Enforcement Of International Arbitration Awards Research Articles

RECOGNITION AND ENFORCEMENT OF INTERNATIONAL ARBITRATION AWARDS

This article will explore the legal framework, procedures, challenges, and trends related to the recognition and enforcement of international arbitration awards, shedding light on the significance of this process in promoting a harmonious and predictable international business environment.

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.

KETIDAKPASTIAN HUKUM DALAM PENYELESAIAN SENGKETA BISNIS INTERNASIONAL MELALUI ARBITRASE INTERNASIONAL DI INDONESIA

In business activities, one of the considerations for international business partners is the legal certainty of a country. This study aims to analyze the causes of legal uncertainty in settlement of international business disputes through international arbitration in Indonesia. This research is descriptive of the type of normative legal research. The data used to examine the issues under study include regulations related to legal certainty in settlement of disputes through international arbitration and secondary legal materials in the form of scientific works and the results of research by legal experts, especially those related to international arbitration. The approach used is a statutory approach, especially the AAPS Law. Data was collected through a literature study, then analyzed qualitatively. The findings of this study are that legal uncertainty in settlement of disputes through international arbitration occurs due to inconsistencies in implementing the provisions of the AAPS Law, particularly concerning the recognition and enforcement of international arbitral awards. In addition, there are no clear limits on violations of public order as a condition for international arbitral awards to be implemented in Indonesia

The Effectiveness of Enforcement of International Arbitration Awards in the Alternative Dispute Resolution Regime

The aim of this research is to create a more accommodating arbitration model law by measuring the effectivity of international arbitration award implementation in accordance with UU No. 30/1999 regarding Arbitration and ADR law in international business dispute. The study analyzes the enforcement of international arbitration award implementation in relation to fairness and legal certainty. The research method is normative empirical, using statutes, conceptual, cases and sociological approaches. The technique of data gathering was carried on by observation, interview and library research. The conclusion of this research is that the implementation of international arbitral awards is still not effective due to normative barriers from the law itself, as well as institutional, support infrastructures and human resources barrier. Steps need to be taken to reinforce the implementation of the arbitration awards in relation to create legal certainty in a normative sense.

The Impact of NTT Docomo INC v. Tata Sons Limited on the Enforcement of Foreign Awards in India

This paper attempts to analyse the judgment of Hon'ble Delhi High Court that dealt with the conflict between enforcement of international arbitration awards and the foreign exchange laws or monetary laws.

The Singapore Convention on Mediation—A Brighter Future for Asian Dispute Resolution

AbstractOn 26 June 2018, the United Nations Commission on International Trade Law [UNCITRAL] approved, largely without modification, the final drafts of the Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) and amendments to the Model Law on International Commercial Mediation prepared by Working Group II. These instruments aim to promote the enforceability of international commercial settlement agreements reached through mediation in the same way that the New York Convention facilitates the recognition and enforcement of international arbitration awards. This paper provides a critical analysis of the Singapore Convention, and some commentary from an Asian perspective.

Enforcement of International Arbitral Awards: Res Judicata, Issue Estoppel, and Abuse of Process in a Transnational Context

Beyond the effect of a judgment of the court of the seat setting aside the award, the relationship between a challenge of the award at the seat and enforcement under Article V of the New York Convention is unclear, as is the relationship between two or more sets of enforcement proceedings in different jurisdictions. The Article explores whether a judgment rejecting a challenge of the award at the seat of the arbitration or granting or refusing enforcement gives rise to an estoppel in further enforcement proceedings. An estoppel would preclude the party opposing enforcement from relitigating issues that have been decided in the previous judgment as well as issues that could have been raised, and ultimately decided, in the previous proceedings. Furthermore, this Article examines whether a party who does not challenge an arbitral award at the seat of the arbitration or does not oppose an application for enforcement of the award can raise, in further enforcement proceedings, a defense that could have been a ground for challenging the award at the seat or opposing its enforcement in previous proceedings. Broadly, the answer to these questions has been that a judgment rejecting a challenge of the award at the seat or granting or refusing its enforcement does not prevent the unsuccessful party from opposing the enforcement of the award in a foreign country and that the unsuccessful party can elect whether to challenge the award at the seat or to wait and raise any ground of invalidity of the award in enforcement proceedings. The Article challenges this general assumption and demonstrates how the doctrines of issue estoppel and abuse of process may prevent a party from opposing enforcement on grounds that have been, or could have been, raised at the seat of the arbitration or in previous enforcement proceedings. Consistency and finality are well served by a structured and predictable application of these doctrines on a transnational basis.

