University of Debrecen New

UNIVERSITY OF DEBRECEN
FACULTY OF LAW
Title of the Thesis
ENFORCEMENT OF INTERNATIONAL COMMERCIAL

ARBITRATION AWARDS
COMPARATIVE PERSPECTIVES OF IRAQ AND

INTERNATIONAL STANDARDS
Name of the Supervisor: Dr. Zsolt Hajnal
Name of the Student: Miran Mamand Bayz Agha
European and International Business law. LL.M
Debrecen, 2020
Abstract
International commercial arbitration awards without enforcement no exceed than useless

paper. Hence, enforcement of the award is the last and decisive process of international
commercial arbitration. So that topic deserves more analyze. Furthermore, this Thesis is
concerned to examine the International commercial arbitration. Because disputes are inevitable
in international business. Parties have the option to solve future disputes by the arbitration
instead of court litigation. As well as, the thesis seeks to be a comparative study to the
enforcement of the commercial awards between international standards and Iraq.
The general objective of the thesis, clarification of the influence treaties on the enforcement of
the awards. In particular, the New York convention of recognition and enforcement of the
foreign arbitral awards in 1958. It was a turning point for the enforcement process worldwide.
Keywords: Enforcement awards, International commercial arbitration, New York Convention,

Iraq, Riyadh Convention.
I
Acknowledgement
I convey my sincere gratitude to my supervisor and lecturer Dr. Zsolt Hajnal. Thanks for his
proper guidance and supervision.
I would also like to thanks to PhD student Mr. Omed Ismail thanks for his kind direction and
guidance through the thesis process.
I could not have achieved my current level without the strong support of my family.
Miran Mamand Bayz Agha
Debrecen-Hungary. January 2020.
II
Table of Contents
List of abbreviations……...………………………………………………...……..VI
Introductory chapter
1. Introduction……………………………………………………………………..1
2. Objective and significance of the thesis………………………………………...3
3. Statement problem……………………………………………………………...3
4. Thesis methodology………………………………………………………….....3
5. Hypothesis……………………………………………………………………....4
6. Chapter structure of the thesis………………………………………………......4
Chapter one: Introduction to International Commercial Arbitration
1. Historical overview concerning International Commercial Arbitration………..5

2. Elucidation of the International Commercial Arbitration……………………....7
3. Types of International Commercial Arbitration ……………………………....11
3.1. Ad hoc arbitration………………………………………………………....11
3.2. Institutional arbitration…………………………………………………....11
4. Legal framework of the International Commercial Arbitration ……………....12
4.1. International arbitration conventions…………..………………………....12
4.1.1. Geneva treaties ………………………………………........................12
4.1.2. New York Convention………………………………….....................13
4.1.3. Geneva convention 1961…………………………………..................14
4.1.4. Washington Convention ……………………………………..............15
4.1.5. Inter-America Convention…………………………………................15
4.1.6. Arab treaties ………………………………………………................16
4.2. National Arbitration Legislation………….……………………………....16
4.3. Rule of Arbitration…………………………………………………..........17
4.3.1. Institutional arbitration rules …………………..................................17
III
4.3.2. Ad hoc arbitration rules ………………………………………..........18
4.4. International Arbitration guideline and note……………………………...19
Chapter two: Enforcement of International Commercial Arbitration awards

according to international standards
1. Introduction…………………………………………………………………....20
2. Enforcement of the International Commercial Arbitration awards under the
perspective of the New York Convention
2.1. Introduction……………………………………………………………….2
3
2.2. Scope of the
application…………………………………………………..23
2.3. Basic obligation and enforcement procedure
…………………………….26
2.4. Grounds for refusal of the arbitral awards……………………………..…
27
3. Enforcement of the International Commercial Arbitration awards
under the UNCITRAL model law
3.1. Introduction…………………………………………………………….....3
0
3.2. Enforcement of the awards
…………………………………………….....31
4. Enforcement of the International Commercial Arbitration awards
under the perspective of the new Arab League convention
4.1. Introduction……………………………………………………………….3
2
4.2. Scope of the
application…………………………………………………..32
IV
4.3. Enforcement
proceeding………………………………………………….33
5. Other pressures to the enforcement of the arbitral awards
5.1. Reputational
pressure……………………………………………………..34
5.2. Commercial
pressure……………………………………………………...34
5.3. Court
intervention…………………………………………………….......34
Chapter three: Enforcement of the International Commercial Arbitration

awards under the perspective of the Iraqi legislator
1. General survey…………………………………………………………….36
2. Position of Iraq under International and regional treaties…………………36
3. Enforcement of the ICA awards under Iraqi law regime …………………37
4. Enforcement conditions in accordance with Iraq law……………………..38
5. Procedure of enforcement awards in Iraq ………………………………...39
6. New York Convention and Iraq…………………………………………...40
Conclusion…………………………………………………………............4
1
V
List of Abbreviations
ICA International Commercial Arbitration
NY New York Convention
UNCITRAL United Nation Commission on International Trade Law
ICSID International Center for Settlement of Investment Disputes
CCP or CPC Civil Procedure Code
HCPSID Hague Convention for the Pacific Settlement of International Disputes
OSA Organization of America States
ECE Economic Commission for Europe
IBA International Bar Association
VI
ICC International Chamber of Commerce
EFJA Enforcement Foreign Judgements Act
LCIA London Court of International arbitrate
VII
INTRODUCTORY CHAPTER
1. Introduction
In recent years, the influence of the globalization and technology stream has been altered
economic and political regime. As well as an international business. Under the aegis of those
phenomena’s, the world becomes a small village. Entire aspects of the international business
were flourished. International trade was attained more development and accelerate figure.
Evidently, every business transactions whether International or domestic is not devoid of
conflict. Peculiarly, in this contemporary era has many serious obstacles and a threat to the
business transaction. Later on, commercial arbitration was emerged to facilitate the settling
international and national, regional disputes among the parties of the commercial contract.
International commercial arbitration is a mechanism to settling entire the disputes which arising
out under international commercial contract. That disputes among the parties should be solved
pursuant to the arbitration clause which set in agreement when concluded between the parties. It
means ICA is a modern alternative to court litigation to solve disputes in the commercial
domains.
ICA is one of the consensual instrument to solve business disputes which appear between
the parties. It is an informal and private process of adjudication of the business transaction
conflicts when an impartial third party who (Arbitrator) is participating and decide in the
disputes to fix it. The decisions of the arbitrator legally binding and enforceable for both of the
sides1. Hence ICA is extremely different from judicial litigation, for that reason the ICA has
independent and unbiased crew are conducted that foundation. In the modern time, one of the
fundamental stimulus reason for growing and prevalence of arbitration in international business
is the parties of contract fear from the litigate in a foreign court 2, there is no doubt, the
miscellaneous nationals involved in the international trade. May be each party of contract fear
from partiality and apathy of the national court in favour of the citizens, therefore the parties
prefer arbitration as an alternative. Definitely, ICA has many upside aspects, for instance,
1
- Appadoo, K. (2013). Enforcement of International Commercial Arbitral Awards: Redress Mechanisms in the
Event of Non-Compliance. SSRN Electronic Journal, 6. Doi: 10.2139/ssrn.2244872. p.1-51
2
- Gillies, P., & Moens, G. (1998). International Trade & Business Law & Policy (1st ed., p. 729). London:
Routledge Cavendish Australia.
1
confidentiality and privacy3, low cost and expedite in the tribunal process. In the other hand,
international arbitration is not empty of downsides.
The awards of the arbitral tribunal are final and binding therefore the parties whether
winning or failing party should abide pursuant the tribunal awards and enforce it. If the parties
didn’t implement of the award voluntarily then the court must interfere to oblige the party
particularly when the failing party disagree with the awards.
Post-second world war. The role of ICA was increased swiftly and the arbitration
institutions were profusely spread across the world. Therefore arbitration was reflected at various
level. Among supranational initiatives to the enforcement of arbitral awards. The recognition and
enforcement system founded when Geneva Convention for implementation of foreign arbitral
awards was signed in 1927. Consecutively New York Convention for recognition and
enforcement of foreign arbitral awards signed in 1958, later on, UNCITRAL model law in 1985,
which it was like same previous initiatives foster and boost the enforcement proceeding in ICA.
As well as, another instrumental convention for Iraq is the Riyadh convention in 19834.
2. Objective and significance of the thesis

3
- Born, G. (2009). International commercial arbitration (1st ed., p. 87). Austin [Tex]: Wolters Kluwer Law &
Business.
4
- Balz, K.; Almousa, A. (2014). The recognition an enforcement of foreign judgements and arbitral awards under
the Riyadh convention (1983) thirty years of Arab judicial co-operation. International Journal of Procedural Law,
4(2), p.273-288.
2
Enforcement of international commercial arbitral awards is the most important segment
in the ICA proceeding. Enforcement of the ICA awards was emphasized in the majority of the
international treaties and national laws. Additionally, the arbitral awards are binding and final for
the parties. Particularly, the failing party must be implemented awards immediately without any
justification for postponing. This short thesis deal with the comparative and evaluative the
enforcement of ICA awards, prolong to the international conventions and legislation, etc. which
they determine legislative rules of the arbitral awards. Then, I would like to indicate the
importance of the New York convention as most eminent conventions in the domain of the
recognition and enforcement of foreign arbitral awards. As well as clarify the conditions of
enforcement of the ICA awards and causes of the rejection of the awards in a national court. In
the end, I think it is necessary to mention the position of Iraq in the ICA and enforcement of ICA
awards under Iraqi legally perspective, which it is really intricate.
3. Statement problem
During this thesis will discuss some main problem of the enforcement of the awards I
would like to exhibit several questions:
Role of arbitration in international trade?
Is the exhaustive exertion in the current time has been surmounted the challenging to the
enforcement of ICA awards?
Is the enforcement of the International commercial arbitration award is easy to enforce or

not? How can a successful party enforce arbitral awards?
Enforcement of the ICA awards in Iraq?
4. Thesis methodology
This thesis target to be a comparative study regarding the enforcement of the ICA
awards. This thesis is written under the academic and legal perspective to the enforcement of the
ICA awards.
5. Hypothesis
3
Despite, all of the coordination and collaboration between global organization and
foundation. On the other hand UNCITRAL model law for national legislation which adopted by
many jurisdictions to uniform and harmonizes ICA and recognition and enforcement. There still
stay many discrepancies of the ICA and enforcement of the awards.
6. Chapter’s structure of the thesis
The thesis is divided into three respective chapters. Chapter one assigned composition
and legal framework of the ICA. Chapter Two devoted to clarifying the enforcement of ICA
awards. In that Chapter gave precise explanations to enforcement accord to with international
standards under prescribing of the international treaties. And the last chapter we will focus on the
enforcement of the ICA awards in Iraq. And role of Iraq in that international and regional
treaties.
CHAPTER ONE
4
Introduction to International Commercial Arbitration
1. Historical overview concerning International Commercial Arbitration
Regardless of copiousness of the treaties and conventions, historian pamphlet which

