Foreign Awards Research Articles

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.

Development on Enforcement of Foreign Awards in India

Development on Enforcement of Foreign Awards in India

Enforcement of Foreign Award and Public Policy Rules in Pakistan

Enforcement of Foreign Award and Public Policy Rules in Pakistan

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.

Chronology of Practice: Chinese Practice in Private International Law in 2022

Abstract This survey contains materials reflecting the Chinese practice of private international law in 2022. Firstly, the changes in the statutory framework of private international law in China include two legislative acts and one administrative regulation. Moreover, three international treaties in this regard were ratified by the National People’s Congress. Secondly, three judicial interpretations of the Supreme People’s Court (“SPC”) were adopted or amended, and 56 typical cases in six judicial documents on different topics were issued by the SPC. Thirdly, four typical cases on Chinese courts’ jurisdiction; 14 cases on choice of laws on various issues such as foreign investment contracts and negative lists, rights in rem, life insurance contracts and mandatory rules; one case on international judicial assistance rendered to an Argentinean court; three cases on interim measures; three cases on the recognition and enforcement of foreign judgments; nine cases on international arbitration including international sports arbitration and foreign awards, are selected in this survey for their emerging significance. Fourthly, the provisions regarding the extraterritorial application of Chinese laws have been identified for the first time in this series of surveys, shedding light on this aspect of private international law in China. They include those contained in, inter alia, China’s Anti-Monopoly Law, Anti-foreign Sanctions Law, Export Control Law, Securities Law, the Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures, as well as the Provisions on the Unreliable Entity List.

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.

امجداسلام امجد کا حمدیہ اور نعتیہ اسلوب:"اسباب" کا خصوصی مطالعہ

Amjad Islam Amjad He (1944-2023) the recipient of Presidential Award for Best Performance, Sitara-e- Imtiaz and numerous domestic and foreign awards, was not only a versatile creator but also a very reliable reference in Pakistani Urdu literature. As a poet, play writer, travel writer, columnist, critic and translator, his literary services are unforgettable. In 2019, he was awarded the highest national literary award by the President of Turkey, Tayyip Erdogan. The main reference of his literary personality is poetry. He developed Urdu ghazal and poetry. In the same way, he achieved a prominent position among contemporary writers by presenting Hamd and Naʻat in the form of ghazal and poem. In this research article, an analytical study of his Hamdiya and Naʻtiya style adopted in “Asbāb” has been discussed.

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.

Central Economics and Mathematics Institute of Russian Academy of Sciences — 60

The article summarizes the moments associated with design and implementation of creating and organizing the Central Economics and Mathematics Institute of the USSR Academy of Sciences (RAS), as one of the events on the path of the economics and mathematics development in economic science in the USSR and Russia. The main founders of this trend, as well as the Institute, and their followers, brought up within the walls of CEMI, are indicated. The role of the Presidium of the Academy of Sciences of the USSR in the creation of scientific team of the Institute and its research areas is noted. Briefly outlined the main trends of scientific research and their improvement in the process of functioning of the Institute, brief results of scientific research in the areas are noted. CEMI activities influenced on development of the economic and mathematical methods in the country; on education; on use of EMM and VT in science, economics and management. The status and foreign awards for the scientific achievements of the Institute and its employees in different years are given.

Smart contract disputes and public policy in the ASEAN+6 region

Smart contracts provide some benefits, such as better facilitation for contracting parties to monitor performance of their obligation and reducing the cost spent monitoring the contract. However, it is critical to understand various limitations of this concept as well as many legal and public policy uncertainties around it. Given the non-existence of an “universal rule” that governs smart contracts, the issues vary from jurisdiction to jurisdiction. The article applies comparative legal method to analyse the legal regulation of smart contracts in ASEAN+6 countries as well as the leading jurisdictions in the sphere of implementing digital technologies in the economy. Due to public policy considerations, there are different scenarios of smart contract development. The possible outlook is that ASEAN+6 countries would not accept smart contract as contract, cryptocurrency as property, and/or enforcing foreign awards that relate to smart contract disputes and/or cryptocurrency. Another possible way out of the deadlock is to govern relations under smart contracts by the UNIDROIT Principles. However, if the parties do not opt for such a solution, the determination of the applicable law will be left to the relevant conflict-of-laws rules with all of the uncertainties. Therefore, the author suggests that supranational laws is the better path for avoiding uncertainties in smart-contractual relationships.

