Autonomous Versus Domestic Concepts under the New York Convention / edited by Franco Ferrari and Friedrich Rosenfeld

Format:

Book

Contributor:

Ferrari, Franco.

Rosenfeld, Friedrich.

Language:

English

Subjects (All):

Arbitration (International law).

Physical Description:

1 online resource (342 pages)

Edition:

1st ed.

Place of Publication:

Alphen aan den Rijn : Wolters Kluwer Law International, 2021.

Summary:

International Arbitration Law Library # 61 The 1958 New York Convention is universally acclaimed as one of the most important instruments on international commercial arbitration. Although the Convention ensures that contracting States cannot justify failure to comply with their treaty obligations by reference to domestic law, the courts of different contracting States apply the Convention differently. This diverging case law arises from uncertainty as to whether certain concepts employed in the Convention must be construed autonomously or in light of domestic law. This incomparable analysis of the New York Convention as an instrument of uniform law presents insightful contributions by some of the world's most distinguished academics and practitioners in the field of arbitration and is sure to significantly contribute to arbitral practice and jurisprudence in the Convention's more than 160 contracting States. With extensive reference to case law from major arbitration hubs, the contributors examine the Convention with the aim of identifying the boundaries between autonomous and domestic concepts. Key elements covered include the following: the role of private international law under the Convention; notions of arbitrability and arbitral award; procedures for the enforcement of awards; nullity, invalidity, and conflict of laws under Articles II(3) and V(1)(a); the incapacity defence under Article V(1)(a); deviations from procedure; autonomous boundaries as to what falls under the issue of scope; and public policy under the Convention. The first and only resource of its kind, this book provides an invaluable clarification of the extent to which the Convention leaves room for the application of domestic law and, if so, how to determine which particular domestic law may be applicable. It will be welcomed by counsel, judges, arbitrators, and academics throughout the States that have signed the New York Convention.

Contents:

Intro

Half-Title Page

Title Page

Copyright Page

Editors

Contributors

Summary of Contents

Table of Contents

Preface

CHAPTER 1 The New York Convention as an Instrument of International Law

1.01 INTRODUCTION

1.02 INTERPRETATION AND DISPUTE SETTLEMENT

[A] Decentralized Application and Interpretation

[B] The Application and Interpretation of the New York Convention by National Courts as a Form of Trans-judicial Dialogue?

1.03 RESERVATIONS

[A] Non-retroactivity of New York Convention Obligations

[B] Application of the New York Convention to Awards Made in Non-Contracting States

[C] National (Constitutional) Law Reservations

1.04 CONCLUSION

CHAPTER 2 Uniform Interpretation: What Is Being Done?

2.01 INTRODUCTION

2.02 UNIFORM INTERPRETATION: DEFINITION AND OBJECTIVE

2.03 OFFICIAL EFFORTS AT UNIFORM INTERPRETATION: THE EARLY YEARS

2.04 OFFICIAL EFFORTS AT UNIFORM INTERPRETATION: EARLY INITIATIVES

2.05 OFFICIAL EFFORTS AT UNIFORM INTERPRETATION: CONSOLIDATION

2.06 A METHODOLOGY FOR FOREIGN UNIFORM LAW PRECEDENTS

2.07 CONCLUSION

CHAPTER 3 The Notion of 'Arbitral Award'

3.01 INTRODUCTION

3.02 AUTONOMOUS INTERPRETATION OF THE NEW YORK CONVENTION: REALITY OR FICTION?

3.03 THE LACK OF A UNIFORM CONCEPT OF THE ARBITRAL AWARD IN THE NEW YORK CONVENTION AND THE UNCITRAL MODEL LAW

3.04 DIFFERENT NATIONAL CONCEPTS

[A] Arbitral Awards in French Law

[B] Arbitral Awards in German Law (Section 1055 ZPO)

[C] Arbitral Awards in Italian Law

[D] Arbitral Awards in English Law

[E] Arbitral Awards in US Law

3.05 FEASIBILITY OR DESIRABILITY OF AN AUTONOMOUS NOTION OF ARBITRAL AWARD UNDER THE NEW YORK CONVENTION.

[A] The Interface of International Commercial Arbitration with National Provisions and the Feasibility of an Autonomous Notion of Arbitral Award

[B] Is an Autonomous Notion of Arbitral Award under the New York Convention Desirable?

CHAPTER 4 Procedures for the Enforcement of New York Convention Awards

4.01 ARTICLE III ENFORCEMENT AND RELATED PROCEDURAL ISSUES

[A] What Is a "Rule of Procedure" under Article III?