written by legal historians is an effective way to understanding the history of ICA. In order to
achieve exhaustive insight about ICA. It is necessary to a concise review of the history of the
ICA to analyze the modern forms of the ICA5. Arbitration is one of the eminent adjudication
systems in various legal regime6. And available in the vast majority of the legal regime, role and
affect the arbitration in the solution of the obstacles among the inhabitants very immense.
Arbitration isn’t new, it is available since the prehistoric centuries. Before the constitution and
law were established to regulate community or courts were constituted, or judges enforce
principles of laws, folks resorted to arbitration 7. In that ancient centuries, arbitration idea and
theory most prevalence paradigm to solve the disputes in the different societies. For instance,
Sumerians in the Iraq, Egyptians, Romans, Byzantine duration8, Greeks all of them had
arbitration as a traditional pattern9, those nations were practiced arbitration such as instrument to
solve disputes. In the past, every single nation had peculiar mythology arbitration to settle the
disputes for instance in the early era among the ancient Egyptian, which implements arbitration
such as disputes between Seth and Osiris, settled by Thoth 10. It was a sample to solve the
5
- Born, G. (2009). International commercial arbitration (1st ed., p. 8). Netherlands: Wolters Kluwer law&business.
6
- Rubino-Sammartano, M. (2001). International arbitration (2nd ed., p. 1). The Hague: Kluwer Academic Pub.
7
- Emerson-F, (1970). History of Arbitration Practice and Law. Cleveland State Law Review, vol.19 p. 155-164
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol19/iss1/19
8
- Taubenschlag, R. (1957-1958). Princeps iudex, Eine Untersuchung Zur Entwicklung und zu den Grundlagen der
kaiserlichen Gerichtsbarkeit, J.M Kelly,”Forschungen zum romischen Recht, 9 ABH. 1957 [recenzja]. The journal
of juristic Papyrology. P.330 available at
http://bazhum.muzhp.pl/media//files/The_Journal_of_Juristic_Papyrology/The_Journal_of_Juristic_Papyrology-
r1957_1958-t11_12/The_Journal_of_Juristic_Papyrology-r1957_1958-t11_12-
s330/The_Journal_of_Juristic_Papyrology-r1957_1958-t11_12-s330.pdf
9
- Zekos, G. (2008). International commercial and marine arbitration (1st ed., p. 10). London: Routledge-
Cavendish.
10
- Born, G. (2009). International commercial arbitration (1st ed., p. 8). Netherlands: Wolters Kluwer
law&business.
5
disputes between folklore societies. Every single group were decided according to own
economical and traditional, the ethical norm11. Arbitration was a multifaceted character, it has an
impression on the different domain. Since the prehistoric, it was utilized to settle several various
categories of disputes. As well as arbitration was exploited to settle many political disputes 12,
Circa 600 B.C in the struggle to possession of the Island of Salamis between Athens and
Megara13, which solved by the impartial arbitration in favour of Athens. Subsequently in
interstate level during 19th century the United State and the United Kingdom permanently
resorted to political arbitration to solve the disputes 14. Notwithstanding arbitration was utilized in
the other ancient controversy cases such as industrial, civil, commercial 15. In the nineteenth
century. Particularly the industrial revolution was an impressive incentive to the prevalence of
arbitration and commercial arbitration more than prior centuries 16. Meanwhile, in the twenty
centuries. ICA was in progress and became more promulgate across all of the continents. Geneva
protocol in 1923 is the outstanding and successful step to promulgate of the ICA. Later on,
Geneva Convention in 1927 which conducted by League of the Nations for the enforcement of
foreign arbitral awards17, both of the two arrangement have been a basis to approval and
acceptance of the ICA in world18. In 1958 the convention on the recognition and enforcement of
foreign arbitral awards was concluded, it was unified protocol 1923 and convention 1927 in the
11
- Wolaver, E. (1934). The Historical Background of Commercial Arbitration. University Of Pennsylvania Law
Review And American Law Register, 83(2), p.132. doi: 10.2307/3308189. available at
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8693&context=penn_law_review
12
- Emerson F, (1970). P.155-164.
13
- Ibid. p.155-164.
14
- Ralston, J. (1929). International arbitration from Athens to Locarno (1st ed., p. 194). Stanford: Stanford
University press.
15
- Emerson F, (1970) p.155-164.
16
- Fraser, H. (1926). Sketch of the History of International Arbitration. Cornell law review, 11(2), p.179-208.
available at https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1236&context=clr
17
- United Nation. (2005). settlement of disputes. In United Nation conference on Trade and Development (p. 20).
New York and Geneva. Retrieved from
https://www.jus.uio.no/lm/un.sg.report.itl.development.1966/index.htmlhttp://file:///C:/Users/LENOVO/Desktop/the
sis/U.N%20conferernce%20on%20ICA.pdf
18
- United Nation. (2019). Progressive Development of the Law of International Trade: Report of the Secretary-
General of the United Nations, 1966. Retrieved from
https://www.jus.uio.no/lm/un.sg.report.itl.development.1966/_1.html
6
mere one convention. Later on, the European convention on international commercial arbitration
was signed in 1961. Furthermore, another development of the International commercial
arbitration in 1985 the UNICTRAL model law on international commercial arbitration to
modernize and reforming of the arbitration procedure.
2. Elucidation of International Commercial Arbitration
International commercial arbitration hasn’t a formal definition. Meanwhile, it is recognized

in the majority of the legal system, so it doesn’t permanently take the same definition. It has
miscellaneous describe and concept, for the reason that each of the conventions and treaties,
national law regimes, commentaries author. Describe ICA according to their insight for it.
However, in general, the term of the ICA is rarely defined in the national and international
level19, simultaneously one of the most prominent international conventions which the New York
convention for recognition and enforcement of foreign arbitral awards didn’t define ICA.
Nevertheless, in the light of the UNCITRAL model law for international commercial
arbitration, we can illustrate and comprehension from the international commercial arbitration
properly. Pursuant to the UNCITRAL model law defined the terms of the ICA respectively. It
described when the arbitration is international at the same time designate commercial action
which belongs to international trade at the footnote of the Art.1 (3) 20. Under UNCITRAL model
law commercial has broad sense, which includes comprehensive various fields.
Both of the conference the Hague Convention for the pacific settlement of international disputes
(HCPSID) in 1989 and 190721, both of the conventions recognized international arbitration as a
manner to settle the disputes among states under basis respect of the law.
19
-United Nation. (2005). settlement of disputes. In United Nation conference on Trade and Development (p. 4).
New York and Geneva.
20
-United Nation. (2006). UNCITRAL Model Law on International Commercial Arbitration 1985 with amendments
as adopted in 2006. (p.1) retrieved from https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-
86998_Ebook.pdf
21
- Hague convention. (1907). Hague Convention for the pacific settlement international disputes. Hague. Retrieved
from https://pca-cpa.org/wp-content/uploads/sites/6/2016/01/1907-Convention-for-the-Pacific-Settlement-of-
International-Disputes.pdf
7
Additionally, it has been defined in the different national levels. Initially, my home
country Iraq, doesn’t has a particular statute for regulation and describe international commercial
arbitration, simultaneously didn’t define arbitration in each of statutes. Nevertheless, Iraqi
legislation empowers the parties to resort to arbitration in some disputes and in some acts. For
instance, Iraqi investment law which enacted in 2006. That law purpose to facilitate investment.
Therefore, authorize the investor's parties to resort to international or domestic arbitration 22, As
well as the Iraqi civil procedure No 83/ 1969 authorized the parties to agree to solve the disputes
via arbitration23, but totally Iraqi civil procedure code didn’t define ICA.
The France legislature indicates international arbitration in the code of civil procedure
(CCP)24. In accordance with that code parties of the contract could turn to arbitration to solve the
disputes according to their arbitration clauses, French legislature distinguished between
international and domestic arbitration, which French law was given a contemporary basis for
international arbitration. Nevertheless, in 2011 France legislature embrace new law to the
arbitration and modified previous arbitration law.
My perception, it is so indispensable to understanding properly to the term of

international commercial arbitration. Will be to polarize the words of ICA, afterwards define
each of the words of the international commercial arbitration respectively:
When arbitration is International?
Arbitration is a system maybe move in to deal with the dual of international and national
disputes. Furthermore, the International and domestic disputes never settled by the same
paradigm25. Hence cross-border relationship disputes very complexly because contain interest
more than a single state. Description of the “International” vary among different international
conventions. Preliminary under UNCITRAL model law on international commercial law.
Arbitration is supranational if the place of the trade among the parties in different states at the
time of the contracting or if the place of the performance of the fundamental obligation or the
22
- Iraq investment Act 2006. No 13.
23
- Iraq civil procedure code 1969. No 83.
24
- France civil procedure code 1981. Modified in 2011, Article 1504.
25
- Tang, Z. (2014). Jurisdiction and arbitration agreements in international commercial law (1st ed., p. 5). New
York: Routledge
8
place most closely connected to the subject matter of the disputes is situated out of the parties”
seat of the commercial26, or if the parties have satisfied that the subject matter related with more
than one state27. In the other hand in accordance with the New York Convention, it is only
concerned with the place. Where the award is rendered28.
When arbitration is commercial?
The term “commercial” in International commercial arbitration is a most significant

segment of the definition because of lack of the common consensus of the arbitrable matters.
Definitely a lot of the subject matter potential to be arbitrated in the contemporary business
transaction. While it varies from country to country. In addition, some states just allow the
commercial matter to arbitrable. Initially, the concept of commercial under the light of the
international commercial arbitration as described in the Geneva protocol on arbitration clauses in
192329. According to the Geneva Protocol, the contracting states agree to submit to arbitration in
any disputes related to the commercial matter but Geneva doesn’t determine exactly meaning of
“commercial”. As well the term of the commercial in accordance with UNCITRAL model law
has exhaustive interpretation to commercial. It covers whole matters which arising out from
relationship of the commercial nature, commercial enclose following transaction: business
transactions for exchange and supply of service or goods, commercial agency and representative,
hire property, factoring, investment, financing, banking, joint venture, carriage of passengers or
goods30, it means each commercial disputes emerging in that commercial activities include the
scope of commercial arbitration. As well as, International tools are not suitable to define
commercial matters. Therefore, national law accountable to determine of the commercial matters
which can be possible to arbitration.
26
- United Nation. (2006). UNCITRAL Model Law on International Commercial Arbitration 1985 with amendments
as adopted in 2006. (p.2) retrieved from https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-
86998_Ebook.pdf
27
- Ibid.p.2
28
- Ungar, K. T. (1987). The enforcement of arbitral awards under uncitral's model law on international commercial
arbitration. Columbia Journal of Transnational Law, 25(3), 717-754.
29
30
- Fouchard, P., Goldman, B., & Gaillard, E. (1999). Fouchard Gaillard Goldman on international commercial
arbitration (1st ed., p. 36). Hague: Kluwer law international.
9
Iraqi commercial law describe the commercial matters which include the following: buy
or rent movable property, supply of goods and services, import and export of goods, industry and
raw material extraction process, publishing, printing, photography and advertising, construction
of building, renovation and demolition, services of tourist office, hotels and restaurants, selling at
auction shops, carriage people and goods, shipping and taking out goods, warehousing of goods
in public warehouse, banking, insurance, to deal with the companies’ shares and bonds,
commercial agency31.
What is the meaning of Arbitration?
Arbitration is a private procedure or method to dispute resolution. If the parties agree to

refer their disputes to an impartial tribunal, consisting one or more arbitrator. Arbitration is a
legally binding resolution for the disputes which arise out between the parties32. Arbitration is an
alternative to litigation and consensual mechanism among both of the parties on the basis of the
arbitration agreement. Simultaneously courts always assist to the arbitration to enforce awards or
refuse the awards.
As stated by book, Redfern and Hunter on international arbitration, that book described
the concept of the arbitration. It is said, Arbitration is a mechanism to settle the disputes. The
parties of the contract agree to yield their disputes to an arbitrator. The arbitrator who nominated
should be contemplating about the fact and listen to the parties thereafter make a decision 33. That
decision of the arbitrator is binding for both parties of the arbitration and its decisions final. It is
a private way to settle the disputes without resort to court. Arbitration doesn’t have any coercive
power therefore the court should be engaging in the enforcing of the arbitral awards when losing
party refuse to execute the arbitral award34.
My perception for arbitration. I consider arbitration is one of the contemporary and archaic
mechanisms to fix disputes. By the way of intervening third neutral parties who arbitrator and
31
- Iraq commercial law. Article 5.
32
- Drahozal, C. R.; Ware, S. J. (2010). Why do businesses use (or not use) arbitration clauses. Ohio State Journal
on Dispute Resolution, 25(2), 433-476.
33
- Blackaby, N., Partasides, C., Redfern, A., & Hunter, M. (2015). Redfern & Hunter on international commercial
arbitration (6th ed., p. 2). New York: Oxford University press.
34
- Blackaby, N., Partasides, C., Redfern, A., & Hunter, M. (2015). p. 2.
10
decided in favour of the truth. It is compulsory for both disputatious sides they must be obliged
for the decision of the arbitrator.
3. Types of ICA
The parties of the arbitration agreement should be the choice between two basic forms of the
arbitration to conducting arbitration tribunal. It relies upon the parties’ agreement whether they
want. Hence the arbitral proceeding bifurcates into:
3.1. Ad hoc Arbitration.

