Pursuant to the procedure envisaged by the New York Convention, a party seeking to recognize and enforce a foreign arbitral award shall translate the agreement to arbitrate and the arbitral award into an official language of the country where the enforcement is sought. By and large, such a requirement would not be difficult to interpret. At the same time, the obligation to produce a translation often involves additional (and potentially) high costs to the already expensive arbitration process. Moreover, providing a translation from the language that the parties chose may be considered overly formalistic and going against the pro-enforcement spirit of the New York Convention. This would be particularly so in cases where the enforcement judge’s language proficiency would be sufficient to evaluate the content of the award. This article discusses the consequences of failing to produce a translation, including complicating factors that arise when only the relevant part of the award has been translated by a party applying for recognition and enforcement under the New York Convention. New York Convention, translation requirement, pragmatism, translation costs, disbursement, enforcement of arbitral award, pro-enforcement bias
{"title":"Pragmatism Above All: The New York Convention Translation Requirement from the Dutch Perspective","authors":"Thomas Stouten, L.H.J. Baijer, P. Wilinski","doi":"10.54648/joia2022027","DOIUrl":"https://doi.org/10.54648/joia2022027","url":null,"abstract":"Pursuant to the procedure envisaged by the New York Convention, a party seeking to recognize and enforce a foreign arbitral award shall translate the agreement to arbitrate and the arbitral award into an official language of the country where the enforcement is sought.\u0000By and large, such a requirement would not be difficult to interpret. At the same time, the obligation to produce a translation often involves additional (and potentially) high costs to the already expensive arbitration process. Moreover, providing a translation from the language that the parties chose may be considered overly formalistic and going against the pro-enforcement spirit of the New York Convention. This would be particularly so in cases where the enforcement judge’s language proficiency would be sufficient to evaluate the content of the award.\u0000This article discusses the consequences of failing to produce a translation, including complicating factors that arise when only the relevant part of the award has been translated by a party applying for recognition and enforcement under the New York Convention.\u0000New York Convention, translation requirement, pragmatism, translation costs, disbursement, enforcement of arbitral award, pro-enforcement bias","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43220503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Gary Born’s article ‘The 1933 Directives on Arbitration of the German Reich: Echoes of the Past?’ fascinates for good and not so good reasons in almost equal measure. The author skillfully illuminated a rarely-discussed episode of arbitral legal history and aimed to apply its lessons to current debates surrounding investor-state dispute settlement (ISDS) reform. The overarching argument is that criticism and/or reform of investor-state arbitration is reckless and reminiscent of National Socialist efforts to curb private-public arbitration – risking undermining the rule of law and even allowing ‘history to repeat itself’. As much as the legal history part is a worthy contribution, this later part is laden with problematic claims and unfortunate parallels. The criticisms and potential (fairly limited) reforms of ISDS are portrayed as missteps towards a totalitarian abyss. Yet as much as investor-state arbitration can sometimes help promote the rule of law, it is not an indispensable ‘bulwark’ against state oppression. ISDS is a historically recent invention, with an even more recent case law. It deals with wide-reaching and objectively often controversial substantive rules, making reform proposals unsurprising. Crucially, even if investorstate arbitration disappeared completely, the history of Nazi horrors would not repeat itself. commercial arbitration, investor-state arbitration, history of arbitration, ISDS reform, Nazism
Gary Born的文章“1933年德意志帝国仲裁指令：过去的回声？”对好的和不太好的理由着迷的程度几乎相等。作者巧妙地阐述了仲裁法律史上一个很少被讨论的事件，并旨在将其教训应用于当前围绕投资者与国家争端解决（ISDS）改革的辩论。最重要的论点是，对投资者-国家仲裁的批评和/或改革是鲁莽的，让人想起国家社会主义者遏制私人-公共仲裁的努力——有可能破坏法治，甚至让“历史重演”。尽管法律史部分是一个有价值的贡献，但后面的部分充满了有问题的主张和不幸的相似之处。ISDS的批评和潜在的（相当有限的）改革被描绘成走向极权主义深渊的失误。然而，尽管投资者与国家的仲裁有时有助于促进法治，但它并不是对抗国家压迫的不可或缺的“堡垒”。ISDS是历史上最新的发明，其判例法更为新颖。它涉及广泛的、客观上经常有争议的实质性规则，使改革提案不足为奇。至关重要的是，即使投资者国家仲裁完全消失，纳粹恐怖的历史也不会重演。商业仲裁、投资者国家仲裁、仲裁历史、ISDS改革、纳粹主义
