Rethinking the New York Convention: A Law and Economics Approach, by Shen Wei

Abstract

Rethinking the New York Convention: A Law and Economics Approach , by Shen Wei, Intersentia, 2013 (380 pp). Professor Shen Wei is a leading commentator on China’s banking and financial system, and an expert on international commercial arbitration. His book, Rethinking the New York Convention: A Law and Economics A pproach falls into the latter category. It is concerned with international arbitration, and adopts an impressively global approach, and though it is not specifically written from the perspective of China, the analysis is equally applicable. In China, as is well known, arbitration plays a central role in the resolution of commercial, and particularly international commercial, disputes. As its title makes clear, the book focuses on a particular aspect of arbitration law, namely the New York Convention. The Convention is well suited to a determinedly internationalist analysis, since by definition it applies to foreign arbitral awards, foreign, that is, as regards the state where recognition and enforcement is sought. Professor Shen sets out to critique the Convention by reference to four discrete topics, which anchor the discussion. These are: (i) the evolution of the treaty; (ii) competition among various jurisdictions in the context of enforcing awards that he puts into the particular context of awards which have been annulled; (iii) the future of the lex mercatoria as the governing law in the arbitration of international disputes; and (iv) the perennial but crucial issue surrounding the ‘public policy’ exception in Article V(2)(b) of the Convention. As the title of the book makes clear, an economic analysis plays an important role in Professor Shen’s discussion. In short, he is concerned with how things work. By way of analytical tools, he uses the so-called Darwinian legal theory and ‘game theory’. The former has to do with the idea that arbitration, and specifically the Convention, have been formed by evolutionary forces which continue to operate. The latter has to do with the idea … wjlb{at}billblair.org.uk