Parties of the arbitration agreement concur to conduct of the arbitration without interfering
of the institutional arbitration. Spontaneously they may draft their own rule or set a rule such as
UNCITRAL rule. Furthermore, the parties can add any extra condition if they wish. It means Ad
hoc is specifying to settle a particular dispute35. But this type of arbitration is not allowed in
some countries such as China36.
3.2. Institutional arbitration.

Institutional arbitration means the arbitration tribunal will be conducted under supervisory
competent institution according to its own rules. There are many institutions established to
adjudicate the issues such as the well-known are namely: LCIA and ICC, ICSID.
4. The legal framework of the International Commercial Arbitration
Nowadays, in the ICA domains tremendous legal framework available. In this section, the
entire legal framework of the ICA will be clarified. Such as International arbitration conventions,
national arbitration legislation, rules of the arbitration, international arbitration guidelines and
notes. Those universal instruments enhanced and dedicated, supportive for the legal framework.
All of those provide a stable environment and effective for ICA. Paving away to the business
35
- Ibid. p. 42.
36
- Moses, M. (2008). The principles and practice of International Commercial Arbitration (1st ed., p.9).New York:
Cambridge University press.
11
activities, In advance among the international conventions to the legal framework of the
arbitration the Geneva protocol in (1923) and the Geneva Convention in (1927) which concluded
under the patronage the League of Nation have been an essential legal basis for the ICA 37, They
eliminated a lot of barriers to international arbitration. Nevertheless, that development was
extended by the New York Convention on recognition and enforcement of the foreign arbitral
awards38. Also, I want to point out one of the most significant bases for ICA which it is
(arbitration agreement). Therefore arbitration agreement is the earliest base for the legal
framework. Because without existence and referring to the arbitration agreement by the parties.
The whole of the legal instruments which aforementioned would be useless39.
4.1. International Arbitration Conventions
The majority of the international legal framework for the ICA is international conventions.
But occasionally except the conventions comprise general principle of law, judicial decision and
international custom40, in this section will be several of the most well-known international
arbitration conventions will be explained for instance:
4.1.1. Geneva treaties (1923 and 1927)
The first and earliest international convention for ICA was the Geneva Protocol. The
Geneva Protocol on arbitration clause was concluded subsequent to the First World War under
aegis League of the Nation in 1923 and came into force on 28 July 1924 41. Initially, it was
ratified by thirteen states afterwards accepted by sixteen states. That protocol pertains to the
arbitration clause in the commercial matters42. The major purpose of the Geneva Protocol was to
ensure recognition and enforcement of the awards so the Geneva Protocol pioneer attempt to
37
- Zachariou, M. (2016). Legal foundations of international commercial arbitration. Academia,1-8 available at
https://www.academia.edu/25607285/The_Legal_Foundations_of_International_Commercial_Arbitration
38
- Fouchard, P., Goldman, B., & Gaillard, E. (1999) (1st ed., p. 120).
39
- Zachariou, M. (2016). Legal foundations of international commercial arbitration. Academia.1-8.
40
- Fouchard, P., Goldman, B., & Gaillard, E. (1999). (1st ed., p. 103).
41
- United Nation. (1955). protocol of the arbitration clause, Geneva, available at
file:///C:/Users/LENOVO/Downloads/Doc-1-E-AC-42-2%20(1).pdf
42
- Sultan, A. (1959). The United Nations Arbitration Convention and United States Policy. The American Journal
of International Law, 53(4), 807-825. doi:10.2307/2195752 available at https://www.jstor.org/stable/2195752?
seq=4#metadata_info_tab_contents
12
boost and unify enforcement awards in ICA. In spite of the Protocol was scope and application
highly limited43.
The Geneva Convention was concluded in 1927. The objective of the convention was an
implementation of the foreign arbitral awards. It became supplementary to the previous Protocol.
The Geneva Convention consider a step forward because the system of enforcement of arbitral
awards was established. It had several positive outcomes for ICA44. Simultaneously it was not
devoid from the drawbacks. It was criticized because it wasn't according to the requirements of
international business45.
4.1.2. New York convention (1958)
At the consequence of the shortcoming of the both Geneva protocol and Geneva
Convention. In the other hand expansion of the international trade. Appearing of the
contemporary convention to the recognition and enforcement of arbitral awards became an
inevitable necessity which it was called (New York Convention for recognition and enforcement
of foreign arbitral awards). New York Convention was signed in 1958 it was multilateral
convention concluded among twenty-five states46. In general, concluding New York convention
was profound successful to the supremacy of law. Peculiarly in the sphere of the international
business. Nowadays the New York Convention is signed by 161 contracting states 47. It became a
universal mechanism to recognition and enforcements the arbitral awards which arbitral awards
issued in one contracting states should be enforced in the entire signatories’ states of the
convention48. The crux of the NY Convention comprises the recognition and enforcement awards
and in other side enlighten the causes of the refuse of the arbitral awards. Usually, application
43
- Brazil-David, R. (2011). Harmonization and delocalization of international commercial arbitration. Journal of
International Arbitration, 28(5), 445-466.
44
- Sultan, A. (1959), p.811.
45
- ICC Digital Library. (2019). Retrieved 2 December 2019, from
https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/CR_0011.htm?l1=&l1
46
- Gaillard, E., Di Pietro, D., & Leleu-Knobil, N. (2009). Enforcement of arbitration agreements and international
arbitral awards (1st ed., p. 19). London: Cameron May..
47
- UNTC. (2019). Retrieved 5 December 2019, from https://treaties.un.org/Pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=XXII-1&chapter=22&clang=_en
48
13
and interpretation of the NY Convention will be by the courts of the states 49. Currently the New
York Convention most attractive foundational international instrument for the recognition and
enforcement of the ICA awards throughout the world.
4.1.3. European Convention on International Commercial Arbitration. (Geneva Convention)
The European convention was one of the major regional treaties concerning ICA. It was
the first convention frankly expressed the term ICA. In fact, the European convention existed
before the NY convention. Whilst in 1954 the Economic Commission for Europe of the United
Nation started the effort to draft the European convention 50. Finally, after adjourning for many
years at the result of the plenipotentiary forum on 21 April 1961 the European Convention of the
international commercial arbitration was signed in Geneva51. The object of that convention was
uniform the arbitration procedure at the European level. Particularly converge the heterogeneous
aspects between West-East block of Europe in the ICA deal 52. Another major goal of The
European convention was to settle the legal and psychological problem which materialize before
or after arbitration in Europe. That convention was the unique contential instrument try to tackle
the whole various steps of ICA in Europe.53
4.1.4. Washington Convention
I would like to indicate another convention which it is called the Washington Convention
of the settlement of investment disputes between states and nationals of other states, also known
by ICSID Convention. Under the patronage of the (World Bank) the international bank for
reconstruction and development, The Washington convention signed in 1965 subsequently came
into force on October 14, 196654. The ICSID Convention regulates one kind of arbitration which
include the investment arbitration. It creates a specific method to arbitration procedure and
49
- Ibid. p.123
50
-Ion, N. (1972). Problems concerning the application and interpretation of existing multilateral conventions on
international commercial arbitration and related matters (p. 205). United Nation. Retrieved from
https://undocs.org/pdf?symbol=en/A/CN.9/64
51
- Benjamin, P. P. (1961). The European Convention on International Commercial Arbitration. British Year Book of
International Law, 37, 478-495.
52
- Ibid. 478-495.
53
14
enforcement of the arbitral awards. The World Bank by the way Washington convention urges
the investors to involve in investment in foreign states 55. It was highly prosperous to founding the
international arbitration system among international investors and host countries.
4.1.5. Inter-America Convention
Latin America states showed concern to create a uniform rule to dealing with the ICA. In
1878, in the begging attempt under the behest of (OSA) Organization Of American States, Seven
Latin countries gathering to concurring to enactment uniform code to private international law to
governing enforcement of the foreign arbitral awards56 .
Inter-America convention on international commercial arbitration was signed by thirteen Latin

states on 30 January 1975 also known as (Panama Convention) 57. It comprises of thirteen
articles. The convention provides jurisdiction to recognize and enforcement of the foreign
arbitral awards in Latin countries58. It strongly influenced by NY convention and so has many
mutual resemble points, therefore, the drafters of dual of the conventions endeavored to attain the
same upshot.
4.1.6. Arab treaties
During the 20th century In the Arabic countries were presented several initiatives to
promote the cooperation and coordination in the ICA. First Arab treaty under auspices Arab
league it was regarding enforcement of the awards and judgments in 1952 to converge and
implement the foreign judgments and awards59. It was a rudimentary step to enforcing
international arbitral awards.
54
- Sutherland, P. P. (1979). The World Bank convention on the settlement of investment disputes. International and
Comparative Law Quarterly, 28(3), 367-400. Available at https://heinonline.org/HOL/Page?
handle=hein.journals/incolq28&id=389&collection=journals&index=
55
- Moses, M. (2008). The principles and practice of International Commercial Arbitration (1st ed., p.8).New York:
Cambridge University press.
56
- Brazil-David, R. (2011), p. 445-466.
57
- The Inter-American Convention on International Commercial Arbitration. (1977). Lawyer of the Americas, 9(1),
43-78. Retrieved from www.jstor.org/stable/40175586
58
- Brazil-David, R. (2011).445-466.
15
Later on, Arab countries were initiated to a settlement of investment disputes which
called Agreement on the settlement of investment disputes between Arab host state and nationals
of other Arab states. That Agreement signed in 1974 under the aegis of the Arab League and
Arab economic counsel the objective of that convention was a settlement of the disputes which
relevant to investment deal60.
Consecutively. Riyadh convention was concluded in 1983 in the field of judicial

cooperation, it was an ancillary convention to the enforcement of the arbitral awards while
proposed some facilitate in Arab countries in the various stage of ICA. However, it was the most
vital convention during Arab treaties to ICA. Amman Arab convention on the international
commercial. It was signed in 1987 after several session between fourteen justice ministries of
Arab states61. The object of the Amman Convention was combined and integrated all Arab
miscellaneous systems for international commercial arbitration.
4.2. National Arbitration Legislation
Notwithstanding the importance of international conventions such as legally framework of

