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( Source of the document: ICC Digital Library )
Emmanuel Gaillard, Head of International Arbitration at Shearman & Sterling LLP, reports on the firm’s event on 26 April 2017 dedicated to the presentation of the UNCITRAL Secretariat Guide on the New York Convention and its supplemental New York Convention website established by Shearman & Sterling LLP, Columbia Law School and UNCITRAL.
At a jam-packed morning session with nearly 100 attendees, Corinne Montineri (Legal Officer at the International Trade Law Division (ITLD) of the United Nations Office of Legal Affairs, UNCITRAL), Professor Emmanuel Gaillard (Head of International Arbitration, Shearman & Sterling LLP), and Dr. Yas Banifatemi (Partner, Shearman & Sterling LLP) gave an in-depth presentation of the UNCITRAL Secretariat Guide (the‘ Guide’) on the New York Convention (the ‘Convention’) and the newyorkconvention1958.org website. The UNCITRAL Guide, which was presented to the UN Commission in July 2016, aims to promote a uniform interpretation and application of the New York Convention and to limit the risk that State practice might diverge from its spirit. The website is an online platform which supplements the Guide by making freely and publicly accessible case law,of multiple common law and civil law jurisdictions, implementing the New York Convention, and much more.
Corinne Montineri explained how the UNCITRAL Guide and the New York Convention website promote a greater understanding of the Convention, its effective implementation and wider adherence by State parties.
Highlighting the importance of the Guide from a legislative perspective and explained that, by presenting and analysing the New York Convention case law in an objective manner, the Guide promotes a better understanding of certain key concepts (e.g. public policy and arbitrability) for which harmonisation cannot be easily implemented. Ms. Montineri further noted that the UNCITRAL Guide and the website will assist UNCITRAL in its future initiatives to promote the effective interpretation and application of the Convention, for instance through the training of judges in various jurisdictions.
Professor Emmanuel Gaillard explained the methodology behind the Guide. He noted that the UNCITRAL Guide was elaborated without any preconceived notions on how courts should apply the New York Convention. Instead, by analysing the case law from 45 jurisdictions, as well as the Convention’s ‘travaux préparatoires’, the UNCITRAL Guide serves as a reference tool that collates a wide range of decisions on the Convention and extensively reflect how courts of Contracting States interpret and apply its provisions. At the same time, he stressed, the UNCITRAL Guide promotes the pro-enforcement spirit of the Convention, which establishes a ‘ceiling’, or maximum level of control that Contracting States may exert over arbitral awards and arbitration agreements.
Professor Gaillard explained that the principal finding of the preparatory work of the UNCITRAL Guide is that courts have interpreted and applied the Convention’s provisions in an overwhelmingly consistent manner and have diverged from the general trends in only isolated instances. He noted that the Convention includes flexible concepts that can be adjusted to fit the legal systems of different jurisdictions. Despite past proposals to revise the New York Convention, there is no risk in leaving the Convention in its current form, as there is ‘nothing to be fixed’. As he explained, Article VII(1) of the Convention allows courts of State parties to apply conditions to the recognition and enforcement of arbitration awards that are more liberal than those contained in the Convention. Professor Gaillard further noted that the standard of liberalism achieved in 1958 when the New York Convention was concluded could not be achieved today, particularly given the recent politicisation of investment treaty arbitration and the increasingly defensive mind-set that many States have adopted in relation to the arbitral process.
Dr. Yas Banifatemi gave a presentation of the New York Convention website, an interactive online platform that provides the data gathered for the preparation of the UNCITRAL Guide through an intuitive and user-friendly interface. As she explained, the website includes more than 1200 cases from a wide number of common law and civil law jurisdictions and offers free access to those decisions in their original language, as well as English translations of a number of decisions.
Each chapter of the Guide is available in all official languages of the United Nations and include direct links to the original case law and ‘travaux préparatoires’ discussed therein.
The website also offers access to the largest bibliography ever consolidated on the New York Convention, which contains more than 800 references. It also includes jurisdiction briefs providing essential information relating to the implementation of the Convention in Contracting States. Dr. Banifatemi noted that the wealth of information freely accessible on newyorkconvention1958.org had been made possible thanks to numerous and dedicated contributors, including academics, practitioners, arbitral institutions and national courts.
Following the presentation, members of the audience expressed their positive views on the UNCITRAL Guide and the newyorkconvention1958.org website and agreed that it will become an essential tool that will benefit all those involved in the interpretation and application of the New York Convention.