliography
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B. GENERAL
The selected bibliography below deals mainly with publications of a general nature
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The indexes below concern indexes of Articles of the Convention (I) and of
subject matters (11). An index of the implementing Acts can be found in Annex
C (pp. 417-418), and an index of the court decisions concerning the Convention
is contained in Annex D (pp. 419-439).
Numbers without indication refer to pages. Numbers with a "n." refer t o footnote on page indicated. Italics indicate place where subject matter is examined in
particular.
1.
INDEX OF ARTICLES OF THE CONVENTION
Title: 8; 12; 393

Article I (in general): 57; 93; 166
Article Z(1): 8; 12; 37; 147; 243; 279; 295
first criterion: 8; 12; 21 n. 36; 22; 28
second criterion: 19; 22-28; 29; 37-38;
29 2
Article I(2): 3 79-380
Article I(3): 14; 37; 51 n. 116; 147; 243;
295
first (reciprocity) reservation: 9; 12-14;
17; 21; 26-27; 51; 60; 65-66; 70;
74-80; 89; 106; 115-117
second (commercial) reservation: 51-54;
60; 61 n. 145; 106; 148; 373-374
Article I1 (in general): 9; 56; 63; 77; 113;
127; 250; 284-287; 359
Article II(1): 60; 122; 134; 145; 147-149;
152; 155; 170; 187; 190; 368-375
Article II(2): 9; 20; 21; 56; 62; 85-89; 95;
108; 114-115; 125; 145; 147; 155156; 170-232; 241; 250-252; 266;
269; 282; 284-287
Article II(3): 46 n. 99; 56-70; 87-88; 95;
102; 114; 122-168; 170; 186; 284;
289; 313 n. 225; 359; 269
Article 111: 102; 140 n. 6.1; 143; 234-245;
351
Article IV (in general) : 9; 40; 95 ; 102;
105; 109; 239; 240-245; 264
Article IV(1): 84; 243; 250-258; 259
(a) 257
(b) 170; 183; 249-250; 254; 256; 286;
287 n. 159
Article IV(2): 118; 248 n. 44; 250; 258262
Article V (in general): 9; 95; 102; 107-108;
238; 245; 264-269; 284
Article V(1) (in general): 27; 40; 41; 50:

84; 109; 185; 239; 243; 247; 250;
,.
264; 268; 300; 302; 359
Article V(l)(a): 23; 25; 37-39; 42; 83; 88;
96; 107; 124; 126-128; 146; 150 n.
90; 170; 177-178; 183; 226; 250;
267; 275-296; 303 n. 197; 305; 312;
317-318; 323; 350
Article V(l)(b): 96; 226; 276; 296-311;
312; 324; 376
Article V(l)(c): 96; 266; 271; 311-322
Article V(l)(d): 8; 36-43; 96; 103; 107;
124-125; 185; 265. n. 85; 266-267;
289-290; 295; 301; 307; 320;
322-331
Article V(l)(e): 25; 124; 185
"binding": 47-48; 108; 244; 265 n. 85;
267; 320; 333-349; 352; 356 n. 334,
suspension/setting aside: 19-22; 23 ; 3743; 95-96; 107; 267; 273; 289; 290
11. 168; 292; 294; 295; 321; 323;
330; 342-344; 346; 349-358; 369
Article V(2)(in general): 9; 18; 109; 239;
243; 264; 268; 271; 359-368
Article V(2)(a): 111; 152; 281; 289; 359360; 362; 367; 368-375; 376
Article V(2)(b): 19; 111; 266; 288; 299;
300; 302; 305; 307; 309; 310; 324;
360; 364 n. 354; 376-382
Article VI: 20; 239; 243; 337; 342-344;
346; 349; 350; 352; 353-354
Article VII(1): 79; 81-113;174; 179; 180;
184; 187-189; 192; 287
Article VII(2): 47; 78-80; 81; 86-87; 91;
107 n. 274; 113-118
Article X: 14; 51 n. 116; 115
Article XI: 14; 6 1 n. 116
Article XII(2): 74
Article X N : 14-15; 51 n. 116; 66
Article XVI(1): 91; 179; 190; 192: 315
311.
INDEX OF SUBJECT MATTERS
AAA
see American Arbitration Association
Act of State: 281; 367; 371-373
Acte de compromis
see Submission agreement
Acte solennel
see sub Arbitration agreement in writing
Actio ex contractu: 89
Actio ex delicto : 3 75
Adaptation of contracts: 45 n. 93
Adhesion contract
Adjournment of decision on enforcement:
43; 239; 318-319; 351-352
see also Index of Articles sub Art. VI
Affidavit: 240; 309; 338 n. 280; 377
Africa: 44 n. 91
Agency for International Development
(AID): 363-364
Agent
American Arbitration Association (AAA):
201; 265 n. 85; 284; 303; 366;
3 73
Arbitration Rules:
Sect. 31(2): 308
Sect. 39: 304
Sect. 43: 50 n. 107
Sect. 46(a): 144 n. 75
"A-national" award
see sub Arbitral award
Anti-trust: 134; 241; 369; 374
Andean Foreign Investment Code: 54 n.
128
Appeal on the merits: 127; 135; 156-157;
333; 342-346
see also Means of recourse
Appel en nullit6 : 21
Applicable law
t o arbitration: 2 9 4 3 ; 99; 124-125; 143 ;
152; 225 n. 301; 264; 292; 294;
307; 322-330; 391-392
t o substance of dispute: 33
see also sub Arbitrable subject matter
Arbitral award
Arbitral procedure
Arbitral tribunal
Arbitration agreement
Arbitration agreement in
writing
Applicable law, see also sub (cont.)

Autonomy of parties, contractual Conflict of laws mles
Law of the forum
Appointment of arbitrator
see sub Arbitrator
ApostUe: 257
Arbitrability
see Arbitrable subject matter
Arbitrable subject matter: 9; 15; 44-45 ;60;
111-112;368-375
applicable law: 123 ;152-154; 288-289 ;
369
forming part of public policy: 360; 368
list of -: 375
Appraisal: 45
Arbitral award
additional -: 321 n. 243
"a-national" -: 17; 28-43; 76 ; 3 25
applicable law: 23-28; 29-43 ; 89; 124;
152; 264; 313; 323; 339-342;
349; 351; 354
approval of -: 341
attestation: 255
binding: 9;47;48; 89; 244; 265; 267;
333-346
see also Index of Articles sub Art.
V(l)(e)
confirmation: 255; 340
conflicting award: 166
conflicting court decision: 159
COPY
see Certification
deposit: 46; 339; 344; 349
domestic -: 19; 59
enforceability: 6 ; 336; 340; 351; 352
"expatriate" -: 29; 3 7
final -: 7; 9;47;48; 105; 112; 246; 266267; 333-335; 339 n. 284
"floating7'-: 29; 37
foreign -: 8 ;12-55; 83
incomplete - (infra petita): 3 18;320321
in excess of arbitrator's authority (ultra
or extra petita): 265 ;311-322
in manifest disregard of the law: 273
interim -: 187
international -: 7; 17; 31-33; 35; 98-99
misinterpretation of law or facts: 269273
Arbitral award (cont.)

not considered as domestic: 19; 22-28;
29; 37-38; 124; 292; 350
on agreed terms: 50
see also Settlement
operative -: 334; 336
original
see Authentication
'
place of rendition: 21 ; 57 ; 83 ; 124 ;294295; 323
see also Place of arbitration
private document: 255 ; 257
reasons in -: 270-273; 365 n. 357; 366;
380-382
right of party under -: 85
signature on -: 250; 305
supranational -: 29
transnational -: 29
Arbitral clause
agreement to agee: 134
"home-on-home" -: 69
"one-sided" clause: 212
separability of -: 145-146; 156 ; 200;
372
short form: 217
specific cases: 134-135
and submission agreement: 102; 133134; 190-191; 203
and submission to arbitration: 3 14-316
see also Arbitration agreement
Arbitration agreement in writing
Geneva Protocol of 1923
Arbitsal institutions: 18; 3 1;69; 250; 256 ;
295; 310;323; 378
permanent -: 379-380
see also American Arbitration Association ( A M )
Bulgaria
Copenhagen Arbitration Committee for Grain and Feed Stuff
Trade
German Democratic Republic
German-Dutch Chamber of
Commerce
Grain and Feed Trade Association (GAFTA)
Hamburg Commodity Exchange
Inter-american Commercial
Arbitration Commission
(IACAC)
International Centre for the
Settlement of Investment Disputes (ICSID)
International Chamber of Commerce (ICC)
International Council of Hide and
Skin Shippers Association
London Cattle Food Trade Asciation (LCFTA)
Arbitral institutions, see also (cont.)

London Corn Trade Association
(LCTA)
London Metal Exchange
Netherlands Arbitlation Institute (NAI)
Netherlands Hide and Leather
Exchanges Association
Netherlands Oils, Facts and Oil-.
seeds Trade Association
(NOFOTA)
North American Export Grain
Association (NAEGA)
Romania
RUCIP
Asbitral procedure: 66 ; 105; 265 ;322-330
applicable law: 7; 8; 3 4 4 3 ; 66; 123-124;
152; 158; 307; 323
V(l)(d)
Arbitral tribunal, constitution/composition
of -: 265;322-330
applicable law: 7 ; 8 ;34-43 ;93 ; 246 ;3 23
V(l)(d)
Arbitral institutions sub permanent.
Arbitration
international
see Tnternational commercial arbitration
notion: 44; 46 ;49
voluntary: 163; 380
see also Compulsory arbitration
Procedures akin to arbitration
applicable law: 9; 23; 36-37; 83; 95; 123124; 126-128; 150-152; 154; 157159; 246; 267;277;282-295;
313; 323
V(l)(a>
bill of exchange: 147-148; 150-152; 312
ceasing of effect: 159; 162; 290
consent, lack of: 156; 177; 287-288; 290
COPY
see Certification
custom: 171; 210
defined legal relationship: 123;148-152
"de-nationalized"
see Arbitral award sub "a-national"
domestic -: 64; 69
dominant position of party: 266 ; 288
exclusion of ordinary court proceedings:
156-158
falling under New York Convention: 5671
foreign -: 6 1; 70
formation: 177-178; 193 n. 206; 287
454
Index
Arbitration agreement (cont.)

incapable of being performed: 60; 123;
136; 137; 144-145; 159-161; 162;
163; 166; 168
inoperative: 60; 123; 136-138; 144-145;
158-159; 162; 163; 168
international -: 58-70; 204
non-contractual claims: 148-149
non-domestic: 135 ;136
null and void: 60; 123; 136-138;
144-145;155-158; 162
oral: 179 n. 168; 171; 172; 190; 195;
203
renewal: 151
renunciation/revocation: 144 ; 158
scope: 128 n. 15; 148-152
see also Arbitral clause
Enforcement of arbitration
agreement
Submission agreement
Submission to arbitration
Index of Articles sub Arts. II(l),
II(3) and V(l)(a)
Arbitration agreement in writing: 9 ; 20 ; 56 ;
95 ; 123;170-232; 283
acceptance (specific -) : 84; 199-200;
20'5-207; 212-215; 229
acte solennel: 181
a d probationem : 181
a d su bstantiam : 181
a d validitatem: 181; 183
adhesion contract: 208-210
agent: 222-226
battle of forms: 206 n. 241
bill of lading: 65; 68; 175; 193 n. 206;
215; 220; 225 n. 299
broker's note: 89; 224 n. 297; 226
charter party: 65; 215; 220; 225
computer network: 205
consent: 177; 194; 197; 200; 219; 287288; 290
continuing trading relationship: 207;
221-222 ; 23 1
exchange of letters or telegrams: 172;
192; 193-202; 203-204; 222; 251252
exchange of telexes: 62; 95 n. 242; 193;
200; 201; 204-205; 207; 222
formal validity under national laws: 63 ;
172-177; 187; 197; 201 n. 231;
208-210; 213-215; 284-287
incorporation by reference: 165 ; 208215; 215-222
invoice: 201 ;207 ; 284
letter of credit: 201; 207
maximum/minimum rule: 178-180
oral acceptance: 196-198; 203 ; 206
practice of international trade: 191; 192;
198; 221-222; 229-230
Arbitration agreement in writing (cont.)