ICA which aforementioned. As well as, national arbitration legislation is another source to the
legal framework for harmonizing the enforcement of the ICA awards with national legislation. In
precede decades numerous legislative systems amendment national legislation to harmonize with
ICA in all continents particularly in Europe such as France, Belgium, England 62. Those countries
and the rests were attempted to enact international commercial arbitration rules in their
jurisdictions. Those countries were realized the ancient national law wouldn’t harmonize with
modern forms of ICA, even some of them didn’t distinguish between basic principles such as
domestic and international arbitration. Therefore it was not matched with the requirement of
modern sort of proceeding in ICA.
59
-Saleh, S. (1985). The Recognition and Enforcement of Foreign Arbitral Awards in the States of the Arab Middle
East. Arab Law Quarterly, 1(1), 19. doi: 10.2307/3381670
60
-Najjar, N. (2017). Arbitration and international trade in the Arab countries (1st ed., p. 162). Leiden, Boston: Brill
| Nijhoff.
61
-Jalili, M. (1990). Amman Arab convention on commercial arbitration. Journal of International Arbitration,
7(1), 139-152.
62
16
The diversification of the national statutes which it was a serious obstruction to the promotion
of the ICA63. Because the parties of the contract fear from unfamiliar foreign domestic
legislation. Significantly, that condition was changed when model law issued by UNCITRAL.
UNCITRAL model law on international commercial arbitration was a quite successful
instrument to unify of the national arbitration laws. It was assists legislators of the countries to
reform and adopt the model law of the national arbitration acts. The model law notion was
started since 1972 under UNCITRAL recommendation 64. Finally, in 1985 the Model law became
promulgate and approved by the UNCITRAL. The model law was exhaustive law which
contains all compass of the ICA proceeding. Numerous of the states amended the arbitration act
under the basis of the model law65.
4.3. Rule of arbitration
Arbitration rules are the third source for the legal framework of the ICA according to my
estimation. At below, I would like to explain arbitration rules. In each of the two kinds of the
arbitration. The rule of arbitration bifurcates to:
4.3.1. Institutional arbitration rules
In some circumstances, the parties of the arbitration agreement agreed to solve the
conflict by the way of institutions. Intuitions or organization lay down their rules to the
procedures for the outset of the proceeding to end. Every single arbitration institutions have their
own rules and implement in the arbitration process. There are several institutions render
institutional arbitration rules. Frequently, the arbitration rules prepared by the arbitration
institutions and centers66. Majority of the institutions have one arbitration rule but also it is
potential if institutions have two or multiple rules for various kind of disputes67.
4.3.2. Ad hoc arbitration rules
63
64
- Ibid (p. 30).
65
66
-Sammartano, M. (2001). (2nd ed., p56).
67
17
Ad hoc arbitration is the opposite of institutional arbitration. It is not administered by the
organizations and institutions authority. The parties of the arbitration agreement spontaneously
determine all aspect of the arbitration proceeding and they agree to settle the disputes resort to
arbitration but outside of the institutional arbitration 68. In fact, arbitration rules more sensible and
suitable for ad hoc arbitration 69. Nowadays, many arbitration rules exist across the world such as
(ECE) arbitration rule under auspices United Nation economic commission for Europe it is a
private rule to Europe to solve unsatisfactory sides of commercial disputes between East and
west block70. As well as, UNCITRAL arbitration rule it was a most preeminent arbitration rule
which approved in 197671, it provided a reasonable framework for arbitration and expediently
embedded worldwide.
4.4. International arbitration guidelines and notes.
International guidelines and notes concerning ICA are sensible legally framework to ICA. In
one hand that sources are remarkable for guidance parties. On the other hand to tribunal squad.
That guidelines and notes provided more swiftly and straightforward process for the arbitral
procedure.
All the guidelines are not compulsory for each of the parties of the arbitral tribunal.
International bar association dispensed numerous guiding principles regarding international
arbitration such as:
68
- Arkin, H. L. (1987). International ad hoc arbitration: practical alternative. International Business Lawyer,
15(1), 5-12. Available at https://heinonline.org/HOL/Page?
handle=hein.journals/ibl15&div=6&id=&page=&collection=journals
69
- Griffith, G. Mitchell, A. (2002). Contractual dispute resolution in international trade the uncitral arbitration rules
(1976) and the uncitral conciliation rules (1980). Melbourne Journal of International Law, vol.3 available at
https://law.unimelb.edu.au/__data/assets/pdf_file/0004/1680241/Griffith-and-Mitchell.pdf
70
- Cohn, E. E. (1967). The rules of arbitration of the United Nations economic commission for
Europe. International and Comparative Law Quarterly, 16(4), 946-981 available at
https://heinonline.org/HOL/Page?
collection=journals&handle=hein.journals/incolq16&id=956&men_tab=srchresults#
71
- Griffith, G. Mitchell, A. (2002). P.185-199
18
1- Guidelines on conflicts of interest in international arbitration72.
2- Another one is guidelines for drafting international arbitration clauses.
3- Guidelines on party representation in international arbitration.
4- Rules on taking evidence in international arbitration.
That guidelines of the IBA are not mandatory just direct the parties to implement a simple
and successful arbitration process. Other international arbitration organizations trend the optional
guidelines to ICA. As well as the UNCITRAL declare the note regarding regulating the arbitral
proceeding. It was Likewise others hadn’t any compulsory clause therefore the parties free to use
or not73.
CHAPTER TWO
Enforcement of International Commercial Arbitration Awards according to

International standards
1. Introduction.
Constantly, proponents of the international arbitration refer to the simplicity enforcement

of the arbitration awards, if we compared with the judgment of the court. But undoubtedly it is
not fully correct because the enforcement of the arbitration awards isn’t pretty straightforward
particularly when the failing rejected the voluntarily enforcement of the awards therefore the
72
- Voser, N.; Petti, A. M. (2015). Revised IBA guidelines on conflicts of interest in international arbitration,
the. ASA Bulletin, 33(1), 6-36.
73
- United Nation. (2012). Uncitral note on organizing arbitral proceeding.
19
process become more convoluted. The procedure of enforcement of the ICA award various it
depends on the legal system where you seek to enforce. Hence that issues will be left to the
domestic law.
It is necessary to distinguish between recognition and enforcement of those terms is a

completely inextricable link74. Recognition is a rudimentary step before enforcement proceeding.
Furthermore, recognition results in the arbitral awards taking the same effect and status as a court
judgment. Recognition of the award confession of the award as a valid and binding therefore
recognition of the award has the same effect of the court judgment75.
Enforcement of the ICA awards is a process to carry out any obligation provided in the
award and it is one of the basic function of ICA structure. Enforcing that function relies on the
international treaties and national courts76. The decisions of the arbitral awards are final and
binding. Constantly, the unsuccessful party will spontaneously enforcement the arbitral awards,
it means failed party in tribunal voluntarily abide by the awards and enforcing of it 77. In contrast,
if the failing party rejected to enforcing of the arbitral awards the prevailing party will summon
of the judicial intervention which it is include national courts 78. The arbitral tribunal hasn’t any
part in the enforcement of the arbitration awards and orders. For the reason that arbitration award
has no executive and coercive ability to compel the losing party in enforcement procedure whilst
it was rejected79. In that case, the winning party resort to court (legal proceeding) to fulfil the
execution arbitral awards without deferring. In another side, the arbitration agreement is not just
simple agreement hence the parties of the arbitration according to agreement impliedly agree to
enforce any possible arbitral awards80.
74
- Blackaby, N., Partasides, C., Redfern, A., & Hunter, M. (2015). Redfern & Hunter on international commercial
arbitration (6th ed., p. 610). New York: Oxford University Press.
75
- Ibid. p. 610
76
- Yu, S. (2004). Recognition and Enforcement of International Commercial Arbitration Awards (master thesis).
University Georgia Law.
77
- L Moses, M. (2008). The principle and practice of International commercial arbitration (1st ed., p.202). New
York: Cambridge University Press.
78
- Blackaby, N., Partasides, C., Redfern, A., & Hunter, M. (2015). (6th ed., p. 605).
79
- Ibid. p.606.
80
- Ibid. p.26.
20
“Enforcement of the foreign arbitral awards” expression became the predominant
address the numerous of the international treaties during last twentieth century and frequently it
was governed by universal treaties. Non-exist of the international instruments to the
enforceability of the arbitration awards was the main dilemma of the arbitration proceeding in
the prior century.
Historically, if concisely revert to the earliest convention in 1923 the Geneva Protocol on
Arbitration clause. Enforcement was the paramount principle in its articles 81. Which it was
respectively concerned about recognition of the validity of arbitration agreement and each
contracting state should pledge to enforce of the arbitral awards82. In the opposite side, in 1927
the Geneva Convention in substance dealt with the enforcement of foreign arbitral awards. In
1958 the New York Convention was incredibly effective to recognition and enforcement of
foreign arbitral awards which currently persist and most significant treaty. Other international
treaties, supplement other mechanisms for governing enforcement 83, such as the European
Convention in 1961, it is indirectly dealing with recognition and enforcement 84. The rest
international conventions relatively or completely treat with the recognition and enforcement.
Notwithstanding all of those, the UNCITRAL model law adopted and subject to enforce foreign
arbitral awards85. Due to the profuse of the national and international initiatives to the
enforcement of the arbitral awards in commercial transactions. Currently, The ICA awards
broadly accepted and in excess of 90% percentage of the arbitral awards enforced by the
voluntarily method86.
I conceive, nowadays in international trade the arbitration more preferable and influential
than court litigation it is due to leniency and alleviates during an enforcement proceeding. The
judicial judgments more complicated than arbitration awards because of the judgments issued
81
- (1924). Protocol on arbitration clauses. League of Nations Official Journal, 5(1 Part II), 235-238 available at
https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/leagon5&id=239&men_tab=srchresults
82
- Ibid. p.235-238.
83
- Fouchard, P., Goldman, B., & Gaillard, E. (1999 (1st ed., p. 964).
84
- Ibid, p. 964.
85
- Fouchard, P., Goldman, B., & Gaillard, E. (1999. p.963.)
86
- United Nation. (2003). Recognition and Enforcement of Arbitral Awards: The New York Convention. In United
Nation conference on trade and development (p. 5). United Nation. Retrieved from
https://unctad.org/en/Docs/edmmisc232add37_en.pdf
21
pertain to legally nature of specific national jurisdiction and not intimate with cross border
jurisdictions. So the flexibility enforcement of the arbitral awards is a cause to paving a way to
progress ICA.
In term of appeal, through the arbitration process appealing of the awards is possible but
in a certain situation and under narrow conditions. In some circumstances, it is allowed when the
arbitral awards infringement of the public policy, the discrepancy of due process, violation of the
jurisdiction, proving partiality of the arbitrator. If the appeal is successful the arbitral awards will
be revoked utterly87.
The whole of the international instruments is a method to enforce the awards. In

