Article 5 of the new york convention

Article 5 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) deals with the recognition and enforcement of foreign arbitral awards in the territory of a Contracting State. The article provides that:

"1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:

(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which it was governed, or that it was not binding on the parties with respect to any matter submitted to arbitration under the said agreement; or

(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present his case; or

(c) The award deals with a matter not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that if the award contains decisions on several matters, some of which are within the scope of the submission to arbitration and others are not, the award shall remain effective as to the matters within the scope of the submission to arbitration, and the competent authority shall, at the request of the party claiming the award, separate the matters that are within the scope of the submission to arbitration from those that are not, and the award shall be recognized and enforced as to the former matters; or

(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(e) The award has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

  1. Recognition and enforcement of the award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:

(a) The subject matter of the dispute is not capable of settlement by arbitration under the law of that country; or

(b) The recognition and enforcement of the award would be contrary to the public policy of that country."

In summary, Article 5 sets out the grounds upon which a Contracting State may refuse to recognize and enforce a foreign arbitral award. These grounds include:

  1. Incapacity or invalidity of the parties to the arbitration agreement
  2. Lack of notice or inability to present one's case
  3. Award deals with matters not contemplated by or beyond the scope of the submission to arbitration
  4. Arbitral authority or procedure was not in accordance with the agreement of the parties or the law of the country where the arbitration took place
  5. Award has been set aside or suspended by a competent authority
  6. Subject matter of the dispute is not capable of settlement by arbitration under the law of the country
  7. Recognition and enforcement of the award would be contrary to the public policy of the country.