Recognition and Enforcement of Foreign Arbitral Awards: The Application of the New York Convention by National Courts National Report for Australia

2013 ◽  
Author(s):  
Luke R. Nottage ◽  
Chester W. Brown
Keyword(s):  
New York ◽  
National Courts ◽  
National Report ◽  
Recognition And Enforcement ◽  
New York Convention

scholarly journals Recognition and Enforcement of Annulled Foreign Arbitral Awards in the Country of Origin under the 1958 New York Convention: the US and French Approaches

Teisė ◽  
2021 ◽  
Vol 120 ◽  
pp. 147-154
Author(s):  
Yunus Emre Ay
Keyword(s):  
New York ◽  
Subject Matter ◽  
Country Of Origin ◽  
Relevant Article ◽  
National Courts ◽  
The Us ◽  
Recognition And Enforcement ◽  
The Subject ◽  
New York Convention

The recognition and enforcement of annulled foreign arbitral awards in the country of origin under the 1958 New York Convention is subject to doctrinal discussions. A relevant article of the1958 New York Convention become the subject matter of many cases in some large economies. These cases and doctrinal views are very important for other countries that did not host such a case before their national courts. Therefore, the purpose of this paper is to analyse the relevant article of the 1958 New York Convention and compare delocalization and territorial theories.

scholarly journals THE APPEAL OF INTERNATIONAL COMMERCIAL ARBITRATION AWARDS AS A FORM OF JUDICAL CONTROL BY NATIONAL COURTS

2019 ◽  
pp. 8-16
Author(s):  
S. Kravtsov
Keyword(s):  
New York ◽  
Dispute Settlement ◽  
Legal Protection ◽  
European Convention ◽  
Dispute Settlement Mechanism ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Recognition And Enforcement ◽  
New York Convention

The appeal of the international commercial arbitration awards is a major issue in the dispute settlement mechanism for arbitration governed by multilateral conventions, bilateral treaties and national laws, as well as by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Notwithstanding the importance of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, it restricts to a certain extent the scope of legal protection of arbitral awards, as it leaves national courts to challenge them by the way of possible annulment, and national courts when considering petitions for annulment decisions are vested in the power to revoke such decisions. In this respect, the resolution of these issues may raise the issue of the correlation between the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and domestic legislation of the countries in which the relevant decision may be challenged. The specific of the international commercial arbitration decision is that it cannot be appealed to any higher court. However, the absence of any form of control over the arbitral award could lead to the enforcement of such decisions, which, if rendered within the judicial system, would be overturned or modified by a higher court. Therefore, there is an institution for challenging arbitral awards in national courts. Due to the fact that the arbitration award is a form of control by national courts, the regulation of this institution is defined in the legislation of each individual country, and at the international legal level only certain aspects are regulated. These are the European Convention of 1961 and the New York Convention of 1958.

scholarly journals Review of arbitral awards for breach of natural justice: an internationalist approach

2021 ◽  
Author(s):  
◽  
Daniel Brady
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Commercial Arbitration ◽  
Natural Justice ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Dispute Resolution Mechanism

<p>While international commercial arbitration is widely regarded as an alternative dispute resolution mechanism to litigation in national courts, those courts are frequently engaged in the review arbitral awards in the context of annulment as well as recognition and enforcement. A key purpose of this review is to ensure that the arbitral procedure is consistent with the fundamental principles of natural justice. These principles find their origin in the general principles of law common to civilised nations, and their application is mandated by both the New York Convention and the UNCITRAL Model Law. This paper argues that the content of these principles should be ‘internationalised’. That is, it is both appropriate and desirable that domestic courts, irrespective of the jurisdiction in which they happen to be sitting, apply the basic rules of natural justice in uniform way. It is submitted that this would not only result in a consistent and therefore reliable recognition and enforcement regime, but would also contribute to the success and increased adoption of international arbitration as a key alternative dispute resolution mechanism.</p>

Enforcement

2020 ◽  
pp. 185-215
Author(s):  
Andrea K. Bjorklund
Keyword(s):  
New York ◽  
Due Process ◽  
Fair Play ◽  
International Arbitration ◽  
Party Autonomy ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Procedural Safeguards ◽  
New York Convention

This chapter addresses enforcement in international arbitration. The ready enforceability of arbitral awards is the single strongest component of the architecture that undergirds international arbitration. Two conventions are the primary mechanisms ensuring that enforceability: the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, colloquially known as the New York Convention; and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, colloquially referred to as the ICSID Convention or the Washington Convention. The regime for enforcement of arbitral awards is based on a structure that prioritizes enforcement so long as awards are rendered pursuant to certain largely procedural safeguards. This approach is an attempt to balance the principle of party autonomy with concern on the part of national courts that they not be co-opted into enforcing awards not consistent with at least rudimentary principles of fair play. Judgment debtors can thus resist enforcement should the arbitration have failed to comport with fundamental notions of due process. In the case of the New York Convention, two other grounds for resisting enforcement have to do with policy considerations in the enforcing state.

The Fate of the Award Annulled in the Country of the Seat

Global Jurist ◽  
2016 ◽  
Vol 17 (2) ◽  
Author(s):  
Alessandra Sardu
Keyword(s):  
New York ◽  
Country Of Origin ◽  
Case Law ◽  
The State ◽  
Legal Order ◽  
National Courts ◽  
Recognition And Enforcement ◽  
New York Convention

AbstractThe topic of the fate of the award annulled in the legal order of the seat has always been at the center of fervent debates. Once annulled, does the award cease to exist? Is it correct to speak about the extraterritorial and erga omnes effects of the judgment of the courts of the seat annulling the award? Scholars and national courts have tried to give an answer to these questions finding a possible solution in the framework of the New York Convention. However, it is doubtful whether the New York Convention addresses this issue. This article aims at exploring in a critical manner the different theoretical views on the fate of the award annulled in the country of origin, also taking into account case law of national courts on the topic. Three theoretical theses are analyzed and compared. A first thesis affirms that (i) an award annulled in the country of the seat cannot be enforced anywhere else, a second that (ii) the courts of the enforcement States have discretion in deciding whether to grant recognition and enforcement to a foreign award and a third that (iii) the annulment of an award in the State does not constitute a ground to refuse the enforcement of the award.

scholarly journals Review of arbitral awards for breach of natural justice: an internationalist approach

2021 ◽  
Author(s):  
◽  
Daniel Brady
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Commercial Arbitration ◽  
Natural Justice ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Dispute Resolution Mechanism

<p>While international commercial arbitration is widely regarded as an alternative dispute resolution mechanism to litigation in national courts, those courts are frequently engaged in the review arbitral awards in the context of annulment as well as recognition and enforcement. A key purpose of this review is to ensure that the arbitral procedure is consistent with the fundamental principles of natural justice. These principles find their origin in the general principles of law common to civilised nations, and their application is mandated by both the New York Convention and the UNCITRAL Model Law. This paper argues that the content of these principles should be ‘internationalised’. That is, it is both appropriate and desirable that domestic courts, irrespective of the jurisdiction in which they happen to be sitting, apply the basic rules of natural justice in uniform way. It is submitted that this would not only result in a consistent and therefore reliable recognition and enforcement regime, but would also contribute to the success and increased adoption of international arbitration as a key alternative dispute resolution mechanism.</p>

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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