Particular, the straightforward and expedite proceeding of the NY Convention and UNCITRAL
Model Law of the enforcement the arbitral awards, therefore, both of those attractions of ICA 88.
Both of them determine and describe the reasons for enforcement. Nonetheless, the victorious
party seek to mutual enforce the award pursuant to enforcement treaties. The following sections
will concentrate on the NY Convention and the UNCITRAL model law. Therefore the swiftly
and simple procedure to enforcement awards in view of the NY Convention and model law are
major attractions for ICA.
2. Enforcement of the ICA awards under the perspective of the New York
Convention (1958)
2.1. Introduction.
NY Convention was a resulted of the universal attempt to create effective arbitration

regulation. At the consequence of the drawbacks in the enforcement procedures of the ICA. NY
Convention under the aegis of the United Nation was prepared as a reliable system to the
enforcement of the arbitral awards. Currently, the NY Convention is an essential multilateral
treaty to enforcement, it means absolutely the NY Convention is a cornerstone of the ICA and
International business law89.
87
88
- Chukwumerije, O. (1993). The enforcement of international commercial awards: Schreter v. gasmac
inc. Canadian Business Law Journal 22(2), 296-307.
89
- Neuhaus, J. E. (2004). Current issues in the enforcement of international arbitration awards. University of Miami
Inter-American Law Review, 36(1), 23-40.
22
The NY Convention imposes an obligation for national courts of one signatory to
recognize and enforce a foreign arbitral award made in other signatory states. The main objective
of NY Convention to ensure uniformity in recognition and enforcement of foreign awards and in
another side to facilitates to enforcing of the awards in all of the territory of the signatory states.
As well as overhauling the shortcoming of the prior conventions. The NY Convention applies to
international commercial arbitration.
2.2. Scope of the application.
Pursuant to Article Ι the NY Convention limit of the scope of application and intend to
enforce non-domestic awards because domestic awards didn’t describe in NY Convention
therefore it draws line between domestic and foreign award90. Pursuant to the provision of article
Ι, the arbitration awards will be foreign if:
- The award made in another state.
- When recognition and enforcement are sought. It deems to foreign.
It is necessary to distinguish between domestic and foreign awards due to each of the sort
awards has particular criteria to enforcement according to national law91. There is no unanimous
rule of determining foreign awards in national laws. Also, the NY Convention doesn’t explain
foreign awards explicitly. Therefore the determination of foreign awards mainly depends on the
national law of each signatories states92.
In this regard, In 1962 the Hungary government (ministry of justice) release decree
expressly determined in which situation the arbitral awards is foreign or domestic to facilitate in
application NY Convention93. Accordingly, Hungarian decree mentioned the awards will be
foreign:
90
- L Moses, M. (2008). p.204.
91
92
- United Nation. (2016). UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York, 1958 (p.11) New York. retrieved from
https://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/2016_Guide_on_the_Convention.pdf
93
- Szászy, I. (1965). Recognition and Enforcement of Foreign Arbitral Awards. The American Journal of
Comparative Law, 14(4), 658-672. doi:10.2307/838915
23
- If the awards rendered abroad of Hungary94
- If the seat of the arbitration tribunal is abroad of Hungary95
- If the majority of the arbitrator or just one arbitrator isn’t Hungarian citizens96.
Hungary in the early time established stipulates to determine the foreign awards, but I
conceive that standards of Hungarian decree regarding foreign awards is strict and the foreign
awards have a narrow corridor to enforcing. Therefore it should be more flexible and simple to
harmonize with international trade.
Article Ι(2) of the NY Convention didn’t discriminate between the arbitral awards of ad
hoc or permanent intuitional arbitration, it means both awards have to be enforcing 97. The
objective of the NY Convention to set that article is to the strength of the convention in
consideration of the onerousness which may be confronted in future98.
Nonetheless, Article Ι (3) of the NY Convention provides two way to reservation and
registration of the state when the acceding to NY Convention.
- reciprocity reservation
Reciprocity reservation is a reason to limit and diminishing the ambit of the applicability of
the NY Convention99. The reciprocity reservation permits states to enforce just the arbitral
awards of the New York convention instead enforcing entire of the foreign arbitral awards 100.
Accordingly, it means the signatory state of the NY Convention will enforce only the awards
rendered in the state which is a signatory to NY Convention 101. Therefore the states acceding and
ratifying the NY Convention of the basis of recognizing and enforcing of the “Convention
94
- Ibid. p.658.
95
- Ibid. p.658.
96
- Ibid. p.658.
97
- NY Convention. Art I (2).
98
Foreign Arbitral Awards (New York, 1958 (p.28)
99
100
- Ibid. p. 618.
101
24
arbitral awards”. So this sort of reservation was adopted by the majority of the signatories’
states102.
- Commercial reservation (commercial matters)
The NY Convention comprises commercial reservation in Article Ι (3). The objective of the
commercial reservation resembles of the reciprocity reservation it gave narrower scope of the
application of NY Convention and this type of reservation authorize of the states to apply of the
NY Convention only in this disputes with respect to “commercial” in accordance with national
law. It means the “commercial reservation” allow to the contracting state to apply the NY
Convention award just in the disputes which have commercial nature under national law.
Therefore according to commercial reservation states just apply NY Convention awards in
commercial matters in the legal relationship103. To more clarification, I would like to refer a case
in this regard.
Taieb Haddad and Hans Barett v. Société d’Invesstissement Kal
The Société d’Invesstissement Kal and Haddad and Hans Barett. Both of the parties
concluded a contract with ICC arbitration clause in order to the architect design of the RafRaf
Ghar El Melh resort which located of the north of Tunisia. The disputes arose out regarding the
payment of the fee. They have submitted their disputes to the ICC arbitration. Then the
arbitration tribunal rendered an award in favour of the architects. The judicial authority of
Tunisia, which includes supreme court and the court of appeal unanimously agreed that award
must be declined and refused by the virtue of Tunisia had made commercial reservation pursuant
to Article Ι(3) of the NY Convention and the contract not commercial according to Tunisia law.
As well as the urbanization and architectural are not commercial action according to Tunisia
national law104.
102
- L Moses, M. (2008). p.204.
103
- Blackaby, N., Partasides, C., Redfern, A., & Hunter, M. (2015). P.619.
104
- Leleu-Knobil, N. Di Pietro, D. Gaillard, E. (2008) Enforcement of Arbitration Agreements And International
Arbitral Awards: The New York Convention in Practice.(1st ed, p.179). Cameron May.
25
2.3. Basic obligation and Enforcement procedure
Under the rule article ΙΙΙ of NY Convention refers to the inherent commitment of the
signatories’ state to recognition and enforcing awards pursuant to the local procedure rules of the
state where the award is relied upon. Also that the contracting state should take some facilitate
step to the enforcement of the foreign arbitral awards such as domestic awards. Moreover, the
rule of procedure and jurisdiction doesn’t define in NY Convention 105. Also the rule of procedure
for enforcing an award different from state to states jurisdiction. As well as the contracting state
shouldn’t impose a complicate system for enforcing foreign awards,
The petitioner who seeking recognition and enforcement awards should submit some
formal documents to the court such as:
- The duly authenticated original award or duly certified copy106
- The original agreement or duly certified copy107
- Translation all of the submitted documents to the language of the country which
award is relied upon. If the language of the documents is not the same language of
the court where the enforcement of the award is requested, hence that whole of
the documents should be translated to the official language of the court which
conducted the enforcement process108.
In term of applicable law, the NY Convention is silent in this topic and didn’t mention any
law to be applicable in these issues. But in accordance with the opinion of the legal scholars the
court may be applying whether lex fori , it means the law of the court which the action is
brought. Or lex arbitri, it means the law of seat which arbitration tribunal take place and award
was made109.
2.4. Grounds for refusal of the arbitral awards
105
- Fouchard, P., Goldman, B., & Gaillard, E. (1999) p. 967.
106
- NY Convention. Article. ΙV.
107
- NY Convention. Article. ΙV.
108
109
- Ibid. (p.25).
26
Under Article V of the NY Convention set forth the possible grounds of the refusal and
challenges of the enforcement awards in many circumstances. Grounds under NY Convention is
bifurcate for two classes:
- The grounds may be emerged by the opposite party
In pursuant to Article V (1) lay several reasons to refuse the awards by the party against the
award and attempt to recourse. The award may be repudiated in certain case if the opposite party
demonstrate these five causes:
a) Incapacity of the parties to define applicable law and discrepancy the validity of the
agreement110.
b) If the opposite party wasn’t notified for arbitration proceeding or designation of the
arbitrators and he/she prevented from attendance in the tribunals111. (lack of due process)
c) Excess of the arbitrator authority. That is reason to refuse related to the arbitrator
maladministration. Particularly, when the award is outside of the scope of the arbitration
clause112.
d) If the tribunal and arbitration procedure did not match with the terms arbitration agreement
and clauses113.
e) If the award has not yet become binding or has been suspended or set aside114.
- The grounds for rejecting upon the court motion
The following subsection of Article V of the NY Convention dealing with grounds for a
refusal to enforce awards by court propose.
a) Non- convenience of the subject-matter to arbitration.
110
- Rubino-Sammartano, M. (2001). International arbitration (2nd ed., p. 957). The Hague: Kluwer Academic Pub
111
- NY Convention. Article .V.
112
- L Moses, M. (2008). P.211.
113
- Ibid. p. 212.
114
- NY Convention. Art. V(1)
27
Certainly, every state has a law to determine the arbitrable matter by the virtue of every
dispute not subject to arbitration. For instance, criminal matter and family status, the validity of
the trademark, insolvency115. That matters not capable to solve by arbitration so that matters
pertaining to the public interest. That cases must be lodged before court litigation 116. The
arbitrability of the subject-matters broadly different from state to state therefore the parties
before the outset of the arbitration should consult with the domestic counsel to emphasize the
subject-matter include to arbitrable or not117.
b) Public policy
NY Convention doesn’t frankly define public policy. But in Article V (2) (b) declare the
award may be refused if it would be diverse in accordance with the public policy of enforcement
state. Public policy is one of the effective weapons on the hand of the national court to refusing
enforcement of the awards. The NY Convention didn’t provide guidelines to the national courts
to estimate the reasons of the refusing enforcing awards therefore national court interpret the
public policy according to their discretion. So the interpretation of the grounds of the public
policy for refusing awards different from country to country. But the countries should give
international not local dimension to public policy 118. The supreme court of India refers and
limited the range of the public policy according to rules of the supreme court the enforcement of
the awards would be refused if the awards contrary with the (і) morality or justice (іі) Interest of
India (ііі) essential policy of the law in India119. Meanwhile, the Chines law has mentioned the
concept of public policy, it means the china court will be enforcing whole arbitral awards except
the awards if infringed the (і) public interest or (і) social interest 120. Likewise, the United States
in many cases rejected to enforce foreign arbitral award by justifying morality and justice,
diplomatic tension121. Public policy angle has an ancient root in the court of England. It courts
115
- L Moses, M. (2008). p.216
116
- Rubino-Sammartano, M. (2001) p.962
117
- L Moses, M. (2008). p.218.
118
119
- Ibid. p.644.
120
- Peerenboom, R. (2001). Seek Truth from Facts: An Empirical Study of Enforcement of Arbitral Awards in the
PRC. The American Journal of Comparative Law, 49(2), 249-327. doi:10.2307/840813
121
28
refused award if discord with the public policy of England and its dissent with the England legal
system.
Soleimany v Soleimany case
This case takes place in England court between Sion Soleimany and his son, Abner
Soleimany. They had concluded a contract in the middle of 1980 and 1983, to smuggling of the
carpet and export to outside of Iran so that is an encroachment of the Iranian income law and
export control. Abner Soleimany arrayed for export carpets from Iran and his father was sold in
England and elsewhere abroad. Consecutively disputes arose among those two partners, they
agree to yield to the struggle to arbitration. In 1993 the award was made in favor of son, then an
England court denied to enforce the award by the virtue of illicit contract and transaction so it
was not enforceable in England and Wales. Hence, the public policy of England does not permit
it122.
The French legislative is insist to protect the public policy in consideration of the foreign
arbitral award and similar approaches. Hence the court of appeal of Paris (Cour d'appel de Pari)
defined the public Policy ‘the body of rules and values whose infringe the French legal order
cannot tolerate even in situations of an international character”123. As well as in the German
courts the awards not allowed if the challenge to the public policy when infringing the public and
economic life, fairness principle. According to German perception for justice.
3. Enforcement of the ICA awards under perspective UNCITRAL model law.
3.1. Introduction
Since 1966 at the time of the establishment of the UNCITRAL (United Nation
Commission on International Trade Law) has sought to progress and unify of the ICA of the
member states124. In particular, removing hindrances for enforceability and ensure of the
enforcing proceeding of the ICA awards125. The Idea of the reciprocal legislation to ICA had
122
- Gaillard, E. (2008) The Review of International Arbitral Award (6th ed., p.134). New York: JurisNet.
123
124
-Ungar, K. T. (1987). The enforcement of arbitral awards under uncitral's model law on international commercial
arbitration. Columbia Journal of Transnational Law, 25(3), 717-754
125
- Ibid. p.718
29
been proposed to the UNCITRAL foundation in 1972 126. Although in twelfth session in 1979 the
work on the proposal was stared after many years plenipotentiary negotiation between the states
of the United Nation that proposal became a draft in 1984 127. On June 21, 1985, finally in the
plenary session UNCITRAL in Vienna adopted the last version of the billed the (model law on
international commercial arbitration)128. The model law was concluded.
The core of the model law comprises of (eight chapters and thirty-six Article) is
exhaustive law include all process of the arbitration such as governing agreement and
jurisdiction, tribunal, proceeding, recognition and enforcement of the award. And making
recourse against awards129.in general the model law is a process is intended to create of uniform
law the ICA in various jurisdictions. But the main objectives of the UNCITRAL model law when
the drafters formulate it. (і). the model law could assist the national jurisdiction of the member
state in the modernizing and reform of the arbitration act 130. іі. Diminish of the contradiction in
the interpretation of the NY Convention131. ііі. Reduce the possibility of dispute between
arbitration rules and national law132. Thus was prominent aims of model law which decided
before enactment.
3.2. Enforcement of the awards
The arbitral awards according to Article 35 of model law considered the awards
enforceable and binding. Regardless of the state which made 133. In precise, it means awards
enforceable without consideration of the foreign country adopt UNCITRAL model law or not.
This article supply ancillary assistance to the enforcement of the non-convention awards but
without adversely influencing of the NY Convention. The UNCITRAL model law enforcement
126
- Fouchard, P., Goldman, B., Gaillard, E., & Savage, J. (p. 107).
127
- Ibid. p.108
128
- Ibid. p.108
129
-Ungar, K. T. (1987). P.717-745.
130
- Hoellering, M. F. (1986). The uncitral model law on international commercial arbitration. International Lawyer
(ABA), 20(1), 327-340.
131
- Ibid. p.328.
132
- Ibid. p.328.
133
- UNCITRAL model law. Art.35
30
awards mechanism virtually identical with the NY Convention rules to enforcement 134.
Commonly, the model law mentioned the NY Convention to enforcement awards. Hence, it takes
the same procedure in NY to enforce awards. The draftsman of the model law was thought the
NY Convention provisions provide adequate rules for enforcing awards135.
The grounds for refusing awards. In Art 36 are the same provisions of the NY
Convention. The grounds of the refusing and set aside of model law are basically identical with
NY Convention136.
4. Enforcement ICA awards under perspective New Arab League Convention

