Volume 8, Issue 1 (July 2019)

TABLE OF CONTENTS

 

ARTICLES

Recognition and Enforcement of Annulled Arbitral Awards Under the New York  Convention

Dinis Braz Teixeira 

In the 60 years since its inception, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards [“New York Convention”] has become one of the most successful international treaties ever, having been adopted by 157 of the 193 United Nations Member States.  This paper analyses Article V(1)(e) of the Convention which is the cause of a rather intense debate among international scholars. It revolves around the possibility of recognition of annulled foreign arbitral awards.  This paper starts with the introduction of central concepts relating to the debate surrounding Article V(1)(e) of the Convention and the positions that have been put forward in the past decades. The paper contextualizes the appearance of the New York Convention and elaborates on the concepts of ‘recognition’, ‘enforcement’ and ‘setting aside’ of awards, the way they were dealt with by the drafters of the Convention, and the interests at play. The paper also covers the controversies over the nationality of the award and the discretionary power of the courts in enforcing annulled arbitral awards. It finishes by analysing the regime under other conventions, and the situation of pending and set-aside proceedings.  

 

 

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Even-Numbered Arbitral Tribunals

Régis Bonnan

Even-numbered arbitral tribunals are rare. Many national laws and institutional rules discourage or prohibit them. The fear of deadlock between the arbitrators seems to be the main, and sometimes the only, underlying objection. Using a comparative method, this article outlines the various nuances in the approach adopted across a multitude of jurisdictions and attempts to explain the extent to which this fear is justified. Three key points stand out: first, the legal uncertainty in relation to even-numbered tribunals may actually be more problematic than that of a deadlock; second, recourse to even-numbered tribunals could work well under certain specific conditions; and third, the widespread prohibition or reluctance towards allowing even-numbered tribunals, combined with their rarity in practice, is indicative of the problems associated with today’s physiognomy of international arbitration. 

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Conflicts on the Belt & Road: China’s New Dispute Resolution Mechanism

Patrick M. Norton

In its recent Belt and Road Initiative, China has proposed an ambitious program of infrastructure investments in dozens of countries throughout Asia and beyond. This program will inevitably generate a dramatic expansion of international commercial disputes and the need for procedures and institutions to resolve them. China has recently adopted a number of measures designed to prepare Chinese institutions to handle a significant share of these disputes. This article examines China’s new measures and the suitability of Chinese institutions for such an expanded role.

 

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NOTE

 

Assignee’s Right and Obligation to Arbitrate under Civil Law and the Peruvian Long Arm Rule 

James O. Rodner

In civil law countries, the assignment of a contract changes the parties to the contract without resulting in novation. The assignee takes the position of the assignor but the original contract continues to exist, along with provisions relating to choice of law and jurisdiction. Therefore, in many civil law jurisdictions, an agreement to arbitrate contained in the assigned contract is binding on the assignee. This conclusion is supported by the rules on assignment of contract, which are now followed in most civil law jurisdictions and recently adopted in the new French Civil Code of 2016. Further, the Colombian Arbitration Statute of 2012 has an express rule regarding transfer of the arbitration clause in the event of assignment. Furthermore, Article 14 of the Peruvian Arbitration Law incorporates the principle whereby the arbitration clause applies to all the parties which have participated in any way in the performance of the obligations arising out of the contract in good faith. This is a “long-arm” provision covering the difficult cases of assignment. 

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