scholarly journals INTERACTION BETWEEN THE SETTING ASIDE OF AN AWARD AND LEAVE FOR ENFORCEMENT* An Overview on Karaha Bodas Case Tension between U.S. Court and Indonesian Court

Yuridika ◽  
2017 ◽  
Vol 30 (2) ◽  
pp. 333
Author(s):  
Sujayadi Sujayadi
Keyword(s):  
New York ◽  
Country Of Origin ◽  
The Other ◽  
District Court ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Other Hand ◽  
New York Convention ◽  
The U.S

Karaha Bodas case is a notorious case which demonstrates how is unpredictable of the Indonesian court’s practice when facing cases related to arbitration. This case shows various aberrations of the principles that have been commonly accepted in international commercial arbitration but distorted in practice, especially in Indonesia, therefore many experts in the field of international commercial arbitration always mention this case as a “pathology” in international commercial arbitration.[1] This article will examine the interaction between the attempt to set aside of the award, while on the other hand the successful party requests for enforcement in other jurisdictions. The discussion will be focused on the standings of the U.S. courts toward the annulment proceeding in and the judgement of the District Court of Central Jakarta. The findings in this article show that the U.S. courts – like any other jurisdictions – disobeyed the judgement of the annulment which was rendered by Indonesian court, because Indonesian courts were the secondary jurisdiction. In addition, the courts in which the enforcement sought may have discretion whether they will or will not enforce an award which has been vacated in the country of origin. The discretion is guaranteed under the New York Convention 1958.

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

2017 ◽  
Author(s):  
Möckesch Annabelle
Keyword(s):  
New York ◽  
Legal Framework ◽  
Equal Treatment ◽  
Common Denominator ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Mandatory Rules ◽  
Recognition And Enforcement ◽  
New York Convention

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 Commercial Arbitration: Implementing the New York Convention

2009 ◽  
pp. 185-307
Author(s):  
Edward Brunet ◽  
Richard E. Speidel ◽  
Jean E. Sternlight ◽  
Stephen H. Ware
Keyword(s):  
New York ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
New York Convention

Impecunious parties in international commercial arbitration

2020 ◽  
Vol 36 (1) ◽  
pp. 123-146
Author(s):  
Marcel Carvalho Engholm Cardoso
Keyword(s):  
New York ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Uniform Solution ◽  
New York Convention

Abstract This article discusses the possible effects that a party’s lack of funds can have on the arbitration agreement. It explains the different theories used to deal with this issue and proposes to classify them into substantive and jurisdictional solutions, depending on whether they propose an actual answer or examine it from a competence–competence perspective, thus simply deferring the question to the arbitrators without further guidance. The former category can also be divided into two further subgroups, in accordance with the weight given to the contractual nature of arbitration or to its jurisdictional nature. Finally, the article proposes a uniform solution under the New York Convention, arguing that impecuniosity might fall under the ‘incapable of being performed’ exception of article II(3). It concludes by proposing a narrow construction of this exception and putting forward four factors that practitioners should consider when deciding whether impecuniosity can void or suspend the effects of arbitration agreements.

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 International Commercial Arbitration in Malaysia

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 ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention

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.

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