Esther Yang, et al v. Dongwon Industries Co.

Filing

FILED OPINION (RAYMOND C. FISHER, RICHARD A. PAEZ and JACQUELINE H. NGUYEN) Costs shall be taxed against Dongwon. AFFIRMED. Judge: JHN Authoring. FILED AND ENTERED JUDGMENT. [10672450]

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Convention on the Recognition and
Enforcement of Foreign Arbitral Awards
(New York, 1958)

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UNITED NATIONS

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The United Nations Commission on International Trade Law (UNCITRAL)
is a subsidiary body of the General Assembly. It plays an important role in
improving the legal framework for international trade by preparing international
legislative texts for use by States in modernizing the law of international trade
and non-legislative texts for use by commercial parties in negotiating
transactions. UNCITRAL legislative texts address international sale of goods;
international commercial dispute resolution, including both arbitration and
conciliation; electronic commerce; insolvency, including cross-border insolvency;
international transport of goods; international payments; procurement and
infrastructure development; and security interests. Non-legislative texts include
rules for conduct of arbitration and conciliation proceedings; notes on organizing
and conducting arbitral proceedings; and legal guides on industrial construction
contracts and countertrade.

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Further information may be obtained from:
UNCITRAL secretariat, Vienna International Centre,
P.O. Box 500, 1400 Vienna, Austria
Telephone: [phone]
Internet: www.uncitral.org

Telefax: ([phone]
E-mail: [e-mail]

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UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

Convention on the Recognition and
Enforcement of Foreign Arbitral Awards
(New York, 1958)

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UNITED NATIONS
New York, 2015

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NOTE
Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United
Nations document.
The publication reproduced here is a revised version in which part three of
the original publication of 2009 has been removed.
Material in this publication may be freely quoted or reprinted, but
acknowledgement is requested, together with a copy of the publication
containing the quotation or reprint.

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Contents
Page

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Part one.

United Nations Conference on International Commercial
Arbitration, New York, 20 May–10 June 1958 . . . . . . . . . . . . . . . . 5

Excerpts from the Final Act of the United Nations Conference on
International Commercial Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Part two.

Recommendation regarding the interpretation of article II,
paragraph 2, and article VII, paragraph 1, of the Convention
on the Recognition and Enforcement of Foreign .Arbitral
Co
ries. . . .7
Awards . . . . . . . . . . . . . . . . . . . . . . . Indus. . . .24,. 2.0.1 . . . . . . . . . . 15
.....t

won

ber

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General Assembly resolution v61/33nof 4 Novem 2006 . . . . . . . . . . . . . . 15
. Do on December
ng
a
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Recommendation d in Y athe iinterpretation of article II, paragraph 2,
regarding h ve
cite 6881 1,rc the Convention on the Recognition and
and article VII, paragraph of
15-1
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Enforcementoof Foreign Arbitral Awards, done in New York, 10 June
1958, adopted by the United Nations Commission on International
Trade Law on 7 July 2006 at its thirty-ninth session . . . . . . . . . . . . . . . . . . 17

iii

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Introduction
Objectives
Recognizing the growing importance of international arbitration as a means
of settling international commercial disputes, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention) seeks
to provide common legislative standards for the recognition of arbitration
agreements and court recognition and enforcement of foreign and nondomestic arbitral awards. The term “non-domestic” appears to embrace
awards which, although made in the state of enforcement, are treated as
“foreign” under its law because of some foreign element in the proceedings,
e.g. another State’s procedural laws are applied.
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The Convention’s principal aim is that on Indu and 24
foreign er non-domestic arbitral
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awards will not be discriminatedDagainst Novem obliges Parties to ensure
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jurisdiction in the same way as domestic awards. An ancillary aim of the
6
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o.require courts of Parties to give full effect to arbitration
Convention is N
to
agreements by requiring courts to deny the parties access to court in contravention of their agreement to refer the matter to an arbitral tribunal.

