Enforcement of Foreign Arbitration Rulings, Awards (2-2)
In our previous intervention, we touched on the recognition of foreign arbitral awards, through an overview of the principle and applicable mechanisms.
To conclude, we will review some of the shortcomings, that may affect the applying these foreign arbitral awards.
With regard to the shortcomings that have emerged from the Convention, on the Recognition and Enforcement of Foreign Arbitral Awards, researchers and experts have drawn several views on some defects, related to the nature of non-enforcement, in the use of the word (may), in Article V of the New York Convention, where the term “may” was used to indicate that the application for recognition and enforcement of the arbitration award, may be refused at the request of the defendant, provided that the latter submits to the authority, to which it was requested, the evidence of the following:
(a) the parties are without legal capacity or eligibility, as stated in the agreement, or under the law of the country, in which the award was given—or,
(b) the party against whom the award was made has not been notified about the award, either of the appointment of the arbitrator, or of the arbitral proceedings, or,
(c) that the arbitration award deals with a dispute outside the scope of the agreed upon terms, under which the dispute was referred or submitted to arbitration, in the first place or,
(d) that the composition of the arbitral tribunal (or arbitration proceedings, in general) was not made with the consent of the parties, or it took place, in the absence of such agreement, or that the procedures, were not in accordance with the applicable law of the country, in which the arbitration has taken place, at.
Perhaps the lack of clarity here is summed up in the absence of a unified evaluation (assessment) to invalidate the arbitral awards, as the New York Convention places the burden of proof on the defendant!? and the Convention authorizes national courts, to outright, reject a request to implement a foreign arbitral award (on the grounds that it is doing harm or to avoid doing harm, e.g. compromising the national sovereignty).
In addition to the above, the fact that each country adopts different laws, regulations, and procedures on implementing foreign arbitral awards, has contributed to a lot of postponement and sometimes rejection and reconsideration. To be more clear, the different mechanisms for evaluating local courts (jurisdiction) for foreign arbitral awards, and the varying time periods associated with these applicable mechanisms, have created a blurring that local courts, alone in different countries, cannot address even in several ways.
For example, limiting and organizing the process of evaluating or screening of appointed arbitrators for these courts, in a certain time, and even allocating in various departments, (According to the subject matter of the judgment), is concerned only with the application of foreign arbitral awards.
Clearing such steps, would undoubtedly, contribute to accelerating application and implementation of the foreign arbitration given awards.