Enforcement Of Arbitral Awards Research Articles

Arbitration: Understanding It in Theory and Indonesian Practice

Cross-border transactions have always attracted legal risks. Cross-border legal issues are emerging as a separate area of commercial risk that needs to be more precisely identified and better managed. Many cases of injury to multinational companies which would formerly have been pursued as a diplomatic claim by the nation state of the company are now resolved by arbitration between the company and the respondent state. Arbitration is one of dispute settlement bodies to resolve some issues particular trade, business, investment, and financial issues. Those issues are shaping the range and significance of the cross-border legal issue. Those issues also become a crucial issue to be dealt with the arbitral institution. The reason why the parties of contract choose arbitration is because of the place of arbitration, neutrality, confidentiality, cost and speed, recognition and enforcement of arbitral awards, refusing of arbitral awards, a model of arbitration, and arbitration institution. Those reasons are assumed also to be enacted in Indonesian arbitration practice and in the Islamic law.

Status Quo of Enforcing Commercial Arbitral Awards in the People’s Republic of China: An Empirical Study of the Enforcement Practices in China’s Two Economically Less-Developed Regions

This article gives some insights into the practices for enforcing commercial arbitral awards in China’s two anonymized economically less-developed regions. By virtue of the empirical and qualitative data contributed by empirical research, this article depicts this theme from three aspects, namely, the general sociocultural environment for enforcement; practitioners’ perceptions; and the enforcement status of arbitral awards, highlighting the gaps between legislative perceptions and real-life practices. This article concludes that China’s current sociocultural environment is suitable for accommodating the rapid growth of commercial arbitration, which indicates that the collision between modern arbitration practice and the sociocultural environment is unlikely to constitute a cause of difficulty in the China-seated enforcement of arbitral awards. This article also notes an innate scepticism towards the country’s arbitration practice among Chinese practitioners, which could affect their perceptions towards the development prospect of commercial arbitration and the enforceability of arbitral awards, despite the pro-arbitration attitude shared by Chinese judicial organs. Meanwhile, the article observes preliminary evidence showing the impact of Chinese culture on the country’s enforcement practices. Finally, the article statistically portrays the enforcement status of arbitral awards in the concerned regions, showing the regionally differentiated enforcement rates, competence of Chinese courts and other issues involved.

Sovereign Immunity and Enforcement of Arbitral Awards; Breaking the Barrier

In international commercial arbitration, parties that contract with states and state agencies seek to arbitrate disputes, but an increasing problem is the attempt by these state parties to raise the defence of sovereign immunity to challenge the jurisdiction of the arbitral tribunal or to avoid the enforcement of an arbitral award. It is discouraging in handling disputes with these sovereign entities which serve as major concern particularly with the growing prospect of sovereign defaults leading to cross-border disputes. The article reviewed the judicial decision in Trendtex v. Bank of Nigeria which is critical to the sovereign immunity that spreads across the globe. Award being final and binding as agreed in the parties’ agreement should always be honoured. The article discovered that many states always resulted to the sovereign immunity doctrine in order to prevent the enforcement of arbitral awards. This article found that if this continues it may wreck and discourage the cooperation between the investors and the state agencies because investors prefer enforceable arbitration to litigation. The article concluded that by the practice of arbitration, it is honourable for states to allow enforcement of arbitral awards against their states or state agencies for the upliftment of global arbitration. The article recommended that states that have not ratified the New York Convention should do so and also the NYC should be amended to provide that any state party to the NYC has automatically waived the right to claim sovereign immunity when the issue of enforcement of award comes up.

