In August 2024, the International Council for Commercial Arbitration (ICCA) formally published the second edition of the ICCA’s Guide to the Interpretation of the 1958 New York Convention. The Guide is a clear, concise yet inclusive handbook, written in plain language, on the essential aspects of the scope, interpretation and application of the Convention. Though principally aimed at judges determining applications under the Convention, the Guide, which benefits from the extensive practical and academic experience of its authors (prominent arbitrators and ICCA members) will also be of interest to students, teachers and practitioners as an introduction to the Convention.
ICCA’s Guide to the Interpretation of the 1958 New York Convention was conceived as a handbook to give guidance to judges on the scope, interpretation and application of the Convention. In order to achieve these goals, the Guide was drafted as a concise text, written in plain language, and limited to an examination of the most essential aspects of the Convention. The Guide is not intended to be a comprehensive reference work, rather is designed to answer specific questions that may arise in the application of the Convention. The Guide as drafted reflects the basic idea that the New York Convention is a simple text that must be applied by courts in the vast majority of the cases by following the plain text of its provisions.
Since its publication in 2012, the Guide has proven remarkably effective. It has become an influential and often cited authoritative text on the New York Convention. Having been translated into twenty-eight languages and distributed to 4,000 judges worldwide, it now serves as a tool for judges around the globe, as well as a basic consultation text for academics, students and practitioners.
The wide-spread impact of the Guide can be appreciated in the key role it has played in ICCA’s judicial outreach programme, which has been institutionalized since the release of the First Edition through the creation of a Judiciary Committee. The Committee has to date conducted in-person and web-based training programmes for national courts in over forty different countries. The “New York Convention Roadshows”, as the judicial dialogue and training events came to be known by, were developed with the aim of engaging with national court judges about the critical role of local courts in the proper functioning of international arbitration and use the Guide as the basis for discussion.
Ten years after publication of the First Edition of the Guide, the success of the New York Convention itself has continued to grow, as evidenced by its current 172 contracting States and the increased number of court decisions applying it. Case law and some state court practices have also evolved. Noting these developments, as well as the influence of the Guide, ICCA’s Judiciary Committee, chaired at the time by Prof. Albert Jan van den Berg, considered it time to update the Guide, and has now prepared a Second Edition.
The approach taken by the Judiciary Committee in preparing the Second Edition was that while updating and complementing the text where necessary, the Second Edition should preserve the overall structure and original style of the Guide. In particular, it is still presented in plain language aiming to serve as a road map to more in depth study, includes reference to key cases only, and focuses on the fundamental aspects of the application of the Convention.
While our goal has been to keep the changes to a minimum, the Second Edition is the result of a thorough review, covering developments in case law on the application of the New York Convention and recent court practices. In addition, certain additional aspects of the Convention not included in the First Edition are now covered.
In concrete, the main changes included in the Second Edition are the following (i) updated references to relevant case law, in particular case law illustrating essential principles; (ii) a more comprehensive treatment of the most favored principle contained in Article VII.1 of the Convention; (iii) a new section on Article VI of the Convention; (iv) clarification of certain points to reflect court practice; and (v) redrafting across the text to improve clarity.
The Guide maintains its overall structure. It begins with a checklist setting out the questions to be answered and the steps to be followed by courts when applying the Convention in the two actions available within its scope: a request for the recognition and enforcement of an arbitration agreement or a request for the recognition and enforcement of an arbitral award.
Chapter 1 – The New York Convention as an Instrument of International Law refers to the Convention as an instrument of international law, applicable to arbitration agreements and arbitral awards, including its interpretation and guidance principles such as the pro-enforcement bias. It then addresses the material and territorial scope of application of the Convention, explaining the possible limitations of the reciprocity and commerciality reservations available to contracting States. Chapter 1 then discusses the relationship of the Convention with domestic law and other treaties, analyzing the most favored application principle contained in Article VII. Finally, it explains the international obligation of States party to the Convention to comply with the Convention, and the consequences of not doing so.
