Dallah: the death knell for deference?

<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>

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 ◽

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.

Foreign Arbitral Awards and Foreign Judgments Based upon Such Awards

Private International Law ◽

10.1093/oso/9780199489282.003.0008 ◽

2018 ◽

pp. 126-143

Author(s):

V.C. Govindaraj

Keyword(s):

New York ◽

Supreme Court ◽

Domestic Court ◽

Applicable Law ◽

Arbitral Award ◽

Supreme Court Of India ◽

The Supreme Court ◽

The New York Convention on foreign arbitration, by Article V (1) (e) lays down a procedural norm that an arbitral award, duly rendered, attains finality if, and only if, a domestic court endorses it. This procedural norm was endorsed by the Supreme Court of India in two leading cases. The ratio that the Supreme Court employed in the above-mentioned cases is in accordance with Section 17 of the Indian Arbitration Act, 1940. Such an endorsement by a local court of the forum that was required under Article V (1) (e) of the New York Convention was done away with by the Arbitration and Conciliation Act, 1996 under Section 35. The forum for the conduct of arbitration in the country of the applicable law also is not indispensable; and it is for the court exercising jurisdiction to determine, on the basis of balance of convenience, the place for the conduct of arbitration, taking into consideration the local status of the parties, such as that one of the parties cannot afford to go to the country of the applicable law, coupled with the availability of evidence, oral and documentary, at the place where the court is exercising jurisdiction.

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.

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.

8 The Annulment and Enforcement of the Award

10.1093/law/9780199679751.003.0008 ◽

2015 ◽

Author(s):

Kaufmann-Kohler Gabrielle ◽

Rigozzi Antonio

Keyword(s):

New York ◽

Supreme Court ◽

Final Section ◽

Cost Allocation ◽

Contrary to judgments, arbitral awards are final in the sense that they are not subject to appeals. This chapter examines the very limited remedy of annulment or setting aside of the award in accordance with Article 190(2) PILA, emphasizing that the annulment grounds in that provision are essentially concerned with the manner in which justice was rendered, as opposed to the content of the decision. The chapter also covers all aspects of the annulment procedure before the Swiss Supreme Court, from the admissibility of the action to cost allocation. In that context, it addresses the possibility for parties not seated in Switzerland to waive their right to seek the annulment of the award (Article 192(1) PILA). The chapter further discusses the revision of the award, and, in its final section, the recognition and enforcement of foreign arbitral awards by the Swiss courts in accordance with the New York Convention.

U.S. Supreme Court Holds that the New York Convention Does Not Displace Domestic Doctrines Permitting Nonsignatories to Enforce Arbitration Agreements

The American Journal of International Law ◽

10.1017/ajil.2020.78 ◽

2020 ◽

Vol 114 (4) ◽

pp. 757-761

Keyword(s):

New York ◽

Supreme Court ◽

Executive Branch ◽

The Supreme Court ◽

New York Convention ◽

Domestic Law

On June 1, 2020, the Supreme Court unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention) does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. The Court interpreted the text of the Convention as being silent on the issue of enforcement by nonsignatories and thus leaving this issue to domestic law. The Court noted that some postratification practice (including the recommendation of a UN commission) and the views of the executive branch were consistent with its conclusion, but it did not determine how much weight should be accorded to these sources.

GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC (U.S. Sup. Ct.)

International Legal Materials ◽

10.1017/ilm.2020.54 ◽

2020 ◽

Vol 59 (6) ◽

pp. 911-921

Author(s):

Steven Skulnik

Keyword(s):

New York ◽

Supreme Court ◽

Power Conversion ◽

International Arbitration ◽

New York Convention ◽

The U.S

On June 1, 2020, the U.S. Supreme Court decided GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC. The decision is significant for its holding that nothing in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention or the New York Convention) or the Federal Arbitration Act (the FAA) prohibits courts from deciding that non-signatories may be bound by or enforce international arbitration agreements based on contract, agency, equity, or related principles.