Lloyd's Maritime and Commercial Law Quarterly
INTERNATIONAL COMMERCIAL ARBITRATION AGREEMENTS AND THE ENFORCEMENT OF FOREIGN ARBITRAL AWARDS—A COMMENTARY ON THE ARBITRATION ACT 1975
D. Rhidian Thomas
Lecturer in Law, University College, Cardiff.
Background to the Act
The Arbitration Act 19751 incorporates into the municipal law of the United Kingdom2 the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 which is currently the principal multilateral convention in the realm of international arbitration.3 Although the fact is not readily discernible from its title the New York Convention is concerned with the recognition and enforcement of both arbitration awards and arbitration agreements.4 The two considerations are of course capable of being distinct spheres of concern but it is nonetheless logical and desirable that they be conjointly considered within the ambit of a single convention. This dualism in the Convention is mirrored in the Arbitration Act 1975 and in the structural format of the Act.5
Prior to the emergence of the New York Convention the regime of international commercial arbitration was regulated6 by the Geneva Protocol on Arbitration Clauses 19237 and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927.8 The New York Convention supersedes the Geneva Protocol with regard to the recognition and enforcement of arbitration agreements, and the Geneva Convention with regard to the recognition and enforcement of foreign arbitration awards, but
1 The Act received the Royal Assent on Feb. 25, 1975, and was brought into effect by S.I. 1975 No. 1662 on Dec. 23, 1975. It was assumed in Nova (Jersey) Knit Ltd. v. Kamngarn Spinnerei GmbH [1977] 1 W.L.R. 713; [1977] 1 Lloyd’s Rep. 463 that the Act had retrospective effect and this was accepted in The Jocelyne
[1977] 2 Lloyd’s Rep. 121, 128. The point was however left open in Dalmia Dairy Industries Ltd. v. National Bank of Pakistan
[1978] 2 Lloyd’s Rep. 223, 238.
2 The Act extends to Northern Ireland and Scotland, s. 8(4).
3 T.S. 20 (1976) Cmnd. 6419. The Convention was done on June 10, 1958, at the conclusion of the United Nations Conference on International Commercial Arbitration held in New York. The text of the Convention is conveniently set out in Russell on Arbitration, 19th Edn. Appendix 4.
4 For commentaries on the Convention see Contini, International Commercial Arbitration, 8 Am, J. of Comp. Law 283 (1959); Domke, United Nations Conference on International Commercial Arbitration, 53 Am. J. of Int. Law 414 (1959) Pisar, United Nations Convention on Foreign Arbitral Awards, [1959] J.B.L. 219.
5 The Act is divided into two distinct parts which are separately sub-titled, “Effect of arbitration agreement on court proceedings” and “Enforcement of Convention Awards”. There is also a third section of a general character.
6 Apart from bilateral and regional agreements between States.
7 Concluded on Sept. 24, 1923, 27 League of Nations Treaty Series, 157 (1924). For the text of the Protocol see Arbitration Act 1950, Schedule 1.
8 Concluded on Sept. 26, 1927, 92 League of Nations Treaty Series, 301 (1928). For the text of the Convention see Arbitration Act 1950, Schedule 2.
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