The 1958 New York Convention - Hot Topic and Recent Developments
On Monday, HKIAC hosted eminent arbitration practitioner Professor Emmanuel Gaillard for his highly anticipated seminar on hot topics and developments relating to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York) (“the Convention”). Gaillard – the keynote speaker – was joined by other distinguished panellists from the arbitration community including Professor Anselmo Reyes (HKU) and Mr. Robert Pé (Arbitration Chambers).
An overview of the Guide to the Convention
Mr. Wesley Pang (HKIAC Managing Counsel) opened the seminar highlighting the extensive work done in the field of arbitration by Professor Gaillard. Gaillard then began his keynote lecture with a historical overview of the Convention. After discussing the Geneva instruments that preceded it, focus was drawn to the “pro-enforcement” rationale that underpins the Convention to this day. Gaillard then introduced the New York Convention Guide – a collaborative research project that took seven years to produce, harmonising 60 years of the Convention’s development, including its application between and by States. The Guide was developed using a “bottom up” approach, whereby case law across a combination of 15 common and civil law jurisdictions was compared and analysed.
The Guide was developed in parallel with newyorkconvention1958.org – a supplementary database consolidating various international case law and jurisprudence in one convenient location. “We decided to create a website, making it free and accessible to everybody” said Gaillard on this significant pro bono research tool.
According to Gaillard, a topic of some controversy is how national courts deal with arbitral awards annulled at the seat – an issue which the Convention remains silent on. Gaillard consolidated the positions taken on this issue in different jurisdictions into three possible approaches:
- A pro-enforcement approach where the courts of the seat do not exclusively have the “last word” regarding validity of an award. In other words, an award that has been set aside at the seat can still be valid elsewhere.
- A middle ground that enables an award to be enforced if the setting aside at the seat is inconsistent with the understanding of public policy by a judge in the enforcement jurisdiction.
- The original award is deemed non-existent and should not be enforced elsewhere if set aside at the seat.
The second segment of the seminar consisted of a joint discussion by Professors Gaillard and Reyes, moderated by Robert Pé, which focused on the topic of Kompetenz-Kompetenz. The panel fielded questions from amongst the 70 attendees present, and a copy of the Guide to the Convention was presented to the individual who asked the most creative question.