QUEEN MARY UNIVERSITY OF LONDON
SCHOOL OF LAW
LLM in International Dispute Resolution
2021/23
DISSERTATION
HOW EFFECTIVE IS ARTICLE V(1)(C) UNDER THE NEW YORK CONVENTION
TOWARDS RESISTING THE ENFORCEABILITY OF ARBITRAL AWARDS?
, Introduction
Over the years, parties have attempted to apply Article V(1)(c) of the New York Convention
towards resisting the enforceability of arbitral awards by alleging that the tribunal exceeded
their own authority when rendering their awards. This dissertation examines the various
methods that have been applied towards resisting their enforceability and the issues hindering
these methods as follows: (1) Chapter I examines the background and limited application of
Article V(1)(c); (2) Chapter II examines the resistance of enforcing awards as ‘ultra petita’
decisions; (3) Chapter III examines the resistance of enforcing awards as ‘infra petita’ decisions;
and (4) Chapter IV examines the partial enforcement of awards. Lastly, I will provide my own
conclusion on the efficacy of Article V(1)(c) towards resisting the enforceability of arbitral
awards based on my research and opinions followed by my recommendations towards
improving its efficacy.
2
, Chapter I
Article V(1)(c)
1) The New York Convention
The New York Convention (“Convention”) was established in 1958 to facilitate the
enforcement of arbitral awards in a state signatory to the Convention (“enforcing state”) other
than the state where the award was created (“rendering state”)1.
Article IV of the Convention requires the party seeking recognition and enforcement of
the award to produce to the enforcing state’s courts: (1) An authenticated copy of the award;
(2) An original or a copy of the arbitration agreement; and (3) Translations of the award and
the arbitration agreement in the enforcing state’s language (if necessary).
Article V of the Convention inspired an exhaustive list of grounds for the enforcing
state’s courts to resist the enforcement of awards with ‘entire freedom’ 2 . It provides that
‘[r]ecognition and enforcement of the award may be refused, at the request of the party against
whom it is invoked, only if that party furnishes to the competent authority where the
recognition and enforcement is sought’ the required proof under Article V. Article V(1) broadly
protects the parties’ due process rights and must be invoked by the resisting party. Article V(2)
protects the contracting states’ notions of sovereignty and may be invoked by either the
resisting party or the enforcing state’s courts. The resisting party must apply within 3 months
from when the aggrieved party received the award subject to extended limitation as
appropriate3.
2) Article V(1)(c)
The enforcing state’s courts may resist the enforceability of awards under Article V(1)(c) if the
resisting party provides evidence that ‘[t]he 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 may be recognized and
enforced’. Generally, courts have interpreted the first half of the provision as a means to deny
the enforceability of awards as ‘ultra petita’ decisions where they exceeded matters within the
scope of the submission to arbitration. They have also been denied enforcement as ‘infra petita’
decisions where they failed to address all issues submitted to arbitration, but only by few courts.
However, many courts have interpreted the second half of the provision to allow partial
enforcement of awards by enforcing them to the extent that they deal with matters properly
submitted to arbitration and they are severable from matters not properly submitted to
arbitration. These issues are further explored in this dissertation.
1
New York Convention, Article I(1).
2
Fouchard, 1997, para 345.
3
UNCITRAL Model Law, Article 34(3).
3
, 3) Article V(1)(c) – Limitations
a) Narrow Interpretation of Article V(1)(c)
Challenges under Article V(1)(c) may not always succeed as several courts, particularly in the
US, have consistently construed its wording ‘narrowly’ to avoid usurping the tribunal’s role in
making decisions for the parties4. They have also done so because of the provision’s descriptive
nature, which makes it vulnerable to different interpretations and the potential application of
national concepts 5 . But most importantly, Article V(1)(c) has been narrowly construed to
advance the Convention’s ‘enforcement-facilitating thrust’6 to resolve disputes speedily and
avoid extended court expense and delay7. Such approach has also been favoured by courts in
France, whereas courts in China, India and Russia have been perceived as hostile towards it
(see Figure 1 below). However, such hostility has been reported to be caused by their unstable
political regime or closed markets, civil law-based lawyers’ lack of familiarity with common
law legal systems and Chinese corporate counsels being discouraged from arbitrating disputes
because of the bias nature of arbitrators 8 . Otherwise, most jurisdictions’ courts will likely
favour the350
enforcementTHE
of AMERICAN
awards under the Convention and thus narrowly [Vol.
