Recognition and Enforcement of Arbitral Award الاعتراف بالاحكام الاجنبية و تنفيذها

8/9/2019 Recognition and Enforcement of Arbitral Award

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Recognition and Enforcement ofRecognition and Enforcement ofArbitral Award:Arbitral Award:The New York ConventionThe New York Convention

Sami Al Awad Bani DomiSami Al Awad Bani Domi

962796368622962796368622

[email protected]@yahoo.com


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IntroductionIntroduction

Investors confidence in their judicial systems is a major factorInvestors confidence in their judicial systems is a major factorin choosing certain jurisdictions to govern their contractualin choosing certain jurisdictions to govern their contractualrelationships. Sometimes the parties nationalities or theirrelationships. Sometimes the parties nationalities or theirdomiciles are different, or the assets are located in differentdomiciles are different, or the assets are located in differentcountries. Because of this, the importance of enforcing foreigncountries. Because of this, the importance of enforcing foreign

awards takes its place.awards takes its place.

In Jordan, foreign awards against Jordanian natural orIn Jordan, foreign awards against Jordanian natural orjuristic persons, might be enforced in accordance to Executionjuristic persons, might be enforced in accordance to ExecutionForeign Awards Law no (Foreign Awards Law no (88) for the year) for the year 19521952; where its; where itssecond article defines the foreign award as: Every judgmentsecond article defines the foreign award as: Every judgment

issued from a court outside Jordan pertained to civilissued from a court outside Jordan pertained to civilprocedures (including the religious courts) requires payingprocedures (including the religious courts) requires payingamounts, including the arbitrator tribunal decisions if theamounts, including the arbitrator tribunal decisions if the

judgment was final.judgment was final.


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Scope of applicationScope of application

In articleIn article 11 from NYC ;from NYC ; 11. This Convention shall apply to the recognition and enforcement. This Convention shall apply to the recognition and enforcement

of arbitral awards made in the territory of a State other than theof arbitral awards made in the territory of a State other than theState where the recognition and enforcement of such awards areState where the recognition and enforcement of such awards aresought, and arising out of differences between persons, whethersought, and arising out of differences between persons, whether

physical or legal. It shall also apply to arbitral awards notphysical or legal. It shall also apply to arbitral awards notconsidered as domestic awards in the State where their recognitionconsidered as domestic awards in the State where their recognitionand enforcement are sought.and enforcement are sought.

According to the cited provision an arbitral award qualifies asAccording to the cited provision an arbitral award qualifies asforeign in tow situations:foreign in tow situations:

11-- when the award is made in the territory of another state, orwhen the award is made in the territory of another state, or

22 when it is not considered a domestic award in the state wherewhen it is not considered a domestic award in the state whererecognition and enforcement is sought.recognition and enforcement is sought.


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The importance of classify theThe importance of classify the

Award is foreign or local:Award is foreign or local: The question whether an award isThe question whether an award is

domestic or foreign is of the particulardomestic or foreign is of the particular

importance because in many jurisdictionimportance because in many jurisdictionthe enforcement proceedings are deferentthe enforcement proceedings are deferentfor foreign and domestic awards.for foreign and domestic awards.


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Which foreign award fall underWhich foreign award fall under

the NYC:the NYC: From the general rule in article I (From the general rule in article I (11) it follows) it follows

that the new York convention applies to allthat the new York convention applies to allforeign awards irrespective of the country whereforeign awards irrespective of the country wherethey were made .they were made .

Therefore., a foreign award will be recognizedTherefore., a foreign award will be recognizedand enforced by a signatory party to theand enforced by a signatory party to theconvention regardless of whether the award wasconvention regardless of whether the award was

rendered inside or outside the territory ofrendered inside or outside the territory ofanother contracting state . this presupposes thatanother contracting state . this presupposes thatthe award satisfies all the requirements laidthe award satisfies all the requirements laiddown in the convention.down in the convention.


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Reciprocity in article I (Reciprocity in article I (33))

Nevertheless the drafter of the Convention made it possible to limit theNevertheless the drafter of the Convention made it possible to limit thebroad scope of the general rule mentioned above by providing a reservationbroad scope of the general rule mentioned above by providing a reservationin articlein article 11((33) States taking advantage of the first reservation , as it is) States taking advantage of the first reservation , as it iscalled , limit the application of the convention to foreign award made in thecalled , limit the application of the convention to foreign award made in theterritory of another contracting state , on the basis of reciprocity . more thanterritory of another contracting state , on the basis of reciprocity . more than

5050 per cent of the contracting state have made the reciprocity reservation inper cent of the contracting state have made the reciprocity reservation inarticle I(article I(33) , which reads as follows :) , which reads as follows :

"" 33. When signing, ratifying or acceding to this Convention, or notifying. When signing, ratifying or acceding to this Convention, or notifyingextension under article X hereof, any State may on the basis of reciprocityextension under article X hereof, any State may on the basis of reciprocitydeclare that it will apply the Convention to the recognition anddeclare that it will apply the Convention to the recognition andenforcement of awards made only in the territory of another Contractingenforcement of awards made only in the territory of another ContractingState. It may also declare that it will apply the Convention only toState. It may also declare that it will apply the Convention only to

differences arising out of legal relationships, whether contractual or not,differences arising out of legal relationships, whether contractual or not,which are considered as commercial under the national law of the Statewhich are considered as commercial under the national law of the Statemaking such declarationmaking such declaration."."


