Role of the New York Convention on International Business Arbitration Assessment Answer

Introduction:

Conflict resolution refers to the relationship between national courts and international business arbitration which is considered to be crucial for resolving disputes between nations. A private, voluntary process for settling disagreements between parties involved in cross-border transactions is international business arbitration. Arbitration is another, important, and easy way provided to private individuals to resolve their disputes. [1]International arbitral award enforcement is greatly aided by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958.

The following are important features of how domestic courts and foreign business arbitration interact:

1. In more than 164 nations, the New York Convention acts as an blueprint for the acceptance and implementation of the awards rendered by the arbitator. Following the rendering of an award, the victorious party frequently looks to have it enforced in the places where the losing party has an vested interest. In this regards, domestic courts are essential because they decide whether to award recognition and enforcement.
2. The New York Convention lays out specific reasons why a judge cannot uphold an arbitral decision. These grounds include things like the parties' incompetence, the invalidity of an arbitration agreement, the non-compliance of serving legal notice to a party, and an award that covers subjects out of the purview of the arbitration agreement. With its emphasis on the finality and effectiveness of arbitral rulings, the Convention exhibits a pro-enforcement bias.[2]
3. In certain jurisdictions, parties may go before the domestic courts of the arbitration's seat to contest or attempt to have an arbitral result set aside. Through this procedure, parties can raise particular grounds—which differ depending on the jurisdiction—for annulment or set-aside. Nevertheless, there is usually a narrow list of reasons for setting aside verdicts under the New York Convention, and in absence of any specific universal method of appeal against arbitral awards.[3]
4. A large number of domestic courts acknowledge that arbitration is a useful tool for resolving disputes. Numerous legal systems have taken an anti-arbitration position, encouraging party autonomy and restricting the amount of court involvement in the arbitral process. This method is demonstrated by the notion of separability, which maintains that the arbitration agreement's legality is distinct in terms of the normal contract.[4]
5. Even when arbitration is selected as the preferred method of resolving disputes, parties may occasionally ask domestic courts for interim remedies or preliminary relief. Courts have the authority to impose such restrictions in order to protect assets or avoid irreversible harm and guarantee the scope and efficiency of arbitration proceedings.
6. In cases where there are question with regard to the inception or legality of the agreement to solve disputes through arbitration, domestic courts may also have an influence on the tribunals jurisdiction. Although the tribunal's capacity to pass orders within in its own jurisdiction is recognised by the competence-competence concept, domestic courts may occasionally be involved in resolving jurisdictional disputes. Domestic courts have the power to examine the evidences, [5]witness so produced as per the IBA Rules however, there courts lacks the power to issue summons. [6]

Overall, the interaction between domestic courts and international commercial arbitration is a delicate balance between supporting the autonomy and efficiency of arbitration while providing necessary safeguards for the parties involved. The New York Convention serves as a laying and guiding principle in achieving this balance through establishment of a harmonized framework for the recognition and enforcement of awards passed by an arbitration all over the world.[7]

What does the Term Recognition and Enforcement of Foreign Arbitral Awards Means?

"Recognition and Enforcement of Foreign Arbitral Awards" describes legal procedure that an arbitral tribunal in many nation other than one where enforcement is sought uses to formally recognise and confer legal effect on a foreign arbitral award. International agreements like the 1958 New York Convention on the Recognition and Enforcement of international awards passed by the Arbitrator and national courts from various nations aid in this process. Many regional/domestic laws have also been formulated to recognise and enforce the international awards passed by the Arbitrator.[8] Here's a summary of the essential elements:

1. Recognition is the official admission to validate and enforce the arbitral ruling by the legal or other authorities of a nation. An international awards passed by the Arbitrator must firstly should accepted as a lawful and valid ruling by the appropriate authorities in order to be executed in that jurisdiction. By being recognised, the award is guaranteed to have the similar legal weight as an award passed by a domestic court.[9]

2. The process by which the authorities of a certain jurisdiction provide the authority of execution to a recognised international arbitral ruling is known as enforcement. It gives the victorious party the right to pursue remedies, like asset seizures or other actions to cover the granted sum. Although enforcement forces the losing party to abide by the conditions of the award, recognition establishes the legitimacy of the award and gives the prevailing party the tools to truly reap its benefits.[10]
3. During international arbitration processes, arbitral tribunals render different rulings known as foreign awards. "Foreign" refers to the international territory under whose jurisdiction the arbitral award is passed. In jurisdiction where enforcement is sought, an award rendered in a different country is regarded as foreign.
4. One important international treaty that offers a generally recognised framework for the acceptance and implementation of judgements passed by arbitrators of different nation is the New York Convention. The Convention creates a uniform and expedited procedure for member governments to enforce arbitral rulings. It encourages a bias in favour of enforcement by laying forth specific grounds for refusing enforcement.[11]
5. The limited grounds listed in Article V of the New York Convention are the grounds for refusal which gives power to a nation to decline to recognise or enforce a foreign arbitral ruling. Some of these grounds are the incompetence of the parties, the invalidity of an arbitration agreement, improper notice, or if the verdict covers subjects beyond the purview of the arbitration agreement.