proof: 180-182
purchase order: 197-198; 201-202; 217;
284
purpose: 171-173; 204; 210; 216; 218
sales/purchase confirmation: 97; 179180; 182-183; 195; 196; 197-198;
200; 202; 205-207; 212-215 ; 222;
225 n. 299
salesnote: 207
signatures: 183;192-195; 196-199; 205;
220 n. 285; 252
standard conditions: 172; 174-176 ; 193 ;
208-222; 229
tacit acceptance: 171; 172; 196-198;
203-204 ; 206; 229; 231
telecopier: 205
uniform rule: 9; 61; 63; 173-178; 179;
182; 186-188; 190; 213; 287; 355
see also Arbitral clause
Submission agreement
Index of Articles sub Art. II(2)
Arbitration between State and private party
see Party sub State or public body
Arbitration of civil law: 45
Arbitration law
adequate: 18; 44 n. 91; 160; 394
Arbitruto irrituale: 44-49
Arbitrator
appointment: 26; 30; 52 11. 120; 124;
131; 159; 182; 299; 304-306;
324; 326-329
and application of New York Convention: 185-190; 197; 202
challenge: 30; 305-306
death : 124
duty to render enforceable award: 188
excess of authority
fees: 160
impartiality: 266; 302; 3 77-380
mandate: 3 14-316
name: 266;305-306; 324 n. 247; 367;
3 78
nationality: 3 1
negligence: 272
number: 41; 125; 290; 366; 380
replacement: 3 0; 131
sole -: 31; 326 n. 250
see also Arbitral tribunal
Competence of arbitrator
Argentina: 72; 101 n. 258
Asian-African Legal Consultative Committee
(AALCC): 2; 160 n. 119; 393
Attachment: 131; 139-144; 240
see also Interim measures for protection
Audi et alteram partem : 297
Index
Australia: 105
see also List of hplemonting Acts
(Annex C)
Austria: 10 n. 21 ;4 5 ; 6 2 ; 93 n. 235 and
237; 9 7 ; 132 n. 24; 176; 204; 257
n.69;288 .
Law on Execution
Sect. 1 no. 1 6 ; 50 n. 111
Sect. 7 8 : 249 n. 45
Austria-Germany, F.R., Treaty of 1959: 50
n. 114
Austria-Switzerland, Treaty of 1927: 106
n. 270; 109 n. 280
Austria-U.S.S.R., Treaty of 1955: 106 n.
26 9
Authentic texts, differences in see sub New York Convention
Authentication : 250-258; 25 9
see also Index of Articles sub Art. IV(1)
Autonomy of arbitral clause
see Arbitral clause sub separability
Autonomy of parties, contractual -: 267;
282; 291-292
Autorite' d 'appui: 30
Autorite' de chose jugke: 244
Bahamas: 257 n. 6 9 ;
Bankruptcy: 241; 244-245; 364
Battle of forms
Belgium: 10 n. 2 1 ; 13 n. 3 ; 5 1 ; 7 2 ; 93 n.
235-237; 111; 117 n. 307; 132 n.
24; 137 n. 4 6 ; 181 n. 179; 235;
251; 253; 257 n. 6 9 ; 279; 319;
335
Law of July 27,1961: 367; 370-371
Belgium-Germany, F.R., Treaty of 1958:
107 n. 275; 108 n. 278; 110
Belgium-Netherlands, Treaty of 1925: 109
n. 280
Belgium-Switzerland, Treaty of 1959: 11 1
Bestatigungsschreiben : 207
Bilateral treaties: 90-92; 105-113
See also Austria-Germany, F.R., Treaty
of 1959
Austria-Switzerland, Treaty of
1927
Austria-U.S.S.R., Treaty of
1955
Belgium-Germany, F.R.,
Treaty of 1958
Belgium-Netherlands, Treaty of
1925
Belgium-Switzerland, Treaty of
1959
Czechoslovakia-Spain, Treaty
of 1927
~zechoslovakia-Switzerland,
Treaty of 1926
455
I3ilateral treaties, see also (cont.)

Denmark-U.S.S.R., Treaty of
1946
France-Italy, Treaty of 1930
Germany, FA.-Greece, Treaty
of 1961
Germany, FA.-Italy, Treaty of
1936
Germany, F.R.-Netherlands,
Treaty of 1962
Germany, F.R.-Switzerland,
Treaty of 1929
Germany, F.R.-Tunisia, Treaty
of 1966
Germany, F.R.-United States,
Treaty (TFCN) of 1954
Italy-Netherlands, Treaty of
1959
Japan-United States, Treaty
(TFCN) of 1953
Netherlands-United States,
Treaty (TFCN) of 1956
Sweden-Switzerland, Treaty of
1936
Sweden-U.S.S.R., Treaty of 1940
Switzerland-U.S.S.R., Treaty
of 1948
Bill of exchange
see sub Arbitration agreement
Bill of lading
Bindend advies: 45 ;4 9
Binding award
see sub Asbitral Award
Bolivia: 101 n. 258
Bona fides
see Good faith
Botswana: 257 n. 6 9
see also List of Implementing Acts
(Annex C)
Brazil: 101 n. 258-259; 134 n. 3 2 ; 336; 362
Brolter
see Arbitration agreement in writing
sub agent
Broker's note
Bulgaria: 7 2 ; 93 n. 235; 254; 256 n. 6 5 ; 260
n. 7 7
Arbitration Court of the Chamber of
Commerce and Industry: 187 ;
379 n. 404
Burden of proof
in enforcement procedure: 7 ;9 ; 4 0 ; 2642 6 5 ; 3 0 0 ; 333; 338
Bustamante Code of 1928: 101 n. 258
Byelorussian SSR: 93 n. 235
California: 45 n. 94
Certification: 105 ; 249 ;250-258; 259-26 2
Challenge
see sub Arbitrator
Charter party: 147; 164-165; 326-329
and bill of lading: 215 ;220
see also sub Arbitration agreement in
writing
Chile: 13 n. 7; 101-103
Civil Law countries: 23; 51 ; 334; 359
CMEA
see Council for Mutual Economic
Assistance
Colombia: 13 n. 7; 54 n. 128; 101 n. 25826 0
Comm. C. Art. 2022 jo 379-385:
157 n. 110
Colonial clause
see Index of Articles sub Art. X
Commercial reservation
see Index of Articles sub Art. 1(3)
Common Law countries: 89 n. 228; 136 n.
42; 171; 334; 336; 359; 381
Comparative caselaw: 2-3 ; 3 83
Compatibility-provision: 81 ; 82; 90-92; 104;
109; 110; 111; 113; 114; 117
see also Index of Articles sub Art. VII(1)
Competence of arbitrator: 95; 107; 131132; 159; 162; 168; 186; 187189; 305; 312; 317; 320; 371
Competence of court: 45 ; 131-132; 143;
152; 157; 162; 182-184; 188189'; 214; 312; 350
Cornposition of arbitral tribunal
see Arbitral tribunal
Compulsory arbitration: 3 80
Concession agreement: 278 n. 125 ;281 ;
372
Conciliation: 157
Conflict of laws rules: 126-128; 185; 276277; 283; 291
see further Applicable law
Conflict of treaties: 82; 90-92
Consent
Arbitration agreement in writing
Consolidation: 16 1; 165
Constitution of arbitral tribunal
see Arbitral tribunal
Consumer protection: 208
Continuing trading relationship
Convention on Applicable Law of 1980
see sub European Communities
Copenhagen Arbitration Committee for
Grain and Feed Stuff Trade: 21;
266; 305-306; 324 n. 247; 367
Costa Rica: 101
Cost of arbitration: 136; 160-161; 238239; 319

Council for Mutual Economic Assistance
(CMEA): 100-101 ; 378-379
See also Eastern European arbitration
Counterclaim
see Set-off
Country of origin: 7; 19-22; 47; 243; 321;
325; 326; 330; 336; 337-340;
343; 346; 350-352; 355; 369
New York Convention inapplicable in -:
19-22; 3 26
Court of Justice of European Communities:
80 n. 208; 210 n. 257; 222 n.
290; 229-232; 343 n. 299
see also Judgments Convention of 1968
Crossclaim
see Set-off
Cross-examination: 300
Cuba: 13 n. 7; 93 n. 235; 101 n. 258 and
260
Cyprus: 257 n. 69
Czechoslovakia: 93 n. 235; 288; 380
Court of Arbitration attached to Chamber of Commerce: 379 n. 4034 04
Czechoslovalua-Spain, Treaty of 1927: 106
n. 270; 109 n. 280
Czechoslovakia-Switzerland, Treaty of
1926: 109 n. 280
Damages: 136-137; 147; 14.8
Default of party
see sub Party
Delaying tactics: 136; 267; 312; 346;351353; 377
"De-nationalized" arbitration
see Arbitral award sub "a-national"
Denmark: 21; 50; 93 n. 235 and 237; 96 n.
244; 171
(Annex C)
Denmark-U.S.S.R., Treaty of 1946 : 105 n.
26 7
Developing countries: 160-161; 277
Difference
see Dispute
Diplomatic or consular agent: 253 ; 260
Discovery of evidence: 240
Dispute: 136; 143; 146-148
Distributorship agreement, exclusive -:
111; 151; 161-164;370-371
Domestic law
on enforcement: 19; 88-90; 115 ; 268
see also More-favourable-right-provision
and New York Convention:
see New York Convention sub
domestic law
Index
Dominican Republic: 101 n. 258
Double exequatur: 7; 9; 108; 247; 266-267;
333-334; 337; 339-341; 344
see also Leave for enforcement in country of origin
Due process: 107; 265; 296-311; 3243 25
see al'so Index of Articles sub Art.
V(l)(b)
Duress: 156; 177; 287
East-West arbitration
see European Convention of 1961
Eastern European arbitration: 378-379
Uniform Rules of Procedure: 100
see also Council for Mutual Economic
Assistance (CMEA)
European Convention of 1961
Moscow Convention of 1972
ECOSOC
see United Nations Economic and Social
Council
Ecuador: 13 n. 7; 54 n. 128; 101 n. 25826 0
Egypt: 363-364
CC Art. 750: 212 n. 258
El Salvador : 101
Enforcement of arbitral award: 6 ; 95-98;
170; 173; 176; 186; 201 n. 232;
233-382
conditions: 23 9-240
in country of origin: 19; 25
as domestic award: 234-238
as foreignjudgment: 234-23 7
see also Foreign judgment
partial -: 318-319
procedure: 123 ; 143; 236-239
summary procedure: 41; 46; 234-236
Enforcement of arbitration agreement: 46
n. 99;56; 95-98; 105; 114;121169; 170; 173; 176; 186; 284-287
moment of invocation: 138-139
and more-favourable-right-provision: 8688
procedure: 143
referral to arbitration: 9; 122-169passim
referral mandatory: 62; 65; 123 ;135137: 163; 167; 168
see also Stay of court proceedings
English Arbitration Acts
see sub United Kingdom
Entry of judgment clause
see sub United States
Entry into force of New York Convention
see sub New Yolk Convention
Estoppel/Waiver: 95; 138; 139; 144; 182184; 199 n. 224; 229; 240; 241;
264-265; 280-281 ; 303; 305
Ethiopia: 15 ; 240
European Communities
Convention on the Law Applicable to
Contractual Obligations of 1980 :
154 11.100
see also Court of Justice of the Judgments Convention of 1968
European Convention of 196 1: 10 ;92-98
preamble: 92
Art. l(1): 93; 94
Art. I(2)(a): 95; 96 n. 245; 97; 176-177;
193; 204-205 ;207
Art. II(1): 280
Art. 111: 379
Art. IV: 93
Art. VI: 95
Art. VI(1): 139
Art. VI(2): 128; 152 n. 94
Art. VI(4): 144
Art. VIII: 381
Art. IX(1): 96; 98; 356
Art. IX(2): 95-96; 98; 356-357
Art. X(7): 92 n. 233
Agreement of 1962: 93 n. 237
European Uniform Law of 1966: 10; 394
Art. 2: 185
Art. 18(2): 146 n. 78
Art. 18(3): 132 n. 26
Art. 25(2)(e): 321 n. 242
Art. 25(4): 185
Evidence: 131; 270; 394; 307-308
prima facie - : 247-248; 264
Exclusive distributorship
see Distributorship agreement
Exequatur
see Double exequatur
Leave for enforcement in country of
origin
Expert: 309-310
Extra petita
Federal State clause
see Index of Articles sub Art. XI
Field of application of New York Convention: 8-9; 11-20
Fiji: 257 n. 69
Filling of gaps: 44-45
Final Act
see sub History of New York Convention
Final award
Force rnajeure: 306; 364
Foreign exchange: 160
Foreign judgment: 300; 360
enforcement as -: 89-90; 234-237; 349
merger of award: 25 8; 346-349
see also Leave for enforcement in country of origin
458
Index
Foreign law: 360; 365