REVIEW OF INTERNATIONAL ARBITRATION
construe
19
Article
V(1)(c) when dealing with challenges to resist their enforcement.
In which countries do you consider has your corporation might
In which countries do you consider that your corporation might
encounter problems
encounter problems inin enforcing
enforcingforeign
foreignarbitral
arbitralawards?
awards ?
Indonesia 5%
Iran 2%
South Korea 2%
Sudan 2%
Nigeria 2%
Romania 2%
UK 2%
UAE 2%
USA 6%
Bolivia 4%
Ecuador 2%
Peru 2%
Venezuela 4%
Colombia 4%
China 31%
Russia 14%
Tajikistan 2%
Argentina 2%
India 10%
Brazil 6%
Turkey 4%
0% 5% 10% 15% 20% 25% 30% 35%
Figure 20. Countries perceived as hostile to the enforcement of foreign arbitral
Figure 1: Countries Hostileawards
to the Enforcement of Awards9
Institutional Response:
4
Kersa v. Infancourtage (1993); Lesotho v. Impreglio (2005); LIAMCO v. Libya (1982).
5
Wiliński, 2020,Arbitration
page 327. institutions were asked to name the countries where the parties in
6 arbitration proceedings
American Construction v. Mechanisedadministered
Constructionby theirParsons
(1987); institution encountered
v. Société Généralesignificant
(1974).
7
Chevron v.difficulties in enforcing
Ecuador (2013) awards.Commerce
para 67; Federal The most v.cited countries were(1972)
Kanematsu-Gosho China,paras
Turkey
387 and
and 389.
8
Mistelis & Taiwan.
Baltag, 2008, page 349.
9
Mistelis & Baltag, 2008, page 350.
3. Time and Recovery Rate in the Enforcement Proceedings
4 and execute arbitral awards is less
The average time to recognize, enforce
than one year
SCHOOL OF LAW
LLM in International Dispute Resolution
2021/23
DISSERTATION
HOW EFFECTIVE IS ARTICLE V(1)(C) UNDER THE NEW YORK CONVENTION
TOWARDS RESISTING THE ENFORCEABILITY OF ARBITRAL AWARDS?
, Introduction
Over the years, parties have attempted to apply Article V(1)(c) of the New York Convention
towards resisting the enforceability of arbitral awards by alleging that the tribunal exceeded
their own authority when rendering their awards. This dissertation examines the various
methods that have been applied towards resisting their enforceability and the issues hindering
these methods as follows: (1) Chapter I examines the background and limited application of
Article V(1)(c); (2) Chapter II examines the resistance of enforcing awards as ‘ultra petita’
decisions; (3) Chapter III examines the resistance of enforcing awards as ‘infra petita’ decisions;
and (4) Chapter IV examines the partial enforcement of awards. Lastly, I will provide my own
conclusion on the efficacy of Article V(1)(c) towards resisting the enforceability of arbitral
awards based on my research and opinions followed by my recommendations towards
improving its efficacy.
2
, Chapter I
Article V(1)(c)
1) The New York Convention
The New York Convention (“Convention”) was established in 1958 to facilitate the
enforcement of arbitral awards in a state signatory to the Convention (“enforcing state”) other
than the state where the award was created (“rendering state”)1.
Article IV of the Convention requires the party seeking recognition and enforcement of
the award to produce to the enforcing state’s courts: (1) An authenticated copy of the award;
(2) An original or a copy of the arbitration agreement; and (3) Translations of the award and
the arbitration agreement in the enforcing state’s language (if necessary).
Article V of the Convention inspired an exhaustive list of grounds for the enforcing
state’s courts to resist the enforcement of awards with ‘entire freedom’ 2 . It provides that
‘[r]ecognition and enforcement of the award may be refused, at the request of the party against
whom it is invoked, only if that party furnishes to the competent authority where the
recognition and enforcement is sought’ the required proof under Article V. Article V(1) broadly
protects the parties’ due process rights and must be invoked by the resisting party. Article V(2)
protects the contracting states’ notions of sovereignty and may be invoked by either the
resisting party or the enforcing state’s courts. The resisting party must apply within 3 months
from when the aggrieved party received the award subject to extended limitation as
appropriate3.
