Iran
The Islamic Republic of Iran has acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention). Iran signed the New York Convention on 15 October 2001 and it entered into force on 13 January 2002. Iran made two declarations or reservations to the New York Convention. The first confirmed that only disputes that are considered to be commercial matters under the national law of the Islamic Republic of Iran. Secondly, the New York Convention will only be applied in Iran on the basis of reciprocity with other Contracting States. Both forms of declarations are not uncommon. This updates the Iranian law on International Commercial Arbitration of 1997 which made no provision for the enforcement of foreign awards.
However, Iran’s accession to the New York Convention does not waive the provisions of Article 139 of the Constitution. This is a procedural requirement that a dispute arising out of a state contract must be approved by parliament. Non-compliance renders any subsequent award unenforceable irrespective of the New York Convention. Furthermore, there is a higher authority over the Constitution which is comprised of Islamic principles and morals; for example, the law prohibiting usury interest. Enforcement of a foreign award which conflicts with any of these principles will remain unenforceable despite Iran’s accession under the New York Convention. It remains to be seen how the Convention will be applied by the domestic courts.
Italy
In Italy it has been confirmed that arbitrators have the discretion to apply to the Italian Constitutional Court to request a review of the legality of any laws and acts in force governing the controversy during the arbitral proceedings. This was confirmed in the Italian Constitutional Court decision published on 28 November 2001, n.376. This particular decision is relevant with regard to the European Court of Justice where a similar right of referral for interpretation under the European Treaty exists. Arbitrators in Italy who are dealing directly with the application and interpretation of European Treaty provisions can, it appears, refer a question to the European Court of Justice for clarification.
Japan
The Japan Commercial Arbitration Association (JCAA) has reported that in June 2001, the Judicial Reform Council submitted its final report on reform to Japan’s legal system to the Japanese Prime Minister and following the submission of that report, the Judicial Reform Law was enacted. The Government will soon establish a Judicial Reform Headquarters which will be tasked with the implementation of many of the objectives laid out in the Judicial Reform Council’s report. Importantly for arbitration and ADR, the report stressed the importance of improving those areas and there are plans in place to update the Japanese Arbitration Law, taking into consideration the UNCITRAL Model Arbitration Law.
The JCAA continues to report that the number of arbitration cases it receives each year is low (the annual figure has been between 10 and 15 cases per year since 1997). Statistics published by the ICC also show low involvement by Japanese parties in international arbitration under its auspices. In order to increase awareness of arbitration and ADR in Japan, the JCAA recently held a mock arbitration in Tokyo that was well attended by both lawyers and business people alike.
Hong Kong
There is a study underway by a Working Party which has been set up in Hong Kong to review the enforcement in Mainland China of arbitral awards made in Hong Kong under the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR. This Arrangement was put in place post handover/reunification and provides a regime for the enforcement of Hong Kong awards in the Mainland which is virtually identical to that which applies under the New York Convention. Information has been requested before 1 February 2002 and the Working Party will, it is expected, in due course publish a report.Singapore
The government of Singapore have confirmed that they want to make Singapore a legal services centre, in particular in international arbitration. The parliament has recently enacted legislation which imposes the same rules and practices on domestic arbitration as that which apply to international arbitration. This harmonisation legislation was just one step in the government’s objective of "setting up an autonomous and parallel system of civil justice for the resolution of commercial business disputes, subject only to public policy demands." At a recent symposium on International Arbitration, the Attorney General, Chan Sek Keong, confirmed that Singapore had all of the prerequisites, in terms of legal infrastructure, to be the leading arbitration centre in the region. It was second only to China in the number of cases it processed and hope to promote its arbitration services through the Trade Development Board and the Economic Development Board. © Herbert Smith 2002The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.
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