Saldana Solari Maria Belen
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Dottorato di Ricerca in Tutor Prof. Pietro Franzina Titolo tesi "THE NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS 60 YEARS ON – STILL FIT FOR PURPOSE?"
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| Abstract | The project turns around the question whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 (hereinafter, the NYC), remains fit for its purpose, and – in the negative – in which respects and by which means its provisions may be updated or improved. The project will consist of two parts. First. Examining the text, travaux préparatoires, relevant doctrine and case-law of the NYC, in order to determine if this convention could still be considered as a useful international agreement nowadays and if it is possible to improve its interpretation and application by national courts. Second. With the conclusions obtained in the first part of the research project, the author will focus on determining if it is advisable amending the NYC or not. For instance, some of the following scenarios could emerge: a) this convention should continue existing, since, notwithstanding its shortcomings, it is still a useful tool for international trade; or, b) the NYC should be amended because is not accomplishing anymore with its raison d'être. In addition, the last part of the research will also address how the amendment should be done (in case it is recommendable). Abstract Since the moment that the NYC was established, many scholars expressed positive comments about it. To give just a few examples, it can be mentioned Renaud Sorieul, according to whom, this convention is the most important and successful United Nations treaty in the area of international trade law and the cornerstone of the international arbitration system1; Professor Jose María Abascal, for whom the NYC is the most significant instrument to have been drawn up in the twentieth century on international commercial arbitration and on uniform international trade law2; or, V.V. Veeder who compared the importance of the NYC to the God´s Ten Commandments: “In short, the New York Convention affects directly the lives of billions of people around the world, every minute of every day, in both seen and still more unseen ways. It is therefore a 1 New York Convention Guide: Message from the secretary of UNCITRAL. Retrieved from: http://newyorkconvention1958.org/index.php?lvl=cmspage&pageid=10&menu=729&opac_view=-1 2 Abascal, José María. "Enhancing Dissemination of Information, Technical Assistance and Training”. Colloquium, New York Convention Day from United Nations, New York, June 10, 1999, p.39. secular, sacred text of the greatest practical significance to every inhabitant of the 21st Century´s global village. With all this in mind, there is obviously only one practical comparison from ancient history, and many of you will have guessed it already, namely: the wording of the Ten Commandments from the Bible´s Old Testament.”3 But, why is NYC considered such a relevant and successful treaty? Above all, because compared to its predecessors – the Geneva Agreements4 -, the NYC has an enormous number of adhering States: 159 to the present56. This fact – that is welcomed by the arbitration community 7 – is one of the main reasons that arbitration experts invoke for demonstrating that the modification of this treaty is not a good option8. In fact, in 2009, Professor Albert Jan van den Berg proposed the text of a new treaty: “the Miami Draft”9, arguing that the NYC needed to be changed since it was confusing and outdated. The negative response of arbitration community to this proposal was, principally, based on the fact that the change of the NYC would have been a failure, since it would have been impossible to achieve the same number of contracting States10. From the author´s point of view, however, the number of adhering States is just that: a number11. If the convention is not working, why the number of adhering States is so important? Why do the arbitration community refuse the change? In order to provide a reasoned response to this issue, in the first part of the research project the author will identify the criteria that international agreements should accomplish for being considered successful and/or useful; and, after that, will determine if the NYC complies with such criteria. For instance, some of the following factors could be taken into account. 3 Veeder, V.V. “Key Note Speech: Is there a Need to Revise the New York Convention”. IAI Forum, Dijon, September 12-13, 2008. In: The Review of international Arbitral Awards (2008) p.186. 4 The Geneva Agreements: Geneva Protocol on Arbitration Clauses adopted on September 9th 1923 and Geneva Convention on the Execution of Foreign Arbitral Awards adopted on September 26th 1927. 5 United Nations Commission on International Trade Law. New York Convention - Status. Retrieved from: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html 6 While it is true to say that the NYC created a new structure for enforcement of awards back in 1958; its also true that nowadays their provisions are anymore new. In fact, the vast majority of domestic arbitration laws contain more modern dispositions than the convention. Currently, the best attribute of the NYC is its number of adhering States. 