Originally from Between East and West: Essays in Honour of Ulf Franke

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Under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the NYC) recognition or enforcement of a foreign arbitral award may not be refused except in cases mentioned in Article V of the NYC. The grounds for refusal listed in Article V (1) have to be proved by the person against whom the award is invoked. However, the court may also sua sponte refuse recognition and enforcement of a foreign arbitral award on any of the two grounds listed in Article V (2).

Although what has been said above is clear from the plain language of the Convention, it is less clear whether recognition and enforcement also must be refused if the person against whom the award is invoked proves that one of the circumstances mentioned in Article V(1) exists or if one of the circumstances mentioned in V(2) is found to exist. If this question is answered in the negative and the courts of the State where recognition and enforcement is sought has discretion to permit enforcement even where one of the grounds justifying refusal has been established, the question arises how this discretion should be exercised.

Article VII of the NYC provides that the Convention shall not “deprive any interested party of any right he may have to avail himself of an arbitral award in a manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.”