(Riyadh Convention for judicial cooperation)
4.1. Introduction
Riyadh convention is an instrumental convention among Arab state to mutual recognition

and enforcement of foreign judgment and arbitral awards. It was superseded Arab League
Convention 1952. Riyadh Convention is a concern to give a comprehensive framework to the
enforcement of the arbitral awards among Arab countries 137. The convention seriously
emphasizes the executor role in contracting states without taking into consideration the identity
of the winning party138, it was the only avenue of non-signatory of the NY Convention to
obtaining recognition and enforcement.
4.2. Scope of application
134
- Ungar, K. T. (1987). P.717-745.
135
- Ibid. p.717-745.
136
- Hoellering, M. F. (1986). P.338
137
- Balz, K.; Almousa, A. (2014). The recognition an enforcement of foreign judgements and arbitral awards under
the riyadh convention (1983) thirty years of Arab judicial co-operation. International Journal of Procedural Law,
4(2), p.273-288.
138
- El-Ahdab, A. (1995). Enforcement of Arbitral Awards in the Arab Countries. Arbitration International, 11(2),
178. Doi: 10.1093/arbitration/11.2. p.169-181.
31
Accordingly, Article 37 of Riyadh Convention precisely refer recognition and enforcement of
the arbitral awards among signatory states and at the same time grant several rights to repudiate
to recognition and enforcement of the award of another signatory state139. Following:
i. Lack of the arbitrability of the disputes: Arbitrable of the subject-matter is specific issues
related to the executor states. In certain case the law of countries does not authorize to the
adjudicate the several disputes by the way of arbitration 140. Hence the majority of the
countries assort the arbitrable subject-matter. Under rules of this Convention the subject
of the dispute must be arbitrable in the country of arbitration occurred and country
enforcement is sough141.
ii. Defect of the arbitration clause: The validity of the arbitration clause is one of the cause
to executing award because the arbitral awards cannot be enforced if-clauses are null and
void or don’t cover the dispute142.
iii. Non-summoning of the parties: participation of the parties during arbitral tribunal is the
natural right of the parties to plea during the proceeding. Therefore the parties must be
notified properly.
iv. The arbitral award discord with Islamic principles and public policy, general moral where
enforcement sought143.
4.3. Enforcement proceeding
In term of enforcement procedure under the perspective of Riyadh Convention it was

regulated in Article 37. The convention referred the party who seeks to enforcement is required
to submit the following document:
139
- Balz, K.; Almousa, A. (2014) p. 273-288.
140
- Ibid. p. 273-288
141
- El-Ahdab, A. (1995). P.169-181.
142
- Balz, K.; Almousa, A. (2014). The recognition an enforcement of foreign judgements and arbitral awards under the
Riyadh convention (1983) thirty years of Arab judicial co-operation. International Journal of Procedural Law, 4(2),
273-288.
143
- Al-Baharna, H. (1989). The Enforcement of Foreign Judgments and Arbitral Awards in the GCC Countries
with Particular Reference to Bahrain. Arab Law Quarterly, 4(4), 332-344. doi:10.2307/3381946
32
- Authenticated copy of the arbitral award.
- Certification issued from the competent judicial authority of the state where the award
made to confirm the award is enforceable.
- Authenticated copy of arbitration agreement or clause
It is evident, the Riyadh convention is a successor of the Arab Convention 1951, but Riyadh
modified in some aspect particularly simplified the procedure and updated the condition of
enforcement awards.
5. Other pressures to the enforcement of the ICA awards
Habitually, which aforementioned the arbitral award is performed voluntarily. If the losing
party didn’t enforce the arbitral awards it is advisable to award holder will take some
rudimentary step to persuade the non-prevailing party like alternative before to court
intervention.
5.1. Reputational pressure.
The prevailing party should exert some reputational pressure against the non-prevailing
party to voluntarily enforce. For instance, the threat of the failing party to declare negative
advertising to discourage the business entities and traders to transact with the failing party144.
5.2. Commercial pressure
Exerting commercial pressure is a method to compel the unsuccessful party to enforce the
awards. That commercial pressure deprives the repudiated party form various commercial
activities such as setting the failing party to “blacklist” by numerous business entities and
companies145.
5.3. Court intervention
144
- Blackaby, N., Partasides, C., Redfern, A., & Hunter, M. (2015). p.607.
145
- Ibid. p.607.
33
Role of the court in ICA different from state to another state. It bases on interior jurisdiction
of the country. Although the preeminent role of the court is undeniable in individual legislations.
In general, the court significant factor in all phases of arbitration from commencement to
termination of the proceeding. In particular, their role more realizable in the enforcing arbitral
awards.
The final sanction for the failing party of enforcement will be by the national court
proceeding146. Frequently enforcement of the arbitral award occurs against losing party assets.
Therefore as the first step to enforce the award the successful party should reveal the assets of
the failure party, such as bank account, ships, and properties or else assets 147. And then the
successful party should be brought an action before the national court against the assets of the
failure party subsequently the court decided to the liquidated of the assets and business of the
losing part when he/she insist to refuse of the arbitral award148.
I conceive, all of the international instruments such as the convention and treaties, protocol
and the rests. In general, those provided instrumental role to embed enforcement of the arbitral
awards to become more promulgate than before which aforementioned from Geneva to last one.
In particular, the NY Convention is the main and decisive player in the enforcement proceeding
since 1958. I contemplate it is base for enforcement arbitral awards. When it was appear
pervaded a huge gap in the enforcement process. In other side UNCITRAL model law for ICA to
harmonize and uniform ICA rule in national law. I fully concur with the objective of the model
law because if we want to obtain a uniform and harmonious system to the enforcement of the
awards we must converge the national laws of the countries. Nevertheless, model law is a
mechanism to set a curtail the discrepancy in ICA and enforcement proceeding. Model law was
referred to the enforcement but commonly it reverts to the provisions of the NY convention to
recognition and enforcement of the awards. Therefore adopting model law in national law
inevitable to adapting foreign awards in national law. Iraq didn’t accede each of them except
Riyadh regional Convention and other regional conventions which concluded under Arab
League.
146
- Ibid .P.609
147
- Ibid. P.609
148
- Blackaby, N., Partasides, C., Redfern, A., & Hunter, M. (2015). p.609.
34
But the enforcement procedure is a multi-character intervention process. It necessary to the
enforcement process in particular if the failing party repudiate to enforcing the awards. At that
time the award holder should be using some coercive alternative to compel failing party but it
should be gradually. Definitely, the winning party should be resort to court because the court is
the main way to enforce the awards when the unsuccessful party refused the awards voluntarily
so the court litigation is supplementary to the arbitration tribunal.
CHAPTER THREE
Enforcement of the International Commercial Arbitration Awards under the

perspective of Iraqi Legislator
1. General survey
To supplementary of the enforcement concept will be necessary to concentrate the

enforcement in different states and entities. Majority of the states have a statute to governing
arbitration either domestic or international. Enforcement of the international commercial arbitral
awards in national laws is critically important to ICA. This section will deal with enforcement
procedure and issues which encounter in legislations.
The result of the misgovernment of Iraq through the last century, Iraq became a battlefield
for many decades since wars in 1980 and 1991, 2003. That combats were coerced Iraq to
numerous adversity, for instance, imposing an external sanction and internal austerity, crippling
of infrastructure, Hence the legal regime in Iraq was under an unstable circumstance to boost
trade and adopting International Commercial Arbitration rules. Obviously, in order to develop
trade, Iraq would develop legally infrastructure149.
2. Position of Iraq under International and regional treaties.

