Part IV International Treaties, 21 New York Convention

New York Convention ◽

Relationship Of ◽

The Relationship

This chapter focuses on the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or NYC), the most important convention on international commercial arbitration. It first provides an overview of the content and role of the NYC before discussing its history and its future prospects. It then considers the legal nature of (international) arbitration and how the provisions in the NYC are to be interpreted. It also offers a commentary on Articles I–VII of the NYC, which cover topics such as the prerequisites for recognition and enforcement of arbitral awards, obligation to recognize and enforce foreign arbitral awards, settlements in arbitration proceedings, recognition of arbitration agreements and the requirements as to their form, grounds for refusal of recognition, and enforcement of an arbitral award, and the relationship of the NYC to international and national regulations on the recognition and enforcement of arbitral awards.

International Commercial Arbitration in Malaysia

Pertanika Journal of Social Sciences and Humanities ◽

10.47836/pjssh.29.s2.10 ◽

2021 ◽

Vol 29 (S2) ◽

Author(s):

Iyllyana Che Rosli

Keyword(s):

New York ◽

Best Practice ◽

International Treaties ◽

Commercial Arbitration ◽

International Commercial Arbitration ◽

Cross Border ◽

Before And After ◽

Model Law ◽

In the recent two decades, the wave of globalisation has hit the Malaysian market. It hence contributes to the popularity of arbitration as the means to settle cross border commercial disputes. The existing literature concerned with Malaysia suggests that the recent trend in Malaysia is that arbitration has become the dominant choice of dispute resolution forum. Using qualitative and doctrinal methods, this paper seeks to analyse the regulatory framework for international commercial arbitration in Malaysia, before and after Malaysia’s accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter, NYC 1958). The NYC 1958 is one of the most successful international treaties with 161 contracting States. The NYC 1958 aims to promote uniform practical procedures for the recognition and enforcement of foreign arbitral awards in its contracting States, irrespective seat of the awards. In doing so, the paper examines two significant periods of arbitration laws in Malaysia: pre and post-accession to the NYC 1958. The paper concludes that Malaysia no longer follows English arbitration legislation and instead follows international best practice by adopting the UNCITRAL Model Law on International Commercial Arbitration (hereinafter, UML) as the basis of its modern legislation, the Arbitration Act 2005. Malaysian courts are also seen to adopt a positive ‘pro-enforcement’ attitude in the application to recognise and enforce foreign arbitral awards, in promoting maximum enforcement of awards as promoted by the NYC 1958 and the UML.

Dallah: the death knell for deference?

10.26686/wgtn.17142995.v1 ◽

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 ◽

<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>

Part 1 Fundaments of Arbitration in Brazil, 2 Comments of the Brazilian Arbitration Law

International Arbitration: Law and Practice in Brazil ◽

10.1093/law/9780198840114.003.0002 ◽

2020 ◽

Author(s):

Sester Peter

Keyword(s):

New York ◽

International Arbitration ◽

Commercial Arbitration ◽

Model Law ◽

New York Convention ◽

Definition Of

This chapter examines the Brazilian Arbitration Law (BAL) of 1996. The BAL is a standalone act encompassing roughly 40 articles. It is divided into eight chapters and is applicable to both domestic and international arbitration, except for Chapter VI (The Recognition and Enforcement of Foreign Awards), which is modelled on the New York Convention (NYC). Hence, the BAL legislator adopted a monistic approach. Consequently, the BAL contains no definition of domestic or international arbitration, but only defines the term foreign award. According to article 34, sole paragraph BAL, an award is considered a foreign award if it was rendered outside the territory of Brazil. The present translation of the BAL builds on the terminology of the UNCITRAL Model Law on Commercial Arbitration and the NYC because both documents inspired the authors of the BAL and are cornerstones of international arbitration. This chapter of the book then provides comments on the BAL article by article.

Transnational Public Policy in International Arbitration

The Oxford Handbook of International Arbitration ◽

10.1093/law/9780198796190.003.0005 ◽

2020 ◽

pp. 119-149

Author(s):

Stavros Brekoulakis

Keyword(s):

Public Policy ◽

New York ◽

Clear Distinction ◽

Historical Evolution ◽

International Arbitration ◽

Rules And Principles ◽

New York Convention ◽

Almost All

This chapter focuses on the role of transnational public policy in international arbitration. Public policy is a key concept for international arbitration because it has provided the underpinning foundations for the development of theories on transnational autonomy of arbitration. Moreover, it is enshrined in the 1958 New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards as well as almost all national laws as a ground to resist enforcement of arbitral awards. The chapter then traces the historical evolution of transnational public policy and provides an overview of its legal function and rules and principles. The clear distinction between legal and non-legal conceptions of transnational public policy matters because it has important implications on the judicial function of tribunals in international arbitration.

