Foreign Arbitral Awards Research Articles

Arbitration agreements in the foreign economic activity of russian companies

The article assesses the potential risks associated with the problem of recognizing the arbitration clause as inconsistent or invalid. The main scientific research method used in this article is the comparative legal method, which makes it possible to most accurately determine the common and different features in the approaches of different jurisdictions. This article discusses the main conditions and essential circumstances requiring attention when working with contracts in the foreign economic activity in terms of validity of the arbitration agreements. In order to achieve the goal set in the article, we analyzed: the legislation of the Russian Federation on international commercial arbitration, the UNISTRAL rules, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), the international arbitration rules, the judicial practice related to the recognition and enforcement of arbitral awards. As a result of analysis, the article provides provisions aimed at increasing the efficiency of conclusion of such arbitration clauses in the foreign economic activity of Russian companies.

Arbitration agreements in the foreign economic activity of russian companies

The article assesses the potential risks associated with the problem of recognizing the arbitration clause as inconsistent or invalid. The main scientific research method used in this article is the comparative legal method, which makes it possible to most accurately determine the common and different features in the approaches of different jurisdictions. This article discusses the main conditions and essential circumstances requiring attention when working with contracts in the foreign economic activity in terms of validity of the arbitration agreements. In order to achieve the goal set in the article, we analyzed: the legislation of the Russian Federation on international commercial arbitration, the UNISTRAL rules, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), the international arbitration rules, the judicial practice related to the recognition and enforcement of arbitral awards. As a result of analysis, the article provides provisions aimed at increasing the efficiency of conclusion of such arbitration clauses in the foreign economic activity of Russian companies.

Mediation and Appropriate Dispute Resolution

2019 was a significant year for mediation. On 7 August 2019, 46 states – an unprecedented number – came together in Singapore to sign the United Nations Convention on International Mediated Settlement Agreements Resulting from Mediation (“Singapore Convention”). The Convention, which comes into force on 12 September 2020, provides a legal framework for the recognition and enforcement of mediated settlement agreements across borders and thereby addresses one of the major criticisms of international mediation, namely, the lack of an internationally recognised expedited enforcement mechanism. The Singapore Convention aims to be for mediation what the Convention on the Recognition and Enforcement of Foreign Arbitral Awards is for arbitration. The Singapore Convention casts an even brighter spotlight on Singapore as a mediation and dispute resolution hub; with this attention comes increased interest in Singapore’s jurisprudence on mediation and other forms of appropriate dispute resolution (“ADR”). It is therefore timely to introduce a chapter on mediation and ADR to the Ann Rev. In terms of scope, this chapter will not deal with arbitration unless it forms part of a mixed mode dispute resolution process, which has mediation as an element. Further, the authors note that the body of jurisprudence on mediation and ADR-related subject matter is evolving. Thus, the categories of cases in this chapter will develop accordingly. In this inaugural chapter, the authors offer a review of cases in three categories. First, cases on the recognition and enforcement of negotiated and/or mediated settlement agreements are examined. Next, cases which address issues in mediation and ADR practice and ethics are reviewed. Finally, the authors consider cases dealing with civil procedure aspects of mediation, including disclosure of mediation evidence and the apportionment of costs.

Enforcement of Investment Court Decisions under the New York Convention: A Search for Defining Elements

This paper explores whether a decision rendered by an international investment court or similar body would be enforceable in the courts of third States as a ‘foreign arbitral award’, pursuant to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. After asserting the premise that an investment court would be harmonious with States’ existing obligations under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), this paper reviews salient aspects of the New York Convention’s travaux preparatoires, and its use to enforce the decisions of bodies that challenge assumptions concerning what features make an award ‘foreign’ and ‘arbitral’. The paper then charts a new path by gauging the meaning of ‘arbitration’ in international economic law, in light of its widely ratified usage decades later in the distinctive arbitral procedures of the World Trade Organization (WTO). Drawing from this variety of contexts, the paper concludes by linking the interim arbitration mechanism adopted by some WTO members in April 2020 to the institutional body that may yet emerge from UN Commission on International Trade Law (UNCITRAL) negotiations on the reform of investor-State dispute settlement (ISDS).