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Which persons fall under the scope ofWhich persons fall under the scope ofNYCNYC

In the first paragraph of article I, theIn the first paragraph of article I, thephrase person , whether physical or legalphrase person , whether physical or legal

specifies that the convention applies to specifies that the convention applies toboth natural person and legal entities suchboth natural person and legal entities suchas companies .as companies .


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Permanent Arbitral bodiesPermanent Arbitral bodies

Article I (Article I (22) should be briefly mentioned , more) should be briefly mentioned , morefor the sake of clarification than real importancefor the sake of clarification than real importance. at the time the NYC was drafted , there was a. at the time the NYC was drafted , there was astrong division between countries with marketstrong division between countries with marketand planned economies , which also had anand planned economies , which also had aneffect on arbitration. The latter countries hadeffect on arbitration. The latter countries hadpermanent arbitral bodies to which the partiespermanent arbitral bodies to which the parties

submitted their disputes . Pursuant to thissubmitted their disputes . Pursuant to thisparagraph , awards made by such bodies are alsoparagraph , awards made by such bodies are alsoto be deemed arbitral awards in the sense ofto be deemed arbitral awards in the sense ofarticle I of the convention.article I of the convention.


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* Enforcement of foreign awards in* Enforcement of foreign awards inJordanJordan

In Jordan, foreign awards against Jordanian natural orIn Jordan, foreign awards against Jordanian natural orjuristic persons, might be enforced in accordance tojuristic persons, might be enforced in accordance toExecution Foreign Awards Law no (Execution Foreign Awards Law no (88) for the year) for the year19521952; where its second article defines the foreign award; where its second article defines the foreign award

as: Every judgment issued from a court outside Jordanas: Every judgment issued from a court outside Jordanpertained to civil procedures (including the religiouspertained to civil procedures (including the religiouscourts) requires paying amounts, including the arbitratorcourts) requires paying amounts, including the arbitratortribunal decisions if the judgment was final. In light oftribunal decisions if the judgment was final. In light ofthe above definition, it is apparent that the Jordanianthe above definition, it is apparent that the Jordanian

courts are prohibited from executing foreign awards ifcourts are prohibited from executing foreign awards ifthe later are related to criminal procedures.the later are related to criminal procedures.


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*Recognition of ARBITRATION*Recognition of ARBITRATION

AGREEMENT

AGREEMENT

As provided in the first two paragraph of article IIAs provided in the first two paragraph of article II "" 11. Each Contracting State shall recognize an. Each Contracting State shall recognize an

agreement in writing under which the partiesagreement in writing under which the parties

undertake to submit to arbitration all or any differencesundertake to submit to arbitration all or any differenceswhich have arisen or which may arise between them inwhich have arisen or which may arise between them inrespect of a defined legal relationship, whetherrespect of a defined legal relationship, whethercontractual or not, concerning a subject matter capablecontractual or not, concerning a subject matter capableof settlement by arbitration.of settlement by arbitration.

22. The term "agreement in writing" shall include an. The term "agreement in writing" shall include anarbitral clause in a contract or an arbitrationarbitral clause in a contract or an arbitrationagreement, signed by the parties or contained in anagreement, signed by the parties or contained in anexchange of letters or telegrams."exchange of letters or telegrams."


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Scope of application :Scope of application :

Based on the article , it is clear that theNYC sets broadBased on the article , it is clear that theNYC sets broadlimits as to the type of the arbitration agreement : it maylimits as to the type of the arbitration agreement : it may

be either in the from of a clause in the contract or abe either in the from of a clause in the contract or a

separate agreement , and it may concern an existingseparate agreement , and it may concern an existingdispute or one that arise in the future . it further followsdispute or one that arise in the future . it further followsthat the dispute may concern a contractual or nonthat the dispute may concern a contractual or non--contractual legal relationship as long as it is specificallycontractual legal relationship as long as it is specificallydefined . A problem that often arises , especially whendefined . A problem that often arises , especially whenthe parties disagree , is whether the disputed issuethe parties disagree , is whether the disputed issue

actually falls under the phrasing used in the arbitrationactually falls under the phrasing used in the arbitrationagreement . it is general held that doubts as to the scopeagreement . it is general held that doubts as to the scopeof the issues arbitrable under a specific arbitral clauseof the issues arbitrable under a specific arbitral clauseshould be answered in favoure of arbitration.should be answered in favoure of arbitration.


