The New York Convention Turns 60

By Grant Hanessian

Hanessian is a partner at Baker McKenzie in New York and chair of USCIB’s Arbitration Committee. He is the U.S. member of the ICC Court of Arbitration and an adjunct professor of law at Fordham Law School. Contact him at grant.hanessian@bakermckenzie.com

Grant Hanessian

A few weeks ago, the 60th anniversary of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards – the “New York Convention” – was celebrated at United Nations headquarters and the U.S. Courthouse in New York.

The tremendous success of the New York Convention, which provides for national court enforcement of foreign arbitration awards and agreements, is one of the principal reasons arbitration has become the preferred choice of parties around the world for resolving cross border commercial disputes. Virtually all the world’s major trading nations have ratified the convention.

Following a conference at the UN featuring representatives from the International Chamber of Commerce, UN Commission on International Trade Law (UNCITRAL), International Bar Association, International Council for Commercial Arbitration, and U.S. Department of Commerce, a “birthday” celebration was held at the U.S. Courthouse on Pearl Street in Manhattan. ICC and UNCITRAL served as co-hosts of the event.

“The New York Convention is a tremendous example of how business and governments can work together to strengthen global governance, and its enduring relevance is a testament to ICC’s leadership in shaping the global environment for private dispute resolution over the past century,” ICC Secretary General John Denton observed at the reception. USCIB General Counsel Nancy Thevenin, who is immediate past chair of the New York State Bar Association International Section, helped organize the event and also made remarks.

ICC’s preeminence in international commercial arbitration is of course well known. The ICC International Court of Arbitration, created in 1923 to encourage settlement of disputes arising from international trade, has administered more than 23,000 disputes involving parties and arbitrators from 180 countries and independent territories.

It may be less well known that ICC initiated the process that led to creation of the New York Convention. At the UN conference, Anna Joubin-Bret, secretary of UNCITRAL, noted that ICC’s Commission on Arbitration and ADR prepared the first draft of the convention and submitted it to the UN in 1953. The UN Economic and Social Council then produced an amended draft that was discussed during a conference at UN Headquarters in May and June 1958, resulting in the UN’s adoption of the New York Convention on June 10, 1958.

Prior to adoption of the New York Convention, parties seeking to enforce foreign arbitral awards usually had to obtain two court decisions of exequatur, one from the country where the award was issued and another at the place of enforcement.  The convention eliminated the requirement of double exequatur, significantly restricted the grounds for national court refusal of recognition and enforcement and placed the burden of proving such grounds on the party opposing such recognition and enforcement.

Under the New York Convention, national courts considering applications for recognition and enforcement of foreign awards may not review the merits of the arbitral tribunal’s decision. National courts have generally construed the grounds for refusal of recognition and enforcement under the Convention narrowly, and they have exercised their discretion to refuse recognition and enforcement only in exceptional cases. Enforcement of arbitral awards by national courts is now considerably easier than enforcement of national court judgements in many countries, greatly facilitating resolution of international business disputes.

The New York Convention, and complementary UNCITRAL texts such as the UNCITRAL Model Law on International Commercial Arbitration in 1985, have led to an increasingly harmonized arbitration law. The UNCITRAL model law, which has now been adopted by 111 jurisdictions in 80 countries, essentially repeats the grounds of the New York Convention for enforcement and setting aside foreign awards.

At the UN event, Helene van Lith, the secretary of the ICC Commission on Arbitration and ADR, emphasized the role ICC continues to play in applying and interpreting the convention through Court of Arbitration scrutiny of awards and the publication of the forthcoming third revised edition of the ICC Guide to National Procedures for Recognition and Enforcement of Awards Under the New York Convention. The increasing availability of national court decisions interpreting the Convention and UNCITRAL model law, through such sources as the ICC Guide and the online Case Law on UNCITRAL Texts, has importantly contributed to a uniform and predictable application of arbitration law around the world.

In these times when multilateral trade arrangements are under stress, everyone interested in the continued growth of international business should applaud the extraordinary vitality of the New York Convention as it enters its seventh decade.