Key provisions
The Convention applies to awards made in any State other than the State in
which recognition and enforcement is sought. It also applies to awards “not
considered as domestic awards”. When consenting to be bound by the
Convention, a State may declare that it will apply the Convention
(a) in respect to awards made only in the territory of another Party and
(b) only to legal relationships that are considered “commercial” under its
domestic law.
The Convention contains provisions on arbitration agreements. This aspect
was covered in recognition of the fact that an award could be refused
enforcement on the grounds that the agreement upon which it was based
might not be recognized. Article II (1) provides that Parties shall recognize
1

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written arbitration agreements. In that respect, UNCITRAL adopted, at its
thirty-ninth session in 2006, a Recommendation that seeks to provide guidance
to Parties on the interpretation of the requirement in article II (2) that an arbitration
agreement be in writing and to encourage application of article VII (1) to allow any
interested party to avail itself of rights it may have, under the law or treaties of
the country where an arbitration agreement is sought to be relied upon, to seek
recognition of the validity of such an arbitration agreement.
The central obligation imposed upon Parties is to recognize all arbitral awards
within the scheme as binding and enforce them, if requested to do so, under
the lex fori. Each Party may determine the procedural mechanisms that may be
followed where the Convention does not prescribe any requirement.
The Convention defines five grounds upon which recognition and enforcement may be refused at the request of the party against whom it is invoked.
The grounds include incapacity of the parties, invalidity of the arbitration
agreement, due process, scope of the arbitration agreement, jurisdiction of
the arbitral tribunal, setting aside or suspension of an award in the country
in which, or under the law of which, that award was made. The Convention
defines two additional grounds upon which the court may, on its own
o.
motion, refuse recognition and enforcement of strieaward. 17
an s C 0 Those grounds
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The Convention seeks in encourage
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in the greatest number 1 cases as possible. That purpose is achieved through
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article VII (1)Nof the Convention by removing conditions for recognition
and enforcement in national laws that are more stringent than the conditions
in the Convention, while allowing the continued application of any national
provisions that give special or more favourable rights to a party seeking to
enforce an award. That article recognizes the right of any interested party
to avail itself of law or treaties of the country where the award is sought
to be relied upon, including where such law or treaties offer a regime more
favourable than the Convention.

Entry into force
The Convention entered into force on 7 June 1959 (article XII).

How to become a party
The Convention is closed for signature. It is subject to ratification, and is
open to accession by any Member State of the United Nations, any other
2

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State which is a member of any specialized agency of the United Nations,
or is a Party to the Statute of the International Court of Justice (articles VIII
and IX).

Optional and/or mandatory declarations and notifications
When signing, ratifying or acceding to the Convention, or notifying a territorial extension under article X, any State may on the basis of reciprocity
declare that it will apply the Convention to the recognition and enforcement
of awards made only in the territory of another Party to the Convention. It
may also declare that it will apply the Convention only to differences arising
out of legal relationships, whether contractual or not, which are considered
as commercial under the national law of the State making such declaration
(article I).

Denunciation/Withdrawal
Any Party may denounce this Convention by a written notification to the
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Part one
UNITED NATIONS CONFERENCE ON INTERNATIONAL
COMMERCIAL ARBITRATION,
NEW YORK, 20 MAY–10 JUNE 1958
Excerpts from the Final Act of the United Nations Conference on
International Commercial Arbitration1
“1. The Economic and Social Council of the United Nations, by resolution
604 (XXI) adopted on 3 May 1956, decided to convene a Conference of
Plenipotentiaries for the purpose of concluding a convention on the recognition and enforcement of foreign arbitral awards, and to consider other pos.
sible measures for increasing the effectiveness of arbitration in the settlement
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“12. The Economic-16 Social Council, by its resolution convening the
and
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Conference, requested it to conclude a convention on the basis of the draft
convention prepared by the Committee on the Enforcement of International
Arbitral Awards, taking into account the comments and suggestions made by
Governments and non-governmental organizations, as well as the discussion at
the twenty-first session of the Council.
“13. On the basis of the deliberations, as recorded in the reports of the working parties and in the records of the plenary meetings, the Conference prepared
and opened for signature the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards which is annexed to this Final Act.
[…]
“16. In addition the Conference adopted, on the basis of proposals made
by the Committee on Other Measures as recorded in its report, the following
resolution:
1
The full text of the Final Act of the United Nations Conference on International Commercial
Arbitration (E/CONF.26/8Rev.1) is available at http://www.uncitral.org