In conclusion, the process of recognising and enforcing foreign arbitral awards entails first getting formal validation of the award's legitimacy in a jurisdiction other than the one in which it was made, and then employing legal procedures to guarantee that the conditions of the award are followed. The efficiency of international awards depends on this procedure, which gives parties assurance that their arbitration agreements will be upheld everywhere.[12]

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, sometimes known as the New York Convention is an important convention or guiding principle in international law and arbitration. It became operative on June 7, 1959, having been adopted on June 10, 1958. The objective of the Convention is to increase the use of alternative method to resolve dispute i.e, arbitration as a means of settling international business conflicts by making it way easy for international arbitral awards to be recognised, implemented, and considered all over the world.[13]

The New York Convention's Main Attributes and Tenets are as Follows:

1. The main aim of the convention is to make it easy for international arbitral rulings to be recognised and enforced inside the borders of its member states. For parties engaged in cross-border transactions, the Convention creates a procedure for the recognition and implementation of arbitral rulings mutually by the consent of the parties, lowering the possibility of double litigation and offering some degree of assurance.
2. The New York Convention is biassed in favour of arbitration. Its wording and guiding ideas place a strong emphasis on maintaining the finality of arbitral rulings and limiting the ability of national courts to review or otherwise influence the content of arbitration procedures.
3. A court may only reject an arbitral decision for a restricted set of reasons, as laid down in Article V of the Convention. These include things like the parties' incompetence, the arbitration agreement's invalidity, improper notice, and whether the award covers subjects outside the purview of the agreement. Courts are typically not allowed to consider the case's merits, and the justifications are fully listed.[14]
4. New York Convention upholds the awards passed by any tribunal on arbitration matters based solely on its own jurisdiction by recognising the competence-competence concept. In the event that a party contests the existence or legality of the arbitration agreement, the court must refer the case to the arbitral tribunal unless it determines that the agreement is invalid, unenforceable, or not possible to be carried out.[15]
5. One of the most extensively embraced and approved agreements in the field of international dispute settlement is the New York Convention. More than 160 nations are parties to the Convention as of January 2022, when I last updated my understanding of it. This widespread acceptance adds to the framework's efficacy and international applicability.
6. Convention creates a uniform and streamlined process for arbitral verdicts to be enforced amongst member states. Once acknowledged, an award may be enforced similarly to a domestic judgement, with the few grounds for refusal listed in Article V serving as restrictions.
7. The New York Convention creates climate that is conducive to international trade and investment by encouraging the implementation of arbitral rulings. Companies can feel secure knowing that their arbitration agreements will be upheld and that the rulings made will have international enforcement.

The New York Convention, which offers a consistent and effective framework for the enforcement of arbitral rulings worldwide, has made a substantial contribution to the expansion and advancement of international arbitration. Because arbitration is a commonly recognised international instrument, parties frequently select it as a method of resolving disputes in cross-border transactions.[16]

Article V of the New York Convention

Any member country may decline to recognise and implement a foreign arbitral ruling for a limited number of reasons, as stated in Article V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. A court in a member state cannot deny recognition or enforcement for any other reason not listed in Article V as these grounds are exclusive. With its emphasis on the finality and effectiveness of arbitral rulings, the Convention exhibits a pro-enforcement bias. The grounds for rejection as laid down under Article V are as follows:

