The New York and Geneva Convention Awards: An Analysis

International arbitration is a practice among companies or individuals in different States. It usually includes different provisions for future issues in a contract. International arbitration facilitates the parties to duck the local court procedure, because it has different statutes than domestic arbitration, and acquires the non-country explicit standards of ethical conduct. The process may be narrower than typical litigation and forms a hybrid among the common law and civil legal systems. Under the Arbitration and Conciliation Amendments Act, 2015 (the Act) there are two aspects available for the enforcement of foreign awards, the New York convention, and the Geneva convention. The elaboration in statutes links to the recognition and enforcement of foreign awards. The 1966 Act defines foreign awards as an arbitral award made on or after the 11th day of October 1960 on the difference between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India.[1] Several cases have been related to these conventions and they are fruitful when it comes to talking about arbitration-related matters. Many countries have signed these conventions and the articles in the Act provide for all the provisions which are related to arbitration and conciliation.

New York Convention

“The convention on recognition and application of foreign arbitrary awards also known as the New York conventionwas embraced by the United Nations diplomatic conference on 10th June 1958. The convention entails courts of contracting states to give effect to private agreements to arbitrate and to acknowledge and enforce arbitration awards made in other contracting states. The widely pondered foundation instrument for international arbitration harnesses to arbitration that isnot recognized as domestic awards in the State where acknowledgement and enforcement are sought”.[2] International arbitration is an intensifying means of alternative dispute resolution for cross-border business transactions. An arbitration award is enforceable in most of the States. Other benefits of arbitration are the incorporation of the skills to choose a neutral forum to sought disputes and the decisive and ultimate nature of arbitration awards which are not subject to appeal. The New York convention was excellently drafted by the United Nations and has been ratified by more than 150 countries, comprising of major countries which participate in international trade and economic transaction. The reach of the New York convention is much enlarged. Any arbitral award, in any state, in contracting countries or otherwise is shielded under the New York convention under the following conditions:

  • It must be an award on divergence coming out from legal affairs recognized as commercial under the law in force.
  • It must have been in the enhancement of a pact, in writing for arbitration to which the convention is set in the first schedule of the New York convention.
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Procedure of Enforcement

According to Article 3 of the 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”. This article clarifies the provisions which interrelate to the enforcement of arbitral awards drooping under the convention. It encompasses the general duty for the contracting states to consider convention awards as mandatory and to enforce them as per their guidelines of the procedure. The usual obligations to consider the convention awards as mandatory under Article 3 of the convention can also be recognized as the base for the application of the procedural law of the forum. Lastly, the second condemnation of Article 3 states that they should not be inflicted substantially more onerous situations or heavy charges on the detection or enforcement of convention awards.

“General procedure for enforcement of a foreign arbitral award:

  1. The party seeking enforcement of a foreign award needs to supply in the court (a) the arbitral award and (b) the arbitration agreement.
  2. The party against whom enforcement is sought can object to the enforcement by submitting proof of one of the grounds for refusal of enforcement.
  3. The court may on its own motion refuse enforcement for reasons of public policy.
  4. If the award is subject to an action for setting aside in the country in which, or under the law of which it is made the foreign court before which enforcement of the award is sought may adjourn its decision on enforcement.
  5. Finally,if a party seeking enforcement prefers to base its request for enforcement on the court’s domestic law on enforcement of foreign awards or bilateral or other multilateral treaties in force in the country where it seeks enforcement, it is allowed to do so by virtue of the so-called more-favourable-right.”[3]
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Conditions to be Fulfilled by the Petitioner

Article 4 of the Convention eases the enforcement by necessitating a minimum circumstance to be completed by the party pursuing enforcement of a convention award. That party mustprovide the required authentication unprecedented award or a certified copy thereof and the novel arbitration agreement or a duly certified copy. The authentication of a manuscript is the duty which is completed with the signature thereon is attested to be bona fide. The certificates of a copy are the primness by which the copy is confirmed to be a true photocopy of the original. While fulfilling these obligations, the parties in explorations of enforcement construct prima facie evidence are entitled to get enforcement of the awards.

Geneva Convention Awards

Geneva convention awards contain four treaties and three supplementary protocols that institute international law for humanitarian dealing in war. The single expression Geneva convention usually signifies the pacts of 1949, which were negotiated after the massacre of world war II. The Geneva Convention expansively defined the crucial rights of wartime prisoners, instituted safeguards for the injuredand sick, and instituted several protections for the civilian around the war zone.

Application of Geneva Convention Awards

The Geneva convention comes into the picture at times of war and armed conflicts with the government. Article 2 of the convention connotes the niceties of applicability.

Article 2:

Relating to international armed conflicts, this article clarifies that the Geneva convention applies to all cases of international conflict where at least one of the warring states have consented to the conventions.

The convention is imposed on all cases of avowed war among signatory states. This is the inventive sense of applicability, which precludes the 1949 version.

The convention is imposed on all cases of armed dispute among two or more signatory states, even in the nonattendance of a declaration of war. This dialectal was summed up in 1949 to accommodate circumstances that have all the features of war without the presence of formal announcements of war, such as a police action.

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The convention imposed to a countersigned state even if the opposite nation is not a countersigned party, but only if the opposing nation assents and relates the provisions of the conventions.

Conclusion

The passive and active growth of arbitration and conciliation has aided in lessening transaction costs of business through a fast and speedy resolution of conflicts among states, this was possible due to the nominal interference of court especially at the stage of enforcement of arbitral awards. One of the finest benefits of arbitration is the expected speedy resolution of disputes. New York and Geneva convention are one of the best outcomes of this which have created a simpler method to seek justice without the interference of local courts. These awards should be more modified as per the growing needs of states.

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[1] Section 44 of the Arbitration Act, 1966.

[2]https://en.wikipedia.org/wiki/Convention_on_the_Recognition_and_Enforcement_of_Foreign_Arbitral_Awards

[3]The New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10th June 1958, http://www.newyorkconvention.org/in+brief

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