International Arbitral Awards Research Articles

RECOGNITION AND ENFORCEMENT OF INTERNATIONAL COMMERCIAL ARBITRATION AWARDS: LEGISLATIVE INNOVATIONS AND COURT PRACTICE

The article is devoted to the analysis of certain legislative novels on the regulation of the procedure for recognition and enforcement of international commercial arbitration awards in Ukraine, as well as their manifestation in the latest court practice. All considered novels are defined as positive, contributing, inter alia, to an increase in the investment attractiveness of Ukraine.

Aligning State Sovereignty with Transnational Public Policy

The rationale for “delocalizing” transnational public policy is not that domestic authorities lack the capacity to delineate the scope of transnational public policy. Rather it is that the public policy that is articulated solely through a domestic judicial lens can be fractionalized as national courts internalize public policy differently to comport with their discrete and sometimes conflicting domestic requirements. This Article uses controversial litigation in the United States and Russia to illustrate the disturbing ripple effect of domestic courts declining to enforce foreign judgments that have annulled arbitration awards. It proposes a way for domestic judges to apply transnational public policy to international commercial transactions, without displacing or circumventing domestic public policy. It applies this analysis to the “public policy exception” by which domestic judges decline to recognize and enforce international arbitration awards under the New York Convention.

Domestic Courts Declining to Recognize and Enforce Foreign Arbitral Awards: A Comparative Reflection

This article examines the “public policy exception” by which domestic judges decline to recognize and enforce international arbitration awards, primarily under Article V (2) (b) of the New York Convention (1958). It explores litigation in China and New York, to identify reasons invoked by domestic courts to decline to enforce foreign arbitration awards on localized public policy grounds. It also examines due process grounds invoked by a Dutch court in refusing to enforce Russian judicial decisions annulling arbitration awards. The article considers the difficulties faced by domestic courts in delineating the concept of substantive and procedural justice clearly and reliably. It concludes by examining how states and their courts can develop shared conceptions of substantive and procedural due process that transcend national boundaries.

Domestic Courts Declining to Recognize and Enforce Foreign Arbitral Awards: A Comparative Reflection

This article examines the “public policy exception” by which domestic judges decline to recognize and enforce international arbitration awards, primarily under Article V (2) (b) of the New York Convention (1958). It explores litigation in China and New York, to identify reasons invoked by domestic courts to decline to enforce foreign arbitration awards on localized public policy grounds. It also examines due process grounds invoked by a Dutch court in refusing to enforce Russian judicial decisions annulling arbitration awards. The article considers the difficulties faced by domestic courts in delineating the concept of substantive and procedural justice clearly and reliably. It concludes by examining how states and their courts can develop shared conceptions of substantive and procedural due process that transcend national boundaries.

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.

Trade, Law and Product Complexity

How does the quality of national institutions that enforce the rule of law influence international trade? Anderson and Marcouiller (2001) argue that bad institutions located in the importer's country deter international trade because they enable economic predators to steal and extort rents at the importer's border. We complement this research and show how good institutions located in the exporter's country enhance international trade, in particular, trade in complex products whose characteristics are difficult to fully specify in a contract. We argue that both exporter and importer institutions impact international as well as domestic transaction costs in complex and simple product markets. International transaction costs are a part of the costs of trade. Domestic transaction costs affect complex and simple products differently, thereby changing a country's comparative advantage in producing such goods. We find ample empirical evidence for these predictions: countries that have high quality institutions tend to export more complex products and import more simple products. Furthermore, institutions have a stronger influence on trade via their influence on production costs (comparative advantage) rather than on international transactions costs. International institutions seem to operate as substitutes for domestic institutions, since good domestic institutions are less important for promoting exports in those countries that have signed onto a convention that facilitates the enforcement of foreign and international arbitral awards, namely the New York Convention.

