THE UNDERSIGNED, DULY AUTHORIZED,
Convened under the auspices of the Economic Commission for Europe of the
United Nations.
Having noted that on 10th June 1958 at the United Nations Conference on
International Commercial Arbitration has been signed in New York a Convention
on the Recognition and Enforcement of Foreign Arbitral Awards,
Desirous of promoting the development of European trade by, as far as
possible, removing certain difficulties that may impede the organization and
operation of international commercial arbitration in relations between
physical or legal persons of different European countries,
Have agreed on the following provisions:
Article I - Scope of the
Convention
1. This Convention shall apply:
(a) to arbitration agreements concluded for the purpose of settling disputes
arising from international trade between physical or legal persons having,
when concluding the agreement, their habitual place of residence or their
seat in different Contracting States;
(b) to arbitral procedures and awards based on agreements referred to in
paragraph 1(a) above.
2. For the purpose of this Convention,
(a) the term: "arbitration agreement" shall mean either an arbitral
clause in a contract or an arbitration agreement, the contract or arbitration
agreement being signed by the parties, or contained in an exchange of
letters, telegrams, or in a communication by teleprinter and, in relations
between States whose laws do not require that an arbitration agreement be
made in writing, any arbitration agreement concluded in the form authorized
by these laws;
(b) the term "arbitration" shall mean not only settlement by
arbitrators appointed for each case ( ad hoc arbitration) but also by
permanent arbitral institutions;
(c) the term "seat" shall mean the place of the situation of the
establishment that has made the arbitration agreement.
Article II - Right of Legal
Persons of Public Law to Resort to Arbitration
1. In cases referred to in Article I, paragraph 1, of this Convention, legal
persons considered by the law which is applicable to them as "legal
persons of public law" have the right to conclude valid arbitration
agreements.
2. On signing, ratifying or acceding to this Convention any State shall be
entitled to declare that it limits the above faculty to such conditions as
may be stated in its declaration.
Article III - Right of Foreign
Nationals to be Designated as Arbitrators
In arbitration covered by this Convention, foreign nationals may be
designated as arbitrators.
Article IV - Organization of the
Arbitration
1. The parties to an arbitration agreement shall be free to submit their
disputes:
(a) to a permanent arbitral institution; in this case, the arbitration
proceedings shall be held in conformity with the rules of the said
institution;
(b) to an ad hoc arbitral procedure; in this case, they shall be free inter
alia
(i) to appoint arbitrators or to establish means for their appointment in the
event of an actual dispute;
(ii) to determine the place of arbitration; and
(iii) to lay down the procedure to be followed by the arbitrators.
2. Where the parties have agreed to submit any disputes to an ad hoc
arbitration, and where within thirty days of the notification of the request
for arbitration to the respondent one of the parties fails to appoint his
arbitrator, the latter shall, unless otherwise provided, be appointed at the
request of the other party by the President of the competent Chamber of
Commerce of the country of the defaulting party's habitual place of residence
or seat at the time of the introduction of the request for arbitration. This
paragraph shall also apply to the replacement of the arbitrator(s) appointed
by one of the parties or by the President of the Chamber of Commerce above
referred to.
3. Where the parties have agreed to submit any disputes to an ad hoc
arbitration by one or more arbitrators and the arbitration agreement contains
no indication regarding the organization of the arbitration, as mentioned in
paragraph 1 of this Article, the necessary steps shall be taken by the
arbitrator(s) already appointed, unless the parties are able to agree thereon
and without prejudice to the case referred to in paragraph 2 above. Where the
parties cannot agree on the appointment of the sole arbitrator or where the
arbitrators appointed cannot agree on the measures to be taken, the claimant
shall apply for the necessary action, where the place of arbitration has been
agreed upon by the parties, at his option to the President of the Chamber of
Commerce of the place of arbitration agreed upon or to the President of the
competent Chamber of Commerce of the respondent's habitual place of residence
or seat at the time of the introduction of the request for arbitration. Where
such a place has not been agreed upon, the claimant shall be entitled at his
option to apply for the necessary action either to the President of the
competent Chamber of Commerce of the country of the respondent's habitual
place of residence or seat at the time of the introduction of the request for
arbitration, or to the Special Committee whose composition and procedure are
specified in the Annex to this Convention. Where the claimant fails to
exercise the rights given to him under this paragraph the respondent or the
arbitrator(s) shall be entitled to do so.
