The International Effectiveness of the Annulment of an Arbitral Award
The International Effectiveness of the Annulment of an Arbitral Award

Author: Hamid Gharavi

Publisher: Kluwer Law International B.V.

Published: 2002-03-14

Total Pages: 221

ISBN-13: 9041117172

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In international arbitration as practiced today, few issues are as controversial and hotly debated as the foreign enforcement of an arbitral award that has been annulled in its originating jurisdiction. As more and more jurisdictions challenge such annulments, the issue has inevitably attracted the intense scrutiny of practitioners and scholars. Now, in the first book written on the subject--and a major work unlikely to be superseded for quite some time--the international practitioner and scholar Dr. Hamid G. Gharavi provides a keen, in-depth analysis of the sources, legal and practical grounds, and possible solutions of the problem, particularly as it affects international business transactions in the global economy. Dr Gharavi analyzes the relevant provisions in all major international arbitration conventions, as well as national laws on the annulment and enforcement of arbitral awards in force in more than fifty different countries. Among the book's most notable features are the following: invaluable information on, and an in-depth analysis of, the travaux pr?paratoires of the New York Convention pertaining to the articulation of annulment/enforcement controls; the effects of the cultural, judicial, and legal diversity of states; and clear elucidation of the interests that often separate North from South in the practice of arbitration. With detailed attention to theoretical and practical perspectives--especially as they reveal the dangers to which the enforcement of annulled awards can subject international business operators-- Dr Gharavi arrives, after consideration of all interests, at a global resolution aiming to establish an effective and harmonious international legal framework for the control of awards in accordance with the nature and mission of arbitration.

Improving the Efficiency of Arbitration Agreements and Awards:40 Years of Application of the New York Convention
Improving the Efficiency of Arbitration Agreements and Awards:40 Years of Application of the New York Convention

Author: A. J. van den Berg

Publisher: Springer

Published: 1999-10-14

Total Pages: 764

ISBN-13:

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Preface --Opening Address --Welcoming Addresses --Keynote Addresses --Introduction --Arbitration Clauses: Achieving Effectiveness --Arbitration Procedure: Achieving Efficiency without Sacrificing Due Process --Arbitration Awards: Solving Problems of Enforcement --Plenary Session --Annex Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958 (not available on KluwerArbitration.com) --List of Oral Interventions --Tables.

Arbitration and Human Rights
Arbitration and Human Rights

Author: Toms Krūmiņš

Publisher: Springer Nature

Published: 2020-08-12

Total Pages: 334

ISBN-13: 3030542378

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This book presents a creative synthesis of two ostensibly disparate fields of law – arbitration and human rights. More specifically, it focuses on various legislative approaches to excluding the annulment of arbitral awards (setting-aside proceedings) at the seat of arbitration and evaluates the compatibility of such approaches with the European Convention on Human Rights (ECHR), in particular the right to a fair trial under Article 6(1). The book first assesses the applicability and impact of the ECHR, in particular Article 6(1), on international commercial arbitration. It then analyses a number of legislative approaches to excluding setting-aside proceedings, focusing on two synergetic phenomena – exclusion agreements and the total lack of setting-aside proceedings in national arbitration law. Lastly, the book investigates to what extent the lack of setting-aside proceedings in national arbitration law may lead to a violation of arbitrating parties’ right to a fair trial under Article 6(1), and puts forward certain de lege ferenda recommendations on how to best approach the regulation of setting-aside proceedings in national arbitration law from the standpoint of compliance with the ECHR.

Annulment and Court Intervention in International Commercial Arbitration
Annulment and Court Intervention in International Commercial Arbitration

Author: Loic E. Coutelier

Publisher:

Published: 2013

Total Pages: 0

ISBN-13:

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By choosing the arbitral forum, parties to a contract agree to have their disputes resolved by an independent third party rather than by national courts. However, national courts still play an essential role in modern international commercial arbitration by ensuring the smooth process and supplementing the parties' failures to agree on various procedural points. One area that remains highly contentious is the annulment of awards - i.e., the decision of the courts of the seat of arbitration to invalidate the arbitral award - and the effect of that decision on the enforcement of the same award by other courts. Despite arbitration's increased popularity, unforeseen issues have arisen and the enforcement of annulled awards has awaken old debates regarding the very nature of arbitration and the interplay with national Courts. Very few countries have had to make a decision regarding the enforcement of vacated awards: they all embraced the idea that under certain circumstances, annulled awards should be granted exequatur. Interestingly enough, these courts used different justifications for enforcing the award. Some will do so if the annulment decision violates principle of fairness and justice. Others argue that an award should be deemed enforceable unless it was set aside based on international standards of annulment. The most innovative and most advanced theory proclaims that annulment should not have effects abroad as awards are not part of the courts' system. As a result, the validity of the award should be left to the enforcing court only. This article looks at the different positions adopted by the countries party to the New York Convention, only to confirm that no transnational approach to the issue of the international effectiveness of annulment decisions exists under the Convention. Although a growing majority of authors concludes that the absence of consensus on the New York Convention's position vis-à-vis the enforcement of annulled awards warrants its revamping (if not its replacement), this article argues that such a drastic step is not necessary, especially if the Guide on the Convention currently being prepared by UNCITRAL provides for the dynamic interpretation that is needed.

The Review of International Arbitral Awards
The Review of International Arbitral Awards

Author: Emmanuel Gaillard

Publisher: Juris Publishing, Inc.