1. Article V(1)(a): If any of the contracting party to the arbitration was not capable as per the law to make such an agreement, or if the agreement is not valid under the legislation on which the parties have raised objection to, or in the non-presence of any indication to the contrary, under the law of the nation where the award was rendered, recognition and enforcement may be refused.
2. Article V(1)(b): If the arbitration agreement is not valid under the laws of the nation where the award was rendered, or under the law of the jurisdiction to which the parties have submitted it in the absence of any indication to the contrary, recognition and enforcement may be refused. [17]
3. Article V(1)(b): Refusal of recognition and enforcement may occur if the party seeking enforcement of the award was not properly informed of the arbitrator's appointment or the arbitration process, or if they were unable to adequately state their case.[18]
4. Article V(1)(c): If the arbitral award covers a dispute that was not anticipated by the parties or does not fall under the terms of the arbitration agreement, or if it contains rulings on subjects outside the purview of the arbitration agreement, recognition and enforcement may be denied[19].
5. Article V(1)(d): Refusal of recognition and enforcement may occur if the parties' agreement, or the laws of the nation in which the arbitration was conducted, were not followed in the establishment of the arbitral authority or the arbitral process.[20]
6. Article V(1)(e): If the award has not yet been ratified by the parties or has been suspended or annulled by a competent authority operating under the laws of the nation where the arbitration was held, recognition and enforcement may be denied.[21]
7. Article V(2): If the enforcement of the award would be against the public policy of the nation where recognition and enforcement are sought, then recognition and enforcement may be denied.[22]

The statement “The ability of domestic courts to review international commercial arbitration awards during the process of recognition and enforcement under the New York Convention unduly interferes with the jurisdiction of the arbitral tribunal and the autonomy of parties” raised a significant issue regarding interaction of domestic courts with international arbitration. This statement can be analysed from three following dimensions:

The ability of Domestic Courts to Review Arbitral Awards:

Particularly in the case of international arbitration, the pro-arbitration position and the finality principle often restrict the authority of domestic courts to examine arbitration verdicts. Judges are supposed to step in only in certain, restricted situations, like those listed in Article V of the New York Convention. Examples of case law and explanations of this principle are provided below:

1. A de novo Review (starting from scratch) review of the merits of an arbitration ruling is not permitted by domestic courts. Upholding the finality of arbitral rulings and preventing the benefits of arbitration as a dispute settlement process are the justifications. The Supreme court highlighted in the 2007 U.S. decision of TermoRio S.A. E.S.P. v. Electranta S.P. that the review of arbitral verdicts should not be a comprehensive reexamination of the merits. According to the court, a deferential approach is appropriate and judges shouldn't replace the arbitrators' decision-making with their own.[23]
2. The New York Convention discourages in-depth judicial review of arbitral rulings and encourages a pro-enforcement slant. It is customary for courts to assist in the execution of awards instead than reassessing the merits of the initial disagreement. The court underlined the limited scope of review in enforcement proceedings in the English case of Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan (2010), and declared that the court is not empowered to hold a full rehearing of the case.
3. A few jurisdictions allow for the limited revocation of arbitral verdicts on reasons that are generally more restrictive than those that allow for the denial of enforcement under the New York Convention. Just like US continuous refusal to review arbitral awards.[24] In general, courts avoid discussing the case's merits. The Swiss Federal Tribunal ruled in X v. Y (2006) that a court examining an arbitral judgement under Swiss law ought to concentrate on procedural errors rather than reevaluating the main points of contention.[25]
4. An arbitral tribunal is empowered to make decisions within its own jurisdiction by virtue of the competence-competence concept. In general, courts ought to abide by the tribunal's decision about its jurisdiction. The French Court of Cassation concluded in the 2004 case of Société AZUR On Line v. Société Intereven that when a disagreement emerged over the existence or legality of the arbitration agreement, the court was obligated by the competence-competence principle to send the parties to arbitration.[26]
5. Even in cases where arbitrators have erred in law or fact, courts frequently uphold arbitral rulings. The award's finality is emphasised, and courts are not permitted to become involved merely because they don't agree with the arbitrators' conclusions. The court made it clear in the 1996 U.S. case of Westerbeke Corp. v. Daihatsu Motor Co. that an arbitral result cannot be overturned just because the arbitrator made mistakes in law or fact.[27]

In conclusion, the concepts of finality, little judicial scrutiny, and a pro-enforcement extended typically limit the power of domestic courts to examine arbitration verdicts. The significance of maintaining arbitral awards and honouring the parties' decision to choose arbitration as a dispute resolution procedure is highlighted by case law from a number of nations. Usually, courts only become involved in restricted situations in order to preserve the arbitrator's efficacy and efficiency.