Chapter 2 – Request for the Enforcement of an Arbitration Agreement explains the requirements to enforce an arbitration agreement, and the considerations that a court must take into account when entertaining such a request.
In turn, Chapter 3 – Request for the Recognition and Enforcement of an Arbitral award discusses the requirements for the request made to a court for the recognition and enforcement of an arbitral award.
Finally, in order to facilitate deliberations by judges in matters related to the Convention, the Guide contains four annexes: (I) the New York Convention itself; (II) the UNCITRAL Model Law on International Commercial Arbitration; (III) the UNCITRAL Recommendation of 2006 regarding the interpretation of Article II of the Convention; and (IV) a number of useful online sources for further reference.
The second edition of the Guide is available in English, Vietnamese, Korean and Chinese, with other translations to follow (CLICK HERE).
Published by the International Council for Commercial Arbitration ISBN 978-94-92405-40-1 All rights reserved. © 2024 International Council for Commercial Arbitration © International Council for Commercial Arbitration (ICCA). All rights reserved. The International Council for Commercial Arbitration (ICCA) wishes to encourage the use of this Guide for teaching purposes and for the promotion of arbitration. Accordingly, it is permitted to reproduce or copy this Guide, provided that the Guide is reproduced accurately, without alteration and in a non-misleading context, and provided that ICCA’s authorship and copyright are clearly acknowledged. For further information, please contact us at bureau@arbitration-icca.org |
Source: International Council for Commercial Arbitration (ICCA)
Arbitration, and typically commercial arbitration, is an Alternative Dispute Resolution (ADR) which is agreed by parties of the dispute. Arbitration can be used to replace the traditional way of litigation in court.
Derive from arbitration’s dispute settlement principles, arbitration shows many pros and brings many benefits for parties in commercial dispute, specifically as follows:
A Polish appeals court vacated an International Chamber of Commerce (ICC) partial award for alleged irregularities in the arbitrator's appointment (for further details please see " ICC award set aside due to irregularities in arbitrator's appointment "). The sole arbitrator's final award was also successfully challenged and set aside. The first reason to vacate the final award was also the issue of the sole arbitrator's appointment.
It is normal to inspect the goods that have been lost or damaged during the performance of the sales contract and in the contract of carriage. However, improper inspection can lead to significant disputes and damages that you can refer to below.
The ten years of Law on Commercial Arbitration 2010 (LCA) are also the 10-year development period of VIAC - the first institutional arbitration organization in Vietnam, the organization that goes along with the formation and advancement of the legal framework of commercial arbitration in Vietnam.
Law on Commercial Arbitration (“LCA”) enacted in 2010 was considered a major step forward for the development of commercial arbitration in Vietnam. Compared with the previous years and with international standards, LCA has made remarkable progress, namely recognizing enterprises’ freedom of choice, broadening the scope of arbitration, raising the arbitral tribunal’s authority, valuing court assistance (especially interim measures enforcement), encouraging flexibility in language of arbitration, and improving party’s autonomy in arbitration while maintaining proper manners during arbitral proceedings.
Mr. Doug Jones, a leading arbitrator in the international arbitration community, revealed to me his infatuation with the beautiful beach and Vietnamese delicacies after a seminar in Da Nang. He was also inspired by the confidence, assertiveness, competence and the ambition to improve domestic arbitrators to the same level as those working in the international sphere of young arbitrators and VIAC Secretaries.
Law on Commercial Arbitration 2010 (LCA)- the procedural law governing arbitration proceedings whose seat is in Vietnam
Nowadays, as the digital economy emerges, electronic agreements on online websites are becoming more and more prevalent; hence, the legal effect of establishing terms and conditions of service when accessing the website (browse-wrap) and clicking (click-wrap) are of particular interest. The following paper analyzes some of the legal aspects of online agreement conclusion, especially the establishment of the arbitration agreement by means of browse-wrap and click-wrap.
Whether settling disputes in Court or through arbitration, when a party has the burden of proof, it must submit evidence to the arbitral tribunal. The evidence can be in many different forms: Document electronic evidence, audio recordings, video recordings, witness statement, etc. In international arbitration practice, especially in complex disputes, a type of evidence that is frequently used by the parties to defend their opinion/request is testimony/report of "expert witness".
