New York Convention: Article-by-Article Commentary (2nd edition)

By Dr Reinmar Wolff (ed)

Beck Hart Nomos, 2019; ;721 pages;

ISBN 978-3-406-71445-0

A review of the first edition of the New York Convention: Article-by-Article Commentary edited by Dr Reinmar Wolff recommended that the work be ‘required reading for students and practitioners alike’.¹ The same may be said of the second edition. It is an impressive piece of scholarship on a core part of international arbitration and incorporates case law through mid-2019.

The New York Convention is the cornerstone of the international arbitration system and is central to the international economic system more broadly. The Convention sets out a single set of rules through which ‘foreign’ arbitral awards are to be recognised and enforced. Its adoption by 163 states means that parties involved in international commerce and investment can have confidence that an arbitration award rendered in one jurisdiction can be recognised and enforced around the world. This harmonisation of rules for recognising and enforcing foreign awards increases the efficacy and attractiveness of international arbitration as a dispute resolution mechanism. However, as Dr Wolff observes in the Preface, the New York Convention’s potential can only be fully realised ‘if the courts of the Contracting States apply its provisions consistently’.²

Consistency is not always achieved. Interpretation of the Convention is not entrusted to a single body.

Instead, it is for individual courts to interpret the articles of the Convention as the need arises. In practice, though, courts often interpret the Convention in light of their own domestic legal traditions and approaches. Unsurprisingly, divergence on the meaning of the Convention’s provisions — particularly Articles II and V(2) — and curious interpretations are not hard to find.³

The central goal of the New York Convention: Article-by-Article Commentary is to promote consistent interpretation of the Convention. The remedy proposed is ‘autonomous interpretation’ (ie interpretation of the Convention without recourse to national law) by use of the ‘acknowledged means of interpretation’, namely the principles of customary international law codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.⁴

However, there are limits to this project inherent in the Convention. Article V(2)(a) empowers a domestic court to refuse to recognise or enforce a foreign arbitral award where the subject-matter of the dispute ‘is not capable of settlement by arbitration under the law of that country’.⁵ As such, one referent point for recognising or enforcing a foreign award is the enforcing state’s own conception of arbitrability. Dr Quinke observes in his section on Article V(2)(a) that while most domestic courts apply an ‘international notion of arbitrability’ when considering arbitrability and it is ‘increasingly recognized that … Contracting States are permitted to stipulate non-arbitrability exceptions only to the extent that this is not in conflict with the [Convention]’,⁶ noticeable diversity remains as to the scope of arbitrability.⁷ This divergence may have more academic than practical importance; few courts have refused to recognise or enforce awards on the basis of arbitrability.⁸

In contrast, though, numerous foreign awards have either been not recognised or enforced under Article V(2)(b) because to do so was held to be ‘contrary to the public policy of that country’.⁹ Again, the Convention directs attention to each individual state’s understanding of a particular legal concept. Although the article imposes upper and lower limitations on public policy, a precise definition cannot be articulated as the Convention refers to national standards of public policy which are subject to temporal change.¹⁰ Writing the contribution on Article V(2)(b), Dr Wolff observes that ‘the need for unification in the area of national public policies cannot be satisfied by way of interpretation’.¹¹ Instead, harmonisation can be achieved through ‘best practices’ under which ‘public policy’ is read narrowly as a national standard for recognising and enforcing international awards rather than national public policy relevant for domestic awards.¹²

Whether such an approach bears fruit remains to be seen. In any event, however, the New York Convention: Article-by-Article Commentary extends the valuable contribution made by the first edition of the work. The book comprehensively addresses each element of the Convention’s articles, drawing the reader’s attention to an impressive number of commentaries, tribunal awards and decisions from Contracting States. Further, much effort is put into making the work more navigable, readable and relevant to legal practice and academic research.

The second edition sees the return of all of the contributors to the first edition of the work: Professor Christian Borris, Dr Bernd Ehle, Mr Todd Fox, Mr Rudolf Hennecke, Dr Angela Kölb, Dr Christoph Liebscher, Dr David Quinke, Professor Maxi Scherer and Dr Stephan Wilske, under the editorship of Dr Reinmar Wolff. Each contributes at least one chapter to the work.

There are 17 chapters in the book. The first chapter, containing preliminary remarks, recounts the general history of the Convention and explains the autonomous interpretation method employed throughout the subsequent chapters. The following chapters analyse a single article each and are organised in sequential order, from article I to article XVI.

Each chapter follows the same format. The text of the article being discussed is set out in full, followed by a chapter-specific bibliography which, in an improvement on the first edition, now contains every book, article and commentary cited in the chapter. The commentary then begins with a general overview, followed by discussion of the article’s spirit and purpose, and drafting history. In these sections, the authors draw the reader’s attention to relevant documents in the Convention’s voluminous travaux préparatoires. Additionally, proposals to revise particular provisions of the Convention (ie 2006 UNCITRAL Recommendation on article II) are also considered.¹³ These sections provide crucial background and context for each article.

The remainder of each chapter is made up of element-by-element analysis of the article being considered. While set out in a civil law commentary format, common law lawyers will also find the book of great use since each chapter is logically set out and clearly written. Each chapter also includes a detailed table of contents, assisting readers to quickly navigate through the text. Extensive reference is made to case law, arbitral decisions and commentary bearing on each element. In addition to illustrating the author’s arguments, this will assist researchers and practitioners searching for decisions made by courts and tribunals on the articles.

Several other features of the second edition which make the work very user-friendly deserve mention. In addition to chapter-specific bibliographies, the cases and awards referred to in the book are helpfully compiled in a ‘Table of Cases and Awards’. Additionally, as in the first edition, a detailed ‘List of Abbreviations and Acronyms’ is included just after the main table of contents. There are also five annexes which follow the commentary on the Convention. Annex II records the contracting parties to the Convention, reservations and declarations as at 30 September 2019. The text of several declarations and reservations are reproduced in full. Annex IV, which lists the document number, title, author and date of travaux préparatoires referred to in the book, will be of particular value to researchers of the Convention.

The New York Convention: Article-by-Article Commentary is a comprehensive and accessible treatment of the New York Convention. It is a very useful guide for understanding and applying the Convention — the centrepiece of international arbitration.

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