Enforcement Of Awards Research Articles

Enhancing anti-corruption via investment arbitration: from red flags to due diligence

Abstract As the number of corruption allegations in investor–State disputes (ISDS) grows, tribunals must balance their duty to resolve disputes and to render enforceable awards. Given the difficulty of proving corruption, arbitrators increasingly consider red flags to detect it, but still struggle with drawing consequences for corrupt conduct that would serve as an effective deterrent. Our empirical analysis of 92 ISDS cases that involved allegations of corruption reveals that over a quarter of arbitral decisions already utilize a red flags approach, which helps tribunals assess corruption risks and provide circumstantial evidence. This article proposes a novel list of red flags based on the empirical analysis, domestic and international law sources as well as soft law instruments. It then frames a corresponding anti-corruption due diligence mechanism, which can minimize the risks of corruption occurring, bring more predictability to ISDS and disincentivize frivolous allegations of corruption.

Singapore’s stance on enforcement of foreign awards set aside at the seat: some recent developments

Singapore’s stance on enforcement of foreign awards set aside at the seat: some recent developments

Актуальные тенденции в законодательстве Китая о международном арбитраже

China did not adopt the UNCITRAL Model law in either version and its arbitration legislation often does not reflect the world-recognised practices of international arbitration. However, during the last few years, China has been softening its approach towards both international commercial and investment arbitration. The recent court decisions, adoption of the new Civil Procedure Law and proposal of the Draft Amended Arbitration Law signify gradual recognition of the concept of ‘seat of arbitration’ instead of relying on the domicile of the arbitration institution. Furthermore, Chinese courts have acknowledged the capacity of foreign arbitration institutions to administer disputes within mainland China — a significant shift from past practices where only Chinese arbitration commissions could administer arbitration proceedings in China under the Arbitration Law. This change is also reflected in the Draft Amended Arbitration Law. Another crucial legislative change is adoption of the Foreign State Immunity Law, which came into effect in January 2024. By enacting this law, China has shifted from absolute to restrictive immunity in disputes between a person or entity and a state. Thereby China allowed claims against foreign states arising out of commercial activities or international investment treaties to be considered in Chinese courts. Nevertheless, challenges remain in regards of recognition and enforcement of investment arbitral awards or conducting of investment arbitration in China. First, China’s reservation under the New York Convention 1958 limits recognition and enforcement of foreign awards to ‘commercial’ disputes, excluding investor-state disputes. Besides, it is discussed that China has not taken proper steps to recognise the ICSID awards as national ones for purposes of enforcement, even though it ratified the ICISD Convention. Furthermore, formally under the current Arbitration Law the investment arbitration is not possible. Finally, considering the latest legislative amendments, recent court practice and updated arbitration rules of Chinese arbitration institutions, it can be concluded that China has taken the pro-arbitration approach.

Strengthening ADR System in Indonesia: Learning from ADR Practices in Hungary

Integrating Alternative Dispute Resolution (ADR) into legal systems is essential for improving access to justice, decreasing litigation expenses, and promoting enforced outcomes. This article examines the ADR practices in Hungary, a country that has successfully integrated ADR into its legal system, to gain significant insights for Indonesia, as both countries share the same sociocultural practices for communal dispute resolution. This normative legal research examines Hungary's extensive legal framework, the roles of institutional support structures, and the enforcement of ADR awards. The study employs comparative analysis that systematically evaluates pertinent legal documents, institutional reports, and scholarly literature from Hungary and Indonesia. The study found fundamental factors that contribute to the effectiveness of alternative dispute resolution (ADR) in Hungary including the existence of a clearly established legislative framework, sufficient institutional infrastructure, and effective regulation to enforce ADR decisions. Indonesia can adopt these techniques to improve its Alternative Dispute Resolution (ADR) system, resulting in more streamlined, cost-efficient, and fair processes for resolving disputes and to establish a more unified and efficient ADR system.