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The content of arbitrationThe content of arbitration

agreement:agreement: The NYC prescribes no specific requirement forThe NYC prescribes no specific requirement for

the content of the arbitration agreement .Thisthe content of the arbitration agreement .Thisimplies that any phrase expressing the partiesimplies that any phrase expressing the parties

common intention to submit a dispute arisingcommon intention to submit a dispute arisingfrom the defined legal relationship to arbitrationfrom the defined legal relationship to arbitrationwould suffice.would suffice.

Pursuant to article II (Pursuant to article II (22) , there is only one) , there is only oneformal requirement for the validity of the arbitralformal requirement for the validity of the arbitralagreement : is must be in writing .agreement : is must be in writing .

The arbitral clause must be in a contract orThe arbitral clause must be in a contract oragreement signed by the parties , or contained inagreement signed by the parties , or contained inan exchange of letters or telegrams. With respectan exchange of letters or telegrams. With respectto these alternative , one should keep in mindto these alternative , one should keep in mindthat this provision reflects the level of technologythat this provision reflects the level of technology

when the NYC was adopted inwhen the NYC was adopted in 19581958 ..


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Referral by court to arbitrationReferral by court to arbitration

ARTICLE II (ARTICLE II (33))

"" 33. The court of a Contracting State, when. The court of a Contracting State, whenseized of an action in a matter in respect ofseized of an action in a matter in respect of

which the parties have made an agreementwhich the parties have made an agreementwithin the meaning of this article, shall, at thewithin the meaning of this article, shall, at therequest of one of the parties, refer the parties torequest of one of the parties, refer the parties toarbitration, unless it finds that the saidarbitration, unless it finds that the saidagreement is null and void, inoperative oragreement is null and void, inoperative orincapable of being performed."incapable of being performed."


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An agreement within theAn agreement within the

meaning of this articlemeaning of this article By referring to the definition of arbitration agreement set out in theBy referring to the definition of arbitration agreement set out in the

first two paragraphs of ARTICLE IINYC , this expression raises thefirst two paragraphs of ARTICLE IINYC , this expression raises theissues of the scope of the arbitration agreement and the arbitrabilityissues of the scope of the arbitration agreement and the arbitrabilityof the subject matter.of the subject matter.

Since the wording of article II(Since the wording of article II(33) does not explicitly specify which) does not explicitly specify whicharbitration agreements are covered, this is left to court to decide . ifarbitration agreements are covered, this is left to court to decide . ifinterpreted in accordance with the scope of the NYC laid down ininterpreted in accordance with the scope of the NYC laid down inarticle I, this provision would apply to arbitration agreement madearticle I, this provision would apply to arbitration agreement madein the territory of a state other than the one of the court seized.in the territory of a state other than the one of the court seized.However there may be exceptions such as when a contracting stateHowever there may be exceptions such as when a contracting statehas made a reservation according to article I(has made a reservation according to article I(33) declaring that it will) declaring that it will

apply theNYC only under the condition of reciprocity .apply theNYC only under the condition of reciprocity .


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Mandatory nature of the referral :Mandatory nature of the referral :

The use of shall in article II(The use of shall in article II(33) NYC) NYC

obliges the court to refer the parties toobliges the court to refer the parties toarbitration if all the condition are fulfilled .arbitration if all the condition are fulfilled .


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At the request of one of the parties :At the request of one of the parties :

This condition makes it clear that the court is notThis condition makes it clear that the court is notex officio obliged to refer the parties toex officio obliged to refer the parties toarbitration ; it does so only when one of thearbitration ; it does so only when one of the

parties , usually the defendant , invokes theparties , usually the defendant , invokes thearbitration agreement . an important question inarbitration agreement . an important question inthis context is the time limit for raising thethis context is the time limit for raising the

jurisdictional objection. Since the NYC is silentjurisdictional objection. Since the NYC is silenton the issue , it is to be resolved according to theon the issue , it is to be resolved according to thelex fori . as a rule, national laws require thelex fori . as a rule, national laws require theobjection to be submitted before the defendantobjection to be submitted before the defendantpresent its arguments on the merits of the case.present its arguments on the merits of the case.


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The agreement is null and void , inoperative orThe agreement is null and void , inoperative orincapable of being performedincapable of being performed

This phrase is also not defined by the NYC , as aThis phrase is also not defined by the NYC , as aresult of which the court seized applies itsresult of which the court seized applies its

national law . relevant case law is divided on thisnational law . relevant case law is divided on thisissue : while the courts of certain countries applyissue : while the courts of certain countries applythe law of the forum , other countries favourthe law of the forum , other countries favourapplication of the law chosen by the parties toapplication of the law chosen by the parties to

govern the arbitration agreement or the law ofgovern the arbitration agreement or the law ofthe country of the seat of the arbitration.the country of the seat of the arbitration.