Undue Interference with the Jurisdiction of the Arbitral Tribunal

"Undue interference with the jurisdiction of the arbitral tribunal" describes circumstances in which domestic courts improperly cross boundaries and encroach on matters that, in the context of international commercial arbitration, are the exclusive domain of the arbitral tribunal. [28]The efficiency and finality that parties desire in arbitration may be jeopardised by this intervention, which may also threaten the arbitral process's independence. The following explains this idea and provides instances from case law:

1. In the international commercial arbitration, the arbitral tribunal's autonomy is a key tenet. The effectiveness, adaptability, and chance for an impartial, knowledgeable tribunal to settle disputes are the main reasons why parties choose arbitration. In the English court's 2010 decision in Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan, it was stressed how crucial it is to honour the parties' choice of arbitration and restrict the court's intervention. The tribunal should have the last say on its jurisdiction, the court ruled, not the court.[29]

2. An arbitral tribunal may rule on matters within its own jurisdiction, such as disputes regarding the existence or legality of the arbitration agreement, under the competence-competence concept. The European Court of Justice affirmed the competence-competence principle in the 2007 case of West Tankers Inc. v. RAS Riunione Adriatica di Sicurta SpA. The court concluded that national courts are required to honour arbitration agreements and send parties to arbitration even when there are doubts about the legality of the underlying contract.[30]
3. In order to prevent undue interference with the arbitral tribunal's authority, courts are normally expected to use caution and limit the amount of jurisdictional concerns they evaluate[31]. The U.S. Supreme Court stressed in the 1995 case of First Options of Chicago, Inc. v. Kaplan that courts should only evaluate jurisdictional issues in restricted circumstances and that the arbitral tribunal's decision to determine its own jurisdiction should always be allowed to stand. The main point of contention in the case concerned the criteria for choosing arbitrators or courts to resolve issues of arbitrability.

According to the Supreme Court, whether there is "clear and unmistakable evidence" that the parties intended for the arbitrator to determine a particular question is the test for deciding whether it is arbitrable. The Court stressed that courts should honour the arbitrator's decision if there is convincing evidence that the parties intended for the arbitrator to resolve disputes about arbitrability. The ruling upheld the federal policy in favour of arbitration, emphasising the assumption that any ambiguities regarding the range of matters that might be arbitrated need to be settled in favour of arbitration[32]. The decision in First Options of Chicago, Inc. v. Kaplan significantly altered how courts and arbitrators delegated authority when resolving arbitrability issues. The ruling set a precedent that calls for unequivocal and convincing proof of the parties' intention to assign arbitrability issues to a third party. The case made it clear how crucial it is for the parties to agree on who will have the last say in deciding whether a dispute is arbitrable. The court should follow the parties' agreement if there is convincing evidence that they meant for an arbitrator to decide arbitrability disputes.[33]

4. An arbitration agreement is separate and separable from the underlying contract according to the principle of separability. The arbitration agreement should be unaffected by disputes on the legality of the arrangement. In Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967), the U.S. Supreme Court upheld the separability of arbitration agreements and concluded that, provided the arbitration agreement is legitimate, challenges to the contract's overall validity should not bar arbitration. The case deals with the issue of whether a contract's arbitration clause can be separated from the remainder of the agreement. To put it another way, can the arbitration clause itself be subject to objections to the contract's general validity? The separability theory was upheld by the Supreme Court in a majority ruling. It was decided that arbitration agreements should be viewed differently from other contract provisions. The Court decided that an argument that the contract is unenforceable in its entirety does not automatically render the agreement to arbitrate void under the separability concept. The arbitrator will make the determination about the validity of the contract. The Federal Arbitration Act's (FAA) policy in favour of arbitration was upheld by the ruling. The Court underlined the necessity of upholding arbitration agreements in accordance with their text as well as the federal policy that supports them. The validity of arbitration agreements was significantly impacted by the Prima Paint ruling. It made clear that an arbitration clause in a contract would not be immediately void in the event of objections to the contract's general legality, such as allegations of fraud in the inducement. Rather, the arbitrator would rule on the legitimacy of the contract. The decision was pivotal in establishing the separability principle, shaping contemporary arbitration law, and bolstering the Federal Arbitration Act's pro-arbitration stance.[34]
5. In general, courts are not allowed to refuse an arbitral award's enforcement on the grounds of the case's merits. The impression that arbitral awards are supposed to be final and binding is strengthened by this limitation. The Supreme Court of the United States ruled in Buckeye Check Cashing, Inc. v. Cardegna (2006) that discharging an arbitration agreement should not be predicated on a challenge to the contract's overall legality. In this case, the question of whether a court or arbitrator should decide whether an arbitration clause is enforceable in the event that the contract containing the arbitration agreement is also deemed to be void or unconscionable is raised. The FAA states that an arbitration clause is "severable" from the remainder of the contract, the Supreme Court said. This implies that the arbitration clause itself is not always rendered void in the event that the contract as a whole is contested. The FAA's strong federal policy supporting arbitration agreements was highlighted by the Court. It declared that the arbitration agreement must be upheld in accordance with its terms unless the dispute relates specifically to the arbitration clause. The Court dismissed the claim that the purported unconscionability of the arbitration agreement rendered the entire agreement invalid.[35]

In conclusion, when domestic courts get involved in cases that fall within the arbitral tribunal's lawful purview, there is a risk of undue interference with the tribunal's authority. In accordance with the parties' agreement and the tenets of international commercial arbitration, the aforementioned principles and case law highlight the significance of maintaining the arbitral process' independence and empowering tribunals to determine their own jurisdictional concerns.

