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NEWSLETTER 2013

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country where the award was rendered. In accordance with this article,

the applicable law to the substance of an arbitration agreement is the law

of the place where the arbitral award is rendered.

The above-mentioned rule of conflict of laws of the New York

Convention is also included in Art. 62(e) of the International Private and

Civil Procedure Code No. 5718. Pursuant to this article, the request for

enforcement may be refused

“if the arbitration agreement or arbitration

clause is invalid according to the law to which the parties have subjected

it or, failing any indication thereon, under the law of the country where

the award was rendered

”.

Conclusion

In order to execute an arbitral award, the first condition is to insure

the validity of the arbitration agreement. Consequently, providing this

validity requires a detailed examination. As seen, the applicable law to the

substance of an arbitration agreement can be different from the applicable

law to the form of an arbitration agreement, to the capacity of the parties

and to the substance of the dispute being arbitrated. Additionally, the

applicable law may also depend on the stage of examination of the

issue (i.e. at the initiation of the arbitration; request for annulment or

enforcement of an award). Therefore, the substantial validity of an

arbitration agreement should be evaluated separately from the law

applicable to the form requirements of an arbitration agreement and the

capacity of the parties, considering each stage of the dispute separately.