5

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“The Conference,
“Believing that, in addition to the convention on the recognition and
enforcement of foreign arbitral awards just concluded, which would contribute to increasing the effectiveness of arbitration in the settlement of private
law disputes, additional measures should be taken in this field,
“Having considered the able survey and analysis of possible measures
for increasing the effectiveness of arbitration in the settlement of private law
disputes prepared by the Secretary-General (document E/CONF.26/6),
“Having given particular attention to the suggestions made therein for
possible ways in which interested governmental and other organizations may
make practical contributions to the more effective use of arbitration,
“Expresses the following views with respect to the principal matters
dealt with in the note of the Secretary-General:
“1. It considers that wider diffusion of information on arbitration laws,
practices and facilities contributes materially to progress in commercial
o.
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been done in
d
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“2. It recognizes the desirability of encouraging where necessary the
establishment of new arbitration facilities and the improvement of existing
facilities, particularly in some geographic regions and branches of trade; and
believes that useful work may be done in this field by appropriate governmental and other organizations, which may be active in arbitration matters,
due regard being given to the need to avoid duplication of effort and to
concentrate upon those measures of greatest practical benefit to the regions
and branches of trade concerned;
“3. It recognizes the value of technical assistance in the development
of effective arbitral legislation and institutions; and suggests that interested
Governments and other organizations endeavour to furnish such assistance,
within the means available, to those seeking it;
“4. It recognizes that regional study groups, seminars or working
parties may in appropriate circumstances have productive results; believes
that consideration should be given to the advisability of the convening of

2

For example, the Economic Commission for Europe and the Inter-American Council of Jurists.

6

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such meetings by the appropriate regional commissions of the United Nations
and other bodies, but regards it as important that any such action be taken
with careful regard to avoiding duplication and assuring economy of effort
and of resources;
“5. It considers that greater uniformity of national laws on arbitration
would further the effectiveness of arbitration in the settlement of private law
disputes, notes the work already done in this field by various existing
organizations,3 and suggests that by way of supplementing the efforts of
these bodies appropriate attention be given to defining suitable subject matter
for model arbitration statutes and other appropriate measures for encouraging
the development of such legislation;
“Expresses the wish that the United Nations, through its appropriate
organs, take such steps as it deems feasible to encourage further study of
measures for increasing the effectiveness of arbitration in the settlement of
private law disputes through the facilities of existing regional bodies and
non-governmental organizations and through such other institutions as may
be established in the future;

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“Suggests that any such steps be taken in strimanner 0that will assure
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“Requests that 5the Secretary-General submit this resolution to the
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appropriate organs

3
For example, the International Institute for the Unification of Private Law and the Inter-American
Council of Jurists.

7

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CONVENTION ON THE RECOGNITION AND ENFORCEMENT
OF FOREIGN ARBITRAL AWARDS

Article I
1. 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.
2. The term “arbitral awards” shall include not only awards made by
arbitrators appointed for each case but also those made by permanent arbitral
bodies to which the parties have submitted.
3. When signing, ratifying or acceding to this Convention, or notifying
extension under article X hereof, any State may on the basis of reciprocity
declare that it will apply the Convention to the recognition and enforcement of
.
awards made only in the territory of another ContractingoState. It may also
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Article II
1. Each Contracting State shall recognize an agreement in writing
under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not, concerning a subject
matter capable of settlement by arbitration.
2. The term “agreement in writing” shall include an arbitral clause
in a contract or an arbitration agreement, signed by the parties or contained
in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a
matter in respect of which the parties have made an agreement within the
meaning of this article, shall, at the request of one of the parties, refer the
parties to arbitration, unless it finds that the said agreement is null and void,
inoperative or incapable of being performed.
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Article III
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.

Article IV
1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at
the time of the application, supply:
(a) The duly authenticated original award or a duly certified copy
thereof;
(b) The original agreement referred to in article II o. a duly certified
or
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2. If the said award angagreement is
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recognition and enforcement of the award shall produce a translation of these
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documents into such language. The translation shall be certified by an official
or sworn translator or by a diplomatic or consular agent.