Autonomy of Parties

In the context of international commercial arbitration, the autonomy of parties refers to the idea that parties are free to determine how the arbitration will be conducted[36], including the arbitrators to be chosen, the rules that will be followed, the language used in the proceedings, and the substantive law that will govern the dispute. [37]For international arbitration to be flexible and effective, this principle is essential. Let's investigate this idea using the following case study:

Chromalloy Aeroservices v. Arab Republic of Egypt (ICSID Case No. ARB/04/20)

The International Centre for Settlement of Investment Disputes (ICSID) arbitrated a dispute between Chromalloy Aeroservices and the Arab Republic of Egypt in the case of Chromalloy Aeroservices v. Arab Republic of Egypt. In the context of international arbitration, the case serves as an example of the parties' autonomy, especially with regard to the selection of arbitrators.

Important Elements of the Case:

1. According to the terms of the arbitration agreement, each party might designate one arbitrator, and the two arbitrators would then choose a third arbitrator to serve as the presiding arbitrator. This system allows each party to actively influence the arbitral tribunal's makeup, which is an example of party autonomy.[38]

2. The freedom that arbitration affords parties in customising procedures to their particular needs was demonstrated by the parties' ability to negotiate and reach an agreement on their preferred manner of selecting arbitrators.
3. Regarding the substantive law controlling the issue, the parties were free to reach an agreement. Their independence gave them the ability to select the legal system they thought would best address their particular problems.[39]
4. The tribunal was established in the Chromalloy Aeroservices v. Arab Republic of Egypt case using the prearranged procedure for arbitrator selection. This result emphasises how important party autonomy is in determining how the arbitration is shaped, from choosing the arbitrators to deciding which law would apply.

Relevance of the Case:

The case serves as a reminder that parties to international arbitration enjoy significant liberty in designing their own dispute settlement procedures. Arbitration is a more appealing option for settling international commercial disputes when it allows for the customisation of arbitration procedures based on mutual consent[40]. This independence enables parties to pick arbitrators who are knowledgeable about the relevant field, customise the legal process to suit the intricacy of the disagreement, and select a framework that satisfies their expectations. The case of Chromalloy Aeroservices v. Arab Republic of Egypt, in essence, highlights the liberty of parties in international commercial arbitration by highlighting their ability to customise a dispute resolution procedure that suits their individual requirements and inclinations[41].

Gary Born is well-known for his extensive work, "International Commercial Arbitration," which is regarded as a preeminent source in the area. Born addresses a number of topics related to international arbitration in this work, including the function of national courts.[42] Born usually supports domestic courts taking a cautious approach. He contends that the finality of verdicts and the parties' capacity for impartial and effective dispute resolution are essential to the success of international arbitration. Born is renowned for highlighting the necessity of restricting the reasons for denial of enforcement in order to preserve the New York Convention's pro-arbitration stance.[43] Born may voice worries about overbearing judicial interference that could compromise the benefits of arbitration, such as de novo review or re-examination of an arbitral award's grounds.[44]

Another Renowned academician and arbitrator Julian Lew has written for a number of publications on international arbitration. Co-authored "Arbitration in England" with Loukas Mistelis is one noteworthy piece. Lew frequently emphasises in his essays how crucial it is to protect the arbitral process' independence. He might contend that the only areas in which domestic courts should become involved are in defending basic justice and due process. Lew probably stresses that although courts have a role to play in promoting arbitration, that support should not be allowed to morph into unjustified meddling that undermines the advantages of arbitration. [45]Lew talk about the fine line that must be drawn to guarantee that domestic courts support arbitral tribunals without unnecessarily interfering with their authority or the parties' right to autonomy. [46]He can also emphasise how important it is for judges to uphold awards in order to preserve the integrity of the arbitration procedure.[47]

Conclusion:

