10 Setting Aside an Arbitral Award

2017 ◽  
Author(s):  
Kim Joongi
Keyword(s):  
Public Policy ◽  
New York ◽  
Arbitral Award ◽  
Model Law ◽  
New York Convention

This chapter considers the grounds for setting aside an arbitral award. It looks at cases where set-asides have occurred—due to invalid agreements, an excess of jurisdiction, the formation of a tribunal, and public policy arguments. The Arbitration Act’s provisions concerning set-aside closely follow the Model Law and New York Convention. The chapter, however, also discusses other pre-Model Law grounds for a set-aside, such as when ‘a decision has been omitted regarding an important matter that would affect the judgment’. Moreover, the chapter explores the effects of a set-aside, before closing with some arguments raised by leading arbitration scholars.

Understanding Public Policy as an Exception to the Enforcement of Foreign Arbitral Awards

2015 ◽  
Vol 2 (4) ◽  
pp. 316-350
Author(s):  
Wasiq Abass Dar
Keyword(s):  
Public Policy ◽  
New York ◽  
Special Focus ◽  
Commercial Arbitration ◽  
National Courts ◽  
Or Practice ◽  
Wide Definition ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

The paper, as the title suggests, aims at understanding and exploring the doctrine of public policy as a ground for refusing enforcement of foreign arbitral awards. Public Policy is one such ground provided in the New York Convention as well as in the uncitral Model Law, which is most often invoked in the national courts to challenge or refuse the enforcement of foreign arbitral awards. What makes it more complicated is the lack of common world-wide definition of public policy or practice on its application, as the same varies from State to State. The traces of ambiguity, subjectivity (at the hands of the courts in terms of interpretation of the concept), and unpredictability associated with the concept of public policy have at times significantly thwarted the effectiveness and efficiency of international commercial arbitration. This paper attempts to understand and explore the enigma of public policy as an exception to the enforcement of foreign arbitral awards. Apart from revisiting various scholarly works on this issue, interpretation of this concept by various judicial institutions across the globe (with special focus on India, Pakistan, Bangladesh and Sri Lanka) has been attempted, followed by a comparative analysis, to analyse its application on the ground. This paper argues and suggests that a more desirable method of interpreting public policy, i.e. narrow interpretation, is the need of the hour, keeping in consideration the growing demands of international trade and commerce.

scholarly journals Problems in Recognition and Enforcement of Foreign Arbitral Awards in Turkey

2013 ◽  
Author(s):  
Adnan Deynekli
Keyword(s):  
Public Policy ◽  
New York ◽  
Necessary Conditions ◽  
Arbitral Tribunal ◽  
Arbitral Award ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
Domestic Law

If the arbitral award which requested to recognition and enforcement given in the country is a party to New York Convention dated 1958, primarily the provisions of this Convention shall be applied. The recognition and enforcement of domestic law and regulations duly implemented. Whether judgment fees should be fixed or proportional are discussion. The demand for recognition and enforcement of foreign arbitral tribunal shall not review the basis of the decision of the referee. The necessary conditions for enforcement of foreign arbitral decisions and must be moved. The existence of the arbitration agreement against the enforcement of the arbitration requested by referee assignments, and to be aware of the dispute to arbitration and enforcement required to be favorable verdict must not be contrary to public policy.

scholarly journals The Influence of the Law of the Country of the Place of Enforcement of the Arbitral Award on the Settlement of Disputes in the International Commercial Arbitration

2020 ◽  
pp. 86-97
Author(s):  
Volodymyr NAHNYBIDA
Keyword(s):  
Public Policy ◽  
New York ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitral Award ◽  
Opposing Party ◽  
Recognition And Enforcement ◽  
The Law ◽  
New York Convention ◽  
The Impact

