The International Currency of Arbitral Awards

In more than one hundred and thirty countries, agreements to arbitrate are enforced under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Often referred to as the “New York Convention” (by virtue of its city of adoption) or the “United Nations Convention” (after the sponsoring organization), this treaty implements business managers’ agreements to waive recourse to otherwise competent national courts in favor of binding private dispute resolution. The Convention gives effect to both the arbitration clause and the resulting award even in countries that have resisted analogous treaties to enforce court selection agreements and foreign judgments.\nMore than a half century ago, the International Chamber of Commerce (ICC) issued a report underscoring the commercial community’s need for arbitral awards that are transportable from one country to another, to liberate foreign arbitral awards from burdensome “double exequatur,” enforcement procedures which had require judicial recognition orders in both the country where the award was made and the enforcement forum. Thus an award rendered in Boston would have had to be confirmed by a court in Massachusetts before enforcement in Montréal.\nThe ICC proposed streamlining award enforcement, shifting key burdens of proof from the party seeking award enforcement to the party resisting its recognition. For example, under the prior treaty the party relying on the award had to present documentary evidence that the award had not been annulled where rendered. In contrast, the ICC draft treaty required that award annulment be invoked by the party resisting recognition.\nIn its final form, the New York Convention operates both to enforce arbitration agreements and to promote recognition of awards at the place where the loser has assets. The Convention requires courts of contracting states to refer the parties to arbitration when a dispute is subject to a written arbitration agreement that is not “null and void, inoperative or incapable of being performed.” Although this duty to refer the parties to arbitration will apply to judicial actions, the arbitration clause will not necessarily bar administrative proceedings.

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