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Classification of Arbitrations Part 3
Foreign Arbitral Award
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention, applies to “Foreign Arbitral Award”. So, what is the definition of this award?
Art. I of the New York states “This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought. […]”.
According to this article, two types of award follow the convention. The first one is the award made in a State different from the one in which the enforcement is sought; the second relies on the definition of domestic award of each State and allows the enforcement of every award that does not fit that definition. Usually, a State can construe an award to be domestic when all the elements of the arbitration proceedings belong to that State. Accordingly, if the proceedings include international elements, such as the Seat, the law applicable, parties, etc., this could be considered an international arbitration and its outcome is a foreign award.
Under the New York Convention, to request the recognition and the enforcement of a foreign award, a party must fulfill two requirements set in Article IV: 1) providing the duly authenticated original award or a duly certified copy thereof: 2) providing the original agreement referred to in article II or a duly certified copy thereof. Once these two conditions are satisfied, the domestic court recognize and enforce the award.
An example of what is mentioned above is the case Bergesen v. Joseph Muller Corp in which the Court hold the decision that if an award is made in the State of New York between two foreign parties, a Norvegian shipowner and a Swiss company, may be considered a non-domestic award within the meaning of the New York Convention.