August 14, 2018

 

USCIB Joins ICC in Celebrating Anniversary of NY Convention

USCIB General Counsel Nancy Thevenin

New York’s international arbitration community recently celebrated the 60th anniversary of the New York Convention, which provides a universal basis for enforcement of arbitration agreements and awards is a source of particular pride to the International Chamber of Commerce (ICC), which initiated the drafting process that led to the Convention’s adoption by the United Nations in 1958. 

USCIB General Counsel Nancy Thevenin, who is also the Immediate Past Chair of the New York State Bar Association International Section and George Bermann Professor at Columbia Law School, helped organize the reception and noted in her remarks, “There is an elegance to the fact that this sparely worded document has been one of the mightiest tools employed by the international business community to foster trade and investment worldwide.”

The Convention, and the many complementary UNCITRAL projects, demonstrate the abiding importance of state cooperation to promote efficient, effective and equitable resolution of commercial and investment disputes.

For more information on this event, please visit ICC’s website.

USCIB Welcomes New Partners to SDG Business Web Platform

From L-R: Ambassador Kevin Moley, Assistant Secretary for International Organizations (State Department), Peter Robinson, President and CEO (USCIB), and John Denton, Secretary General (ICC)

On the margins of this year’s annual United Nations High-Level Political Forum (HLPF) on the Sustainable Development Goals (SDGs) at UN headquarters in New York, USCIB convened a dinner for business, UN organizations and governments to highlight private sector action and impact towards sustainable development, using the UN 2030 Agenda for Sustainable Development as a blueprint.  The Businessfor2030 Dinner was co-organized with the International Chamber of Commerce (ICC) and its Swiss and UK National Committees, as well as with the International Organization of Employers (IOE).

In addition to announcing the expansion and globalization of the Businessfor2030 web platform, the dinner and its speakers also set the stage for the SDG Business Forum, organized by ICC and held at UN HQ on July 17.  Recently appointed Secretary General of the ICC John Denton addressed the Businessfor2030 dinner, issuing a challenge to the international community to unleash the power and potential of business in order to attain the 2030 objectives across economic, social and environmental areas.  “We need to help people understand the power of working with the private sector,” emphasized Denton.  Kris DeMeester, representing the International Organization of Employers, underscored the broad commitment of employers all over the world to advance sustainable development through employment, in the workplace and working closely with other social partners.

“Three years after the launch of the SDGs, we continue to take seriously that all companies, all sectors must engage to deliver on economic, environmental and social progress,” stated USCIB President and CEO Peter Robinson in his opening remarks. “No company can sit this out.  We commend our own members for having embraced the SDGs and moved forward to embed them not only in corporate responsibility programs, but increasingly across aspects of their planning and investment.”

The Businessfor2030 webplatform is a unique resource for business, governments and others in the UN community who are seeking to understand and pursue the SDGs.  It presents business examples of SDG action, and provides information on public-private partnerships. Established by USCIB in 2015, it now features over 250 examples of business action, covering more than half of the 169 specific SDG targets.

New ICC Secretary General Visits USCIB Offices

ICC Secretary General John Denton (left) with USCIB President and CEO Peter Robinson

John Denton, the new secretary general of the International Chamber of Commerce – the oldest and largest part of USCIB’s global business network – paid visits to our New York headquarters and Washington, D.C. office in late June and early July. He met with USCIB staff including President and CEO Peter Robinson and Senior Vice President for Policy and Government Affairs Rob Mulligan, along with a number of USCIB members. Discussion ranged from ICC pushing back against populist narratives on cross-border trade and investment to ICC institutional and management priorities.

Denton meets with USCIB members and staff in Washington, DC.

Denton, an Australian lawyer and diplomat who most recently headed the law firm Corrs Chambers Westgarth, was elected in March to provide executive leadership to the world business organization. He is the first Australian to head the Paris-based ICC, and joins Paul Polman, CEO of Unileveler, who was elected to serve as ICC’s chairman.

