Essay Title: 

problemsin enforcement of foreign arbitral awards

April 3, 2016 | Author: | Posted in law




In 1958 , the United Nations promulgated the Convention for the Recognition and Enforcement of Arbitral Awards ,1 1Convention on the Recognition and Enforcement of Foreign Arbitral Awards , opened for signature June 10 , 1958 , entered into force June 7 , 1959 330 UNTS 38 [hereinafter New York Convention ‘ or 1958 Convention ‘] Internet version , dated 2006 , accessed Jan . 15 , 2007 . Available at . Internet . [hereinafter the New York Convention [banner_entry_middle]

‘ the document which has become the foundation of international arbitration . The intent of the drafters was to establish a mechanism by which parties could achieve the prompt , inexpensive , and efficient enforcement of arbitral awards throughout the world . Since that time 142 countries have adopted the Convention .2 2Convention on the Recognition and Enforcement of Foreign Arbitral Awards ‘ United Nations Commission on International Trade Law Undated , accessed Jan . 16 , 2007 . Available at http /www .uncitral .org /uncitral /en /uncitral_texts /arbitration

NYConvention_status .html . Internet

Unfortunately , a recurring problem in international arbitration has been developed because courts in the country in which enforcement has been sought have refused to enforce arbitration awards on the grounds that the arbitral tribunal failed to take account of the law of the enforcing state , and the award is in conflict with the public policy of the enforcing state

The Convention does provide a public policy exception in Article V .2 (b :3 3New York Convention , Art . V , sec . 2 (b

2 . Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that (b ) The recognition or enforcement of the award would be contrary to the public policy of that country Clearly , certain provisions of the law of an enforcing state are matters of the fundamental public Dissertation : The Public Policy Exception to the Convention for the Recognition

and Enforcement of Arbitral Awards of 1958

Chapter 1 Page policy , so that an arbitration award which clearly contravenes such a public policy should not be enforced , even if the parties to the contract giving rise to the arbitral award did not specify that the enforcing country ‘s law would be the law applicable to the arbitration

Article V , section 14 4New York Convention , Art . V , sec . 1 provides

1 . Recognition and enforcement of the award may be refused , at the request of the party against whom it is invoked , only if that party furnishes to the competent authority where the recognition and enforcement is sought , proof that (a ) The parties to the agreement referred to in article II were , under the law applicable to them , under some incapacity , or the said agreement is not valid under the law to which the parties have subjected it or failing any indication thereon , under the law of the country where the award was made or (b ) The party against whom the award is invoked was not given proper notice of… [banner_entry_footer]


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