On June 12, 2020, the Kingdom of Tonga (Tonga) became the 164th country to accede to United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention).
The New York Convention is widely regarded as the cornerstone of modern international arbitration, and it is credited with making arbitration the most popular method of resolving international commercial disputes all over the world. It requires courts of contracting states to give effect to arbitration agreements and to recognize and enforce awards made in other states, subject to specific limited exceptions.
Our International Arbitration Group is delighted to have worked closely with the Asian Development Bank (ADB), the United Nations Commission on International Trade Law (UNCITRAL) and the Tongan Government on its accession to the New York Convention. Partner Gary Born, chair of the firm's International Arbitration Group, was engaged by the ADB together with Daniel Meltz, a barrister at 12 Wentworth Selborne Chambers, to advise on the accession and led the group's work along with Counsel Jonathan Lim.
Gary Born and Jonathan Lim will continue to assist the ADB with drafting international arbitration legislation for Tonga in order to implement the New York Convention. Tonga does not currently have an arbitration statute, although section 15 of Tonga's Foreign Investment Act 2002 provides that "[t]he provisions of the United Kingdom's Arbitration Act" have "full effect in relation to any dispute involving a foreign investment business in Tonga" and the Reciprocal Enforcement of Judgments Act 1988 regulates the enforcement of foreign arbitral awards in Tonga.
The International Arbitration Group's work in Tonga is part of a broader technical assistance project promoting international arbitration reform in the South Pacific overseen by the ADB's Office of the General Counsel's Law and Policy Reform Program and led by Christina Pak, principal counsel at the ADB. The project includes other countries in the South Pacific such as Fiji, Papua New Guinea, Palau, Samoa, and Timor-Leste.
The International Arbitration Group provided assistance to the Palaun Government in connection with Palau's accession to the New York Convention earlier this year. The group provided assistance to the Government of Papua New Guinea with the country's accession to the New York Convention in 2019, along with related assistance with drafting implementing arbitration legislation, and to the Government of Fiji in the drafting of the Fiji International Arbitration Bill 2017.
Apart from assistance on law reform efforts, the International Arbitration Group continues to support capacity-building initiatives for the private sector, government and judiciary in the South Pacific. Gary Born and Jonathan Lim took part in and helped to organize the inaugural ADB-UNCITRAL South Pacific International Arbitration Conference held in Denarau, Fiji, which took place on February 12–13, 2018. Mr. Born gave the conference's keynote address. Partner Steve Finizio also spoke at the 2nd South Pacific International Arbitration Conference in Port Moresby, Papua New Guinea, on March 25–26, 2019, when the Papua New Guinea government first announced its intention to accede to the New York Convention. On May 28 and 29, 2019, Mr. Lim spoke at capacity-building seminars in Suva, Fiji, on the new Fiji International Arbitration Act. The seminars were jointly organized by the Government of Fiji and the ADB for lawyers and non-lawyers in the private and public sectors. Mr. Born also spoke at the international commercial arbitration seminars for the business and legal community in Dili, Timor-Leste, on June 19 and October 24, 2019, in Koror, Palau.
The Group will continue to work with the ADB, UNCITRAL and the Tongan Government on implementing the New York Convention and related arbitration law reform, including a new international arbitration bill.
Originally published 18 June, 2020