Denton says he plans to visit the United States often during his tenure, capitalizing especially on ICC’s recent elevation to full UN Observer Status. In between his many duties and visits, including those to USCIB, Denton found time to pen a letter to the Financial Times providing a vigorous defense of the multilateral trading system and the WTO. He has also recently appeared on MSNBC and took part in the UN High-Level Political Forum on sustainable development in New York.

 

 

 

 

 

Global Business Welcomes New Multilateral Framework on Procedures in Competition Enforcement

Paris and Washington, D.C. June 27, 2018 – The global business community has applauded the launch of a new Multilateral Framework on Procedures in Competition Law Investigation and Enforcement (MFP), as announced recently by the U.S. Department of Justice. In a joint statement, the International Chamber of Commerce (ICC) and its American national committee, the United States Council for International Business (USCIB), welcomed the announcement, saying they hoped the initiative would lead to fairer and more efficient antitrust procedures.

“As the world’s largest and most representative business organization, ICC welcomes the U.S. Department of Justice’s new Multilateral Framework on Procedures in Competition Law Investigation and Enforcement,” said ICC Secretary General John W.H. Denton. “Business relies on and thrives in a global economy based on multilateral rules and shared principles. We encourage competition authorities to further engage with the private sector to ensure that investigations are conducted in a consistent and transparent manner worldwide.”

“The spread of antitrust regimes globally over the past 20 years has underscored the importance of due process as a cornerstone of sound competition enforcement,” said USCIB President and CEO Peter M. Robinson. “Multilateral forums such as the OECD and the International Competition Network have done, and continue to do, tremendous work towards normative convergence in this area. USCIB applauds this complementary MFP initiative, which goes beyond soft-convergence to employ a practical mechanism that will promote compliance by competition authorities with a dozen fundamental procedural fairness principles.”

On June 1, U.S. Assistant Attorney General for Antitrust Makan Delrahim, announced the MFP as a tool to “promote greater procedural norms and due process in antitrust, or competition, enforcement.” Delrahim said the United States, “in partnership with leading antitrust agencies around the world, will introduce and invite the global antitrust enforcement community to help finalize and join” the framework.

“USCIB members support this fresh initiative and its open multilateral nature,” Robinson said.  “Procedural fairness improves outcomes for agencies and stakeholders alike. The MFP is therefore great news for global antitrust enforcement and our members stand ready to assist it in whatever way they can.”

About ICC:
The International Chamber of Commerce (ICC) is the world’s largest business organisation with a network of over 6 million members in more than 100 countries. We work to promote international trade, responsible business conduct and a global approach to regulation through a unique mix of advocacy and standard setting activities—together with market-leading dispute resolution services. Our members include many of the world’s largest companies, SMEs, business associations and local chambers of commerce.

More at www.iccwbo.org

About USCIB:
USCIB promotes open markets, competitiveness and innovation, sustainable development and corporate responsibility, supported by international engagement and regulatory coherence. Its members include U.S.-based global companies and professional services firms from every sector of our economy, with operations in every region of the world, generating $5 trillion in annual revenues and employing over 11 million people worldwide. As the U.S. affiliate of several leading international business organizations, USCIB provides business views to policy makers and regulatory authorities worldwide, and works to facilitate international trade and investment. More information is available at www.uscib.org.

Contacts:
Stephen Lloyd, ICC
stephen.lloyd@iccwbo.org, +33 1 49 53 28 49

Jonathan Huneke, USCIB
jhuneke@uscib.org, +1 212.703.5043

Unilever Chief Paul Polman Named Chair of ICC

Paul Polman
Photo credit: ICC

Paul Polman, CEO of consumer goods company Unilever, has been elected chair of the International Chamber of Commerce (ICC) at the ICC World Council in Paris today, June 21, 2018.

Having led Unilever since 2009, Polman is a leading advocate for the role of business in driving progress towards the UN Sustainable Development Goals (SDGs). Under his leadership, Unilever set an ambitious vision to fully decouple business growth from its overall environmental footprint and increase the company’s positive social impact through the Unilever Sustainable Living Plan.

Polman’s commitment to securing long-term sustainable growth and development is also reflected in his membership of the World Economic Forum’s International Business Council, and his role as Chair of the B Team and Vice-Chair of the UN Global Compact.

