Abstract
If arbitration is commonly considered to constitute the dispute resolution system of choice for international commercial transactions, this is not only because of its particular advantages as compared to adjudication by national courts but also due to the tremendous success that the “New York Convention” on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 has had as an international instrument of uniform law. The preface to this new Commentary rightly claims that the Convention is “one of the most effective international instruments (if not the most effective) in the field of commercial law.” The continuing appeal it exerts to states from around the world is shown by the fact that the number of Member States given in the preface as of August 2012—an impressive 147 states—has already increased by the time of this review by one, with the accession of São Tomé and Príncipe on November 20, 2012.
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Notes
- 1.
- 2.
Option I: “Article 7. Definition and form of arbitration agreement
(1) ‘Arbitration agreement’ is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing.
(3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.
(4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; ‘electronic communication’ means any communication that the parties make by means of data messages; ‘data message’ means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.
(5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.
(6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.”
- 3.
Option II: “Article 7. Definition of arbitration agreement
‘Arbitration agreement’ is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.”
- 4.
Bundesgesetz über das Internationale Privatrecht (= Private International Law Act), Art. 178 (1), available at http://www.admin.ch/ch/d/sr/291/a178.html.
- 5.
Zivilprozessordnung (= Code of Civil Procedure), § 1031, available at http://www.gesetze-im-internet.de/zpo/__1031.html; English translation: http://www.gesetze-im-internet.de/englisch_zpo/englisch_zpo.html#p3464.
- 6.
Available at http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/A2E.pdf. Also reprinted in Annex III to the Commentary (pp. 564–565).
- 7.
Bundesgerichtshof (30-09-10), III ZB 69/09, Zeitschrift für Schiedsverfahren – German Arbitration Journal 8 (2010) 6, p. 332. English summary available at http://www.dis-arb.de/de/47/datenbanken/rspr/bgh-az-iii-zb-69-09-datum-2010-09-30-id1080.
- 8.
United States Court of Appeals, Second Circuit, Bergesen v. Joseph Muller Corp., 710 F.2d 928.
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Solomon, D. (2013). Reinmar Wolff (ed.), New York Convention. Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958. Commentary. In: Herrmann, C., Krajewski, M., Terhechte, J. (eds) European Yearbook of International Economic Law 2014. European Yearbook of International Economic Law, vol 5. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40913-4_19
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