Enforcement of Investment Arbitration Awards

The enforceability of decisions is a central pillar of any dispute resolution mechanism, whether of internal or international nature. This chapter aims to explain the rules for enforcement under the two main enforcement systems that are currently in force in the realm of investment arbitration: the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and the 1965 Washington Convention (the “ICSID Convention”). In particular, Section 2 analyses the scheme for enforcement under the New York Convention, and assesses the obligations of the states parties; Section 3 examines the scheme for enforcement under the ICSID Convention along with the related obligations of states parties. In both cases, we will shortly introduce a linkage to the threat that sovereign immunity for execution of awards poses to the function of the investor-state arbitration regime. Some conclusions on the relationship between the two Conventions will be attempted. In such a context we will finally propose some reflections on an issue related to the enforcement and recognition of arbitral awards which could assume particular relevance in the very near future: the proposed investment court system (ICS) and multilateral investment court (MIC). We thus briefly address the main doubts that have been raised concerning the enforcement and recognition of decisions by the ICS/MIC.

Indian Arbitration and the Shifting Sands of Public Policy

The ‘public policy’ test is a statutory exception to the enforcement of arbitration awards. The doctrine has its roots in common law. At times, the test has been construed narrowly, and at other times, expansively. What actually constitutes and what is contrary to public policy, however, is never clear. This article seeks to trace the tumultuous development of the public policy doctrine in India, from its beginnings as a common law concept, to arrive at the current understanding of the doctrine and its parameters, in the context of Indian arbitration law. In the process, this article discusses the approach of Indian courts in limiting interference with foreign arbitration awards on the public policy ground. The author argues that it is necessary to further check the public policy exception in India, particularly in the context of enforcement of foreign awards and awards from international commercial arbitration, in view of the Indian government’s aim of making India a ‘hub of arbitration’. international, commercial, arbitration, India, public, policy, development, enforcement, foreign, award.

GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC (U.S. Sup. Ct.)

On June 1, 2020, the U.S. Supreme Court decided GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC. The decision is significant for its holding that nothing in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention or the New York Convention) or the Federal Arbitration Act (the FAA) prohibits courts from deciding that non-signatories may be bound by or enforce international arbitration agreements based on contract, agency, equity, or related principles.

Analysis of the Law on Enforcement of Foreign Arbitral Awards in Malawi: A Call for the Ratification of the New York Convention

International arbitration becomes more attractive when parties are assured that they can easily enforce the arbitral awards in different countries. The New York Convention has made the enforcement of foreign arbitral awards easier. Unfortunately, Malawi is not yet a party to the New York Convention. Enforcement of foreign arbitral awards in Malawi can be done by using three different pieces of legislation: the British and Commonwealth Judgments Act of 1922; the Service of Process and Execution of Judgments Act of 1957 and; the Arbitration Act of 1967. The paper argues that the said pieces of legislation are restrictive, in terms of countries that they apply to as well as the types of awards that can be enforced, and lacks certainty and predictability. The pitfalls found under the Malawian enforcement regime are not available under the New York Convention. The paper argues that adopting the New York Convention would make Malawi more arbitration friendly.

An Analysis of the Enforcement of Foreign Arbitration Awards in Palestine: Realities, Drawbacks, and Prospects

Abstract This article highlights the gaps and difficulties that face the enforcement of foreign arbitration awards in Palestinian courts. In addition, it constructs recommendations for legal and judicial approaches that the Palestinian Authority should adopt to create a ‘pro-arbitration’ system. The article first provides a general analysis of the regulatory deficiencies in the enforcement of foreign arbitration awards, which include the inapplicability of the New York Convention, the existence of the reciprocity principle as a condition of enforcement, and the lack of presumptive obligation of recognising the validity of arbitration awards in Palestine. Afterward, the article focuses on the procedural level of enforcing foreign arbitration awards. It addresses difficulties that face the award-creditor when attempting to enforce the award through the competent court, as well as the Palestinian courts’ approach when reviewing the exequatur, and how this attitude affects the granting enforcement.

U.S. Supreme Court Holds that the New York Convention Does Not Displace Domestic Doctrines Permitting Nonsignatories to Enforce Arbitration Agreements

On June 1, 2020, the Supreme Court unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention) does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. The Court interpreted the text of the Convention as being silent on the issue of enforcement by nonsignatories and thus leaving this issue to domestic law. The Court noted that some postratification practice (including the recommendation of a UN commission) and the views of the executive branch were consistent with its conclusion, but it did not determine how much weight should be accorded to these sources.