Published: 2010-12-01

Total Pages: 506

ISBN-13: 1933833335

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In intemational arbitration, as in any other system of adjudication, finality of the decision must be balanced against the need to ensure that justice has been administered fairly. Because finality is one of its essential features, international arbitration has reached an equilibrium which guarantees to the parties a decision that cannot be appealed, while allowing a review of arbitral awards on limited grounds. The review of international arbitral awards was the topic of the inaugural IAI forum, on the occasion of which 50 prominent academics, judges, arbitrators and practitioners active in the field of international arbitration convened in the legendary Clos de Vougeot, in the heart of Burgundy for a two-day retreat. The presentations were followed by extensive discussion, the transcript of which is included in the present volume. The International Arbitration Institute (IAI) was established in Paris with the purpose of promoting communication and exchanges on current international arbitration issues. It now includes over 600 members residing in 44 countries. For further detail, see www.iaiparis.com.

Recognition of Annulled Foreign Arbitral Awards
Recognition of Annulled Foreign Arbitral Awards

Author: Jaba Gvelebiani

Publisher: LAP Lambert Academic Publishing

Published: 2014-01

Total Pages: 84

ISBN-13: 9783659503153

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World-wide recognition and enforcement of foreign arbitral awards represent one of the most effective achievements of international community. Despite the general deference to arbitral awards on enforcement avenues of New York Convention member states, sovereign jurisdictional powers of the countries of origin of awards give raise the issue of international effectiveness of annulled foreign arbitral awards. The book analyzes general international legal framework established by New York, Geneva and Inter-American Conventions and the practice of United States and the Netherlands in treatment of vacated foreign arbitral awards. Research aims to identify the review criteria appropriate for courts in the named jurisdictions exercising discretionary power granted under Article 5.1(e) of New York Convention. Present work is a master thesis submitted to Central European University, International Business Law LLM program in March, 2013.

Recognition and Enforcement of Foreign Arbitral Awards
Recognition and Enforcement of Foreign Arbitral Awards

Author: George A. Bermann

Publisher: Springer

Published: 2017-07-17

Total Pages: 1096

ISBN-13: 3319509152

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This book examines how the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as The New York Convention, has been understood and applied in [insert number] jurisdictions, including virtually all that are leading international arbitration centers. It begins with a general report surveying and synthesizing national responses to a large number of critical issues in the Convention’s interpretation and application. It is followed by national reports, all of which are organized in accordance with a common questionnaire raising these critical issues. Following introductory remarks, each report addresses the following aspects of the Convention which include its basic implementation within the national legal system; enforcement by local courts of agreements to arbitrate (including grounds for withholding enforcement), recognition and enforcement of foreign awards by local courts under the Convention (including grounds for denying recognition and enforcement), and essential procedural issues in the courts’ conduct of recognition and enforcement. Each report concludes with an overall assessment of the Convention’s interpretation and application on national territory and recommendations, if any, for reform. The New York Convention was intended to enhance the workings of the international arbitral system, primarily by ensuring that arbitral awards are readily recognizable and enforceable in States other than the State in which they are rendered, subject of course to certain safeguards reflected by the Convention’s limited grounds for denying recognition or enforcement. It secondarily binds signatory states to enforce the arbitration agreements on the basis of which awards under the Convention will be rendered. Despite its exceptionally wide adoption and its broad coverage, the New York Convention depends for its efficacy on the conduct of national actors, and national courts in particular. Depending on the view of international law prevailing in a given State, the Convention may require statutory implementation at the national level. Beyond that, the Convention requires of national courts an apt understanding of the principles and policies that underlie the Convention’s various provisions. Through its in-depth coverage of the understandings of the Convention that prevail across national legal systems, the book gives practitioners and scholars a much-improved appreciation of the New York Convention “on the ground.”

Document Production in International Arbitration
Document Production in International Arbitration

Author: Reto Marghitola

Publisher: Kluwer Law International B.V.

Published: 2015-10-20

Total Pages: 338

ISBN-13: 9041166971

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Because document production can discover written evidence that would otherwise not be available, it is often the key to winning a case. However, document production proceedings can be a costly and time-consuming exercise, and arbitral awards in particular are often challenged on grounds that relate to document production orders. The task of balancing the conflicting interests of the parties in this context is a major responsibility of arbitral tribunals. This book's analysis focuses on whether there exist legal principles on which arbitrators should establish rules of document production in both civil law and common law countries, and shows how international arbitration is affected. The author examines the relevant discretion of arbitral tribunals under US, English, Swiss, German, and Austrian law, and under nine of the most important sets of institutional rules, including the ICC Rules, the LCIA Rules, and the Swiss Rules. The presentation mines case law and legal literature for concepts based on the common expectations of the parties, the legitimate expectations of a party, the duty to balance different procedural expectations of the parties, the presumed intent of the parties, the underlying hypothetical bargain, implied terms, and the arbitrators' discretion. Among the topics and issues investigated are the following: - procedural rules on document production versus procedural flexibility; - how arbitral tribunals can modify the IBA Rules on a case-by-case basis; - discretion granted by legislation in each country covered; - electronic document production; - how to deal with privilege and confidentiality objections; - how to formulate or answer document production requests; - effective sanctions in case of non-compliance with procedural orders of the arbitral tribunal; - what grounds for annulment and non-enforcement a losing party can raise in what countries. Perhaps the greatest benefit of the book is the inclusion of model clauses, commensurate with both civil law and common law expectations. The author explicates the advantages and inconveniences of each model clause, and clarifies the influence of each clause on the efficiency of the proceedings and the enforcement risk. For practitioners, the book not only gives counsel a thorough overview of possible arguments for and against document production, but also assists arbitrators find a way through the jungle of opinions on the interpretation of the IBA Rules. Legal academics will appreciate the author's deeply informed analysis and commentary and the book's contribution to increasing the predictability of arbitral decisions on document production and showing how issues in dispute can be narrowed by tailor-made rules, thus helping to raise the efficiency and reduce the costs of arbitral proceedings.