Folmation of contracts
Forum non conveniens: 153; 363
Forum selection agreement: 80 n. 208; 363
see also Judgments Convention (EC) of
1968 sub Art. 17
France: 20; 23; 27;30; 35; 51;72; 93
n. 235 and 237; 180-181; 225;
237 n. 13; 251; 257 n. 69; 262;
271; 279; 283; 337; 349 n. 316;
352; 354; 361; 365 n. 354; 368
CC
Art. 2061: 133 n. 31
CCPr
Art. 333: 162 n. 124
C0mm.C.
Art. 631: 51; 133 n. 31
Arbitration Law of 1980:
Art. 2: 133 n. 31
Art. 3(1): 181 n. 175; 218 n. 281
Art. 4(3): 133 n. 3 1
Art. 6: 133 n. 31
Art. 42: 345 n. 307
Art. 48(1): 344 n. 304
France-Italy, Treaty of 1930: 106 n. 269
Fraud: 156; 177; 270; 287-288; 307; 362;
364 n. 354
fiaude d la loi: 371
GAFTA
see Grain and Feed Trade Association
General conditions
see Arbitration agreement in writing sub
standard conditions
Geneva Convention of 1927: 4 ; 7-9 ;12; 15 ;
39;47; 79; 91; 94; 107; 113-PP8;
132; 172; 244; 248; 251; 253;
260; 264; 266; 300; 303; 323;
327; 334; 348; 351; 353; 361;
365
Art.l(l): 107 n. 274; 115 n. 303; 234;
237 n. 13
Art. 1(2)(a): 283
Art. 1(2)(b): 368
Axt. 1(2)(c): 34
Art. 1(2)(d): 333
Ar-t. 2(1)(b): 275-276; 297
Art. 2(1)(c): 325
Art. 2(2) : 3 11 8-3 20
Art. 441): 246
~4.r.t.4.(1)(1) : 254
Arto4(1)(3): 35
Art. 4(2): 258; 333
Arte 5 : 117
Art. 6: 1 2
Art. 7(2): 115 n. 303
Geneva Protocol of 1923: 4 ; 6-9; 72; 79; 91;

94;113-118; 132; 133 11. 31; 134;
172
Art. 1: 6; 148
Art. l(1): 115 n. 303
Art. 1(2): 51
Art. 2(1): 34
Art. 4: 87; 114
Art. 4(1): 129
Art. 4(2): 138
German Democratic Republic: 93 n. 235
Court of Arbitration attached to Chamber of Foreign Trade: 379 n. 403
German-Dutch Chamber of Commerce: 70;
127; 156
Germany, F.R.: 13 n. 3; 16-17; 21; 23; 27;
35; 45; 93 n. 255 and 237; 97;
98; 105; 116; 127; 137 n. 46;
150; 151; 160 n. 119; 170; 181 n.
179; 240; 257 n. 69; 283; 285;
308; 337; 338 n. 280; 365; 371
CCPr
Sect. 1025(2): 266; 288
Sect. 1027: 171; 214 n. 270
Sect. 1039: 329 n. 286
Sect. 1041: 27
Sect. 1042: 340 n. 289
Sect. 1043: 27
Sect. 1044: 88-89; 237 n. 12;
Sect. 1044a: 50 n. 112
Sect. 1045(1): 27
Sect. 1046: 27
domestic law on enforcement of foreign
awards: 83; 98; 107 n. 275
Law on Restrictive Trade Practices: 134
(Annex C)
Germany, F.R.-Austria, Treaty of 1959: 50
n. 114
Germany, F.R. -Belgium, Treaty of 1956:
107 n. 275; 108 n. 278; 120
Germany, F.R.-Greece, Treaty of 1961: 50
n. 114
Germany, F.R.-Italy, Treaty of 1936: 50
n. 114; 107 n. 274
Germany, F.R.-Netherlands, Treaty of
1962: 10'7 n. 274; 112
Germany, F.R.-Switzerland, Treaty of
1929: 50 n. 114; 107 n. 274
Germany, F.R. -Tunisia, Treaty of 1966 : 5 1
n. 114.
Germany, F.R.-United Sta.tes, Treaty
(TFCN) of 1954 : 113 n. 294
Ghana
see List of Irnplernenting Acts
( A ~ ~ n C)
ex
GZ~!risdi'zione: 16
Good faith/Bomfides: 185; 240; 324.; 346;
353; 377
Index
Government
see Party sub State or public body
Grain and Feed Trade Association
(GAFTA): 345 n. 306
Greece
CC Arts. 216-217: 223; 225
CCPr 1834 (former)
Art. 858: 338 n. 280
CCPr 1968 (new): 338 n. 280
Art. 903: 237 n. 1 2
Greece-Germany, F.R., Treaty of 196 1 : 50
n. 114
Grosse: 257 n. 70
Grounds for refusal of enforcement:
in general: 264-269
grounds exhaustive/lirnitative: 9 ; 22 ;40 ;
247; 268-269; 320
Guarantee: 164-165; 3 18-320
see also Security
Guatemala: 101 n. 258-259; 336
Guinea, Republic of-: 6 8
Haiti: 101 n. 258
Hague Convention on Agency of 1978: 224
n. 296
Hague Convention on Legalisation of 1961:
257
Hague Convention on Selected Forum of
1958: 196 n. 217
Hamburg Commodity Exchange: 224; 225;
256 n. 66; 324
Platzusancen Sect. 20: 324
Hamburg Friendly Arbitration: 178 n. 168;
186
Handelsgesch~ft: 171
Handelsmakler: 224 n. 297; 226
Hearing: 307
History of New York Convention: 6-9;
13-14; 17; 23; 56; 72-73; 79; 86;
137-138; 148; 171-173; 179; 181;
196; 206; 234-236; 246-247; 250;
251-252; 257; 260; 267; 275-276;
279; 282-283; 285; 303; 306;
319; 323; 333-337; 342; 345 n.
305; 346; 351-352; 361-362
Final Act: 51 n. 116; 135 n. 38
preparatory works: 4 ; 8 n. 18; 78
see also International Chamber of Commerce (ICC) sub Draft Convention of 1953
United Nations Economic and
Social Council (ECOSOC) sub
Draft Convention of 1955
Honduras: 101
Hungary: 93 n. 235; 257 n. 69
459
IACAC
see Inter-american Commercial Arbitration Commission
ICC
see International Chamber of Commerce ,
ICCA
see International Council for Commercial Arbitration
ICSID
see International Centre for the Settlement of Investment Disputes
Immunity, sovereign - : 5 2-53 ;280-282;
373
Impartiality
see sub Arbitrator
Implementing Acts: 5 ;26 8
see for references, Annex C
India: 53; 105; 165; 265 n. 85; 319; 340;
354
Arbitration Act 1937: 132
Arbitration Act 1940: 20
Arbitration Act 1961,
see List of Implementing Acts
(Annex C)
Indonesia: 45
Infra petita
Insurance policy
determination of loss under -: 44
Inter-american Commercial Arbitration
Commission (IACAC) : 103 ; 160
n. 119
Interest: 319; 365 n. 354
Interim measures for protection: 95; 131;
137; 140 ; 142-144
see also Attachment
Security
International Centre for the Settlement of
Investment Disputes (ICSID) : 99100
"Additional Facility": 99-100
International Chamber of Commerce (ICC):
6
arbitration conducted under -: 20; 21 ;
27;68; 151; 165; 278; 303; 306;
362; 364-365 n. 354
Arbitration Rules: 167 n. 138
1955 Art. 16: 3 2
1975 Art. 8(5): 144 n. 75
Art. 11: 30-31;32
Art. 12: 69 n. 167
Art. 17: 50 n. 107
Art. 22: 33 n. 56
Art. 24: 344
Draft Convention of 1953: 7; 8; 17;3436; 333
Art. 11: 234 n. 2
460
Index
ICC
Draft Convention of 1953 (cont.)
Art. III(a): 172 n. 145; 283
Art. III(b): 35
Art. IV(a): 368 n. 369
Rules for Adaptation of Contracts: 45
n. 93
International commerce: 17-18; 19; 54; 58;
93; 102
International commercial arbitration: 1 ;5 ;
10; 30-34; 61; 83; 143; 153; 269;
287
International conventions
see Multilateral conventions
International Council for Commercial Arbitration (ICCA): 1 n . l ; 161
International Council of Hide and Skin
Shippers Association: 21 7
International Court of Justice: 3
Interpretation
autonomous: 157; 208-211; 215; 341346; 349
based on Geneva Protocol of 1923 and
Geneva Convention of 1927: 4
harmonization of -: 232
historical: 4
by International Court of Justice: 3
narrow construction: 155; 268; 297;
313; 363-364; 366-368;
rules of -: 3-5
spirit: 191; 198; 201
strict: 191-192; 320
uniform -: 1-5; 23
see also New York Convention sub proenforcement bias
Vienna Convention of 1969
Uniform provisions of New
York Convention
Intervention third party: 16 1; 163 ; 164
Investment arbitration
see Washington Convention of 1965
Ireland: 116 ; 117
Israel: 65; 72; 105; 137-138; 235 n. 4 ; 251;
257 n. 69; 283; 319; 336; 352
boycott clause of -: 32 n. 54; 364 n. 354
Italy: 36; 4 5 4 9 ; 59; 93 n. 235 and 237;
115-118; 140; 148; 183; 187;
219; 257 n. 69; 319; 336; 339;
341; 346; 370
CC Art. 1392: 193 n. 206; 223; 225
Arts. 1341-1342: 84 n. 213; 129 n.
15; 175-176; 178; 187; 189; 199;
209; 211-215; 216; 217 n. 276;
219 n. 282
Art. 2705: 195
CCPr Art. 2: 16; 59
Art. 123: 248 n. 44; 262
Art. 798: 239; 269-270
Art. 825(3): 48
Italy
CCPr (cont.)
Art. 800 jo 796: 237 n. 13; 238
n. 15
Arts. 806-808; 187-189
General Provisions of Law
Art. 26: 174-175; 213-214; 219 n.
282; 225 '
Art. 27: 175
see also Arbitrato irrituale
Relatio (im)perfecta
Italy-France, Treaty of 1930: 106 n. 269
Italy-Germany, F.R., Treaty of 1936: 50 n.
114; 107 n. 274
Italy -Netherlands, Treaty of 1959: 107 n.
274; 110 n. 282
Japan: 112; 171; 237-238; 244; 257 n. 69
CCPr Art. 800: 348 n. 315
Japan-United States, Treaty (TFCN) of
1953: 112
Joinder: 161; 163-164; 214
Judgment
see Foreign judgment
Judgments Convention (EC) of 1968: 80
n. 208; 162 n. 124
Art. 17: 210 n. 257;229-232
Ars. 30 and 38: 343 n. 299
Convention of 1978: 229-23 1
Protocol of 1971: 229 n. 306
Jure imperii/gestionis, acta - : 5 3 ;280-281
Jurisdiction of arbitrator: 131 n. 22
see also Competence of arbitrator
Jus cogens : 36 1
Kompetenz-Kompetenz : 3 12
see also Competence of arbitrator
Latin America: 44 n. 91; 134; 235; 248;
335; 345 n. 307
and New York Convention: 13
see also Bustamante Code of 1928
Inter-american Commercial
Arbitration Commission
(IACAC)
Panama Convention of 1975
Treaty of Montevideo of 1889
Law of the forum: 54; 152-154; 165; 181;
184; 236-241; 244; 252; 298
League of Nations: 6
Leave for enforcement in country of origin:
7;47; 89; 108; 246-247; 257;
266-267; 333-337; 346-348
see also Double exequatur
Index
Legalisation: 254
see also Hague Convention on Legalisation of 1961
Lesotho: 257 n. 69
Letter of credit
Letter rogatory: 248
Lex fori: 152
see also Law of the forum
Lex loci actus: 224 n. 296
Lex mercatoria: 1; 3 3 ; 208
Lex posterior: 90-91; 97; 99; 101; 104; 109;
110; 112; 113; 117
Lex specialis: 90-91;99; 110; 112
Lex validitatis: 253
LCFTA
see London Cattle Food Trade Association
LCTA
see London Corn Trade Association
Libya: 21; 281; 316; 367; 371-373
CC Arts. 150-151: 212 n. 258
Licensing agreement: 213 n. 264; 370
Liechtenstein: 257 n. 69
London Cattle Food Trade Association
(LCFTA): 49 n. 104
London Corn Trade Association (LCTA):
47-49; 219
see also Grain and Feed Trade Association (GAFTA)
London Metal Exchange: 256 n. 66
Luxembourg: 116; 257 n. 69
Malawi: 257 n. 69
Malta: 257 n. 69
Mandate
see sub Arbitrator
Mandatory provisions: 19 ;3 1-33;60; 308 ;
326-330; 365; 371; 376; 380
see also Public policy
Maritime
arbitration: 58
transactions: 5 2
transport: 370 n. 376
see also Bill of lading
Charter party
Mauritius Island: 116 ; 257 n. 69
Maximum efficacy, principle of -: 90 ; 97 n.
247; 99; 101; 104; 110; 113
Means of recourse: 340
ordinary/extraordinary -: 4 7 4 8 ; 3 20321; 334-336; 342-343
see also Appeal on the merits
Merger of award
see Foreign judgment
Mexico: 13 n. 7; 101-103; 365-366
CCPr Art. 302(1): 248
Arts. 604408: 237 n. 13
Art. 605 No. IV: 303
46 1
MFR-provision
see More-favourable-right-provision
Misrepresentation: 156 ;177 ;287
Monaco: 253
More-favourable-right-provision (MFR) : 8 1;
82-88;90-92; 98; 104; 109-115;
117-118; 179; 180; 184; 189
Moscow Convention of 1972: 100-101
Art. VI(1): 93 ; 100-101
Multilateral Conventions: 90-92; 98-105
see also Bustamante Code of 1928
Convention on Applicable Law
(EC) of 1980
European Convention of 196 1
European Uniform Law of 1966
Geneva Convention of 1927
Geneva Protocol of 1923
Hague Convention on Agency of
1978
Hague Convention on Legalisation of 1961
Hague Convention on Selected
Forum of 1958
Judgments Convention (EC) of
1968
Moscow Convention of 1972
Panama Convention of 1975
Vienna Convention of 1969
Washington Convention of 1965
Multi-party arbitration
see sub Party
see also Consolidation
Intervention of third party
Joinder
NAT
see Netherlands Arbitration Institute
NAEGA
see North American Export Grain Association
Nationalization: 278 n. 125; 281 ; 367; 371373
Natural law: 361
Ne bis in idem : 158; 244
Netherlands: 13 n. 3; 41-43; 50;65; 75; 94
n. 240; 112; 116 n. 306; 127;
170-172; 181; 187-188; 196; 214;
247; 257 n. 69; 258; 261; 264; 275276; 289-290; 306; 309-310; 319;
334-336; 351
CCPr Art. 646(1): 157 n. 109; 345 n.
307
Art. 993 jo 985,: 237 n. 13
Netherlands Arbitration Institute (NAI):
187; 189
462
Index
NAI (cont.)
Arbitration Rules of 1979, Art. 11: 31
n. 52
Netherlands-Belgium, Treaty of 1925: 109
n. 280
Netherlands Hide and Leather Exchanges
Association: 186; 187; 189; 202;
378
Netherlands-Germany, F.R., Treaty of
1962: 107 n. 274; 112
Netherlands-Italy, Treaty of 1959: 107 n.
274; 110 n. 282
Netherlands Oils, Fats and Oilseeds Trade
Association (NOFOTA): 186 ;200
Netherlands-United States, Treaty (TFCN)
of 1956: 107 n. 274; 108 n. 276;
118
New York Conference of 1958
see History of New York Convention
New York Convention
differences in authentic texts: 91-92;
179; 190-191; 314-316
and domestic law: 16 ; 63 ; 123-126 ; 186;
248; 268; 269
entry into force: 74-80; 91
object/purpose: 4; 5; 47; 61; 63; 72;
79; 91; 92; 132; 143; 158; 235;
286; 320; 347-348; 354; 365
procedural or substantive: 72; 75-80;
186
proenforcement bias: 84; 87 ; 151 ; 155 ;
267; 310; 313
see for Text, Annex A
see also History of New York Convention
Revision of New York Convention
Uniform provisions of New
York Convention
New York State
NYCPLR
Sect. 5301-5309 (New York Foreign
Country Money Judgments Statute): 348
Sect. 6201 et seq.: 69 n. 165
New Zealand: 116
Nicaragua: 101 n. 258-259
Nigeria: 281
NOFOTA
see Netherlands Oils, Fats and Oilseeds
Trade Association
North American Export Grain Association
(NAEGA): 216
Norway: 36
Notice: 303-306; 308
see also Summons
Opposition : 3 3 3 ; 344
Opposition d ordonnance d'exequatur: 344
n. 304
Ordonnance d 'exequatur : 25 7 n. 70
Ordre public: 359
Organization of American States (OAS):
101
l'actunz de contrahendo
see Arbitral clause sub agreement lo
agree
Panama: 94; 98; 101 n. 258; 102; 115
Panama Convention of 1975 : 101-105
Art. 3: 103
Art. 5: 102
Art. 5(l)(b): 105
Art. 5(l)(d): 103
Art. 5(l)(e): 105
Pakistan: 361 n. 344
Paraguay: 101 n. 258; 102
Partnership: 150
Party
applicable law: 123; 156 ;276-277
capacity of -: 123; 156; 275-277
default of -: 129; 270; 306-307
interested -: 84-85
multi-party disputes: 161-168
nationality of -: 7; 8; 12;15-17;18;5860; 66-67; 70; 102; 106; 115117; 376
representation: 275-276
State or public body: 52-53; 66; 98-100;
276 ;277-282; 372-373
see also Immunity, sovereign subsidiary: 66; 164
succession: 270
third -: 161
Patents: 369
Penal law: 375
Penalty: 365 n. 354
Permanent arbitral tribunals
see sub Arbitral institutions
see also Index of Articles sub Art. I(2)
Peru: 13 n. 7; 101 n. 258
Place of arbitration: 29; 30; 32; 40; 57; 63;
69-70; 124; 127; 131; 153;
160;294-295; 323; 325
Poland: 93 n. 235; 114; 137 n. 46; 181 n.
179
Portugal: 116; 257 n. 69
Pourvoi en cassation : 333
Power of attorney: 266
see also Arbitration agreement in writing
sub agent
Preparatory works
see sub History of New York Convention
Procedure for enforcement
see sub Enforcement of arbitral award
Index
Procedures akin to arbitration
see Appraisal
Arbitrato i~7.ituale
Bindend advies
Conciliation
Schiedsgu tach ten
Valuation
Pro-enforcement bias
see sub New York Convention
Protocol to New Yorlc Convention
see Revision of New York Convention
Provisional remedies
see Interim measures for protection
Public international law: 92; 361; 372
Public policy: 9; 17; 18-19; 42; 53; 54; 107;
108; 110; 112; 135; 269; 271273 ;359-382
country of origin; 96 ; 355-356
distinction domestic/international -: 54;
152-153; 266; 268; 297; 304;
360-366; 375; 379-381
see also Mandatory provisions
Ordre public
Index of Articles sub Art. V(2)
Purchase confirmation
Purpose of New York Convention
see sub New York Convention
Quality arbitration: 44 11. 91; 48; 324
Reasons for award
sub sub Arbitral award
Rech tsunwirlcssam : 8 9
~eciprocity:?3-15;21; 27; 65-66; 102
see also Index of Articles sub Arts. I(3)
and XIV
Recognition
arbitral award: 243-245
arbitration agreement: 56 n. 130; 121
n. 1
Re-examination of the merits
see Review of the merits
Referral to arbitration
see sub Enforcement of asbitration
agreement
Rt?gle d'efficaciti maximale
see Maximum efficacy, princip1.e of Removal of cases: 141-14.2
Relatio (imlperfecta : 214
Representation
see sub Pasty
Res judicata: 105; 107; 158; 24.4
Reservations to New York Convention: 51
n. 116
first and second reservation: see Index of
Articles sub Art. I(3)
463
Restrictive trade p~.actices