Chronicle 2023 on European Investment Law and Arbitration Developments

In 2023, major developments took place in the field of investment treaty arbitration. In this Chronicle I have selected a few major developments, which highlight the impact of EU law on international investment law and arbitration practice. The conclusion is that further significant developments can be expected during 2024, which will be covered by this Review. ECT, UNCITRAL Working, Group III, enforcement of awards, CJEU, domestic courts of EU Member States

Article: When human rights and investment protection intertwined: the role of the European Court of Human Rights in the enforcement of intra-EU BITs within the EU

Since the judgment of the Court of Justice of the European Union (CJEU) in Achmea, a veil of uncertainty has surrounded the destiny of intra-EU investment agreements and their awards thereto. This paper aims to contribute to the debate about the consequences of Achmea focusing on the non-enforcement of intra-EU awards within the EU. Specifically, it examines whether the European Court of Human Rights (ECtHR) may play a role in case of non-enforcement of those awards. It essentially argues that, in some circumstances, the refusal to enforce intra-EU arbitral awards may be considered as contrary to the European Convention on Human Rights (ECHR) by the Court, particularly Article 1 Protocol No. 1 (right to property) and Article 6 (right to a fair trial). In this regard, the central argument of this paper is that a refusal to enforce an award based on the Achmea objection can raise concrete issues of proportionality, especially if one considers the enforcement of ICSID awards. Specifically, the lack of an effective mechanism of effective redress for investors in EU law may lead to a breach of both the right to property and the right to a fair trial that cannot be justified either under the ECHR and the famous Bosphorus presumption.

The Role of Corporate Governance and Arbitration in the Indian Banking Sector: Ensuring Stability and Fairness

The Indian banking sector plays a pivotal role in the nation's economic growth and development. Its stability and efficiency directly impact the well-being of individuals and businesses. This research paper delves into the critical roles of corporate governance and arbitration in maintaining a robust and transparent banking system in India. The paper explores the fundamental principles of corporate governance, including transparency, accountability, fairness, and risk management. It analyzes how these principles contribute to ethical practices, sound financial decision-making, and protecting the interests of all stakeholders within the banking system - depositors, shareholders, borrowers, and the public. Furthermore, the paper examines the role of arbitration in resolving disputes within the banking sector. It evaluates the benefits of arbitration, such as its speed, confidentiality, and flexibility compared to traditional court litigation. The paper also discusses the challenges associated with arbitration in the Indian context, including potential bias and the enforceability of awards. Through a critical analysis of relevant regulations, case studies, and academic literature, the paper provides a comprehensive understanding of how corporate governance and arbitration contribute to a sound and fair banking environment in India.

Awarding costs where no arbitral jurisdiction on the merits: the making and enforcement of negative cost awards

Abstract Arbitral tribunals routinely award costs when they lack jurisdiction on the merits of a dispute. However, most of the identified awards—labelled here as ‘negative cost awards’—fail to adequately explain the source of the tribunals’ authority to award costs, either by omitting the reasoning altogether or by merely relying on the arbitration rules. If the arbitration agreement is found to be invalid or non-existent, it cannot empower a tribunal to award costs, and the arbitration rules ordinarily should not apply if the parties never agreed to them in a valid arbitration agreement. This notwithstanding, tribunals usually have a valid basis to award costs. This authority can be found in the arbitration agreement on the issue of costs, the competence–competence principle or, one way or another, national arbitration laws. Negative cost awards generally should be enforceable both under the New York Convention and the ICSID Convention, but the lack of an express finding of the arbitration agreement or another source of the tribunals’ authority to award costs may jeopardize the enforceability of such awards. Tribunals can avoid this problem by expressly explaining the basis of their authority to adjudicate costs in their awards.

Arbitration System in Commercial Disputes in Pakistan and Enforcement of Foreign Awards

