{"id":4285,"date":"2012-08-05T20:26:24","date_gmt":"2012-08-06T03:26:24","guid":{"rendered":"http:\/\/www.taxsociety.org\/?p=4285"},"modified":"2012-08-05T20:26:24","modified_gmt":"2012-08-06T03:26:24","slug":"consequences-of-the-non-application-of-the-new-york-convention","status":"publish","type":"post","link":"https:\/\/lawin.org\/consequences-of-the-non-application-of-the-new-york-convention\/","title":{"rendered":"Arbitration: Consequences of the non-application of the New York Convention"},"content":{"rendered":"
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Arbitration: Consequences of the non-application of the New York Convention<\/h3>\n<\/div>\n

 <\/p>\n

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 event, the award will remain unaffected by the breaches.<\/p>\n

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Breach of the New York Convention<\/h3>\n<\/div>\n

Although the New York Convention does not have a dispute-resolution clause, the New York Convention is an international treaty creating obligations for the Contracting States under international law. As explained above, the Contracting States have undertaken to recognize and enforce foreign arbitral awards and to recognize arbitration agreements. When a party requests the enforcement and\/or recognition of an award or an arbitration agreement falling within the scope of the Convention, a Contracting State must apply the New York Convention. It may not impose stricter procedural rules and substantive conditions upon recognition and enforcement and where the Convention is silent on a procedural matter, it may not impose substantially more onerous procedural conditions than those governing domestic awards. Within the Contracting States, the principal organs in charge of the application of the New York Convention are the courts. In international law, the acts of courts are regarded as acts of the State itself. Thus, if a court does not apply the Convention, misapplies it or finds questionable reasons to refuse recognition or enforcement that are not covered by the Convention, the forum State engages its international responsibility. As soon as the notification of the Convention is effective for a given Contracting State, the responsibility of that State will be engaged on the international level irrespective of whether the Convention has been properly implemented by national legislation or whether it has been published or otherwise promulgated under domestic rules. Hence, the fact that the text of the Convention has for example not been published in the relevant official gazette does not change the State’s obligations to comply with the Convention under international law.<\/p>\n

 <\/p>\n

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Breach of investment treaty<\/h3>\n<\/div>\n
\n

<\/h3>\n<\/div>\n

Depending on the circumstances, a breach of the obligation to recognize and enforce arbitration agreements and awards can give rise to a breach of another treaty. This may be so of the European Convention on Human Rights<\/a> and especially its first Protocol and, as recent developments have shown, of investment Treaties<\/a> . Through the latter, States guarantee foreign investors, among other protections, that they will receive fair and equitable treatment and will not be subject to expropriation (unless specific conditions are met). Two recent decisions in investment treaty arbitrations have held that a State had breached its obligations under a bilateral investment treaty because its courts had failed to recognize a valid arbitration agreement. 1<\/p>\n

 <\/p>\n

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Award is unaffected <\/h3>\n<\/div>\n

An award is unaffected by the refusal of a State to enforce or recognize it in violation of the New York Convention. The State’s decision only has effect within the territory of that State. The successful party will thus still be entitled to rely on the award and ask for its enforcement in other States.<\/p>\n

 <\/p>\n

1. Saipem SpA v. Bangladesh, International Centre for Settlement of Investment Disputes (ICSID) case no. ARB\/05\/07 and Salini Costruttori SpA v. Jordan, ICSID case no. ARB\/02\/13, both available online at <www.icsid.world bank.org><\/p>\n

 <\/p>\n

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Source: ICCA’S Guide to the interpretation of the 1958 New York convention. Not changes allowed.<\/h3>\n<\/div>\n

 <\/p>\n

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Conclusion<\/h3>\n<\/div>\n
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Notes<\/h3>\n<\/div>\n
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See Also<\/h3>\n<\/div>\n
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References and Further Reading<\/h3>\n<\/div>\n
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About the Author\/s and Reviewer\/s<\/h3>\n<\/div>\n

Author: international<\/b><\/p>\n<\/p>\n

Mentioned in these Entries<\/h3>\n

European Convention on Human Rights<\/a>, Treaties<\/a>. <\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[113,78,5],"tags":[560,114,10,25,30,73],"_links":{"self":[{"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/posts\/4285"}],"collection":[{"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/comments?post=4285"}],"version-history":[{"count":0,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/posts\/4285\/revisions"}],"wp:attachment":[{"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/media?parent=4285"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/categories?post=4285"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lawin.org\/wp-json\/wp\/v2\/tags?post=4285"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}