I now pronounce you ‘null and void’: manner of determination and the applicable law under the New York Convention

2021 ◽  
Author(s):  
Stefan Pislevik
Keyword(s):  
New York ◽  
International Arbitration ◽  
Applicable Law ◽  
New York Convention

Abstract The phrase ‘null and void, inoperative or incapable of being performed’ contained in Article II(3) of the New York Convention has attracted relatively little attention in the international arbitration community. It nonetheless retains the potential to have a significant impact on arbitration agreements. This article considers the meaning of ‘null and void’ and highlights the current varied understandings and applications of this term, before re-iterating support for an application of an internationally neutral understanding of the term. What this article seeks to ultimately achieve is to provoke further consideration of the terms ‘null and void’, with a view to ensuring greater clarity and uniformity in its understanding and application in the long term.

1 The Law Applicable to International Arbitration in New York

2016 ◽  
Author(s):  
Lindsey David M ◽  
Lahlou Yasmine
Keyword(s):  
New York ◽  
New York State ◽  
State Law ◽  
International Arbitration ◽  
Choice Of Law ◽  
York State ◽  
Applicable Law ◽  
Foreign Law ◽  
New York Convention ◽  
The U.S

This chapter focuses on applicable arbitration law in the context of arbitration agreements and awards that fall under the New York Convention or the Panama Convention, and how those two treaties interact with the U.S. Federal Arbitration Act (FAA), New York state law, and possibly foreign law in the context of international arbitration in New York. It first summarizes the FAA and explains FAA preemption of state law that is inconsistent with the FAA. The chapter then discusses the application of the Conventions and difficult issues that can arise when determining the applicable law. In particular, it focuses on choice of law issues that arise when enforcing the agreement to arbitrate under Article II of the New York Convention. U.S. courts have struggled to employ a consistent choice of law analysis when interpreting the “null and void” provisions in Article II(3) of the Convention.

5 Applicable Law

2017 ◽  
Author(s):  
Kim Joongi
Keyword(s):  
New York ◽  
Default Rule ◽  
Private Law ◽  
International Arbitration ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
International Private Law ◽  
The Law ◽  
New York Convention

This chapter focuses on the choice and enforcement of applicable law in arbitration agreements. In international arbitration cases, Article V(1)(a) of the New York Convention provides that the validity of an arbitration agreement should be first determined under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. Hence, if the parties have not chosen the applicable law for an arbitration agreement, ‘the default rule’ is that the law of the place of arbitration shall apply. This chapter addresses the question as it applies to Korea and considers cases where conflict or a misapplication of the law is in effect. Moreover, it also covers several cases in which courts have applied the Act on International Private Law (AIPL), Korea’s conflict-of-laws statute, to determine the applicable law.

scholarly journals Exploring the concept of arbitral awards under the New York Convention

2021 ◽  
pp. 205556362110228
Author(s):  
Konstantina Kalaitsoglou
Keyword(s):  
New York ◽  
International Arbitration ◽  
Arbitral Award ◽  
New York Convention ◽  
Legal Concepts

Despite its importance, the arbitral award was left undefined by the New York Convention and most other major international arbitration laws. This has inevitably led to varying opinions regarding its nature and confusion regarding the thresholds that differentiate arbitral awards from other tribunal decisions. Partly in response to the above, there has been discussion to initiate the revising process of the Convention. Responses have been divided. In this paper, the author finds that revision will not bring the desired results, while the Convention itself has equipped international arbitration practice with tools to overcome obscure legal concepts such as the arbitral award.

