York Convention Research Articles

حكام التحكيم الاتفاقية وسلطة القضاء في الرقابة عليها: دراسة تحليلية مقارنة

This study examines the consent arbitral awards and the possiblity of applying to them the same conditions, rules and effects of ordinary arbitral awards. The study is divided into two main sections: Section one analyzes the legal framework of consent arbitral awards; their definition, purpose and the powers of arbitral tribunals to issue them as being originated from the parties’ consent. This is important in the light of some illegal practices of some disputants who may utilize such awards to cover such practices. The second section deals with the judicial review of consent awards either through annulment or enforcement proceedings under national arbitration laws and international conventions, and in particular the New York Convention of 1958 or the Washington Convention of 1965. This study concludes that the Consent Arbitral Awards play an active role in keeping the good relations between the disputants while having the same status and effects of ordinary arbitral awards. The study invites arbitral tribunals to play a more scrutinizing role of the settlement agreements before issuing the in-consent awards in order to avoid the misuse of the arbitral process as a cover of illegal practices.

A Case Study on the Reasons for Refusing to Recognize or Enforce a Foreign Arbitral Award

Firstly, this paper discusses the legal basis for refusing or recognizing a foreign arbitral award or a judgment in our country, that is, the New York Convention. Our country is a signatory to the New York Convention. Paragraph 2 of Article 5 of the New York Convention exhaustively sets out the grounds on which a Contracting State refuses to recognize and enforce a foreign arbitral award. Secondly, this paper analyzes the reasons for rejecting the application for enforcement based on two cases tried in Taiyuan and Wuxi in recent years, and finds that the courts in our country did not strictly follow the provisions of Paragraph 2 of Article V of the New York Convention when they ruled to reject the application, and neither the applicant nor the respondent mentioned the New York Convention in their application or defense. In the process of our country's judicial assistance system being gradually improved, this problem is also gradually solved. We should adhere to the seven reasons for refusing to recognize and enforce a foreign arbitral award in Article V of the New York Convention as the only source to refuse to recognize and enforce a foreign arbitral award.

Determining the applicable law to the arbitration agreement in the absence of a choice of law clause under Hong Kong Law: a call for renewed internationalism

Abstract The courts of Hong Kong have determined the governing law of the underlying contract to indicate an express, implied and no choice of the law applicable to the arbitration agreement. In determining the applicable law, the courts made no references to the New York Convention despite the fact that the provisions under Hong Kong arbitration law pursuant to which the foregoing determinations were made are based on provisions in the New York Convention and ought to be applied in conformity with the same. This article argues that the courts of Hong Kong ought to adopt the New York Convention’s conflict of laws rules in Article V(1)(a) to determine the governing law of arbitration agreements in pre- and post-award proceedings in order to enhance the alignment of Hong Kong law with the international body of arbitration law.

A Case Note on the UK Supreme Court’s Recent Decision in General Dynamics v. Libya: Hard Cases (Don’t Always) Make Bad Law

In General Dynamics v. Libya, the UK Supreme Court was asked to decide whether the only means for serving on a sovereign state an order enforcing an international arbitral award under the New York Convention was via diplomatic channels. The Supreme Court decided, by a bare majority, that service via diplomatic channels was mandatory. This case note reviews and analyses the Supreme Court’s decision. State Immunity, Service, Proceedings, Sovereign State, Enforcement Order, Hard Cases, UK Supreme Court

Does Brexit Mean Brexit? The Enforcement of Intra-EU Investment Awards in the Post-Brexit Era

This article uses an analytical approach in order to dissect the major legal issues concerning the enforcement of intra-EU awards post-Brexit. The outcomes of the enforcement cases will depend on the country where enforcement is sought (EU Member States, the UK, and other third countries), the applicable legal regime pursuant to which enforcement is sought (the New York Convention or the ICSID Convention), various temporal factors (whether certain key moments in the arbitral proceedings occurred before or after the end of the Brexit transition period), and whether the intra-EU cases are based on intra-EU BITs or the ECT, or both. Due to this complexity, there is no easy answer as to how the various issues arising from the post-Brexit enforcement of intra-EU awards should be solved. This is most unfortunate as it creates uncertainty for investors, host States, and national courts of enforcement alike.