sze Anti-trust
Retroactivity: 43 ; 72-80; 308
Review of the merits: 46;48; 131; 137;
239; 265;269-273; 302; 308;
313; 317; 319; 343; 350; 381
Revision of New York Convention: 2; 228232; 238; 356-357; 393-394
Rhodesia
see Zimbabwe
Romania: 13 n. 3; 28; 93 n. 235; 98; 116;
118; 159; 265 n. 85; 270; 290
n. 169; 317
Arbitration Commission attached to
Chamber of Commerce and Industry: 240; 379 n. 404
RUCIP (European Potato Trade): 69 n. 168
Sales confirmation
Sales note
Saudi Arabia: 44 n. 91; 153 n. 96
Schiedsgu tachten : 45
Schiedsvergleich: 50-51
Schlussbrief: 207
Schlussnote: 224; 226
Schluszschein : 226
Scope of New Yorlc Convention
see Field of application of New Yorlc
Convention
Seychelles: 257 n. 69
Security: 137; 140; 353-354
see also Guasantee
Securities transaction: 153 n. 96; 362-363;
3 70
Separability of arbitral clause
see sub Asbitral clause
Set-off: 148; 150-151; 240-241 ;244
Setting aside of arbitral award: 19-22; 23 ;
26-28; 30; 37-43; 83; 89; 95-96;
98; 131; 152; 158; 185; 265; 271;
289; 321; 326-327; 333; 335-337;
349-352; 354; 355-357; 365
V( 1)(el
Settlement: 49-50;68; 128 n. 15; 158-159;
270
see also Arbitral award sub on agreed
terms
Severability of arbitra.1 cla-use
see Arbitral clause sub separability
Sovereign immunity
see Immunity
Socialist countsies: 138 n. 50; 270; 277;
378-380
South Africa.: 105
464
Index
Spain: 93 n. 235 and 237; 102; 257 n. 69

Spain-Czechoslovakia, Treaty of 1927 : 106
n. 270; 109 n. 280
Spain-Switzerland, Treaty of 1896 : 106 n.
271
Special Case
see United Kingdom sub Arbitration
Act 1950, Sect. 21 '
Standard conditions
State or public body
see sub Party
Stay of court proceedings: 53; 54; 64; 65;
68; 129; 131; 135-137; 147; 149;
151; 160; 162-164; 166; 167;
189; 362; 364
see also Enforcement arbitration agreement
Step in proceedings: 139 n. 55
Strasbourg Convention of 1966
see European Uniform Law of 1966
Submission agreement: 133-134; 171; 190191; 196;202-204;314-316
see also sub Arbitral clause
Submission to arbitration: 102; 132-135;
246 ;314-316
Subsidiary
see sub Party
Summons: 105; 107; 129; 303; 365-366
see also Notice
Surinam: 257 n. 69
Suspension of award: 334-335; 340; 344345 ;351-352
V(l>(e)
Swaziland: 257 n. 69
Sweden: 21; 132 n. 24; 137 n. 46; 171;
181 n. 179; 283
(Annex C)
Sweden-Switzerland, Treaty of 1936 : 107
n. 274
Sweden-U.S.S.R., Treaty of 1940: 105
n. 267
Switzerland: 16-17; 35; 72; 75; 111; 115;
170; 174; 238; 261; 281; 299300;306;308;335;361;365
Code of Obligations Art. 13: 195
Conseil f6d6ral: 339-340
Canton Vaud
CCPr Sect. 516: 41
Concordat
Art. 34: 50 n. 111
Art. 36: 345
Switzerland-Austria, Treaty of 1927: 106
n. 270; 109 n. 280
Switzerland-Belgium, Treaty of 1959: 111
Switzerland-Czechoslovakia, Treaty of
1926: 109 n. 280
Switzerland-Germany, F.R., Treaty of

1929: 50 n. 114; 107 n. 274
Switzerland-Spain, Treaty of 1896: 106 n.
27 1
Switzerland-Sweden, Treaty of 1936 : 107
n. 274
Switzerland-U.S.S.R., Treaty of 1948: 106
n. 272
Tax laws/regulations: 16; 60; 376