Foreign Arbitral Awards and Foreign Judgments Based upon Such Awards

2018 ◽  
pp. 126-143
Author(s):  
V.C. Govindaraj
Keyword(s):  
New York ◽  
Supreme Court ◽  
Domestic Court ◽  
Applicable Law ◽  
Arbitral Award ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
New York Convention

The New York Convention on foreign arbitration, by Article V (1) (e) lays down a procedural norm that an arbitral award, duly rendered, attains finality if, and only if, a domestic court endorses it. This procedural norm was endorsed by the Supreme Court of India in two leading cases. The ratio that the Supreme Court employed in the above-mentioned cases is in accordance with Section 17 of the Indian Arbitration Act, 1940. Such an endorsement by a local court of the forum that was required under Article V (1) (e) of the New York Convention was done away with by the Arbitration and Conciliation Act, 1996 under Section 35. The forum for the conduct of arbitration in the country of the applicable law also is not indispensable; and it is for the court exercising jurisdiction to determine, on the basis of balance of convenience, the place for the conduct of arbitration, taking into consideration the local status of the parties, such as that one of the parties cannot afford to go to the country of the applicable law, coupled with the availability of evidence, oral and documentary, at the place where the court is exercising jurisdiction.

Part 1 Fundaments of Arbitration in Brazil, 2 Comments of the Brazilian Arbitration Law

2020 ◽  
Author(s):  
Sester Peter
Keyword(s):  
New York ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

This chapter examines the Brazilian Arbitration Law (BAL) of 1996. The BAL is a standalone act encompassing roughly 40 articles. It is divided into eight chapters and is applicable to both domestic and international arbitration, except for Chapter VI (The Recognition and Enforcement of Foreign Awards), which is modelled on the New York Convention (NYC). Hence, the BAL legislator adopted a monistic approach. Consequently, the BAL contains no definition of domestic or international arbitration, but only defines the term foreign award. According to article 34, sole paragraph BAL, an award is considered a foreign award if it was rendered outside the territory of Brazil. The present translation of the BAL builds on the terminology of the UNCITRAL Model Law on Commercial Arbitration and the NYC because both documents inspired the authors of the BAL and are cornerstones of international arbitration. This chapter of the book then provides comments on the BAL article by article.

scholarly journals A Comparative Study of Executive Guaranty of Arbitration at International Law (International Court of Arbitration and the New York Convention) and Iranian Law

2016 ◽  
Vol 9 (5) ◽  
pp. 145
Author(s):  
Shila Taheri ◽  
Hassan Soleimani
Keyword(s):  
New York ◽  
International Trade ◽  
International Law ◽  
International Arbitration ◽  
Trade Disputes ◽  
Iranian Law ◽  
International Court ◽  
Arbitration Procedure ◽  
Research Findings ◽  
New York Convention

The present study is an attempt to analyze the executive guaranty of arbitration at international law within internal Iranian law and the international law. The present research findings show that within internal law in case the arbitration verdict is not carried out voluntarily then its obligatory administration is under the support of law and has legal executive guaranty. But arbitration privilege at administration stage is not limited to the fact that any arbitration verdict is to be performed without any questioning but a significant aspect of this privilege is to prevent the administration of a verdict which is altered or creased and openly against the facts or the law. In international law the international commerce chamber arbitration system is the most important international trade arbitration system in contemporary period and has always been the influential forerunner in international arbitration and has had a significant role in the development and expansion of arbitration method of settling international trade disputes. Both the chamber arbitration rules and arbitration verdicts which are issued under the chamber arbitration framework are among the most important legal resources in terms of international arbitration and are considered as the constructive and formative factors of international arbitration procedure. It should be mentioned that commerce chamber arbitration organization lacks the executive tools to execute the arbitration verdicts. But in spite of that on the basis of arbitration rules article 35 the arbitration authority and the chamber arbitration court makes attempts to execute the verdict and the purpose is mostly the official measures rather than judicial or administrative. Principally, the execution of arbitration verdicts depend on state rules and regulations where from the identification and administration of verdict is requested.

