DEBRE TABOR UNIVERSITY

School of Law
Course Title: Alternative Dispute Resolution (ADR)
Title: Document Analysis on the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (1958)

By
Sufiyan Adem (DTU12R2583)

Getahun Birhane (DTU12R2861)

Lijayehu Birhan (DTU12R2935)

Yared Sintayehu (DTU12R2652)

Yohannes Abebaw (DTU12R2718)

Submitted To: Workneh Alemnew (Ass. Professor)

Submission Date: 15/07/2016 E.C

Debre Tabor, Ethiopia

Table of Contents
1. Introduction ......................................................................................................................................... 1
2. History of ADR .................................................................................................................................... 1
3. Objectives of ADR ............................................................................................................................... 2
4. Arbitration ........................................................................................................................................... 2
4.1. Why Arbitration? ........................................................................................................................ 3
4.2. International Arbitration ........................................................................................................... 4
4.3. Legal Basis of International Arbitration ................................................................................... 4
5. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ... 5
5.1. Objectives of the New York Convention ................................................................................... 6
5.2. Scope of Application of the New York Convention .................................................................. 7
5.3. Definition of Arbitration Agreement in the New York Convention ........................................ 7
5.4. Conditions in the New York Convention to Recognize Foreign Arbitral Awards ................. 8
5.5. Grounds in the New York Convention to Refuse to Recognize Foreign Arbitral Awards .... 8
5.6. Stay of Execution/Enforcement ................................................................................................. 9
5.7. Reservation .................................................................................................................................. 9
5.8. Denunciation.............................................................................................................................. 10
Reference ...................................................................................................................................................... i
 1. Introduction
ADR stands for Alternative Dispute Resolution. It refers to methods and processes used to resolve
disputes or conflicts outside of traditional court litigation.1 ADR methods include mediation,
arbitration, negotiation, conciliation, and collaborative law. These methods are often faster, less
expensive, and more flexible than going to court. ADR can be used in a variety of legal disputes,
including commercial, family, employment, and civil matters.2 It is designed to promote
communication, cooperation, and compromise between parties to reach a mutually acceptable
resolution.3 In this assignment paper we see the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards in detail and shed light on ADR in general as well as
Arbitration.

2. History of ADR
The history of Alternative Dispute Resolution (ADR) can be traced back to ancient times when
societies used various methods to resolve conflicts and disputes.4 In more recent history, ADR
gained popularity in the United States during the 20th century as a response to the increasing
caseloads and costs associated with traditional court litigation.5 The modern ADR movement
began in the 1970s and 1980s, with the establishment of court-annexed mediation programs and
the passage of legislation promoting ADR as a means of resolving disputes.6

Since then, ADR has become widely accepted and utilized in various legal systems around the
world. It has evolved to include a range of methods and techniques, such as arbitration, negotiation,
and collaborative law, each tailored to different types of disputes and parties. ADR is now
recognized as an effective and efficient way to resolve conflicts, promote communication, and
preserve relationships between parties.7

1
Robert Mnookin, Alternative Dispute Resolution. NELLCO Legal Scholarship Repository, Harvard Law School,
1998
2
Id
3
Id
4
Dr. Nandakishor K. Ramteke (LL. B, NET PhD) Alternative Dispute Resolution (ADR) Under International and
National Context, 2003
5
Id
6
Id
7
Id

1
 3. Objectives of ADR
The primary objective of Alternative Dispute Resolution (ADR) is to provide parties involved in
a dispute with a more efficient, cost-effective, and collaborative way to resolve their conflicts
outside of traditional court litigation.8 ADR aims to facilitate communication, cooperation, and
compromise between parties in order to reach a mutually acceptable resolution.9

• Promoting a quicker resolution of disputes: ADR methods such as mediation and

arbitration are often faster than going through the court system, allowing parties to resolve
their conflicts in a timely manner.
• Reducing costs: ADR can be more cost-effective than litigation, as it typically involves
fewer legal fees and expenses.
• Preserving relationships: ADR methods focus on promoting communication and
understanding between parties, which can help preserve relationships that may be strained
by the conflict.
• Providing more flexibility: ADR allows parties to tailor the resolution process to their
specific needs and preferences, leading to more creative and customized solutions.
• Encouraging a win-win outcome: ADR seeks to find solutions that benefit all parties
involved, rather than a winner-takes-all approach often seen in litigation.

4. Arbitration
Arbitration is a form of Alternative Dispute Resolution (ADR) in which parties to a dispute agree
to have a neutral third party, known as an arbitrator, make a binding decision on the issues in
dispute.10 Arbitration is often used as an alternative to traditional court litigation and can be a more
efficient and cost-effective way to resolve disputes.