TFCN
see Treaty of Friendship, Commerce and
Navigation
Time limits:
appointment arbitrator: 304-305
enforcement award: 241
initiation of arbitration: 124; 159; 290;
317-318
means of recourse: 335-336
preparation of defence: 308-309
rendition award: 124;'158
Title of New York Convention: 8 ; 12; 3 93
Tonga: 257 n. 69
Tort: 163
see also Arbitration agreement sub noncontractual claims
Trade associations: 378
Trademarks: 153 n. 96; 369-370
Transfer of technology: 15;53-54
Translation: 248 n. 44 ;258-262
Treaty of Friendship, Commerce and Navigation (TFCN): 105-106
Germany, F.R.-United States of 1954:
113 n. 294
Japan-United States of 1953: 112
Netherlands-United States of 1956: 107
n. 274; 108 n. 276; 118
Treaty of Montevideo of 1889: 101 n. 258
Treaty of Montevideo of 1940: 101 n. 258
Treaty of Montevideo of 1979: 102; 104105
Trinidad and Tobago: 13 n. 7; 101 n. 260
Tunisia: 278
Tunisia-Germany, F.R., Treaty of 1966: 51
n. 114
Turltey: 36; 72; 137-138; 181 n. 179; 336
Ukrainian SSR: 93 n. 235
Ultra petita
Umpire: 328; 339 n. 284
Unable to present case
see Due process
UNCTTRAL
see United Nations Commission on
International Trade Law
Index
Undue influence: 156; 177; 288
Unfair competition: 162
Uniform law on arbitration: 10; 160 n. 119;
3 94
see also European Uniform Law of 1966
Uniform provisions of New York Convention: 16; 123-126; 134; 135; 138;
139; 148; 234-235; 248; 268;
269; 277; 282; 291; 319
see also sub Arbitration agreement in
writing
United Icingdom: 12; 13; 18; 36;45; 105;
115; 132 n. 24; 136; 137; 181 n.
179; 196; 220; 237 n. 13; 224;
257 n. 69; 380
English Arbitration Act 1934: 132
English Arbitration Act 1950: 62; 65
Sect. 4(1): 135-137
Sect. 4(2): 132
Sect. 7(b): 326 n. 250
Sect. 8: 48
Sect. 9(1): 48; 328-329
Sect. 10: 48
Sect. 16: 48; 339 n. 284
Sect. 21 (Special Case): 18 n. 24 ; 345
Sect. 23: 48
Sect. 26: 347
English Arbitration Act 1975,
see List of Implementing Acts
(Annex C )
English Arbitration Act 1979: 18 n. 24 ;
48; 157; 328-329; 345-346
Sect. 1j0 3: 135
Sect. l(5)-l(6): 381 n. 411
Sect. 6(2): 329 n. 257
United Nations Commission on International Trade Law (UNCITRAL):
2; 394
Arbitration Rules of 1976: 103 n. 263
Art. l(2): 31
Art. 16(1): 69 n. 167
Art. 26(3): 144 n. 75
Art. 34: 50 n. 107
Art. 37: 321 n. 243
United Nations Economic Commission for
Europe (ECE): 92
United Nations Economic and Social Council (ECOSOC)
Draft Convention of 1955 : 2-3 ; 7-8; 14;
17; 23; 34-36; 236; 251; 252;
260; 264; 275; 279; 283; 354;
361; 380
Art. 11: 234 n. 2
Arts. 11%-V:246-247; 258
Art. IIIa: 172
Art. IIIb: 351
Art. IIIb jo-Art. V(b): 333
Art. IV(b): 368 n. 370
Art. V(1): 246
465
United States: 16-17;45; 52-53; 101 n. 259;

102-103; 105; 140-143; 165; 220;
235; 257 n. 69; 259; 276-277;
335; 337; 340; 362-364; 367-368;
381 n. 412
entry of judgment clause: 242-243
Federal Arbitration Act, Chapter 1: 130
. Sect. 1: 52
Sect. 2: 52
Sect. 3: 130 n. 18; 141
Sect. 4 : 141 n. 62; 142
Sect. 8: 141
Sect. 9: 241 ;242-243
Sect. 10: 273
Sect. 10(a): 307
Sect. 10(d): 313 n. 229
Federal Arbitration Act, Chapter 2, see
List of Implementing Acts
(Annex C)
Federal Arbitration Act, Chapter 3
(draft 1980): 104
Federal Rules of Civil Procedure
Rule 13: 241
Rule 64: 142
Foreign Assistance Act 1964 : 3 72
Foreign Sovereign Immunities Act 1976 :
281; 373
Hickenlooper Amendment: 3 72-373
Public Vessels Act 1920: 52; 281; 367;
3 73
Securities Act 1934: 362-363
State and Federal Law: 348 n. 315
Uniform Commercial Code Sect.
1-105(1): 1 8 n. 25
28 U.S.C. Sect. 1441: 142
see also Treaty of Friendship, Commerce
and Navigation (TFCN)
Upper Volta: 93 n. 235
Uruguay: 101 n. 258-259; 102
U.S.S.R.: 93 n. 235; 105; 132; 137 n. 46;
181 n. 179; 196; 241; 276; 283;
292; 337; 350; 380
U.S.S.R.-Austria, Treaty of 1955: 106 n.
26 9
U.S.S.R.-Denmark, Treaty of 1946: 105
n. 267
U.S.S.R.-Sweden, Treaty of 1940: 105
n. 267
U.S.S.R.-Switzerland, Treaty of 1948: 106
n. 272
Valuation: 45-46; 48
Venezuela: 101 n. 258-259
CCPr Art. 504(1): 134 n. 32
Verbindlich : 3 39
Verification, technical -: 44
Vienna Commodity Exchange: 97; 176 n.
160; 197; 204; 207
466
Index
Vienna Convention on tlie Law of Treaties

of 1969: 3-4
Art. 4: 3 n. 8
,Art. 28: 7 8 n. 203
Art. 30: 91-92; 109 n. 281
h t s . 31-33: 3 4
Art. 33(4): 91 n. 232
Vis atmctiva: 162
Volktreckbar: 340 n. 289
Volllcaufleufe:97 ; 17 1
Waiver
see Estoppel
Washington Convention of 1965: 9 ; 3 4 ; 4 0 ;
98-100;278
Art. 25(1): 99
Art. 50-52: 99 n. 252
Washington Convention of 1965 (cont.)

Art. 53: 99
Art. 54: 282
Art. 54(1): 99
Art. 55: 282
Witness: 300; 309-310
Wool arbitration, international -: 203-204
Written form
see Arbitration agreement in writing
Yugoslavia: 1 3 , 3 6 ; 4 1 ; 7 2 ; 8 9 ; 93 n. 235;
96 n. 245; 116; 117; 118; 257 n. 69
Zimbabwe: 6 4 ; 148
Zwangsvollstreckung: 340 n. 289
(Dutch Summary and Conclusion)
Deze studie betreft de interpre-tatie door de rechters van het Verdrag

inzake de Erkenning en Tenuitvoerlegging van Buitenlandse Scheidsrechterlijke Uitspraken, New York, 10 juni 1958. Dit Verdrag regelt in essentie twee fundamentele aspecten van internationale handelsarbitrage:
de naltoming van de arbitrage-overeenkomst, en de tenuitvoerlegging
van bet arbitrale v0nnis.l Wet voornaamste doe1 van deze studie is het
onderzoek naar de mogelijkheid van een uniforme rechterlijke interpretatie van het Verdrag.
Het onderzoek is gebaseerd op het gegeven dat, hoewel internationale
verdragen zijn gesloten om een bepaalde materie op een uni.forme wijze
te regelen, zij niettemin verschillend worden geiistenpreteerd en toegepast door de rechters in de Verdragsstaten. Nu het Verdrag zijn 25ste
verjaardag nadert, gedurende welke periode 56 Staten zijn toegetreden,
blijlct, dat het Verdrag geen uitzondering op dit verschijnsel vormt.
De rechterlijke uitspraken zijn gerapporteerd in het Yearbook Commercial Arbitration Vol. I(l976) - VI(198 1); deze uitspraken vormen
het basismateriaal voor deze studie. De uitspraken zijn geanalyseerd en
onderling vergeleken in samenhang met de relevante bepalingen van het
Verdrag. Op basis van deze rnethode van vergelijkende re~htspraakis getracht een interpretatie te fomuleren die in de praktijk hanteerbaar is
en aanvaardbaar voor de rechters in de Verdragsstaten, daarbij reltening
houdend met hun verschillende wettelijlte systemen en rechtsopvattingen.
De studie is verdeeld in drie hoofdstukken: het toepassingsgebied
(Hoofdstuk 1, k t t . 9 en YII), de nakoming van de arbitrage-overeenkomst (Hoofdstuk I%,kt.
I%),en de tenuitvoerlegging van het arbitrale
vonnis (Hoofdstuk 111, h t t . HI-VI). Ieder hoofdsluk is onderverdeeld
in twee of meer delen, overeenkomstig de onderverdeling van d e relevante
bepalingen van het Verdrag.
Aan het einde van ieder deel zijn de unifome interpretaties, ontwikkeld in dat deel, samengevat. Een aantal van deze interpretaties wordt
* Krachtens Artikel 14 van het Promotiereglement van de Erasmus Universiteit Rotterdam

dient aan een niet in het Nederlands gesteld proefschrift een in het Nederlands gestelde samenvatting te worden toegevoegd. De hier volgende samenvattingis een aangepaste vertalingvan de &+urnmary and Conclusion, te vinden op pp. 383-395.
1. Het Verdrag vermeldt ook de erkenning van arbitrage-overeenkolnsten en arbitrale vonnissen. De erkenning, die in de praktijk nauwelijks een rol speelt, wordt hier eenvoudigheidshalve
niet behandeld. Zie n. 11.1 en 111-1.4.
4-68
Samenvatting en conclusie
hierna herhaald in het kader van een algemeen overzicht van de Verdragsb ep alingen.
2.
h b i t ~ a l evsnnksen waarop he%Verdrag van t o e p a s h g is
Het Verdrag bepaalt in Artikel I lid 1 dat het van toepassing is op de

tenuitvoerlegging van buitenlandse arbitrale vonnissen, dat wil zeggen,
arbitrale vonnissen gewezen op het grondgebied van een andere Staat
dan die waar de tenuitvoerlegging wordt verzocht. De toepasselijklieid
van het Verdrag kan beperltt worden tot vonnissen gewezen in een
andere Verdragsstaat, indien van het eerste voorbehoud genoemd in liet
derde lid van Artikel I is gebruik gemaakt."
Het criteriurn van de territorialiteit is het enige criterium voor het
toepassingsgebied van het Verdrag, voorzover dit het arbitrale vonnis
betreft, Met name wordt de reikwijdte van het Verdrag niet aan de nationaliteit van partijell of aan de internationaliteit van het ondenverp
waar het arbitrale vonnis betreltking op heeft, g e b ~ n d e n .Het
~ gebntik
van een ondubbelzinnig caitepium voor liet toepassingsgebied van het
Verdrag is er waarschijnlijlc de oorzaak van geweest dat de rechters in het
algemeen geen rnoeilijkheden hebben gehad met de vraag w e k e arbitralle
vonnissen onder het Verdrag vallen.
Naast dit criterium bevat het Verdrag nog een tweede criterium: volgens 'Artikel I lid 1, tweede zin, kan het Verdrag ook worden toegepast op arbitrale vonnissen die niet beschouwd worden als nationale
arbitrale vonnissen. Deze bijlcomende mogelijkheid voor het toepassingsgebied van het Verdrag betreft die vonnissen, die op grond van een overeenkomst tussen partijen beheerst worden door het arbitragerecht van
een staat, die niet de staat is waarin het vonnis zal worden gewezen. Een
dergelijke overeenkomst van pal-tijen leidt echter tot aanzienlijke comp l i ~ a t i e s . Waarschijnlijk
~
komt een zodanige overeenltomst om deze
seden in de praktijk nauwelijks voor. Het tweede criterium heeft dan
ook tot nu toe geen toepassing gevonden in de gerapporteerde rechterlijke beslissingen. De unifome toepassing van het Verdrag is er naar
mijn rnening bij gebaat dat deze nogal theoretische uitvinding een dode
letter blijft.
De rechters verschillen van mening omtrent de vraag of twee andere
soorten beslissingen onder het Verdrag tenuitvoer kunnen worden gelegd. Het eerste soort betreft het zogenaamde "a-nationale" arbitrale
vonnis, dat hierna onder no. 10 zal worden behandeld.
Bnder het tweede soort vallen beslissingen die worden gegeven in
2. Zie 1-1.1.
3. Zie 1-1.2 en 3.
4. Zie 1-1.5.
$amenvatting en concluske
469
aan arbitrage verwante procedures. Deze procedures worden niet beheerst door een arbitragewet, maar door contractenrecht. Voorbeelden
zijn het Italiaanse arbitrato krrituale (in tegenstelling tot de Italiaanse
eigenlijke arbitrage, genaamd arbitrato rituale, die wordt beheerst door
de arbitragewet zoals veivat in het Italiaanse Wetboek van Rechtsvorde,ring) en het Nederlandse bindend advies (in tegenstelling tot de eigenlijlte arbitrage, die wordt beheerst door de arbitragewet zoals vewat in
het Nederlandse Wetboek van Rechtsvordering). In deze studie wordt
de opvatting verdedigd dat dit soort beslissingen niet op grond van het
Verdrag ltan worden tenuitvoer gelegd, omdat het Verdrag geacht moet
worden alleen betreklting te hebben op de eigenlijke arbitrageO5
3.
kbitrage-overeenkomsten waarop he&Verdrag