4. When seized of a request the President or the Special Committee shall be
entitled as need be:
(a) to appoint the sole arbitrator, presiding arbitrator, umpire, or referee;
(b) to replace the arbitrator(s) appointed under any procedure other than
that referred to in paragraph 2 above;
(c) to determine the place of arbitration, provided that the arbitrator(s)
may fix another place of arbitration;
(d) to establish directly or by reference to the rules and statutes of a
permanent arbitral institution the rules of procedure to be followed by the
arbitrator(s), provided that the arbitrators have not established these rules
themselves in the absence of any agreement thereon between the parties.
5. Where the parties have agreed to submit their disputes to a permanent
arbitral institution without determining the institution in question and
cannot agree thereon, the claimant may request the determination of such
institution in conformity with the procedure referred to in paragraph 3
above.
6. Where the arbitration agreement does not specify the mode of arbitration
(arbitration by a permanent arbitral institution or an ad hoc arbitration) to
which the parties have agreed to submit their dispute, and where the parties
cannot agree thereon, the claimant shall be entitled to have recourse in this
case to the procedure referred to in paragraph 3 to determine the question.
The President of the competent Chamber of Commerce or the Special Committee,
shall be entitled either to refer the parties to a permanent arbitral
institution or to request the parties to appoint their arbitrator within such
time-limits as the President of the competent Chamber of Commerce or the
Special Committee may have fixed and to agree within such time-limits on the
necessary measures for the functioning of the arbitration. In the latter
case, the provisions of paragraphs 2, 3 and 4 of this Article shall apply.
7. Where within a period of sixty days from the moment when he was requested
to fulfil one of the functions set out in paragraphs 2, 3, 4, 5 and 6 of this
Article, the President of the Chamber of Commerce designated by virtue of
these paragraphs has not fulfilled one of these functions, the party
requesting shall be entitled to ask the Special Committee to do so.
Article V - Plea as to Arbitral
Jurisdiction
1. The party which intends to raise a plea as to the arbitrator's
jurisdiction based on the fact that the arbitration agreement was either
non-existent or null and void or had lapsed shall do so during the
arbitration proceedings, not later than the delivery of its statement of
claim or defence relating to the substance of the dispute; those based on the
fact that an arbitrator has exceeded his terms of reference shall be raised
during the arbitration proceedings as soon as the question on which the
arbitrator is alleged to have no jurisdiction is raised during the arbitral
procedure. Where the delay in raising the plea is due to a cause which the
arbitrator deems justified, the arbitrator shall declare the plea admissible.
2. Pleas to the jurisdiction referred to in paragraph 1 above that have not
been raised during the time-limits there referred to, may not be entered
either during a subsequent stage of the arbitral proceedings where they are
pleas left to the sole discretion of the parties under the law applicable by
the arbitrator, or during subsequent court proceedings concerning the
substance or the enforcement of the award where such pleas are left to the
discretion of the parties under the rule of conflict of the court seized of
the substance of the dispute or the enforcement of the award. The
arbitrator's decision on the delay in raising the plea, will, however, be
subject to judicial control.
3. Subject to any subsequent judicial control provided for under the lex fori
, the arbitrator whose jurisdiction is called in question shall be entitled
to proceed with the arbitration, to rule on his own jurisdiction and to
decide upon the existence or the validity of the arbitration agreement or of
the contract of which the agreement forms part.
Article VI - Jurisdiction of
Courts of Law
1. A plea as to the jurisdiction of the court made before the court seized by
either party to the arbitration agreement, on the basis of the fact that an
arbitration agreement exists shall, under penalty of estoppel, be presented
by the respondent before or at the same time as the presentation of his
substantial defence, depending upon whether the law of the court seized
regards this plea as one of procedure or of substance.
2. In taking a decision concerning the existence or the validity of an
arbitration agreement, courts of Contracting States shall examine the
validity of such agreement with reference to the capacity of the parties,
under the law applicable to them, and with reference to other questions.
(a) under the law to which the parties have subjected their arbitration
agreement;
(b) failing any indication thereon, under the law of the country in which the
award is to be made;
(c) failing any indication as to the law to which the parties have subjected
the agreement, and where at the time when the question is raised in court the
country in which the award is to be made cannot be determined, under the
competent law by virtue of the rules of conflict of the court seized of the
dispute.
The courts may also refuse recognition of the arbitration agreement if under
the law of their country the dispute is not capable of settlement by
arbitration.
3. Where either party to an arbitration agreement has initiated arbitration
proceedings before any resort is had to a court, courts of Contracting States
subsequently asked to deal with the same subject-matter between the same
parties or with the question whether the arbitration agreement was
non-existent or null and void or had lapsed, shall stay their ruling on the
arbitrator's jurisdiction until the arbitral award is made, unless they have
good and substantial reasons to the contrary.
