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I NTERNAT I ONAL COMMERC I AL LAW

3. The award exceeds the scope of the arbitration agreement;

4. The composition of the arbitral panel or procedure was contrary to

the agreement of the parties or the law of the forum country;

5. The award was set aside under the law of the forum country;

6. The subject matter is not arbitrable; or

7. The enforcement of the award is contrary to public policy.

Firstly, the New York Convention does not permit any review on the

merits of an award to which the Convention applies. This principle which is

referred to as prohibition of the

revision au fond

will not allow the national

enforcing judges to retry the whole case.

Secondly, the grounds for refusal of recognition and enforcement set

out in the New York Convention are exhaustive. They are the only grounds

on which recognition and enforcement may be refused.

Thirdly, the New York Convention sets out five separate grounds on

which recognition and enforcement of a Convention award may be refused

at the request of the party against whom it is invoked. It is significant that

under the Convention the burden of proof is not upon the party seeking

recognition and enforcement. The remaining two grounds on which

recognition and enforcement may be refused relate to the public policy of

the place of enforcement and are grounds which may be invoked by the

domestic court

sua sponte

Fourthly, even if grounds for refusal of the recognition and enforcement

of an award are proved to exist, the enforcing court is not obliged to refuse

enforcement. The opening lines of paragraphs (1) and (2) of Article V

say that enforcement “may” be refused. They do not say that it “must” be

refused.

Fifthly, the intention of the New York Convention is that the grounds

for refusing recognition and enforcement of arbitral awards should be

applied restrictively.

Under the International Private and Procedural Law (“IPPL”)

It should be noted that there are no significant differences between the

rules of enforcement provided in the IPPL and the provisions of the New

York Convention.