Showing posts from 2018

Critically evaluate the incorporation into the New York Convention of the restriction that only the courts of the seat of an arbitration can annul an award. Are the policies of the Convention served by this limitation, and what would be the consequences if no such limitation existed?

Article V of the New York Convention states that one ground for an award not being recognised is that “ The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made”. Therefore, an annulment by a court not of the seat of arbitration would, under this ground, still be valid.  The aim of the New York Convention is to promote the enforcement of arbitration awards in different countries to where the arbitration award was made. This is necessary for international arbitration to work. I will now consider the aforementioned restriction in Article V in the light of this aim of the Convention. Positive aspects to the restriction: 1.      The role of foreign courts is to enforce not to annul: In order for international arbitration to work, foreign courts must uphold the arbitration awards made in other jurisdictions. If they didn’t then the arbitration award wo

Critically compare the doctrines of competence-competence adopted by American and French courts. Which is superior?

The principle of competence competence in arbitration law is the principle that arbitrators have power to rule on their own jurisdiction. It has a positive and a negative aspect; the positive aspect to the principle is that an arbitrator can proceed with an arbitration and rule on its own jurisdiction even if the validity of the arbitration agreement is challenged in court. The negative aspect is that the courts should not make a judgement regarding the arbitrators’ jurisdiction until the arbitrators have had the opportunity to do so. I will take the question of ‘which doctrine of competence competence is stronger?’ to mean ‘under which legal system does the arbitrator have the most power to rule on its own jurisdiction?’. USA: The doctrine of competence-competence is not mentioned in the US Federal Arbitration Act. It is a doctrine developed by the judiciary, and is intrinsically linked to the doctrine of separability, which is also a construct of the judiciary

Should arbitral awards annulled at the seat of the arbitration be enforced by the courts of other countries?

Article V of the New York Convention could be interpreted as stating that if an award has been annulled by the court of the seat of arbitration, then the courts of other countries must not recognise or enforce the award. This would then be in conflict with Article VII which states that courts must apply domestic law which is more favourable to enforcement of awards. The question is which one of these provisions is more desirable, and I will argue that very different lines of thought concerning enforcement of awards underlie them. Arguments in favour of enforcing an annulled award: Article VII: 1.      The Convention: One could argue that one argument in favour of enforcing is that Article VII requires it; however we know that the requirements of the New York Convention are problematic here, and I will be considering more substantive arguments in favour. 2.      Promotes enforcement: This results in more enforcement, which is the aim of the New Yor