Part 2 Determining the Applicable Attorney–Client Privilege Standard, 8 Applicable Privilege Standard in International Commercial Arbitration

10.1093/law/9780198795865.003.0008 ◽

2017 ◽

Author(s):

Möckesch Annabelle

Keyword(s):

New York ◽

Legal Framework ◽

Equal Treatment ◽

Common Denominator ◽

Commercial Arbitration ◽

International Commercial Arbitration ◽

Mandatory Rules ◽

This chapter contains an analysis of the most appropriate way to determine the applicable attorney–client privilege standard in international commercial arbitration. To this end, this chapter deals with the characterization of privilege as substantive or procedural, the legal framework for attorney–client privilege in international commercial arbitration, international mandatory rules of law, and the enforcement regime under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Against this background, the chapter includes an analysis of the possible approaches to determining the privilege standard. These include the application of general principles of law, the application of a single national law determined through a choice-of-law approach such as the closest connection test, the cumulative application of several national laws, and the creation of an autonomous standard defining the scope of attorney–client privilege. Lastly, the chapter examines whether corrective measures, such as the lowest common denominator approach or the most protective rule, are needed to ensure equal treatment of the parties and fairness of the proceedings. This chapter concludes with key findings on how to determine the applicable attorney–client privilege standard in international commercial arbitration.

INTERNATIONAL AGREEMENTS AS SOURCES OF CIVIL LAW OF UKRAINE

International scientific journal Internauka Series Juridical Sciences ◽

10.25313/2520-2308-2021-7-7452 ◽

2017 ◽

Author(s):

Iryna Horodetska ◽

Keyword(s):

Public Relations ◽

Civil Law ◽

Scientific Work ◽

Legal Regulation ◽

International Treaties ◽

International Treaty ◽

Legal Nature ◽

Conceptual Study ◽

The Relationship

The article is devoted to the features and functional purpose of such sources of civil law of Ukraine as international treaties. Based on the analysis of the theory of civil law, scientific approaches to understanding of the concept and system of sources of civil law, the relationship between the concepts of "international legal act" and "international treaty" are studied. The scientific work considers the characteristics and features of international treaties as sources of civil law of Ukraine, their role in the regulation of civil relations and their place in the system of national law. It is concluded that the current transformational changes that take place in Ukrainian society are inextricably linked with European integration processes and the need to bring the components of the legal system of Ukraine in line with the principles, norms and standards of European law. Objective strengthening of the role of international treaties in the settlement of not only international but also domestic civil relations necessitates a thorough conceptual study of the legal nature of international treaties, their place in the system of regulations of Ukraine and the relationship with civil law, which in its turn is an extremely important and, at the same time, difficult task. In this regard, it is quite logical to intensify the scientific discourse concerning the place of international treaties in the system of national law in different states. At the same time, while not denying the certainly important role played by international treaties in the settlement of civil legal (private) relations, we emphasize that the key to the effective functioning of the mechanism of legal regulation of public relations in this area is the need to achieve balance at interpenetration and interplay of principles and norms of domestic and international law as interdependent systems.

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

University Scientific Notes ◽

10.37491/unz.73.8 ◽

2020 ◽

pp. 86-97

Author(s):

Volodymyr NAHNYBIDA

Keyword(s):

Public Policy ◽

New York ◽

Commercial Arbitration ◽

International Commercial Arbitration ◽

Arbitral Award ◽

Opposing Party ◽

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.

Part III International Arbitration Agreements: Issues and Perspectives, 6 Some Reflections on the Making of International Arbitration Agreements for the Resolution of Commercial Disputes

10.1093/law/9780198783206.003.0007 ◽

2016 ◽

Author(s):

Saville Lord

Keyword(s):

New York ◽

Dispute Resolution ◽

International Arbitration ◽

Commercial Arbitration ◽

International Dispute ◽

Model Law ◽

New York Convention ◽

Legal Procedures ◽

Commercial Disputes

This chapter presents some thoughts on international arbitration. It begins with brief descriptions of the New York Convention and the UNCITRAL Model Law, which serve as the foundations of international dispute resolution. It then discusses arbitration agreements, the role of institutions, the role of law, and the disadvantages of arbitration. It argues that international commercial arbitration has become much more like that of the London Commercial Court; more often than not lawyers are called in from the outset. Pleadings, discovery, and the like are commonplace. The arbitral process has also become more expensive, notwithstanding substantial efforts by arbitral institutions and others to limit costs. It further suggests that where the tribunal considers that the dispute can be dealt with fairly and more cheaply without the full panoply of such legal procedures as the parties’ lawyers propose, that they make certain that the parties themselves, not just their lawyers, are made aware of the tribunal’s view.

1 The Concept and Sources of Arbitration

10.1093/law/9780199679751.003.0001 ◽

2015 ◽

Author(s):

Kaufmann-Kohler Gabrielle ◽

Rigozzi Antonio

Keyword(s):

New York ◽

Dispute Resolution ◽

Alternative Dispute Resolution ◽

Dispute Settlement ◽

Soft Law ◽

International Treaties ◽

Arbitration Process ◽

This introductory chapter analyses the concept of arbitration, distinguishing it from other alternative dispute resolution (ADR) methods, in particular mediation, conciliation, and expert determination. Having traced the historical roots and evolution of international arbitration, it then discusses the advantages and drawbacks of choosing to settle disputes by way of arbitration. The chapter further presents the main sources of arbitration law, from national laws and international treaties – in particular the New York Convention – over arbitration rules, soft law, jurisprudence, and scholarly writings. It then considers the role of Switzerland as a place of arbitration, discussing its long-standing dispute-settlement tradition and the arbitration-related bodies and institutions operating in the country. Finally, as an introduction to the next Chapters, the discussion briefly sets out the situations in which the arbitration process can come into contact with the courts.