7 According to Professor Jan van den Berg “one can indeed but applaud the success of the NYC. The NYC has demonstrated its success through the number of adhering states”. See: Van den Berg, Albert Jan. “Striving for uniform interpretation”, New York, 199, United Nations. V.V. Veeder also affirmed that: “Apart from the founding treaties of the United Nations, the New York Convention is the most successful modern treaty measured by the number of its signatory States”. See: Veeder, V.V. “Key Note Speech: Is there a Need to Revise the New York Convention”. IAI Forum, Dijon, September 12-13, 2008. In: The Review of international Arbitral Awards (2008) p.185. 8 According to Pieter Sanders, in an interview conducted by members of ICCA, replacing the NYC would be impossible, as the Contracting States would have to accede to the new treaty. See: Paulsson, Marike. “The 1958 New York Convention from an Unusual Perspective: Moving Forward by Parting with it”. Indian Journal of Arbitration Law. Volume 5, Issue 2, 2017. 9 Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards. The text of Draft is available at: http://www.newyorkconvention.org/draft+convention 10 For instance, according to Professor M. Paulsson: “But the main reason for not wanting a new treaty is: it is impossible to replace the New York Convention, The current 157 Member States will not likely accept its replacement. Nor would the United Nations want to embark upon such an ambitious wish to improve the free flow of arbitral awards.” See: Ibid, p. 25. 11 Professor M. Paulsson made a call for reflecting about this fact: “In a way the mere fact that 157 States have acceded to the New York Convention could also really just be a number, just as the age of the New York Convention might just be a number”. See: Ibid, p. 27. First: the text of the convention. As it was previously mentioned, it is said that the NYC is confusing and outdated. The author agrees, since this convention has a relevant list of failures with regard its text: provisions that are not clear, obsolete, or missing 12 . However, could these problems be resolved by means of interpretation? Is the Recommendation regarding the interpretation of article II, paragraph 2, and article VII, paragraph 1, of the NYC adopted by UNICTRAL on 2006 useful? Are judges using the guidelines published by ICCA (2011) and UNICTRAL (2016) in a correct way? Which is the role of the Vienna Convention on the law of treaties in this regard? Second: the strength of the convention. According to a research made by the Center on International Cooperation of the New York University entitled “What makes international agreements work: defining factors for success” 13 , successful international agreements must have a concrete and measurable impact on the issue in question; and, must demonstrate causality with the change of parties’ behavior. Taking that into consideration: Does the NYC have still a concrete impact in international commercial arbitration? Is it still a useful tool for international trade law? Do the provisions of this convention produce some impact on contracting States? Does the NYC still accomplish with its raison d'être? Third: the practical utility of the convention. According to Professor Marike Paulsson, just 1800 decisions have been reported in this 60 years of live of NYC, and out of 800 judgments were rendered in the United States, while in other countries (such as, Saudi Arabia, Ecuador, Thailand or Uruguay) none or only few cases have been reported14. So, is this convention really successful at international level? On the other hand, it is said that the problems of interpretation of the NYC could put in risk the continuity of international commercial arbitration. Is it completely true? Will business corporations stop using this dispute resolution method due to cases as Comissa v. PEMEX? With the conclusions obtained in the first part of the research project, the author will focus on determining if it is indeed advisable amending the NYC. That is, should the NYC continue existing, since it is still accomplishing with its raison d'être and its issues could be resolved with a correct interpretation? or, should the NYC be amended or complemented with a protocol for the good of international trade and commercial arbitration? In case the answer will be positive (the NYC should be changed), the author will explore which would be the consequences of adopting a new treaty or protocol or amending the NYC. Finally, the attention will be paid to what the new instrument should provide with regard the substantive and procedural aspects (e.g., retroactivity and more favorable rights). 12 For a complete list of the commonly argued shortcomings of the NYC, see: Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards – Explanatory Note, Albert Jan van den Berg, May 29, 2008. Retrieved from: http://www.newyorkconvention.org/draft+convention 13 O`Brian, Emily; Gowan, Richard. “What Makes International Agreements Work: Defining Factors for Success”. Center of International Cooperation, New York University. September 2012. 14 Paulsson, Marike. “The 1958 New York Convention from an Unusual Perspective: Moving Forward by Parting with it”. Indian Journal of Arbitration Law. Volume 5, Issue 2, 2017, p.27. |
