Document Type

Article

Publication Title

Georgia Journal of International and Comparative Law

Abstract

One important feature of a successful international convention is the autonomous and uniform interpretation of the convention by national courts. With respect to the New York Convention, there are indications that an international standard has emerged at numerous points. Article II(3), providing for exceptions to the enforcement of arbitration agreements, is generally understood to refer only to traditional contract defenses and not to broader public policy concerns. Also, with respect to Article V's "procedural defenses" to enforcement of awards (such as lack of notice or the ability to present one's case), a truly anational standard has emerged in interpreting those defenses. Still, the role for national law has been left relatively open in the structure of the New York Convention (the Convention), and, not surprisingly, has contributed to the failure in reaching a truly international standard for international commercial arbitration. Interestingly, with respect to the substantive defenses to enforcement, where national law is given a prominent role, such as arbitrability (Article V(2)(a)) and public policy (Article V(2)(b)), national courts have not been parochial in using national law applicable under these Articles, and national courts have acknowledged the need to take account of international and not merely domestic norms. Accordingly, these Convention exceptions for national law have not created great disharmony where one might have thought they would. However, there are other areas involving arbitration agreements and awards where national law plays a predominant role and has given rise, and will continue to give rise, to an increase in litigation with respect to both arbitration agreements and awards. This Article discusses three such areas: (1) Convention country treatment of awards that have been set aside by the arbitral seat; (2) procedural requirements imposed by national law for enforcement of arbitral awards; and (3) the appropriate choice of law rule for determining whether an agreement is null and void under Article II of the Convention.

First Page

25

Volume

38

Publication Date

2009

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