Article V
1. Recognition and enforcement of the award may be refused, at the
request of the party against whom it is invoked, only if that party furnishes
to the competent authority where the recognition and enforcement is sought,
proof that:
(a) The parties to the agreement referred to in article II were, under
the law applicable to them, under some incapacity, or the said agreement is
not valid 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;
or
(b) The party against whom the award is invoked was not given proper
notice of the appointment of the arbitrator or of the arbitration proceedings
or was otherwise unable to present his case; or
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(c) The award deals with a difference not contemplated by or not
falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided
that, if the decisions on matters submitted to arbitration can be separated
from those not so submitted, that part of the award which contains decisions
on matters submitted to arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral procedure
was not in accordance with the agreement of the parties, or, failing such
agreement, was not in accordance with the law of the country where the
arbitration took place; or
(e) The award has not yet become binding on the parties, or has been
set aside or suspended by a competent authority of the country in which,
or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be
refused if the competent authority in the country where recognition and
enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement
by arbitration under the law of that country; or ies Co. 7
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Article VI

If an application for the setting aside or suspension of the award has
been made to a competent authority referred to in article V (1) (e), the
authority before which the award is sought to be relied upon may, if it
considers it proper, adjourn the decision on the enforcement of the award
and may also, on the application of the party claiming enforcement of the
award, order the other party to give suitable security.

Article VII
1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and
enforcement of arbitral awards entered into by the Contracting States nor
deprive any interested party of any right he may have to avail himself of
an arbitral award in the manner and to the extent allowed by the law or the
treaties of the country where such award is sought to be relied upon.
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2. The Geneva Protocol on Arbitration Clauses of 1923 and the
Geneva Convention on the Execution of Foreign Arbitral Awards of 1927
shall cease to have effect between Contracting States on their becoming
bound and to the extent that they become bound, by this Convention.

Article VIII
1. This Convention shall be open until 31 December 1958 for signature
on behalf of any Member of the United Nations and also on behalf of any other
State which is or hereafter becomes a member of any specialized agency of the
United Nations, or which is or hereafter becomes a party to the Statute of the
International Court of Justice, or any other State to which an invitation has been
addressed by the General Assembly of the United Nations.
2. This Convention shall be ratified and the instrument of ratification
shall be deposited with the Secretary-General of the United Nations.

Article IX

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for accession to
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2. Accession 5-1 be effected by the deposit of an instrument of
shall
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accession withNthe Secretary-General of the United Nations.

Article X
1. Any State may, at the time of signature, ratification or accession,
declare that this Convention shall extend to all or any of the territories for
the international relations of which it is responsible. Such a declaration shall
take effect when the Convention enters into force for the State concerned.
2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take
effect as from the ninetieth day after the day of receipt by the Secretary-General
of the United Nations of this notification, or as from the date of entry into
force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not
extended at the time of signature, ratification or accession, each State
concerned shall consider the possibility of taking the necessary steps in order
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to extend the application of this Convention to such territories, subject,
where necessary for constitutional reasons, to the consent of the Governments of such territories.

Article XI
In the case of a federal or non-unitary State, the following provisions
shall apply:
(a) With respect to those articles of this Convention that come within
the legislative jurisdiction of the federal authority, the obligations of the
federal Government shall to this extent be the same as those of Contracting
States which are not federal States;
(b) With respect to those articles of this Convention that come within
the legislative jurisdiction of constituent states or provinces which are not,
under the constitutional system of the federation, bound to take legislative
action, the federal Government shall bring such articles with a favourable
recommendation to the notice of the appropriate authorities of constituent
states or provinces at the earliest possible moment; Co.
es
017
ustri
(c) A federal State Party to this won Ind beshall, 2at the request of
Convention r 24,
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any other Contracting State transmitted through the Secretary-General of the
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United Nations, supplyn Ya archi of the law and practice of the federation
i a statement
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tion, showing the. extent to which effect has been given to that provision by
legislative or other action.

Article XII
1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the
deposit of the third instrument of ratification or accession, this Convention
shall enter into force on the ninetieth day after deposit by such State of its
instrument of ratification or accession.