{"title":"ISDS and Nazis or History Without Context: A Reply to Gary Born","authors":"Velimir Živković","doi":"10.54648/joia2022025","DOIUrl":"https://doi.org/10.54648/joia2022025","url":null,"abstract":"Gary Born’s article ‘The 1933 Directives on Arbitration of the German Reich: Echoes of the Past?’ fascinates for good and not so good reasons in almost equal measure. The author skillfully illuminated a rarely-discussed episode of arbitral legal history and aimed to apply its lessons to current debates surrounding investor-state dispute settlement (ISDS) reform. The overarching argument is that criticism and/or reform of investor-state arbitration is reckless and reminiscent of National Socialist efforts to curb private-public arbitration – risking undermining the rule of law and even allowing ‘history to repeat itself’. As much as the legal history part is a worthy contribution, this later part is laden with problematic claims and unfortunate parallels. The criticisms and potential (fairly limited) reforms of ISDS are portrayed as missteps towards a totalitarian abyss. Yet as much as investor-state arbitration can sometimes help promote the rule of law, it is not an indispensable ‘bulwark’ against state oppression. ISDS is a historically recent invention, with an even more recent case law. It deals with wide-reaching and objectively often controversial substantive rules, making reform proposals unsurprising. Crucially, even if investorstate arbitration disappeared completely, the history of Nazi horrors would not repeat itself.\u0000commercial arbitration, investor-state arbitration, history of arbitration, ISDS reform, Nazism","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46009964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is based on a data set of over 1,000 judicial decisions in setting aside, recognition and enforcement proceedings. Although sometimes cited as one of the most common grounds for setting aside an award or refusing its recognition and enforcement, the invalidity of the arbitration agreement was raised in less than one-fifth of those decisions. It was confirmed in under one-third of those cases. This article examines which arguments for invalidity were more successful than others and how courts have determined the law applicable to the (in)validity of the arbitration agreement. Notably, less than half of the courts in this data set have engaged in a meaningful conflict of laws analysis. Where they have done so, there does not appear to be a consensus on how the law applicable to the arbitration agreement should be determined and what significance a choice of law clause in the main contract has in this regard. Arbitration agreement, arbitral awards, setting aside, recognition and enforcement, applicable law, invalidity, New York Convention, UNCITRAL Model Law on International Commercial Arbitration, empirical research
{"title":"Empirical Research on the Alleged Invalidity of Arbitration Agreements: Success Rates and Applicable Law in Setting Aside and Enforcement Proceedings","authors":"Maxi Scherer, O. Jensen","doi":"10.54648/joia2022014","DOIUrl":"https://doi.org/10.54648/joia2022014","url":null,"abstract":"This article is based on a data set of over 1,000 judicial decisions in setting aside, recognition and enforcement proceedings. Although sometimes cited as one of the most common grounds for setting aside an award or refusing its recognition and enforcement, the invalidity of the arbitration agreement was raised in less than one-fifth of those decisions. It was confirmed in under one-third of those cases. This article examines which arguments for invalidity were more successful than others and how courts have determined the law applicable to the (in)validity of the arbitration agreement. Notably, less than half of the courts in this data set have engaged in a meaningful conflict of laws analysis. Where they have done so, there does not appear to be a consensus on how the law applicable to the arbitration agreement should be determined and what significance a choice of law clause in the main contract has in this regard.\u0000Arbitration agreement, arbitral awards, setting aside, recognition and enforcement, applicable law, invalidity, New York Convention, UNCITRAL Model Law on International Commercial Arbitration, empirical research","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47059231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
R. Alford, C. Baltag, Matthew E.K. Hall, M. Sasson
The empirical research in this article relies on a data set including all national court decisions on recognition, enforcement and setting aside (vacatur) of international commercial arbitration awards available in the Kluwer database that were rendered from 1 January 2010 to 1 June 2020.Within the time parameters of this study, there were 504 vacatur actions and 553 offensive recognition and enforcement actions. Those decisions were rendered by national courts in 74 different jurisdictions. The research coded every argument raised by defendants challenging the recognition and enforcement of awards based on grounds set forth in Article V of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as well as every argument raised by claimants to challenge awards based on the grounds set forth in Article 34 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. In addition to these grounds, several others, outside the two instruments mentioned above, have been identified in the data set. The results of the research are presented in the article below. An overarching conclusion would be that courts overwhelmingly enforce foreign arbitration awards, in 73% of the cases in the data set, without significant variations between courts in various jurisdictions, and, respectively, overwhelmingly refuse to vacate arbitral awards, with courts vacating in only 23% of cases, again without significant variations between courts in various jurisdictions. arbitral award, national court, set aside, vacatur, recognition and enforcement, public policy, UNCITRAL, New York Convention, due process, arbitrationRoger
