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?

<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>

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

<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>

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

<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>

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

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.

I now pronounce you ‘null and void’: manner of determination and the applicable law under the New York Convention

The phrase ‘null and void, inoperative or incapable of being performed’ contained in Article II(3) of the New York Convention has attracted relatively little attention in the international arbitration community. It nonetheless retains the potential to have a significant impact on arbitration agreements. This article considers the meaning of ‘null and void’ and highlights the current varied understandings and applications of this term, before re-iterating support for an application of an internationally neutral understanding of the term. What this article seeks to ultimately achieve is to provoke further consideration of the terms ‘null and void’, with a view to ensuring greater clarity and uniformity in its understanding and application in the long term.

Enforcement of Arbitral Awards Against States - a Risk to Peaceful Relations?

The aim of this paper is to present and critically appraise the norms of international law relating to the enforcement of arbitral awards against States. It canvasses the main international instruments governing the recognition and enforcement of foreign arbitral awards (notably the New York Convention). It then elucidates the doctrine of sovereign immunity in customary international law – and an attempt to codify it – as a hurdle to enforcement of such awards in domestic courts. The analysis investigates whether the doctrine acts as a safeguard against jeopardizing peaceful relations between States while promoting international commerce, foreign direct investment and trade relations between State and foreign non-State actors. Diplomatic protection is examined as an alternative to international and national adjudication

Exploring the concept of arbitral awards under the New York Convention

Despite its importance, the arbitral award was left undefined by the New York Convention and most other major international arbitration laws. This has inevitably led to varying opinions regarding its nature and confusion regarding the thresholds that differentiate arbitral awards from other tribunal decisions. Partly in response to the above, there has been discussion to initiate the revising process of the Convention. Responses have been divided. In this paper, the author finds that revision will not bring the desired results, while the Convention itself has equipped international arbitration practice with tools to overcome obscure legal concepts such as the arbitral award.