Commercial Arbitration Before International Courts and Tribunals - Reviewing Abusive Conduct of Domestic Courts: 2011 American University Washington College of Law Annual Lecture on International Commercial Arbitration

Abstract

On observing the international dispute settlement scene in recent years, one is intrigued by the fact that international courts and tribunals have increasingly been asked to rule on national court decisions relating to commercial arbitrations. These national decisions mainly deal with the enforcement of arbitration agreements or the annulment or enforcement of arbitral awards. They apply the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards1 and/or national arbitration laws. The international courts and tribunals seized of claims involving these national court decisions are primarily investor-state arbitral tribunals2 and human rights courts,3 and, in one less recent instance, the Permanent Court of International Justice (PCIJ).4 The phenomenon is intriguing because it challenges traditional conceptions in at least two respects. First, it challenges the understanding of the overall architecture of international commercial arbitration. The term ‘architecture’ is borrowed from W. Michael Reisman, who has written extensively on the topic, including an article on some of the issues addressed in this contribution.5 In fact, the traditional and most widely accepted conception of the architecture of international commercial arbitration builds on the finality of arbitral awards, with courts at the seat of the arbitration (sometimes called courts of primary jurisdiction) being competent to annul awards and courts at the place of enforcement (courts of secondary jurisdiction) being competent to rule on the enforcement or non-enforcement of awards in that particular forum.6 This structure rests, above all, on the New York Convention as well as on national arbitration legislation. This traditional architecture is a closed one in the sense that there is no recourse against a final decision by the courts at the seat of the arbitration on the annulment of an award. Similarly, there is no recourse against the final decision of the courts …