Article XIII
1. Any Contracting State may denounce this Convention by a written
notification to the Secretary-General of the United Nations. Denunciation
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shall take effect one year after the date of receipt of the notification by the
Secretary-General.
2. Any State which has made a declaration or notification under
article X may, at any time thereafter, by notification to the Secretary-General
of the United Nations, declare that this Convention shall cease to extend to
the territory concerned one year after the date of the receipt of the notification by the Secretary-General.
3. This Convention shall continue to be applicable to arbitral awards
in respect of which recognition or enforcement proceedings have been
instituted before the denunciation takes effect.

Article XIV
A Contracting State shall not be entitled to avail itself of the present
Convention against other Contracting States except to the extent that it is
itself bound to apply the Convention.
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The Secretary-General1 a the United Nations shall notify the States
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contemplated inoarticle 6
15-1 VIII of the following:
N .
(a) Signatures and ratifications in accordance with article VIII;
(b) Accessions in accordance with article IX;
(c) Declarations and notifications under articles I, X and XI;
(d) The date upon which this Convention enters into force in accordance with article XII;
(e) Denunciations and notifications in accordance with article XIII.

Article XVI
1. This Convention, of which the Chinese, English, French, Russian
and Spanish texts shall be equally authentic, shall be deposited in the
archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in article VIII.
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Part two
RECOMMENDATION REGARDING THE INTERPRETATION
OF ARTICLE II, PARAGRAPH 2, AND ARTICLE VII,
PARAGRAPH 1, OF THE CONVENTION ON
THE RECOGNITION AND ENFORCEMENT
OF FOREIGN ARBITRAL AWARDS
General Assembly resolution 61/33
of 4 December 2006
The General Assembly,

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Recognizing the value of arbitration as a methodCof. settling disputes
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arising in the context of international commercialt relations, 1
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Recalling its resolutiong 40/72 d o 11 December 1985 regarding the
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Model Law on International Commercial Arbitration,1
15-1
No.
Recognizing the need for provisions in the Model Law to conform to
current practices in international trade and modern means of contracting
with regard to the form of the arbitration agreement and the granting of
interim measures,
Believing that revised articles of the Model Law on the form of the
arbitration agreement and interim measures reflecting those current practices
will significantly enhance the operation of the Model Law,
Noting that the preparation of the revised articles of the Model Law on
the form of the arbitration agreement and interim measures was the subject
of due deliberation and extensive consultations with Governments and
interested circles and would contribute significantly to the establishment of
a harmonized legal framework for a fair and efficient settlement of international commercial disputes,

1
Official Records of the General Assembly, Fortieth Session, Supplement No. 17 (A/40/17),
annex I.

15

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Believing that, in connection with the modernization of articles of the
Model Law, the promotion of a uniform interpretation and application of
the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, done at New York, 10 June 1958,2 is particularly timely,
1. Expresses its appreciation to the United Nations Commission on
International Trade Law for formulating and adopting the revised articles of
its Model Law on International Commercial Arbitration on the form of the
arbitration agreement and interim measures, the text of which is contained
in annex I to the report of the United Nations Commission on International
Trade Law on the work of its thirty-ninth session,3 and recommends that all
States give favourable consideration to the enactment of the revised articles
of the Model Law, or the revised Model Law on International Commercial
Arbitration of the United Nations Commission on International Trade Law,
when they enact or revise their laws, in view of the desirability of uniformity
of the law of arbitral procedures and the specific needs of international
commercial arbitration practice;
2. Also expresses its appreciation to the United Nations Commission
on International Trade Law for formulating and adopting .the recommendaCo and
tion regarding the interpretation of article II, paragraph 2,017 article VII,
ries
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paragraph 1, of the Convention on the oRecognition and Enforcement of
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DonYork, ovem 1958,2 the text of which
Foreign Arbitral Awards, done at. New on N 10 June
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is contained in annex II to the rreport of the United Nations Commission on
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International Trade1Law 88 the work of its thirty-ninth session;3
5-1 on
No.
3. Requests the Secretary-General to make all efforts to ensure that
the revised articles of the Model Law and the recommendation become
generally known and available.
64th plenary meeting
4 December 2006

2

United Nations, Treaty Series, vol. 330, No. 4739.
Official Records of the General Assembly, Sixty-first Session, Supplement No. 17 (A/61/17).

