Contents
1958 Convention: Interpretation
The New York Convention is an international treaty. As such, it is part of public international law. Consequently, the courts called upon to apply the Convention must interpret it in accordance with the rules of interpretation of international law, which are codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties .1
Treaty interpretation: Vienna Convention
In principle, the terms used in the Convention have an autonomous meaning (Article 31 Vienna Convention). If the text of the New York Convention is ambiguous, one should defer to its context, intent and travaux préparatoires (Articles 31 and 32 Vienna Convention).2 The terms
must be understood taking into account the context and the purpose of the Convention. Therefore, courts should not interpret the terms of the
New York Convention by reference to domestic law. The terms of the Convention should have the same meaning wherever in the world they are applied. This helps to ensure the uniform application of the Convention in all the Contracting States.
In jurisdictions that have implemented the Convention into their legal system by means of an implementing act, it is important to have regard to its terms. In some cases, they alter the terms of the Convention. 3 Current case law unfortunately sometimes diverges in the application ofthe Convention and therefore does not always provide a useful guideline. In that case, courts should always interpret the New York Convention on a pro-enforcement bias. Courts can also rely on scholarly writings such as the commentary on the New York Convention by Professor Albert Jan van den Berg.4
Interpretation in favour of recognition in and enforcement: Pro-enforcement BIAS
As stated above, Treaties should be interpreted in light of their object andpurpose. T he purpose of the New York Convention is to promote
international commerce and the settlement of international disputesthrough arbitration. It aims at facilitating the recognition and enforcement of foreign arbitral awards and the enforcement of arbitration agreements. Consequently, courts should adopt a pro-enforcement approach when interpreting the Convention.
If there are several possible interpretations, courts should choose the meaning that favours recognition and enforcement (the so-called proenforcement bias). This implies in particular that the grounds for refusing enforcement specified in Article V should be construed narrowly (see Chapter III at III.4). 5 In line with the pro-enforcement bias, which is key to the interpretation of the New York Convention, the principle of maximum efficiency applies: if more Treaties could be applicable, the courts should apply the treaty under which the award is enforceable. This is reflected in Article VII (see this Chapter below at V.2).
In a case before the Spanish Supreme Court,6 two treaties were potentially applicable to determine the enforceability of the award: a bilateral treaty between France and Spain and the New York Convention.
The Court held that, of the two principles relevant to determining whether the Bilateral Treaty or the Convention applied, one was:
“… the principle of maximum efficiency or greater favourability to the recognition of foreign decisions. [Taken together with the other relevant principles this leads to the Court concluding that the Convention was the applicable provision as it] establishes a presumption of the validity and efficacy of both the arbitrationagreement and the related arbitral award and decision [and]consequently shifts the burden of proof onto the party against whom the arbitral award is invoked.”
1.
Vienna Convention on the Law of Treaties , done at Vienna on 23 May 1969, enteredinto force on 27 January 1980, United Nations Treaty Series, vol. 1155, p. 331.
Article 31 reads:
“General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of itsobject and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, inaddition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties inconnection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with theconclusion of the treaty and accepted by the other parties as an instrument relatedto the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes theagreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties sointended.”
Article 32 reads:
“Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including thepreparatory work of the treaty and the circumstances of its conclusion, in order toconfirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.”
Articles 31 and 32 have to be followed in sequence: e.g., if the clarity of the meaning is not achieved by reference to the general rule embodied in Article 31, one looks to the supplementary rules embodied in Article 32.National rules of interpretation do not apply. In accordance with international law, courts should interpret the New York Convention in an autonomous manner (see this Chapter below at I.1) and in favour of recognition and enforcement (see this Chapter below at I.2)
2
. The Convention was drawn up in five official texts: Chinese, English, French, Russian and Spanish.
3.
See Report on the Survey Relating to the Legislative Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958). Note by the UNCITRAL Secretariat. A/CN.9/656 and A/CN.9/656/Add.1, 5 June 2008.
4.
Albert Jan van den Berg, The New York Arbitration Convention of 1958 Towards a Uniform Judicial Interpretation (Kluwer, 1981); see also Professor van den Berg’sConsolidated Commentary on the 1958 New York Convention in Volume XXVIII (2003) of the Yearbook Commercial Arbitration, covering Volume XXII (1997) to Volume XXVII (2002), and the Consolidated Commentary on the 1958 New YorkConvention in Volume XXI (1996) of the Yearbook Commercial Arbitration,covering Volume XX (1995) and Volume XXI (1996).