Arbitration, as a means of resolving commercial disputes, plays a pivotal role in Pakistan's legal landscape. This article provides an in-depth exploration of Pakistan's arbitration system concerning commercial disputes and the mechanism for the enforcement of foreign awards within the country. The introduction presents an overview of arbitration as a preferred method for resolving commercial conflicts and emphasizes its significance in Pakistan's legal framework. It outlines the specific focus of the article on Pakistan's arbitration system and the crucial aspect of enforcing foreign awards within the country's jurisdiction. The article delves into Pakistan's Arbitration Act of 1940 and subsequent amendments, elucidating the core provisions governing arbitration proceedings. It examines the statutory mechanisms guiding the recognition and enforcement of arbitral awards, emphasizing the legal foundation for arbitration in Pakistan. Detailing the arbitration process in commercial disputes, the article delineates the procedural aspects, practices, and challenges encountered within Pakistan's arbitration system. It provides insights into the advantages of arbitration over litigation and assesses its efficacy in addressing commercial disputes. Focusing on the enforcement of foreign arbitral awards, the article expounds upon Pakistan's legal framework for recognizing and enforcing awards rendered in foreign jurisdictions. It discusses the procedural intricacies involved in seeking enforcement within Pakistan's courts. Highlighting the challenges impeding the enforcement of foreign awards, the article addresses issues such as grounds for refusal and judicial interpretation. It proposes potential reforms and solutions aimed at enhancing the enforcement mechanism, aligning it with international standards. The article summarizes Pakistan's arbitration system in commercial disputes and the enforcement process for foreign awards. It underscores the implications of an efficient arbitration regime and offers suggestions for future reforms and research directions to fortify Pakistan's arbitration landscape.

Challenges of Legal Guarantees for the Enforcement of Arbitral Awards in International Commercial Cases

Background: The historical determinants of the appearance of international arbitration correspond to the general tendency of the complication of legal relations of highly developed civilisations, where business processes are its drivers. It is expected that a complex transnational business layered on different levels of civilisation is characterised by an increase in the probability of misunderstandings regarding the proper fulfilment of obligations, the resolution of which is referred to as international arbitration, which, by nature, is more effective than national courts. In this regard, within legal doctrine and among legal practitioners, there is an ongoing discourse on strategies to mitigate risks associated with the execution of international arbitration decisions and related issues. Methods: The research employed a methodological toolkit encompassing formal and dialectical logic, a synergistic methodological approach. The primary method within this framework was the synergistic analysis of the transformation of formal-legal sources and the corresponding application practices. Additional methods included historical-legal, comparative-legal, formal-dogmatic methods and contextual analysis. Results and Conclusions: Formal-legal guarantees for the execution of international arbitration decisions represent a system of requirements governing the procedural and actual actions of state- authorised persons (bodies) that ultimately lead to such execution. The basis of such guarantees is the adequacy of the subject to which the method is applied. Firstly, the arbitrators must make the decision. Secondly, this concerns a property (commercial) dispute. Thirdly and fourthly, enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought and arising out of differences between persons, whether physical or legal. These signs follow from the corresponding specific acts of private international law. The enforceability of an arbitral award depends on the timely and appropriate actions of the parties to the contract. Even during the negotiation of a foreign economic agreement, the result of an audit of the business partner’s reliability in terms of its ability to fulfil its financial and/or other obligations properly should be obtained.

Public Policy a Hurdle Under the Indian Arbitration Law: Critical Analysis

The traditional role of public policy was to limit the scope offoreign law, recognition, and enforcement of foreign judgments or awards. Sometimes domestic courts use this doctrine to strike down the foreign arbitral awards. Though the disputing parties are free to choose applicable laws in international commercial arbitration, when it comes to the recognition and enforcement of an award they rely on the domestic laws and courts. If the court thinks that an award before them deals with a matter violates public policy, the court may refuse to recognise and enforce it. There is no uniformity in public policy notion among the states, it has been interpreted in different ways indifferent jurisdictions so it becomes very difficult to say which award will be allowed and which will violate the principle. Therefore, it becomes a big hurdle in the way of international commercial arbitration. To deal with this issue Indian judiciary took a step to define it and limit the scope doctrine of publicpolicy. Finally, in 2015 Indian Parliament amended the Arbitration and Conciliation Act, 1996, and clarified the term ‘public policy’.

Recognition and Enforcement of Annulled Arbitral Awards Under the New York Convention 1958