3

16

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RECOMMENDATION REGARDING THE INTERPRETATION OF ARTICLE II,
PARAGRAPH 2, AND ARTICLE VII, PARAGRAPH 1, OF
THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF
FOREIGN ARBITRAL AWARDS, DONE IN NEW YORK, 10 JUNE 1958,
ADOPTED BY THE UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW ON 7 JULY 2006
AT ITS THIRTY-NINTH SESSION

The United Nations Commission on International Trade Law,
Recalling General Assembly resolution 2205 (XXI) of 17 December 1966,
which established the United Nations Commission on International Trade Law
with the object of promoting the progressive harmonization and unification of
the law of international trade by, inter alia, promoting ways and means of ensuring a uniform interpretation and application of international conventions and
uniform laws in the field of the law of international trade,
Conscious of the fact that the different legal, social and economic
systems of the world, together with different levels of development, are
represented in the Commission,
Co.
Recalling successive resolutions of the General s 2017 reaffirming
strie Assembly
,
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Convinced that the
and Enforcement of Foreign Arbitral Awards, done in New York on 10 June
1958,4 has been a significant achievement in the promotion of the rule of
law, particularly in the field of international trade,
Recalling that the Conference of Plenipotentiaries which prepared and
opened the Convention for signature adopted a resolution, which states, inter
alia, that the Conference “considers that greater uniformity of national laws
on arbitration would further the effectiveness of arbitration in the settlement
of private law disputes”,
Bearing in mind differing interpretations of the form requirements under
the Convention that result in part from differences of expression as between
the five equally authentic texts of the Convention,
Taking into account article VII, paragraph 1, of the Convention, a
purpose of which is to enable the enforcement of foreign arbitral awards to
4

United Nations, Treaty Series, vol. 330, No. 4739.

17

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the greatest extent, in particular by recognizing the right of any interested
party to avail itself of law or treaties of the country where the award is
sought to be relied upon, including where such law or treaties offer a regime
more favourable than the Convention,
Considering the wide use of electronic commerce,
Taking into account international legal instruments, such as the
1985 UNCITRAL Model Law on International Commercial Arbitration,5 as
subsequently revised, particularly with respect to article 7,6 the UNCITRAL
Model Law on Electronic Commerce,7 the UNCITRAL Model Law on
Electronic Signatures8 and the United Nations Convention on the Use of
Electronic Communications in International Contracts,9
Taking into account also enactments of domestic legislation, as well as
case law, more favourable than the Convention in respect of form requirement governing arbitration agreements, arbitration proceedings and the
enforcement of arbitral awards,
Considering that, in interpreting the Convention, regard is to be had to
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the need to promote recognition and enforcementtries C 017
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2
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1. Recommends that articleDo paragraph 2, of the Convention on the
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Recognition and Enforcementarchive
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10 June 1958, be applied 88
15-1 recognizing that the circumstances described thereNo.
in are not exhaustive;
2. Recommends also that article VII, paragraph 1, of the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, done in
New York, 10 June 1958, should be applied to allow any interested party to
avail itself of rights it may have, under the law or treaties of the country
where an arbitration agreement is sought to be relied upon, to seek recognition of the validity of such an arbitration agreement.

5
Official Records of the General Assembly, Fortieth Session, Supplement No. 17 (A/40/17), annex I,
and United Nations publication, Sales No. E.95.V.18.
6
Ibid., Sixty-first Session, Supplement No. 17 (A/61/17), annex I.
7
Ibid., Fifty-first Session, Supplement No. 17 (A/51/17), annex I, and United Nations publication,
Sales No. E.99.V.4, which contains also an additional article 5 bis, adopted in 1998, and the accompanying Guide to Enactment.
8
Ibid., Fifty-sixth Session, Supplement No. 17 and corrigendum (A/56/17 and Corr.3), annex II,
and United Nations publication, Sales No. E.02.V.8, which contains also the accompanying Guide to
Enactment.
9
General Assembly resolution 60/21, annex.