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* ENFORCEMENT PROCEDURE :* ENFORCEMENT PROCEDURE :

Article III sets out the general obligation of each Contracting state toArticle III sets out the general obligation of each Contracting state torecognize and enforce an arbitral award in accordance with therecognize and enforce an arbitral award in accordance with thecondition laid down in article III , which reads as follows :condition laid down in article III , which reads as follows :

" Each Contracting State shall recognize arbitral awards as" Each Contracting State shall recognize arbitral awards as

binding and enforce them in accordance with the rules ofbinding and enforce them in accordance with the rules ofprocedure of the territory where the award is relied upon, underprocedure of the territory where the award is relied upon, underthe conditions laid down in the following articles. There shall notthe conditions laid down in the following articles. There shall notbe imposed substantially more onerous conditions or higher fees orbe imposed substantially more onerous conditions or higher fees orcharges on the recognition or enforcement of arbitral awards tocharges on the recognition or enforcement of arbitral awards towhich this Convention applies than are imposed on the recognitionwhich this Convention applies than are imposed on the recognitionor enforcement of domestic arbitral awards."or enforcement of domestic arbitral awards."


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Condition provided by the NYCCondition provided by the NYC

In general, article IV requires theIn general, article IV requires the

petitioner to submit an original or a copypetitioner to submit an original or a copyof the arbitration agreement and theof the arbitration agreement and thearbitral award and a translation thereof.arbitral award and a translation thereof.Article V contains an exhaustive list ofArticle V contains an exhaustive list of

grounds that the respondent my invokegrounds that the respondent my invokeagainst the recognition and enforcement .against the recognition and enforcement .


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REQUEST FORRECOGNTION AND ENFORCEMENT:FORMALREQUEST FORRECOGNTION AND ENFORCEMENT:FORMALREQUIREMENTSREQUIREMENTS

ATRICLE IVATRICLE IV

"" 11. To obtain the recognition and enforcement mentioned in the. To obtain the recognition and enforcement mentioned in thepreceding article, the party applying for recognition andpreceding article, the party applying for recognition andenforcement shall, at the time of the application, supply:enforcement shall, at the time of the application, supply:

(a) The duly authenticated original award or a duly certified copy(a) The duly authenticated original award or a duly certified copy

thereof;thereof; (b) The original agreement referred to in article II or a duly(b) The original agreement referred to in article II or a duly

certified copy thereof.certified copy thereof. 22. If the said award or agreement is not made in an official. If the said award or agreement is not made in an official

language of the country in which the award is relied upon, thelanguage of the country in which the award is relied upon, theparty applying for recognition and enforcement of the award shallparty applying for recognition and enforcement of the award shall

produce a translation of these documents into such language. Theproduce a translation of these documents into such language. Thetranslation shall be certified by an official or sworn translator ortranslation shall be certified by an official or sworn translator orby a diplomatic or consular agent."by a diplomatic or consular agent."


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Submission of documentSubmission of document

The party requesting recognition or enforcement must fulfill threeThe party requesting recognition or enforcement must fulfill threeformal requirements :formal requirements :

11-- he must supply the duly authenticated original or a duly certifiedhe must supply the duly authenticated original or a duly certifiedcopy thereof in other words, the original award must becopy thereof in other words, the original award must be

authenticated ; I . e . the signature must be attested to be genuine ;authenticated ; I . e . the signature must be attested to be genuine ;or if a copy of the award is submitted, it must be certified, I .e . theor if a copy of the award is submitted, it must be certified, I .e . thecopy must be attested to be a true copy of the original. The samecopy must be attested to be a true copy of the original. The sameapplies if a copy of the arbitration agreement is submitted.applies if a copy of the arbitration agreement is submitted.

22-- The original agreement referred to in article II or a duly certifiedThe original agreement referred to in article II or a duly certifiedcopy thereofcopy thereof

33--T

ranslation for the award and arbitration agreement .T

ranslation for the award and arbitration agreement .44 -- at the time of application at the time of application


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* GROUNDS FORREFUSAL OF RECOGNITION AND* GROUNDS FORREFUSAL OF RECOGNITION ANDENFORCEMENT WHICHMAY BE INVOKED BY THEENFORCEMENT WHICHMAY BE INVOKED BY THE

PARTIES,PARTIES,

ARTICLE V(ARTICLE V(11))

The grounds prescribed in article V may beThe grounds prescribed in article V may bedivided into two categories :divided into two categories : 11) those that may be) those that may be

invoked by the parties ( article V(invoked by the parties ( article V(11)), and)), and 22))those that the court may invoke ex officio (articlethose that the court may invoke ex officio (article

V(V(22)). Whereas the first category is intended to)). Whereas the first category is intended toprotect the interests of the awardprotect the interests of the award--debtor, thedebtor, the

second serves the vital interest of the forumsecond serves the vital interest of the forumcountry.country.