Cacophony of Delocalization; Emerging Trend in the International Commercial Arbitration

Delocalization of international commercial arbitration involve freeing and making an international commercial arbitration from the constraint of the lex loci arbitri that is procedural law of the place of arbitration thereby making it to float and free of national jurisdiction, irrespective of where the arbitration takes place. The delocalization theory is an attractive one from the perspective of both the arbitrators and the parties to arbitration. Mostly the place of arbitration is selected for convenience reasons and neutrality, impartiality, parties are not always willing to submit the arbitration to the procedural norms of that forum especially the rules that permit the intervention of the local court system. The failure to comply with the local procedural law could result in the final award being set aside by a local court which may jeopardize the chances of enforcement of arbitral awards elsewhere. This article examines the concept of delocalization and its practicability in International commercial arbitration particularly how it tends to liberalize National Arbitration law. The article discusses the jurisdictional trend in United Kingdom, India and France and how it has been able to minimize the reliance on the procedural laws of those jurisdictions. The article finds that delocalization of international commercial arbitration is yet to spread globally to many jurisdictions. It discovers that delocalization affected many arbitral awards which were subjected to local procedural laws and later led to annulment of the awards. The article concludes that delocalization of the arbitral process and the final award would mean that parties remain unaffected by unforeseen and undesired local procedural laws. To this effect, the parties will not face the risk that noncompliance with such laws would render their awards unenforceable. Finally, it will take the international commercial arbitration to a greater height from apron strings of national Laws.

International Commercial Arbitration in Australia: Judicial Control over Arbitral Awards

Geographical remoteness has not prevented Australia from pursuing its ambition to become a major hub for international commercial arbitration (ICA). While regional competitors in the Asia-Pacific region such as Singapore and Hong Kong have already achieved great success in the arbitration world, Australia’s ‘Tyranny of Distance’ requires extra efforts to attract ICA cases. Recent marketing from the Australian government emphasises (1) a harmonised legal framework for ICA in line with international standards; (2) sophisticated arbitration institutions; and (3) some of the world’s leading arbitration practitioners. While these factors do reveal strong potential to attract ICA cases, to ensure that this goes beyond a mere possibility, the Australian government and judiciary are making quite concerted broader efforts. The former has recently become more vigorous in marketing Australia-based ICA in and out of the country. The latter has generally tried to issue pro-arbitration judgments particularly over the last ten years, and in public speeches or publications leading judges have been actively summarising and promoting Australian developments both domestically and world-wide. However the court system has structural problems, due to the shared ICA jurisdiction of State and Territory Courts alongside the Federal Courts, compared to the unitary system in Hong Kong and Singapore. There are also persistent delays in court-related ICA matters under the IAA, even in the Federal Court of Australia. Nonetheless, perfection is never attainable. The rest of this paper argues that Australia has significantly improved legal environment for ICA in line with international standards, focusing on the main topics identified for a wider cross-jurisdictional research project: (1) arbitrator bias; (2) conflicts of interests; (3) procedural irregularities and arbitrator’s misconduct during proceedings; (4) arbitrability (objective arbitrability) (5) judicial interpretation of arbitration clauses (subjective arbitrability); and (6) enforceability of arbitral awards.

Arbitration Mechanisms in Settlement of Maritime Disputes in Nigeria: Challenges and Prospects

The maritime industry is globally recognized as one of the most economically viable industry capable of facilitating sustainable development thus, amicable settlement of maritime disputes is paramount to guarantee unhindered trade and commerce environment. Arbitration is an age-long Alternative Dispute Resolution (ADR) mechanism applied in the amicable settlement of disputes in a relaxed and semi-formal environment. It is particularly suitable for resolving commercial disputes because of the enforceability of arbitral awards as depicted by the existing international arbitral jurisprudence. Various law of the Sea tribunals such as the International Tribunal for the Law of the Sea (ITLOS) or an ad hoc panels expressly recognizes arbitration as one of the models for settlement of disputes as a suitable alternative to litigation. In Africa, as nations recover from the era of ocean blindness, maritime practice and administration is prioritized to aid economic growth. The objective of this study is to evaluate application of arbitration as an ADR mechanism for settling maritime disputes in Nigeria’s maritime practices with the aim of identifying the challenges confronting Nigerian’s involvement in maritime business, particularly as it relates to application of Arbitration to dispute settlement. It was found that there are certain loopholes in relevant laws which work hardship against local businesses in cases of maritime disputes settlement. The study suggests viable solutions based on lessons from other climes to create level playing field for parties who opt for arbitration to settle maritime related disputes.

