The 1958 New York Convention Article II: Fit for Modern International Trade?
Article II of the 1958 New York Convention contains a formal requirement that has brought UNCITRAL to issue recommendations on how to interpret the so-called “in writing” requirement. According to Article II(2), an agreement must be either signed by the parties or concluded through an exchange of telegrams.
The Convention’s success may falter if courts cannot find a way to relax the stringent requirement of Article II(2).Today, arbitration agreements are formally concluded differently, and they no longer respond to the idea of arbitration agreements in 1958.
The author attempts to bring the 1958 treaty to the days of modern trade by revisiting the drafting history of Article II and bring the drafters’ intent back to the surface.That enables the creation of guidelines for counsel to draft clauses that are “New York Convention-proof”, and it enables the judiciary to realign the old treaty with modern trade.