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Grounds that may be invoked byGrounds that may be invoked bythe partiesthe parties

Article V:Article V:

The Grounds that may be invoked by the parties to refuse the recognitionThe Grounds that may be invoked by the parties to refuse the recognitionand enforcement of an arbitral award are listed in the first paragraph ofand enforcement of an arbitral award are listed in the first paragraph ofarticle V, which reads as followsarticle V, which reads as follows

"" 11. Recognition and enforcement of the award may be refused, at the. Recognition and enforcement of the award may be refused, at therequest of the party against whom it is invoked, only if that party furnishesrequest of the party against whom it is invoked, only if that party furnishesto the competent authority where the recognition and enforcement isto the competent authority where the recognition and enforcement issought, proof that:sought, proof that:

(a) The parties to the agreement referred to in article II were, under the(a) The parties to the agreement referred to in article II were, under thelaw applicable to them, under some incapacity, or the said agreement islaw applicable to them, under some incapacity, or the said agreement isnot valid under the law to which the parties have subjected it or, failingnot valid under the law to which the parties have subjected it or, failingany indication thereon, under the law of the country where the award wasany indication thereon, under the law of the country where the award was

made; ormade; or (b) The party against whom the award is invoked was not given proper(b) The party against whom the award is invoked was not given proper

notice of the appointment of the arbitrator or of the arbitrationnotice of the appointment of the arbitrator or of the arbitrationproceedings or was otherwise unable to present his case; or"proceedings or was otherwise unable to present his case; or"


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Incapacity of the parties andIncapacity of the parties andformal invalidityformal invalidity

Since the issue of the capacity of the parties to conclude the arbitrationSince the issue of the capacity of the parties to conclude the arbitrationagreement is not resolved under the convention , it is to be decidedagreement is not resolved under the convention , it is to be decidedaccording to the applicable law designated by the choiceaccording to the applicable law designated by the choice--ofof--law rules of thelaw rules of thecourt conducting the enforcement procedure . a specific problem arisescourt conducting the enforcement procedure . a specific problem ariseswhen one of the parties to the arbitration agreement is a state , a statewhen one of the parties to the arbitration agreement is a state , a state

trading agency or other body of public law and that party invokes sovereigntrading agency or other body of public law and that party invokes sovereignimmunity as a defense in order to avoid arbitration . as a rule, such aimmunity as a defense in order to avoid arbitration . as a rule, such adefense is unsuccessful. This is in keeping with the view that a state enjoysdefense is unsuccessful. This is in keeping with the view that a state enjoysimmunity from jurisdiction only in cases where it actedimmunity from jurisdiction only in cases where it acted iure imperiiiure imperii,,whereas immunity cannot be acknowledged in case where the state enteredwhereas immunity cannot be acknowledged in case where the state enteredinto the legal relationshipinto the legal relationship iure gestionisiure gestionis..

The formal validity of the arbitration agreement may also be invoked as aThe formal validity of the arbitration agreement may also be invoked as a

ground to prevent the award from being enforced. According to the wordingground to prevent the award from being enforced. According to the wordingof the provision , the formal validity of the agreement is determinedof the provision , the formal validity of the agreement is determinedprimarily according to the law chosen by the parties to govern theprimarily according to the law chosen by the parties to govern theagreement .subsidiarily , the law of the country where the award was madeagreement .subsidiarily , the law of the country where the award was madeshall apply. Despite these choiceshall apply. Despite these choice--ofof--law rules, the most frequently invokedlaw rules, the most frequently invokedground under article II(ground under article II(22) is the invalidity of the arbitration agreement.) is the invalidity of the arbitration agreement.


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Violation of due processViolation of due process

The wording of the provision on due process provides that, if the partyThe wording of the provision on due process provides that, if the partyagainst whom the award is invoked, (a) was not given proper notice of theagainst whom the award is invoked, (a) was not given proper notice of theappointment of the arbitrator or of the arbitration proceeding or (b) wasappointment of the arbitrator or of the arbitration proceeding or (b) wasother wise unable to present his case , the court may refuse the enforcementother wise unable to present his case , the court may refuse the enforcementof the award, in other words, this provision concerns the fundamentalof the award, in other words, this provision concerns the fundamentalprinciple of procedural law to enable both parties to present their case.principle of procedural law to enable both parties to present their case.

