NEW YORK CONVENTION OF 1958 INTRODUCTION The principal multilateral arbitration Conventions are reported on in Part V – A through V – D of the Yearbook. Part V – A contains the reporting on the 1958 New York Convention. Part V – B reports on the 1961 European (Geneva) Convention, Part V – C reports on the 1965 Washington (ICSID) Convention and Part V – D reports on the Inter-American (Panama) Convention of 1975. Court decisions in which more than one of these Conventions have been applied are included in the reporting on the Convention which has played the principal role in the decision. Thus, court decisions reported in Part V – A on the 1958 New York Convention may also contain references to the 1961 European (Geneva) Convention or the 1975 Inter-American (Panama) Convention. Likewise, court decisions in Part V – B, Part V – C or Part V – D may also contain a reference to the 1958 New York Convention. The list of subject matters will include the relevant Convention. This Volume reports on 78 New York Convention decisions rendered in 26 countries, bringing the total to 1,744 decisions from 67 countries and 2 jurisdictions. According to the Treaty Section of the United Nations, there are, as of 1 November 2011, 146 Contracting States (and 28 extensions) to the New York Convention. Since Volume XXXV (2010), the Summary of each decision, prefaced by a short recap, is published in print; a detailed Excerpt of the decision is available online at <www.kluwerarbitration.com>. A code provided with the Yearbook allows readers to access the relevant Volume online, as well as the preceding Volume. Readers who have purchased Volume XXXVI (2011) can therefore access materials from both this Volume and Volume XXXV (2010). Information on how to access the online materials is provided in a Note to the Reader at the beginning of this Volume (p. xv). In addition to publishing court decisions and up-to-date lists of Contracting States to these Conventions, the Yearbook also includes Commentaries. This Volume contains an updated version of the “Commentary on the European Convention on International Commercial Arbitration of 1961” by Dr. Dominique Hascher, which was originally published in Volume XX (1995). A List of Court Decisions and Arbitral Awards applying the European Convention is also included. Volume XVIII (1993) contains in Part V – C the contribution by Dr. Aron Broches, “Convention on the Settlement of Investment Disputes Yearbook Comm. Arb’n XXXVI (2011) 205 COURT DECISIONS ON THE NEW YORK CONVENTION 1958 Between States and Nationals of Other States of 1965, Explanatory Notes and Survey of its Application”. A Consolidated Commentary on the 1958 New York Convention (Volume XXII (1997) – Volume XXVII (2002)) by Prof. Albert Jan van den Berg was published in Volume XXVIII (2003) of the Yearbook. This Commentary may be read in conjunction with the Consolidated Commentary on the 1958 New York Convention Volume XX (1995) – Volume XXI (1996) published in Volume XXI (1996). An extensive commentary of court decisions applying the 1958 New York Convention will appear soon as the second edition of Prof. van den Berg’s 1981 treatise The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation. Concise yet inclusive information on the essential aspects of the scope, interpretation and application of the Convention can also be found in ICCA’s Guide to the Interpretation of the 1958 New York Convention, a handbook published by ICCA on the occasion of its fiftieth anniversary in 2011. The Guide is freely available in PDF format from the ICCA website, <www.arbitration- icca.org>. The present Volume contains as usual an Index of Cases, which facilitates research of New York Convention cases by both article of the Convention and subject matter. A Consolidated Index of Cases reported in Volumes XXII (1997) – XXVIII (2003) was published in Volume XXVIII (2003). An Index of Cases was also provided in each Volume since 2004. A Consolidated Index of Cases applying the New York Convention reported in the Yearbook since 1976 is available online on the ICCA website at <www.arbitration-icca.org>. The ICCA website also contains lists of all other court decisions and arbitral awards published in the Yearbook since Volume I (1976). All lists are updated each year with the materials published in the current volume of the Yearbook. See also <www.newyorkconvention.org>. In order to present the widely varied material contained in the Yearbook in a consistent manner, all decisions have been translated into English. The headings in the excerpts in some cases have been slightly modified or headings may have been added or deleted. The paragraphs of the excerpts are numbered to facilitate consultation and reference to the Commentary. Also, minor editorial changes have been made in the texts which in no way affect the substance of the decision. As mentioned, almost 1,750 court decisions on the New York Convention