4. A request for interim measures or measures of conservation addressed to a
judicial authority shall not be deemed incompatible with the arbitration
agreement, or regarded as a submission of the substance of the case to the
court.
Article VII - Applicable Law
1. The parties shall be free to determine, by agreement, the law to be
applied by the arbitrators to the substance of the dispute. Failing any
indication by the parties as to the applicable law, the arbitrators shall
apply the proper law under the rule of conflict that the arbitrators deem
applicable. In both cases the arbitrators shall take account of the terms of
the contract and trade usages.
2. The arbitrators shall act as amiables compositeurs if the parties so
decide and if they may do so under the law applicable to the arbitration.
Article VIII - Reasons for the
Award
The parties shall be presumed to have agreed that reasons shall be given for
the award unless they
(a) either expressly declare that reasons shall not be given; or
(b) have assented to an arbitral procedure under which it is not customary to
give reasons for awards, provided that in this case neither party requests
before the end of the hearing, or if there has not been a hearing then before
the making of the award, that reasons be given.
Article IX - Setting Aside of the
Arbitral Award
1. The setting aside in a Contracting State of an arbitral award covered by
this Convention shall only constitute a ground for the refusal of recognition
or enforcement in another Contracting State where such setting aside took
place in a State in which, or under the law of which, the award has been made
and for one of the following reasons:
(a) the parties to the arbitration agreement were under the law applicable to
them, under some incapacity or the said agreement is not valid under the law
to which the parties have subjected it or, failing any indication thereon,
under the law of the country where the award was made, or
(b) the party requesting the setting aside of the award was not given proper
notice of the appointment of the arbitrator or of the arbitration proceedings
or was otherwise unable to present his case; or
(c) the award deals with a difference not contemplated by or not falling
within the terms of the submission to arbitration, or it contains decisions
on matters beyond the scope of the submission to arbitration, provided that,
if the decisions on matters submitted to arbitration can be separated from
those not so submitted, that part of the award which contains decisions on
matters submitted to arbitration need not be set aside;
(d) the composition of the arbitral authority or the arbitral procedure was
not in accordance with the agreement of the parties, or failing such
agreement, with the provisions of Article IV of this Convention.
2. In relations between Contracting States that are also parties to the New
York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
of 10th June 1958, paragraph 1 of this Article limits the application of
Article V (1) (e) of the New York Convention solely to the cases of setting
aside set out under paragraph 1 above.
Article X - Final Clauses
1. This Convention is open for signature or accession by countries members of
the Economic Commission for Europe and countries admitted to the Commission
in a consultative capacity under paragraph 8 of the Commission's terms of
reference.
2. Such countries as may participate in certain activities of the Economic
Commission for Europe in accordance with paragraph 11 of the Commission's
terms of reference may become Contracting Parties to this Convention by
acceding thereto after its entry into force.
3. The Convention shall be open for signature until 31 December 1961
inclusive. Thereafter, it shall be open for accession.
4. This Convention shall be ratified.
5. Ratification or accession shall be effected by the deposit of an
instrument with the Secretary-General of the United Nations.
6. When signing, ratifying or acceding to this Convention, the Contracting
Parties shall communicate to the Secretary-General of the United Nations a
list of the Chambers of Commerce or other institutions in their country who
will exercise the functions conferred by virtue of Article IV of this
Convention on Presidents of the competent Chambers of Commerce.
7. The provisions of the present Convention shall not affect the validity of
multi-lateral or bilateral agreements concerning arbitration entered into by
Contracting States.
8. This Convention shall come into force on the ninetieth day after five of
the countries referred to in paragraph 1 above have deposited their
instruments of ratification or accession. For any country ratifying or
acceding to it later this Convention shall enter into force on the ninetieth
day after the said country has deposited its instrument of ratification or
accession.
9. Any Contracting Party may denounce this Convention by so notifying the
Secretary-General of the United Nations. Denunciation shall take effect
twelve months after the date of receipt by the Secretary-General of the
notification of denunciation.
10. If, after the entry into force of this Convention, the number of
Contracting Parties is reduced, as a result of denunciations, to less than
five, the Convention shall cease to be in force from the date on which the
last of such denunciations takes effect.
11. The Secretary-General of the United Nations shall notify the countries
referred to in paragraph 1, and the countries which have become Contracting
Parties under paragraph 2 above, of
(a) declarations made under Article II, paragraph 2;
(b) ratifications and accessions under paragraphs 1 and 2 above;
(c) communications received in pursuance of paragraph 6 above;
(d) the dates of entry into force of this Convention in accordance with
paragraph 8 above;
(e) denunciations under paragraph 9 above;
(f) the termination of this Convention in accordance with paragraph 10 above.