{"title":"Empirical Analysis of National Courts Vacatur and Enforcement of International Commercial Arbitration Awards","authors":"R. Alford, C. Baltag, Matthew E.K. Hall, M. Sasson","doi":"10.54648/joia2022013","DOIUrl":"https://doi.org/10.54648/joia2022013","url":null,"abstract":"The empirical research in this article relies on a data set including all national court decisions on recognition, enforcement and setting aside (vacatur) of international commercial arbitration awards available in the Kluwer database that were rendered from 1 January 2010 to 1 June 2020.Within the time parameters of this study, there were 504 vacatur actions and 553 offensive recognition and enforcement actions. Those decisions were rendered by national courts in 74 different jurisdictions. The research coded every argument raised by defendants challenging the recognition and enforcement of awards based on grounds set forth in Article V of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as well as every argument raised by claimants to challenge awards based on the grounds set forth in Article 34 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. In addition to these grounds, several others, outside the two instruments mentioned above, have been identified in the data set. The results of the research are presented in the article below. An overarching conclusion would be that courts overwhelmingly enforce foreign arbitration awards, in 73% of the cases in the data set, without significant variations between courts in various jurisdictions, and, respectively, overwhelmingly refuse to vacate arbitral awards, with courts vacating in only 23% of cases, again without significant variations between courts in various jurisdictions.\u0000arbitral award, national court, set aside, vacatur, recognition and enforcement, public policy, UNCITRAL, New York Convention, due process, arbitrationRoger","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47031284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Kluwer Research comprises over 1,000 cases in the period 2010-2020. These cases do not include challenges in particular, but include vacatur and enforcement actions. Out of a total of 504 vacatur cases, in approximately eighty cases arguments related to the composition of the arbitral authority have been made. As regards enforcement, out of a total of 589 enforcement actions, in sixty-one cases these arguments have been made. The effectiveness of arbitrators’ impartiality and independence is ensured by an ex ante positive obligation of transparency, i.e., the duty to disclose any circumstances that may give rise to independence and impartiality, and an ex post sanctioning mechanism, which enables the parties to challenge an arbitrator who doesn’t comply with those requirements. Disclosure allows parties to verify the arbitrators’ compliance with the requirements of independence and impartiality. The challenge, however, remains the necessary procedure to establish the lack of such requirements. In most countries, the test of the arbitrators’ impartiality and independence is based on the criterion of justifiable doubts. Raising arguments related to conflicts of interest after the award is rendered, either in vacatur or enforcement actions, is only successful in order to block the enforcement/vacating the award in very few instances. Thus, parties should timely raise all of their objections at an early stage, rather than after the award is rendered. impartiality, independence, arbitrators, challenge, conflict of interests, disclosure, duty to disclose, justifiable doubts, party-appointed arbitrator, standards
{"title":"Conflicts of Interests","authors":"C. Carrara","doi":"10.54648/joia2022017","DOIUrl":"https://doi.org/10.54648/joia2022017","url":null,"abstract":"The Kluwer Research comprises over 1,000 cases in the period 2010-2020. These cases do not include challenges in particular, but include vacatur and enforcement actions. Out of a total of 504 vacatur cases, in approximately eighty cases arguments related to the composition of the arbitral authority have been made. As regards enforcement, out of a total of 589 enforcement actions, in sixty-one cases these arguments have been made.\u0000The effectiveness of arbitrators’ impartiality and independence is ensured by an ex ante positive obligation of transparency, i.e., the duty to disclose any circumstances that may give rise to independence and impartiality, and an ex post sanctioning mechanism, which enables the parties to challenge an arbitrator who doesn’t comply with those requirements. Disclosure allows parties to verify the arbitrators’ compliance with the requirements of independence and impartiality. The challenge, however, remains the necessary procedure to establish the lack of such requirements. In most countries, the test of the arbitrators’ impartiality and independence is based on the criterion of justifiable doubts.