The New French Legislation on State Immunities from Enforcement

The French legislative changes on State immunities fromenforcement brought by the Loi Sapin II are a compromise between the protection of State property against illegal enforcement measures, in particular through the requirement for a prior judicial authorization for such measures, and the creditors’ right to the enforcement of their claims, as provided under the European Convention on Human Rights. Creditors are now sheltered from the fluctuations in case law, as shown in particular in the NML and Commisimpex judicial sagas, but the drafting of appropriate waiver clauses remains crucial, particularly since these legislative changes have a considerable impact on the enforcement of international arbitration awards in France. Indeed, Section L.111-1-2 marks the end of the flexible approach allowed under the ruling by the Cour de cassation in Creighton, whereby waivers of immunity from enforcement could be tacitly inferred from the mere consent of the State to submit to arbitration. Nevertheless, the Loi Sapin II, as it applies to sovereign immunity, is not a comprehensive set of rules, with only three new Sections incorporated in the Code of Civil Procedures of Enforcement, and therefore still leaves room for interpretation and further developments in French case law.

The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Arbitration has been preferred as a most convenient procedure to settle economic disputes to prevent legal procedures that may cause harmful conditions for prosperity and profits. Accordingly, the conclusion of the 1958 New York Convention has been the pinnacle of this new form of regulating between parties that may dispute on economic issues rather than relying on the traditional legal procedures. Basically, the Convention has been set up as an International Convention between contracting States to regulate the recognition and enforcement of International arbitral awards. Our research will analyze the provisions of the Convention and its limitations when it has to do with contracting States' national legal system.

Recognition and Enforcement of International Arbitral Awards in Albania. Current hallenges to the Albanian Domestic Law

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) is described as the most successful treaty in private international law. For more than half a century this document has contributed to the protection of incomparable values of free trade. In this way it served well also to the interests of human society, providing a valuable contribution to the world economic development. Legal instruments of recognition and enforcement of foreign arbitral awards in the Republic of Albania do not justify the rightful place of arbitration mechanism in resolving international commercial disputes. The domestic normative framework that governs the enforcement of such awards is not fully sufficient. Albania has ratified the New York Convention more than 40 years after its entry into force, but that's not enough. In fact, the enforcement of arbitral awards which resolve international commercial disputes is facing with the lack of a modern legal framework and an unconsolidated jurisprudence. Since last 15 years, the New York Convention is part of Albanian legal order, but its implementation is not appropriate. Mostly this is due to the lack of approaching process of the Albanian legislation to the international standards in this field. Adoption and implementation of legal instruments in accordance with the international legal framework, for the recognition and enforcement of foreign arbitral awards, will be a good service to the integration process of the Albanian economy.

Empirical Findings on International Arbitration: An Overview

This chapter surveys the existing empirical literature on international arbitration. It seeks to be thorough but does not claim to be comprehensive. The chapter focuses on quantitative rather than qualitative empirical studies, and covers studies both of international commercial arbitration and international investment arbitration. Part I describes empirical research on the use of arbitration to resolve transnational disputes — in particular, the extent to which parties use arbitration clauses in international contracts, why they do so, and the frequency of international commercial and investment arbitration proceedings. Part II examines arbitral procedures, and Part III considers the applicable law in international commercial arbitration. Part IV looks at the demographics of international arbitrators, with emphasis on their diversity (or lack thereof), and arbitrator decisionmaking, in particular potential biases of party-appointed arbitrators, whether arbitrators make compromise awards, and the psychological aspects of arbitrator decisionmaking. Part V looks at the controversy over studies of outcomes in investment arbitrations. Finally, Part VI examines empirical studies of compliance with and enforcement of international arbitration awards, while Part VII considers their precedential effect, if any.