The article examines the key aspects of the impact of the law of the place of enforcement of the arbitral award on arbitration and directly on the recognition and enforcement of arbitral awards, given the study of doctrinal positions, regulations and relevant case law. It was found out that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 refers to the procedural rules of the country of enforcement to settle matters inherent to the recognition and enforcement of foreign arbitral awards not governed by the Convention, establishing only basic and fairly simple formal requirements for the said procedure, which is one of the strong characteristics of the conventional regime of recognition and enforcement of arbitral awards. In light of this, it is concluded that such an approach is moderate and takes into account the impossibility and lack of practical necessity of unification at the international treaty level of procedural features of recognition and enforcement of arbitral awards, establishing only basic principles and requirements. It is substantiated that there are two components of the law of the place of enforcement of the arbitral award, which regulate the recognition and enforcement of arbitral awards within the relevant jurisdiction, namely substantive and procedural, which, however, are contained in single legal acts — mostly national arbitration laws. The author emphasizes the crucial role of the law of the place of enforcement of the arbitral award in the material and procedural aspects for the procedure of recognition and enforcement of arbitral awards within the relevant jurisdiction. It is concluded that the unification of material grounds for refusal of recognition and enforcement (in particular, non-arbitrability of the subject matter of the dispute and contradiction of the award to public policy as grounds that can be raised by the competent judicial authority at the place of enforcement ex officio, regardless of reference to them by opposing party), as well as the consolidation of basic procedural requirements and principles is carried out by the New York Convention of 1958, which leaves to the discretion of the national legislature, on the one hand, the settlement of minor aspects of the procedure, but, on the other hand, recognizes its full discretion in determining the limits of objective arbitrability, the content and specific filling of the category of international public policy applicable in the relevant jurisdiction. Keywords: arbitral award, international commercial arbitration, applicable law, arbitration process, public policy.

scholarly journals A refusal reason of recognition and enforcement of foreign arbitral awards

2019 ◽  
Vol 56 (2) ◽  
pp. 503-522
Author(s):  
Yunus Emre
Keyword(s):  
Public Policy ◽  
New York ◽  
Public Order ◽  
The Public ◽  
Arbitral Award ◽  
Recognition And Enforcement ◽  
New York Convention

Public policy is one of the most debated concepts in enforcement cases of foreign arbitral award as a sensitive term. It is the most frequent challenging reason of foreign arbitral awards in New York Convention, and therefore it may be used as a defense tool against foreign arbitral awards in enforcement cases before courts. Although public policy is not only refusal reason in New York Convention, other refusal reasons covered by New York Convention may be interpreted as public policy violations before courts. Therefore, relationship between public order and other refusal reasons is key point of this research. Secondly, one important well-known fact should be emphasized regarding public policy. Each country has its own public policy concept and criteria differently from other countries. Although one foreign arbitral award may be enforced in a country as it is in accordance with the public order of country of enforcement, it may be refused in a different country because of public policy reason. Therefore, public policy concept shall be discussed in different aspects in this study.

scholarly journals AN ANNULLED AWARD CANNOT BE ENFORCED UNDER THE NEW YORK CONVENTION

2017 ◽  
Vol 17 (2) ◽  
pp. 171
Author(s):  
Faizal Kurniawan
Keyword(s):  
Public Policy ◽  
New York ◽  
The State ◽  
Arbitral Award ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
Made In

Arbitral award is final and binding. A concept of “binding” is fundamental in International arbitral award. Nevertheless, the focus commonly concerns about the annulment and/or deferment of International arbitral award so that it could not be implemented. However, the New York Convention does not govern this issue.  In addition, international arbitral awards must meet the following requirements: the award is made in the territory other than conflicting countries, and/ or it is not considered a domestic awards in the State where recognition and enforcement is sought. This is important because the enforcement proceedings between foreign and domestic awards are different. This article elaborates the principles of the recognition and enforcement of a foreign award and the grounds or criteria for refusing to enforce an award are limited to the specific defenses i.e. public policy. The party opposing enforcement bears the burden of proofin the existence of the enumerated defenses.Keywords: binding, annullment, deferment, acknowledgement and enforcement of arbitral award.