8
Conflict Management Group, Alternative Dispute Resolution Practitioners Guide, 2013
9
Id
10
Tefera Eshetu and Mulugeta Getu, Alternative Dispute Resolution Teaching Material; The Justice and Legal
Research Institute, 2009

2
During arbitration, the parties present their arguments and evidence to the arbitrator, who then
renders a decision that is legally binding on both parties.11 The arbitrator's decision is typically
final and can only be challenged in limited circumstances.12

Arbitration can be conducted in various ways, including through ad-hoc arbitration or through
arbitration administered by a professional arbitration institution.13 It is commonly used in
commercial disputes, labor disputes, and international disputes, among others. Arbitration offers
parties a degree of confidentiality, flexibility, and control over the resolution process, making it a
popular choice for many businesses and individuals seeking to resolve disputes outside of the
courtroom.14

4.1. Why Arbitration?

Arbitration is chosen as a method of dispute resolution for several reasons. Firstly, arbitration is
often faster and more efficient than traditional court litigation, as parties can schedule hearings at
their convenience and avoid the delays associated with crowded court dockets.15 Additionally,
arbitration can be more cost-effective, as it typically involves lower legal fees and expenses
compared to litigation.16

Arbitration also offers parties a degree of confidentiality, as proceedings are private and not part
of the public record like court cases.17 This can be particularly important for businesses seeking to
protect sensitive information or maintain their reputation.

Furthermore, arbitration allows parties to select arbitrators with expertise in the subject matter of
the dispute, providing a level of expertise and specialization that may not be available in a
traditional court setting.18 Finally, arbitration offers parties more control over the process and
outcome of the dispute, as they can tailor the arbitration proceedings to meet their specific needs
and preferences.

11
Id
12
Id
13
Id
14
Id
15
Professor Emanuel Gaillard and Professor George Bermann, A Guide on the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (1958)
16
Id
17
Id
18
Id

3
Overall, arbitration is chosen as a method of dispute resolution for its speed, cost-effectiveness,
confidentiality, expertise, and flexibility, making it a popular choice for many individuals and
businesses seeking to resolve disputes efficiently and effectively.

4.2. International Arbitration

International arbitration is a specific form of arbitration that involves disputes between parties
from different countries or involving international elements.19 It is a widely used method for
resolving cross-border commercial disputes and is governed by international conventions, treaties,
and rules.20

In international arbitration, the parties agree to submit their dispute to arbitration rather than
litigating in national courts.21 The arbitration proceedings are typically conducted in a neutral
country or under the rules of an international arbitration institution, such as the International
Chamber of Commerce (ICC) or the London Court of International Arbitration (LCIA).22

International arbitration offers parties a number of advantages, including flexibility, neutrality,

enforceability of awards across borders, and the ability to choose arbitrators with expertise in
international law and commercial practices.23 It is a preferred method for resolving disputes in the
global business community due to its efficiency, confidentiality, and ability to provide a neutral
forum for resolving complex cross-border disputes.

4.3. Legal Basis of International Arbitration

The legal basis of international arbitration is primarily derived from international conventions,
national laws, and arbitration agreements between parties. One of the key international
conventions that govern international arbitration is the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York
Convention.24 The New York Convention provides a framework for the recognition and

19
Albert Jan Van de Berg, Commentary on the New de Berg, Commentary on the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
20
Id
21
Id
22
Id
23
Id
24
Professor Emanuel Gaillard and Professor George Bermann, A Guide on the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (1958)

4
enforcement of arbitral awards in over 160 countries, making it a cornerstone of international
arbitration law.

In addition to international conventions, many countries have enacted national laws that govern
the conduct of international arbitration proceedings.25 These laws often incorporate principles from
international conventions and provide a legal framework for the enforcement of arbitral awards
within their jurisdiction.26

Furthermore, the legal basis of international arbitration is also established through arbitration
agreements between parties.27 These agreements typically outline the rules and procedures that
will govern the arbitration process, including the selection of arbitrators, the applicable law, and
the location of the arbitration.28

Overall, the legal basis of international arbitration is a combination of international conventions,

national laws, and arbitration agreements that provide a framework for the resolution of
international disputes through arbitration.