North Korean Legal Systems Regarding Foreign Investment

This article reviews up-to-date North Korean laws regarding foreign investment. The legislative intricacy of North Korea has been largely influenced by China. North Korea has enacted significant economic legislation to attract foreign investors, which mirrors similar Chinese laws. Since 2011, North Korea made significant amendments to laws on foreign investment and noticeable revisions on special economic zones. The Foreign Investment Act, the Wholly Foreign-Owned Enterprise Act and the Land Lease Act were revised in 2011. With respect to special economic zones, the Rason Economic and Trade Zone Act, as well as the Kumgang International Tourism Zone Act and the Hwanggumpyong-Wihwado Economic Zone Act, were revised in 2011. In 2014, the Equity Joint Venture Act, the Contractual Joint Venture Act and the Foreign Economic Arbitration Act was revised. In 2015, the Foreign-Invested Company and Foreign Person Tax Act was revised. The North Korean Socialist Constitution revised in 2019 emphasized the importance of credit in foreign trade and the principle of equality and reciprocity. It is essential and demanded for North Korea to join the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the ICSID Convention (Convention on the settlement of investment disputes between States and nationals of other States) to protect foreign investors’ legal rights.

International Arbitration: Law and Practice in Brazil, by Peter Sester, ed

One of the most rewarding aspects of practising in the field of international arbitration is working with clients, lawyers, and arbitrators from different countries. And of all the many countries in which I’ve had the pleasure to have worked, one of my favourites is Brazil. I consider myself extremely fortunate that work has taken me there at least once a year for the past 15 years or so. What I like best about Brazil is the people: welcoming, warm, diligent, enthusiastic—and always hopeful about the future. This hope is summed up in an interview I read a few years ago with the Carioca novelist, Paul Coelho, in which Coelho quoted a Brazilian poet who said ‘Don’t lose your hope in difficult times. God was born in Brazil’. In the past 20 years, arbitration has grown dramatically in Brazil—this can be seen in the rising numbers of cases involving Brazilian parties, the rising number of cases seated in Brazil, the proliferation of excellent local arbitral institutions, the numerous pro-arbitration decisions of the Superior Tribunal de Justiça (the court with jurisdiction over cases involving foreign arbitral awards), the fact that the International Court of Arbitration the International Chamber of Commerce (ICC) opened a hearing centre in São Paulo in 2018, and the popularity of international arbitration conferences in Brazil.

외국중재판정의 집행에서 공서양속의 해석과 적용: 민사소송법상 공서양속의 해석에 관한 한국과 인도의 태도 비교를 중심으로

신남방정책을 굳이 들지 않더라도, 인도는 21세기 가장 각광받는 한국의 교역 파트너로 부상하고 있다. 한국과 인도 간의 지속적 무역량 증가에 따른 비지니스 분쟁의 증가 또한 당연한 일이 될 것이다. 분쟁 해결의 측면에서 보면 인도는 그리 만만한 교역 상대는 아니다. 현재 인도 법원에 계류 중인 사건의 수는 가히 감당할 수 있을 수준인지 의심스러운 수준이다. 소송의 대안으로 제시되는 중재 또한 인도 법원의 지나친 관여로 인해 소송의 대안이 될 수 있을까 의문이 앞선다. 인도 법원이 외국 중재판정을 승인하고 집행하는 과정에서, “인도의 공서양속 (Public Policy) 위반”을 근거로 중재판정을 번복하는 일이 있기 때문이다.<BR> 이에 본고는 외국에서 이루어진 국제상사중재 판정을 승인하고 집행하는 인도 법원의 문제점을 지적하고 그 대비책을 강구하려고 한다. 이를 위해, 분쟁 중인 인도 회사와 한국 회사가 서울에서 중재결정을 받고, 그 중재판정을 인도에서 집행하려고 할 경우를 가정하여 본문을 구성하였다. 뉴욕 협약을 바탕으로 한 각국의 중재법은 해외 중재의 승인 및 집행을 위해 “공서양속” 혹은 “선량한 풍속이나 그 밖의 사회질서에 어긋나지 않을 것”을 요건으로 하고 있다. 한국의 경우 중재법 제39조에 의해 해외 중재의 승인과 집행을 위해서는 “협약에 따르거나” 또는 민소법 127조를 준용하여 “선량한 풍속이나 그 밖의 사회질서에 어긋나지 않을 것”을 요구하고 있다. 인도 또한 외국중재판정을 인도 내에서 승인하고 집행하려는 경우, 중재법 제48조를 통하여 “인도의 공서양속에 어긋나지 않을 것”을 요건으로 하고 있다. 다만 공공정책의 범위에 관한 인도 법원의 해석이 일관되지 않아 분쟁당사자의 대응이 쉽지 않다. 본 고는 “인도의 공서양속”에 대한 지난 35년동안 이루어진 판례를 분석하고 최근의 경향을 제시한다.

