indonesia arbitration - Bani

The New York Convention – 50 Years On
likely add more certainty to the Convention and hopefully remove or diminish
the power of courts such as those referred to above to avoid enforcement of
arbitration agreements or awards. But not all of the proposals are of this character
and in some instances the change may fly in the face of relevant domestic
law provisions from some nation states. Absent a degree of certainty in obtaining
enforcement of an award, the whole purpose of arbitration may be lost and
engaging in arbitration may be an exercise in futility.
The essential features of Dr Van den Berg’s proposals are:
Article I
(a) The introduction of reference to an arbitration agreement in addition
to the award as referred to in Art I (1) of the Convention. Necessary as the Convention
obliges enforcement of agreements and is not limited to enforcement of
awards. The proposed change defines arbitration as international by reference to
differing places of business or residence or that the subject matter of the arbitration
agreement related to more than State. 15
The proposal also ties the award to the award to the arbitration agreement,
avoids the provisions of Art I (2) of the Convention and also removes the provisions
of Art I ( ) and transfers these to a General Clause.
Article II
The proposals are for some word changing and reordering of Art II provisions,
but introduce a new provision on grounds for refusing to refer a dispute to arbitration
requiring assertion and proving by the objecting party, that include
• A procedural ground that the request for referral was made subsequent to
the submission of a first statement on the substance.
• That there is a prima facie valid arbitration agreement in the country
where the award will be made.
• The introduction of limitation on violation of international public policy
in the country where the agreement is invoked (as opposed to [domestic]
public policy referred to in Art III 2(b) of the Convention) and empowering
a court to act on its own motion relying on this ground to refuse reference
of the dispute to arbitration
5 cf Art I( ) which refers to “recognition and enforcement of arbitral awards”
INDONESIA ARBITRATION - Quarterly Newsletter No. 4/2008