Different stands are taken in legal scholarship and the case law on thisDifferent stands are taken in legal scholarship and the case law on thisissue. While scholars maintain that this ground should be interpreted as aissue. While scholars maintain that this ground should be interpreted as auniform convention rule, the courts believe it should be construed withuniform convention rule, the courts believe it should be construed withreference to domestic notions (reference to domestic notions (lex fori of the place of enforcementlex fori of the place of enforcement) of due) of dueprocess violations.process violations.

The notion of The notion of proper noticeproper notice implies that the notice of the appointment implies that the notice of the appointmentof the arbitrator and of the arbitral proceedings must be adequate andof the arbitrator and of the arbitral proceedings must be adequate andappropriate.appropriate.

The wording The wording unable to present his caseunable to present his case implies a concept restricted to implies a concept restricted toserious violations of the arbitral procedural rules. It includes the arbitratorsserious violations of the arbitral procedural rules. It includes the arbitratorsduty to inform the other party of whether arguments and evidence had beenduty to inform the other party of whether arguments and evidence had beensubmitted by the opposing party, thus giving the former a chance to reply.submitted by the opposing party, thus giving the former a chance to reply.


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Excess of authority by the arbitrator (art.V(Excess of authority by the arbitrator (art.V(11))(c))(c))

Excess of authority by the arbitrator as a ground for refusal ofExcess of authority by the arbitrator as a ground for refusal ofrecognition and enforcement does not involve cases where anrecognition and enforcement does not involve cases where anarbitrator lacked competence entirely. Such situations fall underarbitrator lacked competence entirely. Such situations fall underarticle V(1)(a). similarly, article V(1)1(c) does not apply to case ofarticle V(1)(a). similarly, article V(1)1(c) does not apply to case oflack competence on the ground of invalidity of the arbitrationlack competence on the ground of invalidity of the arbitrationagreement .agreement .

This expression covers situations where an arbitrator has decideThis expression covers situations where an arbitrator has decidematters covered neither by the arbitration agreement nor by thematters covered neither by the arbitration agreement nor by theterms of reference . in other word, the arbitrator has decide claimsterms of reference . in other word, the arbitrator has decide claimsnot considered by the parties or outside the arbitration agreement .not considered by the parties or outside the arbitration agreement .for example , paragraph 1(c) applies to situation when an arbitratorfor example , paragraph 1(c) applies to situation when an arbitratordecide the dispute ex aequo et bono without proper authorization ordecide the dispute ex aequo et bono without proper authorization or

where the award is rendered outside the time limit set by the parties.where the award is rendered outside the time limit set by the parties.


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Partial enforcementPartial enforcement

Article V(Article V(11)(c) permits enforcement of the)(c) permits enforcement of thepart of the award dealing with questionspart of the award dealing with questionssubmitted to arbitration , provided thesubmitted to arbitration , provided therelevant part of the award can berelevant part of the award can beseparated from the parts that do notseparated from the parts that do notcomply with the terms of the arbitrationcomply with the terms of the arbitration

agreement.agreement.


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Violation of composition of the arbitral tribunalViolation of composition of the arbitral tribunal/ arbitration proceedings/ arbitration proceedings

Under paragraphUnder paragraph 11(d) of article V the respondent(d) of article V the respondentmay oppose recognition and enforcement on themay oppose recognition and enforcement on the

ground that the composition of the arbitralground that the composition of the arbitraltribunal or the arbitration proceedings did nottribunal or the arbitration proceedings did notcomply with the parties agreement or, wherecomply with the parties agreement or, wherethere is no agreement , that it did not complythere is no agreement , that it did not comply

with the law of the country where the arbitrationwith the law of the country where the arbitrationtook place .took place .


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Agreement by parties VS. national rulesAgreement by parties VS. national rules

An agreement by the parties regarding theAn agreement by the parties regarding thecomposition of the arbitral tribunal or thecomposition of the arbitral tribunal or thearbitral proceedings supersedes thearbitral proceedings supersedes thenational rules if the country where thenational rules if the country where thearbitration took place , expect for thearbitration took place , expect for thefundamental requirements of due process.fundamental requirements of due process.

Generally , the law of the country whereGenerally , the law of the country wherethe arbitration took place comes into playthe arbitration took place comes into playin the absence of an agreement.in the absence of an agreement.


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Award is not yet bindingAward is not yet binding

Article V(Article V(11)(e))(e) The recognition and enforcement of the award may also be refused if theThe recognition and enforcement of the award may also be refused if the

award has not yet become binding on the parties, or has been set aside oraward has not yet become binding on the parties, or has been set aside orsuspended by a competent authority of the country in which, or under thesuspended by a competent authority of the country in which, or under thelaw of which, that award was made.law of which, that award was made.

