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.

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 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>

Transnational Public Policy in International Arbitration

2020 ◽  
pp. 119-149
Author(s):  
Stavros Brekoulakis
Keyword(s):  
Public Policy ◽  
New York ◽  
Clear Distinction ◽  
Historical Evolution ◽  
International Arbitration ◽  
Rules And Principles ◽  
Recognition And Enforcement ◽  
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.

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.

scholarly journals Recognition and Enforcement of Arbitration Awards in Kazakhstan

2018 ◽  
pp. 358-367
Keyword(s):  
Public Policy ◽  
New York ◽  
General Meeting ◽  
Civil Procedure ◽  
International Arbitration ◽  
Procedure Code ◽  
Recognition And Enforcement ◽  
The Law ◽  
The Republic ◽  
New York Convention

Arbitration, as an alternative way to resolve commercial disputes, has been used in Kazakhstan for more than twenty years. Arbitration Court is governed by Civil Procedure Code, The Law On Enactments and the Regulatory Resolution. The expansion of the list of documents in the Regulatory Resolution does not comply with the requirements of the New York Convention and therefore, the purpose of our study is to clarify it. The research institute of private law of the Caspian University together with Kazakhstan International Arbitration prepared proposals for making amendments and supplements to the Law On Arbitration and the CPC at the request of the Arbitration Chamber of Kazakhstan. Most of the proposals developed by us were approved and included in the Draft Law of the Republic of Kazakhstan On Amendments and Supplements to Certain Enactments of the Republic of Kazakhstan On Enhancing Protection of Title and Arbitration after discussion at the meetings of the General Meeting members of Arbitration Chamber of Kazakhstan. It was proposed to bringing in compliance with the New York Convention some paragraphs of the Art. 255 and the Art. 504 of CPC and a series of articles in the Law on arbitration. In this article also given answers to some questions of the arbitration court regarding corporate and marriage dispute, as well as an issue of contradiction public policy.

Arbitral Jurisdiction

2020 ◽  
pp. 69-102
Author(s):  
Alex Mills
Keyword(s):  
New York ◽  
Legal Framework ◽  
Arbitral Tribunal ◽  
Arbitral Award ◽  
National Courts ◽  
Basic Source ◽  
New York Convention

This chapter examines the concept and source of arbitral jurisdiction. In the context of arbitration, the term ‘jurisdiction’ typically refers to the ‘power’ or ‘authority’ of the arbitral tribunal to decide a dispute. A decision about whether a tribunal has jurisdiction will frequently be made by the tribunal itself, but that decision is not and cannot be a source of its jurisdiction, and cannot be a definitive determination of that jurisdiction, because the authority of that decision depends on the very question under review. A degree of deference may be given to the tribunal’s determination of these questions by national courts, but self-evidently a tribunal may not confer authority on itself. Thus, the ‘power’ of a tribunal comes more indirectly from two sources. First, the cooperation of national courts, which may readily recognize and enforce arbitral awards and may also act in support of arbitration in various other ways. Second, the potential reputational consequences of non-compliance with an arbitral award, which may lead a party to comply with it voluntarily. The legal framework for arbitration applied by most national courts is set out in the New York Convention 1958, and this remains a key basic source of the standards which are applied to determine when an arbitral tribunal is considered to have jurisdiction.

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