“I am very pleased to join the ICC leadership at a pivotal moment for the organisation and the international community,” said Polman. “It is more vital than ever for business to take a leading role in reaching the Sustainable Development Goals and responding to the many global challenges we collectively face. As the voice of the private sector on the world stage, ICC is uniquely poised to mobilize business towards long-term gains that are both socially and economically productive.”

Earlier this year, Her Majesty Queen Elizabeth II awarded Polman an honorary knighthood (KBE) in recognition for his services to business and received the Treaties of Nijmegen Medal, for his contribution to building a more sustainable world. He is also a recipient of France’s Chevalier de la Légion d’Honneur, recognizing his work in support of the landmark UN Climate Change (COP21) agreement in Paris.

“Throughout his business career, Paul Polman has consistently set himself apart as champion of sustainable development and inclusive growth,” said ICC Secretary General John W.H. Denton. “I am very pleased to have him on board as ICC approaches its 100-year anniversary and have no doubt that his leadership will help us achieve the ambitious new course we have set.”

Polman succeeds Sunil Bharti Mittal, founder and chairman of Bharti Enterprises, who assumes the role of honorary chair having chaired the ICC Executive Board since June 2016. ICC has accomplished several landmark achievements under Mittal’s leadership. In April 2017, Mittal met with the UN Secretary-General Antonio Guterres and as chair of the first private-sector organisation accorded permanent Observer Status at the UN General Assembly, Mittal attended a Heads of State lunch meeting attended by U.S. President Donald Trump, French President Emmanuel Macron, Canadian Prime Minister Justin Trudeau and Brazilian President Michel Temer as well as other global leaders. Mittal also joined global business leaders to call for international cooperation to shape an interconnected world ahead of the Hamburg G20 Summit in 2017, underscoring how common rules and strong institutions such as the World Trade Organization (WTO) are vital to ensuring that globalization benefits everyone, everywhere. Mittal highlighted the potential of e-commerce to revolutionize global trade flows and has recently responded to rising trade tensions, to urge the U.S. and all its trading partners to find new ways to resolve tensions through multilateral dialogue — and without recourse to further tariff increases.

“We are delighted that Paul Polman was elected Chair of ICC and while in Paris last week, I had the opportunity to congratulate him in person,” said USCIB President and CEO Peter Robinson.  “Paul’s leadership in and commitment to the UN Development Agenda have been vital in allowing business to play a more active role in crucial multistakeholder dialogues, as well as in contributing to the SDGs. This is an exciting time for USCIB/ICC-USA since the ICC World Council also confirmed Ajay Banga, President and CEO of Mastercard as ICC First Vice-Chair. Mastercard plays an active role within USCIB, and we presented Ajay with USCIB’s International Leadership Award last fall. Finally, we are grateful to Sunil Mittal for his recent service as ICC Chair in advocating on behalf of business and we wish him well as Honorary Chair and in his future endeavors.”

The ICC World Council also confirmed the following leadership positions today:

  • Alexis Mourre was elected to a second term as President of the ICC International Court of Arbitration
  • Yassin Al Suroor, Chairman of A’amal Group, was named ICC Vice-Chair
  • Ajay Banga, President and CEO of Mastercard, was named ICC First Vice-Chair

Banga was the 2017 honoree of USCIB’s International Leadership Award.

Four new Executive Board members were also elected:

  • Monica de Grieff, President, Bogota Chamber of Commerce (Colombia)
  • Giampiero Massolo, Chairman, Fincantieri S.p.A. (Italy)
  • Xu Niansha, Chairman, China Poly Group Corporation (China)
  • Zabihullah Ziarmal, CEO, Cefe Group International (Afghanistan)

ICC’s Denton on Preserving the Rules-Based Trading System

ICC Secretary General John Denton published a letter in Financial Times last week titled, “The Rules-based Trading System is Worth Preserving.”

The letter comes in light of the Trump administration’s decision to impose steel and aluminum tariffs on its trading partners.

