The Challenges of Recognition and Enforcement of Arbitration Agreements Under Article 2 of the New York Convention 1958

The New York Convention of 1958 as the major international instrument about arbitration, despite its title, does not entirely concern recognition and enforcement of arbitral awards, but also deals with the recognition and enforcement of arbitration agreements. It was dealt with this later subject in Art. II which was, at the initiative of Dutch delegation, included into the text at the closing date of the Conference and led to various ambiguities before Doctrine and inside the case law of member states and it can be said that Art. II is one of the thorniest provisions of this international instrument. The issues ranging from arbitration agreements covered by the Convention, the applicable law to arbitrability of the dispute, and compliance with formal requirements, inconsistent with international trade, to conclude arbitration agreement, to the issues regarding the ambiguities of Para. 3 of this Article concerning process, conditions and obstacles to the enforcement of arbitration agreements, caused the application of Art. II of this instrument to be viewed as Achilles' heel in the case law of member states to the extent that even some old proponents of the Convention have insisted on amendment of this instrument, including Art. II, and proposed for a so-called Miami Draft. In conjunction with examination of the ambiguities of Art. II, this essay examines its application in the case law of the member states and as well as the Miami Draft. It is hoped that this enriched case law could help Iranian courts in harmonized application of the Convention in the stage of recognition and enforcement of arbitration agreements.