NEWSLETTER-2017

171 ARBITRATION LAW before which the enforcement is sought 1 . This means that if any of the grounds for refusal are present in the case at hand, the court does not necessarily have to refuse the enforcement, and may exercise its discretion in favor of enforcement. This discretion granted to the enforcement judge is one of the indications of the enforcement-friendly approach of the New York Convention. Another provision of the New York Convention that should be taken into consideration on this issue is Article VII(1). Pursuant to this article, the Convention shall not deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. Accordingly, in case there is a more favorable provision under the national law that can be applied, the enforcement judge applying the New York Convention must apply this provision, so that the party seeking enforcement would be able to benefit therefrom. This provision, unlike Article V(1), does not contain permissive wording, and sets forth that the Convention shall not deprive any party to take advantage of the more favorable national law provisions. Court Decisions Pertaining to Enforcement of Arbitral Awards Set Aside at the Seat of Arbitration For many years, the prevailing opinion was that arbitral awards set aside at the country of origin would not be enforced under the New York Convention. However, this view has changed as a result of deci- sions granted in France, the United States of America and the Nether- lands. Pursuant to these decisions, in the event that the arbitral award set aside at the place of arbitration would not have been set aside at the country of enforcement, this arbitral award may be enforced. In other 1 Note that the Turkish translation of the relevant article does not properly reflect this wording. The Turkish translation, stating that “the enforcement of awards may not be rejected unless any of the grounds set forth hereunder are present…” does not correctly reflect that there is a discretionary power of the enforcement judge even though the grounds exist in the case at hand. However, the relevant article should be interpreted in accordance with the English version, which is one of the official languages of the New York Convention.