In summary, a nuanced debate within the field of international arbitration is reflected in the statement that "The ability of domestic courts to review international commercial arbitration awards during the process of recognition and enforcement under the New York Convention unduly interferes with the jurisdiction of the arbitral tribunal and the autonomy of parties."[48] Concerns have been raised about the scope of domestic court scrutiny and its possible effects on the autonomy of parties and the jurisdiction of arbitral tribunals, notwithstanding the New York Convention's efforts to expedite and facilitate the recognition and enforcement of arbitral awards worldwide.[49] The core tenets of international business arbitration are the competence-competence doctrine and party autonomy. Parties are free to select arbitration as their preferred method of resolving disputes, and arbitral tribunals are empowered to decide their own jurisdiction under the competence-competence concept. The efficiency and finality that parties want in arbitration could be compromised by excessive review by domestic courts during the recognition and enforcement process, undermining these goals. A deferential approach, which avoids a de novo examination of the merits, is advocated by case law such as TermoRio S.A. E.S.P. v. Electranta S.P. (2007) and Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan (2010), which highlights the limited role of domestic courts in reviewing arbitral awards. These rulings highlight the necessity of upholding the arbitral tribunals' independence and maintaining the finality of their rulings. Scholarly publications, such as those by Gary Born and Julian Lew, bolster the claim that domestic courts should interfere with international arbitration as little as possible in order for it to be successful. Academics argue that the New York Convention fosters a pro-enforcement bias and upholds the arbitral process's autonomy by limiting the reasons for refusal of enforcement under Article V. A careful balance must be found to prevent excessive intervention, even while some degree of judicial examination is required to guarantee due process and justice. This balance is achieved by the New York Convention, which lays out precise and constrained reasons for rejection. Courts around the world are typically required to follow these grounds without revisiting the merits. In conclusion, there is a complicated conflict in the context of international commercial arbitration between the authority of domestic courts to assess cases and the independence of parties and arbitral tribunals. The New York Convention aims to resolve this conflict by offering a structure that makes enforcement easier while upholding the ideas of party autonomy and the competence-competence doctrine. It is backed by case law and scholarly research. Maintaining a cordial relationship between local courts and international arbitration while upholding the benefits and values that parties anticipate when selecting arbitration as their preferred form of dispute resolution is still a challenge.[50]

[1] The semi-formalized nature of modern arbitration makes it therefore plausible to perceive of arbitration as “private litigation” as against the court process of public litigation. The Queen Mary International Arbitration surveys have consistently shown that commercial parties prefer arbitration. In their 2006 survey, 76 per cent of the respondents preferred arbitration. In 2008, 88 per cent of the respondents have used arbitration. In 2013, most respondents (52 per cent ) still prefer arbitration while in 2015, 90 per cent of respondents still prefer to use arbitration. The Queen Mary University of London International Arbitration Surveys are all available online at: (last accessed 25 December 2023).

[2] See for example Susan FRANCK, “The Role of International Arbitrators” (2006) p. 1 available at: (last accessed 25 December 2023).

[3] For some commentaries on the delocalization and transnational theories, see, Jan PAULSSON, “Arbitration Unbound: Award Detached from the Law of the Country of its Origin”, ICLQ (1981) pp. 358- 387; Hong-Lin YU, “Explore the Void: An Evaluation of Arbitration Theories, Part 2”, 8 Intl ALR (2005, no. 1) pp. 14-22; Julian LEW, “Achieving the Dream: Autonomous Arbitration”, 22 Arbitration International (2006, no. 2) pp. 178-203; Ahmed MASSOUD, “The Influence of the Delocalisation and Seat Theories Upon Judicial Attitudes Towards International Commercial Arbitration”, 77 Arbitration (2011, no. 4) pp. 406-422; Jonathan MANCE, “Arbitration: A Law unto Itself?”, 32 Arbitration International (2016, no. 2) pp. 223-241; and Emmanuel GAILLARD, Legal Theory of International Arbitration (Martinus Nijhoff Publishers 2010).

[4] ASA BULL. 640, 652 (2005) (arguing that injunctions imposed by domestic courts potentially interfere with international legal regimes by implying domestic skepticism towards the foreign legal scheme and its ability to undertake a treaty in good faith).

[5] See LEW ET AL., supra note 30, at 369-70 (noting the lack of coercive power held by arbitration tribunals and the need to use courts in the compelling of witnesses and evidence).

[6] For the IBA Rules on the Taking of Evidence in International Arbitration 2010 and Commentary, see: (last accessed 26 December 2023).

[7] Giulia Carbone, Interference of the Court of the Seat with International Arbitration, The Symposium, 2012 J. Disp. Resol. (2012) Available at: https://scholarship.law.missouri.edu/jdr/vol2012/iss1/9

[8] Kronke, H., Nacimiento, P., Otto, D. and Port, N.C., Recognition and Enforcement of Foreign Arbitral Awards – A Global Commentary on the New York Convention, Kluwer Law International, 2010.

