Uses and Abuses of Appeal from Awards

Abstract

international arbitration has become the ordinary way of resolving international commercial disputes. One of the reasons for this success has been the relative ease with which awards rendered in a foreign jurisdiction can be enforced at the debtor's domicile or in any jurisdiction where the debtor has assets. That ease has been due, in large part, to the New York Convention of 1958, a treaty which provides that the courts of each signatory country will enforce arbitration awards from other countries. The Convention provides relatively few grounds for courts to deny recognition and enforcement of foreign awards. The same spirit which gave rise to the Convention has also led many jurisdictions to look favourably upon enforcing foreign awards even where the Convention does not apply. The internal laws of some countries have provided for even more liberal enforcement of foreign awards than envisioned in the New York Convention. The rising number of international commercial arbitration awards – and wide dissemination of information about these awards in a number of excellent publications – has produced an increasingly cohesive practice among nations in the recognition and enforcement of awards. In other words, recognition and enforcement of foreign awards is a success story; and the present system can be expected to continue its process toward a uniform international system for recognition and enforcement of awards. On the other hand, however, no international agreements control how national courts supervise arbitrations taking place on their own territory. Each State is free to apply whatever measures of judicial control it wishes to international arbitration taking place within its own jurisdiction. The most dramatic judicial intervention in the arbitral process is appeal or judicial review at the seat of arbitration. A successful appeal cuts the awards off ‘at its roots’ and leaves it unenforceable anywhere because the …