[B] Can a Procedural Issue Become a Problematic Limitation on the Application of Article III?

4.02 POTENTIALLY PROBLEMATIC PROCEDURAL ISSUES UNDER ARTICLE III

[A] Jurisdiction of Courts

[1] Subject-Matter Jurisdiction

[2] Personal Jurisdiction

[B] Standing

[C] Forum Non Conveniens

[D] Lis Pendens

[E] Claim and Issue Preclusion

[1] Claim Preclusion

[2] Issue Preclusion

[F] Set-off of Claims

[G] Sovereign Immunity

[H] Statute of Limitations

[I] Damages

[J] Currency and Interest

4.03 CONCLUSION

CHAPTER 5 Four Roads Diverged in a Wood: Exploring the Various Interpretations of Article III of the 1958 New York Convention

5.01 INTRODUCTION

5.02 A SURVEY OF THE PROCEDURAL MECHANISMS IN CONTRACTING STATES THAT MAY HINDER THE RECOGNITION AND ENFORCEMENT OF A FOREIGN ARBITRAL AWARD

[A] Personal Jurisdiction

[B] Statute of Limitations

5.03 THREE POSSIBLE INTERPRETATIONS OF THE NEW YORK CONVENTION

[A] Article V Is Exhaustive, Hence Procedural Rules Such as Personal Jurisdiction and Time Limits Cannot Be Applied under Article III since They Would Lead to the Denial of Recognition and Enforcement of Foreign Arbitral Awards.

[B] Procedural Doctrines Applicable via Article III May Be Applied Even If They Lead to the Denial of Recognition and Enforcement of Foreign Arbitral Awards If They Fall Within the "Public Policy" Exception in Article V(2)(b)

[C] Article III Allows Contracting States to Independently Decide What "Rules of Procedure" Will Be Applied to Refuse the Enforcement of an Award

5.04 THE FOURTH AND BETTER VIEW: PROCEDURAL RULES THAT MAY LEAD TO THE DENIAL OF RECOGNITION AND ENFORCEMENT SHOULD ONLY BE APPLIED UNDER ARTICLE III IF THEY ARE WIDELY APPLIED BY OTHER CONTRACTING STATES OR SIGNIFICANTLY FURTHER THE INTEREST OF THE FORUM

5.05 CONCLUSION

CHAPTER 6 The Formal Requirements for Enforcing an Arbitral Award under the 1958 New York Convention, Between Autonomous Interpretation and References to Domestic Legal Systems

6.01 THE PURSUIT OF AN AUTONOMOUS INTERPRETATION OF INTERNATIONAL CONVENTIONS AND ITS RELEVANCE FOR THE NEW YORK CONVENTION

6.02 AUTONOMOUS INTERPRETATION AND REFERENCES TO DOMESTIC LEGAL SYSTEMS: PROBLEMS ARISING IN RESPECT OF LACUNAE

6.03 THE INSUFFICIENCY OF A REFERENCE TO THE GENERAL PRINCIPLES INHERENT IN THE RELEVANT CONVENTION

6.04 SUITABLE CRITERIA FOR SELECTING THE LAW APPLICABLE IN THE CONTEXT OF ARTICLE IV OF THE NEW YORK CONVENTION

6.05 POLICY CONSIDERATIONS UNDERPINNING EITHER SOLUTION

6.06 CONCLUDING REMARKS

CHAPTER 7 Nullity, Invalidity, the Conflict of Laws and Articles II(3) and V(1)(A) of the New York Convention

7.01 INTRODUCTION: UNIFORM INTERPRETATION AND PRINCIPLES OF THE CONFLICT OF LAWS

7.02 ARTICLE II(3) OF THE NEW YORK CONVENTION AND ITS RELATIONSHIP WITH THE CONFLICT OF LAWS PROVISION IN ARTICLE V(1)(A), AND THE APPLICABLE CONFLICT OF LAWS RULES

[A] Australia

[B] United States

[1] Insurance

[2] Crew Members

[C] ALI Restatement

[D] England.