Securing Enforcement of Arbitral Awards - The Problem(s) with Non-Parties

Taking as its ‘base case’ an English-seated international commercial arbitration which has proceeded to the grant of a final award, this article provides a broad overview of how an award creditor, who has successfully obtained a recognition and enforcement order under section 66 of the Arbitration Act 1996 (the “1996 Act”), can obtain court orders against (foreign) non-parties in support of enforcement, perhaps to obtain information or to conserve assets. It does so from two (slightly overlapping) perspectives. First, that of English domestic law, i.e. what powers are available against (foreign) non-parties to the arbitration after an award has been granted? (This is sometimes referred to, sometimes confusingly, as the English court’s ‘jurisdiction’.) Secondly, that of private international law, i.e. when does the English court have (international) jurisdiction over foreign non-parties?

Smart Contracts & International Arbitration

The Increasing Growth of Conclusion of Smart Contracts on Ethereum raises numerous intriguing Legal Questions in respect of such Smart Contracts. The latter could be categorized into two Main Categories: (I) Weak Smart Contracts & (II) Strong Smart Contracts. Weak Smart Contracts are Smart Contracts which are Revocable or Relatively Irrevocable. On the other hand, Strong Smart Contracts are Smart Contracts which are Absolutely Irrevocable. Smart Contracts on Blockchains (i.e. Ethereum) usually take the form of Strong Smart Contracts. In this regard, this paper will focus solely on Strong Smart Contracts. First, we need to figure out whether there are Absolutely Irrevocable Agreements under Contract Law. If yes, then we need to explore how the National Courts and the Arbitral Tribunals have dealt with such Contracts in Practice. Second, most of the disputes that would arise out of Strong Smart Contracts would be dealing with cross-border transactions, and therefore arbitration would be normally the optimal dispute resolution mechanism for these disputes. Therefore, we need to determine the Legal Issues associated with the Arbitration of Disputes arising out of or in relation to Strong Smart Contracts. Precisely, we need to define the Safeguards that must be developed to ensure the Recognition and Enforcement of Arbitral Awards for these Disputes on an International Level under the New York Convention. Third, Arbitration itself could take the form of a Strong Smart Contract. Thus, we have to consider whether Strong Smart Arbitration Contracts are legally viable in the first place. Specifically, whether the Absolute Irrevocability of such Strong Smart Arbitration Contracts would constitute an Obstacle to the Recognition & Enforcement of such Agreements before the National Courts. Finally, we could lend our help to the Tech Community through 3 main efforts: (1) Survey the Current Initiatives proposed in the White Papers prepared by the Tech Community; (2) Assess how far the Tech Community is taking into consideration all the Potential Legal Dilemmas associated with Smart Contracts' Dispute Resolution & (3) Prescribe Possible Legal Solutions that would also make sense from in the eyes of the Tech Community.

الجوانب القانونية والفلسفية في تنفيذ حكم التحكيم الأجنبي الباطل = Legal and Philosophical Aspects of the Enforcement of Invalid Foreign Arbitral Awards

تنفيذ حكم التحكيم | بطلان حكم التحكيم | حكم التحكيم | الجوانب الفلسفية والقانونية | رقابة حكم التحكيم | الاعتراف بحكم التحكيم الباطل | قضاء دولة مقر التحكيم | قضية نورسولور | تنفيذ حكم التحكيم الباطل | قضاء دولة تنفيذ حكم التحكيم | Enforcement of Arbitral Award | Invalidity of Arbitral Award | Legal and Philosophical Aspects