“As the prospect of a ‘trade war’ gradually escalates, we must all bear in mind what is currently at stake in broader systemic terms,” writes Denton. “The rules-based multilateral trading system has fuelled seven decades of unprecedented job creation and poverty alleviation. Communities connected by commerce have a common interest in maintaining peace. The World Trade Organization has proved itself the linchpin of what is — by any objective measure — a more prosperous world order. And with the right reforms it can do more to help families and workers the world over.”

The full letter can be viewed on FT’s website, subscription required.

Mulligan Reports From Paris on Trade Talks at B20, BIAC, ICC

USCIB Senior Vice President for Policy and Government Affairs Rob Mulligan was in Paris at the end of May participating in various Business at OECD (BIAC), B20, ICC and OECD meetings related to trade and investment. The meetings provided important policy-related updates for USCIB members and U.S. business, as well as recent developments and staff changes in USCIB’s global network.

At BIAC’s General Assembly on May 28, USCIB Trade and Investment Committee Chair Rick Johnston (Citi) was approved for a new term on the BIAC Board. The Assembly also approved the appointment of a new Secretary General, Russell Mills, who will take office on September 1.  The current and outgoing Secretary General, Bernhard Welschke, was recognized for his service with BIAC and will retire as of July 31.  Finally, BIAC had several representatives participating at the OECD Ministerial meeting and delivered a statement that noted the benefits of multilateralism in terms of economic growth and offered recommendations for improving and making multilateralism more effective.

Mulligan also met with Ken Ash, director of the OECD Trade and Agriculture Directorate.  Ash noted that the OECD will be working on a series of analysis over the coming months on tariffs, market opening, trade facilitation, non-tariff barriers, and services reform and will be looking to get input from USCIB and BIAC as the OECD moves forward on this work. On May 30 the G20-OECD-WTO hosted an event on “Trade Facilitation and Future Trade Cooperation” which highlighted the gains from the WTO Trade Facilitation Agreement (TFA) and discussed the TFA as a model for other types of trade agreements that are flexible and accommodate country capacity restraints.

At the conclusion of the OECD Ministerial that week, the United States refused to join a consensus statement with other OECD countries due to differences related to including language supportive of globalization and the multilateral trading system.  Mulligan commented on concerns with the U.S. government’s most recent trade actions.  “Governments at the OECD were very concerned with the U.S. decision to impose tariffs under the steel and aluminum 232 action,” said Mulligan.  “In a misguided effort to re-balance perceived inequities, often based solely on the metric bilateral trade deficits without a view to the larger picture, the administration is effectively alienating the United States from the global order that it once championed and led.”

At the B20 Trade and Investment taskforce meeting, Mulligan raised several issues, including a request for consistency in the taskforce’s policy paper, noting that the trade paper language related to digital trade, especially on IP, be consistent with language developed by the Digital taskforce.  Mulligan also sought clarification on some of the language that implied that cybersecurity laws are a barrier to trade which the secretariat agreed to address.

Finally, the ICC Trade and Investment Commission received an update on developments at the WTO.  It was noted that there have been several meetings on the e-commerce initiative and 11 papers have been submitted by various countries.  In early June, the WTO Director General Roberto Azevedo held a meeting with private sector representatives, including from ICC, in Geneva to get input on the WTO agenda.  The commission members had a robust discussion on ICC developing an issue a statement opposing unilateral protectionist measures and how to make it most impactful.  Members supported moving forward and ICC staff will draft a statement for review by members and possibly approval by the ICC Board in late June.

USCIB Gathers Stakeholders on Margins of UN Science, Technology, Innovation Forum for SDGs

US Ambassador to ECOSOC Kelley Currie gives remarks

As governments and stakeholders gather for the third annual United Nations Multi-stakeholder Forum on Science, Technology and Innovation (STI) for the SDGs in New York June 5-6, USCIB organized a timely breakfast roundtable on the margins of the forum titled, “Together for Impact: Business Innovation for the SDGs” earlier this morning. USCIB partnered with the U.S. Department of State and the International Chamber of Commerce (ICC) to create a productive dialogue between USCIB member companies and relevant UN missions and agencies.

