ERDEM-NEWSLETTER-2018-metin

132 NEWSLETTER 2018 It is argued that importance should be given to the parties’ in- tent to arbitrate which is the key requirement of an arbitration agree- ment. Where the parties’ consent to arbitration is clear, despite the non-fulfillment of the formal requirement, the courts have resorted to considerations of good faith and estoppel to uphold the validity of the arbitration agreement. Recognition and Enforcement of Foreign Arbitral Awards The second issue the New York Convention deals with is the recognition and enforcement of foreign arbitral awards. The party seeking enforcement of an award only needs to submit (i) the duly authenticated original award, or a duly certified copied thereof, and (ii) the original arbitration agreement referred to in Article II, or a duly certified copy thereof 7 and, if necessary, the translation of these documents. Articles V(1) and (2) of the Convention are of crucial importance, and set out the grounds for national courts to resist enforcement. These include: • The invalidity of the arbitration agreement, or that the parties to the agreement did not possess the capacity to sign the ag- reement; • Lack of notice where the party against whom the award is invoked was not given proper notice regarding the procee- dings, including the appointment of the arbitrator, and vio- lations of due process (i.e a party being unable to present its case before the tribunal); • The lack of jurisdiction of the tribunal that includes cases where the tribunal deals with a difference not contemplated by, or not falling within, the terms of the submission to arbit- ration; • Irregularities in the composition of the arbitral authority or the arbitral procedure, as it was not made in accordance with the agreement of the parties or, failing such agreement, was 7 Article IV of the New York Convention.