60 Years of the New York Convention: Key Issues and Future Challenges

edited by Katia Fach Gómez and Ana Mercedes López Rodríguez

ISBN 978-94-035-0155-0, 518 pages

Kluwer Law International, 2019

As explained by co-editors Professor Katia Fach Gómez (University of Zaragoza) and Professor Ana Mercedes López Rodríguez (Loyola University Andalusia), the book has its origins in an international conference celebrating ‘60 Years of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards’, which took place in Seville on 4- 6 April 2018. Clearly, what happened in Seville did not stay in Seville. Three days of intensive discussions involving almost 200 participants from 26 countries translated into a truly remarkable, 500-page, book offering a written account of the conference, which, in the words of Anna Joubin-Bret (UNCITRAL), ‘will be remembered as a milestone celebration’¹ of the round anniversary of the New York Convention.

The book brings together contributions from 41 authors from five continents, including law professors, researchers and practitioners. A common denominator of this diverse group is their extensive knowledge of the New York Convention, coupled with their genuine passion for the subject. In fact, some contributions even personify the treaty: the New York Convention’s ‘life has not been boring so far’² and the treaty will now ‘need a pair of reading glasses’.³

While it is admittedly difficult to summarize each of the 27 chapters, which are grouped in 11 parts, within this short review, it should be noted that each of the chapters is well written and explains clearly, and comprehensively, the subject matter that it covers. Below is a brief description and some comments on the book’s major parts.

Part I (‘International Commercial Arbitration and the New York Arbitration’), Part II (‘Some Obstacles to Recognition and Enforcement under the New York Convention’) and Part IV (‘Grounds for Refusal under the New York Convention’) focus on the classic questions under the New York Convention, offering a fresh look at the most relevant aspects of, and challenges to, the recognition and enforcement of arbitration agreements and arbitral awards.⁴ Chapter 11, which discusses various dimensions of public policy under the New York Convention, and which is authored by Professor Margaret Moses (Loyola University, Chicago), truly stands out. It reassuringly concludes that, on the occasion of the 60th anniversary of the New York Convention, ‘one can rather safely say that the public policy exception has not been a disaster and, in fact, it has seemed to work in most cases pretty much as the drafters envisaged’.⁵

Part III (‘The New York Convention and New Technologies’), Part V (‘Enforcement of Annulled Awards under the New York Convention’), and Part VI (‘European Union Law and the New York Convention’) explore the key ‘hot topics’ under the New York Convention of our times, namely the challenges of technological advancement,⁶ the enforcement of annulled awards,⁷ and the increasing relevance of EU law in the field of international arbitration.⁸ All contributions dealing with these topical issues are well researched and thought provoking.

Part VII (‘The Future of the New York Convention’) consists of two excellent chapters discussing several prospective scenarios.⁹ Interestingly, both contributions highlight the role of courts in achieving the objectives of the Convention. In Chapter 17, Marike Paulsson and Supritha Suresh (University of Miami) argue that ‘to continue maintaining that the New York Convention will remain one of the most successful treaties in the international trade arena is perhaps tempting’ but the last decade has shown that leaving the Convention in the hands of courts ‘is truly a hazard’.¹⁰ Similarly, in Chapter 18, Joe Tirado (Garrigues, London), Alberto Acevedo (Garrigues, Bogota) and Gabriela Cosio (Garrigues, Mexico City) conclude that the main issues faced by the New York Convention ‘reside not in [its] text, but in the courts’.¹¹ A more extensive Part VII would have allowed for a systematic identification of the ‘future challenges’ of the New York Convention, as featured in the book’s subtitle.

Interestingly, Part VIII (‘Regional Approaches’) addresses approaches to the New York Convention in the regional intergovernmental Association of Southeast Asian Nations (ASEAN) and Sub-Saharan region.¹² In addition to specific regional chapters, multiple comparative discussions are interspersed throughout contributions focused on substantive themes, starting with Chapter 1, where Manuel Penadés Fons (King’s College, London) and Pedro Tent Alonso (Garrigues, Valencia) discuss Spanish, French and English approaches to Kompetenz-Kompetenz.¹³

Finally, Part IX (‘Enforcing Awards Against States and State Entities under the New York Convention’), Part X (‘Investment Arbitration and the New York Convention’), and Part XI (‘The New York Convention and a Prospective Multilateral Court’) explore the application of the New York Convention in the investment arbitration context.¹⁴ Although primarily designed for international commercial cases, the Convention, as argued by Aliz Káposznyák (Eötvös Loránd University, Budapest) in Chapter 25, ‘seems to be well applied’ to the recognition and enforcement of international investment awards.¹⁵ But the realm of investment arbitration also poses unique challenges. For example, Javier García Olmedo (Max Planck Institute, Luxembourg) notes in Chapter 21 that the New York Convention fails to ‘sufficiently ensure the execution of awards against recalcitrant sovereigns’.¹⁶

Overall, this book is a fantastic collection of individual essays which together form a highly informative publication. The co-editors have rightly identified this work’s ‘global perspective and suitability as a major reference text on the issue’.¹⁷ Any scholar or practitioner would find this insightful book of immense value.

---

---