The Valuation of Ecosystem Services in International Investment Arbitration

Ecosystem services are essential to human life, inextricably woven into the foundations of our civilizations and economies. This article lays the theoretical foundation for the incorporation of ecosystem services valuation into international arbitration, applying the scientific and economic scholarship in this area to legal dispute resolution. Traditional international investment law and modern legal scholarship fail to address either the value ecosystem services bring to landowners or the repercussions of investor activity on their fragile health and vitality. The evolution of international dispute resolution and growing threats to the natural environment urge the development of a new perspective that closes these gaps. Investor-state dispute settlement is a flexible enforcement framework used by thousands of international investment agreements. It provides an ideal forum for inaugurating the internalization of the positive externalities generated by these precious resources. Recognizing the economic and environmental importance of these services and their impact on legal relationships, this article unfolds a legal basis for incorporating the valuation of ecosystem services into damages calculations in international investment arbitration awards.

Evident Partiality and the Judicial Review of Investor-State Dispute Settlement Awards: An Argument for ISDS Reform

International investment law, and particularly investor state dispute settlement (ISDS) is currently the subject of many heated debates, from the fairness of bilateral investment treaties, to the lack of precedent in ISDS, to the impartiality of arbitrators. This article examines national judicial review of international investment arbitral awards in the context of U.S. domestic law, focusing on evident partiality and the appropriate standard of deference to be applied to such awards, particularly in the case where challenges to arbitrator integrity were denied at the arbitration stage. National courts are not the ideal fora for adjudicating challenges to ISDS awards, as evidenced by differing standards of deference across jurisdictions and the lack of familiarity with international treaties and international rules of arbitration. Addressing the problem at its root, namely through amending international rules of arbitration or by creating additional levels of international review would be more effective. The problem of arbitrator partiality in ISDS is reflective of systemic problems. This article argues that the issues of interpretation arising in reviewing ISDS awards before domestic courts suggest that reform of the ISDS system would be a more effective means of safeguarding party interests from arbitrator conflict of interest or corruption. This article builds on the standard of deference established by the Supreme Court in BG Group, focusing on the Argentina v. AWG Group case that was decided by the D.C. Circuit Court of Appeals in July 2018. In reviewing the Argentina v. AWG Group case, the article highlights some of the challenges in having domestic courts review ISDS awards. At the same time, the article argues that while a high level of deference to international arbitration awards is usually desirable, the standard of review with respect to ISDS claims should be clarified by U.S. courts as deference is not always the correct standard. Where the integrity of the arbitral tribunal itself is in question, that deference should be set aside in favor of closer review. Conflicts of interest that might elsewhere be viewed as significant enough to disqualify arbitrators from participating in arbitrations are viewed as commonplace in international investment arbitration and considered an inherent part of the system. This should not be the case.

Challenges of Swiss Arbitral Awards. Updated Statistical Data as of 2017

This article updates and extends previously published statistical data of challenges of international arbitral awards under Article 190(2) PILA (current database: 1989 through 2017). Additionally, it updates and extends data on requests for the revision of international arbitral awards (1989 through 2017) and challenges of domestic arbitral awards pursuant to Article 389 et seq. CCP (2011 through 2017). Under Article 190(2) PILA, 74 decisions have been rendered in 2016 and 2017. The tally of challenges amounts to 576 decisions. The percentage of successful challenges in non-sports (mainly commercial) arbitration remains at around 7%. The data now also suggest a chance of approx. 7% for sports arbitration. The median duration of the procedure before the Federal Court is roughly 6 months, while it has been slightly declining again for the past two years. Since 1992, the Federal Court has published 27 decisions on requests for revision of international awards. Thus far, three requests have been successful. The duration is a tad shorter than the one of challenges. Finally, 79 decisions in domestic arbitration under Article 393(a)-(f) CCP have been issued to date. 18% of the decisions concerned employment matters. The chance of success of a challenge amounts to 19%. That fairly high number is largely due to successful challenges based on arbitrariness, a ground for challenge that is only available in domestic arbitration proceedings. As of 2017, the median duration of domestic setting aside proceedings amounts to roughly 5 months.

