State Liability for breach of article II.3 of the 1958 New York convention

Abstract

This article examines the concept of state liability for non-compliance with the obligation to refer the parties to arbitration pursuant to Article II.3 of the 1958 New York Convention. Article II.3 of the New York Convention obligates the courts of contracting states to safeguard the party against whom legal proceedings have been initiated in violation of a valid international arbitration agreement. The author argues that when the court of a given contracting state decides not to refer the parties to arbitration, particularly, in those cases involving the application of foreign law, and in which an error of judgment has been made (ie misapplication, misinterpretation, or lack of application of the law governing the agreement to arbitrate), the injured party should be entitled to make a claim for damages against the relevant contracting state for breach of a New York Convention right, ie the right to arbitrate.