Contrary to the situation prior to the New York convention an awardContrary to the situation prior to the New York convention an award

need not be declared enforceable under the law of the place of arbitrationneed not be declared enforceable under the law of the place of arbitrationin order to be binding within the meaning of article V(in order to be binding within the meaning of article V(11)(e) . its generally)(e) . its generallyaccepted that the law applicable to the award applies when determiningaccepted that the law applicable to the award applies when determiningwhether the award has become binding on the parties. There are, howeverwhether the award has become binding on the parties. There are, howeverrelevant court decision and views in legal scholarship that advocaterelevant court decision and views in legal scholarship that advocateresolving this matter in an autonomous manner independent of theresolving this matter in an autonomous manner independent of theapplicable law. As a rule , it can be said that, as long as an award can beapplicable law. As a rule , it can be said that, as long as an award can bechallenged before courts with ordinary jurisdictions or before an arbitralchallenged before courts with ordinary jurisdictions or before an arbitralappellate body , such an award has not yet become binding on the parties.appellate body , such an award has not yet become binding on the parties.In all cases, the burden is on the party resisting enforcement to prove thatIn all cases, the burden is on the party resisting enforcement to prove thatthe award has not yet become binding.the award has not yet become binding.


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Setting aside or suspension of the awardSetting aside or suspension of the award

Alternative grounds for refusal of recognition andAlternative grounds for refusal of recognition andenforcement of the award under article V(1)(e) are theenforcement of the award under article V(1)(e) are thesetting aside or suspension of the award by the court ofsetting aside or suspension of the award by the court ofthe country in which the award was rendered or underthe country in which the award was rendered or under

the law of which the award was made . again ,the burdenthe law of which the award was made . again ,the burdenis on the party resisting enforcement to prove that theis on the party resisting enforcement to prove that theaward has been set aside or suspended . As regardsaward has been set aside or suspended . As regardssuspension , the party resisting enforcement mustsuspension , the party resisting enforcement mustprove that the suspension of the award has beenprove that the suspension of the award has been

effectively ordered by a court in the country of origin .effectively ordered by a court in the country of origin .The automatic suspension of the award by operation ofThe automatic suspension of the award by operation oflaw in the country of origin is not sufficient.law in the country of origin is not sufficient.


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GROUNDS FOR EX OFFICIO REFUSAL OF THE RECOGNITIONGROUNDS FOR EX OFFICIO REFUSAL OF THE RECOGNITIONAND ENFORCEMENT OF ARBITRAL AWARDS :AND ENFORCEMENT OF ARBITRAL AWARDS :

ARTICLE V(ARTICLE V(22)) The grounds that the court may invoke ex officio for theThe grounds that the court may invoke ex officio for the

refusal to recognize and enforce an arbitral award arerefusal to recognize and enforce an arbitral award arelaid down in the second paragraph of article V, whichlaid down in the second paragraph of article V, whichreads:reads:

"

"22. Recognition and enforcement of an arbitral award. Recognition and enforcement of an arbitral awardmay also be refused if the competent authority in themay also be refused if the competent authority in the

country where recognition and enforcement is soughtcountry where recognition and enforcement is soughtfinds that:finds that:

(a) The subject matter of the difference is not capable of(a) The subject matter of the difference is not capable ofsettlement by arbitration under the law of that country;settlement by arbitration under the law of that country;

oror (b) The recognition or enforcement of the award would(b) The recognition or enforcement of the award would

be contrary to the public policy of that country.be contrary to the public policy of that country.


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This mean that the court can refuse to recognize andThis mean that the court can refuse to recognize andinforce the arbitral award in two cases:inforce the arbitral award in two cases:

11-- if the subject matter of the award is nonif the subject matter of the award is non arbitrable .arbitrable .Classic examples for that antitrust, the validity ofClassic examples for that antitrust, the validity ofintellectual rights ( patents , trademarks, etc.) family laintellectual rights ( patents , trademarks, etc.) family la

wand protection of weak parties.wand protection of weak parties.

22-- If the award is contrary to the public policy .If the award is contrary to the public policy .Public order and morals defer from time to time, andPublic order and morals defer from time to time, andfrom one country to another, as what is acceptable in afrom one country to another, as what is acceptable in acountry might not be in another. For example, it is notcountry might not be in another. For example, it is notallowed to enforce a foreign award relating to gamblingallowed to enforce a foreign award relating to gambling

debt in Jordan, nor is it allowed to enforce registration ofdebt in Jordan, nor is it allowed to enforce registration ofa land according to foreign award because the Jordaniana land according to foreign award because the Jordanianlaws prohibit selling a land outside the landlaws prohibit selling a land outside the landdepartments.departments.

continuedcontinued


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* DISCRETION TO ADJOURN THE DECISION* DISCRETION TO ADJOURN THE DECISIONON ENFORCEMENT : ARTICLE VION ENFORCEMENT : ARTICLE VI

in order to again a better understanding of setting asidein order to again a better understanding of setting asideand suspension in the meaning of article V(and suspension in the meaning of article V(11)(e) , it is)(e) , it isnecessary to take article VI of the convention intonecessary to take article VI of the convention intoaccount, which reads:account, which reads:

" If an application for the setting aside or suspension of" If an application for the setting aside or suspension ofthe award has been made to a competent authoritythe award has been made to a competent authorityreferred to in article V(referred to in article V(11)(e), the authority before which)(e), the authority before whichthe award is sought to be relied upon may, if itthe award is sought to be relied upon may, if itconsiders it proper, adjourn the decision on theconsiders it proper, adjourn the decision on the

enforcement of the award and may also, on theenforcement of the award and may also, on theapplication of the party claiming enforcement of theapplication of the party claiming enforcement of theaward, order the other party to give suitable security."award, order the other party to give suitable security."


