Enforcement Of Foreign Arbitral Awards Research Articles

Exceptions to Enforcement of Foreign Arbitral Award in India and England

Exceptions to Enforcement of Foreign Arbitral Award in India and England

The New York Convention: How Courts Interpret Jurisdiction on Awards—A U.S. Perspective

There has been a significant body of U.S. federal case law where jurisdictional issues concerning the 1958 Convention on Recognition and Enforcement of Foreign Arbitral Awards have been litigated in the U.S. This article focuses on federal courts' interpretation on certain—not all—of those jurisdictional issues in connection with the Federal Arbitration Act—state law and state courts are out of the scope of this article.

INTERNATIONAL ARBITRATION AND THE NEW YORK CONVENTION- SETOFF WHILE ENFORCING AWARD

Can a respondent introduce a counterclaim or setoff request during proceedings to enforce an arbitral award under the New York Convention? The subject regarding set-off is constantly under arguments, amongst various jurisdictions having different views. This paper aims to analyze stances taken by different courts and discuss the pros and cons, disadvantages of allowing setoffs. Additionally, it will also delve into analyzing the relevant Articles of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the convention”) to conclude the longstanding discussion on set off

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.

The Recognition and Enforcement of Foreign Arbitral Awards: The New York Convention and the Afghan Law Perspectives

Aim: The aim of this paper was to evaluate the legal frameworks for recognition and enforcement of foreign arbitral awards in light of the New York Convention and the Afghan Arbitration law.
 Methods: In this research, the library research method was used and in terms of presenting research data and information, it’s a qualitative, descriptive and analytical research module.
 Results: As a party to the New York Convention, Afghanistan has the legal obligation to recognize and enforce foreign arbitral awards in its territory. Similarly, Afghanistan has recently enacted and ratified its law of arbitration which contains recognition and enforcement of arbitral awards. While generally the new law marks some progress, it continues to leave substantive and procedural uncertainty about how courts should recognize and enforce foreign arbitral awards. This uncertainty not only fails to comply with the terms of the New York convention, it also has the potential to discourage both national and foreign investment, ultimately threatening economic growth in Afghanistan. 
 Recommendation: This article recommends that by amending the arbitration law and enacting clear procedural rules upon recognizing, enforcing and executing foreign arbitral awards in light of UNCITRAL Model Law, first, Afghanistan can most likely promote foreign investment which is essential to steady economic growth, and at the same time, it helps Afghanistan to comply with the New York Convention on the recognition and enforcement of foreign arbitral awards.

ПРО ЗАСТОСУВАННЯ СУДАМИ КАТЕГОРІЇ «ПУБЛІЧНИЙ ПОРЯДОК» ЩОДО РІШЕНЬ МІЖНАРОДНОГО КОМЕРЦІЙНОГО АРБІТРАЖУ

The article examines the negative tendency towards excessive interference of state courts of Ukraine in international commercial arbitration by cancelling and refusing to enforce arbitral awards on grounds that go beyond the principle of legal certainty as an element of the Rule of Law. It was concluded that the expansive interpretation of the category of public order, applied in some decisions of the Supreme Court, will prevent the normal functioning of international commercial arbitration as an alternative way of commercial disputes' resolution in Ukraine, which not only undermines the investment prospects of Ukraine's economy, but also destroys the possibility of classifying Ukraine as a legal systems of civilized countries of the world, creates ample opportunities for abuses in the process of contesting and recognizing in Ukraine decisions of international commercial arbitration. It is substantiated that a violation of public order as a basis for refusing to recognize and enforce international commercial arbitration awards in Ukraine can be qualified in the case of clear disregard for direct prohibitions established by the state regarding the protection of sovereignty, fundamental human rights and freedoms. One of the ways to solve these problems is to the establish a legal ban on the execution of an arbitral awards in favour of the occupying country and persons related with it. Types of violations of the arbitration procedure as grounds for contesting an international commercial arbitration award or refusing to enforce it are comprehensively regulated in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), and cannot be based on expansive interpretation by the court of the arbitration procedure from the point of view of compliance with the norms established by the Civil Procedure Code and the Economic Procedure Code of Ukraine.

Can North Korea Enforce Foreign Arbitration Awards?

The enforcement of foreign arbitration awards in North Korea is highly problematic due to the unique legal and economic structures. A dearth of enforcement options for property rights, rooted in limited individual ownership, widespread distrust in local currency, and limited movable assets, leads to a focus on real estate use right for enforcement actions. The absence of private real estate ownership and a proper registration system, however, pose considerable challenges. Article 65 of North Korea’s External Economic Arbitration Law provides seven grounds for refusal to recognize and enforce foreign arbitration awards, one of which allows for broad interpretation, possibly leading to governmental interference or non-enforcement. Furthermore, this article highlights the difficulties in enforcing arbitration awards via real estate assets due to restrictions on ownership and the absence of a real estate registration system. This article also analyzes ambiguities in transferring real estate use rights to foreign creditors following arbitration awards.

