What is the New York Convention?
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”) is the key instrument which provides the common legislative standards for the recognition of arbitration agreements and enforcement of foreign arbitral awards. Under the terms of the New York Convention, the courts of member nations must recognise and give effect to foreign arbitral awards as legally binding, unless the other party can prove that there is reason to refuse enforcement pursuant to Article V of the New York Convention.
How to apply for recognition and enforcement of a foreign award?
A party seeking recognition and enforcement of a foreign award under the New York Convention needs to supply to the court:
- a duly authenticated original arbitral award or a certified copy of it;
- the original arbitration agreement or a certified copy of it; and
- a duly certified copy of a translated arbitral award and the arbitration agreement (if they are in a foreign language).
Article V of the New York Convention provides for the grounds to resist the recognition and enforcement of foreign arbitral award. The key exceptions are as follow:
- the parties to the arbitration agreement were acting under an incapacity;
- the arbitration agreement is not valid under the governing law of the country where the award is made;
- the party against whom it is invoked was not given proper notice of the appointment of the arbitrator or was otherwise unable to present his case;
- the award contains decisions on matters beyond the scope of the submission to arbitration;
- the composition of the arbitral authority or arbitral procedure was not in accordance with the agreement between the parties or the law of the country in which the arbitration took place;
- the award has not yet become binding, or has been set aside in the country in which the award was made;
- the subject matter of the dispute is not capable of settlement by arbitration in the law of the country in which enforcement is sought; or
- the recognition or enforcement of the award would be contrary to public policy.
The procedure rules for applying to national courts for the recognition and enforcement of arbitral awards vary from state to state. For ease of reference, we have listed below a few countries (which may be of your interest) that are signatories to the New York Convention and have implemented it into their national legislation:
- Malaysia – sections 38 to 39 of the Arbitration Act 2005
- Singapore – section 28 Arbitration Act (Cap.10) and section 12 of the International Arbitration Act (Cap. 143A)
- Hong Kong – Part 10, Division 2 of the Hong Kong Arbitration Ordinance
- England and Wales – Sections 100 to 104 of the Arbitration Act 1996
- United States – Chapter 2 of the Federal Arbitration Act