Recognition and Enforcement of Arbitration Awards in Kazakhstan

Arbitration, as an alternative way to resolve commercial disputes, has been used in Kazakhstan for more than twenty years. Arbitration Court is governed by Civil Procedure Code, The Law On Enactments and the Regulatory Resolution. The expansion of the list of documents in the Regulatory Resolution does not comply with the requirements of the New York Convention and therefore, the purpose of our study is to clarify it. The research institute of private law of the Caspian University together with Kazakhstan International Arbitration prepared proposals for making amendments and supplements to the Law On Arbitration and the CPC at the request of the Arbitration Chamber of Kazakhstan. Most of the proposals developed by us were approved and included in the Draft Law of the Republic of Kazakhstan On Amendments and Supplements to Certain Enactments of the Republic of Kazakhstan On Enhancing Protection of Title and Arbitration after discussion at the meetings of the General Meeting members of Arbitration Chamber of Kazakhstan. It was proposed to bringing in compliance with the New York Convention some paragraphs of the Art. 255 and the Art. 504 of CPC and a series of articles in the Law on arbitration. In this article also given answers to some questions of the arbitration court regarding corporate and marriage dispute, as well as an issue of contradiction public policy.

On the Execution of Investment Arbitral Awards in Recent Case Law

AbstractThis article examines the peculiarities and points of criticism of the execution of investment arbitral awards. It specifically addresses the potential obstacles to the execution of investment arbitral awards based on recent case law. First, the article focuses on the differences existing between the phases of enforcement and execution of investment arbitral awards, with special regard to the procedural frameworks of investment arbitration that are most commonly utilized. Secondly, the issue of the interrelation between these two phases is addressed in the light of national case law, given that enforcement of an arbitral award has a preliminary function for the purpose of its actual execution, in addition to representing an obstacle to the latter. Before focusing on the legal defenses to forcible execution that can undermine the entire efficacy of an arbitral award, the article explores those defenses raised to avoid an award’s enforcement.

RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN UKRAINE: COURT PRACTICE TENDENCIES

The article is devoted to the analysis of the court practice of 2013 – first half of 2018 in cases on recognition and enforcement of foreign arbitral awards and its influence on the reformation of the procedural legislation of Ukraine in this field.The cases on recognition and enforcement of arbitral awards have a significant meaning both for the international image and economy of the state. Despite the courts follow a pro-arbitration approach; the court practice in Ukraine for the last 5 years has formed a number of requirements that complicated the procedure of recognition and enforcement of arbitral awards that became a reason for renewing of it.Thus, 15.12.2017 in Ukraine the new procedure came into force that solved some collisions, in particular: 1) the enforcement order shall be issued on the ground of the claim on recognition and enforcement of arbitral award; 2) the amount of recovery under the arbitral award shall be determined including interests and penalty up to the moment of execution; 3) the recovery in the foreign currency shall be converted into the UAH, if claimant is asking for that.Although, a relatively short period of conducting proceedings in cases on recognition and enforcement of arbitral awards under the renew procedure does not allow to estimate its efficiency, the elimination of gaps in law enforcement practice promising the procedure to be prospective.

The New York Convention: An Autopsy of Its Structure and Modus Operandi

The purpose of the New York Convention is to facilitate the enforcement of arbitral awards. It introduces different regimes, i.e. the regime provided by the New York Convention itself, and the two regimes referred to by Article VII.1 of the New York Convention. Little attention has so far been given to those different regimes and, especially, to the possibility of an interaction between those regimes and whether or not such should be authorized. The aim of this contribution is to highlight that the New York Convention is structured and worded precisely to avoid interferences between those different regimes which each operate independently, even if complemented by provisions of domestic law. It is the enforcing party’s privilege to choose between the different regimes. However, in order to respect the rights of defence of the party against whom the award is enforced, this choice should be express, in toto, final and binding for the judge. Failure to expressly opt for a regime leads to the application of the New York Convention regime. Such an approach offers not only the advantage of clarity and simplicity as far as the applicable rules are concerned, but also enhances the equality between foreign and domestic awards, and puts an end to the nineteenth century era of bilateral treaties.