van toepasshg is
Artiltel 11 lid 3 van het Verdrag regelt de nakoming van arbitrage-overeenltomsten. Het Verdrag geeft echter niet aan welke arbitrage-overeenlt omst en onder deze b epaling vallen. Het ontbreken van deze definitie,
hetgeen is toe te schrijven aan het op het laatste moment aan lzet Verdrag toevoegen van bepalingen met betreklting tot de arbitrage-overeenkomst (Art. 11), hekft de rechters tot op zekere hoogte voor problemen
gesteld. Een mogelijlte uniforme interpretatie zou de volgende kunnen
zijn. Indien de arbitrage plaatsvindt of zal plaatsvinden in een andere
staat dan die waarin een beroep wordt gedaan op de overeenltomst, is
het Verdrag van toepassing, ongeacht de nationaliteit van partijen of de
interizationaliteit van het onderwerp. Indien de arbitrage plaatsvindt of
plaats zal vinden in de staat waarin op de overeenltomst een beroep
wordt gedaan, dan is het Verdrag van toepassing op de nakoming van de
overeenltomst zodra een van de partijen een buitenlander is, of het geschil betrekking heeft op internationale handel. De laatstgenoemde
interpretatie-regel kan ook worden toegepast indien op het moment van
het verzoek tot nakoming van de overeenltomst tot arbitrage nog niet
bekend is waar de arbitrage zal plaat~vinden.~
Hewerdrag zwijgt ook over de vraag of het met temgwerkende kracht

van toepassing is. Deze lacune heeft aanleidhg gegeven tot nogal uiteenlopende rechterlij ke interpretaties. Met het voortschrijden van de tijd
verliest dit vraagstuk echter zijn belang. Gezien het hoofdzakelijk procedurele karakter van het Verdrag, kan een mogelijke unifome interpretatie zijn dat het Vedrag van toegassing is op de nakoming van iedere
5. Zie 1-1.7.
6. Zie 1-2.
4'70
Samerzvafting en conckusie
arbitrage-overeenkomst en tenuitvoerlegging van ieder arbitraal vonnis,

wanneer dan ook tot stand g e l ~ o m e n . ~
5.
Toepasselajlrkneid van het Verdrag niet exdusief
Artikel VIJ lid 1 van het Verdrag voorziet in de mogelijltheid om de

tenuitvoerlegging van een arbitraal vovnnis te baseren op alndere rnultilaterafe of bilaterale verdragen, of op het nationale recht inzake de tenuitvoerlegging van buitenlandse arbitrale vonnissen, indien een dergelijke
tenuitvoerlegging gunstiger is dan die onder het Verdrag. Het Verdrag is
derhalve niet bij uitsluiting toepasselijk indien een arbitraal vonnis onder
zijn bereik valt. Hoewel de tekst van Artikel VII lid 1 niet uitdruklcelijk
venvijst naar de nakorning van de arbitrage-overeenkomst (Art. II lid 3),
kan de bepaling geacht worden ook op deze actievan toepassing t e zijn?
Het nationale recht is in de rneeste gevallen rninder gunstig dan het
Verdrag. Het is daarom ook niet verwonderlijk dat het nationale recht
in de praktijk weinig wordt toegepast voor de nakoming van arbitrageovereenkomsten of arbitrale vonnissen die binnen het bereik van het
Verdrag vallen."
Aan de andere kant kan de nalcoming of de tenuitvoerlegging op basis
van een ander rnultilateraal of bilateraal verdrag gunstiger zijn. Conflicten tussen het Verdrag en de andere rnultilaterale en bilaterale verdragen
kunnen in de regel worden opgelost door toepassing van de verdragsrechtelijke conflictregel van maximale doelrnatigheid (r2gle d 'efficacite' maximale), welke regel de voorkeur verdient boven de regels van lex posterior of lex specialis.1
De rneest-begunstigingsregel van Artikel VII lid 1 lijkt in de praktijk
enigszins vewaarloosd. Hoewel deze regel in het Verdrag is opgenomen
teneinde t enuitvoerlegging in het grootst mogelijke aantal gevallen te
bevorderen, kan zij niettemin een negatief effect hebben: zij kan het bereiken van een eenvormig regime, dat de nakoming van de arbitrage-overeenkomsten en arbitrale vonnissen beheerst in de context van internationale handelsarbitrage, in de weg staan.
6.
N a k o ~ n van
g Be arbitrage-overeenkomt
Met uitzonde.ring van antikel I1 lid 2 betreffende de schriftelijke v o m

van de arbitrage-overeenkomst, hebben d e bepalingen van het Verdrag
met betrekking tot de naksming van de arbitrage-overeenkornst tot nu
toe weinig interpretatie-problemen voor de rechters met zich meege-
bracht. Volgens in A t k e l Ill lid 3 moet de rechter van een Vesdsagssiaat

bij wie een geschd aanhangig wordt gemaakt over een o n d e r w e ~tea
aanzien waarvan partijen een arbitrage-overeenkomsl zijn aangegaan,
partijen op verzoek van een hunner naar arbitrage veiwijzen, tenzij hij
constateert dat de overeenkomst vervallen is, niet van kracht is of niet
ltan worden toegepast,
Artikel IT lid 3 verschaft geen discretionaire bevoegdheid om a1 dan
niet een rechterlijlte onbevoegdheid c.q. niet-ontvankelijkheid uit t e spreken ten aanzien van procedures die aanhangig zijn gemaakt in strijd met
een arbitrage-overeenkomst. De regel dat een rechter zich onbevoegd
c.q. de vordering niet ontvankeljjlt moet verklaren indien een partij daarom verzoekt, is bijna unaniem bevestigd door de rechters in de Verdragsstaten.''
De voorwaarden voor de nakoming van de arbitrage-overeenkomst dat
deze overeenkomst niet vervallen is, krachteloos is of niet kan worden
toegepast , hebben tot weinig rechterlijlte uitspraken aanleiding gegeven.
Niettegenstaande de ruime formulering, die vatbaar zou kunnen zijn
voor uiteenlopende interpretaties, dient naar mijn menhg een enge interpretatie t e worden gehanteerd.12
De zin in Artikel II lid 3 "een overeenltomst als bedoeld in dit artikel" behelst als voorwaarden voor het nakomen van cle overeenkomst
dat :
(a) er een geschi4. moet zijn naar aanleiding van een bepaalde al dan
niet contsactuele rechtsbetrekking ( A t . H
I lid I),
(b) dat het geschil vatbaar moet zijn voos afdoenhg door asbitrage
( k t . 11 lid 1), en
(c) dat de overeenkoms"cchriftelij1~moet zijn aangegaan
14 lid 22).
Be voorwaarden (b) en (6) zujlen hierna onder respectievelijk raos. 9
in fine en 7 wsrden besproken. Voor wat betreft voomaarde (a) k a a
worden opgernerkt dat zich geen noemenswaardige interpretatie-rnoeilijkheden hebben ~ s o r g e d a a n , ' ~
Een zorgweltkende ontwilckeling i42 de Verenigde Staten is dat een
aantal rechters geoordeeld heeft dat het Velrdrag de mogefijkheid uitslr~il;
beslag t e leggen voordaheera arbitraal vonnis is gewezen, Beze opvatting,
die niet wordt gedeeld door de rechters in. andere Verdragsstslen, kan
naar mijn rneaing niet op het Verdrag worden gebaseerd.'"
442
7,
De s~h~ife,Ejkev o m van de arbitrage-overeenIsomt
De Verdragsbepaling die aanleiding heeft gegeven tot het grootste aantal uiteenlopende rechterlijke interpretaties is het vereiste van de schriftelijke vorm van de arbitrage-overeenkomst zoals gedefinieerd in Artikel
I1 lid 2. Deze bepaling houdt in dat 660nder.6schriftelijke
overeenkomst'
wordt verstaan een compromissoir beding in een overeenlcomst of een
acte van compromis, ondertekend door partijen of vervat in gewisselde
brieven of telegrammen." De grootste venvarring heerst in ItaliE, hoewe1 verscheidene rechters in andere Verdragsstaten ook tot uiteenlopende interpretaties zijn gekomen.
Behalve door het Italiaanse hoogste gerechtshof, is het algemeen
aanvaard dat Artikel %I lid 2 prevaleert boven de vereisten van nationaal recht inzake de vorm van de arbitrage-overeenkomst, in die gevallen waarin de overeenkomst onder het toepassingsbereik van het Verdrag valt. Met andere woorden, Artikel: I1 lid 2 kan worden opgevat als
een regel van uniform recht voor de formele geldigheid van de arbitrageovereenkomst.
Dit betekent dat de nakoming niet kan wsrden gebaseerd op het Verdrag indien de arbitrage-overeenkomst niet voldoet aan d e formele vereisten van Artikel'II lid 2. In een dergelijk geval kan echter onder toepassing van de meest-begunstigingsregel van Artikel VII lid 1 de naltoming mogelijk zijn op basis van nationaal recht of een ander multilateraal of bilateraal verdrag (zie no. 5 hierboven).
Het feit dat Artikel 11 lid 2 het karakter heeft van een regel van uniform recht, heeft tot gevolg dat noch meer, noch minder dan is bepaald
in Artikel 11lid 2 geeist kan worden voor de vorm van de arbitrage-overeenkomst. Het heeft ook tot gevolg dat het bestaanvan de overeenkomst
niet door andere middelen bewezen kan worden, indien de vorm van een
arbitrage-overeenkomst niet in overeenstemming is met Artikel 11lid 2.
Beide aspecten hebben geen aanleiding gegeven tot moeilijkheden voor
de rechterlijke instanties.
Aan Be andere kant verschillen de rechters van mening over de vraag
of een pai-tij geacht kan worden het recht t e hebben venverkt zich t e
beroepen op het niet voldoen aan M i k e 1 I1 lid 2 in die gevallen waarin
deze paf-tij met betrekking tot de arbitrage-overeenkomst heeft gehandeld als ware hij erdoor gebonden. Het is verd edigbaar in dit geval recbtsverwerlting aan te nemen op grond van het beginsel van goede trouw.15
In deze studie wordt voorts de opvatting verdedigd dat internationale
arbiters M i k e 1 11 lid 2 dienen toe te passen, met dien verstande dat ook
zij gebmik kunnen maken van de meest-begunstigingsregel van Artikel
VII lid 1 .I6
15. Zie 11-2.2.2 en 3.
16. Zie 11-2.2.4.
473
De vraag in wellte gevallen aan bet vereiste van Artikel I1 lid 2 geacht
moet worden te zijn voldaan, wordt door de rechters verschillend
beantwoord. Dit geldt niet zozeer voor het eerste alternatief van Artikel
II lid 2, t e weten een arbitrale clausule, vervat in een overeenkomst of
een acte van compromis die door partijen is getekend. In dit geval zijn
de handt ekeningen van beide partij en onontbeerlijk. Hierbij dient t e
worden opgemerkt dat in het geval waarin een arbitrale clausule is vervat in een contract, de handtekeningen voor het contract als geheel voldoende zijn; in tegenstelling tot wat in het bijzonder door het Italiaanse
hoogste gerechtshof in een aantal gevallen is geoordeeld, is het niet nodig dat de handtekeningen op de arbitrale clausule zelf betreklting hebben.17
Er bestaat met name onzekerheid omtrent het tweede alternatief van
k t i k e l IH lid 2, het contract met de arbitrale clausule of de acte van
compromis, vervat in gewisselde documenten. Bet tweede alternatief is
door de ontwerpers van het Verdrag toegevoegd met het doe1 yuirnte t e
verschaffen voor de modernere middelen tot het sluiten van overeenltomsten in de internationale handel.
Net tweede alternatief van Artikel 11 lid 2 houdt naar mijn mening
niet in, dat de handtekeningen van partijen zijn vereist. Het tweede alternatief betekent echter we1 $at de ene partij een schriftelijk aanbod
om te arbitreren aan de andere partij doet, en dat de andere partij dit
aanbod schriftelijk accepteert en deze acceptatie aan de eerstgenoemde
partij retourneert. Met betrekking tot de vraag in welke gevallen de
schriftelijlte aanvaarding geacht kan worden te hebben plaatsgevonden,
kan worden gesteld dat allerlei soorten schriftelijke acceptaties voldoende zouden kunnen worden geacht (bijvoorbeeld verwijzing in factuur naar contractnummers). D eze interpretatie zou de tamelijk strenge
eisen van Artiltel II lid 2 kunnen verzachten, wellte bepaling, ondanks
de inspanningen van de ontwerpers van het Verdrag, niet meer volledig
in overeenstemming is met de huidige internationale handelspraktijk.I8
Het probleem van de arbitrale clausule in standaardvoonvaarden is
nog weinig bij de rechters aan de orde geweest in samenhang met Artikel 11 lid 2 van het Verdrag, ondanks het feit dat de meeste internationale transacties op deze basis worden afgesloten. Vooruitlopend op mogelijke rechterlijke interpretaties, is getracht interpretaties te ontwikkelen die niet afhankelijk zijn van nationaal recht.lg
8.
Tenuitvoedeghg van het arbitrale vomk
Ilet tweede aspect van de internationale hanclelsarbitrage dat in het

