Outline and speech presntion Essay Example

  • Category:
    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
  • Page:
    2
  • Words:
    969

Introduction

Definition and significance of international commercial arbitration

Main body

Benefits of enforceability in international commercial arbitration

  • The parties’ dispute resolution agreement can be attained only if it is enforceable.

  • International arbitration aspires to produce more enforceable final results than achieved from forum section agreements

  • Enforceability also ensures that international arbitration agreements can be interpreted in most courts, than forum selection clauses

  • Enforceability also implies that an international arbitral award rendered in one state can be enforced in another state

  • By being signatories to the New York Convention, countries can benefit from enforceability in international commercial arbitration

Challenges of enforceability in international commercial arbitration

  • The New York Convention accords wide discretionary powers to national courts to restrain or facilitate arbitration in accordance with general policies

  • Choosing a country that is a signatory to the New York convention may prove challenging

  • It is not easy to determine the enforceable awards due to the differences between domestic and international awards

  • The pro-enforcement bias of the New York Convention

Presentation

International commercial arbitration involves resolving business disputes between or among international parties by using one or more arbitrators rather than through the courts.1 This requires the agreement of the parties, which is usually achieved through an arbitration clause that is introduced in the contract of business agreement.2

Benefits of enforceability in international commercial arbitration

  • The parties’ dispute resolution agreement can be attained only if it is enforceable. Unless the dispute resolution agreement can be enforced, it is of little value.3

  • International arbitration aspires to produce more enforceable final results than achieved from forum section agreements. This aspiration has largely been realised because of the enforceability for international arbitral awards.4

  • Enforceability also ensures that international arbitration agreements can be interpreted in most courts, than forum selection clauses. This is consistently cited by users as one of the most important benefits of the arbitral process.5

  • Enforceability also implies that an international arbitral award rendered in one state can be enforced in another. One of the key benefits of arbitrating than following the court process in international disputes is the relative simplicity with which an international arbitral award in one country can be implemented in another country. This advantage is of crucial importance as the existing party in an international dispute recurrently has to enforce the judgement or award rendered its favour in a different country in which the unsuccessful party has assets.6

  • By being signatories to the New York Convention, countries can benefit from enforceability in international commercial arbitration. The New York Convention has been ratified by more than 140 countries, and, subject only to a very limited list of exceptions, calls upon states to recognise arbitral awards rendered in other countries.7 It is therefore important for parties to check for ratification of the Convention before getting involved in an international arbitration agreement.

Challenges of enforceability in international commercial arbitration

  • The New York Convention accords wide discretionary powers to national courts to restrain or facilitate arbitration in accordance with general policies. There is also need for an evaluation of the quality and outcome of international arbitral decisions. This implies that national courts will decide whether the arbitral agreement is null and void, or not admissible in their national law or under the law that is applicable according to their own private international law.8

  • Choosing a country that is a signatory to the New York Convention may prove challenging. It is important to note that enforceability of an award is only possible if the parties involved are from countries that are signatories to the New York Convention.9

  • It is not easy to determine the enforceable awards due to the differences between domestic and international awards

  • The pro-enforcement bias of the New York Convention. These include:

    • The major and object purpose of the Convention is to encourage and liberalise the process of recognition and enforcement of awards by decreasing the scope for obstruction by national courts and laws.

    • Another reason is as a result of the principle of conformity

Conclusion

There are many benefits as there are challenges of enforceability in international commercial arbitration. A key benefit is that international arbitral agreements must be enforceable; otherwise they will make little sense. This is seen by the interpretation of the details of such agreements by national courts of different countries that are signatories to the New York Convention. In contrast, enforceability also causes challenges as not all countries are signatories to the New York Convention. In addition, it is difficult to determine the enforceable awards due to the differences between countries’ legal frameworks, and the parties involved in international arbitration must be from contracting states.

References

American Society of International Law, “ASIL
Guide to Electronic Resources for International Law,” viewed 30 April 2011, http://www.asil.org/arb1.cfm

Gary Born, International commercial arbitration (2009), London, Kluwer Law International, 76. http://books.google.com/books?id=5GNIyRPd9NUC&printsec=frontcover&dq=International+commercial+arbitration&hl=en&ei=61y8Te7WKtGLswagi7H-BQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CDoQ6AEwAA#v=onepage&q&f=false

Eter Sherwin, Ana Vermal and Elizabeth Figueira, “Perceived advantages and disadvantages of international arbitration,” accessed 30 April 2011, http://www.proskauerguide.com/arbitration/19/I

Horacio A. Grigera Naón, Choice-of-law problems in international commercial arbitration (1992), New York, Mohr Siebeck, 282-283.

http://books.google.com/books?id=mrnP9H7OiO4C&printsec=frontcover&dq=Choice-oflaw+problems+in+international+commercial+arbitration&hl=en&ei=Uly8TeKVAc32sgaBqMXvBQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CDoQ6AEwAA

Alan Redfern, Law and practice of international commercial arbitration 4th ed. (2004), London, Sweet & Maxwell, 274. http://books.google.com/books?id=9mBqDaSB-ZwC&printsec=frontcover&dq=Law+and+practice+of+international+commercial+arbitration&hl=en&src=bmrr&ei=ply8TYmgDcT0sgbhtfSSBg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CD8Q6AEwAA#v=onepage&q&f=false

1 American Society of International Law, “ASIL
Guide to Electronic Resources for International Law,” viewed 30 April 2011, <http://www.asil.org/arb1.cfm>

2 American Society of International Law (above)

3 Gary Born, International commercial arbitration (2009), London, Kluwer Law International, 76. <http://books.google.com/books?id=5GNIyRPd9NUC&printsec=frontcover&dq=International+commercial+arbitration&hl=en&ei=61y8Te7WKtGLswagi7H-BQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CDoQ6AEwAA#v=onepage&q&f=false >

4 Gary Born (above)

5 Gary Born (above)

6 Eter Sherwin, Ana Vermal and Elizabeth Figueira, “Perceived advantages and disadvantages of international arbitration,” accessed 30 April 2011, < http://www.proskauerguide.com/arbitration/19/I>

7 Eter Sherwin, Ana Vermal and Elizabeth Figueira (above)

8 Horacio A. Grigera Naón, Choice-of-law problems in international commercial arbitration (1992), New York, Mohr Siebeck, 282-283. <http://books.google.com/books?id=mrnP9H7OiO4C&printsec=frontcover&dq=Choice-of-law+problems+in+international+commercial+arbitration&hl=en&ei=Uly8TeKVAc32sgaBqMXvBQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CDoQ6AEwAA>

9Alan Redfern, Law and practice of international commercial arbitration 4th ed. (2004), London, Sweet & Maxwell, 274. < http://books.google.com/books?id=9mBqDaSB-ZwC&printsec=frontcover&dq=Law+and+practice+of+international+commercial+arbitration&hl=en&src=bmrr&ei=ply8TYmgDcT0sgbhtfSSBg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CD8Q6AEwAA#v=onepage&q&f=false >