Arbitration vis‐à‐vis other professions: a sociology of professions account of international commercial arbitrators

AbstractDespite some interest in a so‐called ‘sociology of arbitration’, there is still a notable lack of literature addressing why arbitrators, as a group, have not engaged in the patterns of behaviour usually associated with other professionals. The divergence from such patterns is so broad that, in many respects, arbitration would not fit with traditional sociological definitions of an organized profession. Most notably, arbitrators lack full‐time engagement in this role and are not bound by licensing requirements. This article proposes that this discrepancy ultimately relates to the arbitral market's particularities and the regulatory competition allowed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The article concludes that these same characteristics have, however, allowed international commercial arbitration to maintain one of the hallmarks of a profession: control over its own affairs.

“Public Order” as Grounds for Refusal in the Recognition and Enforcement of a Decision in International Commercial Arbitration: Ukrainian Realities and International Experience

Background: The question of recognition and enforcement of international commercial arbitration (ICA) decisions, as a prototype of a foreign court decision, finds radically opposite answers in different legal systems and in the doctrine of the ICA. Thus, in the Regulation of the Council (EU) 44/2001 of 22 December 2000 on the jurisdiction, recognition, and enforcement of judgments in civil and commercial matters, formerly the Brussels Convention of 1968 and the Lugano Convention of 1988, the notion of ‘arbitration’ was excluded from the sphere of execution and recognition of foreign court decisions. Methods: Nevertheless, the procedure for recognising and enforcing an ICA award has a unified approach in many countries around the world. Thus, national courts, when deciding on the recognition and enforcement of an ICA award, are increasingly faced with such problematic issues as the grounds for refusing to recognise and enforce such an award. This article reveals that these grounds for refusing to recognise and enforce the award of the ICA are a violation of public order of the country where the arbitral award is subject to recognition and enforcement. Particular attention is paid to the distinction between ‘substantive’ and ‘procedural’ public order and the practical approaches of national courts in some countries to this issue. Results and Conclusions: The authors state that the way to overcome this inconsistency is still a unified approach to understanding ‘public order’ in all member states of the New York Convention of 1958 and clearer international regulation of this issue.

The Concept of Foreign Arbitration Award in the Light of New York Convention, 1958

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York 1958, is a comprehensive instrument which facilitates the enforcement of arbitral decisions. The New York Convention Compared to its predecessor, the Geneva Convention 1927, on the Enforcement of Foreign Arbitral Awards has gained more flexibility and acceptance among UN member states. In accordance with Article 1, this Convention is applicable in a State other than the State where the recognition and enforcement of such awards are sought, or to arbitral awards not considered to be domestic awards. Therefore, the scope of the application of this Convention depends on what the notions of “arbitrator’s award” and “foreign arbitration award” are; because these two notions can determine which awards should be executed under the rules of the Convention and gain its benefits. However, the Convention gives no clear definition of foreign arbitral award. Under the New York Convention two types of foreign arbitral awards are recognized; arbitral awards that are not considered domestic and arbitral awards rendered in the territory of the state other than the state of the recognition and enforcement of award. In consequence it might be said the New York Convention is based on two criteria with different interpretations of which the territorial criterion is the most important one in comparison with functional criterion. So this paper aims to clarify the concept mentioned as one of Convention’s requirements in terms of executive scope.

Recourse of an Arbitral Award in Bangladesh: Dissection Under The UNCITRAL, Foreign Laws and Precedents

It is irrefutable that the arbitration process is controlled by arbitration seat law. Therefore, in the case of international commercial arbitration having the arbitration place in Bangladesh, and in the case of domestic arbitration that means where both parties are Bangladeshi, sections 42 and 43 of the Chapter VIII Arbitration Act 2001 lays down the rules in which applications can be lodged to set aside arbitral awards. Moreover, if the award contains some mistakes, the tribunal can correct an award by removing any clerical mistakes or errors under section 40 of the Arbitration Act 2001. This study was an attempt in the light of court rulings, article 33 and 34 of the UNCITRAL Model Law, 1985 and article 36 of the New York Convention, 1958 to critically examine section 40, 42 and 43 of the Arbitration Act 2001 of Bangladesh.

