The European Convention of 1961: agreement, procedure and annulment

Begin with scope

Statutory basis: Article I of the European Convention on International Commercial Arbitration. It covers international-trade agreements between persons whose habitual residence or seat was in different Contracting States when they agreed, and the resulting proceedings and awards. A foreign arbitral seat alone is insufficient.

Check the agreement date, each party’s position and relevant treaty participation. Among the countries covered on this website, the UN depositary lists Russia, Belarus, Kazakhstan and Moldova; Armenia and Kyrgyzstan are not listed. EAEU membership does not itself establish Convention participation.

Form, public-law entities and foreign arbitrators

Article I(2)(a) defines an agreement, including written clauses and listed forms of communication; it includes a special qualification for relations between States that do not require writing. That qualification cannot be applied to every agreement. Modern electronic exchanges also require assessment under applicable national law.

Article II recognises the ability of public-law entities to arbitrate within the Convention’s scope, subject to possible State declarations. Article III permits foreign nationals as arbitrators. Authority, dispute eligibility and mandatory tribunal requirements still need examination.

Institutional and ad hoc arbitration

Statutory basis: Article IV of the Convention. Parties may choose an institution or ad hoc arbitration, arranging appointments, seat and procedure. Where a mechanism is incomplete or fails, Article IV provides supplementary organisational mechanisms.

The competent authority depends on Article IV, State notifications and the particular situation. It is inaccurate to promise that a Russian court will cure every organisational gap. An ad hoc clause should address the appointing authority and replacement procedure.

Jurisdiction objections and state courts

Article V requires timely jurisdiction objections, permits consideration of justified delay and allows the tribunal to examine its own jurisdiction subject to later court review. Preserve the procedural record of participation and objections.

Article VI distinguishes a court objection based on the arbitration clause, the law governing its validity and proceedings already commenced in arbitration. Under VI(3), a later court ruling on arbitral jurisdiction is normally deferred until the award unless substantial reasons justify otherwise. Seeking interim protection does not waive arbitration: VI(4).

Applicable law and reasons

Article VII allows parties to choose substantive law. Without a choice, arbitrators apply the conflict rule they consider applicable, taking account of the contract and trade usages. This differs from the agreement’s governing law and the law of the arbitral seat.

Article VIII presumes a reasoned award, with specified exceptions tied to party choice and procedure. Any exception also requires consideration of mandatory applicable legislation.

What changes after annulment

Statutory basis: Article IX(1)–(2) of the European Convention together with Article V(1)(e) of the New York Convention. The award must fall within the European Convention’s scope, and both the annulling State and the State of requested recognition or enforcement must be parties to it. The annulment must come from the State in which, or under whose law, the award was made. On those conditions, annulment supports refusal only for the reasons listed in Article IX. Paragraph 2 establishes the corresponding limitation on Article V(1)(e) between States also party to the New York Convention.

Those cases concern incapacity or invalid agreement; inadequate notice or inability to present a case; excess of scope, with severability; and tribunal or procedure contrary to the agreement or, failing agreement, Article IV.

Annulment solely under the seat’s local public policy is not listed. Enforcement is nevertheless not guaranteed: other applicable refusal grounds, including the enforcing State’s own public policy and arbitrability, remain. Establish the actual annulment grounds before applying the two treaties.

Relationship with New York and practical assessment

Article VII(1) of the New York Convention preserves other treaties and access to more favourable law in the enforcing State. This does not permit arbitrary combinations of convenient provisions: establish the chosen route’s applicability.

Case law: paragraphs 5, 7 and 10 of Supreme Court Plenum 53 expressly include the European Convention among applicable sources and review instruments.

Gather the agreement, the parties’ circumstances when signing, the reasoned annulment decision and the intended enforcement country. Compare foreign-award recognition and annulment and refusal grounds.