Pereverzeva O. S. Legal analysis of New-York Convention of 1958 and the Evropeen Convention of 1961 (grounds of abandonment)
This article analyzes the legal nature of the New-York Convention of 1958 and the Geneva Convention of 1961 concerning the refusal of recognition and enforcement of foreign arbitral awards. At first the plan, therefore, is the question on what grounds the decision rendered in the country A and may be subject to denial of its recognition and enforcement in the country B? Define specificity factors of application of provisions of the European Convention of 1961 and the New York Convention of 1958 as legal regulator that cause the problem of implementation in the country, another country-domicile. In both conventions in the international context the attention rightly focuses on the refusal of recognition and enforcement of foreign arbitral awards. At first the plan, therefore, is the question on what grounds the decision rendered in the country and may be subject to denial of its recognition and enforcement in the country? In the New York Convention of 1958, this issue is regulated in article 5 of the European Convention of 1961 in article 9. The latter also gives grounds for refusal under the name of «postponing the arbitration decision, but, in fact, contains the grounds for refusal: deposition of the arbitration decision, adopted in the country» and «gives grounds for refusing recognition or enforcement of that judgment in the country». Grounds contained in paragraphs a-d of the European Convention of 1961 is almost similar to those contained in the New York Convention 1958. According to the New York Convention of 1958, they sound like this: «recognition and enforcement» can be rejected at the request of the parties against which made this decision only when this side will provide the relevant bodies of evidence about: a) that the parties to the contract in accordance with article II, guided by the law, were partially incapacitated, or this agreement is illegal according to the current legislation; b) side, against which made the decision, was not properly informed about the appointment, or hearing, or otherwise was not able to appear at the hearing; c) it’s not been subjected to consideration in the Arbitration Court. If the decision on the case can be divided on how to resolve the dispute on the merits that delineate what is subject to review in this Court, that is), then this part will be recognised and be enforceable; d) the composition of the arbitral authority or the arbitral procedure did not meet the conditions of the agreement of the parties, or violate it, did not meet the norms of the legislation of the country, the place of arbitration. The New York Convention 1958, not only contains the above grounds a-d, but also notes as a reason for refusing enforcement case: the decision has not become mandatory for the parties, or has been rejected or suspended by the competent authority of the country, according to the legislation which was made the decision (point e). In the second part of paragraph e. grounds for postponing the decision contained in the arbitration laws of different countries: when a decision was pending in the country was set for a decision, or legislation which was rendered «it is also the basis for the denial of such a decision in another country party to the Convention. The decision could be delayed for other reasons, not stipulated by items (a-d) of the Convention.
Thus, under paragraph e provided more reason for refusal of performance, if other grounds not specified in sub-paragraphs (a-d), a decision is pending in the State where it was made. The 1961 European Convention contains no such reason. It limits the grounds of refusal only items a-d.
Only when the decision is delayed in the country in which or for which the legislation was
worded decision regarding one of these already grounds, allowed the major failure of the exclusion decision Convention extends this system and the States that are also parties to the New York Convention 1958. Under such conditions, these powers are subject to the requirements of items a-d. In this regard, it is advisable to typing during your break before the major provisions of the New York Convention 1958. In p. e it clearly requires that the decision «has been postponed». Thus, it is no longer controversial, as it was a the Geneva Convention in 1927, only to cancel the action of the State and, where the decision was rendered in order to prevent its execution in the State would invoke it would state that avoiding execution, too light for situation. In practice, national and international cancellation decision the party that lost the dispute, often serving the usual tactics of delay, postponement of execution of a decision. In rare cases, such processes end with success; because, as a rule, the plaintiff was dismissed because the Court does not find any justification for postponing a decision. European Convention of 1961 and the New York Convention of 1958 greatly helped solve the basic problem of international commercial arbitration: implementation in the country, another countrydomiciles.
Key words: national systems, arbitration agreement, international commercial arbitration, the arbitration decisions.