9 Recognition and Enforcement

2017 ◽  
Author(s):  
Kim Joongi
Keyword(s):  
New York ◽  
Civil Law ◽  
Arbitral Award ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention

This chapter discusses the recognition and enforcement of arbitral awards. Domestic awards are recognized and enforced under the provisions of the Arbitration Act, which are virtually the same as the provisions in the New York Convention. As per the Model Law, if an arbitration is seated in Korea it is considered a domestic arbitration. In addition, the 2016 Arbitration Act now provides that recognition or enforcement of an arbitral award can occur in far more simplified fashion, through an enforcement decision by a court, as is the case in such civil law countries as Germany and Japan. Furthermore, under the amended Article 37.1, a domestic and foreign arbitral award will be recognized as long as grounds to set it aside do not exist.

scholarly journals Exequatur de laudos arbitrales extranjeros en España: comentario al auto del TSJ de Murcia de 12 de abril de 2019 = Exequatur of foreign arbitral awards in Spain: commentary to the decision of the High Court of Justice of Murcia of 12th April 2019

2020 ◽  
Vol 12 (1) ◽  
pp. 512
Author(s):  
María José Castellanos Ruiz
Keyword(s):  
Public Policy ◽  
New York ◽  
Competent Authority ◽  
High Court ◽  
Arbitral Award ◽  
Court Of Justice ◽  
Recognition And Enforcement ◽  
The Law ◽  
New York Convention ◽  
Art V 1

Resumen: En el Auto del TSJ de Murcia de 12 de abril de 2019 se acuerda conceder al exequatur en España de un laudo arbitral dictado en Colombia, solicitado por la parte demandante Productos Florida, S.A. Los motivos de denegación del exequatur que son alegados por la parte demandada, AMC JUICES, S.L y que son objeto de análisis son: a) Sentencia arbitral no obligatoria para las partes o que ha sido anulada o suspendida por una autoridad competente del país en que, o conforme a cuya Ley, ha sido dictada esa sentencia (art. V.1.e) Convenio de Nueva York de 1958); b) Reconocimiento o ejecución del laudo arbitral contrarios al orden público del Estado requerido (art. V.2.b) Convenio de Nueva York de 1958). En definitiva, la postura de los tribunales españoles en relación con el Convenio de Nueva York de 10 de junio de 1958 sobre el reconocimiento y ejecución de las sentencias arbitrales extranjeras, es la de favorecer el reconocimiento y ejecución de laudos arbitrales, de manera que sólo rechazan el exequatur de un laudo arbitral por motivos muy claros y evidentes.Palabras clave: laudos arbitrales extranjeros, convenios arbitrales, reconocimiento y ejecución, exequatur, Convenio de Nueva York de 1958, Ley española de Arbitraje de 2003. Abstract: In decision of the High Court of Murcia of 12th April 2019, it is agreed the exequatur in Spain of an foreign arbitral award issued in Colombia, requested by the plaintiff Productos Florida, S.A. The grounds for refusal of the exequatur that are alleged by the defendant, AMC JUICES, S.L. and that are subject to analysis are: a) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. (art. V.1.e) New York Convention of 1958); b) Recognition or enforcement of the foreign arbitral awards would be contrary to its public policy (art. V.2.b) New York Convention of 1958). In short, the position of the Spanish courts in relation to The New York Convention of June 10, 1958 on the recognition and enforcement of foreign arbitral awards, is to favor the recognition and enforcement of foreign arbitral awards, so that only they reject the exequatur of an arbitral award for very clear and obvious reasons. Keywords: foreign arbitral awards, arbitral clauses, recognition and enforcement, exequatur, New York Convention of 10 june 1958, Spanish arbitration law of 2003. 