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 Valuation of Ecosystem Services in International Investment Arbitration

Ecosystem services are essential to human life, inextricably woven into the foundations of our civilizations and economies. This Article lays the theoretical foundation for the incorporation of ecosystem services valuation into international arbitration, applying the scientific and economic scholarship in this area to legal dispute resolution. Traditional international investment law and modern legal scholarship fail to address either the value ecosystem services bring to landowners or the repercussions of investor activity on their fragile health and vitality. The evolution of international dispute resolution and growing threats to the natural environment urge the development of a new perspective that closes these gaps. Investor-state dispute settlement is the flexible enforcement framework used by thousands of international investment agreements. It provides an ideal forum for inaugurating the internalization of the positive externalities generated by these precious resources. Recognizing the growing economic and political importance of these services and their impact on legal relationships, this Article unfolds a legal basis for incorporating the valuation of ecosystem services into damages calculations in international investment arbitration awards.

Penggunaan Syarat Ketertiban Sebagai Dasar Pembatalan Putusan Arbitrase Internasional Di Indonesia

The research aims to study the competence of the District Court of Central Jakarta to annul the arbitration award of Geneva, and whether the judgment of the District Court of Central Jakarta annulling the arbitration award of Geneva is relevant to the existing law of arbitration in Indonesia.
 The research is juridical normative, i.e., using library research to obtain secondary data in the field of law and using field research for support. Therefore, it uses two types of data: primary data from interview with resource persons and secondary data from library research by means of document study on the primary, secondary, and tertiary legal materials. It uses qualitative method to analyze the data.
 The research reveals, according to the Arbitration Law No. 30 of 1999, Regulation of the Supreme Court No. 1 of 1990, Rules of International Centre for Settlement of Investment Disputes, and New York Convention 1958, that the District Court of Central Jakarta has no competence to annul the arbitration award of Geneva. The use of public policy as ground for annulment of arbitration award of Geneva by Forum of District Court of Central is not correct because public policy is not found, ether in Rules of International Centre for Settlement of Investment Disputes or New York Convention 1958, as ground for annulment of arbitration award. Besides, public policy provided in the Arbitration Law No. 30 of 1999, Regulation of The Supreme Court No. 1 of 1990, and New York Convention 1958 is not related to the annulment of international arbitration award but the refusal and enforcement of international arbitration award. Nevertheless, Forum Court's interpretation toward public policy is correct because such interpretation is not based on assumption but on the fact that the enforcement of arbitration award of Geneva violates the Presidential Decree No. 39 of 1997 and No. 5 of 1998, as well as the monetary crisis threatening Indonesian prosperity.

International Law in a Transcivilizational World. By Onuma Yasuaki

This is no ordinary textbook of international law. If one wants a more detailed traditional treatment of subjects such as the relationship between international and national law, sovereign immunity, the modes of territorial acquisition, supported by meticulous citations from ICJ judgments or other international arbitral awards, one should look elsewhere. However, if one wants to have a ‘subversively constructive’ intellectual journey through the well-known terrains of international law, culminating in a fresh and critical perspective on international law, one should consider reading this book. The author has had a highly distinguished career as a professor of international law at the University of Tokyo and at Meiji University in Japan. As a leading critic of the Eurocentric...

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.

Overcoming the Challenges in Establishing Arbitration in Brazil: A Historical Perspective

This article provides a perspective on two barriers created in the Brazilian legal system that were crucial for the stagnation of arbitration in Brazil. The anti-arbitration measures adopted from 1867 until 1996 were detrimental to the acceptance of arbitration as a common method of solving disputes in Brazil. Although the practice of arbitration in Brazil began while it was still a Portuguese colony, two Decrees enacted in 1867 and 1878 provided a step back into the arbitration scenario. The first determined that the arbitration agreement was a promise to submit disputes to arbitration instead of a contract to have future disputes arbitrated. The second stated that an international arbitral award had to be recognised in the jurisdiction where it was issued before its submission for recognition and enforcement in Brazil. However, Brazil overcame these impediments which, at the end of the last century, were repealed.