The Ratification of the New York Convention in Ethiopia: Towards Efficacy and Avoidance of Divergent Paths

Ethiopia’s ratification of the New York Convention for the recognition and enforcement of foreign arbitral awards and arbitration agreements is a welcome development. The Convention has been greatly facilitating cross-border mobility of arbitral awards and arbitration agreements in international commercial transactions. The entry into force of the New York Convention (as of 13 March 2020) and the enactment of the Arbitration and Conciliation Proclamation No.1237/2021 have ushered a relatively new era of modern arbitral regime in Ethiopia. In this regard, the necessary legal and formal infrastructure should be laid down for the proper implementation of the New York Convention. This article examines the ramifications of the three reservations registered by Ethiopia under the Convention; namely, the reciprocity, commercial and the non-retroactive application of the Convention. Furthermore, the multiplicity of enforcement regimes in the Ethiopian arbitral system related to these reservations are expounded. The formality requirements enunciated under the New York Convention are elaborated and the need for setting out the legal and institutional framework for contextualization thereof are dealt with. The possibility for award-creditors to resort to the more favourable local law or treaty other than the New York Convention and the recent trend of recognizing and enforcing arbitral awards, which are set aside or annulled in the place of arbitration are highlighted.

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.

A Study on the Determination of the Applicable Law in the UK when there is no Designation of the Applicable Law in the Arbitration Agreement

Purpose The purpose of this study aims to analyze the determination of the governing law in the UK when there is no designation of the governing law in the arbitration agreement in Enca v. Chubb. Design/Methodology/Approach In order to analyze Enca v. Chubb, this study adopts a literature analysis that analyzes various precedents on the determination of the governing law. Findings The UK Supreme Court determined the law governing the underlying contract by applying the closest connection test. Since there was no choice of law governing the contract, the law governing the arbitration agreement had to be determined by applying the closest connection test, and in that regard, London, as the seat of arbitration, was considered a close connection in that determination. Accordingly, English law was determined as the law governing the arbitration agreement, and although the UK Supreme Court adopted different reasoning, it upheld the anti-suit injunction passed by the UK Court of Appeal. Research Implications The Supreme Court’s decision provides much-needed clarification regarding the English legal approach to determining the governing law of an arbitration agreement. Although the majority ultimately upheld the Court of Appeal’s decision, it did so by a taking a different route and affirmed the choice-of-law approach previously set forth by authorities. The Supreme Court also displayed remarkable sensitivity to the provisions of the New York Convention, and demonstrated admirable receptivity to international authorities, with both the majority and dissents relying on an expansive range of international commentary and judicial decisions

4A_95/2021 del 17 giugno 2021 [Enforcement – Choice between New York Convention and Swiss-Belgian bilateral treaty on recognition and enforcement of arbitral awards

4A_95/2021 del 17 giugno 2021 [Enforcement – Choice between New York Convention and Swiss-Belgian bilateral treaty on recognition and enforcement of arbitral awards

인공지능에 기반한 중재의 가능성에 관한 소고

This article begins with the question of whether artificial intelligence(AI) can play the role of a judge in civil dispute resolution. Despite the remarkable performance of artificial intelligence, according to previous studies, legal analysis of artificial intelligence is still in its infancy, and it is questionable whether artificial intelligence will replace humans in complex civil trials that require judgment on factual and legal issues. However, it is expected that the use of artificial intelligence will be more useful than side effects in mediation procedures, one of the alternative dispute resolution(ADR). In addition, there are many positive views on the use of artificial intelligence in online dispute resolution(ODR). Then, what about arbitration? The composition of this article is as follows. First, the possibility of artificial intelligence arbitration is reviewed from a technical point of view. As for what artificial intelligence applications can be applied to arbitration, we look at artificial intelligence applications to assist arbitrators and artificial intelligence applications that can replace arbitrators. Second, in light of the characteristics of arbitration, the possibility of artificial intelligence arbitration is reviewed. As a characteristic of arbitration, the impartiality or independence of the arbitrator, arbitration as a dispute resolution procedure, and an arbitral award rendered by the arbitrator are examined. Third, the possibility of artificial intelligence-based arbitration in international arbitration is reviewed, focusing on the interpretation of the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration. In particular, we examine the possibility of recognition and enforcement of arbitral awards of artificial intelligence. In conclusion, in light of the purpose and functional characteristics of arbitration, arbitration refers to a dispute resolution procedure presided over by an independent and impartial third party that makes a final and binding decision, which can be carried out by an artificial intelligence application based on supervised learning without necessarily putting in people. However, so far, there is no artificial intelligence application that can make arbitration decisions entirely without human intervention. Nevertheless, considering the pace of technological development, artificial intelligence that makes autonomous decisions is expected to emerge at some point in the future and play the role of arbitration. Since arbitrators and arbitration procedures can be freely selected due to the procedural nature of respecting the autonomy of the parties, artificial intelligence-based arbitration is likely to be selected if the quality of arbitration by artificial intelligence arbitrators is not inferior to that by humans.