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RECOMMENDATION REGARDING THE INTERPRETATION OF ARTICLE II,
PARAGRAPH 2, AND ARTICLE VII, PARAGRAPH 1, OF
THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF
FOREIGN ARBITRAL AWARDS, DONE IN NEW YORK, 10 JUNE 1958,
ADOPTED BY THE UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW ON 7 JULY 2006
AT ITS THIRTY-NINTH SESSION*

The United Nations Commission on International Trade Law,
Recalling General Assembly resolution 2205 (XXI) of 17 December 1966,
which established the United Nations Commission on International Trade Law
with the object of promoting the progressive harmonization and unification of
the law of international trade by, inter alia, promoting ways and means of ensuring a uniform interpretation and application of international conventions and
uniform laws in the field of the law of international trade,
Conscious of the fact that the different legal, social and economic
systems of the world, together with different levels of development, are
represented in the Commission,
Co.
Recalling successive resolutions of the General s 2017 reaffirming
strie Assembly
,
ndu
the mandate of the Commission as ngwon I legalebody within the United
the core mb r 24
o
ve
Nations system in the fieldng v.international trade law to coordinate legal
of D
n No
Ya chived o
activities in this cited in 1 ar
field,
8
-168
o. 15 wide adoption of the Convention on the Recognition
N
Convinced that the
and Enforcement of Foreign Arbitral Awards, done in New York on 10 June
1958,1 has been a significant achievement in the promotion of the rule of
law, particularly in the field of international trade,
Recalling that the Conference of Plenipotentiaries which prepared and
opened the Convention for signature adopted a resolution, which states, inter
alia, that the Conference “considers that greater uniformity of national laws
on arbitration would further the effectiveness of arbitration in the settlement
of private law disputes”,
Bearing in mind differing interpretations of the form requirements under
the Convention that result in part from differences of expression as between
the five equally authentic texts of the Convention,
Taking into account article VII, paragraph 1, of the Convention, a
purpose of which is to enable the enforcement of foreign arbitral awards to
1

United Nations, Treaty Series, vol. 330, No. 4739.

* Issued in Official Records of the General Assembly, Sixty-first Session,
Supplement No. 17 (A/61/17), annex II.

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the greatest extent, in particular by recognizing the right of any interested
party to avail itself of law or treaties of the country where the award is
sought to be relied upon, including where such law or treaties offer a regime
more favourable than the Convention,
Considering the wide use of electronic commerce,
Taking into account international legal instruments, such as the
1985 UNCITRAL Model Law on International Commercial Arbitration,2 as
subsequently revised, particularly with respect to article 7,3 the UNCITRAL
Model Law on Electronic Commerce,4 the UNCITRAL Model Law on
Electronic Signatures5 and the United Nations Convention on the Use of
Electronic Communications in International Contracts,6
Taking into account also enactments of domestic legislation, as well as
case law, more favourable than the Convention in respect of form requirement governing arbitration agreements, arbitration proceedings and the
enforcement of arbitral awards,
Considering that, in interpreting the Convention, regard is to be had to
o.
the need to promote recognition and enforcementtries C 017
s of arbitral awards,
2
du
r 24,
on In
ngw ovembe
.
1. Recommends that articleDo paragraph 2, of the Convention on the
ng v II, d on N
in Ya of Foreign Arbitral Awards, done in New York,
Recognition and Enforcementarchive
cited 6 1
10 June 1958, be applied 88
15-1 recognizing that the circumstances described thereNo.
in are not exhaustive;
2. Recommends also that article VII, paragraph 1, of the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, done in
New York, 10 June 1958, should be applied to allow any interested party to
avail itself of rights it may have, under the law or treaties of the country
where an arbitration agreement is sought to be relied upon, to seek recognition of the validity of such an arbitration agreement.

2
Official Records of the General Assembly, Fortieth Session, Supplement No. 17 (A/40/17), annex I,
and United Nations publication, Sales No. E.95.V.18.
3
Ibid., Sixty-first Session, Supplement No. 17 (A/61/17), annex I.
4
Ibid., Fifty-first Session, Supplement No. 17 (A/51/17), annex I, and United Nations publication,
Sales No. E.99.V.4, which contains also an additional article 5 bis, adopted in 1998, and the accompanying Guide to Enactment.
5
Ibid., Fifty-sixth Session, Supplement No. 17 and corrigendum (A/56/17 and Corr.3), annex II,
and United Nations publication, Sales No. E.02.V.8, which contains also the accompanying Guide to
Enactment.
6
General Assembly resolution 60/21, annex.