[9] Gaillard, E. and Di Pietro, D., Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice, Gaillard, E. and Di Pietro, D. (eds.), Cameron May, 2008.

[10] Gaillard, E. and Siino, B., Enforcement under the New York Convention in The Guide to Challenging and Enforcing Arbitration Awards, Global Arbitration Review, 2019, pp. 86-99.

[11] Nishith Desai Associates, Enforceability of arbitral awards and decrees in India , Nishith Desai Associates(2019),http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Enforcement_of_Arbitral_Awards.pdf. last accessed on 26 December 2023.

[12] Szászy, István. “Recognition and Enforcement of Foreign Arbitral Awards.” The American Journal of Comparative Law, vol. 14, no. 4, 1965, pp. 658–72. JSTOR, https://doi.org/10.2307/838915. Accessed 2 Jan. 2024.

[13] SANDERS, PIETER. “A Twenty Years’ Review of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.” The International Lawyer, vol. 13, no. 2, 1979, pp. 269–87. JSTOR, http://www.jstor.org/stable/40705960. last Accessed 4 Jan. 2024.

[14] Clifford J. Hendel and María Antonia Pérez Nogales (2019). Enforcement of Annulled Awards: Differences Between Jurisdictions and Recent Interpretations', in Katia Fach Gomez and Ana M. Lopez-Rodriguez (eds), 60 Years of the New York Convention: Key Issues and Future Challenges, Kluwer Law International, p. 194

[15] Article 16 (1)

[16] Bermann, George A., "Recognition and Enforcement of Foreign Arbitral Awards: The Interpretation and Application of the New York Convention by National Courts" (2017). Faculty Books. 46.
https://scholarship.law.columbia.edu/books/46

[17]Parsons & Whittemore Overseas Co. v. RAKTA, 508 F.2d 969 (2d Cir. 1974), [19761 1 Y.B. COM. ARB. 205 (International Council for Commercial Arbitration).

[18] See for example Art. V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention). Text and status of the New York Convention is available at: (last accessed 25 December 2023).

[19] Imperial Ethiopian Gov't v. Baruch-Foster Corp., 535 F.2d 334 (5th Cir. 1976), extracted in [1977] 2 Y.B. COM. ARE. 252 (International Council for Commercial Arbitration). "Judgment of Feb. 12, 1976, Bundesgerischtshof, W. Ger., extracted in [19771 2 Y.B. COM. ARE. 242-43 (International Council for Commercial Arbitration).

[20] Judgment of Jan. 31, 1969, Court of Appeal, Venice, extracted in [1978] 3 Y.B. Com. ARB. 277-79 (International Council for Commercial Arbitration), granted enforcement of an arbitral award made in London by a party-appointed arbitrator, acting as sole arbitrator where the other party failed to appoint its arbitrator. This was in accordance with the law of the place of arbitration. See English Arbitration Act, 1950, 14 Geo. 6, ch. 27, § 7 at 444 (1950).

[21] For the same interpretation, see Judgment of June 8, 1967, Landgericht, Bremen, W. Germ., extracted in [1977] 2 Y.B. COM. ARB. 234 (International Council for Commercial Arbitration): "binding" means that the award is not open to arbitral or judicial appeal, irrespective of the admissibility of an action for setting aside.

[22] Shenoy, Nivedita, Public Policy Under Article V (2) (B) of the New York Convention: Is There a Transnational Standard? Last accessed on 25 December 2023. Available at SSRN: https://ssrn.com/abstract=3226757 or http://dx.doi.org/10.2139/ssrn.3226757

[23] TermoRio S.A. E.S.P. v. Electranta S.P. 487 F. 3d 928 (D.C. Cir. 2007), ILDC 1928 (US 2007).

[24] See, e.g., Inter-City Gas Corp. v. Boise Cascade Corp., 845 F.2d 184, 187 (8th Cir. 1988).

[25] X v. Y, 21 February 2005, 5P.353/2004 

[26] Société AZUR On Line v. Société Intereven T‑57/11, EU:T:2014:1021

[27] Westerbeke Corp. v. Daihatsu Motor Co. 304 F.3d 200 

[28] Cf. DAVID ST. JOHN SUTTON ET AL., RUSSELL ON ARBITRATION § 7-052 (23rd ed. 2007) (noting that in the event a court refuses to stay legal proceedings, arbitration will not be undertaken in order to solve the dispute).