Purpose: The arbitral awards are enforceable internationally under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. The Convention provides the discretion to the courts in enforcing State either to enforce or reject the international arbitral awards. The award set aside at the seat of arbitration is not enforceable, however the courts in some jurisdictions enforced such awards. In this context the paper examines how the courts in different jurisdictions justified while enforcing the annulled awards. Theoretical framework: Arbitration mechanism is frequently used for settlement of international commercial disputes. It enables party autonomy in drafting arbitration agreements, choosing the applicable law and determining the arbitration seat. According to Article V (1)(e) of the New York Convention the national courts may refuse to recognize or enforce the foreign award if it was set aside or annulled at the seat of arbitration or under law of which such award was given. In some jurisdictions the enforcing courts considered the annulment procedure followed by the courts and if such procedure was unfair, the courts in enforcing country have agreed to enforce the set aside awards. Design/methodology/approach: The author followed the legal analysis method to examine the approach of the courts from different jurisdictions that have enforced the annulled foreign arbitral awards and the legal comparative method observed to study the judicial decisions from various jurisdictions. Findings: The study concludes that Article V (1) of the New York Convention gives discretionary power to the enforcing courts regarding enforcement of foreign arbitral award. Hence, the courts in some jurisdictions enforced the annulled award if the set aside procedure was unfair, based on local grounds, biased, violated basic norms of justice, against the parties’ agreement or applied domestic law instead of the New York Convention. To secure the enforcement of award, the parties to the arbitration may agree that the arbitral award is not subject to challenge in any court at the arbitration seat or in the state in which the award is enforced and prefer a pro-arbitration State as a seat of arbitration. Research, Practical & Social implications: The study provides practical guidance to the arbitrating parties in drafting arbitration agreements to ensure the enforcement of an arbitration award internationally. Originality/value: The research on enforcement of annulled award under the New York Convention immensely helpful in guiding the arbitration parties in drafting the arbitration agreement, choosing arbitration procedure and seat of arbitration.

PITFALLS IN THE DOMESTIC AND INTERNATIONAL COMMERCIAL ARBITRATION IN PAKISTAN

Arbitration is a well-known and increasingly popular alternative dispute resolution method. It is a safe, cost-effective, and time-efficient alternative dispute resolution method. The arbitration system saves both parties time and money by avoiding lengthy legal proceedings. In the Indian subcontinent, arbitration has been practised for many years under the name "Panchayat." Even in the absence of a legal system, the Panchayat served to settle conflicts. In these panchayats, decisions were made in accordance with ethical standards, cultural norms, and religious principles, and the decisions made by the panchayat were respected and held in high regard. (Kumar, 2017) During the British Raj (1858–1947), the Panchayat system underwent a period of decline. The British legalized local arbitration and replaced it with a codified system of law. (Hussain & Arafat, 2022) They enacted numerous regulations, leading to the enactment of the Arbitration Act of 1940, which governs arbitration in Pakistan. Following Pakistan's independence in 1947, the Panchayat system was reinstated and is still widely used in rural areas, where it is carried out in accordance with cultural norms and usages. There are no provisions in the 1940 Act regarding the Panchayat system, and its amendment has the potential to harmonise the country's arbitration system. (Mukhtar. 2016) Pakistan introduced international arbitration by signing and later implementing the New York Convention in 1958 by enacting the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act and the Arbitration (International Investment Dispute) Act in 2011. Although Pakistan has signed the UNCITRAL Model Law on International Commercial Arbitration, it has not yet been incorporated into domestic law. A stable and comprehensive system of international arbitration has become a necessity at the current time to attract foreign investors and other stakeholders to the country. However, Pakistan needs to improve in many areas of international arbitration, particularly in the enforcement and recognition of foreign awards and lex arbitri. (Rizwan Hussain, 2012) These challenges are explained in this essay using case laws.

Stay of enforcement of awards under the ICSID Convention—trends and issues

Journal Article Stay of enforcement of awards under the ICSID Convention—trends and issues Get access Ucheora Onwuamaegbu Ucheora Onwuamaegbu u.onwuamaegbu@afslaw.com Search for other works by this author on: Oxford Academic Google Scholar Arbitration International, Volume 39, Issue 2, June 2023, Pages 279–292, https://doi.org/10.1093/arbint/aiad029 Published: 19 June 2023

Courts’ Intervention in Arbitral Proceedings: The Afghan Arbitration Law Perspective

The paper explores the role of courts in arbitral proceedings in light of New York Convention on the Recognition and Enforcement of Foreign arbitral awards and the UNCITRAL Model law. It discusses the role of courts in arbitral proceedings from the perspective of the Afghan Arbitration Law. It analyzes the circumstances when courts can intervene in arbitral proceedings in all stages of the arbitration processes, including the setting aside of arbitral awards and the enforcement of awards. Then, it examines the legal framework governing the relationship between courts and arbitrators in Afghanistan, and the possible changes that could be made to enhance clarity on the extent of the courts' role in arbitral proceedings. Furthermore, the article considers the implications of court intervention in arbitral proceedings for the efficacy and credibility of the arbitral process in Afghanistan so that the law ultimately enhances the confidence of investors and businesses in the Afghan arbitration system, which will eventually contribute to the country's economic development and growth.