Revisiting Disqualification of Arbitrators During Arbitral Proceedings: A Critique of Toyoshima &amp; Co., Ltd. v. Gaomi Luyuan Textile Co., Ltd.

Entering into an arbitration agreement means that the parties forfeit their right to sue before a national court if disputes that fall within the scope of the arbitration agreement arise. This nevertheless does not deprive the parties of the protections universally recognized as fundamental human rights. Therefore, a challenge to the arbitrator during the arbitral proceedings is possible when the integrity of the proceedings and that of the final award would otherwise be compromised. As a result of the influence of the pro-arbitration policy, domestic courts are usually biased towards not disqualifying arbitrators after the commencement of the procedures, especially when the enforcement of the award is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This is consistent with the Convention’s purpose to facilitate the cross-border enforcement of foreign arbitral awards, as well as global trade activities. In some cases, however, it is worth discussing whether the national courts have gone too far in this direction. Toyoshima &amp;amp; Co., Ltd. v. Gaomi Luyuan Textile Co., Ltd. before the Chinese courts illustrates this concern well. Arbitration, disqualification of arbitrator, procedural integrity, the standard for disqualification

Yargıtay Kararları Işığında Yabancı Hakem Kararlarının Tenfizinde Kamu Düzeni

In this study, first, the concepts of “recognition” and “enforcement” of foreign arbitral awards will be explained. Then, the legal basis for the recognition and enforcement of foreign arbitral awards will be clarified. The principles proposed in the academic circles to prevent the use of public policy beyond its purpose in enforcement of foreign arbitral awards proceedings will be briefly explained. Following that, what is considered by the doctrine to be part of public policy will be addressed. Thereafter, the attempts made by the courts framing public policy as an impediment to the enforcement of foreign arbitral awards will be addressed. In addition, the elements which, in Court of Cassation decisions, are considered to be public policy grounds that justify denial of enforcement of foreign arbitral awards will be evaluated under ten headings. In the last part of the study, the effect of public policy on the enforcement of foreign arbitral awards containing peculiar features will be examined. Three topics will be discussed under this title: first, the effect of public policy on enforcement of interim measures granted by arbitrators; second, the effect of public policy on the enforcement of the RICO or punitive damages awards, and third, the effect of public policy on the recognition of the anti-suit injunctions ordered by arbitrators. Our general evaluation regarding public policy as a bar to enforcement of foreign arbitral awards in terms of Turkish doctrine and practice will be presented in the conclusion.

Nationalist International Commercial Arbitration?: The Supreme Court and State Law Equitable Estoppel in GE v/ Outokumpu

A unanimous Supreme Court decided on June 1, 2020 in an opinion written by Justice Clarence Thomas the question of whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958 (hereinafter the “New York Convention”) conflicts with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories concluding that it does not. As the 11th Circuit Court of Appeals concluded that the New York Convention prohibits enforcement by nonsignatories, the Court reversed the 11th Circuit Court of Appeals and remanded the case for further proceedings. In that regard the questions of whether GE could enforce the arbitration clauses under principles of equitable estoppel or which body of law governs that determination were left to the 11th Circuit to decide in the remand. In a concurrence Justice Sonia Sotomayor - while agreeing with the court that the New York Convention does not categorically prohibit the application of domestic doctrines, such as equitable estoppel, that may permit nonsignatories to enforce arbitration agreements - noted that the application of such domestic doctrines is subject to an important limitation: any applicable domestic doctrines must be rooted in the principle of consent to arbitrate. From the point of view of separability doctrine, contract interpretation, treaty law it possibly brings into the arena of international commercial arbitration a particularly nationalist form of American approach to international trade. If that is the case, the New York Convention may be so twisted by domestic FAA Chapter 1 jurisprudence, that its efficacy for international contracts with American parties may be compromised. So we may have to again open the door to another international commercial arbitration convention being prepared.