\u0000Raising arguments related to conflicts of interest after the award is rendered, either in vacatur or enforcement actions, is only successful in order to block the enforcement/vacating the award in very few instances. Thus, parties should timely raise all of their objections at an early stage, rather than after the award is rendered.\u0000impartiality, independence, arbitrators, challenge, conflict of interests, disclosure, duty to disclose, justifiable doubts, party-appointed arbitrator, standards","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45870816","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article contributes to the debate on non-signatories by relying on the Kluwer Research project. In particular, through the raw data underlying the Kluwer Research, we have identified cases at the enforcement stage, in which courts had to decide whether, despite the apparent lack of consent, nonsignatories were correctly brought into arbitration proceedings. In our view, the analysis of those courts’ decisions is perhaps a reminder that when considering non-signatory issues, the relevant facts of the case are always what matters the most. Non-signatories’ involvement in the relationship underlying the dispute is essential, absent a clear expression of it in the contract.We believe that the results show the judicial solution to the arbitrator’s dilemma, that is, the due consideration of the circumstances of any case, disregarding the rigid application of any theories. international arbitration, non-signatories, consent, equitable theories, international law, enforcement, New York Convention, evidence, arbitration agreement, transnational principles
{"title":"The Judicial Solution to the Arbitrator’s Dilemma: Does the ‘Extension’ of the Arbitration Agreement to Non-Signatories Threaten the Enforcement of the Award?","authors":"L. Mistelis, G. Rao","doi":"10.54648/joia2022015","DOIUrl":"https://doi.org/10.54648/joia2022015","url":null,"abstract":"This article contributes to the debate on non-signatories by relying on the Kluwer Research project. In particular, through the raw data underlying the Kluwer Research, we have identified cases at the enforcement stage, in which courts had to decide whether, despite the apparent lack of consent, nonsignatories were correctly brought into arbitration proceedings. In our view, the analysis of those courts’ decisions is perhaps a reminder that when considering non-signatory issues, the relevant facts of the case are always what matters the most. Non-signatories’ involvement in the relationship underlying the dispute is essential, absent a clear expression of it in the contract.We believe that the results show the judicial solution to the arbitrator’s dilemma, that is, the due consideration of the circumstances of any case, disregarding the rigid application of any theories.\u0000international arbitration, non-signatories, consent, equitable theories, international law, enforcement, New York Convention, evidence, arbitration agreement, transnational principles","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47650996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The results of the Kluwer Research showed that, despite Paris being one of the most popular arbitration seats, French courts were the least likely to recognize and enforce an arbitral award, but also those with the highest number of vacated arbitral awards. The article analyses these results and offers some possible justifications for them. Concerning the enforcement and recognition procedures, the study only included reasoned decisions. The specificities of the French procedure however result in most of the decisions not being reasoned (the exequatur procedure is an ex parte procedure, only orders refusing the enforcement are reasoned) and the decision of the Court of Appeal dismissing an application to set aside an award (for awards rendered in France) has the effect of automatically enforcing the award. Therefore, analysing only reasoned decisions is not representative of the French courts’ approach. The article also analyses the grounds invoked by the claimants and their respective success rates, especially in comparison with other jurisdictions. Concerning the annulment procedures, France ranks as the country with the highest number of vacated awards. Indeed, while reviewing the number of annulment actions initiated in recent years before the Paris Court of Appeal, we concluded that the number of actions has doubled, with around 25% of successful annulment actions. As to the grounds for annulment relied upon by the claimants and their respective rates of success, the Kluwer Research revealed that the most relied upon grounds in France (authority not in accordance with the law and violation of public policy) were also the most successful ones. Offensive enforcement actions, exequatur, recognition, annulment, set-aside, France, Paris Court of Appeal, international public policy, empirical study, grounds for annulment