Verdrag wordt geregeld, is de tenuitvoerlegging, in de ene staat, van
17. Zie 11-2.3.2.
18. Zie 11-2.3.3 en 4.
19. Zie 11-2.4.3.
474
,Yamenvatling en conclusie
al-bitrale vonnissen gewezen in een andere staat. De eerste bepaling van

he-t Verdrag met betrekking tot deze actie is Artiltel III, dat voornamelijk de procedure voor tenuitvoerlegging betreft. Dit artikel heeft in het
algemeen geen problemen o ~ g e l e v e r d . ~ ~
Hetzelfde kan gezegd worden van Axtiltel IV, dat de voorwaarden
geeft waaraan door een partij die de tenuitvoerlegging van een arbitraal
vonnis verzoekt moeten worden voldaan. Deze voonvaarden zijn in het
Verdrag tot een minimum beperkt: er dient slechts een gelegaliseerd origineel van de arbitrale uitspraak overgelegd te worden, en het origineel
van de arbitrage-overeenkomsL, of gewaarmerkte afschriften van deze
d~curnenten.~'
9.
Gronden voor w e i g e k g van tenuitvoerleging van het

arbitrale von&
Be hoofdkenmerken van de gronden voor de weigering van de tenuitvoerlegging, zoals vervat in Artikel V, zijn door de rechterlijke instanties min of meer uniform gefnterpreteerd en toegepast. Zo hebben de
rechters in het algemeen bevestigd dat de gronden zoals opgesomd in lid
1 van Artikel V, bewezen dienen te worden door de partij tegen wie de
tenuitvoerlegging wordt verzocht; dat deze gronden lirnitatief zijn, waarbij in het bijzonder een nieuw onderzoek door de rechter naar de zaak
zelf is uitgesloten; en dat de gronden eng dienen te worden gei'nterpret eerd .22
Daartegenover staat dat de rechters uiteenlopende interpretaties
hebben gegeven ten aanzien van een aantal gronden voor weigering van
tenuitvoerlegging, vervat in lid 1 van Artikel V.
Met betrekking tot grond a, die de ongeldigheid van de arbitrage-overeenkomst betreft, heeft het Italiaanse hoogste gerechtshof geoordeeld
dat deze niet het vereiste van geschrift van Artikel I1 lid 2 omvat. De
opvatting dat Artikel II lid 2 alleen van toepassing is bij de vordering tot
nakoming van de arbitrage-overeenkomst (Art. 11 lid 3), wordt naarmijn
mening terecht niet gedeeld door de rechters in de andere Verdragsstaten.23
Iloewel partijen tegen wie tenuitvoerlegging werd verzocht vaak een beroep gedaan hebben op grond b , betreffende de schending van regels
van een behoorlijke procesgang, hebben de rechters zelden geoordeeld
dat een dergelijke schending aanwezig was. Er bestaat een nagenoeg uniforme interpretatie dat schending van de regels van een behoorlijke
20. Zie 111-1.

21. Zie 111-2.
22. Zie 111-3.
23. Zie 111-4.1.3.3.
'
Samenvatting erz conclusie
475
procesgang slechts dient te worden aangenomen in zeer ernstige geval1en.24

Grond c, met betreltlcing tot het arbitrale vonnis dat buiten de grenzen
van het cornpromis is gewezen, heeft weinig toepassing in de praktijk
gevonden. Deze grond lijkt geen interpretatie-problemen op te leveren.
.Het arbitrale vonnis waarin n i e t o p alle punten door arbiters wordt beslist zou evenwel een uitzondering lcunnen zijn. Dit geval valt mijns inziens niet onder de bepaling van grond c . ~ '
Volgens grond d kan tenuitvoerlegging worden geweigerd indien de
samenstelling van het scheidsgerecht of de scheidsrechterlijke procedure
niet in overeenstemming was met de overeenkomst van partijen, of, bij
gebrelt aan een overeenltomst daaromtre~zt,niet in overeenstemming
was met het recht van het land waar de arbitrage heeft plaatsgevonden.
De betekenis van deze grond voor de weigering van de tenuitvoerlegging
is niet direct duidelijk. In deze studie wordt de opvat.ting verdedigd dat
het een rechter van een land waar de tenuitvoerlegging van een buitenlands arbitraal vonnis wordt verzocht, niet is toegestaan de geldigheid
van de samenstelling van het scheidsgerecht of de arbitrale procedure te
toetsen aan de wet van het land waar de arbitrage heeft glaatsgevonden,
in die gevallen waarin partijen een overeenkomst hieromtrent hebben
gemaakt. Een dergelijke overeenkomst blijft echter we1 onderworpen
aan de fundamentele regels van een behoom'lijke p r o ~ e s o r d e .Grond
~~ d
ltan naar mijn lnening niet worden beschouwd als basis voor de zogenaamde ""gdenationaliseerde" arbitrage en het "a-nationale" arbitrale
vonnis (zie no. 10 hierna).
Grond e bevat in feite twee gronden voor weigering van tenuitvoerlegging. De eerste grond is, dat het vonnis nog niet bindend is geworden
voor partijen. Terwijl de rechters het er in het algemeen over eens zijn
dat deze bepaling niet inhoudt dat een verlof tot tenuitvoerlegging (exequator en dergelijlte) verltregen moeten worden in bet land waar het
vonnis is gewezen, verschillen zij van mening met name met betrekking
tot het moment waarop het vonnis als bindend beschouwd kan worden.
Het merendeel van de rechters onderzoekt deze vraag op basis van he-&
recht dat van toepassing is op het arbitrale vonnis. Naar mijn oordeel
ltan evenwel een interpretatie onafhanltelijk van nationaal recht worden
gegeven. Volgens deze autonome interpretatie kan een arbitraal vonnis
bindend worden beschouwd op het moment dat er geen gewone rechtsmiddelen meer tegen openstaan, hetgeen in de meeste gevallen bet ekent
dat er geen hoger beroep meer openstaat bij een tweede arbitrale instantie of (uitzonderlijk) bij een r e ~ h t e r . ~ ~
24.
25.
26.
27.
Zie 111-4.2.
Zie 111-4.3.
Zie 111-4.4.
Zie 111-4.5.2.
4'76
Sarnenvatting en conclusie
De tweede grond voor weigering van tenuitvoerlegging zoals neergelegd in grond e is, dat het vonnis is vernietigd of dat tenuitvoerlegging,
of d e mogelijkheid daartoe, is opgeschort in het land van oorsprong. Deze grond is weinig in de praktijlt t ~ e g e p a s t .Een
~ ~ mogelijk effect van de
tweede grond van grond e kan zijn, dat het limitatieve karakter van de
gronden voor weigering van tenuitvoerlegging zoals opgesomd in het
eerste lid van Artikel V wordt ondermijnd, doordat het de mogelijkheid
biedt tot introductie van alle mogelijke gronden waarop het vonnis volgens het arbitragerecht van het land van oorsprong kan worden vernietigd.
Indien namelijk in het land van oorsprong het arbitrale vonnis is vernietigd op een van de gronden die niet vermeld staan in het eerste lid van
Artikel V van het Verdrag, dan dient niettemin tenuitvoerlegging te worden geweigerd in een andere Verdragsstaat op basis van de tweede grond
van grond e.29
In dit verband kan worden toegevoegd dat Artikel VI aan de rechter
de bevoegdheid toekent de beslissing over de tenuitvoerlegging van het
vonnis op te schorten indien een vordering tot vernietiging van het vonnis of tot schorsing van tenuitvoerlegging, of van de mogelijltheid daartoe, is aanhangig gemaakt in het land van oorsprong. Deze bepaling is
nauwelijks toegepast door de rechters, doch lijkt niet voor meer dan
66n uitleg ~ a t b a a r . ~ '
De gronden vermeld in het tweede lid van Artikel V, op grond waarvan een rechter ambtshalve tenuitvoerlegging kan weigeren, hebben betrekking op de vraag of het geschil vatbaar is voor arbitrage (grond a , zie
ook Art. 11 lid l ) , en op de openbare orde (grond 6 ) . Hoewel grond a
betreffende de vatbaarheid voor arbitrage als zodanig apart vermeld
staat, kan deze vermelding als overbodig worden beschouwd, omdat
naar algemene opvatting openbare orde reeds omvat de vraag of een geschil vatbaar is voor arbitrage.
De rechters hebben ook deze bepalingen eng ge Ynterpreteerd, niettegenstaande het feit dat met name de openbare orde een potentieel ondemijnende factor kan zijn voor het doelmatig functioneren van een internationaal verdrag. In dit verband wordt in toenemende mate het onderscheid tussen de nationale openbare orde en de engere internationale
openbare orde gehanteerd. Gesteld kan worden dat, in het bijzonder met
betrekking tot Artikel V lid 2, de rechters zich in het algemeen gunstig
gezind hebben getoond ten opzichte van het Verdrag.32
28.
29.
30.
31.
32.
Zie 111-4.5.3.1 en 2.
Zie 111-4.5.3.4.
Zie 111-4.5.3.3.
Zie 111-5.2.
Zie 111-5.1 en 3.
47'7
Het Verdrag bevat eveneens enige bepalingen van internationaal privaatrecht, teneinde het toepasselijk recht vast t e stellen voor die gevallen waarin het Verdrag niet in unifome bepalingen voorziet. Volgens
Artikel V lid .I sub a wordt de arbitrage-overeenkomst beheerst door
het recht waaraan de partijen de overeenltomst hebben onderworpen, of,
indien ellte aanwijzing hieromtrent ontbreekt, door het recht van het
'land waar het vonnis is gewezen. Zoals reeds vermeld, bepaalt Artikel V
lid 1 sub d dat slechts indien een overeenkomst van partijen omtrent de
samenstelling van het scheidsgerecht of de arbitrale procedure ontbreeltt, het recht van het land waar de arbitrage heeft plaatsgevonden
dient te worden toegepast. Volgens Artikel V lid 1 sub e, wordt het arbitrale vonnis beheerst door het recht van het land waar, of krachtens
het recht waarvan, het vonnis is g e ~ e z e n . ~ ~
Aan deze bepalingen is in de literatuur uitvoerig aandacht besteed
vanuit het gezichtspunt van partij-autonomie. In het bijzonder zouden
zij het voor partijen mogelijk maken een arbitragerecht van toepassing
te verltlaren dat verschilt van het arbitragerecht van de plaats van arbitrage (dat wil zeggen het land waar het vonnis wordt, of zal worden, gewezen). Deze mogelijkheid komt overeen met het hiervoor genoemde
tweede criterium van het toepassingsgebied van het Verdrag (zie no. 2).
Hoewel volgens het Verdrag van deze mogelijkheid in theorie gebruik
kan worden gemaakt, is in de praktijk gebleken dat de arbitrage-overeenkomst en het arbitrale vonnis praktisch altijd beheerst worden door het
arbitragerecht van het land waar het vonnis is, of zal worden, gewezen.
Er wordt we1 gesteld dat Artikel V lid 1 sub d zelfs een totale
partij-autonomie zou toestaan, in die zin dat het de partijen vrij staat de
arbitrage te "denationali~eren~~,
dat wil zeggen t e onttrekken aan de toepasselijltheid van welk nationaal arbitragerecht dan ook. Naar mijn
mening voorziet het Verdrag niet in een juridische basis voor een '"edenationaliseerde9' arbitrage, aangezien de Verdragsbepalingen veronderstellen, met name Artikel V lid 1 sub a en e, dat arbitrage beheerst
wordt door een nationaal arbitragerecht. Dit heeft tot gevolg dat het zogenaamde "a-nationale" vonnis, dat het resultaat is van een "gedenationaliseerde" arbitrage, niet kan worden tenuitvoergelegd op basis van het
Verdrag.34
Wat daarvan ook moge zijn, de praktijk blijkt een voorkeur te hebben
voor de regel dat zowel de arbitrage-overeenkomst als de arbitrale procedure, en het arbitrale vonnis, beheerst worden door 6&nen hetzelfde
arbitragerecht, te weten het recht van het land waar het vonnis is, of zal
worden, gewezen. Het moet worden toegegeven dat deze praktijkregel
33. Zie 111-4.1.3.4 en 5, 111-4.4.2 en 111-4.5.3.
34. Zie 1-1.6.
478
Sarnenvafting en conclusie
niet altijd ideaal is, gezien het soms toevallige karakter van de plaats van
arbitrage en de plaatsgebonden eigenaardigheden van sommige arbitragewetten. Niettemin is vooralsnog de duidelijke regel van de toepasselijkheid van het arbitragerecht van het land waar de arbitrage plaatsvindt, bij gebrek aan een betere oplossing, te preferen boven de andere
mogelijltheden die ingewiltkelde juridische, problemen met zich kunnen
meebrengen en een ongewenste mate van onzekerheid ltunnen veroorzaken. De praktijkregel komt er in feite op neer dat men er zich bewust
van dient te zijn een "arbitrage-vriendelijlt" land te kiezen.
1 1. 1s een herzienhg van het Verdrag noo&akefijk?
Het overzicht van de Verdragsbepalingen en de gerechtelijke interpretaties, zoals gegeven onder nos. 2 tot en met 10 hierboven, is natuurlijk
zeer algemeen en maakt geen melding van de vele detailpunten die in
deze studie zijn onderzocht, en die het onderwerp van verschillende interpretaties zijn of die verschillend gei'nterpreteerd kunnen worden. Toch
kan gesteld worden dat de uitspraken aangaande het Verdrag die tot nu
toe gerapporteerd zijn, aantonen dat de rechters in de regel het Verdrag
interpreteren en toepassen op een wijze die gunstig genoemd kan worden ten opzichte van de internationale handelsarbitrage.
De verschillen in de rechterlijlte intenpretaties zijn niet zodanig, dat
zij een doelmatig functioneren van het Verdrag in ernstige mate belemmeren. Dit is opmerkelijk, indien men het systeem en de tekst van het
Verdrag zelf in ogenschouw neemt. Het systeem van het Verdrag is niet
gemakkelijk te doorgronden voor diegene die het Verdrag voor het eerst
leest. Het begint met een definitie van het toepassingsgebied met betreltking tot het arbitrale vonnis. h e t noemt vervolgens de arbitrage-overeenkomst in Artikel II. Dit Artiltel bevat een " v e r b ~ r g e nbepaling
~~
- niet
aangekondigd in de titel van het Verdrag - met betrekking tot de nakoming van de arbitrage-overeenkomst , zonder evenwel het toepassingsgebied in dit opzicht te omschrijven. Het bevat vervolgens bepalingen met
betreklting tot de procedure en de voorwaarden voor tenuitvoerlegging
van het arbitrale vonnis (Artt. IIH-VI). Daarna leest men een meestbegunstigingsregel (Art. VII lid l ) , die irnpliciet geacht moet worden
ook van toepassing te zijn op nakoming van de arbitrage-overeenkomst.
Bovendien zijn verschillende bepalingen dubbelzinnig of niet gemakltelijk t e begrijpen (bijvoorbeeld Art. 1 lid 1, tweede criterium, Art. I1 lid 2
en Art. V lid 4 sub d).
Bit brengt ons tot de vraag of het Verdrag moet worden herzien, teneinde zijn tekst te verduidelijken door een additioneel Protocol of een soortgelijk instrument. Sommigen, waaronder de Asian-African Legal Consultative Committee (AALCC), hebben de mening geuit dat een herziening
inderdaad wenselijk zou zijn. Indien men de ongeveer 140 gerapporteerde rechterlijlte beslissingen uit 18 Verdragsstaten beschouwt, dan zijn
Sumenvatting en conclusie
479
naar mijn mening de interpretatie-problemen niet dermate groot dat heraiening op dit moment noodzakelijlt lijkt. De enige bepaling die voor
herziening in aanmerking aou kunnen komen, is Artikel.11 lid 2 met betreltlting tot de schriftelijke vorm van de arbitrage-overeenkomst. Doch
ook wat betreft deze bepaling lcan worden gesteld dat de procedure voor
het tot stand komen van een additioneel ]Protocol of soortgelijk instrument een te hoge prijs voor een betere tekst zou ~ i j n . ~ ~
De procedure voor het tot stand komen van een additioneel Protocol
is langdurig, en kan leiden tot ingewikkelde situaties. Zelfs indien men
ervan uitgaat dat een betere tekst van het Verdrag dan de bestaande ltan
worden vastgesteld, dan zal het toch nog enige tijd duren voordat een
dergelijlt Protocol zal zijn aangenomen door alle staten die op dit
moment aangesloten zijn bij het Verdrag van New Yorlt. In de tussenliggende periode kan onzekerheid bestaan. Deze situatie zou zelfs kunnen
voortduren indien een aantal staten het niet noodzaltelijk zou achten
zich bij een nieuw Protocol aan te sluiten. Bovendien zou het geruime
tijd ltunnen vergen voordat de bepalingen van een nieuw Protocol, hoeveel beter de nieuwe keltst oolt zou mogen zijn, op een min of meer uniforme wijze door de rechters worden geinterpreteerd en t ~ e g e p a s t . ~ ~
12. Model unifome wet hzake htemationale handeharbitrage