‘PRO ENFORCEMENT BIAS’ UNDER ARTICLE V OF THE NEW YORK CONVENTION IN INTERNATIONAL COMMERCIAL ARBITRATION: COMPARATIVE OVERVIEW

This article explores the main features of exceptions to enforcement under Article V of the NYC, including its exhaustive and discretionary natures. It then specifically provides an overview of narrow judicial control over the grounds for refusing enforcement under the Article V of the NYC. It points out the fundamental principles of the provision in determining the enforceability of international arbitral awards. Then this article will occasionally refer to international arbitral cases in some jurisdictions, such as the United States, France and Switzerland. It is noted that courts and legislatures in those jurisdictions have moved towards pro-enforcement policy to questions of recognition and enforcement arising under Article V of the NYC. Therefore, this approach is a good signal and a promising development to promote the finality and enforeability of foreign arbitral awards in international commercial arbitration. This approach can also be a good lesson for the Indonesian judiciary system in relation to the enforcement and recognition of international arbitral awards in the future.

The Enforcement and Challenge of International Arbitration Awards in Nigeria

There is no doubt that there is an increasing transborder trade among citizens of various nations of the world. Such as any activity that man interrelate in, disputes are bound to arise and for the continued interaction with one another such disputes must be resolved effectively. Disputes arising from international commercial trade can be resolved in various ways but the most effect is through Arbitration. Unless parties can be sure that at the end of arbitration proceedings they will be able to enforce the award, if not complied with voluntarily, an award in their favour will be only a pyrrhic victory. This article analyses the legal framework for the enforcement of international arbitration awards in Nigeria to determine how effective they have being in enhancing international commercial arbitration, It also examines the Limitation period for the enforcement of international Arbitration award and the methods available for setting aside/Challenging an International Arbitration Award in Nigeria.

Recognition and Enforcement of International Arbitral Awards: A Comparative Study of Ugandan and UK Law and Practice

This paper examines and critically analyses the current International legal regime governing the Recognition and Enforcement of international arbitral awards. It focuses on how the issues have been addressed under the 1958 New York and to a smaller extent the 1965 ICSID Conventions. It also analyses the refusal grounds for recognition and enforcement of International arbitral awards as provided under the New York Convention of 1958. The paper also looks at and critically analyses the refusal grounds of state immunity in relation to how it curtails recognition and enforcement of international arbitral awards. The paper looks at all the above in light of the comparative study the issues have been dealt with in United Kingdom and Uganda.The paper notes that there is no single legal regime governing recognition and enforcement of International arbitral awards and even the celebrated New York Convention have not yet met universal acceptance and some states parties have not yet domesticated it. The paper notes that the refusal grounds is a thorn in the ‘flesh’ of the winning party to an arbitration so much so that a balance needs to be struck to ensure that only genuine losers needs to rely on them to challenge recognition and enforcement of International Arbitral awards, much as the refusal grounds should be maintained, it should be sparingly applied.The paper concludes by recommending that the Ugandan Legislation needs to be updated to match the country’s commercial legal regime to ensure the realisation of commercial justice in the Country. This is premised on the fact that the Ugandan Arbitration and Conciliation Act is out-dated as compared to the UK Act which has just been updated as recent as 1996.

Recognition and Enforcement of International Arbitration Awards: A Case Study of Malaysia and Saudi Arabia

Recognition and enforcement are crucial elements of arbitration. Without the possibility for the winning party to enforce the arbitral award in its desired country, the whole arbitration process becomes pointless. This paper discusses the requirements for recognition and enforcement of international arbitration awards in Malaysia and Saudi Arabia. The paper aims to provide a clarification to the Arbitration law in both countries focusing mainly on the issue of the requirements regarding the recognition and enforcement of international arbitration awards. In this paper, both the Malaysian Arbitration Act 2005 and the Saudi Arbitration Act 2012 were compared with the Convention on Settlement of Investment Disputes 1965 (ICSID Convention). The methodology adopted in this paper was purely doctrinal in nature focusing mainly on the primary and secondary sources. On a final note, the paper concluded that the two Acts are less similar to the ICSID Convention when it comes to the requirements for recognition and enforcement of international arbitration awards. Hence, there is an urgent need for the two countries to adopt some form of reforms as far as the two Acts are concerned especially on the issue of ‘reciprocity reservation’ since it adds more complications to business transaction.