149
- Calamita, N.; Al-Sarraf, A. (2015). International commercial arbitration in Iraq: Commercial law reform in the
face of violence. Journal of International Arbitration, 32(1), 37-64.
35
On the international and regional level, Iraq acceded in several treaties on enforcement of the
foreign arbitral awards namely:
i. Geneva Protocol. (1923)

ii. Arab League Convention. (1952)
iii. Riyadh Convention. (1983)
iv. Amman Convention. (1987)
v. Washington Convention. ICSID (1965)
In general, Iraq is recalcitrant state to join universal treaties in contrary to regional treaties.
Neither accedes in NY Convention or Geneva Convention 1927 150. Iraq is a signatory in Geneva
Protocol since monarch era, but the protocol and other international instruments were under deep
suspicion during the reign of the Saddam Hussein. As well as the Protocol mainly deals with the
recognition of the arbitration agreement151. Furthermore, Iraq is a signatory of (Arab league
convention 1952), the convention was deal with the enforcement of the court judgment and
arbitral awards between the members is of the Arab League. It based upon the Geneva
Convention (1927) and it was one of the intricate conventions 152. Likewise, Riyadh Convention
regional treaties only linked with the Middle East and North Africa states. It was supplanted
former Arab Convention. It is concern about enforcement of foreign judgment and awards.
Riyadh is a step forward for those states not a signatory in NY Convention. Following that, the
Amman Convention is unsuccessful because has never been effective. In November of 2015,
Iraq ratified the Washington Convention which it was last one. In future maybe else possible.
Acceding to NY Convention under debate since 2011 and accede is approaching.
3. Enforcement of the ICA awards under Iraqi law regime.
Iraq is a civil law jurisdiction governed by statutes 153. Also, Sharia principle is a critical
factor in enactment proceeding. Iraq fundamental law in 2005 is a base for all codes and any
legal text is inconsistent with fundamental law deemed void. Historically, if we revise to the
150
- Calamita, N.; Al-Sarraf, A. (2015).37-64.
151
- Jalili, M. (1987). International arbitration in Iraq. Journal of International Arbitration, 4(3), 109-130.
152
-Al-Baharna, H. (1989). The Enforcement of Foreign Judgments and Arbitral Awards in the GCC Countries with
Particular Reference to Bahrain. Arab Law Quarterly, 4(4), 332-344. doi:10.2307/3381946
153
-Jalili, M. (1987). 109-130.
36
legal regime we sense the position of Iraq in ICA been complicated due to the absence of the
explicit law to regulate the enforcement of the foreign arbitral awards 154, Iraqi arbitration law
partially allocates in the different codes. As well as the official attitude of Iraq during the last
century was repudiated acceptance to the foreign arbitral awards and clauses in international
contract because it was considered it is contrary to the principles of sovereignty and jurisdictions
of courts, public policy.
Iraq has enactment law no 30/1928 to the enforcement of foreign judgment but that Act
doesn’t adopt any provisions directly concerning arbitral awards 155. According to some
jurisprudence interpretation in certain case the arbitral awards perhaps enforceable thereunder 156.
That means the arbitral award should be converted and became foreign judgment in the court of
origin then enforceable in Iraq. At the current time, Iraq courts persist in applying the EFJA to
the enforcement of the ICA awards. The statute of EFJA not devoid of lack because it is subject
to reciprocity and the country which the award made should have a bilateral agreement with Iraq.
Nonetheless, Iraq regulated arbitration proceeding under Articles 251-276 in (CPC) Civil
Procedure Code No 83/1969157. It contains detailed for all phases of proceeding which it pertains
to domestic arbitration. It doesn’t make any indication of involving international character 158.
Moreover, Iraq current law to arbitration is undesirable specifically in view of the requirement to
all awards subject to confirmation of the court, so it is not compatible with the international
condition of arbitration. Hence the arbitration law has many drawbacks which make a barrier to
the enforcing awards. Enforcing foreign awards in Iraq complicated by the virtue of Iraq neither
is a signatory to the NY Convention nor UNCITRAL model law so it drastically decreases the
chance to enforce ICA awards159. So Iraq absent to involvement from uniform system to
enforcement of the awards and it isolated from universal arbitration system.
154
-Calamita, N.; Al-Sarraf, A. (2015) 32(1), 37-64.
155
- Jalili, M. (1987). 109-130
156
- Jalili, M. (1987). 109-130
157
- Majid, S. (2004). Arbitration in Iraq. Arab Law Quarterly, 19(1/4), 267-275. Retrieved from
www.jstor.org/stable/3382116
158
- Calamita, N.; Al-Sarraf, A. (2015). P.37-64.
159
- Bremer, N. (2018) seeking recognition and enforcement of foreign court judgment and arbitral awards in Egypt
and the Mashriq countries. Journal of Dispute Resolution, Vol2018, iss1, 11, p.1-34. Available at
https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1790&context=jdr
37
4. Enforcement conditions in accordance with Iraqi law.
Under Iraqi law enforcement of the ICA awards possible. Initially, the court should be issued
a judgment to confirm the validity of the award pursuant to article 2 in the EFJA Act hereby 160. It
means the successful party should be brought an action in the Court of the first instance of Iraq to
issue a judgment to enforce the ICA award and then the arbitral award will be exequatur. In Iraqi
law. The arbitral award required be:
1. Reciprocity: It means the treatment between Iraq and foreign state should be on the base
actual and logical reciprocity.
2. The subject matter of the awards should be concerning private law.
3. Competence of the Court state of origin to issued award.
4. The award is not contrary to the Iraq sovereignty and public policy, general moral.
5. The Award must be issued pursuant to rule and procedure of the state of origin.
6. The Arbitral awards must be irrevocable pursuant to the law of the state of origin.
The ICA award enforceable in Iraq if the:
1. The award has been rendered from a signatory state of the treaties which concluded under
auspices of Arab League such as Riyadh Convention for Judicial cooperation in 1983 or
other treaties161. It means if the award has been rendered from a signatory state of the Riyadh
Convention enforceable in Iraq. Which the convention seeks to reciprocal enforcement and
awards should be final and binding162.
2. The award has been rendered in a country which has a bilateral agreement or judicial
cooperation with Iraq. Such as judicial cooperation agreement among Iraq and Egypt in
1964. Also Iraq- Russian relationship treaty in 1972. As well as Iraq has a specific treaty with
Hungary to judicial and legal cooperation in 1977163. Also Iraq-Jordan Cooperation.
160
- EFJA, law. Art.2.
161
- Calamita, N.; Al-Sarraf, A. (2015). 37-64.
162
- Ibid. 37-64.
163
- Bashir dosary, M. (2017). Implementation of the provision of the international commercial arbitration. Journal
of the college of law – AL-Nahrain University. 19(5), 213-241.
38
5 . Procedure of enforcement awards in Iraq
The enforcement of ICA awards in Iraq requires either a new lawsuit and the foreign award is
attached to it. The second is a necessity for the issuance of an executive order, we will discuss
these procedures, as follows:
1. Performing the procedure before the competent court: The appellant party should be lodged
sue before the Court of First Instance of the place of residence the defendant. Otherwise, if
the defendant hasn’t permanent and evident place the lawsuit will be lodged before the court
which the assets is located to be seized164.
2. The document attached to the lawsuit: The authenticated copy of the foreign award includes
duly legalized. All of them attached with the certification which proves the defendant was
informed by the proper and reasonable way. Also should be translate those documents to the
Arabic language if it wasn't matched with court language.
3. Payment of the judicial fee: payment of the fee also another procedure should be paid in
accordance with Article 10 of the EFJA. But Riyadh convention refuses to receive any fee
from nationals if the court didn’t impose165.
4. The competent court will set a date to summon of the parties and hearing to pleading both of
them. If the court persuaded that the award was fulfilled the requirement and conditions of
law EFJA. It may issue an executive order to enforce the award166
6 . New York Convention and Iraq.
Iraq has not yet acceded to the NY Convention. The accession of the NY Convention by Iraq
has been under discussion since 2011. After a long debate and adjournment for many decades 167.
Finally, the Iraqi Government officially on 6 February 2018 voted in favor of acceding to the NY
Convention. It was a promising step to promulgate of the ICA in Iraq. Because without the ICA
existence of the progressive commercial transaction impossible. As well as the Parliament and
the Iraqi president ratified of the acceding of the NY Convention by Iraq, Also published in the
164
- Bashir dosary, M. (2017) p, 213-241.
165
- Bashir dosary, M. (2017) p, 213-241.
166
- EFJA Law. Art.3-4.
167
- Calamita, N.; Al-Sarraf, A. (2015) p.37-64.
39
Iraqi formal Gazette. In 2020 Iraq will be contracting state in NY Convention168. After acceding
of the NY Convention by Iraq all of the Iraqi arbitral awards will be enforceable in other NY
contracting state and contracting state awards will be enforceable in Iraq.
Conclusion
ICA is increasingly being recognized as an alternative to court litigation in business disputes. It

is proved in the most national jurisdiction. The above has exhibited the enforcement of the ICA
awards in various level national and international. I would like to reply to the questions which I
mentioned in the problem statement and refer more.
- With the expansion of international business in the last decades. The trader or dealers
have been hesitant to resort to litigation in courts. Increasingly the parties resort to
arbitration by the virtue of the fear from a foreign court. Currently, the majority of the
international commercial contract provide the arbitration clauses in the contracts to solve
disputes which may arise between traders. Therefore arbitration is the most reliable
system in international trade to adjudicate.
- Nowadays, around the world abundant of the treaties and convention was concluded to
reduce struggles and unify the enforcement process. The central objective of the
conventions is to facilitate during the enforcement process. But wasn’t exactly overcome
the challenges because enforcement of the ICA awards is a private rule related to the
national jurisdictions. It needs more the cooperation and coordination of the states with
the international treaties.
- Permanently, advocates of the international arbitration refer to the simplicity enforcement
of the arbitration awards, if we compared with the judgment of the court. But certainly, it
is not fully correct because the enforcement of the arbitration awards isn’t pretty
straightforward particularly when the failing repudiate the voluntary enforcement of the
awards therefore the process become more convoluted. The procedure of enforcement of
the ICA award various it depends on the legal system where you seek to enforce. Hence
that issues will be left to the domestic law.
168
- Iraqi Formal Gazette. No 4560.
40
- The UNCITRAL model law on international commercial arbitration in term of
enforcement awards mechanism virtually identical with the NY Convention rules to
enforcement. Commonly, the model law mentioned the NY Convention to enforcement
awards. Hence, it takes the same procedure in NY to enforce awards.
- If the award holder cannot secure voluntary compliance with the arbitral award, he/she
must resort to judicial enforcement in the court of the state where assets of the failing
party are located.
- Enforcement of the awards must comply with procedural law of the country where
enforcement sought. At the present time, Iraq is not acceding to the New York
convention and doesn’t adopted UNCITRAL model law to international commercial
arbitration, therefore, chance enforcement of the foreign arbitral awards drastically
reduce in Iraq. In the absence of the NY Convention and model law. Hence the ICA
award is enforceable in Iraq if, The award has been rendered from a signatory state of the
treaties which concluded under auspices of Arab League such as Riyadh Convention for
Judicial cooperation or the award has been rendered in a country which has a bilateral
agreement or judicial cooperation with Iraq.
41
Bibliography
Books
Gillies, P., & Moens, G. (1998). International Trade & Business Law & Policy (1st ed.)
London: Routledge Cavendish Australia
Born, G. (2009). International commercial arbitration (1st Ed). Austin [Tex]: Wolters

Kluwer Law & Business.
Rubino-Sammartano, M. (2001). International arbitration law and practice (2nd Ed.).

The Hague: Kluwer Academic Pub
Zekos, G. (2008). International commercial and marine arbitration (1st Ed). London:

Routledge-Cavendish
Ralston, J. (1929). International arbitration from Athens to Locarno (1st Ed.). Stanford:

Stanford University Press.
Tang, Z. (2014). Jurisdiction and arbitration agreements in international commercial

law (1st Ed.). New York: Routledge
Fouchard, P., Goldman, B., & Gaillard, E. (1999). Fouchard Gaillard Goldman on

international commercial arbitration (1st Ed). Hague: Kluwer law international.
42
Gaillard, E., Di Pietro, D., & Leleu-Knobil, N. (2009). Enforcement of arbitration
agreements and international arbitral awards (1st Ed). London: Cameron May.
Moses, M. (2008). The principles and practice of International Commercial Arbitration

(1st Ed).New York: Cambridge University Press.
Najjar, N. (2017). Arbitration and international trade in Arab countries (1st Ed). Leiden,

Boston: Brill | Nijhoff.
Blackaby, N., Partasides, C., Redfern, A., & Hunter, M. (2015). Redfern & Hunter on
international commercial arbitration (6th Ed). New York: Oxford University Press.
Journals and academic article

Appadoo, K. (2013). Enforcement of International Commercial Arbitral Awards: Redress
Mechanisms in the Event of Non-Compliance. SSRN Electronic Journal, 6. Doi:
10.2139/ssrn.2244872.1-51
Emerson-F, (1970). History of Arbitration Practice and Law. Cleveland State Law
Review, vol.19 p. 155-164 available at
https://engagedscholarship.csuohio.edu/clevstlrev/vol19/iss1/19
Taubenschlag, R. (1957-1958). Princeps iudex, Eine Untersuchung Zur Entwicklung und

zu den Grundlagen der kaiserlichen Gerichtsbarkeit, J.M Kelly,”Forschungen zum
romischen Recht, 9 ABH. 1957 [recenzja]. The journal of juristic Papyrology.330
available at
http://bazhum.muzhp.pl/media//files/The_Journal_of_Juristic_Papyrology/The_Journal_o
f_Juristic_Papyrology-r1957_1958-t11_12/The_Journal_of_Juristic_Papyrology-
r1957_1958-t11_12-s330/The_Journal_of_Juristic_Papyrology-r1957_1958-t11_12-
s330.pdf
Wolaver, E. (1934). The Historical Background of Commercial Arbitration. University

Of Pennsylvania Law Review And American Law Register, 83(2), 132-146. Doi:
43
10.2307/3308189. Available at https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?
article=8693&context=penn_law_review
Fraser, H. (1926). Sketch of the History of International Arbitration. Cornell law review,
11(2), 179-208. Available at https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?
article=1236&context=clr
Drahozal, C. R.; Ware, S. J. (2010). Why do businesses use (or not use) arbitration
clauses. Ohio State Journal on Dispute Resolution, 25(2), 433-476.
Zachariou, M. (2016). Legal foundations of international commercial arbitration.

