LAWIN

Tag: Arbitration

  • Arbitration: Right to a Fair Hearing

    Arbitration: Right to a Fair Hearing     Article V(1)(b) requires that parties be afforded a fair hearing that meets the minimal requirements of fairness. The applicable minimum standards of fairness were described by the United States Court of Appeals for the Seventh Circuit as including “adequate notice, a hearing on the evidence, and an…

  • Invalidity of Arbitration Agreement

    Invalidity of Arbitration Agreement     Article V(1)(a) also provides a ground for refusal where the arbitration agreement “referred to in article II” is “not valid under the law to which the parties have subjected it, or failing any indication thereon, under the of the country where the award was made” . This ground for…

  • Arbitration: Incapacity of Party

    Arbitration : Incapacity of Party   The types of issues arising under this ground include the “incapacity” defences, such as mental incompetence, physical incapacity, lack of authority to act in the name of a corporate entity or a contracting party being too young to sign (minority). In addition, the term “incapacity” in the context of…

  • Arbitration: Limited discretionary power to enforce in the presence of grounds for refusal

    Arbitration: Limited discretionary power to enforce in the presence of grounds for refusal     Courts generally refuse enforcement when they find that there is a ground for refusal under the New York Convention. Some courts, however, hold that they have the power to grant enforcement even where the existence of a ground for refusal…

  • Arbitration: Grounds for refusal (Article V) in general

    Arbitration: Grounds for refusal (Article V) in general This phase is characterized by the following general principles: – no review on the merits; – burden on respondent of proving the exhaustive grounds; – exhaustive grounds for refusal of recognition and enforcement; – narrow interpretation of the grounds for refusal; – limited discretionary power to grant…

  • Original Arbitration agreement or certified copy (Article IV(1)(b))

    Original Arbitration agreement or certified copy (Article IV(1)(b)) This provision merely requires that the party seeking enforcement supply a document that is prima facie a valid arbitration agreement. At this stage the court need not consider whether the agreement is “in writing” as provided by Article II(2) or is valid under the applicable law.1 The…

  • Arbitration: Requirements to be fulfilled by petitioner (Art. IV)

    Arbitration: Requirements to be fulfilled by petitioner (Art. IV) At this phase of the proceedings, the petitioner has the burden of proof and has the duty to submit documents as listed in the New York Convention (Article IV). The petitioner only has to submit prima facie evidence. Phase I is controlled by a pro-enforcement bias…

  • 1958 Convention: Road map to article II

    1958 Convention: Road map to article II When seised of challenges to the validity of an arbitration agreement for the purposes of Article II of the Convention, the court should ask itself the following questions: 1. Does the arbitration agreement fall under the scope of the Convention? 2. Is the arbitration agreement evidenced in writing?…

  • 1958 Convention: Generally accepted principles

    1958 Convention: Generally accepted principles The Convention has not explicitly endorsed the “competencecompetence” principle, the limited review of arbitration agreements by courts at a pre-arbitration stage or the severability principle. Nevertheless, its object and purpose are better fulfilled if those principles are actually followed.   Arbitrators have jurisdiction to determine their own jurisdiction The “competence-competence”…

  • Arbitration: Basic features of the convention's regime on arbitration agreements

    Arbitration: Basic features of the convention’s regime on arbitration agreements Arbitration agreements are presumed valid The drafters of the Convention intended to eliminate the possibility for a party to an arbitration agreement to go back on its commitment to arbitrate and instead submit the dispute to State courts. Accordingly, the Convention sets forth a “pro-enforcement”…

  • Arbitration: Consequences of the non-application of the New York Convention

    Arbitration: Consequences of the non-application of the New York Convention   The non-application or incorrect application of the New York Convention engages in principle the international responsibility of the State. A breach of the State’s obligations under the Convention may in certain circumstances also constitute a breach of a bilateral or multilateral investment treaty.In any…

  • 1958 Convention: Relationship with domestic law and other treaties (Article VII)

    1958 Convention: Relationship with domestic law and other Treaties (Article VII)   Article VII(1) of the New York Convention addresses the relationship between the Convention and national laws of the forum and other international Treaties binding upon the State where enforcement is sought in the following terms: “The provisions of the present Convention shall not…

  • 1958 Convention: Reservations

    1958 Convention: Reservations   In principle, the Convention applies to all foreign or international arbitration agreements and to all foreign or non-domestic awards. However, Contracting States can make two reservations to the application of the Convention.   Reciprocity (Article I(3) First Sentence) Contracting States may declare that they will apply the Convention only to the…

  • 1958 Convention: Territorial scope of application

    1958 Convention: Territorial scope of application   Article I(1) defines the territorial scope of application of the New York Convention with regard to arbitral awards in the following terms: “This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition…

  • 1958 Convention: Material scope of application

    1958 Convention: Material scope of application   To determine whether a particular award or agreement falls within the subject matter of the Convention, a court should ascertain whether it qualifies as an arbitration agreement or an arbitral award.   Arbitral award There is no definition of the term “arbitral award” in the Convention.Therefore, it is…