The New York Convention: Can We Finally Move Forward From 1958 to 1953? - EIAR - Volume 1 - Issue 1
Marike R.P. Paulsson - Counsel, Hanotiau & van den Berg, Brussels; Adjunct Professor, University of Miami.
Originally from European International Arbitration Review (EIAR)
Includes Annex by Albert Jan van den Berg
It is well known that while the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards1 was a great step forward from the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards, practically it was also a step backward from the initial proposal, made in 1953 by the International Chamber of Commerce (“ICC”).
The ICC had reasons to be confident. Its Court of Arbitration had been created in 1921, and only six years later its urgings for an international framework had been heeded by the League of Nations, which sponsored the Geneva Convention (as well as a Protocol on Arbitration Clauses in 1923). It did not take long for the ICC to conclude that the 1927 Convention was unsatisfactory, notably in that its Article 4 (2) in practice required the presentation of a declaration of enforceability from the country where the award had been rendered (the infamous “double exequatur”). And so the ICC proposed a replacement treaty only 26 years later. It proposed the idea of “international” awards whose validity did not necessarily depend on any national legal system, but would be enforceable everywhere provided it did not offend the courts in the place where execution was sought. The world—or at least the consensus of negotiators at the UN—was not ready for international awards, and so, although happily eliminating the double exequatur, the final text of the Convention nevertheless perpetuated the idea of foreign awards whose fate remained possibly linked to the place of arbitration.
Now that the Convention is closing in on the traditional retirement age of 65, one might wonder whether the explosion of international commercial arbitration since 1958 (as opposed to the trickle in the two decades after 1927) has not yielded insights and advances that would at least allow us to “go forward” to 1953.