Abstract
This article explores the main features of exceptions to enforcement under Article V of the NYC, including its exhaustive and discretionary natures. It then specifically provides an overview of narrow judicial control over the grounds for refusing enforcement under the Article V of the NYC. It points out the fundamental principles of the provision in determining the enforceability of international arbitral awards. Then this article will occasionally refer to international arbitral cases in some jurisdictions, such as the United States, France and Switzerland. It is noted that courts and legislatures in those jurisdictions have moved towards pro-enforcement policy to questions of recognition and enforcement arising under Article V of the NYC. Therefore, this approach is a good signal and a promising development to promote the finality and enforeability of foreign arbitral awards in international commercial arbitration. This approach can also be a good lesson for the Indonesian judiciary system in relation to the enforcement and recognition of international arbitral awards in the future.
Highlights
The exceptions to the enforcement under Article V of the New York Convention 1958 regarding Recognition and Enforcement of Foreign Arbitral Awards were potentially a source of serious concern
It is noted that courts and legislatures in those jurisdictions have moved towards pro-enforcement policy to questions of recognition and enforcement arising under Article V of the NYC
This article finds that the most fundamental basis of the NYC refers to the proenforcement policy. This means the prevailing view is that the scope of judicial review of foreign arbitral awards is confined to an extremely limited judicial review in order to minimize parochialism and chauvinism
Summary
The exceptions to the enforcement under Article V of the New York Convention 1958 regarding Recognition and Enforcement of Foreign Arbitral Awards (hereinafter: the NYC) were potentially a source of serious concern. Article IV of the Convention promotes restrictive procedure of enforcement by discouraging erroneous conditions of enforcement and establishing prima facie evidence of the enforceability of the awards. This paper examines the judicial approach regarding residual discretion to enforce foreign awards notwithstanding the existence of the public policy exception. It analyzes Indonesian courts and other jurisdiction approaches in enforcing foreign awards on the grounds of public policy. Prior to addressing these issues, it is convenient to examine the preliminary issue of whether Article V of the Convention indicates that the pro-enforcement policy favours the presumptive enforceability of foreign awards
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