{"title":"Recognition or Enforcement and Annulment of Arbitral Awards in France: An Analysis of the Kluwer Research Results","authors":"I. Knoll-Tudor","doi":"10.54648/joia2022021","DOIUrl":"https://doi.org/10.54648/joia2022021","url":null,"abstract":"The results of the Kluwer Research showed that, despite Paris being one of the most popular arbitration seats, French courts were the least likely to recognize and enforce an arbitral award, but also those with the highest number of vacated arbitral awards. The article analyses these results and offers some possible justifications for them.\u0000Concerning the enforcement and recognition procedures, the study only included reasoned decisions. The specificities of the French procedure however result in most of the decisions not being reasoned (the exequatur procedure is an ex parte procedure, only orders refusing the enforcement are reasoned) and the decision of the Court of Appeal dismissing an application to set aside an award (for awards rendered in France) has the effect of automatically enforcing the award. Therefore, analysing only reasoned decisions is not representative of the French courts’ approach. The article also analyses the grounds invoked by the claimants and their respective success rates, especially in comparison with other jurisdictions.\u0000Concerning the annulment procedures, France ranks as the country with the highest number of vacated awards. Indeed, while reviewing the number of annulment actions initiated in recent years before the Paris Court of Appeal, we concluded that the number of actions has doubled, with around 25% of successful annulment actions.\u0000As to the grounds for annulment relied upon by the claimants and their respective rates of success, the Kluwer Research revealed that the most relied upon grounds in France (authority not in accordance with the law and violation of public policy) were also the most successful ones.\u0000Offensive enforcement actions, exequatur, recognition, annulment, set-aside, France, Paris Court of Appeal, international public policy, empirical study, grounds for annulment","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47029851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyses the decisions on public policy contained in the Kluwer Arbitration database. The database includes more than 1,000 cases. Objections based on public policy have been raised in 44% of recognition and enforcement proceedings and in 38% of setting aside proceedings. The success rate of these objections was low, 19% and 21%, respectively. This article discusses the decisions in which these objections were successful, distinguishing between the three International Law Association categories: (i)‘violation of fundamental principles, procedural public policy, or substantive public policy’; (ii) ‘loi de police’; and (iii) ‘violation of international obligations’ (though there were no successful objections in this category). The article concludes that the Kluwer Research confirms that public policy should only be applied in a limited set of circumstances, though it also features a few exceptions to the narrow construction of the concept of public policy. public policy, procedural public policy, substantive public policy, recognition and enforcement, vacatur, setting aside, violation international obligations, due process, loi de police
{"title":"Public Policy in International Commercial Arbitration","authors":"M. Sasson","doi":"10.54648/joia2022019","DOIUrl":"https://doi.org/10.54648/joia2022019","url":null,"abstract":"This article analyses the decisions on public policy contained in the Kluwer Arbitration database. The database includes more than 1,000 cases. Objections based on public policy have been raised in 44% of recognition and enforcement proceedings and in 38% of setting aside proceedings. The success rate of these objections was low, 19% and 21%, respectively. This article discusses the decisions in which these objections were successful, distinguishing between the three International Law Association categories: (i)‘violation of fundamental principles, procedural public policy, or substantive public policy’; (ii) ‘loi de police’; and (iii) ‘violation of international obligations’ (though there were no successful objections in this category). The article concludes that the Kluwer Research confirms that public policy should only be applied in a limited set of circumstances, though it also features a few exceptions to the narrow construction of the concept of public policy.\u0000public policy, procedural public policy, substantive public policy, recognition and enforcement, vacatur, setting aside, violation international obligations, due process, loi de police","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46208195","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
L. Shore, Vittoria De Benedetti, Mario de Nitto Personè