5.
A court seised with an application to enforce an award under the Convention has no authority to review the decision of the arbitral tribunal on the merits and replace it by its own decision, even if it believes that the arbitrators erred in fact or law. Enforcement is not an appeal of the arbitral decision (see Chapter III at III.1).
6.
Spain: Tribunal Supremo, Civil Chamber, First Section, 20 July 2004 (Antilles Cement Corporation v. Transficem) Yearbook Commercial Arbitration XXXI (2006) pp. 846-852 (Spain no. 46).
Source: ICCA’S Guide to the interpretation of the 1958 New York convention.
Not changes allowed.
Conclusion
Notes
See Also
References and Further Reading
About the Author/s and Reviewer/s
Author: international
Mentioned in these Entries
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Treaties.
The Legal History of Interpretation
This section provides an overview of Interpretation
A Question of Interpretation: International Incident
In the book “International Incidents for Discussion in Conversation Classes”, in relation to this subject, L. Oppenheim wrote in 1909: According to Article XIII of the Treaty of July 11th, 1799,—confirmed by Article XII of the Treaty of May 1st, 1828,—between the United States of America and Prussia which is now valid for the whole German empire, in case one of the contracting parties is a belligerent, no articles carried by vessels of the other contracting party shall be considered contraband, but nevertheless the belligerent party shall have the right to seize any military stores carried by vessels of the other party on payment of their full value.
Has the Declaration of London, 1909, any influence on the validity of this old treaty stipulation?
If not, in the event of war between Germany and another power, can powers possessing most favoured nation treaties with Germany claim the same treatment with regard to contraband for their own vessels as Germany must grant to vessels of the United States?
International Differences as Regards Interpretation
Lassa Oppenheim, in the book entitled The Future of International Law, about International Differences as Regards Interpretation, wrote in 1921: 46. The difficulty of solving this question is increased by the fact that jurists of different nations are influenced by their national idiosyncrasies in the interpretation of enactments, and are dependent on the method of their school of law. Here are contrarieties which must always make themselves powerfully felt. The continental turn of mind is abstract, the turn of the English and American mind is concrete. Germans, French, and Italians have learnt to apply the abstract rules of codified law to concrete cases; in their abstract mode of thought they believe in general principles of law, and they work outwards from these. English and Americans, on the contrary, learn their law from decided cases–‘law is that which the courts recognize as a coactive rule’ is an accepted and widely current definition of law in the Anglo-American jurisprudence; they regard abstract legal rules, which for the most part they do not understand, with marked distrust; they work outwards from previously decided cases and, when a new case arises, they always look for the respects in which it is to be taken as covered by previous cases; they turn away as far as possible from general principles of law, and always fasten on the characteristic features of the particular case. If continental jurists may be said to adapt their cases to the law, English and American jurists may be said to adapt the law to their cases. It is obvious that this difference of intellectual attitude and of juristic training must exercise a far-reaching influence on the interpretation and construction of international enactments.
Different Nations Have Different Canons of Interpretation
Lassa Oppenheim, in the book entitled The Future of International Law, about Different Nations Have Different Canons of Interpretation, wrote in 1921: 47. It is because of what has just been explained that the rules for the interpretation of domestic legislation are different with different nations. For example, whilst in Germany and France the judge avails himself more or less liberally of the Materialien[1] of a statute in order to arrive at its meaning, the English judge limits himself to the strict wording of the text, and utterly refuses to listen to an argument based on the historical origin of the statute. The English bench, sticking more closely to the letter of the law, allows also an extensive or restrictive interpretation thereof much more seldom than the continental judiciary does. [1] It seems impossible to find any single English phrase which gives the meaning of Materialien in this context. In the Materialien of a statute is comprised everything officially put on record concerning it between the time the draftsman undertakes to draft the measure and the time it is placed on the statute-book. For instance, the commentary which a draftsman on the Continent always adds to his draft, giving the reasons for the provisions of the Bill; the discussions in Parliament about the Bill; and the like.–TRANSLATOR.
