Enforcement of Foreign Arbitral Awards and the Public Policy Exception: Including an Analysis of South Asian State Practice

ISBN-13: 9789811626333 / Angielski / Twarda / 2021 / 183 str.

Bruno Zeller; Gautam Mohanty; Sai Ramani Garimella

Spis treści

1.0    Introduction to the book

1.1    An overview of the international regime on enforcement of foreign arbitral awards

1.2    Identifying the difficulties encountered in implementing this regime

 

2.0    The exceptions to the Enforcement of the Foreign Arbitral Awards within the New York Convention – jurisprudence from State Practice

2.1     Article V(1)(a)

2.2    Article V(1)(b)

2.3    Article V(1)(c)

2.4    Article V(1)(d)

2.5    Article V(1)(e)

2.6    Article V(2)(a) &(b)

3.0       UNCITRAL Model Law

3.1    – mapping the work of Working Group II

3.2    – UNCITRAL ML on recognition and enforcement of arbitral awards

3.3    -  Article 34 – set aside of arbitral awards

3.4    - Article 36 – refusal of recognition or enforcement of foreign arbitral awards

4.0    The Public Policy Exception to Enforcement – the origins in private law

4.1    – articulation of public policy within private international law

4.2     - public policy in international commercial arbitration

4.3     the manifestation and diversity of public policy within international commercial arbitration

4.4    – the guidance under the international instruments related to international arbitration

4.5    – The New York Convention on Public Policy

4.6    – The UNCITRAL Model Law on Public Policy

 

5.0  – State practice on the delimitation and interpretation – the maximalist and minimalist approaches

5.1  – instances of delimitation of Public Policy exception through statutory provisions

5.2   -  judicial interpretations on the scope of the public policy exception

 

6.0  – Public policy – need to rein the unruly horse

6.1  – time for a uniform approach to public policy

6.2  –  a possible content for public policy – fundamental standards of the international community and international conventions

7.0 - Conclusion

O autorze

Bruno Zeller is Professor of Transnational Law at the University of Western Australia, Perth; Adjunct Professor at Murdoch University, Perth; Fellow of the Australian Institute for Commercial Arbitration, Panel of Arbitrators – MLAANZ; Visiting Professor at Humboldt University, Berlin and a Visiting Professor Stetson Law School, Florida.   Prof. Zeller is an international law consultant with Michael Bula Solicitors and specializes in transnational commercial law. He is the author of the seminal work – Four-Corners - The Methodology for Interpretation and Application of the UN Convention on Contracts for the International Sale of Goods (2003), amongst a host of research work in the form of books, chapters in edited collections and journals.  His research in the area of transnational commercial law and commercial arbitration is much cited. 

Gautam Mohanty- Gautam Mohanty is an Assistant Professor at Jindal Global Law School(JGLS), O.P.Jindal Global University. He graduated from National Law University Odisha in the year 2015 and has a Master’s in International Business Law from Central European University in 2017. He is also an arbitration consultant and has experience advising domestic and international clients in commercial and dispute resolution matters. He has served as an Arbitration Tribunal Secretary to Hon’ble Justice Deepak Verma, Former Judge of Supreme Court of India in several arbitration matters. Further, he has published his work in several reputed journals and his areas of interest include international commercial arbitration, international investment law, private international law, Blockchain and the law. He is currently a doctoral student at Kozminski University, Warsaw, Poland.

Sai Ramani Garimella- Sai Ramani Garimella teaches international commercial law and arbitration at South Asian University, an inter-governmental organization of the South Asian Regional group, SAARC. She is also a Visiting Senior Research Associate at Research Center for Private International Law in Emerging Countries, University of Johannesburg, Johannesburg, South Africa. Her research interests include international arbitration, international commercial law, private international law, and theoretical constructs in international law. Her research on international arbitration has appeared, recently, in the Manchester Journal of International Economic Law, Pepperdine Dispute Resolution Journal, amongst others. She has co-edited a commemorative volume on the CISG, titled CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS: A MULTIDISCIPLINARY PERSPECTIVE.  (A Commemorative Volume Celebrating 30 Years of The CISG (Sweet & Maxwell, 2019), contributing an essay on Article 42 - - Third Party IPR Claims in Transnational Commerce –Addressing the Indeterminacy.  She has been awarded the Isambard Kingdom Brunel fellowship by the University of Portsmouth in 2019. She has previously co-edited a collection of essays on Private International Law - South Asian State Practice for Springer (2017).

Blurb

The book presents arguments derived from primary sources related to international arbitration in South Asian jurisdictions, a list of the same is made available therein. The book is a research statement on the contemporary concerns within international commercial arbitration, especially related to enforcement of foreign arbitral awards. Importantly, the book through a unique methodology of interface, presents the gratuitous nature of Article 34 of the UNCITRAL Model Law when read with Article V of the New York Convention, especially the plea to the States within Article VII of the same Convention to ease the restrictions and the process of enforceability of foreign arbitral awards.  The book also articulates another important and immediate need with regard to international arbitration – the delimitation of public policy exception to recognition and enforcement of foreign arbitral awards. It critiques the jurisprudence related to arbitration in jurisdictions spread across different geographic regions, thereby enabling the reader to gain an insight into their practices, apart from ensuring a comparative perspective. The book addresses the primary concern related to international arbitration – enforcement of foreign arbitral awards and the grounds for challenges articulated within the New York Convention and the UNCITRAL Model Law. It addresses these grounds, and articulates the necessity for carving the criteria for the application of public policy exception.

The book will not only be a useful resource for policy makers, students and researchers interested in international commercial arbitration, and private international law, but also for practitioners working on dispute resolution in trans-jurisdictional disputes in South Asia and beyond.

“…The present book is not just another book contributing to the endless list of literature already widely used in International Commercial Arbitration on public policy but, in my opinion, is unique in many respects. The distinguishing factor of this book is its regional perspective…"

                - Justice Deepak Verma, Former Judge of Supreme Court of India and Arbitrator

“…This book addresses this core element of the success story of arbitration: enforcement and refusal to enforce and, hence, its relevance cannot be overstated…”

                - Csongor István Nagy, Professor of Law and Head, Department of Private International Law, University of Szeged, Hungary

 

Detailed Forewords are available in the book and can be freely downloaded from https://link.springer.com/book/10.1007/978-981-16-2634-0