[29] Dallah Real Estate and Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46

[30] West Tankers Inc. v. RAS Riunione Adriatica di Sicurta SpA & Ors. [2007] UKHL 4 (21 February 2007) 

[31] Cf. Brussels Regulation, supra note 146, art. 27 (leaving it to the court first presented with the matter to establish jurisdiction, while other courts should stay proceedings in the interim).

[32] See Paul E. Mason & Mauricio Gomm-Santos, New Keys to Arbitration in Latin America, 25 J. INT’L ARB. 31, 59-60 (2008) (citing Trelleborg do Brasil Ltd. v. Anel Empreendimentos Participacoes e Agropecuaria Ltd. (citation omitted)); see also the French CA Paris case of November 30, 1988 Korsnas Marma v. Durand-Auzias.

[33] First Options of Chicago, Inc. v. Kaplan 514 U.S. 938 (more) 115 S. Ct. 1920; 131 L. Ed. 2d 985; 1995 U.S. LEXIS 3463; 63 U.S.L.W. 4459; Fed. Sec. L. Rep. (CCH) ¶ 98,728; Comm. Fut. L. Rep. (CCH) ¶ 26,398; 95 Cal. Daily Op. Service 3821; 95 Daily Journal DAR 6474; 9 Fla. L. Weekly Fed. S 64

[34] Prima Paint Corp. v. Flood & Conklin Mfg. Co. 388 U.S. 395 (1967)

[35] Buckeye Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440 (more) 126 S. Ct. 1204; 163 L. Ed. 2d 1038; 2006 U.S. LEXIS 1814

[36] Thomas E. Carbonneau, “The Exercise of Contract Freedom in Making of Arbitration Agreements” (2003) vol. 36 Vanderbilt Journal of Transnational Law 1189, 1189-1196.

[37] Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration,(student edition, Oxford University Press, 2009) para 2.176.

[38] 1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the "New York" Convention (hereinafter “New York Convention”) art V (1(d)).

[39] P. North and J.J. Fawcett, Cheshire and North private international law (11th ed., 1987).

[40] C. Chatterjee, “The Reality of Party Autonomy Rule in International Arbitration” (2003), 20(6) Journal of International Arbitration 539, 540.

[41] Chromalloy Aeroservices v. Arab Republic of Egypt (ICSID Case No. ARB/04/20)

[42] Kalaitsoglou, K. (2021). Exploring the concept of arbitral awards under the New York Convention. Journal of Strategic Contracting and Negotiation, 5(1-2), 99-112. https://doi.org/10.1177/20555636211022839

[43] See Gary B. BORN, International Commercial Arbitration, volume 1 (Kluwer Law International 2009) at p. 306 and p. 1765; LEW, MISTELIS and KROLL, supra, at p. 120. But see Emmanuel GAILLARD and John SAVAGE, eds., Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer Law International 1999) pp. 633-636.

[44] International Commercial Arbitration, 3rd edn, by Gary B. Born, (Wolters Kluwer, The Netherlands, 2009)

[45] See generally Julian D M Lew QC, Achieving the Dream: Autonomous Arbitration? in ARBITRATION INSIGHTS, 455, 455-85 (Julian D.M. Lew & Loukas A. Mistelis eds., 2007) [hereinafter Lew, Achieving the Dream] (discussing the “dream” of international arbitration as its existence in its own private non-national sphere, and the “nightmare” as anti-arbitration injunctions, which are designed to protect the nationals of the issuing court).

[46] See julian d.m. lew qc et al., comparative international commercial arbitration 367-74 (2003).

[47] Gerbay, Remy, The London Court of International Arbitration (2013). in Arbitration in England, Julian D.M. Lew, Harris Bor, Gregory Fullelove, Joanne Greenaway (Eds), Kluwer (2013), Available at SSRN: https://ssrn.com/abstract=2519515 last accessed on 25 December 2023.

[48] See, e.g., Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059 (9th Cir. 2007).

[49] See, e.g., Comandate Marine Corp. v. Pan Australia Shipping Pty Ltd. (2006) FCAFC 192, ¶¶ 16-20 (Austl.).

[50] Nat’l Westminster Bank PLC v. Rabobank Nederland, [2007] EWHC (Comm) 1742, [36] (Eng.); Scandinavian Airlines Sys. Den.-Nor.- Swed. v. Sunrock Aircraft Corp., [2007] EWCA (Civ) 882, [37]-[42] (Eng.). On the issue of damages for breach of arbitration clauses, see generally Justin Michealson & Gordon Blanke, Anti-Suit Injunctions and the Recoverability of Legal Costs as Damages for Breach of an Arbitration Agreement, 74 INT’L J. ARB., MEDIATION & DISPUTE MGMT. 12 (2008).

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