Islamic commercial arbitration and private international law: mapping controversies and exploring pathways towards greater coordination

This article maps the main fault lines between the concerns for Shari’ah compliance, which are central to Islamic commercial arbitration and the categories of private international law. While issues such as applicable law, public order and the enforcement of foreign arbitral awards are routinely addressed in private international law, questions remain as to the extent to which the latter is able to accommodate additional concerns, which would be relevant for Shari’ah compatibility of an Islamic commercial arbitral award. This study is based on the qualitative methodology that is standard in legal analysis. This methodology consists, first, of desk-based research to compare the formulations found in a variety of textual sources: national and international legal sources, doctrinal opinions and the rulings of different courts. Second, the implications of different formulations are drawn out by considering actual and possible ‘limit cases’ in which the different wordings would translate into incompatible solutions. Third, proposals are made to help address the ensuing incompatibilities. Establishing a common operational ground between international private law and Shari’ah compliance in commercial arbitration would enable the two systems to function in a more coordinated fashion, reducing the legal uncertainties that are otherwise present when they are treated as parallel, mutually incommunicable systems. Through a focus on the specific misalignment between Islamic commercial arbitration and private international law, our article makes targeted suggestions that would materially address some of the concerns posed by the increasing internationalisation of Islamic finance—and by its attendant need for cross-border dispute resolution respectful of the ethical goals of Shari’ah compliance.

A proposal for international arbitration law in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration

International business arbitration is not covered by Namibia's present arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit language in the Act that addresses foreign arbitration as the Act, solely by default, covers national or domestic arbitration. When it comes to international arbitration, the Act has many flaws. Modern commercial arbitrations are increasingly being guided by the Model Law on International Commercial Arbitration (MLICA) of UNCITRAL (the United Nations Commission on International Trade Law) or by state legislation that has been influenced by it. It is undeniable that Namibia must embrace MLICA, including the majority of the 2006 revisions of the MLICA, in order to participate in the global economic village. Furthermore, Namibia has not yet ratified the 1958-adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CREFAA), which has been hailed as the most effective treaty governing global trade. This article suggests that Namibia should implement both the MLICA and the CREFAA. If this strategy is not adopted, businesses in Namibia will be hesitant to engage in international business transactions due to the lack of legal certainty that the New York Convention and contemporary domestic arbitration legislation bring.

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.

Public Policy as A Ground for Refusing Recognition and Enforcement of Foreign Arbitral Awards: New York Convention, UNCITRAL Model Law and Afghanistan Arbitration Law Perspectives

This article aims to examine the grounds for refusing the recognition and enforcement of foreign arbitral awards based on public policy considerations. It analyzes this issue from the perspectives of three different sources of law: the New York Convention, the UNCITRAL Model Law, and the Afghanistan Commercial Arbitration Law. It discusses the limited scope of the public policy exception under the Convention and the level of discretion given to national courts in applying this ground for refusal. Next, the article explores the UNCITRAL Model Law, which serves as a basis for legislation in many jurisdictions and is often incorporated into domestic arbitration laws. It examines the approach taken by the Model Law towards the public policy exception and compares it to the New York Convention. Finally, the article looks at the perspective of Afghanistan's Commercial Arbitration Law. It analyzes the specific provisions in this law that deal with the recognition and enforcement of foreign arbitral awards based on public policy grounds. Through this analysis, the article aims to provide a comprehensive understanding of how public policy considerations can impact the recognition and enforcement of foreign arbitral awards under different legal frameworks.

The Possibility of Applying the New York Convention to Recognise Nad Enforce the Foreign Arbitration Awards in Petroleum Disputes in Iraq

Objective: This study seeks to analyse how the New York Convention for the Recognition and Enforcement of Foreign Arbitration Awards can be applied to the recognition and enforcement of foreign arbitration awards in petroleum disputes in Iraq. Theoretical framework: Iraq acceded to the New York Convention in 2021. Iraq placed the commercial reservation, meaning that the Convention applies only to differences considered commercial under Iraqi laws. There is a great jurisprudential difference in determining the legal nature of petroleum contracts in Iraq. Thus, the Convention may not apply to these differences resulting from the petroleum contracts in Iraq. So, several studies from the literature have been used as a theoretical basis for this research. Method: This study is based on the doctrinal legal research methodology. Both primary and secondary data are used. Results and conclusion: The results indicate no specific rule in determining the nature of petroleum contracts. It is concluded that the Convention may not be applied to enforcing international arbitration awards in petroleum disputes in Iraq. Thus, it is necessary to reconsider the commercial reservation set by Iraq. Research implications: This study will help international oil companies know the extent of applying the New York Convention to the enforcement of international arbitration awards in Iraq. Originality/value: Improving the legal system for enforcing arbitration awards will create a friendly environment for arbitration in Iraq, which will help attract investment in the oil field.

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.