Analysis of Public Policy and Enforcement of Domestic and Foreign Arbitral Awards in India

The Public Policy doctrine is an unruly horse in India, when it comes to the enforcement of domestic and foreign awards. The main objective behind choosing this topic was to shed light on how public policy has been used by the losing party, in delaying the enforcement of arbitral award, which hampers the whole objective of arbitration. Though one may argue that the 2015 Amendment Act has settled all the controversies regarding public policy and enforcement of arbitral award, the author is of the opinion that there are still some areas that are left unexplored by the Arbitration Amendment Act. The paper primarily focuses on the changing trend of public policy with respect to arbitration in India. In addition, the author has compared the doctrine of public policy in India with that of countries such as France, Russia, United Kingdom and U.SA. The most important contribution of this research paper is that it analyses the validity of patent illegality in domestic arbitration.

Application of the New York Convention to the Enforcement of Arbitration Agreements

The 1958 New York Convention is indeed one of the most important instruments in international arbitration, contemplating not only the enforcement of arbitral awards, but also the enforcement of arbitration agreements under Article II (3). One of the perceived shortcomings of the Convention is the fact that it does not define which types of arbitration agreements can be enforced under it. The article takes into account some national legislations and judicial interpretations on the matter and contemplates the ways of interpreting the Convention so as to fill this gap. In this regard, Article II (3) is interpreted in conformity with Article I, which defines the Convention's scope of application based on the seat of arbitration. Moreover, this article discusses briefly a recent attempt to address the aforementioned shortcoming through the introduction of a hypothetical draft convention which would modernize the New York Convention.

Public Policy Under Article V (2) (B) of the New York Convention: Is There a Transnational Standard?

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards is one of the key instruments in international arbitration. It applies to the recognition and enforcement of foreign arbitral awards in the territory of a State other than the one in which recognition and enforcement is sought. The Convention unified methods of deciding whether to recognize and enforce a foreign arbitral award. Article V (1) of the Convention contains the grounds on which a party can resist recognition and enforcement and Article V (2) contains grounds on which the competent authority in a State can sua sponte refuse recognition and enforcement. This paper focuses on Article (V) (2) (b) of the Convention, under which recognition and enforcement of an arbitral award may be refused if the competent authority in the country where recognition and enforcement is sought finds that “the recognition or enforcement of the award would be contrary to the public policy of that country”. Article V is addressed to the States in which recognition and enforcement is sought and the language in Article V (2) (b) indicates an intention to provide ultimate control to that State to decide whether it will admit a foreign arbitral award into its legal order and use its executive powers to give effect to the award. However, over the years, there has been a debate about the notion of public policy in Article V (2) (b). It has been suggested that States must defer to a ‘transnational’ or ‘supranational’ notion of public policy under Article V (2) (b). In this paper, I examine whether State parties to the Convention have an obligation to defer to a transnational standard of public policy. I also address the question of whether States should defer to a transnational standard in the absence of an obligation to do so under the Convention and in answering this question, I contest the existence and possibility of a wholly transnational conception of public policy.