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.

Scope of counterbalancing public policy and execution of foreign arbitral awards in India

Public policy is an essential consideration in international arbitration, as well as domestic arbitration. In contrast to the latter, the former is becoming an increasingly restricted approach internationally, particularly in the context of enforcement of foreign arbitral awards. International arbitral tribunals should be cognizant of the problem, even if it is difficult while pronounce the judgement, because different jurisdictions may prioritize different aspects of public policy for a variety of reasons. This study will examine the many ways in which domestic courts have used the public policy concept in evaluating this exemption for the protection of state sovereignty in cases when a foreign award is incompatible with the law of the enforcing nation. Lastly, the author believes that the New York Convention of 1958's pro-enforcement bias can be strengthened by this paper's transnational perspective, which urges public policy to be justifiably compatible with the global public policy of a large community of nations. This perspective can also serve as a safety valve to ensure the effective enforcement of meritorious arbitral grants.

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.

Article: A Critical Review of the Nonarbitrability of Tax Disputes and Recognition and Enforcement of Tax-Related Foreign Awards in Nigeria

Nigerian Courts have held in several cases that tax disputes are not arbitrable. This article examines whether: (1) the cases are correct in light of applicable tax instruments and emerging trends on arbitrability; (2) the decisions foreclose the arbitrability of all tax disputes in Nigeria; and (3) foreign awards, whose underpinning disputes are tax claims, are no longer enforceable in Nigeria, in view of the decisions. The importance of the foregoing questions cannot be overstated, particularly to foreign investors and Nigeria’s trade partners. With the aid of primary and secondary sources and comparator analysis, this article argues that the decisions were reached per incuriam. It also observes that whilst the decisions remain valid until set aside, the decisions neither foreclose (1) the arbitrability of tax disputes arising from certain domestic and international instruments; nor (2) the recognition and enforcement of foreign awards in at least three identified situations.

PUBLIC POLICY IN PAKISTAN A ROADBLOCK TO THE EXECUTION OF FOREIGN ARBITRAL AWARD

The International Public Policy of Pakistan is profoundly entangled between contractual laws, domestic arbitration, and loose & broad definition by Courts; hence hampering the execution of foreign arbitral award. The article seeks to better comprehend and investigate the doctrine of public policy as a basis for refusing enforcement of foreign arbitral awards. What complicates matters is the absence of a universally accepted definition of public policy or practise in its implementation, which differs from state to state. The vagueness, subjectivity, and unpredictability connected with the notion of public policy have hindered the efficacy of international commercial arbitration on many occasions. Pakistan, which is in dire need of international investment and access to international markets for its products, needs to come out with strong and predictable public policy mechanism. Case study is particularly done to understand the complex influence of domestic and international public policy. New phenomenon arising in the name of Transnational Public Policy is also explored. This study further argues that Pakistani courts need to redefine the categories of public policy keeping in consideration the growing demands of international trade and commerce. Keywords: Arbitral Award, Foreign Award, Public Policy, Arbitration, Domestic Public Policy.

Natural Justice and its Applicability to Alternate Dispute Resolution

Natural justice signifies fairness in the procedure. It casts a duty on the court and tribunal to ensure fair hearing and to proceed without bias. Principles of natural justice creates confidence among people in the legal system and is crucial for the judicial system of any jurisdiction. The author has discussed applicability of natural justice and its importance to Alternate Dispute Resolution process in the article. bias, natural justice, fair hearing, foreign award, Nemo Judex in Causa Sua, Audi Alteram Partem.

