The "NY Checklist" 

By Albert Badia

 

This checklist aims to assess the enforceability of a foreign arbitral award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“the New York Convention”). The enforcement might be denied if the answer to any of the 16 questions below turns out negative.

 

Scope. Article I(3)

 

1. Is the award rendered in another Contracting State?

2. Does the award relate to commercial legal relationships?

 

Arbitration agreement. Articles II(2,3) and V(1)(a)

 

3. Is the arbitration agreement in writing, either in a contract or in an exchange of emails, letters or faxes?

4. Is the arbitration agreement effective, operative and capable of being performed?

5. Did the parties conclude the arbitration agreement free from coertion and without any legal incapacity recognised       by their own national laws?

 

Arbitration process. Article V(1)(b)(d)

 

6. Was the appointment of the arbitrator(s) properly communicated to either party?

7. Were the parties given a reasonable opportunity to present their case?

8. Was the arbitral tribunal formed in accordance with the arbitration agreement or the terms incorportated thereto?

9. Was the arbitration process conducted in accordance with the lex arbitri?

 

Award. Article V(1)(c)(e) and VI

 

10. Does the award deals with a difference contemplated by, or falling withing the terms of, the submission to                arbitration?

11. Was the award final and binding in the country where it was originally rendered?

 

Enforcement application. Article IV

 

12. Will the enforcement application be supported on an original authenticated or a duly certified copy of the award?

13. Will the application include the original arbitration arbitration agreement or a duly certified copy thereof?

14. If the award is in a foreign language, will the application go coupled by an official translation?

 

Municipal limits. Article V(2)(a-b)

 

15. Do the laws of the country where recognition and enforcement is sought permit the genre of the dispute to be            decided in arbitration?

16. Is the recognition or the enforcement of the award contrary to the public policy of the country where recognition        and enforcement of the award is sought?