Article: State Aid Through Arbitration Awards: EU Law as a Ground for Non-enforcement

The relationship between international investment law (IIL) and EU law is not without problems as evidenced by the Achmea ruling. These tensions have become more evident in the Micula case in which the commission resorted to the state aid rules in order to attack arbitration awards arising from intra-EU Bilateral investment treaties (BITs) (deeming its enforcement as state aid). Despite its two rulings relating to the Micula saga, the Court of Justice of the European Union (CJEU) has not yet validated (or not) the application of state aid rules to the enforcement of intra-EU awards. Hopefully, the upcoming general court’s judgment shall rule on the merits of the Micula case thereby dispelling doubts. Nevertheless, it is foreseeable that further clarifying judgments will be required concerning the recognition and enforcement of intra-EU awards in non-EU jurisdictions. This article reviews the current situation to show that, while state aid rules could adequately prevent the enforcement of an intra-EU award within EU borders, they lack effectiveness for blocking enforcement beyond its borders. Arbitration award, intra-EU BIT, State aid, Tax benefit repeal, Damages, Award recognition, Award enforcement, Public policy, Micula, Achmea, ICSID Convention, New York Convention.

Enforcement of Awards v. Enforcement of Judgments in the EU: Arbitration Must Catch Up

Arbitral awards are easier to enforce across borders than court judgments, through the New York Convention, and this is one of arbitration’s key advantages compared to court litigation. In the European Union, however, this comparative advantage has been lost since the Brussels I Regulation Recast provides for the enforcement of judgments throughout the Union without the need for a local exequatur, whilst arbitral awards still require enforcement proceedings in each country. This article submits that arbitration must catch up and proposes a limited amendment to the recast Regulation, providing that arbitral awards issued in the European Union are capable of enforcement throughout the Union on the basis of a single exequatur in the jurisdiction of the seat. The proposed single exequatur at the seat will be optional; there will be no ‘double exequatur’ requirement. arbitration, award, enforcement, exequatur, recognition, single exequatur, Brussels I Regulation Recast, New York Convention, parallel proceedings

Unlocking the Implications of Unconditional Stay on Enforcement of Domestic Awards: A Comparative Analysis of India's Arbitration and Conciliation Act Amendments

Unlocking the Implications of Unconditional Stay on Enforcement of Domestic Awards: A Comparative Analysis of India's Arbitration and Conciliation Act Amendments

India: a late opening to the notion of international public policy?

Abstract The New York Convention does not define the term public policy, and confers discretion on the member states to develop and apply their own notions of public policy. The development and evolution of public policy, at both national and international levels, have given rise to domestic and international interpretations of public policy. International public policy reflects only those notions of morality and justice that are relevant in the international context. It is widely recognized that domestic public policy should apply only to domestic awards, and states should endeavour to apply international public policy when dealing with the enforcement of foreign awards. While Indian courts do not make an explicit distinction between domestic and international public policy, they have traditionally been infamous for refusing enforcement to foreign awards based upon a broad public policy scrutiny. That said, in recent times, there has been a strong push to rectify India’s image by narrowly interpreting the scope of public policy applicable to foreign awards. This article examines whether the recent favourable changes in the judicial and legislative outlook towards public policy have opened the doors for the application of international public policy to the enforcement of foreign awards in India.

Enforcing Foreign Awards Against Non-signatories: Analysis of Gemini Bay Transcription Pvt Ltd. v. Integrated sales service Ltd

Even though non-signatories to an arbitration may be affected by the outcome of an arbitration, they are often treated as strangers in the process. However, non-signatories can seek their involvement in an arbitration from the stage of reference to an arbitration, till enforcement of the arbitral award. The Supreme Court in its recent judgment of Gemini Bay Transcription Pvt. Ltd. v. Integrated Sales Service Ltd. & Ors. has clarified the position of non-signatories to the extent of enforcement of foreign awards by allowing the same. non-signatories, group of companies, arbitration, intention, enforcement.