In international commerce and investment, parties to a dispute often select arbitration as an alternative dispute resolution other than litigation in which the court, an authorized state agency, adjudicate disputes. An explanation for this phenomenon is that arbitration may be the optimal means that the parties can exercise their autonomy in writing to select one or several individuals who are not representing state agencies and state power (the so-called private parties) to resolve disputes. However, to prevent the possibility of arbitrators "privatizing" justice, [1] the New York Convention and the ICSID Convention set out the rules for annulment of arbitral award when such award violates arbitral proceeding. Here, questions arise. What rules of procedure are violated? And to what extent is the commercial and investment arbitral award annulled? This article seeks to elucidate the theory and practice of annulment for violations of procedure under the New York Convention and the ICSID Convention.
Goods can be consolidated, batched, packed, sorted, and grouped for a certain period of time before being loaded onto a trailer for carriage to the consignee. Disputes about whether the time to do these things are within the scope of insurance liability or not is an issue worth knowing (through the lawsuit with the documents of a foreign law firm) below for readers’ reference.
Mr. Vu Anh Duong is the Secretary General of the Vietnam International Arbitration Centre (“ VIAC “), which is the leading Vietnamese arbitration and mediation institution . Mr. Duong has contributed significantly to the development of arbitration in Vietnam in various ways; in addition to his role with the VIAC, Mr. Duong has served as a member of various drafting committees dealing with not only the VIAC’s Rules of Arbitration (2017) (“ VIAC Rules ”), but also Vietnam’s arbitration-related legislation. He also regularly lectures on commercial arbitration and sits as an arbitrator in both international and domestic commercial arbitrations.
Abstract: This discourse focuses on a detailed analysis of some theoretical and practical issues about the application of interim emergency measures involving third parties, in the field of domestic and international. Besides, the discourse provides measures to enhance the ability to enforce the decisions applying interim emergency measures with the third parties within the realm of international arbitration law. Subsequently, it extracts experience and recommendations pertaining to the legal framework in Vietnam regarding this matter.
During arbitral proceedings, the mediation process may cause some certain conflicts that requests the Arbitral Tribunal to seriously consider. Resolving effectively these conflicts based on fundamental legal principles and the arbitration skills of the Tribunal will ensure the rights and interests of disputing parties and third parties. This discourse focuses on analyzing potential conflicts and providing recommendations to the Tribunal to maximize the effectiveness of the mediation process and reduce conflict occurrence.
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According to the Department of Judicial Support , Ministry of Justice, currently , there have been 48 arbitration institutions established in our country, with over 600 arbitrators participating in resolving thousands of commercial disputes each year 1 . An arbitration service has been developed. Along with the growth , the trait of this service became more apparent , includi ng the relevance of third-party interests. Unlike court litigation, in principle, arbitration is a private dispute resolution method , therefore, the involvement of third parties is exceptional. The discourse discusses how the arbitral tribunal considers and guarantee s the third party's interest in the arbitra l proceedings by providing some situations in which disputing parties or the arbitral tribunal may need to consider the interests of third parties. The goal of arbitr ation is to make contributions to resolving disputes fairly, thereby encourag ing parties to fulfill their obligations voluntarily in order to avoid further dispute escalation of disputes . Based on the analysis , the author suggests policy improvements pertaining to third parties that may be considered in the upcoming revision of the Law on Commercial Arbitration.
In August 2024, the International Council for Commercial Arbitration (ICCA) formally published the second edition of the ICCA’s Guide to the Interpretation of the 1958 New York Convention. The Guide is a clear, concise yet inclusive handbook, written in plain language, on the essential aspects of the scope, interpretation and application of the Convention. Though principally aimed at judges determining applications under the Convention, the Guide, which benefits from the extensive practical and academic experience of its authors (prominent arbitrators and ICCA members) will also be of interest to students, teachers and practitioners as an introduction to the Convention.
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