This connection between the cross-border instrument and its application through
state courts is interesting, as it depicts an example of regulating private dispute
resolution by entwining it with the state’s monopoly on violence.
For example, Article 1 of The New York Convention on enforcement of
arbitral awards states that:
This Convention shall apply to the recognition and enforcement of arbitral
awards made in the territory of a State other than the State where the
recognition and enforcement of such awards are sought, and arising out of
differences between persons, whether physical or legal. It shall also apply to
arbitral awards not considered as domestic awards in the State where their
recognition and enforcement are sought.
As Article 1 demonstrates, the Convention instrument makes a distinction
between domestic and foreign arbitral awards. Domestic awards are enforced in
accordance with the national legislation, but enforcement of foreign awards
requires the multilateral instrument between the state where the award is given
and the state where it will be enforced. A point of interest is that the reference to
nation-states is already incorporated to the definitions of ‘domestic’ and ‘foreign’.
Accordingly, states are the actors behind the creation of Convention instruments
and carry the responsibilities that follow from these instruments. This status is
based on their sovereign power to agree on limitations to their territorial
jurisdiction by granting legal effects to foreign awards and to simultaneously
expand the effects of their domestic awards across their borders.
According to Article 3 of the New York Convention:
Each Contracting State shall recognize arbitral awards as binding and enforce
them in accordance with the rules of procedure of the territory where the
award is relied upon, under the conditions laid down in the following
articles. There shall not be imposed substantially more onerous conditions
or higher fees or charges on the recognition or enforcement of arbitral
awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
Articles 1 and 3 illustrate that the enforcement of arbitral awards within the
framework of NY Convention requires cooperation between the Convention and
national systems. The authority that recognises the award as enforceable is the
national court of jurisdiction in the state where enforcement is sought. The
uniform interpretation of both the Convention and its interface with various
national legal systems is facilitated by collecting relevant case law of its
application.
The NY Convention was intended to be a relatively simple and straightforward
document for improving cross-border enforcement of arbitral awards. The reason
behind this was to facilitate its implementation to different jurisdictions and
application of its provisions within Contracting States. The simplest method of
124 Three quests for justification
state courts is interesting, as it depicts an example of regulating private dispute
resolution by entwining it with the state’s monopoly on violence.
For example, Article 1 of The New York Convention on enforcement of
arbitral awards states that:
This Convention shall apply to the recognition and enforcement of arbitral
awards made in the territory of a State other than the State where the
recognition and enforcement of such awards are sought, and arising out of
differences between persons, whether physical or legal. It shall also apply to
arbitral awards not considered as domestic awards in the State where their
recognition and enforcement are sought.
As Article 1 demonstrates, the Convention instrument makes a distinction
between domestic and foreign arbitral awards. Domestic awards are enforced in
accordance with the national legislation, but enforcement of foreign awards
requires the multilateral instrument between the state where the award is given
and the state where it will be enforced. A point of interest is that the reference to
nation-states is already incorporated to the definitions of ‘domestic’ and ‘foreign’.
Accordingly, states are the actors behind the creation of Convention instruments
and carry the responsibilities that follow from these instruments. This status is
based on their sovereign power to agree on limitations to their territorial
jurisdiction by granting legal effects to foreign awards and to simultaneously
expand the effects of their domestic awards across their borders.
According to Article 3 of the New York Convention:
Each Contracting State shall recognize arbitral awards as binding and enforce
them in accordance with the rules of procedure of the territory where the
award is relied upon, under the conditions laid down in the following
articles. There shall not be imposed substantially more onerous conditions
or higher fees or charges on the recognition or enforcement of arbitral
awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
Articles 1 and 3 illustrate that the enforcement of arbitral awards within the
framework of NY Convention requires cooperation between the Convention and
national systems. The authority that recognises the award as enforceable is the
national court of jurisdiction in the state where enforcement is sought. The
uniform interpretation of both the Convention and its interface with various
national legal systems is facilitated by collecting relevant case law of its
application.
The NY Convention was intended to be a relatively simple and straightforward
document for improving cross-border enforcement of arbitral awards. The reason
behind this was to facilitate its implementation to different jurisdictions and
application of its provisions within Contracting States. The simplest method of
124 Three quests for justification