Environmental Engineering Reference
In-Depth Information
233
The most important advancement of the NY Convention
lies in the fact that the arbitral award must not be in accordance with the law of the
state where it is enforced—it is sufficient that the award complies with the laws of
the state where the arbitration took place (Art. I, III and V of the NY Convention).
Thus, the respondent state can only apply to review the decision or set the award
aside according to the domestic law of the seat of arbitration in the courts of that
state where the arbitration took place.
234
The NY Convention recognizes the above-
mentioned importance of domestic courts, as several important provisions address
them. This underlines the necessity of domestic courts to create a functional and
effective international arbitration system. Even though the NY Convention did not
live up to the expectations of international lawyers and arbitrators, 137 countries
ratified it, and it became one of the most important conventions of international
arbitration.
235
Therefore, the NY Convention expanded the scope for the enforce-
ment of arbitral awards.
236
A lot of authors highlight the “pro-enforceability” of
awards of the NY Convention.
237
Although the NY Convention does not mention
states at all, there is no doubt that it also includes enforcement against states.
238
Art. I(1), sentence 1 of the NY Convention sets the scope by stipulating that the
Convention applies to the recognition and enforcement of arbitral awards in a state
other than the state where the arbitration took place. Furthermore, in sentence 2, the
Convention mentions that arbitral awards are
appeal on the merits.
'
) not considered as domestic
awards in the (s)tate where their recognition and enforcement are sought.
(
...
'
The
difference between recognition and enforcement is that recognition means that a
court regards the award as valid and binding, and enforcement means that the court
uses all official means available to implement the award.
239
There are only two reservation possibilities within the NYConvention. Art. I(3) of
the NY Convention mentions that either the principle of reciprocity or a limitation to
commercial dispute is possible reservations to the application of the Convention. Art.
III of the NYConvention requires states to recognize arbitral awards as binding and to
enforce them in accordance with national law and the NY Convention. According to
Art. V of the NY Convention, arbitration awards can only be attacked on a limited
'
233
In addition in most cases there is no option of appeal against arbitral awards, which makes them
automatically binding, in: Moses (
2008
), 212 and 213.
234
Harten and Loughlin (
2006
), 121 (136); cf Delaume (
1985
), 319 (344); cf Redfern et al. (
2004
),
4 para 1-05; Nmehielle (
2001
), 21 (42).
235
Harten (
2007
), 51; Starting point for international utilization of arbitration, in: Nariman (
2004
),
123 (128); Ignorance of local judges to apply the NY Convention, in: Nariman (
2004
), 123 (132);
Wood (
2007
), 575 (581); cf Lorcher (
2001
), 275 (277); Concerning the amount of ratifications, in:
Saunders and Salomon (
2007
), 467 (468); NY Convention is a success story, in: Bjorklund (
2009
),
302 (308).
236
Definition of enforcement and recognition, in: Ma (
2005
), 32-33; Moses (
2008
), 202; Harten
(
2007
), 51; Harten and Loughlin (
2006
), 121 (125); cf Wood (
2007
), 575 (581).
237
Hanotiau and Caprasse (
2008
), 721 (722); Ozumba (
2009
), 10; Ma (
2005
), 24; cf Nariman
(
2004
), 123 (127).
238
Bjorklund (
2009
), 302 (308).
239
Moses (
2008
), 203.