AN ANNULLED AWARD CANNOT BE ENFORCED UNDER THE NEW YORK CONVENTION

Arbitral award is final and binding. A concept of “binding” is fundamental in International arbitral award. Nevertheless, the focus commonly concerns about the annulment and/or deferment of International arbitral award so that it could not be implemented. However, the New York Convention does not govern this issue. In addition, international arbitral awards must meet the following requirements: the award is made in the territory other than conflicting countries, and/ or it is not considered a domestic awards in the State where recognition and enforcement is sought. This is important because the enforcement proceedings between foreign and domestic awards are different. This article elaborates the principles of the recognition and enforcement of a foreign award and the grounds or criteria for refusing to enforce an award are limited to the specific defenses i.e. public policy. The party opposing enforcement bears the burden of proofin the existence of the enumerated defenses.Keywords: binding, annullment, deferment, acknowledgement and enforcement of arbitral award.

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.

Harmonized Legislative Management on Constructing International Enforceable Arbitral Awards in Decentralized Post-Award Bargaining Systems

Harmonized legislative managements on national legislations for balancing the arbitral interests of the parties in post-award reviews is worth exploring for the reasons of little discussion about the uniform legislative control on the variables of post-award procedures in different jurisdictions and the enhancement of post-award renegotiations or court-facilitated mediations for constructing international enforceable arbitral awards. The purpose of this paper is to study the efficiency, fairness, and sustainability of the grounds for the consolidation of international enforceability of arbitral awards. The author examined cases on the enforceability of foreign arbitral awards with comparative studies on Federal Arbitration Act, ZPO (Ger.), C.P.C. (Fr.) and explored the trends of legal harmonization, the restatements of arbitration laws, the procedural delocalization of arbitral proceedings. Firstly, the author studied international arbitral legislative coordination of constructing international enforceability of arbitral awards for balancing legitimacy interests and efficacy costs of post-award reviews. Secondly, the author schemed the frameworks of building up arbitral resilience in international enforceability of arbitral awards and the role of courts in supervising arbitrations. Thirdly, the author studied two models for the post-award bargaining: legislative optimal control problem and post-award efficiency bargaining processes, to understand the incentive structures of legislative optimization. Firstly, judging from the convergent results of bilateral bargaining model, the author suggested that elevating the party’s arbitral interests valuation since guaranteeing the allocation efficiency of post-award bargaining mechanism is not possible. Secondly, the author concluded that to solve the optimal control problem of international legislative coordination for consolidating the international enforceability of arbitral awards, enhancing the self-organization of national legislative control is helpful since the equilibrium is non-optimal in decentralized bargaining systems. Thirdly, the author emphasized the post-award renegotiations designed by national arbitrations for constructing international enforceable awards by improving the incentive structures of harmonized legislative managements.

Overview of the recognition and enforcement of international commercial arbitration

The subject. This informational article is devoted to the peculiarities of recognition and enforcement of international commercial arbitration awards according to different countries’ legislation and international legal regulation. The purpose of the article is to identify legal patterns of recognition and enforcement of international commercial arbitration awards in different countries. Methodology. The study is based on comparative law and formal law methods, analysis and synthesis. Results, scope of application. Enforcement of arbitral awards in countries is ensured and guaranteed by multilateral conventions, bilateral treaties and national legislation. The New York Convention 1958 in a certain way limits the scope of legal protection of arbitral awards and leaves the procedure for recognition and enforcement of arbitral awards for consideration of the state court. The author analyses of differentiation of the recognition and enforcement regime of so-called domestic and foreign solutions of international commercial arbitration in terms of doctrinal approaches and practice of countries. Special attention is given to the analysis of arbitral awards of recognition and enforcement procedures is given to a denial of recognition and enforcement of arbitral awards and their reasons. In spite of the explicit grounds for refusal of recognition and enforcement of arbitral awards in New York Convention 1958, some countries try to establish certain exceptions to the rule in the national legislation. Results may be applicable in improvement of international legal regulation. Conclusions. The courts of the countries – participants of the New York Convention 1958 cannot cancel the arbitral award or revise it substantially. The refutation of this award is possible only in the court of the state in whose territory the relevant arbitral award was made, and such court is not formally bound by the rules of the New York Convention 1958, when deciding whether to cancel or modify the award.

Enforcement of international and national arbitration awards in Ghana – legal basis, challenges and obstacles.

Enforcement of international and national arbitration awards in Ghana – legal basis, challenges and obstacles.