RECOGNITION AND ENFORCEMENT OF INDONESIAN SHARIA ARBITRATION AWARDS IN FOREIGN COUNTRIES: CHALLENGES AND OPPORTUNITIES

The Sharia Arbitration Board (Basyarnas) in Indonesia was formed to resolve disputes arising from agreements that are based on Islamic law. The existence of this body is essential in Indonesia, considering that the majority of the Indonesian Moslem community has begun to develop and utilize a Sharia-based economic system. During the current economic globalization, it is possible that foreign elements come into play in economic relationships. Thus, in the event of a dispute, the prevailing party must be able to use a Basyarnas arbitration award for enforcement and execution in the country where the losing party's assets are stored. By using a normative legal research method, this paper examines the efficacy of Basyarnas arbitration awards recognition and enforcement, particularly in countries with common law systems. Under the New York Convention on the Enforcement of Foreign Arbitral Awards, Basyarnas arbitration awards should not only be recognized and enforced in the court of the country of origin but also in jurisdictions where the losing parties’ assets located. This study concludes that Basyarnas arbitration awards should also be recognized and enforced in the countries with common law systems, because Sharia law is contrary to public policy in domestic law in the enforcing state. Hence, Basyarnas arbitration awards can be recognized in other countries if the award does not conflict with public policy in the enforcing state.

The Three Ages of International Commercial Arbitration

In May 1955, the UN Secretary-General circulated to States and NGOs a draft convention on the recognition and enforcement of foreign arbitral awards.2 He invited comments and queried States on the desirability of an international conference to conclude such a convention. The United States was one of three responding countries (with Canada and South Africa) to decline interest in such a conference.3 Although the United States ultimately attended what became the 1958 New York Conference, its participation was minimal. It did not seek to influence the text of the draft convention, focusing instead on alternatives to a multilateral convention for arbitration.4 After the conference, the US delegation urged the US government not to join the resulting New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.5 The delegation was partly motivated by federalism concerns, hesitant to use the treaty power to override US State laws and judicial procedures.6 The delegation also worried that the convention could allow arbitrating parties to escape the control of US law and the supervision of US courts.7 And the delegation considered the convention unnecessary, as the US trading community had neither sought such a convention nor proclaimed its benefits.8 Accepting the delegation’s recommendation, for a decade the US government declined to sign the New York Convention or send it to the US Senate for advice and consent to ratification.9

Recognition and Enforcement of Foreign Arbitral Awards in Albania

Recognition and Enforcement of Foreign Arbitral Awards in Albania

The Complex and Evolving Legal Status of Ad Hoc Arbitration in China

The current People’s Republic of China (PRC) Arbitration Law rejects ad hoc arbitration by requiring the arbitration agreement to specify an arbitration institution. However, such rejection does not constitute a barrier to the enforcement of foreign ad hoc arbitration awards under the New York Convention. To determine the validity of a foreign ad hoc arbitration agreement, China adopts a conflict-of-laws approach in ascertaining its applicable law. Recent years have witnessed China’s initiative to experiment with ad hoc arbitration in its Free Trade Zones (FTZs). The draft revised PRC Arbitration Law published by the Chinese Ministry of Justice (MOJ) in 2021 proposes allowing foreign-related disputes to be resolved by ad hoc arbitration. This article argues that the legal status of ad hoc arbitration in China demonstrates a complex and evolving nature. It notes that while complete legalization of ad hoc arbitration in China is unlikely in the short term, its legal status will continue to evolve, reflecting the complicated relationship between China’s bureaucratized arbitration regime and its increasingly sophisticated arbitration market. Ad Hoc Arbitration, Legal Status, PRC Arbitration Law, Article 16, Article 18, Conflict-of-Laws Approach, Enforcement of Foreign Arbitration Awards, New York Convention, Free Trade Zones, China’s Bureaucratized Arbitration Regime

Legal Problems of Enforcement of Foreign Arbitral Awards set aside at the Place of Arbitration

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 (the 1958 New York Convention) allows recognition and enforcement of arbitral awards in most countries of the world. Court practice of the states has revealed some problems of application of the 1958 New York Convention. One of such problems is recognition and enforcement of the arbitration award cancelled by the state court in the place where it was made. In the process of research of legal consequences of execution of annulled arbitral awards both general scientific methods of knowledge (analysis and synthesis, induction and deduction, generalization) and special scientific methods (formal-logical, formal-legal and method of legal prediction) were used. The scientific novelty of this work is the rationale that the recognition and enforcement of annulled arbitral awards lead to negative consequences. Enforcement of arbitral awards annulled at the place of their rendering undermines the status of such institution as arbitral dispute resolution and the whole system of acts aimed at regulating the activity of arbitration. Execution of such decisions leads to a violation of the principles of legal certainty, lis pendens, res judicata, pacta sunt servanda, and most importantly - violates the rights of participants in arbitral proceedings. It is noted that attempts are being made to amend the mechanism of recognition and enforcement of arbitral awards, established by the 1958 New York Convention, with regard to the enforcement of annulled arbitral awards. It is proposed to make such changes through the adoption of an additional protocol to the 1958 New York Convention or a new international treaty.

An Appraisal of the Implementation of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in Canada

An Appraisal of the Implementation of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in Canada

Public Policy Exception to Enforcement of Foreign Arbitral Awards: Application of the Article 139 of the Constitution of Iran

Public Policy Exception to Enforcement of Foreign Arbitral Awards: Application of the Article 139 of the Constitution of Iran