The Application of Sharīʿah Finance Rules in International Commercial Arbitration

Due to its flexibility, speed and confidentiality, arbitration becomes the most attractive method for contracting parties to resolve their commercial disputes. This method of choice has developed gradually in the modern legal system of Islamic Countries (ICs) over the last three decades. Thus, many of individual countries have enacted their own arbitration regulations and ratified the relevant international arbitration conventions. They also established many qualified regional arbitration institutions. Subsequently, the referral to arbitration by professionals of these countries to settle their commercial disputes gains abundant popularity. This article provides a detailed view of Sharīʿah factor in international commercial arbitration.Enforcement is certainly the goal for the arbitration process. Nevertheless, enforcement of foreign arbitral awards in the ICs could be challenged if these awards are contrary to Sharīʿah public policy. Therefore, by using this exception, the ICs can reject the enforcement of any foreign award that violates Sharīʿah public order.

The Notion of ‘Arbitral Award’

International conventions are often based on terms and concepts to be understood independently from domestic laws. While a uniform and coherent interpretation of international instruments signifies, in and of itself, a valuable interest, the development of autonomous concepts within the framework of an international convention may be faced with several inherent impediments. Against this backdrop, this paper examines whether the framework of international commercial arbitration supports the establishment of an autonomous concept of ‘arbitral award’ in the context of, in particular, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the UNCITRAL Model Law on International Commercial Arbitration. Relying on a comparative analysis of the notion of ‘arbitral award’ in core jurisdictions, this paper contextualizes the feasibility and even the desirability of an autonomous notion of ‘arbitral award’ in the framework of international commercial arbitration. In doing so, it draws, i.a., from a comparison of the underlying principles and objectives of the New York Convention and other treaties on the circulation of decisions and settlements in civil and commercial matters.

RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN THE FEDERATIVE REPUBLIC OF BRAZIL

Awarding procedure is not only limited to the final decision of the court of the stipulated country, likewise the Federative Republic of Brazil but also its significant procedural aspect for enforcing the arbitral decision. Practically, parties should enforce foreign arbitration awards without exception until it crosses the country's internal and external policy. The economic growth of a country demonstrates remarkable changing in legal behavior on enumerated country's private parties' activities as well. Trade relations among Brazilian companies have made a long way for dispute resolution. Addressing to sophisticated social approach to the legal nature of a stipulated country, it is not a surprising factor in applying the private international law demands in practice. The official government seeks a modern transparent approach to finalize and enforce foreign arbitral awards without reducing the freedom of activities of companies in the inner border and cross border transactions. All perspectives of legal nature and enforcement procedure on foreign arbitration awards in Brazil are not very harsh at first glance since as all parties are adequately applied to New York Convention 1958 on Enforcement of Foreign Arbitration Awards, however as all stereotypes on all jurisprudences, there are several weak points while applying a procedural background. This article analyzes and compares legal possibilities and challenges on the application of foreign arbitral awards in the Republic of Brazil. The findings figure out the stick points of procedural matters of enforcement of foreign arbitral awards and their complexity from the theoretical approach. The goal is achieved by solving several problems: - To research the procedure of enforcement of foreign arbitral awards in the Federative Republic of Brazil; - To identify the problems of procedural matters while enforcing the foreign arbitral awards; - To highlight the possible solutions and pathways for making easier the enforcement procedure of foreign arbitral awards in Brazil.

Judicial Support for the Islamic Financial Services Industry: Towards Reform-oriented Interpretive Approaches

Abstract This study examines different dimensions and permutations of invaluable judicial support to Islamic financial services and products and identifies specific areas where the judiciary has helped to shape the industry in line with the original value proposition of Islamic financial intermediation. While relying on qualitative legal methods with comparative case analysis from different jurisdictions, this study conducts cross-jurisdiction case analyses and identifies the role of judiciary in introducing sustainable practices. It concludes that the judicial function has played a significant role in ensuring justice and fairness through purposive interpretation of contracts, recognition and enforcement of foreign arbitral awards and judgments, consistency and predictability of outcomes, legal risk mitigation, and facilitation of mediation and arbitral proceedings, thereby positively reshaping the future of Islamic financial services industry. Above all, the availability of binding judicial precedents, which is hitherto not common for Islamic law matters, is a welcome development in the Islamic financial services industry.