5. The New York Convention on the Recognition and Enforcement of

Foreign Arbitral Awards
The New York Convention, formally known as the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, is an international treaty that aims to facilitate the
recognition and enforcement of arbitral awards across different countries.29 The Convention was
adopted in 1958 during a United Nations conference held in New York and has since become one
of the most widely ratified treaties in the field of international arbitration.30

The New York Convention was created in response to the need for a more efficient and effective
mechanism for enforcing arbitral awards in international disputes.31 Prior to the Convention,

25
Id
26
Id
27
Id
28
Id
29
Reinmar Wolff, The New York Convention: A Commentary by Reinmar Wolff; Published by Hart Publishing,
Oxford, 2012
30
Id
31
Albert Jan Van de Berg, Commentary on the New de Berg, Commentary on the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards

5
enforcing arbitral awards across borders was often challenging and time-consuming, as each
country had its own rules and procedures for recognizing and enforcing foreign awards.32

By establishing a uniform and internationally recognized framework for the recognition and
enforcement of arbitral awards, the New York Convention has played a significant role in
promoting the use of arbitration as a preferred method for resolving international disputes.33 The
Convention has been instrumental in creating a more predictable and enforceable system for parties
involved in cross-border transactions and has contributed to the growth and development of
international arbitration as a reliable and efficient means of dispute resolution.34

5.1. Objectives of the New York Convention

The objective of the New York Convention, formally known as the United Nations Convention on
the Recognition and Enforcement of Foreign Arbitral Awards, is to promote and facilitate the
recognition and enforcement of foreign arbitral awards.35 The Convention aims to create a uniform
and efficient framework for the recognition and enforcement of arbitral awards in different
countries, thereby promoting international arbitration as a means of resolving cross-border
disputes.36

By establishing a set of rules and procedures for the recognition and enforcement of arbitral
awards, the New York Convention seeks to provide greater certainty and predictability for parties
involved in international arbitration.37 It also aims to enhance the enforceability of arbitral awards
and promote the finality of arbitration proceedings.38

The New York Convention has been widely adopted by countries around the world, making it one
of the most important international instruments in the field of arbitration.39 Its overarching goal is
to facilitate the enforcement of arbitral awards across borders and promote the effectiveness of
international arbitration as a method of resolving disputes.

32
Id
33
Id
34
Id
35
UN, Convention on the Recognition and Enforcement of Foreign arbitral Awards; New York, 1958 (here after
cited as ‘The New York convention’)
36
Albert Jan Van de Berg, Commentary on the New de Berg, Commentary on the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
37
Id
38
Id
39
Id

6
 5.2. Scope of Application of the New York Convention
The scope of application of the New York Convention is broad, as it applies to the recognition and
enforcement of arbitral awards made in the territory of a State other than the State where the
recognition and enforcement are sought.40

The New York Convention applies to arbitral awards resulting from both commercial and non-
commercial disputes, as long as the arbitration agreement is in writing and the award is considered
binding and final in the jurisdiction where it was made.41 The Convention sets out a framework
for the recognition and enforcement of arbitral awards among its member States, which currently
number over 160 countries.

The New York Convention aims to promote the effectiveness and efficiency of international
arbitration by providing a mechanism for the enforcement of arbitral awards across national
borders.42 It has become a cornerstone of international arbitration law and is widely recognized as
a key instrument for facilitating the enforcement of arbitral awards worldwide.

5.3. Definition of Arbitration Agreement in the New York Convention

An arbitration agreement in the context of the New York Convention refers to a written agreement
between parties to submit their disputes to arbitration.43 The New York Convention, formally
known as the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, is an international treaty that aims to facilitate the recognition and enforcement of arbitral
awards across different countries.

Under the New York Convention, an arbitration agreement must be in writing and must be signed
by the parties or contained in an exchange of letters, telex, telegrams, or other means of
communication that provide a record of the agreement.44 The agreement must refer to a specific
dispute or disputes that the parties have agreed to resolve through arbitration.45

Arbitration agreements that meet the requirements of the New York Convention are generally
considered valid and enforceable in the signatory countries of the Convention. This allows parties

40
The New York Convention, art. I (1)
41
Id, art. II (1)
42
Reinmar Wolff, The New York Convention: A Commentary by Reinmar Wolff; Published by Hart Publishing,
Oxford, 2012
43
The New York Convention, art. II (1)
44
Id, art. II (2)
45
Id

7
to rely on arbitration as a means of resolving international disputes and ensures that arbitral awards
can be recognized and enforced in multiple jurisdictions.