12. After 31 December 1961, the original of this Convention shall be
deposited with the Secretary-General of the United Nations, who shall
transmit certified true copies to each of the countries mentioned in
paragraphs 1 and 2 above.
IN WITNESS THEREOF the undersigned, being duly authorized thereto, have
signed this Convention.
DONE at Geneva, this twenty-first day of April, one thousand nine hundred and
sixty-one, in a single copy in the English, French and Russian languages,
each text being equally authentic.
Annex COMPOSITION AND PROCEDURE OF THE SPECIAL COMMITTEE REFERRED TO IN
Article IV OF THE CONVENTION
1. The Special Committee referred to in Article IV of the Convention shall
consist of two regular members and a Chairman. One of the regular members
shall be elected by the Chambers of Commerce or other institutions
designated, under Article X, paragraph 6, of the Convention, by States in
which at the time when the Convention is open to signature national
Committees of the International Chamber of Commerce exist, and which at the
time of the election are parties to the Convention. The other member shall be
elected by the Chambers of Commerce or other institutions designated, under
Article X, paragraph 6, of the Convention, by States in which at the time
when the Convention is open to signature no National Committees of the
International Chamber of Commerce exist and which at the time of the election
are parties to the Convention.
2. The persons who are to act as Chairman of the Special Committee pursuant
to paragraph 7 of this Annex shall also be elected in like manner by the
Chambers of Commerce or other institutions referred to in paragraph 1 of this
Annex.
3. The Chambers of Commerce or other institutions referred to in paragraph 1
of this Annex shall elect alternates at the same time and in the same manner
as they elect the Chairman and other regular members, in case of the
temporary inability of the Chairman or regular members to act. In the event
of the permanent inability to act or of the resignation of a Chairman or of a
regular member, then the alternate elected to replace him shall become, as
the case may be, the Chairman or regular member, and the group of Chambers of
Commerce or other institutions which had elected the alternate who has become
Chairman or regular member shall elect another alternate.
4. The first elections to the Committee shall be held within ninety days from
the date of the deposit of the fifth instrument of ratification or accession.
Chambers of Commerce and other institutions designated by Signatory States
who are not yet parties to the Convention shall also be entitled to take part
in these elections. If however it should not be possible to hold elections
within the prescribed period, the entry into force of paragraphs 3 to 7 of Article
IV of the Convention shall be postponed until elections are held as provided
for above.
5. Subject to the provisions of paragraph 7 below, the members of the Special
Committee shall be elected for a term of four years. New elections shall be
held within the first six months of the fourth year following the previous
elections. Nevertheless, if a new procedure for the election of the members
of the Special Committee has not produced results, the members previously
elected shall continue to exercise their functions until the election of new
members.
6. The results of the elections of the members of the Special Committee shall
be communicated to the Secretary-General of the United Nations who shall
notify the States referred to in Article X, paragraph 1, of the Convention
and the States which have become Contracting Parties under Article X,
paragraph 2. The Secretary-General shall likewise notify the said States of
any postponement and of the entry into force of paragraphs 3 and 7 of Article
IV of the Convention in pursuance of paragraph 4 of this Annex.
7. The persons elected to the office of Chairman shall exercise their
functions in rotation, each during a period of two years. The question which
of these two persons shall act as chairman during the first two-year period
after entry into force of the Convention shall be decided by the drawing of
lots. The office of Chairman shall thereafter be vested, for each successive
two year period, in the person elected Chairman by the group of countries other
than that by which the Chairman exercising his functions during the
immediately preceding two-year period was elected.
8. The reference to the Special Committee of one of the requests referred to
in paragraphs 3 to 7 of the aforesaid Article IV shall be addressed to the
Executive Secretary of the Economic Commission for Europe. The Executive
Secretary shall in the first instance lay the request before the member of
the Special Committee elected by the group of countries other than that by
which the Chairman holding office at the time of the introduction of the
request was elected. The proposal of the member applied to in the first
instance shall be communicated by the Executive Secretary to the other member
of the Committee and, if that other member agrees to this proposal, it shall
be deemed to be the Committee's ruling and shall be communicated as such by
the Executive Secretary to the person who made the request.
9. If the two members of the Special Committee applied to by the Executive
Secretary are unable to agree on a ruling by correspondence, the Executive
Secretary of the Economic Commission for Europe shall convene a meeting of
the said Committee at Geneva in an attempt to secure a unanimous decision of
unanimity, the Committee's decision shall be given by a majority vote and
shall be communicated by the Executive Secretary to the person who made the
request.
10. The expenses connected with the Special Committee's action shall be
advanced by the person requesting such action but shall be considered as
costs in the cause.
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