In the Report of the United Nations Commission on International Trade Law on international commercial arbitration, it is stated that “[t]he issues relating to setting aside or annulment of arbitral awards are amongst the most difficult ones to be settled in the model law.”1 This might perhaps be attributed at least in part to the stakes involved in the setting aside of an arbitral award: namely, the expedience of the arbitration process through the finality of the award on the one hand, and due process and justice on the other; both of which are precisely the reasons why parties choose arbitration over national courts in the first place.
In order to know when we might allow one of the key advantages of arbitration—its expedience—to be compromised, we will first have to explore the grounds available for setting aside an award at the seat of the arbitration (I); thereafter, we will address the limitations to these grounds (II); and finally, we will discuss how setting aside has been, in turn, criticized and countered in favor of restoring the final and binding nature to the arbitral award (III).
[...] http://works.bepress.com/fernando_leila/2 McIlwrath, Michael, and John Savage. International Arbitration and Mediation; A Practical Guide. The Hague: Kluwer Law International Paulsson, Jan. “Enforcing Arbitral Awards Notwithstanding A Local Standard Annulment.” The ICC International Court of Arbitration Bulletin (1998). [...]
[...] III. Restoration of the award's finality There is the belief that an arbitral award, after it has been set aside, should not be recognised or enforced anywhere. This idea finds expression in Art. of the Model Law as well as Art. of the New York Convention, both of which relate to grounds for refusing recognition or enforcement. However, this is not always the case in reality, as can be seen from the Hilmarton and Chromalloy cases. [...]
[...] Even though there has been increasing harmonisation with regards to the grounds for setting aside an award, there is hardly any consensus as to the actual effect of an annulment. Ultimately, perhaps the treatment of a set-aside depends on what each State perceives to be the priority in this delicate balancing act. McIlwrath and Savage, p See also Paulsson. Ibid. Bibliography Leila, Fernando. “Setting Aside An Arbitration Award.” 2010. [...]
[...] which indicates that an application for setting aside may only be made within three months after a party has received the award. All these limitations have in fact been translated into reality, as can be seen from the low rate of success of annulment applications. Finally, it should be noted as well that Art 34(4) furnishes the possibility of resuming the arbitral proceedings as an alternative to annulment; this is ostensibly an option that reconciles the objective of justice with the desired overall efficacy in arbitration. [...]
[...] The most troublesome ground for setting aside appears to be Art. because there is no uniform understanding of public policy. As is expressed in another Report of the United Nations Commission on International Trade Law, discussing the term “public policy” it was understood that it was not equivalent to the political stance or international policies of a State but comprised the fundamental notions and principles of justice. It was noted, however, that in some common law jurisdictions that term might be interpreted as not covering notions of procedural justice while in legal systems of civil law tradition, inspired by the French concept of “ordre public”, principles of 1 UNCITRAL Report of the Secretary-General (A/CN.9/207), para procedural justice were regarded as being included '2 A related problem arises with regards to how broadly a court interprets public policy: if construed too broadly, it becomes indistinguishable from the laws of the arbitral seat; yet if understood too narrowly, then it becomes international public policy, which includes only the most basic notions of justice and morality.3 II. [...]
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