2) Article V(1)(c)
The enforcing state’s courts may resist the enforceability of awards under Article V(1)(c) if the
resisting party provides evidence that ‘[t]he 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 may be recognized and
enforced’. Generally, courts have interpreted the first half of the provision as a means to deny
the enforceability of awards as ‘ultra petita’ decisions where they exceeded matters within the
scope of the submission to arbitration. They have also been denied enforcement as ‘infra petita’
decisions where they failed to address all issues submitted to arbitration, but only by few courts.
However, many courts have interpreted the second half of the provision to allow partial
enforcement of awards by enforcing them to the extent that they deal with matters properly
submitted to arbitration and they are severable from matters not properly submitted to
arbitration. These issues are further explored in this dissertation.
1
New York Convention, Article I(1).
2
Fouchard, 1997, para 345.
3
UNCITRAL Model Law, Article 34(3).
3
, 3) Article V(1)(c) – Limitations
a) Narrow Interpretation of Article V(1)(c)
Challenges under Article V(1)(c) may not always succeed as several courts, particularly in the
US, have consistently construed its wording ‘narrowly’ to avoid usurping the tribunal’s role in
making decisions for the parties4. They have also done so because of the provision’s descriptive
nature, which makes it vulnerable to different interpretations and the potential application of
national concepts 5 . But most importantly, Article V(1)(c) has been narrowly construed to
advance the Convention’s ‘enforcement-facilitating thrust’6 to resolve disputes speedily and
avoid extended court expense and delay7. Such approach has also been favoured by courts in
France, whereas courts in China, India and Russia have been perceived as hostile towards it
(see Figure 1 below). However, such hostility has been reported to be caused by their unstable
political regime or closed markets, civil law-based lawyers’ lack of familiarity with common
law legal systems and Chinese corporate counsels being discouraged from arbitrating disputes
because of the bias nature of arbitrators 8 . Otherwise, most jurisdictions’ courts will likely
favour the350
enforcementTHE
of AMERICAN
awards under the Convention and thus narrowly [Vol.
REVIEW OF INTERNATIONAL ARBITRATION
construe
19
Article
V(1)(c) when dealing with challenges to resist their enforcement.
In which countries do you consider has your corporation might
In which countries do you consider that your corporation might
encounter problems
encounter problems inin enforcing
enforcingforeign
foreignarbitral
arbitralawards?
awards ?
Indonesia 5%
Iran 2%
South Korea 2%
Sudan 2%
Nigeria 2%
Romania 2%
UK 2%
UAE 2%
USA 6%
Bolivia 4%
Ecuador 2%
Peru 2%
Venezuela 4%
Colombia 4%
China 31%
Russia 14%
Tajikistan 2%
Argentina 2%
India 10%
Brazil 6%
Turkey 4%
0% 5% 10% 15% 20% 25% 30% 35%
Figure 20. Countries perceived as hostile to the enforcement of foreign arbitral
Figure 1: Countries Hostileawards
to the Enforcement of Awards9
Institutional Response:
4
Kersa v. Infancourtage (1993); Lesotho v. Impreglio (2005); LIAMCO v. Libya (1982).
5
Wiliński, 2020,Arbitration
page 327. institutions were asked to name the countries where the parties in
6 arbitration proceedings
American Construction v. Mechanisedadministered
Constructionby theirParsons
(1987); institution encountered
v. Société Généralesignificant
(1974).
7
Chevron v.difficulties in enforcing
Ecuador (2013) awards.Commerce
para 67; Federal The most v.cited countries were(1972)
Kanematsu-Gosho China,paras
Turkey
387 and
and 389.
8
Mistelis & Taiwan.
Baltag, 2008, page 349.
9
Mistelis & Baltag, 2008, page 350.
3. Time and Recovery Rate in the Enforcement Proceedings
4 and execute arbitral awards is less
The average time to recognize, enforce
than one year