Fifty years ago, Frédéric Eisemann coined the expression ‘pathological clause’ to refer to arbitration clauses that substantially deviate from the essential requirements of a model clause. However, arbitration practitioners have not yet learned their lesson; the matter of pathology is far from being outdated. Arbitration clauses may be pathological if they do not provide for mandatory referrals to arbitration proceedings, or do not meet certain other requirements to provide for a workable arbitration procedure, or contain a reference to non-existing arbitral institutions and/or arbitral rules, or provide for a proceeding administered by an arbitral institution pursuant to different institutional rules. In most instances, the competent supervisory court (or the arbitral tribunal or institution dealing with a defective clause) seeks to cure these pathologies. Arbitral tribunals and national courts generally try to ascertain whether the parties’ real intention is to arbitrate, and, if that to arbitrate is apparent, to give effect to and enforce an otherwise invalid arbitration clause. In any case, parties should not blindly rely on tribunals’ and courts’ tendency to uphold such clauses; the only safe approach is to avoid pathology. pathological/pathology, arbitration clause, hybrid (arbitration clause), asymmetric (arbitration clause) effectiveness principle, validity, enforcement, vacatur contractual autonomy
{"title":"A Pathology (Yet) to Be Cured?","authors":"L. Shore, Vittoria De Benedetti, Mario de Nitto Personè","doi":"10.54648/joia2022016","DOIUrl":"https://doi.org/10.54648/joia2022016","url":null,"abstract":"Fifty years ago, Frédéric Eisemann coined the expression ‘pathological clause’ to refer to arbitration clauses that substantially deviate from the essential requirements of a model clause.\u0000However, arbitration practitioners have not yet learned their lesson; the matter of pathology is far from being outdated.\u0000Arbitration clauses may be pathological if they do not provide for mandatory referrals to arbitration proceedings, or do not meet certain other requirements to provide for a workable arbitration procedure, or contain a reference to non-existing arbitral institutions and/or arbitral rules, or provide for a proceeding administered by an arbitral institution pursuant to different institutional rules.\u0000In most instances, the competent supervisory court (or the arbitral tribunal or institution dealing with a defective clause) seeks to cure these pathologies. Arbitral tribunals and national courts generally try to ascertain whether the parties’ real intention is to arbitrate, and, if that to arbitrate is apparent, to give effect to and enforce an otherwise invalid arbitration clause.\u0000In any case, parties should not blindly rely on tribunals’ and courts’ tendency to uphold such clauses; the only safe approach is to avoid pathology.\u0000pathological/pathology, arbitration clause, hybrid (arbitration clause), asymmetric (arbitration clause) effectiveness principle, validity, enforcement, vacatur contractual autonomy","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45205842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The recognition and enforcement of arbitral awards which are set aside at the seat continues to be a ‘hot’ topic, triggered by the increasing number of cases in which the prevailing party in the arbitration attempts to enforce such award in various jurisdictions where the assets of the award debtor are located. Such jurisdictions may have different approaches to the application of Article V(1)(e) of theNew York Convention providing for the possibility that courts refuse recognition and enforcement of arbitral awards already set aside. Kluwer Research confirms, that, first, this ground under Article V(1)(e), while the most successfully argued ground under Article V of the New York Convention, is only upheld in 34% of the cases, and that, second, there are diverse approaches of the national courts in assessing such ground, ranging from deference to the courts of the seat of arbitration, to a truly delocalized, transnational approach to the recognition and enforcement of awards. set aside, recognition and enforcement of arbitral awards, arbitral awards, local standard annulment, international standard annulment, annulment, seat of arbitration, arbitration
{"title":"Article V(1)(e) of the New York Convention: To Enforce orNot to Enforce Set Aside Arbitral Awards?","authors":"C. Baltag","doi":"10.54648/joia2022018","DOIUrl":"https://doi.org/10.54648/joia2022018","url":null,"abstract":"The recognition and enforcement of arbitral awards which are set aside at the seat continues to be a ‘hot’ topic, triggered by the increasing number of cases in which the prevailing party in the arbitration attempts to enforce such award in various jurisdictions where the assets of the award debtor are located. Such jurisdictions may have different approaches to the application of Article V(1)(e) of theNew York Convention providing for the possibility that courts refuse recognition and enforcement of arbitral awards already set aside. Kluwer Research confirms, that, first, this ground under Article V(1)(e), while the most successfully argued ground under Article V of the New York Convention, is only upheld in 34% of the cases, and that, second, there are diverse approaches of the national courts in assessing such ground, ranging from deference to the courts of the seat of arbitration, to a truly delocalized, transnational approach to the recognition and enforcement of awards.\u0000set aside, recognition and enforcement of arbitral awards, arbitral awards, local standard annulment, international standard annulment, annulment, seat of arbitration, arbitration","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46235966","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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