Environmental Engineering Reference
In-Depth Information
scale. Both paragraphs of Art. V of the NY Convention mention that the award
may
'
be refused
, which means that the judge is not forced to suspend the international
arbitration award.
240
However, national courts cannot review the merits of the case,
underlining the principle
'
'
(
...
) that a national court should not interfere with the
241
This includes that the award is not valid under the
applicable law under certain cases: (1)(a), violation of the right of fair hearing (1)(b),
missing or wrong interpretation of an arbitration clause (1)(c), unconstitutional
establishment of the arbitration tribunal (1)(d), the award is not binding yet or has
been suspended (1)(e), the subject matter cannot be settled by arbitration (2)(a), and a
violation of public policy (2)(b). The incapacity mentioned in Art. V(1)(a) of the NY
Convention can involve issues of sovereign immunity.
242
Furthermore, Art. V(1)
(e) of the NY Convention is important, because in some countries certain matters are
not arbitrational (e.g. criminal matters, bankruptcy validity of trademarks).
243
There are two loopholes in the NY Convention, namely in Art. V(1)(e) and V(2)
(b). As mentioned above, the award must be in accordance with the law of the seat
of arbitration and only a court of the seat is able to review the award and challenge
it. Concerning Art. V(1)(e) of the NY Convention, it is solely up to the respective
local court to decide on the award
substance of the arbitration.
'
s
vacatur
only according to domestic law.
244
Hence, the court can circumvent the strict invalidity requirements of Art. V of the
NY Convention. Furthermore, Art. V(2)(b) offers a way to undermine arbitration
awards due to the missing definition of public policy. Courts have frequently
interpreted public policy in a very narrow way and only a few awards were
suspended due to public policy reasons.
245
With regard to the Desertec Concept,
the issue of public policy is subject to a separate examination. Finally, states have
frequently highlighted the importance of the finality of arbitral awards.
246
Finality
means that the arbitration court has
'
'
(
...
) the final word on the facts (
...
)
'
and that
enforcement of a national court does not affect finality.
247
240
Hanotiau and Caprasse (
2008
), 721 (722).
241
Hanotiau and Caprasse (
2008
), 721 (723); A review of all arbitration awards would destroy all
advantages of arbitration, except in cases of violation of public policy, in: Hanotiau and Caprasse
(
2008
), 721 (723).
242
Moses (
2008
), 208-209.
243
Moses (
2008
), 216.
244
Moses (
2008
), 214.
245
Hanotiau and Caprasse (
2008
), 721 (722); Harten (
2007
), 51; Wood (
2007
), 575 (581); Moses
(
2008
), 218-219; Ozumba (
2009
), 5.
246
Clapham (
2009
), 437 (438); Important feature of international arbitration, in: Partasides and
Fullelove (
2010
), 1 (10).
247
Clapham (
2009
), 437 (439); There is also a difference between appeal and annulment, whereas
annulment supports finality over consistency and correctness, in: Clapham (
2009
), 437 (439);
Distinction can also be found, in: Schreuer (
2009
), 901-903 paras 8-13; Comparable to Article
52 ICSID Convention, Article 43 UNCITRAL also adopted finality over consistency and correct-
ness, thus Article 43 UNCITRAL does not offer the possibility to appeal and Article 34(2)(b)
(ii) UNCITRAL offers the chance that an award is set aside, where it conflicts with public policy of
the relevant state, in: UNCITRAL (
1985
), para 297; In addition states prefer finality in investor-
state arbitration; Clapham (
2009
), 437 (448-450).