The roundtable – held at Pfizer’s Headquarters in New York – brought together UN Missions, UN Agencies, and USCIB Member companies to discuss opportunities to partner and scale up the deployment of innovation to deliver progress on the SDGs.  Representatives of companies, governments and the UN system began a practical dialogue on operationalizing private sector innovations through conducive enabling regulatory frameworks and inclusive international cooperation.

Monsanto, Ferrero, Pfizer, Novozymes, LexisNexis and CropLife International presented examples of how companies are working with other stakeholders to advance innovative technologies and knowledge-sharing.  Japanese Ambassador and Co-Chair of the STI Forum Toshiya Hoshino gave a government and UN perspective, as did Judith Arrieta, on behalf of Ambassador Juan Sandoval Mendiolea of Mexico, co-chair of STI Forum.  Also attending the meeting were the co-chairs and several members of the UN “10 Member Advisory Group” to the STI Forum, including Vaughan Turekian of the National Academy of Science.

U.S. Ambassador to the UN Economic and Social Council (ECOSOC) Kelley Currie opened the meeting, highlighting the importance of bringing together the private sector, which is increasingly embracing and operationalizing SDG-related innovations – in terms of products, services, ways of producing, and the very means of cooperation itself – and the UN system.  In her keynote speech, she stated that, “there are such good intentions on all sides, and a great deal of achievement and potential to offer.  Three years after 2015, Addis and New York and Paris, those who understand the imperative of stepped up deployment of solutions do need to find ways to advance those opportunities, to bridge what appear to be missed opportunities and take them forward for shared impact and benefit.  Business too has to do more to encourage such a “skin in the game” working relationships, including through public-private partnerships.”

USCIB President and CEO Peter Robinson remarked, “dissemination and deployment of technologies and know-how for the widest possible societal benefits are imperatives that can only be advanced by working together with the US business community.  That is why USCIB called this meeting, for systems thinking and more importantly systems doing,  and to cultivate systemic collaboration and knowledge-sharing.”

USCIB will continue to work with its membership and with governments to ensure that business views and contributions to innovation in its products, initiatives and implementation are heard, welcomed, and taken into account within the international community working cooperatives on sustainable development.

Qatar to Join Global “Merchandise Passport” System

The World ATA Carnet Council meeting in Xian, China

Earlier this month, Qatar officially joined the ATA Carnet system, which enables the temporary duty-free, tax-free importation of various types of goods in over 80 countries and customs territories around the world. The Carnet system is overseen by the International Chamber of Commerce and the World Customs Organization. USCIB serves as the U.S. national guaranteeing association for the system.

The official announcement was made by Sheikha Tamadar Al Thani, director of international relations and chamber affairs at Qatar Chamber and ICC-Qatar, during her participation in a World ATA Carnet Council (WATAC) meeting organized by ICC’s World Chambers Federation on May 9 in Xi’an, China. The ATA Carnet system is expected to be implemented in Qatar as of August 1, 2018, but the country will only accept Carnets issued for Exhibitions and Fairs. (Many countries and territories also accept them for Product Samples and for Professional Equipment.)

During her address to the WATAC meeting, which was attended by USCIB President and CEO Peter M. Robinson, Al Thani noted that Qatar’s formal accession to the Carnet system came as a result of lengthy negotiations conducted during the previous sessions with WATAC leadership and council members. She said the ATA Carnet plays an important role towards advancing the cause of free trade as a mechanism of trade facilitation.

Al Thani further noted that world trade is facing momentous challenges nowadays, with protectionist policies on the rise again and the State of Qatar’s accession to the Council is a testimony to its adherence to free trade, and to its belief in the importance of the free movement of goods and services around the world.

The ATA Carnet is the global gold standard for temporary admissions under the auspices of the World Customs Organization. ATA Carnets are international tools of trade facilitation, which serve as a temporary export-import documentation. The ATA System is in place in over 85 countries and territories, and provides duty-free and tax-free imports on goods that will be re-exported within 12 months.

Please visit the Qatar ATA Carnet page for more info.