scholarly journals Remedies to Challenge Arbitral Awards in Pakistan

2017 ◽  
Vol 1 (1) ◽  
pp. 14
Author(s):  
Sohaib Mukhtar ◽  
Shafqat Mahmood Khan Mastoi
Keyword(s):  
New York ◽  
Official Language ◽  
High Court ◽  
Arbitral Award ◽  
Procedural Law ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
International Conventions ◽  
Article 5

<p><em>Available remedies to challenge arbitral awards in Pakistan are modification, remission, annulment and revocation of recognition and enforcement. Arbitration is a method through which disputing parties resolve their disputes outside the Court by avoiding technicalities of procedural law. If there is irregularity regarding process and procedure of arbitral tribunal, parties to an arbitration agreement may apply against it in the Court. Arbitrator files an arbitral award in the Court after completion of arbitral proceedings. If arbitral award is domestic and comes under ambit of Civil Court, arbitrator files arbitral award there but in case of foreign arbitral award, parties to arbitration agreement are required to file arbitral award with arbitration agreement and in case if arbitral award and arbitration agreement are not in official language of Pakistan, translation in official language is required to be submitted before High Court for implementation of arbitral award in Pakistan. Aggrieved party to arbitration agreement may challenge arbitral award before the Court for modification under section 15, for remission under section 16 and for setting aside under section 30 of the Arbitration Act 1940. Recognition and enforcement of an arbitral award may be challenged under article 5 of the New York Convention 1958. The UNCITRAL Model Law 1985 and other relevant International Conventions are not applicable in Pakistan thus aggrieved party may not avail grounds mentioned in these Statutes for modification, remission, setting aside and revocation. Pakistan is an Islamic country hence no award can be implemented in Pakistan if it is against injunctions of Islam under the light of Holy Quran and Sunnah of Prophet Muhammad </em><em>ï·º</em><em> </em><em>which comes under ambit of public policy which is one of the grounds for revocation of recognition and enforcement of an arbitral award in Pakistan. </em></p>

scholarly journals Exploring the concept of arbitral awards under the New York Convention

2021 ◽  
pp. 205556362110228
Author(s):  
Konstantina Kalaitsoglou
Keyword(s):  
New York ◽  
International Arbitration ◽  
Arbitral Award ◽  
New York Convention ◽  
Legal Concepts

Despite its importance, the arbitral award was left undefined by the New York Convention and most other major international arbitration laws. This has inevitably led to varying opinions regarding its nature and confusion regarding the thresholds that differentiate arbitral awards from other tribunal decisions. Partly in response to the above, there has been discussion to initiate the revising process of the Convention. Responses have been divided. In this paper, the author finds that revision will not bring the desired results, while the Convention itself has equipped international arbitration practice with tools to overcome obscure legal concepts such as the arbitral award.

scholarly journals Dallah: the death knell for deference?

2021 ◽  
Author(s):  
◽  
Anastasia Lee Fraser
Keyword(s):  
New York ◽  
United Kingdom ◽  
Supreme Court ◽  
De Novo ◽  
Commercial Arbitration ◽  
English Court ◽  
Arbitral Award ◽  
The United Kingdom ◽  
Recognition And Enforcement ◽  
New York Convention

<p>This paper examines the decision of the United Kingdom Supreme Court in Dallah Real Estate and Tourism Holding Company v The Minister of Religious Affairs, Government of Pakistan, a rare case where an English court refused enforcement of an international arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).  Although in Dallah the United Kingdom Supreme Court acknowledged the trend to limit reconsideration of the findings of arbitral tribunals in fact and in law, the Court considered it was bound to decide the question of validity de novo. Contrary to the tribunal, the Court held the arbitration agreement was not valid under the law to which it was subject and refused enforcement of the arbitral award.  This paper analyses how the English Supreme Court decided the legal issues before it. It concludes the English court could have reached the same decision on a more convincing basis. Even where the issue is initial consent, holding the court at the place of enforcement is always bound to decide a matter de novo neither serves the objectives of international commercial arbitration nor is necessary to promote the fundamental integrity of arbitral proceedings.</p>

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