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Adjournment of the decision onAdjournment of the decision onenforcementenforcement

article VI from NYC provides of the adjournment of thearticle VI from NYC provides of the adjournment of thedecision on enforcement of the award in cases where andecision on enforcement of the award in cases where anapplication for the setting aside or suspension of theapplication for the setting aside or suspension of theaward has been made. Whether the court should adjournaward has been made. Whether the court should adjournthe decision on enforcement is a question of fact and ofthe decision on enforcement is a question of fact and oflaw. The convention uses the term if it consider proper,law. The convention uses the term if it consider proper,thus suggestion that the competent authority may use itsthus suggestion that the competent authority may use itsdiscretion when deciding whether adjourn the decisiondiscretion when deciding whether adjourn the decisionon enforcement . the same applies when ruling on aon enforcement . the same applies when ruling on arequest to order the other party to provide suitablerequest to order the other party to provide suitable

security . the usual test seems to be whether thesecurity . the usual test seems to be whether theenforcement court considers it likely that, on the basis ofenforcement court considers it likely that, on the basis ofthe arguments presented, the award will be set aside orthe arguments presented, the award will be set aside orsuspended in the country of origin.suspended in the country of origin.


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APPLICATION OF NATIONALAPPLICATION OF NATIONALLAW OR OTHER TREATY :LAW OR OTHER TREATY :

Article VII of the NYC reads as follows :Article VII of the NYC reads as follows : " 1. The provisions of the present Convention shall not affect the" 1. The provisions of the present Convention shall not affect the

validity of multilateral or bilateral agreements concerning thevalidity of multilateral or bilateral agreements concerning therecognition and enforcement of arbitral awards entered into by therecognition and enforcement of arbitral awards entered into by the

Contracting States nor deprive any interested party of any right heContracting States nor deprive any interested party of any right hemay have to avail himself of an arbitral award in the manner andmay have to avail himself of an arbitral award in the manner andto the extent allowed by the law or the treaties of the country whereto the extent allowed by the law or the treaties of the country wheresuch award is sought to be relied upon.such award is sought to be relied upon.

2. The Geneva Protocol on Arbitration Clauses of 19232. The Geneva Protocol on Arbitration Clauses of 1923[2][2]and theand theGeneva Convention on the Execution of Foreign Arbitral Awards ofGeneva Convention on the Execution of Foreign Arbitral Awards of19271927[3][3]shall cease to have effect between Contracting States onshall cease to have effect between Contracting States on

their becoming bound and to the extent that they become bound, bytheir becoming bound and to the extent that they become bound, bythis Convention."this Convention."


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More favorable right provisionMore favorable right provision

ParagraphParagraph 11 permits a party to base is request for thepermits a party to base is request for theenforcement of an arbitral award or an arbitralenforcement of an arbitral award or an arbitralagreement either on national law or onagreement either on national law or on

bilateral/multilateral treaties . by providing solution forbilateral/multilateral treaties . by providing solution for

awards that cannot be enforced under the NYC, thisawards that cannot be enforced under the NYC, thisprovision attempts to promote the enforceability of asprovision attempts to promote the enforceability of asmany awards as possible. On the order hand , nonmany awards as possible. On the order hand , non--uniform application of the NYC in matters ofuniform application of the NYC in matters ofenforcement leads to uncertainty as to which awards areenforcement leads to uncertainty as to which awards are

enforceable . in practice, national law or otherenforceable . in practice, national law or otherinternational treaties are rarely applied instead of theinternational treaties are rarely applied instead of theNYC because the NYC conditions are usually the mostNYC because the NYC conditions are usually the mostfavorable .favorable .


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National LawNational Law

Application of the NYC does not replaceApplication of the NYC does not replacenational rules governing the enforcementnational rules governing the enforcementof foreign arbitral award; however,of foreign arbitral award; however,national rules may apply when thenational rules may apply when theconditions relating to recognition andconditions relating to recognition andenforcement contained therein are moreenforcement contained therein are more

favorable .favorable .


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Recognition and Enforcement of Arbitral Award الاعتراف بالاحكام الاجنبية و تنفيذها