have been reported in the Yearbook since its inception. It is important to emphasize the essential role played by the readers of the Yearbook in reaching this extraordinary number, by drawing our attention to, or sending copies of, 206 Yearbook Comm. Arb’n XXXVI (2011) INTRODUCTION new court decisions on the New York Convention. Our thanks go to all of them for their invaluable assistance. The names of the contributors to this Volume are listed below according to the country on which they have informed us. Albania: Michael Wietzorek (Düsseldorf) Oriola Uka (Tirana) Australia: Michael Marks Cohen (New York) Neil Kaplan (Hong Kong) Prof. Dr. Michael Pryles (Melbourne) Brazil: Dr. João Bosco Lee (Curitiba) British Virgin Islands: Neil Kaplan (Hong Kong) Dr. Stefan Kröll (Cologne) Colombia: Sebastian Mantilla Blanco (Bogotá) Ecuador: Hernán Pérez Loose (Guayaquil) France: Judith A. Freedberg (Miami) Germany: Dr. Stefan Kröll (Cologne) Greece: Ioannis Vassardanis (Athens) Hong Kong: Michael Marks Cohen (New York) India: Darpan Wadhwa (New Delhi) Italy: Chamber of National and International Arbitration of Milan Benedetta Coppo (Milan) Poland: Maciej ºaszczuk (Warsaw) Justyna Szpara (Warsaw) Portugal: José-Miguel Júdice (Lisbon) Russian Federation: Roman Zykov (Moscow) Spain: José Alejandro Carballo Leyda (Madrid) Sweden: Jeanette Björk (Stockholm) Dr. Gisela Knuts (Stockholm) Ukraine: Dr. Leonila Guglya (Paris) United Arab Emirates: Yasmin Mohammad (Dubai) Essam Al Tamimi (Dubai) United States: Freshfields Bruckhaus Deringer (New York) Michael Marks Cohen (New York) Chris Paparella (New York) Venezuela: Alfredo De Jesús O. (Caracas) L Yearbook Comm. Arb’n XXXVI (2011) 207 COURT DECISIONS ON THE NEW YORK CONVENTION 1958 The General Editor would like to call upon readers to assist him by sending copies of relevant court decisions, published or unpublished, for reporting in the forthcoming volumes of the Yearbook. Copies can be sent to either of the following addresses. ICCA Publications Prof. Dr. Albert Jan van den Berg c/o International Bureau of the c/o Hanotiau & van den Berg Permanent Court of Arbitration IT Tower, 9th Floor Carnegieplein 2 480 Avenue Louise, B.9 2517 KJ The Hague, The Netherlands 1050 Brussels, Belgium E-mail: [email protected] E-mail: [email protected] 208 Yearbook Comm. Arb’n XXXVI (2011) NEW YORK CONVENTION OF 1958 LIST OF CONTRACTING STATES (as of 1 November 2011)1 State Ratification, Reservation2 Accession (a), Succession (s) Afghanistan 30 Nov. 2004a 1 - 2 Albania 27 June 2001a – Algeria 7 Feb. 1989a 1 - 2 American Samoa3 3 Nov. 1970 1 - 2 Antigua and Barbuda 2 Feb. 1989a 1 - 2 Argentina4 14 Mar. 1989 1 - 2 Armenia 29 Dec. 1997a 1 - 2 Australia 26 Mar. 1975a – Australian Antartic Territory5 26 Mar. 1975a – 1. This list is compiled by the Editorial Staff of the Yearbook Commercial Arbitration, in consultation with the United Nations Treaty Section. Countries that have acceded to the Convention in the course of the reporting year are indicated in boldface type. Extensions are indicated in italics. 2. Two reservations are contained in Art. I(3). The 1st reservation is the so-called “reciprocity reservation” (at present made by 100 States including extensions). On 25 February 1988, the Government of Austria withdrew its reciprocity reservation; on 23 April 1993, the Government of Switzerland withdrew its reciprocity reservation; and on 31 August 1998, the Government of Germany withdrew its reciprocity reservation. The 2nd is the so-called “commercial reservation” (at present made by 56 States including extensions). On 27 November 1989, the Government of France withdrew its commercial reservation. 3. Extension made by the United States of America upon acceding to the Convention. 4. Argentina declared that the present Convention should be construed in accordance with the principles and rules of the National Constitution in force or with those resulting from reforms mandated by the Constitution. In addition, upon signature, Argentina declared that “If another Contracting Party extends the application of the Convention to territories which fall within the sovereignty of the Argentine Republic, the rights of the Argentine Republic shall in no way be affected by that extension.” 5. Extension made by Australia upon acceding to the Convention. Yearbook Comm. Arb’n XXXVI (2011) 209 NEW YORK CONVENTION 1958 Austria 2 May 1961a – Azerbaijan 29 Feb. 2000a – Bahamas 20 Dec. 2006a – Bahrain 6 Apr. 1988a 1 - 2 Bangladesh 6 May 1992a – Barbados 16 Mar. 1993a 1 - 2 Belarus6 15 Nov. 1960 1 Belgium 18 Aug. 1975 1 Belize7 24 Feb. 1981 1 Benin 16 May 1974a – Bermuda7 12 Feb. 1980 1 Bolivia 28 Apr. 1995a – Bosnia and Herzegovina8 1 Sep. 1993s 1 - 2 Botswana 20 Dec. 1971a 1 - 2 Brazil 7 June 2002a – Brunei Darussalam 25 July 1996a 1 Bulgaria6 10 Oct. 1961 1 Burkina Faso 23 Mar. 1987a – Cambodia 5 Jan. 1960a – Cameroon 19 Feb. 1988a – Canada9 12 May 1986a 2 Canton Island3 3 Nov.