Enforcing annulled arbitral awards

U članku se analiziraju procesnopravni aspekti priznanja i izvršenja arbitražnih odluka koje su poništene u državi gdje su donesene. Rad se koncentrira na relativno nedavno odlučene slučajeve u SAD i Nizozemskoj, u kojima su sudovi primijenili ponešto drugačiji pristup od onoga koji je primijenila sudska praksa u Francuskoj prije više godina. Pravno rezoniranje francuske sudske prakse kod priznanja poništenih arbitražnih odluka temelji se na primjeni domaćega prava o priznanju i izvršenju arbitražnih odluka. Naime, domaće pravo Francuske povoljnije je od režima priznanja prema Newyorškoj konvenciji o priznanju i izvršenju stranih arbitražnih odluka iz 1958. Sudovi u SAD i Nizozemskoj nedavno su primijenili drugačiji pristup prilikom priznanja i izvršenja poništenih odluka. Sudovi u ovim državama preispitivali su sudske presude kojima su poništene arbitražne odluke te odlučili kako se u određenim okolnostima može otkloniti učinkovitost takvih presuda i priznati odnosno izvršiti poništena arbitražna odluka unatoč odluke o poništenju koju je donio nadležni sud u državi sjedišta arbitraže. Iako pristupi sudova u SAD i Nizozemskoj imaju nekih sličnosti, ipak se pravno rezoniranje sudova u ove dvije jurisdikcije bitno razlikuje. U svojoj odluci iz studenoga 2017. Vrhovni sud Nizozemske (pre)naglašava iznimni karakter okolnosti koje bi opravdale priznanje i izvršenje poništene arbitražne odluke, tako da bi se na prvi pogled mogao steći utisak kako je ponešto ublažena razlika ovoga pristupa sa pravnim rezoniranjem sudova u SAD. Međutim, detaljna analiza ova dva pristupa ukazuje da suštinske razlike ostaju. U članku se iznosi kritika općenito priznanja ili ovrhe poništenih arbitražnih odluka. Osobito se kritizira različitost pravnih pristupa na kojima se u pojedinim državama temelji priznaje poništenih arbitražnih odluka kada je priznanje jednostrano, tj., ne temelji se na nekoj međunarodnoj konvenciji kao što je Europska (Ženevska) konvencija o međunarodnoj trgovačkoj arbitraži iz 1962. U članku se nadalje sugerira postavljanje međunarodno prihvaćenih standarda u interesu pravne sigurnosti i predvidivosti, ukoliko je među arbitražnim stručnjacima prevladavajuće mišljene o načelnoj prihvatljivosti priznanja i izvršenja poništenih arbitražnih odluka.

A Study of the Cross-Border Enforcement of Arbitral Awards Based on Penalty Clauses in English Law: Is Public Policy an Obstacle?

This dissertation aims to analyze the penalty rule in English law to make it the enforceability of arbitral awards based on penalty clauses available in England. It starts with a detailed analysis of the penalty rule and the decision of the Supreme Court on Makdessi, which decided on the character and new application of the penalty rule. This case will be discussed in the first section under the existing rule. In the second section, we will examine the relationship between public policy and arbitration in the scope of the New York Convention to show how they are relevant to each other when it comes to the enforcement of arbitral awards based on contractual penalties. Particular importance has been given to the recent Pencil Hill case in this context. In the last section, the principal questions will be addressed concerning why the penalty rule should be abolished and the new rule should be enforced.

Litigation or Arbitration: a Competition? – Cross-border Commercial Dispute Adjudication in a Globalizing Worldunder the Reign of EU Regulation 1215/2012

Cross-border civil and commercial conflicts can be adjudicated by courts of sovereign states or in a private setting, namely by arbitration panels. Against the background of a globalizing world and an increase in popularity of arbitration as a means of dispute resolution ‘Europe’ (the European Union) faces the challenge to demarcate borderlines as litigation in court and arbitration tend to get in conflict more often. Conflicts may relate to the jurisdiction of courts versus the competence of arbitration panels (inter alia resulting in anti-suit court orders or even arbitral awards), as well as to the recognition of foreign court orders being capable of frustrating arbitral awards or vice versa. This contribution attempts to analyze how these clashes ought to be resolved under the reign of ‘new’ cross-border civil and procedural law in Europe (EU Regulation 1215/2012, or ‘Recast’) on Jurisdiction and Recognition of Foreign Judgments in Civil and Commercial Matters’ (in force January 15, 2015). Two preliminary rulings of the Court of Justice of the European Union (CJEU) though still interpreting EU Regulation 44/2001 (i.e. the legislative predecessor of the Recast), remain important to the law regime of the Recast. The final conclusion is that, even though the Recast respects the international law framework of notably the 1958 New York Convention on the recognition and enforcement of arbitral awards, a considerable amount of legal uncertainty remains, as Recital 12 of the Recast Preamble contains ‘open-ended’ parameters leaving discretionary room for national law of each individual EU Member State and calling for further interpretative rulings of the CJEU.

International Arbitration: The Secretary of State for the Home Department v Raytheon Systems Ltd, and enforcement of arbitration awards in England and Wales

International Arbitration: The Secretary of State for the Home Department v Raytheon Systems Ltd, and enforcement of arbitration awards in England and Wales