Controverted Interpretation of the Declaration of London: an Example
Lassa Oppenheim, in the book entitled The Future of International Law, about Controverted Interpretation of the Declaration of London an Example, wrote in 1921: 48. A good illustration of the factors under consideration was furnished by the movement in England against the ratification of the Declaration of London, and the discussion evoked thereby in the press and in Parliament. It was asserted that many rules of the Declaration were so indefinitely framed as to lie open, castle and keep, to the arbitrary inroads of a belligerent interpreter. And when the advocates of ratification pointed to the official ‘General Report presented to the Naval Conference by its Drafting Committee’, which gave a satisfying solution to the issues raised, the answer came that neither a belligerent nor the International Prize Court would be bound by the interpretation of the Declaration contained in this General Report. It was asserted that the ratification of the Declaration would refer only to the text itself, and that the General Report, not being thereby ratified, would not be binding; only by express extension of the ratification to the General Report could the latter bind. Continental jurisprudence, if my conception of it be correct, would stand shaking its head at the whole of this discussion. It would ask how there could be any talk of ratifying a report, ratification having only to do with agreements. And as regards the question of the binding character of the General Report, there might indeed be some objection on the Continent to the epithet ‘binding’, but, on the other hand, there would be no doubt that the interpretation of the Declaration given in the Report must be accepted on all sides. The Report expressly says: We now reach the explanation of the Declaration itself, on which we shall try, by summarizing the reports already approved by the Conference, to give an exact and uncontroversial commentary; this, when it has become an official commentary by receiving the approval of the Conference, would be fit to serve as a guide to the different authorities–administrative, military, and judicial–who may be called on to apply it. Seeing that the Conference unanimously accepted the Report, there is expressed in it and by it the real and true meaning of the individual articles of the Declaration as the Conference itself understood and intended it. Every attempt to procure an inconsistent interpretation must come to grief on this fact, and so the Report is in this sense ‘binding’. The ratification of a treaty extends, of course, not only to the words themselves, but also to their meaning, and if the Conference which produces an agreement itself unanimously applies a definite meaning to the words of the agreement, there cannot remain any doubt that this is the meaning of the verbal text. Nevertheless, the contrary was maintained in England by a party of men of legal eminence, and the explanation of this is only to be found in the fact that these English lawyers were applying to the interpretation of the Declaration the rules which govern the interpretation of English statutes. The only way to enable the English Government to ratify the Declaration seems to be a statement by the Powers at the time of ratification that the interpretation of the Declaration expressed in the General Report is accepted on all sides.
Some Proposals For the Avoidance of Difficulties in Interpretation
Lassa Oppenheim, in the book entitled The Future of International Law, about Some Proposals For the Avoidance of Difficulties in Interpretation, wrote in 1921: 49. However this may be, the illustration adduced is sufficient proof that the interpretation of international enactments creates a difficulty of its own for international legislation. International legislators must bring even greater solicitude than municipal legislators to the expression of their real meaning in rigid terms. And this aim can only be attained by the most assiduous preparation and consideration of the contents of the enactment. It would be best if these contents were published and thereby submitted to expert discussion before they were finally accepted at the Conferences. The national jurisconsults of the participant states would thus be enabled to criticize the proposals and to indicate the points which especially need clearing up. It might also be possible to consider the enactment, by convention, of an international ordinance containing a series of rules for the interpretation and construction of all international statutes. This much is sure, that the interpretation of international statutes must be freer than that of municipal statutes, and must therefore be directed rather to the spirit of the law than to the meaning of the words used. This is all the more requisite because French legal language is foreign to most of the states concerned, and because it is not to be expected that before ratification they should obtain minute information about the meaning of every single foreign word employed.
Literal, Grammatical, Logical or “Ordinary” Method of Interpretation
Interpretation
Embracing mainstream international law, this section on interpretation explores the context, history and effect of the area of the law covered here.
Resources
See Also
- Interpretation
- Reasoning
- Codification
Resources
Further Reading
- The entry “interpretation” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press
Resources
See Also
- Legal Biography
- Legal Traditions
- Historical Laws
- History of Law
Further Reading
- Interpretation in the Oxford International Encyclopedia of Legal History (Oxford University Press)
- The Oxford Encyclopedia of American Political and Legal History (Oxford University Press)
- Interpretation in the Dictionary of Concepts in History, by Harry Ritter
- A Short History of Western Legal Theory, by John Kelly