5.4. Conditions in the New York Convention to Recognize Foreign Arbitral Awards
The recognition of arbitral awards is governed by the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards. This international treaty aims to facilitate the
recognition and enforcement of arbitral awards across different countries. The New York
Convention sets out the conditions under which an arbitral award can be recognized and enforced,
providing a framework for international arbitration.46 It is important for parties involved in
international arbitration to understand and comply with the provisions of the New York Convention
to ensure the enforceability of arbitral awards in different jurisdictions.

The recognition of foreign arbitral awards typically requires compliance with certain key
requirements.47 These requirements may vary depending on the jurisdiction, but generally include
the following:

✓ The arbitral award must be issued by a competent arbitral tribunal in accordance with the
arbitration agreement.
✓ The arbitral award must be final and binding in nature.
✓ The arbitral award must not be contrary to public policy or the laws of the jurisdiction
where recognition is sought.
✓ The party seeking recognition must provide the necessary documentation, such as the
original arbitral award and the arbitration agreement.48
✓ The party seeking recognition must follow the proper legal procedures for recognition in
the relevant jurisdiction.49

5.5. Grounds in the New York Convention to Refuse to Recognize Foreign Arbitral
Awards
The grounds for refusal of recognition and enforcement of foreign arbitral awards may vary
depending on the jurisdiction, but some common grounds include:

46
See art. V (1) of the New York Convention
47
Id
48
See art. IV of the New York Convention
49
Id

8
 ➢ The arbitration agreement is not valid under the law chosen by the parties or the law of the
country where the award was made.50
➢ The party against whom the award is invoked was not given proper notice of the arbitration
proceedings or was unable to present their case.51
➢ The arbitral tribunal exceeded its authority or the scope of the arbitration agreement.52
➢ The arbitral award deals with a matter not contemplated by or not falling within the terms
of the submission to arbitration.53
➢ The recognition or enforcement of the award would be contrary to public policy in the
jurisdiction where enforcement is sought.54

5.6. Stay of Execution/Enforcement

Under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
there is a provision for the stay of enforcement of an arbitral award. Article VI of the Convention
allows a party to request a court to stay the enforcement of an arbitral award pending the outcome
of a challenge to the award.55 This provision is intended to provide parties with a mechanism to
seek temporary relief from enforcement while any legal challenges to the award are being resolved.

The decision to grant a stay of enforcement is typically within the discretion of the court, taking
into account factors such as the likelihood of success of the challenge to the award, the potential
harm to the parties, and the interests of justice.56 Parties seeking a stay of enforcement should
follow the procedures set out in the New York Convention and the relevant laws of the jurisdiction
where enforcement is sought.

5.7. Reservation
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards allows
for reservations by member states.57 A reservation is a formal statement made by a state at the time
of ratification or accession to the Convention, indicating that it does not consider itself bound by
certain provisions of the Convention.

50
Id, art, V
51
Id, art. V(1(b))
52
Id, art. V(1(c))
53
Id, art. V(1(d))
54
Id, art. V(1(e))
55
See art. VI of the New York convention
56
Id
57
See art. X of the New York convention

9
Member states may make reservations to limit the application of the Convention in specific
circumstances.58 However, it is important to note that reservations must not be incompatible with
the object and purpose of the Convention. Additionally, reservations may impact the enforceability
of arbitral awards in those states that have made reservations.59

5.8. Denunciation
Once a country becomes a party to the Convention, it is bound by its provisions unless it formally
withdraws from the Convention.60 However, it is worth noting that withdrawal from the New York
Convention is rare, as the Convention is widely recognized as a key instrument for the enforcement
of arbitral awards internationally.

58
Id
59
See art. XIV of the New York Convention
60
See art. XIII of The Same

10
Reference
1. Berg, Albert Jan Van De. "Commentary on the New York Convention." n.d.
2. Berman, Professor Emmanuel Gailland and Professor George. "A Guide on the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (1958)." n.d.

3. Dr. Nandkishor K Remteke (LL.B, NET PhD). "Aternative Dispute Resolution (ADR) Under
International and National Context." n.d.

4. Getu, Tefera Eshetu and Mulugeta. "Alternative Dispute Resolution Teaching material ." Addis
Ababa: The Justice and Legal System Research institute, 2009.

5. Group, Conflict Management. "Alternative Dispute Resolution Practitioners Guide." n.d.

6. Mnookin, Robert. "Alternative Dispute Resolution." NELLCO Legal ScHolarship Repository,

Harvard Law School, 1998.

7. UN. "Convention on the Recognition and Enforcement of Foreign arbitral Awards." New York:
UN, 1958.

8. Wolff, Reinmar. "The New York Convention: A Commentary edited by Reinmar Wolff." Oxford:
Hart Publishing, 2012.

i
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