The Miami Draft: the Good Twin of the NYC by Marike R.P. Paulsson

Kluwer Arbitration Blog

Marike R.P. Paulsson[1]

The Miami Draft: the Good Twin of the NYC[2]

New York 1958: ‘Vivat, Floreat et Crescat the New York Convention.’[3] One can indeed but applaud the success of the NYC.[4] Credit goes to a multitude of judges around the world who have applied the NYC so loyally.[5] Yet, cracks have become visible over the last 52 years. Is there a need for a new Convention? If so, wouldn’t a new Convention, if possible at all, make things worse? Would it not be preferable to have a new interpretation instrument to enhance uniformity?

Current interpretation mechanisms of the NYC are varied,[6] and unfortunately divergent in outcomes.[7] We are far from a uniform interpretation. The textual imperfections of the Convention have come to light in courtrooms around the world. Of course, there is no such thing as a perfect Convention. The drafters of the Convention in 1958 could never have been able to produce a text that would foresee the issues which we confront in 2010, no more than the founding fathers of the US Constitution could have anticipated the world wide web. How could the original drafters of the NYC have predicted a worldwide multiform interpretation of the Convention? That would be as if one would have expected an IT expert in the year 1958 to be capable of providing an analysis of the Blackberry.[8] At the occasion of celebrating the Convention’s 40th birthday, its founding father Pieter Sanders remarked: ‘nothing is perfect in this world. After 40 years of practice with the Convention its text could certainly be improved.’[9] However, an amendment to the Convention is most likely not possible, nor will a Protocol or second Convention be desirable.

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