Recognition and Enforcement of Annulled Foreign Arbitral Awards in the Country of Origin under the 1958 New York Convention: the US and French Approaches

The recognition and enforcement of annulled foreign arbitral awards in the country of origin under the 1958 New York Convention is subject to doctrinal discussions. A relevant article of the1958 New York Convention become the subject matter of many cases in some large economies. These cases and doctrinal views are very important for other countries that did not host such a case before their national courts. Therefore, the purpose of this paper is to analyse the relevant article of the 1958 New York Convention and compare delocalization and territorial theories.

‘CONVERTING’ DIFC JUDGMENTS INTO ARBITRAL AWARDS: PRACTICE DIRECTION No. 2 OF 2015 AND ITS CONTROVERSIES

This paper examines the DIFC Practice Direction No.2 of 2015, which provides a possibility of judgment conversion into an arbitral award. In certain cases, this mechanism allows a judgment to become the basis of an arbitral award if parties agree to refer a 'judgment payment dispute' to arbitration. As a result, it would be possible to enforce an award rendered in this procedure under the New York Convention. In the beginning, a short overview is given of the organisation of the DIFC Courts and the Arbitration Center, their main features, and the enforcement of the DIFC judgments and arbitral awards abroad. Following is a detailed interpretation of Practice Direction No.2, the suggested arbitration clause and the referral criteria, their evolution, and the drafter's intention hidden in its wording. The last part deals with controversies in the use and the effect of Practice Direction No. 2, especially the negative effect of the elimination of the review of a judgment, the possibility of the arbitral tribunal to rehear the dispute, and the risk of double recovery. Notwithstanding the feasibility of the application of the New York Convention to enforce an arbitral award resulting from the use of the arbitral clause recommended in Practice Direction No. 2, the use of this mechanism would have an eliminating effect on the review of due process and public policy, which would normally be performed in a court exequatur.

The Singapore mediation convention: A version of the New York convention for mediation?

Settlement agreements have traditionally been enforced as binding contracts under national rules, a situation considered less than ideal for the promotion of mediation. Drawing on the experience of the 1958 New York Convention on international arbitration, the 2019 Singapore Mediation Convention provides for the enforcement of settlement agreements in international commercial disputes. Based on its provisions and the characteristics and procedures of mediation, this article discusses the impact of the Singapore Mediation Convention on the promotion of mediation and its acceptance by the international community. It is argued that the achievements of the New York Convention do not necessarily promise the same success for the Singapore Mediation Convention.

Problems of Proving the Electronic Arbitration Agreement in Applicable International Laws and Agreements

This research deals with the legal problems faced by the proof of the electronic arbitration agreement in the national laws. The research ended with important results, one of them is at the level of national legislation, that some national legislations require the use of public-key technology in order for the electronic arbitration agreement to have evidentiary value, and other legislations do not require the use of a specific technology. The study concluded that the best solution at the international level is to make amendments to the New York Convention.

I now pronounce you ‘null and void’: manner of determination and the applicable law under the New York Convention

Abstract The phrase ‘null and void, inoperative or incapable of being performed’ contained in Article II(3) of the New York Convention has attracted relatively little attention in the international arbitration community. It nonetheless retains the potential to have a significant impact on arbitration agreements. This article considers the meaning of ‘null and void’ and highlights the current varied understandings and applications of this term, before re-iterating support for an application of an internationally neutral understanding of the term. What this article seeks to ultimately achieve is to provoke further consideration of the terms ‘null and void’, with a view to ensuring greater clarity and uniformity in its understanding and application in the long term.

Enforcement of Arbitral Awards Against States - a Risk to Peaceful Relations?

The aim of this paper is to present and critically appraise the norms of international law relating to the enforcement of arbitral awards against States. It canvasses the main international instruments governing the recognition and enforcement of foreign arbitral awards (notably the New York Convention). It then elucidates the doctrine of sovereign immunity in customary international law – and an attempt to codify it – as a hurdle to enforcement of such awards in domestic courts. The analysis investigates whether the doctrine acts as a safeguard against jeopardizing peaceful relations between States while promoting international commerce, foreign direct investment and trade relations between State and foreign non-State actors. Diplomatic protection is examined as an alternative to international and national adjudication