7.03 THE MEANING OF NULL AND VOID, INOPERATIVE OR INCAPABLE OF BEING PERFORMED' IN ARTICLE II(3)

[A] 'Null and Void'

[B] 'Inoperative'

[C] 'Incapable of Being Performed'

7.04 ARTICLE V(1)(A) AND INVALIDITY

[A] Applicable Law

[B] Validity

7.05 FINAL CONSIDERATIONS

CHAPTER 8 The Incapacity Defense under Article V(1)(a) of the New York Convention

8.01 LEGISLATIVE HISTORY AND SCOPE OF THE INCAPACITY DEFENSE

8.02 THE LAW GOVERNING CAPACITY ISSUES

8.03 THE CHARACTERIZATION DILEMMA

8.04 CAPACITY VERSUS AUTHORITY

8.05 CAPACITY VERSUS ARBITRABILITY RATIONE PERSONAE

8.06 CONCLUDING REMARKS

CHAPTER 9 "Matters Beyond the Scope of the Submission to Arbitration"

9.01 SCOPE, CONSENT, AND INTERPRETATION

9.02 THE SUBMISSION TO ARBITRATION AND ARBITRAL EXCESS OF POWER

9.03 OUR LAW OF CONTRACT

9.04 DEFAULT RULES AND THE SCOPE OF THE AGREEMENT TO ARBITRATE

9.05 CHOICE OF LAW, MUNICIPAL LAW, AND THE CONVENTION

9.06 FINDING THE CHOSEN LAW

9.07 THE DUTY TO RECOGNIZE AN AGREEMENT [] TO SUBMIT TO ARBITRATION UNDER ARTICLE II

9.08 FRENCH LAW AND THE Règle Materielle"

9.09 THE U.S. AND FEDERAL COMMON LAW

9.10 CODA: THE USES OF MUNICIPAL LAW

CHAPTER 10 The "Scope" of the Submission to Arbitration

10.01 INTRODUCTION

10.02 THE INTERPRETATION OF ARTICLE V(1)(C) AND ARTICLE II OF THE NEW YORK CONVENTION

10.03 THE OBJECTIVE SCOPE OF THE SUBMISSION TO ARBITRATION AND THE INTERPRETATION OF THE ARBITRATION AGREEMENT

[A] General Principle

[B] The Law Applicable to the Interpretation of the Arbitration Agreement under Article V(1)(c) of the New York Convention

[C] The Law Applicable to the Interpretation of the Arbitration Agreement under Article II(3) of the New York Convention

10.04 THE PERSONAL SCOPE OF THE SUBMISSION TO ARBITRATION.

10.05 THE TEMPORAL SCOPE OF THE SUBMISSION TO ARBITRATION

10.06 EXCESS OF MANDATE: DECISIONS ULTRA PETITA

[A] Relevance of Ultra Petita as a Defense Against Enforcement

[B] Determining Whether a Case of Ultra Petita Exists

10.07 THE SCOPE OF THE SUBMISSION TO ARBITRATION AND THE PROHIBITION OF RVISION AU FOND

[A] General

[B] "Manifest Disregard of the Law"

[C] Remedies Specifically Excluded in the Contract

[D] Mistakes in Determining the Applicable Law

10.08 CONCLUSION

CHAPTER 11 The Interplay of Autonomous Concepts and Municipal Law under Article V(1)(d) of the New York Convention

11.01 INTRODUCTION

11.02 THE AUTONOMOUS CONCEPTS IN ARTICLE V(1)(D)

[A] Events That Occur Prior to the Initiation of the Arbitration Proceedings Are Not Matters of Procedure or of the Composition of the Arbitral Authority

[B] Issues of Validity Are Distinct from Matters of Procedure or of the Composition of the Arbitral Authority

[C] Article V(1)(d) Does Not Cover Issues That Go to the Substance of the Dispute

[D] The Deviation from the Applicable Procedure or Composition of the Arbitral Authority Must Meet a Certain Threshold

[E] There Is Some Support for the Proposition That Courts Must Apply Rules of Estoppel in the Administration of Article V(1)(d)

11.03 THE ROLE OF MUNICIPAL LAW UNDER ARTICLE V(1)(D)

[A] Municipal Law Governs the Existence and Validity of the Parties' Agreement on the Arbitral Procedure or the Composition of the Arbitral Authority

[B] Municipal Law Governs the Interpretation of the Parties' Agreement on the Arbitral Procedure and on the Composition of the Arbitral Authority

[C] Municipal Law Is Not a Yardstick to Examine Whether Parties Are Allowed to Conclude an Agreement on the Procedure or on the Composition of the Arbitral Authority.

[1] The Canon of Treaty Interpretation Set Forth in the VCLT.

Notes:

Description based on publisher supplied metadata and other sources.

ISBN:

94-035-3175-4

94-035-3174-6

OCLC:

1245418819