Judicial Review of Commercial Arbitration Awards North of the 49th Parallel

Unlike the United States, all Canadian provinces and the federal government have adopted legislation implementing the UNCITRAL Model Law on International Commercial Arbitration (bit.ly/1DbWZiC) that governs international arbitrations conducted in Canada and the enforcement of international arbitration awards. Principles first enunciated in the 1958 New York Convention (bit.ly/1n4KXNT) and amplified in the Model Law that limit judicial intervention and preclude any review of the merits of an arbitral award on matters of either fact or law are therefore applicable and consistently enforced throughout Canada with respect to international arbitrations. The Canadian province of British Columbia was the first jurisdiction anywhere in the world to adopt the Model Law.

Arbitration in the Kingdom of Saudi Arabia

Arbitration has a long history in the Kingdom of Saudi Arabia. It has been used for centuries under Shari’ah law in the Kingdom. However, foreign investors in recent years have experienced difficulty in using arbitration in the country. Saudi Arabia has therefore enacted a new arbitration law that is an improvement over the thirty-year old arbitration law that it replaced. The new arbitration law is based on the UNCITRAL Model Law on International Commercial Arbitration but with modifications to ensure that the arbitration process does not ‘violate Shari’ah’ as practiced in the Kingdom. The article reviews the important components of the new arbitration law and provides a comparative analysis of it to the previous law and international arbitration practice. It also analyses the recognition and enforcement of international arbitration awards in Saudi courts, including the impact of Shari’ah and the new arbitration and enforcement laws. Finally, it provides a narrative on the Saudi court system and its role in arbitration.

THE ROLES OF THE SUPREME COURT OF THE REPUBLIC OF INDONESIA IN ENFORCEMENT OF INTERNATIONAL ARBITRAL AWARDS IN INDONESIA

Indonesia has been being a member of the 1958 New York Convention since 1981, namely upon issuance of the Presidential Decree No. 34 of 1981. Prior to taking into force of the Regulation of the Supreme Court of the Republic of Indonesia No. 1 of 1990 on Procedures for Enforcement of Foreign Arbitral awards, there were still constraints for the foreign business players in term of enforcement of arbitral awards in Indonesia. The Supreme Court as the highest judicial institution in Indonesia holds that international arbitral awards can not be enforced in Indonesia. After the Indonesian Supreme Court has issued such a regulation, enforcement of international arbitral awards in Indonesia began to be enforceable, because the procedural law that governs the procedures for execution of arbitral awards has been clear. In order to regulate better the international arbitral award problems in the hierarchy of legislation, on October 12, 1999, the Law on Arbitration and Alternative Dispute Resolution was promulgated. In that Law, there is a special part discussing the International Arbitration. This study examines the development of international arbitral award enforcement in Indonesia before Indonesia becoming member of the 1958 New York Convention, until nowadays, by analyzing the international arbitral awards that were decided by the Supreme Court of the Republic of Indonesia after the coming into effect of the Arbitration Law.

ISD Illiteracy? - Lessons from U.S. Lawsuits for Recognition and Enforcement of International Arbitration Awards

ISD Illiteracy? - Lessons from U.S. Lawsuits for Recognition and Enforcement of International Arbitration Awards

Public Policy Vis-a-Vis Enforcement of Foreign Arbitral Awards: Some Reflections on the Indian Approach

The application of public policy defense for refusing the enforcement of international arbitral awards in India remains a major reason for vexation to foreign traders and investors. But, the real question is whether this concern is just a hypothetical discourse or whether it has become an actual threat. The paper attempts to address this question by reviewing a number of cases that deal with the handling of public policy exceptions by Indian courts. It aims to clarify the approach taken by Indian judiciary with respect to the scope and content of public policy as a challenge to enforcement of arbitral awards. An evaluation of the extent to which the so called Indian approach follows the international norms is also attempted.