Academia, 1-8 available at
https://www.academia.edu/25607285/The_Legal_Foundations_of_International_Commer
cial_Arbitration
Sultan, A. (1959). The United Nations Arbitration Convention and United States
Policy. The American Journal of International Law, 53(4), 807-825. Doi:
10.2307/2195752 available at https://www.jstor.org/stable/2195752?
seq=4#metadata_info_tab_contents
Brazil-David, R. (2011). Harmonization and delocalization of international commercial

arbitration. Journal of International Arbitration, 28(5), 445-466.
Benjamin, P. P. (1961). The European Convention on International Commercial

Arbitration. British Year Book of International Law, 37, 478-495.
Sutherland, P. P. (1979). The World Bank convention on the settlement of investment

disputes. International and Comparative Law Quarterly, 28(3), 367-400. Available at
handle=hein.journals/incolq28&id=389&collection=journals&index=
44
The Inter-American Convention on International Commercial Arbitration.
(1977). Lawyer of the Americas, 9(1), 43-78. Retrieved from
www.jstor.org/stable/40175586
Saleh, S. (1985). The Recognition and Enforcement of Foreign Arbitral Awards in the
States of the Arab Middle East. Arab Law Quarterly, 1(1), 280-287. Doi:
10.2307/3381670
Jalili, M. (1990). Amman Arab convention on commercial arbitration. Journal of

International Arbitration, 7(1), 139-152
Arkin, H. L. (1987). International ad hoc arbitration: practical alternative. International

Business Lawyer, 15(1), 5-12. Available at https://heinonline.org/HOL/Page?
handle=hein.journals/ibl15&div=6&id=&page=&collection=journals
Griffith, G. Mitchell, A. (2002). Contractual dispute resolution in international trade the

uncitral arbitration rules (1976) and the uncitral conciliation rules (1980). Melbourne
Journal of International Law, vol.3. 184-199 available at
https://law.unimelb.edu.au/__data/assets/pdf_file/0004/1680241/Griffith-and-
Mitchell.pdf
Cohn, E. E. (1967). The rules of arbitration of the United Nations economic commission
for Europe. International and Comparative Law Quarterly, 16(4), 946-981 available at
collection=journals&handle=hein.journals/incolq16&id=956&men_tab=srchresults#
Voser, N.; Petti, A. M. (2015). Revised IBA guidelines on conflicts of interest in

international arbitration, the. ASA Bulletin, 33(1), 6-36
Chukwumerije, O. (1993). The enforcement of international commercial awards: Schreter

v. gasmac inc. Canadian Business Law Journal 22(2), 296-307.
45
Neuhaus, J. E. (2004). Current issues in the enforcement of international arbitration
awards. University of Miami Inter-American Law Review, 36(1), 23-40.
Szászy, I. (1965). Recognition and Enforcement of Foreign Arbitral Awards. The

American Journal of Comparative Law, 14(4), 658-672. Doi: 10.2307/838915.
Peerenboom, R. (2001). Seek Truth from Facts: An Empirical Study of Enforcement of
Arbitral Awards in the PRC. The American Journal of Comparative Law, 49(2), 249-327.
Doi: 10.2307/840813
Ungar, K. T. (1987). The enforcement of arbitral awards under uncitral's model law on
international commercial arbitration. Columbia Journal of Transnational Law,
25(3), 717-754
Hoellering, M. F. (1986). The uncitral model law on international commercial arbitration.

International Lawyer (ABA), 20(1), 327-340
Balz, K.; Almousa, A. (2014). The recognition an enforcement of foreign judgements and
arbitral awards under the Riyadh convention (1983) thirty years of Arab judicial co-
operation. International Journal of Procedural Law, 4(2), 273-288.
El-Ahdab, A. (1995). Enforcement of Arbitral Awards in the Arab Countries. Arbitration

International, 11(2), 178. Doi: 10.1093/arbitration/11.2. 169-181.
Al-Baharna, H. (1989). The Enforcement of Foreign Judgments and Arbitral Awards in

the GCC Countries with Particular Reference to Bahrain. Arab Law Quarterly, 4(4), 332-
344. Doi: 10.2307/3381946
Calamita, N.; Al-Sarraf, A. (2015). International commercial arbitration in Iraq:

Commercial law reform in the face of violence. Journal of International Arbitration,
32(1), 37-64.
46
Majid, S. (2004). Arbitration in Iraq. Arab Law Quarterly, 19(1/4), 267-275. Retrieved
from www.jstor.org/stable/3382116
Bremer, N. (2018) seeking recognition and enforcement of foreign court judgment and
arbitral awards in Egypt and the Mashriq countries. Journal of Dispute Resolution,
Vol2018, iss1, 11, p.1-34. Available at
https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1790&context=jdr
Bashir dosary, M. (2017). Implementation of the provision of the international
commercial arbitration. Journal of the college of law – AL-Nahrain University. 19(5),
213-241.
Web sites
ICC Digital Library. (2019). Retrieved 2 December 2019, from
https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/CR_0011.htm?l1=&l1
UNTC. (2019). Retrieved 5 December 2019, from

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-
1&chapter=22&clang=_en
Documents and Acts & treaties

United Nation. (2005). settlement of disputes. In United Nation conference on Trade and
Development (p. 20). New York and Geneva. Retrieved from
https://www.jus.uio.no/lm/un.sg.report.itl.development.1966/index.htmlhttp://file:///C:/U
sers/LENOVO/Desktop/thesis/U.N%20conferernce%20on%20ICA.pdf
United Nation. (2019). Progressive Development of the Law of International Trade:

Report of the Secretary-General of the United Nations, 1966. Retrieved from
https://www.jus.uio.no/lm/un.sg.report.itl.development.1966/_1.html
47
United Nation. (2006). UNCITRAL Model Law on International Commercial Arbitration
1985 with amendments as adopted in 2006. (p.1) retrieved from
https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf
United Nation. (1955). protocol of the arbitration clause, Geneva, available at

file:///C:/Users/LENOVO/Downloads/Doc-1-E-AC-42-2%20(1).pdf
Ion, N. (1972). Problems concerning the application and interpretation of existing
multilateral conventions on international commercial arbitration and related matters (p.
205). United Nation. Retrieved from https://undocs.org/pdf?symbol=en/A/CN.9/64
United Nation. (2012). Uncitral note on organizing arbitral proceeding.
United Nation. (2003). Recognition and Enforcement of Arbitral Awards: The New York
Convention. In United Nation conference on trade and development (p. 5). United
Nation. Retrieved from https://unctad.org/en/Docs/edmmisc232add37_en.pdf
United Nation. (2003). settlement of disputes. In United Nation conference on Trade and
Development.
United Nation. (2016). UNCITRAL Secretariat Guide on the Convention on the

Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958 (p.11) New
York. retrieved from https://www.uncitral.org/pdf/english/texts/arbitration/NY-
conv/2016_Guide_on_the_Convention.pdf
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York,
10 June 1958, United Nations Treaty.
UNCITRAL model law on international commercial arbitration.
- Hague Convention. (1907). Hague Convention for the pacific settlement international
disputes. Hague. Retrieved from https://pca-cpa.org/wp-
48
content/uploads/sites/6/2016/01/1907-Convention-for-the-Pacific-Settlement-of-
International-Disputes.pdf
Iraq investment Act 2006.
Iraq civil procedure code 1969, No 83.
France civil procedure code 1981, modified in 2011.
Iraq commercial law.
Iraq formal Gazette.
Iraq enforcement foreign judgment Act 1928.
49

University of Debrecen New

Uploaded by

Copyright:

Available Formats

University of Debrecen New

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

University of Debrecen New

Uploaded by

Copyright:

Available Formats

UNIVERSITY OF DEBRECEN

Title of the Thesis

ENFORCEMENT OF INTERNATIONAL COMMERCIAL

COMPARATIVE PERSPECTIVES OF IRAQ AND

Name of the Supervisor: Dr. Zsolt Hajnal

Name of the Student: Miran Mamand Bayz Agha

European and International Business law. LL.M

International commercial arbitration awards without enforcement no exceed than useless

Keywords: Enforcement awards, International commercial arbitration, New York Convention,

Miran Mamand Bayz Agha

Debrecen-Hungary. January 2020.

Chapter one: Introduction to International Commercial Arbitration

1. Historical overview concerning International Commercial Arbitration………..5

Chapter two: Enforcement of International Commercial Arbitration awards

Chapter three: Enforcement of the International Commercial Arbitration

ICA International Commercial Arbitration

NY New York Convention

UNCITRAL United Nation Commission on International Trade Law

ICSID International Center for Settlement of Investment Disputes

CCP or CPC Civil Procedure Code

HCPSID Hague Convention for the Pacific Settlement of International Disputes

OSA Organization of America States

ECE Economic Commission for Europe

IBA International Bar Association

EFJA Enforcement Foreign Judgements Act

LCIA London Court of International arbitrate

2. Objective and significance of the thesis

Role of arbitration in international trade?

Is the enforcement of the International commercial arbitration award is easy to enforce or

Enforcement of the ICA awards in Iraq?

6. Chapter’s structure of the thesis

1. Historical overview concerning International Commercial Arbitration

Regardless of copiousness of the treaties and conventions, historian pamphlet which

2. Elucidation of International Commercial Arbitration

International commercial arbitration hasn’t a formal definition. Meanwhile, it is recognized

My perception, it is so indispensable to understanding properly to the term of

When arbitration is International?

The term “commercial” in International commercial arbitration is a most significant

What is the meaning of Arbitration?

Arbitration is a private procedure or method to dispute resolution. If the parties agree to

3.1. Ad hoc Arbitration.

3.2. Institutional arbitration.

4. The legal framework of the International Commercial Arbitration

4.1. International Arbitration Conventions

4.1.1. Geneva treaties (1923 and 1927)

4.1.2. New York convention (1958)

4.1.3. European Convention on International Commercial Arbitration. (Geneva Convention)

4.1.4. Washington Convention

4.1.5. Inter-America Convention

Inter-America convention on international commercial arbitration was signed by thirteen Latin

4.1.6. Arab treaties

Consecutively. Riyadh convention was concluded in 1983 in the field of judicial

4.2. National Arbitration Legislation

Notwithstanding the importance of international conventions such as legally framework of

4.3. Rule of arbitration

4.3.1. Institutional arbitration rules

4.3.2. Ad hoc arbitration rules

4.4. International arbitration guidelines and notes.