New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) - Some African States still need to accede
In 1966, the United Nations General Assembly established the Commission on International Trade Law (UNCITRAL) with a mandate to promote the progressive harmonization and unification of international trade law. The reasons for the creation of UNCITRAL were manifold, but inclusivity was among most significant of them. A number of African States had become independent and joined the United Nations in the early sixties. Many of them retained legal systems unfit to their new status, and were faced with the need to develop modern and adequate legal frameworks, including for cross-border trade and international dispute settlement. Also, these States were not part of any international law-making body yet, and it was crucial to ensure their participation in the harmonization and unification efforts.
UNCITRAL texts are negotiated with universal participation and aim to guarantee their compatibility with the various legal traditions. Therefore, these instruments significantly contribute to supporting good governance and development, building an open trading and financial system that is rule-based, predictable and non-discriminatory.
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is a cornerstone instrument in the field of international trade law and international dispute settlement. The Convention was prepared under the auspices of the United Nations, and is promoted by UNCITRAL, as the guardian of its interpretation and application.
The Convention is justifiably the single most important and successful United Nations treaty in the area of international trade law. It is widely recognized as a foundational instrument of international arbitration and a main pillar for cross-border trade and investment. The Convention seeks to provide common legislative standards for the recognition of arbitration agreements and court recognition and enforcement of foreign and non-domestic arbitral awards. The Convention is almost a universal instrument with the participation of 157 States1. In Africa, however, a significant number of States are still not parties to the Convention, such as Chad, Congo, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea-Bissau, Malawi, Namibia, Sierra Leone, South Sudan, Sudan, Swaziland and Togo.
In its Resolution 62/65 (December 2007), the UN General Assembly expressed its conviction that the New York Convention strengthens respect for binding commitments, inspires confidence in the rule of law and ensures fair treatment in the resolution of disputes arising over contractual rights and obligations. The ratification of the Convention is considered as furthering the Sustainable Development Goal 16 “Peace, Justice and Strong Institutions”.
Therefore, the Convention is a key indicator of a strong legal framework for cross-border dispute settlement, and is frequently used as a reference when evaluating trade and investment attractiveness. It contributes significantly to the investor-friendly environment.
Investors base their decisions, inter alia, on the sound economic legal framework and regulatory mechanisms. Predictability, reliability, efficiency, and adequate legal solutions, or – simply – trust in law, promoted by the New York Convention, are construction blocks of a vibrant economy.
Although commercial law constantly evolves in response to the development of business practices, emergence of new technologies and global challenges, the Convention remains a key instrument in international commercial arbitration. In combination with reliable legal framework (such as UNCITRAL Model Law on International Commercial Arbitration) and trained practitioners it ensures access to justice in a form of efficient and fair dispute resolution.
The UN General Assembly also expressed its “hope that States that are not yet parties to the Convention will soon become parties thereto, which would ensure that the legal certainty afforded by the Convention is universally enjoyed, decreasing the level of risk and transactional costs associated with doing business and thus promoting international trade”. Such emphasis on further national efforts to achieve universal adherence to the Convention, together with its uniform interpretation and effective implementation, persists.
To celebrate the 60th anniversary of the New York Convention, a special event will be organized in New York on 28 June 2018 during the UNCITRAL annual session. States that are not yet party to the Convention are encouraged to consider signing to the Convention officially at the occasion of that event.
1:The status of the Convention can be accessed on the Internet at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html
By: Judith Knieper
Legal Officer / Juriste