De vraag of het Verdrag herzien moet worden, dient te worden onderscheiden van de vraag of een uniforme arbitragewet wenselijk is. Het toepassingsgebied van het Verdrag is beperkt tot de nakoming van arbitrageovereenkomsten die geacht kunnen worden onder het Verdrag te vallen
en tot de tenuitvoerlegging buitenlandse arbitrale vonnissen. Het geeft
geen allesomvattende regeling voor internatio~alehandelsarbitrage. Het
is bijvoorbeeld niet van toepassing op de vordering tot vernietiging van
arbitrale vonnissen, hoe internationaal deze ook mogen zijn, welke vordering is overgelaten aan het arbitragerecht van het land van oors p r ~ n g Met
. ~ ~het oog op de verschillen in de nationale arbitragewetten
kan het daarom wenselijk zijn een uniform arbitragewet tot stand te
brengen, tenminste voor wat betreft de internationale handelsarbitrage.
De pogingen om een uniforme wet door een internationaal verdrag tot
stand te brengen, zijn tot nu toe teleurstellend geweest. Een voorbeeld
35. Zie 11-2.6.

36. De conclusie dat, ondanks enige tekortkomingen, het Verdrag op een bevredigende wijze
beantwoordt aan het doe1 waarvoor het in het leven is geroepen en dat, in elk geval vooralsnog,
het niet zou zijn aan te bevelen de bepalingen te veranderen of een additioneel Protocol tot stand
te brengen, wordt eveneens getroklten door de Secretaris-Generaal van de United Nations Commission on lnternational Trade Law (UNCITRAL) in zijn rapport Study on the Application
and Interpretation o f the Convention on the Recognition and Enforcement o f Foreign Arbitral
Awards (New York, 1958), UN DOC AlCN.91168 (april 1979).
37. Zie 1-1.4.2.
480
Sarnenvatting en conclusie
hiervan is de Europese Eenvormige Wet van 1966.38 Een meer realistische benadering lijkt 11et voorbereiden van een model eenvormige wet
die ltan dienen als basis voor het aanpassen van nationale arbitragewetten. Met dit oogmerk heeft de United Nations Commission on International Trade Law (UNCITRAL) op haar twaalfde zitting in juni 1979
het bes1ui.t genomen een dergelijke modelwet voor te bereiden, die,
naar ik hoop, in de nabije toekomst haar beslag zal krijgen.39
13. Eenmaking van rechterlijke in terpretaties
De conclusie is, dat vooralsnog het Verdrag van New York geen herziening behoeft teneinde de teltst te verduidelijken door een additioneel
Protocol of soortgelijk instrument, terwijl de totstandkoming van een
model eenvormige wet voor internationale handelsarbitrage wenselijk
zou zijn. De pogingen om de rechterlijlte interpretaties van het Verdrag
van New York te harmoniseren ten einde tot een uniforrne interpretatie
te komen zouden moeten worden voortgezet. Dit vereist dat de rechterlijke interpretaties bij voortduring op een wereldwijde basis worden gevolgd. Het rapporteren van de rechterlijlte uitspralten inzake het Verdrag in het Yearbook Cornrnercial Arbitration, vanaf het eerste deel in
1976, evenals de verschillende andere rapportages en overzichten, zijn
hiervoor bronnen van groo t b elang .
Het Verdrag is tot nu toe in de praktijk redelijlt hanteerbaar gebleken. De huidige beteltenis van het Verdrag voor de internationale
handelsarbitrage kan echter in de toeltomst alleen dan toenemen indien
de rechterlijlte interpretaties naar elkaar toegroeien. Het analyseren en
vergelijlten van de door de rechters gedurende de bijna vijfentwintig jaar
van het bestaan van het Verdrag gegeven interpretaties, evenals de voorstellen tot mogelijke uniforme interpretaties, mogen, naar ik hoop, een
-bescheiden - bijdrage tot dit doe1 leveren.
38. De Eenvormige Wet is als annex toegevoegd aan het Europese Verdrag inzake Arbitrage,
Straatsburg, 20 januari 1966, European Deaty Series no. 56. Het Verdrag is slechts ondertekend door Belgie en Oostenrijk. Belgie heeft het Verdrag geratificeerd op 22 februari 1973; de
Eenvormige Wet was reeds ingevoerd bij een wet van 4 juli 1972, gepubliceerd in Belgisch
Staatsblad van 8 augustus 1972.
39. "Report of the United Nations Commission on International ~ r a d eLaw on the Work of
its Twelfth Session", Official Records of the General Assembly, mirty-fourth Session, Supplement No. 17, UN DOC A/34/17, para. 81 (1979). Zie ook het memorandum van het Secretariaat van UNCITRAL "Progress Report on the Preparation of a Model Law on Arbitral Procedure", UN DOC A/CN.9/190 (1980).

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T.M.C.

ASSER INSTITUTE -THE HAGUE

The NewUork Arbitrati~TCon~entciorr

ABbekt Janvan den Berg

The New York Arbitration Convention

Promotor : Prof. Mr P. Sanders

@ 1981 T.M.C. Asses Institute, The Hague

The one to whom I owe the greatest debt of gratitude is my thesis

T.M.C. ASSER INSTITUTE

Director : C.C.A. Voskuil

: Alexanderstraat 20-22, The Hague

: 30461, 2500 GL The Hague

Summary Table of Contents

CHAPTER %I lIENFORGEMENT OF THE ARBITRATION

CHAP'FER I11 ENFORCEMENT OF THE A R B I T M L

Detailed Table of Coaate~ats

Foreign Arbitrd Award (Art. 1)

Conditions for referral relating to arbitration

Part 11-2 Written Form of the Arbitration Apeement (Art. II(2))

CHAPTER I11 ENFORCEMENT OF THE ARBITRAE AWARD

Procedure for Enforcement (Art. 111)

Part 111-2 Conditions to be Fulfilled by the Claimant (Art. V)

Grounds for Refusal of Enforcement in Generd

SUMMARY and CONCLUSION

Note to the Reader

Uniform Judicial Intelrpretatisn

3. The lack of a uniform judicial interpretation of the Convention

pute, be refemed to the International Court of Justice for a decision. It provided

5. In choosing the approach of unifying the judicial interpretations of

5. UN DOC El2704 and Corr. 1.

Article 3 1 provides in paragraph 1 that "A treaty shall be interpreted

und 32 der Wiener Vertragsrechtslconvention 1969 (Berlin 1976). An extensive bibliography is

of rules of interpretation, provided that it is made clear for which

9. See H. Holtzmann, Arbitration and the Courts: Partners in a System o f International

issues are examined. For each issue a general explanation of those

History of the New York Convention

8. At the beginning of this century, as international commercial

Awards was concluded in 1927.12 It regulated the enforcementof

tional Arbitral Awards" the ECOSOC Draft Convention mentioned

General Introduc%iomto the New York Convention

9. A general introduction t o the Convention may be best given by

may, however, limit the applicability of the Convention to awards made

19. See infra I-4.4.3a.

pean Convention of 1961.20 Nor is the Convention a uniform law on

20. See infra 1-4.4.2.

FOREIGN ARBITFRAL AWARD (ART. I)

Party's NatiganaEw Excluded

The field of application of the Convention does not depend on the

Article 2 of the Italian Code of Civil Procedure provides namely:

In other countries the abolishment of the nationality condition

The law implementing the New York Convention in the United

Section 202 excludes an award made in a foreign country between

The definition of a foreign award as "an award made in the territory

This question must be distinguished from the question where parties

Conwnkion Not Appficable in Country of Origin

The Convention is limited to the recognition and enforcement of a

1- 1.4-2 Setting aside

The decision is mentioned in this Sub-section because of the Court's reasoning in