Transnational Public Policy in International Arbitration

2020 ◽  
pp. 119-149
Author(s):  
Stavros Brekoulakis
Keyword(s):  
Public Policy ◽  
New York ◽  
Clear Distinction ◽  
Historical Evolution ◽  
International Arbitration ◽  
Rules And Principles ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
Almost All

This chapter focuses on the role of transnational public policy in international arbitration. Public policy is a key concept for international arbitration because it has provided the underpinning foundations for the development of theories on transnational autonomy of arbitration. Moreover, it is enshrined in the 1958 New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards as well as almost all national laws as a ground to resist enforcement of arbitral awards. The chapter then traces the historical evolution of transnational public policy and provides an overview of its legal function and rules and principles. The clear distinction between legal and non-legal conceptions of transnational public policy matters because it has important implications on the judicial function of tribunals in international arbitration.

scholarly journals Recognition and Enforcement of Arbitration Awards in Kazakhstan

2018 ◽  
pp. 358-367
Keyword(s):  
Public Policy ◽  
New York ◽  
General Meeting ◽  
Civil Procedure ◽  
International Arbitration ◽  
Procedure Code ◽  
Recognition And Enforcement ◽  
The Law ◽  
The Republic ◽  
New York Convention

Arbitration, as an alternative way to resolve commercial disputes, has been used in Kazakhstan for more than twenty years. Arbitration Court is governed by Civil Procedure Code, The Law On Enactments and the Regulatory Resolution. The expansion of the list of documents in the Regulatory Resolution does not comply with the requirements of the New York Convention and therefore, the purpose of our study is to clarify it. The research institute of private law of the Caspian University together with Kazakhstan International Arbitration prepared proposals for making amendments and supplements to the Law On Arbitration and the CPC at the request of the Arbitration Chamber of Kazakhstan. Most of the proposals developed by us were approved and included in the Draft Law of the Republic of Kazakhstan On Amendments and Supplements to Certain Enactments of the Republic of Kazakhstan On Enhancing Protection of Title and Arbitration after discussion at the meetings of the General Meeting members of Arbitration Chamber of Kazakhstan. It was proposed to bringing in compliance with the New York Convention some paragraphs of the Art. 255 and the Art. 504 of CPC and a series of articles in the Law on arbitration. In this article also given answers to some questions of the arbitration court regarding corporate and marriage dispute, as well as an issue of contradiction public policy.

Practitioner's Handbook on International Commercial Arbitration

2019 ◽  
Keyword(s):  
New York ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Arbitration ◽  
General Introduction ◽  
Comprehensive Overview ◽  
Commercial Arbitration ◽  
Model Law ◽  
New York Convention

This book provides reports on the arbitration systems and laws of thirteen countries in addition to commentaries on the arbitration rules of the International Criminal Court (ICC), the International Centre for Dispute Resolution (ICDR), the London Court of International Arbitration (LCIA), and UNCITRAL Arbitration Rules as well as on the UNCITRAL Model Law and the New York Convention. This comprehensive overview of the key arbitral jurisdictions and the most important arbitral rules and conventions makes it a unique and indispensable work that belongs on the desk of each practitioner. The book combines a practical approach with in-depth legal research and analyses of important national and international case law. This new edition is written to meet the needs of both the non-specialist lawyer requiring quick and useful information on a particular legal system or set of rules or who is interested in a concise general introduction into the law of international arbitration, and the experienced arbitration practitioner looking for well-founded information on a particular issue.

GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC (U.S. Sup. Ct.)

2020 ◽  
Vol 59 (6) ◽  
pp. 911-921
Author(s):  
Steven Skulnik
Keyword(s):  
New York ◽  
Supreme Court ◽  
Power Conversion ◽  
International Arbitration ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
The U.S

On June 1, 2020, the U.S. Supreme Court decided GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC. The decision is significant for its holding that nothing in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention or the New York Convention) or the Federal Arbitration Act (the FAA) prohibits courts from deciding that non-signatories may be bound by or enforce international arbitration agreements based on contract, agency, equity, or related principles.

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