Public Policy Barricading the Foreign Arbitral Award: A Comparative Analysis between UK, USA & France

The concept of public policy in International Arbitration is still extremely contentious, controversial, and complicated in modern times. Although legislation related to arbitration and practise have attempted to harmonise public policy so that parties may benefit from a globally recognised idea, judicial courts have made this effort almost difficult by giving a very loose & broad definition in the name of public policy. Moreover, the New York Convention gives little direction to national courts on how to interpret the public policy claim. In the name of local contract laws and fundamental principles of a nation, judge keeps hampering the enforcement of foreign award. Internal Law Association attempted to resolve this contention but couldn't come up with a definite definition which limits the policy in a closed structure. Despite the ambiguity of the issue, national courts in most developed arbitral countries interpret public policy narrowly. Because industrialised countries' courts typically see arbitral awards as a separate aspect of public policy; they are pro-enforcement. In this article we will comprehensively elaborate this attitude, legislation and case law study of developed nations like USA, UK and France.

ПРАВОВАЯ ПРИРОДА СПОСОБОВ ПРАВОВОЙ ЗАЩИТЫ ЧЕРЕЗ ПРИЗМУ МЕЖДУНАРОДНОГО ГРАЖДАНСКОГО ПРОЦЕССА

The paper argues that legal relief should be treated as a complex notion that has both substantive and procedural dimensions. This argument is illustrated by reference to international disputes as a situation where legal classification has immediate practical consequences. Building on this argument, the paper concludes that courts and tribunals have to apply both substantive and procedural laws when resolving issues pertaining to legal relief. The purpose of each particular legal rule should be decisive to determine its legal nature, while other approaches to legal classification, such as textual interpretation of legal rules, are open to criticism. The paper also reviews a number of practical cases which could be resolved based on the suggested approach to legal classification. In particular, it is argued that the mixed classification of legal relief is helpful to address potential conflicts between remedies available under foreign substantive law and the procedural apparatus of the forum court (lex fori). This approach is also potentially efficient in the context of transnational enforcement of arbitral awards and state court judgments, and in particular it can be used to justify the power of the enforcing court to adapt the relief ordered by the foreign award or judgment to the procedural tradition of lex fori.

PASL V. GE: Indian Parties’ Fillip to Foreign-seated Arbitrations, but at What Cost?

Can two Indian parties elect a foreign seat of arbitration? This question has been the epicentre of a long-standing divergence in judicial opinions across Indian courts. However, this divergence was put to rest by the Supreme Court of India in PASL Wind Solutions (P) Ltd. v. GE Power Conversion (India) (P) Ltd. (decision of 20 April 2021), ruling in favour of Indian-parties’ autonomy to elect a foreign-seat of arbitration. Recognizing party autonomy as the “brooding spirit” of arbitration, the Supreme Court overruled two judgments of the Bombay High Court (Seven Islands Shipping Ltd. v. Sah Petroleums Ltd and Addhar Mercantile Pvt. Ltd. v. Shree Jagdamba Agrico Exports Pvt. Ltd.) for not understanding the law (on foreign seated arbitrations between Indian parties) in its correct perspective. Further, it clarified that the term ‘international commercial arbitration’ (in the proviso to section 2(2) of Indian Arbitration and Conciliation Act, 1996) was ‘party-centric’, in the context of section 2(1)(f) of the Indian Arbitration and Conciliation Act, 1996. On the other hand, the same term, when seen in the context of section 44 of the Indian Arbitration and Conciliation Act, 1996, was qualified as ‘place-centric’. This note considers the ramifications of the Supreme Court’s approach in reaching these conclusions, identifying and addressing significant gaps and ambiguities that arise therefrom. Indian Parties, International Commercial Arbitration, Party Autonomy, Foreign Seat of Arbitration (International Chamber of Commerce), Place of Arbitration, Venue of Arbitration, Foreign Substantive Law, Foreign Awards, Enforceability of Foreign Awards, Public Policy, Overruling